465-RICR-10-00-1
465-RICR-10-00-1. Rhode Island State Labor Relations Board - Policy and Procedures (version Amendment, 01/01/2018 to 02/01/2021)
1.1 Authority
A. This regulation is
promulgated pursuant to the authority granted in R.I. Gen. Laws
Chapter 28-7.
1. The public policy of the
State of Rhode Island, as it relates to labor relations, is to
encourage the practice and procedure of collective bargaining, and to
protect employees in the exercise of full freedom of association,
self-organization and designation of representatives of their own
choosing for the purpose of collective bargaining, or other mutual
aid and protection, free from the interference, restraint or coercion
of their employers.
B. Composition
1. The composition of the
Rhode Island State Labor Relations Board is defined pursuant to R.I.
Gen. Laws § 28-7-4.
C. Jurisdiction
1. State law does not
expressly limit the Board’s jurisdiction over employers; however,
the Board’s jurisdiction is preempted as to certain employers, by
federal law. As a practical matter, for many years, the Board’s
cases have been limited to municipal, state, quasi-municipal and
quasi-state (various “authorities”) employers.
1.2 Definitions
A. As used in these
regulations and decisions of the Board, the following terms shall be
defined as hereinafter set forth.
1. “Act” means Rhode
Island Labor Relations Act, R.I. Gen. Laws § 28-7-1 et seq.
2. “Accretion” means the
process by which positions are added to an existing bargaining unit.
3. “Administrative
Dismissal” means pursuant to R.I. Gen. Laws § 28-7-9(d), the
written discharge of any unfair labor practice charge after
investigation and designated informal hearing process.
4. “Administrative
Officials” means the highest members of an employer’s executive
department; the top level of the employer’s hierarchy, the
officials or political appointees of the local government; an officer
or political appointee of the executive department of the government.
5. “Board” means the Rhode
Island State Labor Relations Board.
6. “Business Day” means
Monday through Friday, excluding those holidays as enumerated in R.I.
Gen. Laws § 25-1-1.
7. “Cards of Interest”
means a showing of interest for authorization of representation
through cards of interest and/or a petition listing the names, titles
of positions, and a showing of an original signature, pursuant to
R.I. Gen. Laws § 28-7-9(b)(1).
8. “Casual Employee” means
those persons hired for an occasional period to perform special jobs
or functions.
9. “Certification of
Representatives” means the Board's official approval of a
bargaining unit, issued upon petition.
10. “Community of Interest”
means the critical consideration in determining the scope of
bargaining units. In determining whether a proposed bargaining unit
shares a community of interest, the Board may consider the following
factors, among others:
a. The similarity in scale and
manner of determining earnings;
b. Similarity of employment
benefits, hours of work, and other terms and conditions of
employment;
c. Similarity in the kind of
work performed;
d. Similarity in the
qualifications, skills, and training of the employees;
e. Frequency of contact or
interchange among employees;
f. Geographic proximity;
g. Continuity or integration
of production processes;
h. Common supervision and
determination of labor relations policies;
i. Relationship to the
administrative organization of the employer;
j. The history of collective
bargaining;
k. The desires of the affected
employees; and
l. The extent of union
organization within the employer’s ranks.
11. “Company Union” means
any committee, employee representation plan, or association of
employees, which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances, or terms and conditions
of employment, which the employer has initiated or created, or whose
initiation or creation he or she has suggested, participated in, or
in the formulation of whose governing rules or policies, or the
conducting of whose management, operations, or elections the employer
participates in or supervises, or which the employer maintains,
finances, controls, dominates or assists in maintaining or financing,
whether by compensating anyone for services performed in its behalf
or by donating free services, equipment, materials, office or meeting
space or anything else of value, or by any other means.
12. “Confidential Employee”
means those employees who assist and act in a confidential capacity
to persons who formulate, determine, and effectuate management
policies in the field of labor relations, or those employees who, in
the course of their duties, regularly have access to confidential
information concerning anticipated changes, which may result from
collective bargaining negotiations.
13. “Confidential
Information” means information excluded from public access by
federal or state law, or administrative rule, court rule, court or
administrative order, or case law.
14. “Consent Election”
means an election in which both the employees and employer agree upon
the scope of the proposed bargaining unit; subject to the final
approval of the Board and to statutory exclusions of employees, as
determined by the Board.
15. “Decertification Cards
of Interest” means a showing of interest for authorization to
displace or decertify a certified or recognized labor organization.
16. “Designation of
Bargaining Agent and Waiver of Right to Vote” means a showing of
interest for authorization of representation through cards of
interest, whereby the parties are
deemed to have waived their statutory right to an informal conference
and other consent election processes.
17. “Elected Official”
means those employees who have come to be employed by any city, town,
or subdivision of the state, through the electoral process, by its
citizens.
18. “Electronic Filing”
means the electronic transmission of a document to the electronic
document management system together with the production and
transmission of a notice of electronic filing.
19. “Electronic Record”
means a record, file, or document created, generated, sent,
communicated, received, or stored by electronic means.
20. “Employee” means
includes, but is not restricted to, any individual employed by a
labor organization; any individual whose employment has ceased as a
consequence of, or in connection with, any current labor dispute, or
because of any unfair labor practice, and who has not obtained any
other regular and substantially equivalent employment; and shall not
be limited to the employees of a particular employer, unless the
chapter explicitly states otherwise; but shall not include any
individual employed by his or her parent or spouse, or in the
domestic service of any person in his or her home, or any individuals
employed only for the duration of a labor dispute, or any individuals
employed as farm laborers.
21. “Employer” means any
person acting on behalf of, or in the interest of the employer,
directly or indirectly, with or without his or her knowledge, but a
labor organization, or any officer or agent thereof, shall only be
considered an employer with respect to individuals employed by the
organization.
22. “Informal Hearing”
means a preliminary process that is implemented for the purpose of
identifying and narrowing issues of fact or law, by means of either a
written submission or an in-person hearing, stating the parties’
position(s) with respect to a newly filed matter, in accordance with
§ 1.10 of this Part.
23. “Initial Filings -
Petitions” means the filing of any Unfair Labor Practice Charge,
Petition for Investigation of Controversies as to Representation,
Petition for Decertification of a Certified Bargaining
Representative, Petition for Unit Clarification and/or
Accretion/Exclusion, or a Petition for Affiliation/Merger, before the
Rhode Island State Labor Relations Board.
24. “Intervener” means a
party who voluntarily interposes in a proceeding with the approval of
the Board or its Administrator.
25. “Labor Dispute” means
includes, but is not restricted to, any controversy between employers
and employees or their representatives, as defined herein, concerning
terms, tenure, or conditions of employment, or concerning the
association or representation of persons in negotiating, fixing,
maintaining, changing, or seeking to represent, negotiate, fix,
maintain, or change terms and conditions of employment, or concerning
the violation of any of the rights granted or affirmed by the Act,
regardless of whether the disputants stand in the proximate relation
of employer and employee.
26. “Labor Organization”
means any organization, which exists and is constituted for the
purpose, in whole or in part, of collective bargaining, or of dealing
with employers concerning grievances, terms or conditions of
employment, or of other mutual aid and protection, and which is not a
company union, as defined in § 1.2(A)(11) of this Part.
27. “Managerial Employee”
means those employees who formulate and effectuate management
policies by expressing and making operative the decisions of their
employers. Managerial employees must exercise discretion within, or
even independently of, established employer policy and must be
aligned with management. An employee may be excluded from a
bargaining unit as managerial only if he or she represents
management’s interests by taking or recommending discretionary
actions that effectively control or implement employer policy.
28. “Municipal Employee”
means any employee of a municipal employer, whether or not in the
classified service of the municipal employer, except:
a. Elected officials and
administrative officials;
b. Board and commission
members;
c. Certified teachers, police
officers, and fire fighters;
d. Confidential and
supervisory employees;
e. Casual employees, meaning
those persons hired for an occasional period to perform special jobs
or functions;
f. Seasonal employees, meaning
those persons employed to perform work on a seasonal basis of not
more than sixteen (16) weeks, or who are part of an annual job
employment program; and
g. Employees of authorities
except housing authorities not under direct management by a
municipality who work less than twenty (20) hours per week.
29. “Municipal Employer”
means any political subdivision of the state, including any town,
city, borough, district, school board, housing authority, or other
authority established by law, and any person(s) designated by the
municipal employer to act in its interest in dealing with municipal
employees.
30. “Non-Electronic Filing”
means a process by which a paper document or other non-electronic
item is filed with the Board.
31. “Non-Electronic
Signature” means a handwritten signature, signed in blue ink,
applied to an original document that is then scanned and
electronically filed with the Board in PDF format.
32. “Notice of Electronic
Filing Confirmation” means a document generated by the electronic
document management system confirming when a document is
electronically filed.
33. “Original Document”
means all documentation filed with the Board, electronically, shall
be deemed the original record in each matter.
34. “Party” means any
person, employee organization or public employer who has filed a
petition or charge under the Act or these rules; has been named as a
party in a complaint, petition or other matter under these rules; or
whose motion to intervene has been granted by the Board.
35. “Person” means one or
more individuals, partnerships, associations, corporations, legal
representatives, trustees, trustees in bankruptcy or receivers.
36. “Personal Identification
Number (PIN) Verification” means a secured four (4) digit number
that is used in combination with a party’s identifying information,
for the purpose of verification of recognition, for the electronic
submission of documentation with the Rhode Island State Labor
Relations Board.
37. “Petitioner” means the
moving party who signs and/or files a petition.
38. “Policies of Act”
means the policies set forth in R.I. Gen. Laws § 28-7-2.
39. “Portable Document
Format (PDF)” means an electronic document filed in a portable
document format (PDF), which is readable by the free Adobe® Acrobat®
Reader.
40. “Professional Employee”
means
a. Any employee engaged in
work
(1) predominantly
intellectual and varied in character; as opposed to routine mental,
manual, mechanical or physical work;
(2) involving the consistent
exercise of discretion and judgment in its performance;
(3) of such a character that
the output produced, or the result accomplished, cannot be
standardized in relation to a given period of time;
(4) requiring knowledge of an
advanced type in a field of science or learning customarily acquired
by a prolonged course of specialized intellectual instruction and
study in an institution of higher learning or a hospital, as
distinguished from a general academic education, or from an
apprenticeship, or from training in the performance of routine,
manual, or physical processes; or
b. Any employee who
(1) has completed the courses
of specialized intellectual instruction and study described in §
1.2(A)(40)(a)((4)) of this Part; and
(2) is performing related
work under the supervision of a professional person to qualify
himself or herself to become a professional employee as defined in §
1.2(A)(40)(a) of this Part.
41. “Protected Information”
means any personal information, the nature of which warrants
protection from unlimited public access, including:
a. Social Security Numbers;
b. Financial account numbers;
c. Dates of birth;
d. Names of minor children;
e. Individual taxpayer
identification numbers;
f. Personal identification
numbers; and
g. Other unique identifying
numbers.
42. “Registered User”
means an individual who can electronically file documents through the
use of a username and password.
43. “Respondent” means the
party who is required to answer to a petition and/or complaint for an
alleged prohibited practice, requiring the respondent to take some
form of action or halt an activity.
44. “Seasonal Employee”
means those persons employed to perform work on a seasonal basis of
not more than sixteen (16) weeks, or who is part of an annual job
employment program.
a. In connection with this
definition, “seasonal basis” shall also mean employment that
depends upon, or varies with the seasons of the year, (winter,
spring, summer, and fall) or is dependent upon a particular and
regular employment.
45. “Signature” means a
registered user's username and password accompanied by a
"non-electronic signature" and the entry of a PIN.
46. “Supervisory Employee”
means any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the
foregoing, the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
47. “Unfair Labor Practices”
means only those unfair labor practices listed in R.I. Gen. Laws §§
28-7-13 and 28-7-13.1.
48. “Unit Clarification”
means a request filed by the exclusive bargaining agent, a
municipality, or the State of Rhode Island, seeking any of the
following:
a. Accretion of one (1) or
more positions to an existing bargaining unit, whether originally
constituted through a consent election or a contested election
procedure; or
b. Exclusion of one (1) or
more positions from an existing bargaining unit, whether originally
constituted through a consent election or a contested election
procedure.
49. “Unit Classification”
means the original determination of a bargaining unit, whether done
by a consent election or a contested election.
1.3 Meetings of the Board
A. Notice of Board Meetings
and Proceedings
1. The Board shall give
written notice of its regularly scheduled monthly meetings at the
beginning of each calendar year. The notice shall include the dates,
times, and places of the meetings.
2. The Board shall give
supplemental written public notice of any meeting within a minimum of
forty-eight (48) hours excluding weekends and state holidays in the
count of hours before the date of the scheduled meeting. The notice
shall be filed electronically with the Secretary of State’s Office,
published on the Board’s website at www.rislrb.ri.gov,
posted at the principal office of the Board, and at least in one
other prominent place in the agency. The notice shall include, in
addition to the date, time, and place, a statement specifying the
nature of the business to be discussed. Pursuant to R.I. Gen. Laws §
42-46-6(b), nothing contained therein, shall prevent the Board from
adding additional items to the agenda, by majority vote of the
members.
3. That nothing contained
herein, shall prevent the Board from holding an emergency meeting,
upon an affirmative vote of the majority of the members of the Board,
when the meeting is deemed necessary to address an unexpected
occurrence that requires immediate action to protect the public. If
such an emergency meeting is called, a meeting notice and agenda
shall be posted as soon as practicable. The notice shall be filed
electronically with the Secretary of State’s Office, published on
the Board’s website at www.rislrb.ri.gov,
posted at the principal office of the Board, and at least in one
other prominent place in the agency.
B. Meeting Locations
1. All meetings of the Board
shall be held in a facility, which is accessible to handicapped
persons, pursuant to the Rhode Island Constitution Articles 1 &
2, 29 U.S.C. § 794, R.I. Gen. Laws Chapter 42-87, et seq .,
and R.I. Gen. Laws Chapter 11-24, et seq .
C. Minutes of Meetings
1. The Board shall keep
minutes of all its meetings. The minutes shall include, but need not
be limited to:
a. The date, time, and place
of the meeting;
b. The members of the Board
recorded as either present or absent;
c. A record by individual
members of any vote taken; and
d. Any other information
relevant to the business of the Board that any member of the Board
requested be included or reflected in the minutes.
2. All approved open minutes
of all meetings of the Board shall be published on the Board’s
website at www.rislrb.ri.gov.
3. The Board shall file
electronically with the Secretary of State’s Office all approved
open minutes of all meetings of the Board within thirty-five (35)
days of the meeting or at the next regularly scheduled monthly
meeting, whichever is earlier.
D. Quorum; Requirement for
Participation in Case
1. Pursuant to R.I. Gen. Laws
§ 28-7-5, a quorum of two (2) Board members is required for action
by the Board in any matter.
2. When deciding any matter,
which has been heard formally, any Board member who was not present
for all hearings on the matter must first affirm that he or she has
read all the transcripts of the case and briefs filed by the parties
(if any), and has reviewed all the evidence submitted therein.
1.4 Rules of Practice: Appearances
of Representatives
A. Requirements of Entry
1. All person(s) representing
any party or appearing pro se in any proceeding before the
Board shall file an Entry of Appearance, which shall contain the
representative’s name, address, telephone and facsimile (fax)
numbers, electronic mail (e-mail) address, and cellular phone number.
The entry shall also specify the represented party. Entry of
Appearance forms may be obtained on the Board’s website at
www.rislrb.ri.gov.
B. Persons Eligible to Enter
an Appearance
1. Representatives may be, but
are not required to be, attorneys licensed to practice in the State
of Rhode Island. Attorneys who are not licensed to practice in the
State of Rhode Island may not appear before the Board in a
representative capacity, unless he or she has complied with the
applicable Rules and Regulations issued by the Rhode Island Supreme
Court for practice within the State of Rhode Island. Out-of-state
attorneys are advised to contact the Rhode Island Supreme Court, 250
Benefit Street, Providence, Rhode Island 02903, for further
information on practicing before the Rhode Island State Labor
Relations Board.
2. Business managers, field
agents, union stewards, or any other member(s) of a labor
organization, may represent a union or an individual complainant in
any proceeding before the Board. Likewise, labor consultants, town
administrators, managers, personnel managers, or any other member
designated by the employer, shall be permitted to represent any
municipality or the State, in any proceeding before the Board.
3. All representatives must
file an Entry of Appearance at the time when the party first makes
any complaint or answer to a complaint; which the entry shall,
thereafter, serve as the official address of record for that
proceeding. All notices, and oral or written communication from the
Board, shall be directed only to the person that has entered his or
her appearance. Any subsequent Entry of Appearance must be
accompanied by a Withdrawal of Appearance from the prior
representative, or an affidavit as to why such a withdrawal cannot be
produced. Withdrawal of Appearance forms may be obtained on the
Board’s website at www.rislrb.ri.gov.
C. Practice Before the Board;
Limited
1. Any person who, at any
time, has been employed by the Board, shall not be permitted to
appear as attorney or representative for any person (firm,
corporation, or organization) until the expiration of one (1) year
from the termination of his or her employment with the Board, nor
shall he or she, at any time, be permitted to appear in any case,
which was pending before the Board during the period of his or her
employment with the Board.
D. Motion for Excusal from
Appearance Before the Board
1. All representatives of
record shall file a motion to be excused from every matter assigned
before said Board, as applicable. Said Motion for Excusal shall list
all cases by name and case number in which the requester has entered
an appearance; and a copy of the request shall be certified to all
other parties of record.
2. The motion to be excused
from appearance before the Board shall also contain a statement, if
applicable, to the effect that none of the matters listed hereto,
have been assigned for hearing or any other proceeding for the
requested excusal dates.
3. If a matter is assigned
before this Board during the requested period for excusal, and the
party does not request a postponement of said matter, a substitute
representative must be noted in said motion.
4. A postponement of any
matter, as a result of a Motion for Excusal, shall be requested in
accordance with § 1.8(L) of this Part.
5. If the matters listed in
the Motion for Excusal are not scheduled for any hearing or action,
the Board’s Administrator shall grant the party’s request in
writing.
E. Ex parte
Consultations or Communications
1. Unless required for the
disposition of ex parte matters authorized by law, Board
members shall not, directly or indirectly, in connection with any
issue of fact or law, communicate with any person or party, or his or
her representative, except upon notice and opportunity for all
parties to participate; but any Board member:
a. May communicate with other
members of the Board or staff; and
b. May have the aid and advice
of one or more personal assistants.
F. Filing Deadlines
1. The Board shall follow the
practice of the Superior Court Rules of Civil Procedure for filing
deadlines. Therefore, where a filing deadline falls on a Saturday,
Sunday, or legal holiday, as recognized for Rhode Island State
Employees, the filing deadline shall be extended to the next earliest
business day.
1.5 Electronic Document Management
System (E-Filing)
A. Effective Date and Scope
1. This section governs the
mandatory electronic filing of all correspondence and documents
submitted to the Rhode Island State Labor Relations Board (RISLRB)
that are filed on or after January 1, 2016. To the extent the Rules
and Regulations in this section are inconsistent with any other
administrative rule of the Board, the Rules and Regulations in this
section shall govern.
B. Electronic Filing
Procedures
1. Conversion of Filings to
Portable Document Format (PDF)
a. All documentation must be
converted to a PDF format before uploading to the electronic document
management system.
(1) The only exception to the
aforementioned rule is that of written statements and responses
submitted to the Board dealing with charges of Unfair Labor
Practices, which shall also be submitted in "WORD" format.
b. Parties shall be required
to keep an original of all documentation submitted through the
e-filing process, should it be necessary for production.
2. Initial Filing of Petitions
a. All initial filings in a
proceeding as defined in § 1.2(A)(23) of this Part, shall be
submitted to the Board only through the electronic document
management system, unless a party to the proceeding is exempt from
electronically filing documents in accordance with § 1.5(F)(2) of
this Part; and
b. The Board will then notify
all parties of record of the said filing, as well as the designated
informal hearing process, in accordance with § 1.9(A) of this Part.
3. Initial Filings of all
Correspondence and other Documentation
a. All initial filings of
correspondence and other documentation except those enumerated in §
1.5(F)(2) of this Part, are to be submitted through the electronic
document management system, unless a party to the proceeding is
exempt from electronically filing documents in accordance with §
1.5(F)(2)(c) of this Part.
b. All initial filings shall
be submitted by electronic transmission (e-mailed) to the opposing
party, with a carbon copy (CC) to the Board’s Administrator, upon
conclusion of the electronic submission to the Board. All filings
shall contain a certification of notice in accordance with § 1.6(B)
of this Part.
4. Subsequent Filings
a. All subsequent filings
shall be electronically filed via the electronic document management
system to the Board, unless a party to the proceeding is exempt from
electronically filing documents in accordance with § 1.5(F)(2)(c) of
this Part; and
b. All subsequent filings
shall be submitted by electronic transmission (e-mailed) to the
opposing party, with a carbon copy (CC) to the Board’s
Administrator, upon conclusion of the electronic submission to the
Board. All filings shall contain a certification of notice in
accordance with § 1.6(B) of this Part.
C. Electronic Service and
Distribution of Electronic Filings by the Board
1. All correspondence and
documentation generated by the Board shall be electronically
transmitted (e-mailed) to all parties, except for any “certified”
documentation required in accordance with § 1.7(B)(1) of this Part.
D. Format and Redaction of
Electronic Documents
1. All documents, except those
enumerated in § 1.5(F)(2) of this Part, must be converted to a PDF
format before they are filed in the electronic document management
system. Prior to filing any document, the registered user shall
ensure that any confidential information is omitted or redacted in
accordance with § 1.6(C)(1) of this Part, and that protected
information is omitted or redacted in accordance with § 1.6(C)(2) of
this Part.
E. Exhibits and Other
Attachments
1. Any attachments to a
filing, such as an exhibit, shall be uploaded and electronically
attached to the filing.
F. Mandatory Electronic Filing
and Exceptions
1. Electronic Filing -
Mandatory: Unless otherwise required or authorized by these rules,
all documentation submitted to the Board that are filed on or after
January 1, 2016, must be filed using the Board’s electronic
document management system.
2. Exceptions
a. Cards of Interest,
Decertification Cards of Interest, and Designation of Bargaining
Agent and Waiver of Right to Vote forms submitted in any proceeding
before the Board may not be filed electronically. All cards of
interest and said Designation of Bargaining Agent and Waiver of Right
to Vote forms must be submitted no later than 3:00 p.m. in accordance
with § 1.6(H)(4) of this Part, on the same day as the electronic
submission of the petition;
b. Any item that is not
capable of being filed in an electronic format will be filed in a
non-electronic format, such as, electioneering paraphernalia; and
c. Upon a showing of an
exceptional circumstance that it is not feasible for an individual to
file documents by electronic means, the Board may excuse the
individual from electronic filing in a particular proceeding.
3. What Constitutes Filing
a. The electronic transmission
of a document to the electronic document management system consistent
with the procedures specified in the Board’s Rules and Regulations,
together with the production and transmission of a confirmation of
electronic filing, constitutes filing of the document.
4. Electronic File
Confirmation
a. Electronic documents are
considered to be officially filed upon receipt of the e-filing
confirmation notice. Said filings shall have the same force and
effect as documents time stamped in a non-electronic manner. Upon
approval of said filing by the Board’s Administrator, the filer
shall receive confirmation of either acceptance or non-acceptance of
said document by the Board.
G. Date and Time of Filing
1. Date of Filing
a. An electronic filing may be
made any day of the week, including holidays and weekends, and any
time of the day the electronic document management system is
available.
2. Time of Filing
a. A document is timely filed
if it is filed by or before 3:00 p.m. on the date the filing is due
in accordance with § 1.6(H)(4) of this Part. Documentation received
after 3:00 p.m. shall be considered filed and documented on the next
regular business day.
H. Signatures
1. Registered User
a. An individual’s username,
password, and PIN accompanied by a non-electronic signature, signed
in blue ink, serves as the registered user’s signature on all
electronically filed documents.
2. Documents Requiring Oaths,
Affirmations, Verification or Certification of Service
a. Any document filed
requiring a signature under oath or affirmation, with verification or
certification of service, shall be signed non-electronically, in blue
ink, authorized with an assigned PIN upon submission, but shall be
filed electronically.
3. Format
a. Any filing requiring a
signature must be signed, with a non-electronic signature, in blue
ink (actual signature scanned). The following information about the
person shall be included under the person’s signature:
(1) Name and title;
(2) Name of firm, certified
employee organization, or governmental agency;
(3) Mailing address;
(4) Telephone, cellular
number, and facsimile number; and
(5) E-mail address.
4. Multiple Signatures
a. By filing a document
containing multiple signatures, the registered user confirms that the
content of the document is acceptable to all persons signing the
document and that all such persons consent to having his or her
signature appear on the document.
I. Rhode Island State Labor
Relations Board E-Filing User Agreement
1. In order to register for an
account with the Board’s electronic document management system, you
must accept the terms and conditions of the “User Agreement”.
Failure to accept these terms will not allow you to register with the
Board’s Electronic Document Management System.
J. Registration; Username and
Password
1. Registration
a. Registration Required:
Every individual filing a document in a proceeding must register as a
registered user of the electronic document management system;
b. How to Register: To
register, the individual must complete the registration process
located at www.rislrb.ri.gov ,
within the e-filing tab, to create a username and password for the
electronic document management system;
c. Registration Completion:
When the registration process is completed, the registered user will
be assigned a computer generated personal identification number
(PIN); said PIN confirmation will be sent through the electronic
filing registration notification;
d. Changing Passwords: Once
registered, the user may change his or her password. If the
registered user believes the security of an existing password has
been compromised, it shall be the responsibility of the registered
user to change the password immediately;
e. Changes in Registered
User’s Contact Information: If a registered user’s e-mail
address, mailing address, or telephone number(s) changes, the user
must promptly make the necessary changes to the registered user’s
information contained in the electronic document management system;
f. Changes in Employment
Organizations:
(1) A username and PIN may not
be transferred between employment organizations. Upon cessation of
employment, the user agrees to deactivate their electronic document
management system registration.
(2) Upon re-employment within
another organization, an individual must re-register with a new
username and password to receive a new PIN. (Each PIN is specific to
the user's work identity).
g. Duties of Registered User:
Each registered user shall ensure that the user’s e-mail account
information is correct and that the account is monitored regularly;
and
h. Account Deactivation:
Withdrawal from participation in the electronic document management
system cancels the registered user’s profile, but does not
authorize non-electronic filing of documents, and is not a withdrawal
from a proceeding.
2. Use of Username and
Password
a. A registered user is
responsible for all documentation filed with the user’s username
and password, unless proven by clear and convincing evidence that the
registered user did not make or authorize the filing.
3. Username and Password
Security
a. If a username or password
is lost, misappropriated, misused, or compromised, the registered
user of that username and password shall contact the Board. The
individual shall then deactivate the current registration and
re-register using a new username and password.
4. Denial of Access
a. The Board may refuse to
allow an individual to electronically file or download information in
the electronic document management system due to misuse, fraud, or
other good cause.
1.6 Required Contents of Pleadings
and Other Documents
A. Pleadings; Construction
1. All Pleadings shall be
liberally construed.
B. Certification of Service
1. All motions, pleadings, and
briefs submitted to the Board must contain a certification of notice
that a copy of said document(s) was sent to all other parties’
representatives of record; which shall specify the date of notice,
method(s) of transmission, and name and address of recipient(s) of
notice.
C. Confidential or Protected
Information
1. Confidential Information
a. When a party files any
document, which contains material or a reproduction, quotation, or
extensive paraphrase of confidential information as defined by §
1.2(A)(13) of this Part, it is the responsibility of the filer to
ensure that confidential information is omitted or redacted. The
Board will not review filings to determine whether appropriate
omissions or redactions have been made.
2. Protected Information
a. When a party files any
document, which contains protected information as defined by §
1.2(A)(41) of this Part, it is the responsibility of the filer to
ensure that the protected information is omitted or redacted from the
document before the document is filed; unless the protected
information is required by statute or rule to be included or is
material to the proceeding. The Board will not review filings to
determine whether appropriate omissions or redactions have been made.
D. Requirement to Affix Case
Law
1. Every brief submitted to
the Board, for its consideration, shall have appended to it, a copy
of every principal Federal case cited therein.
E. Format of Pleadings and
Other Papers
1. All motions, pleadings, and
briefs submitted to the Board, other than the original Unfair Labor
Practice Charge, Petition for Investigation of Controversies as to
Representation, Petition for Decertification of a Certified
Bargaining Representative, Petition for Unit Clarification and/or
Accretion/Exclusion, or Petition for Affiliation/Merger, shall be on
letter size paper (8.5 x 11 in size), and shall be double-spaced.
Footnotes, whenever possible, shall be located on the bottom of the
page, wherein the citation occurs. Documents not complying with this
requirement shall not be accepted by the Board; and shall be returned
with direction.
F. Petitions: Compliance;
General Requirements for All Petitions
1. All petitions filed with
the Board shall be typewritten and shall be submitted on legal size
paper (8.5 x 14 in size). The petitioner shall submit an original,
signed in blue ink, to the Board. Petition forms may be obtained on
the Board’s website at www.rislrb.ri.gov .
2. A petition in a proceeding
shall not be dismissed, with prejudice, for failure of the petitioner
to set forth in the petition all the information required. The
petition may, however, not be accepted, in accordance with §
1.5(F)(4) of this Part; and shall be returned to the petitioner for
substantial completion. The petition shall not be considered filed
until completed satisfactorily; and a transmission of a confirmation
of electronic filing has been received by the party(s).
G. Signatures
1. All documents filed with
the Board shall be signed and dated by the party, in blue ink, on
whose behalf the filing is made, or by the party’s authorized
representative. The signature constitutes a certification that the
individual signing the document has read the document, knows the
contents thereof, and to the best of his or her knowledge and belief
that the statements are true, that it is not interposed for delay,
and that if the document has been signed by a duly authorized
representative, he or she has the full power and authority to do so.
H. Timeframe for Filing of a
Charge; Petitions; Motions; Pleadings; Briefs; and Written
Documentation
1. The filing date of a charge
or petition shall be the date that the charge or petition is received
in the Board’s administrative office in accordance with §
1.5(G)(1) of this Part.
2. All said submitted
petitions must be an original petition, signed in blue ink, at the
time of filing.
3. All motions, pleadings,
briefs, and all other written documentation shall not be considered
timely filed unless received by the filing deadline in accordance
with § 1.5(G)(2) of this Part.
4. All the above-mentioned
documentation must be received by or before 3:00 p.m. in order to be
considered timely filed for that calendar day. Documentation received
after 3:00 p.m. shall be considered filed and documented on the next
regular business day.
5. Electronic documents are
considered to be officially filed upon receipt of the e-filing
confirmation notice. Said filings shall have the same force and
effect as documents time stamped in a non-electronic manner. Upon
approval of said filing by the Board’s Administrator or its Agent,
the filer shall receive confirmation of either acceptance or
non-acceptance of said document by the Board.
I. Submission of
Correspondence
1. All correspondence listed
below must be submitted to the Board on "formal letterhead"
with an original signature, signed in blue ink, in accordance with §
1.5 of this Part:
a. All requests for
postponement of informal and formal hearings, as set forth in §
1.8(L) of this Part;
b. All requests for abeyances
of Unfair Labor Practice Charges and Complaints, as set forth in §§
1.22(J) and 1.23(L) of this Part;
c. All submissions of written
statements, as set forth in §1.9(A) of this Part;
d. Parties’ response to
Investigative Reports as set forth in §§ 1.16(B)(2) and 1.17(B)(2);
and
e. Any and all other written
correspondence not stated above.
1.7 Miscellaneous Administrative
Procedures
A. Certification of Documents
by Administrator or an Authorized Agent Designated by the Board
1. The Board’s Administrator
or its Agent, is hereby authorized and empowered to certify copies of
all papers or documents, which are a part of any of the files or
records of the Board.
B. Processes and Papers of the
Board
1. Unfair Labor Practice
Complaint(s), Petition for Unit Clarification and/or
Accretion/Exclusion investigative report(s), subpoena(s), and
subpoena duces tecum, shall be served by certified mail - return
receipt requested, in the proper office or place of business of
persons to be served. The return by the individual so serving the
same, setting forth the manner of such service, shall be proof of the
same, and the return post office receipt therefore, when certified
and mailed as aforesaid, shall be proof of service of the same.
2. All other service by the
Board shall be made by electronic transmission (e-mail) only to each
party’s designated representative, who has filed an Entry of
Appearance.
1.8 Hearings: General Requirements
A. Requirements for Hearings
1. The Board may conduct
informal and formal hearings. An informal hearing shall be conducted
in accordance with the procedure set forth in § 1.9 of this Part.
2. A formal hearing, for the
purpose of taking testimony upon a complaint, or upon a complaint and
answer, or upon a petition for investigation and certification, shall
be conducted by the Board in accordance with §1.10 of this Part, if
the complaint or petition has not been dismissed after investigation
and/or informal hearing(s).
B. Pre-Hearing Requirement to
Meet and Confer - Exhibits
1. Each party of record
intending to submit more than three (3) exhibits during a formal
hearing process shall be required to meet and confer with the
opposing party’s representative for the purpose of exchanging and
marking exhibits.
2. Upon conclusion of the
party’s dialogue, the parties shall pre-mark and pre-identify all
exhibits accordingly, to wit: petitioner 1, respondent 1, joint,
objection, or no objection to an exhibit; and record all exhibits to
be entered into the record on the Formal Hearing Exhibit form.
a. The Formal Hearing Exhibit
form may be obtained on the Board’s website at www.rislrb.ri.gov.
3. The requesting party shall
then submit the Formal Hearing Exhibit form to the Board’s
Administrator, via the electronic document management system, no less
than two (2) business days prior to the commencement of the formal
hearing process.
4. All said copies of exhibits
as enumerated in accordance with § 1.10(F) of this Part, shall be
submitted at the commencement of the formal hearing process.
5. Parties who fail to comply
with the Board’s directives may be sanctioned in accordance with §
1.10(C) of this Part.
6. The filing of the Formal
Hearing Exhibit form, prior to the formal hearing, shall not
constitute acceptance into evidence by the Board or any admission by
the other party of relevance, accuracy or materiality. The opposing
party retains the right to object to any contested exhibit(s), at
which time the Chairperson will rule on the admissibility of all
contested exhibits.
C. Failure to Comply with
Orders of the Board; Hearings; Pre-Hearing Directives; Discovery
1. Any complaining or
petitioning party that fails, without good cause, to comply with any
order of the Board, its Administrator or Agent to participate in, or
appear at, any conference or hearing, pre-hearing directives, or who
fails to, or refuses to comply with discovery requests, may be
sanctioned by the Board, as set forth by § 1.10(C) of this Part.
D. Rules of Evidence
1. Irrelevant, immaterial, or
unduly repetitious evidence shall be excluded from the record.
2. The rules of evidence, as
applied in civil cases in the Superior Court of this State, shall be
followed; however, when it is necessary to ascertain facts not
reasonably susceptible of proof under those rules, evidence not
admitted under those rules may be submitted (except where precluded
by statute), if it is of a type commonly relied upon by reasonable,
prudent persons in the conduct of their affairs.
3. The rules of privilege,
recognized by law, shall be given effect by the Board.
4. Objections to evidential
offers may be made and shall be noted in the record.
5. Subject to these
requirements, when a hearing will be expedited and the interests of
the parties will not be prejudiced substantially, any part of the
evidence may be received in written form. Notice may be taken of
judicially cognizable facts. Rigid compliance with the Rules of Civil
Procedure shall not be required, and the Board shall have discretion
to apply the rules liberally in order to effectuate full and fair
hearings.
E. Powers and Duties of the
Board at Hearings
1. During the course of any
hearing, the Board shall have the full authority to control the
conduct and procedure of the hearings, and the records thereof, to
admit or exclude testimony or other evidence, and to rule upon all
motions and objections made during the course of the hearing. It
shall be the duty of the Board to see that a full inquiry is made
into all the facts in issue, and to obtain a full and complete record
of all facts necessary for a fair determination of the issues.
2. In any hearing, the Board
shall have the right to call and examine witnesses, to direct the
production of papers or documents, and to introduce into the record
said papers or documents. The Board, as set forth by § 1.10(C) of
this Part, may sanction any party who, without good cause fails or
refuses to comply with a Board directive.
F. Rights of Parties at
Hearings
1. The informal hearing
process is a fact-finding procedure; therefore, only the
representative of record for the parties shall present their case
during the informal hearing process.
2. There shall be no testimony
taken from witnesses during the informal hearing process; all
documentation presented during the informal hearing process shall not
be accepted as exhibits, nor entered into the record. Attendance is
limited to the parties of record during the informal hearing process.
3. However, during the formal
hearing process, all parties shall have the right to call, examine
and cross-examine witnesses, and to introduce into the record, papers
and documents, or other evidence, subject to the ruling of the Board.
Such formal hearings shall be open to the public.
G. Hearings; Stipulations
1. At a hearing, stipulations
may be introduced into evidence with respect to any issue, where all
parties have joined such stipulation.
H. Continuation of Hearings
1. At the discretion of the
Board, the Administrator or its Agent, hearings may be continued from
day to day, or adjourned to a later date, or to a different place, by
announcement thereof, at the hearing by the Board, its Administrator
or Agent, or by other appropriate notice designated by the Board, its
Administrator or Agent.
I. Contemptuous Conduct at
Hearings
1. Any person who engages in
contemptuous conduct before the Board, or its Administrator or Agent,
may, in the discretion of the Board, its Administrator or Agent, be
excluded from the hearing room or further participation in the
proceeding.
J. Waiver of Hearing; Entry
of Consent Order
1. Nothing in these general
Rules and Regulations shall prevent the entry of a Consent Order by
the parties’ representatives of record prior to the commencement of
the formal hearing process. Both parties shall agree to waive the
scheduled formal hearing when the making of the findings of fact and
conclusions of law are acknowledged.
2. The Consent Order shall be
submitted to the Board in lieu of the formal hearing process. The
hearing process shall be cancelled upon receipt of the Consent Order;
and the matter shall be set down for review and determination on the
next applicable monthly Board Meeting Agenda. When filing the Consent
Order with the Board, the parties shall submit an original, signed in
blue ink, in accordance with § 1.5 of this Part.
3. Said submission of the
Consent Order shall be submitted to the Board at least forty-eight
(48) hours prior to the scheduled formal hearing; in accordance with
§ 1.8(L)(2)(a)((9)) of this Part.
4. Upon determination of said
matter by the Board, the Administrator or its Agent shall notify the
parties in writing, of the results of the Board’s actions.
5. Notwithstanding the
foregoing, the Board shall retain jurisdiction of the matter and may
reject the Consent Order, if the same is determined by the Board to
be in violation of applicable law.
K. Application for Leave to
Reopen a Hearing on Grounds of Newly Discovered Evidence
1. No Motion for Leave to
Reopen a Hearing because of newly discovered evidence shall be
entertained unless it is shown that such additional evidence is
material, that the motion has been timely made, and that there were
reasonable grounds for the failure to adduce such evidence at the
hearing. Nothing contained in this section shall be deemed to limit
the right and power of the Board, in its discretion, and on its own
motion, to reopen a hearing and take further testimony.
L. Requests for Postponement
or Cancellation of Hearings
1. Informal Hearings
a. All requests for
postponements shall be made no later than forty-eight (48) hours
prior to the scheduled hearing, except in the case of an extreme
emergency or circumstance;
b. Each party shall be limited
to one (1) postponement per matter. Postponements shall only be
granted if there is a showing of sufficient cause. Should a party
find that it has exhausted its postponement requests, it will be the
obligation of the party to have an appropriate representative
available to proceed;
c. Only the Board’s
Administrator or its Agent may grant postponements. Parties to the
hearing shall not postpone hearings without permission from the
Board. The requesting party shall be required to contact the Board’s
Administrator or its Agent, by telephone, prior to submission of the
written request, for approval of the postponement;
d. The request must be in
writing and shall state, with specificity, the reason for the
postponement. Copies of the request must be served by electronic
transmission (e-mail) simultaneously to any opposing parties’
representative of record, with a carbon copy (CC) to the Board’s
Administrator; and that fact must be so noted on the request for
postponement;
e. If all parties fail to
appear at a duly scheduled informal hearing, without good cause and
notification to the Board’s offices, or if the parties together
agree to postpone the hearing without first receiving approval from
the Board or its Administrator or Agent, then the matter pending may
be administratively dismissed;
f. In the case of a Petition
for Unit Clarification and/or Accretion/Exclusion, if only the
petitioner has failed to appear at the informal hearing without
notice or good cause, the matter may be administratively dismissed
and shall not be re-filed for a one (1) year period; and
g. In the case of an Unfair
Labor Practice Charge, if only the charging party has failed to
comply with the designated informal hearing process without notice or
good cause, the matter may be administratively dismissed and shall
not be re-filed.
2. Formal Hearings
a. Unless otherwise ordered or
permitted by the Board, its Administrator or Agent, all formal
hearings shall be held at the time, date, and place contained in the
Notice of Hearing. Each party shall be limited to one (1)
postponement per matter. Postponements shall only be granted if there
is a showing of sufficient cause and the following requirements are
met:
(1) The request must be in
writing, and received in the offices of the Board no later than five
(5) business days after receipt of the notice of hearing;
(2) The request must set forth
the grounds for the request, in detail;
(3) The position(s) of all
other parties of record must be ascertained in advance and set forth
in the request;
(4) Copies of the request
shall be served by electronic transmission (e-mail) simultaneously
upon all other parties, with a carbon copy (CC) to the Board’s
Administrator; and that fact must be so noted on the request for
postponement;
(5) No request for
postponement will be considered unless all of the preceding four (4)
requirements have been met;
(6) No request for
postponement shall be granted during the five (5) business days
preceding the date for hearing, except in the case of an extreme
emergency or circumstance;
(7) Postponements of formal
hearings may result in at least a one (1) month delay;
(8) When requests for
postponements have been denied, it will be the obligation of the
party to have an appropriate representative available to proceed; and
(9) Withdrawal of a pending
case, resulting in the cancellation of a formal hearing must be
requested at least forty-eight (48) hours prior to the commencement
of the formal hearing. Parties requesting a cancellation of a formal
hearing without proper notification may be required to pay the
administrative costs associated therewith.
1.9 Informal Hearings
A. Notification of Hearings;
Written Statements
1. Upon the filing of an
Unfair Labor Practice Charge, the parties shall be notified in
writing, by the Board’s Administrator or its Agent, as to the
designated informal hearing process and the associated procedural
requirements, in accordance with § 1.22(F) of this Part.
2. Upon the filing of a
Petition for Investigation of Controversies as to Representation,
Petition for Decertification of a Certified Bargaining
Representative, or Petition for Unit Clarification and/or
Accretion/Exclusion, the Board’s Administrator or its Agent will
notify the parties in writing, of the time, date, and location of the
designated informal conference or hearing, which will be conducted by
the Board’s Administrator or its Agent.
B. Parties Required to Appear;
Failure to Appear; Failure to Submit Timely Statements; Sanctions
1. A charging party or
petitioner who fails to appear for an informal hearing, or who fails
to submit written statements, in accordance with the directives of
the Board, may have its petition or charge administratively
dismissed. It is the charging party or petitioner’s responsibility
to be in compliance with the Board’s directives.
2. In the case of a Petition
for Unit Clarification and/or Accretion/Exclusion, if only the
petitioner has failed to appear at the informal hearing, without
notice or good cause, the matter may be administratively dismissed
and shall not be re-filed for a one (1) year period.
3. In the case of an Unfair
Labor Practice Charge, if only the charging party has failed to
comply with the Board’s designated informal hearing processes, as
directed, without notice or good cause, the matter may be
administratively dismissed and shall not be re-filed. The respondent,
if planning to object to the requested relief, must comply with the
Board’s directives as noticed.
4. Upon a “late” filing
of a written statement by either party, the opposing party may file a
Motion of Objection to the Acceptance of the Written Statement by the
Board, within five (5) business days of the written statement’s due
date. The objection shall then be forwarded to the Board for review
and determination on how to proceed. The Administrator of the Board
shall notify the parties, in writing, of the results of the Board’s
action.
5. Any party who fails to
appear within fifteen (15) minutes of the scheduled hearing time may
be considered to have “failed to appear.”
6. Parties who fail to appear
or comply with the Board’s directives may be sanctioned in
accordance with § 1.10(C) of this Part.
C. Administrative Dismissal of
Unfair Labor Practice Charges After Designated Informal Hearing
Process
1. Pursuant to R.I. Gen. Laws
§ 28-7-9(d), after the designated informal hearing process has
concluded, and after consideration of the Agent’s confidential
report, the Board may administratively dismiss the charge without
issuing a complaint against the respondent. Upon determination of the
dismissal of the charge by the Board, the Board’s Administrator or
its Agent shall notify the petitioner, in writing, of the results of
the Board’s action.
D. Unfair Labor Practice
Charge - Administrative Dismissal; Request for Reconsideration
1. Upon receipt of
notification of an administrative dismissal of the charge, the
charging party shall have five (5) business days from the date of the
written dismissal to submit a written request for reconsideration,
with legal justification to substantiate said reconsideration.
2. Upon receipt of the
request, the matter may be placed on the next applicable monthly
Board Meeting Agenda for review and determination. The Administrator
or its Agent of the Board shall notify the petitioner, in writing, of
the results of the Board’s action.
1.10 Formal Hearings
A. Notification of Hearing
1. Upon the issuance of an
Unfair Labor Practice Complaint, the matter will be scheduled for
formal hearing. The Board’s Administrator or its Agent will notify
the parties of the time, date, and location of the formal hearing;
which is identified within the said complaint.
2. Parties seeking a
postponement, continuance, rescheduling, or cancellation of the
formal hearing date, must follow the procedures set forth in §
1.8(L)(2) of this Part.
3. Parties requesting a
postponement, continuance, rescheduling, or cancellation of the
formal hearing date, may be required to pay for the administrative
costs associated therewith.
B. Parties Required to Appear
1. Unless the case has been
settled (and the Board has been notified, in writing, of the
settlement at least two (2) business days prior to the scheduled
hearing date), the parties are required to appear at the time and
place, on the date set forth in the Notice of Hearing. Parties shall
not postpone or cancel any hearing scheduled by the Board, without
first receiving approval from the Board, its Administrator or its
Agent.
C. Failure to Appear or to
Comply with Board Directive(s); Sanctions
1. Parties who fail to appear
or to comply with a Board directive(s), without good cause, at any
hearing may:
a. Be defaulted;
b. Be assessed costs,
including stenographer’s expenses, associated with the
rescheduling; and
c. Be considered to have
forfeited any and all objections it may have had.
2. Any party, who fails to
appear within fifteen (15) minutes of the scheduled hearing time, may
be considered to have “failed to appear.”
D. Application for Subpoenas
1. Any party to the
proceeding, who is not represented by legal counsel, may apply to the
Board for the issuance of a subpoena or subpoena duces tecum,
requiring the attendance, during a hearing, of any person, party, or
witness, and directing the production, as of the date specified on
the subpoena duces tecum, of any books, records, or correspondence,
or other evidence relating to any matter under investigation or any
question before the Board.
2. Such application, to be
considered timely, shall be made no later than fifteen (15) business
days prior to the scheduled hearing. The application shall be in
writing, and it shall specify the name of the witness or documents or
things, the production of which is desired, with such particularity
as will enable such documents to be identified for purposes of
production, the return date desired, as well as the general nature of
the facts to be proved by the witness, or the documents, or things
sought to be produced. Such application shall be made and filed with
the Board, and need not be served on any other party.
3. The Board, in its
discretion, or its Administrator or Agent’s discretion, may grant
or deny such application, in whole or in part, for good cause shown.
The Board, or its Administrator or Agent, may make such subpoena
returnable forthwith, or at any other time, within its discretion.
The Board’s subpoena shall be issued and served by the Board’s
Administrator or its Agent, by certified mail, return receipt
requested. When served by certified mail, by the Board’s
Administrator or its Agent, the return receipt shall be filed in the
record of the proceedings and shall be conclusive proof of service.
4. The party served with a
Board issued subpoena or subpoena duces tecum, shall have a right to
file a Motion to Quash the subpoena, in writing, with the Board’s
office at least five (5) business days prior to the formal hearing
date. The party requesting the Board to issue the subpoena or
subpoena duces tecum shall have a right to file a written Objection
to the Motion to Quash at any time prior to the commencement of the
formal hearing. The parties shall have the right to argue orally
before the Board relative to the Motion to Quash. The Board shall
issue a written decision on the Motion to Quash prior to proceeding
with any further formal hearings on the matter.
5. Parties represented by
legal counsel shall have their legal counsel issue a subpoena or
subpoena duces tecum on their behalf, and shall not have the right to
request the Board to issue a subpoena. Upon service of a subpoena or
subpoena duces tecum by a parties’ legal counsel, it is the
obligation of the parties’ legal counsel to give notice to the
opposing party of such action.
E. Issuance of Subpoenas by
Board for Production of Documents
1. In its discretion, the
Board may issue subpoenas, at any time, requiring persons, parties,
or witnesses to attend or be examined or give testimony, and to
produce any books, records, correspondence, documents or other
evidence that relate to any matter under investigation, or any
question before the Board.
F. Introduction of Exhibits at
Formal Hearing
1. Any party of record
intending to submit exhibits during a formal hearing process, must
provide the Board with nine (9) copies of each exhibit introduced, as
well as provide one (1) copy for each opposing party or parties
participating in the formal hearing.
2. Any party of record
intending to submit exhibits during a formal hearing process, in
excess of three (3) exhibits, shall follow the procedures as set
forth in § 1.8(B) of this Part.
G. Oral Arguments or
Briefs
1. At the close of the formal
hearing process, the Board shall, in its discretion, permit the
parties to either argue orally or to submit briefs to the Board.
2. Any request for oral
argument before the Board shall be made at the close of the formal
hearing. The granting or denial of permission to argue orally before
the Board shall be within the discretion of the Board.
3. Upon resolve by the Board
for the parties to file briefs in the matter, the timeframe for
filing such briefs shall be determined by the Board at the conclusion
of the formal hearing.
4. Upon receipt of the
transcript for the concluded matter by the Administrator of the
Board, the parties shall be notified, in writing, of the submission
date of the briefs to the Board.
H. Rebuttal Briefs
1. Rebuttal briefs may be
requested by either party at the time of the closing of the formal
hearing process, with a stated timeframe for submission determined by
the Board; or made by motion of either party, in writing, after the
submission of the briefs, showing reasonable cause, within five (5)
business days from the due date of the briefs. The motion shall then
be forwarded to the Board for review and determination. The Board’s
Administrator shall notify the parties, in writing, of the results of
the Board’s action.
I. Administrative Requirements
for Written Briefs
1. All briefs shall be
typewritten and submitted on letter size paper (8.5 x 11 in size).
The font size shall be no smaller than 12, and the brief shall be
double-spaced, except for footnotes, which may be reduced to font
size 10 and may be single-spaced. Footnotes shall appear at the
bottom of the page noted upon.
2. Any brief containing a
principal citation to any non-Rhode Island case shall be accompanied
by an appendix, which shall contain copies of the entire case for all
principal non-Rhode Island cases cited therein. Said brief shall be
signed by the author in blue ink. Each brief shall also contain a
certification of notice that a copy was sent to all other parties of
record; with a carbon copy (CC) to the Board’s Administrator. The
certification of notice shall contain the names and addresses of the
other parties, and the date that the copy was sent.
3. Briefs shall be filed by
the date set by the Board upon the conclusion of the formal hearing.
The Board’s Administrator or its Agent shall have the discretion,
upon good cause shown, to grant extensions of time for filing briefs.
All requests for filing extensions must be made, in writing, and
should be by agreement of the parties, no later than five (5)
business days prior to the filing due date.
4. All briefs must be received
by the Board’s Administrator or its Agent by 3:00 p.m., on the
filing due date, in order to be considered timely filed by this
Board, as set forth in § 1.5(G)(2) of this Part.
5. Upon a “late” filing of
a brief by either party, the opposing party may file a Motion of
Objection to the Acceptance of the Brief by the Board, within five
(5) business days of the brief’s due date. The objection shall then
be forwarded to the Board for review and determination. The Board’s
Administrator shall notify the parties, in writing, of the results of
the Board’s action.
J. Proposed Findings of Fact;
Conclusions of Law; Proposed Decision and Order; Exceptions, etc.
1. The Board shall, at any
time after the close of a formal hearing, issue its findings of fact,
conclusions of law, and decision and order. Such findings of fact,
conclusions of law, and decision and order shall contain, but need
not be limited to:
a. A statement of the case and
preliminary procedure before the Board;
b. Findings of fact;
c. Conclusions of law; and
d. Decision and order.
2. The Board may include, if
it be found that the respondent has engaged or is engaging in the
alleged unfair labor practice, a recommendation as to what action
shall be taken by the respondent to effectuate the policies of the
Act.
K. Notice of Right to Appeal
Agency Decision
1. Pursuant to R.I. Gen. Laws
§ 42-35-12, included within the decision and order of the Rhode
Island State Labor Relations Board, shall be a separate notice
advising the parties of the availability of judicial review, and the
appeal period pursuant to the statutory authority set forth in R.I.
Gen. Laws § 28-7-29. If the agency fails to provide such notice, the
time for taking an appeal shall be extended for an additional thirty
(30) days beyond the time otherwise authorized by law.
1.11 Procedures at Informal/Formal
Hearings
A. Order of Presentation of
Case
1. In each case, the
petitioning party shall present its case first and shall have the
burden of establishing its petition, by a fair preponderance of the
credible evidence.
B. Supportive Documentation
Had at Designated Informal Hearing Process
1. The Board's Administrator
or its Agent shall accept relevant documents, as determined by the
Administrator or its Agent, in conjunction with the designated
informal hearing process, but such documents shall not be considered
part of the public record in any case, unless or until such documents
are submitted as exhibits in a formal hearing proceeding.
C. Variance Between Pleading
and Proof
1. Where there is a variance
between an allegation in a petition for certification, or a pleading
in an unfair labor practice proceeding, and subsequent proof at that
hearing, and where said variance is not material, the Board may admit
such proof, and the facts may be found accordingly. Any party, or the
Board, may move to conform the pleadings to the proof.
D. Motions; Compliance;
General Requirements for All Motions
1. All motions made, other
than those made during the pendency of a formal hearing(s), shall be
filed, in writing, with the Board, together with appropriate
supporting affidavits, and shall briefly state the order or relief
sought, and the grounds for such motion.
2. The moving party shall
serve copies of all such papers on all parties; and shall, within
three (3) business days thereafter, submit an original, signed in
blue ink, to the Board’s administrative office with proof of due
service of all papers with and for the use of the Board.
3. Answering affidavits, if
any, must be served on all parties; an original, signed in blue ink,
with proof of due service, shall be filed with the Board within three
(3) business days after service of the moving party(s), unless
otherwise directed by the Board.
4. The Board, upon filing of
the motions, shall decide all motions, unless the Board, in its
discretion, shall decide to hear oral argument, or take testimony, in
which event the Board shall notify the parties of such fact, and of
the time and place for such argument or such testimony.
E. Motions Made At or During
Pendency of Formal Hearings
1. All motions made at or
during the pendency of a formal hearing shall be stated orally and
shall be included in the stenographic report of the hearing. Upon
conclusion of the stated motions by the parties, the Board may either
rule on the motions directly, or the Board may instruct the parties
to submit said motions in writing to the Board within a specified
timeframe. The motions shall briefly state the order or relief
sought, and the grounds for such motion. Motions submitted in writing
shall be set down for review and determination as directed by the
Board. All motions, rulings, and decision and orders shall become
part of the record in the proceeding.
a. Exception: Motions to
intervene shall be made in the manner set forth in § 1.12(C) of this
Part.
F. Objections at Formal
Hearings
1. Objections made by either
party with respect to the conduct of the formal hearing process,
including objections to the introduction of evidence, shall be stated
orally and shall be included in the stenographic report of the
hearing.
G. Waiver of Objections
1. Any objection not duly
urged before the Board shall be deemed waived, unless the failure or
neglect to urge such objections shall be excused by the Board because
of extraordinary circumstances.
H. Consolidation or
Severance
1. The Board, in its
discretion, may consolidate two (2) or more proceedings under the Act
and the Board, in its discretion, may also sever such proceedings.
1.12 Parties to Proceedings
A. Non-Joinder and Misjoinder
of Parties
1. No proceeding under this
Act will be dismissed by virtue of non-joinder or misjoinder of
parties. Upon motion of any party, or upon motion by the Board, or
its Administrator or Agent, new parties may be added or substituted,
and the parties’ misjoinder may be dropped, at any stage of the
proceedings, upon such terms as may be deemed just and proper. Such
motions must be made at, or prior to, the first hearing in any such
proceeding, unless good and sufficient cause is shown why it could
not have been made at such time. Failure so to move shall be deemed a
waiver of all objections to a non-joinder or misjoinder.
B. Parties; Relief
1. All persons alleged to have
engaged in any unfair labor practices may be joined as respondents
whether jointly, severally, or in the alternative; a decision may be
rendered against such one or more of the respondents upon all the
evidence, without regard to the parties by or against whom such
evidence has been introduced.
C. Intervention; Procedure;
Contents; Filings and Service
1. Any person, employer, or
labor organization desiring to intervene in any proceeding, shall
file with the Board a sworn petition, in writing, setting forth the
facts upon which such person, employer, or labor organization bases
its claim of interest in the proceeding. Such petition must be served
on all the parties and, in a proceeding under the Act, with the
Board’s Administrator or Agent.
2. Petitions must be filed
with the Board, with proof of service, at least two (2) business days
prior to the first hearing. Failure to serve or file such petition,
as above provided, shall be deemed sufficient cause for the denial
thereof, unless it shall be determined that good and sufficient
reason exists why it was not served, or filed, as herein provided.
The Board shall rule upon all such petitions and may permit
intervention to such an extent, and upon such terms or conditions, as
it shall determine may effectuate the policies of the Act.
D. Witnesses; Examination;
Record; Depositions
1. Witnesses at all hearings
shall be examined orally, under oath or affirmation, and a record of
the proceedings shall be made and kept by the Board. Where a witness
resides within another State, or through illness or other causes, is
unable to testify before the Board, his or her testimony or
deposition may be taken within or without the State in such manner,
and in such form, as may be directed by the Board. All applications
for the taking of such testimony or depositions must be made, at all
times, by motion to the Board, in accordance with the motion practice
herein, set forth.
E. Subpoenas: Witnesses and
Failure to Obey or Testify
1. If a person or witness
refuses or fails, without reasonable excuse, to obey a subpoena
requiring him or her to attend a hearing and be examined, or to
attend and bring with him or her books, records, correspondence,
papers or other matter, or refuses or fails to testify or answer any
question, which has been ruled pertinent and proper by the Board, in
its discretion, the Board may strike from the record the testimony
given by such person or witness, or so much, thereof, as the Board
shall decide is related to the question, which the person or witness
has refused to answer, or to the matter called for in the subpoena.
The Board, in its discretion, may preclude the reintroduction of any
such testimony so stricken.
2. If a party fails or
refuses, without reasonable excuse, to obey a subpoena requiring the
production of books, records, correspondence, documents, papers or
other matter, the Board may, in its discretion, preclude any such
party from introducing any proof concerning such books, records,
correspondence, documents, papers, or other matter in evidence.
3. Where a party is a
corporation, this section shall apply to failures and refusals of its
officers or directors; or where the party is a labor organization,
this section shall apply to failures and refusals of its business
agents and officers.
1.13 Petition for Investigation
of Controversies as to Representation:
Blanket
Requirements
A. Prerequisites
1. Pursuant to R.I. Gen. Laws
§ 28-7-9(b)(1), the Board shall require a labor organization to
submit cards of interest signed by at least thirty percent (30%) of
the employees in the appropriate bargaining unit indicating a desire
to be represented by the designated labor organization. Cards of
interest signed by at least twenty percent (20%) of the employees in
the appropriate unit are required to intervene.
2. Cards of interest submitted
in any proceeding before the Board may not be filed electronically.
All cards of interest must be submitted no later than 3:00 p.m. in
accordance with § 1.6(H)(4) of this Part, on the same day as the
electronic submission of the petition. The cards of interest must be
in alphabetical order, by last name. Only cards of interest with
original signatures shall be accepted.
3. The Board shall certify the
authenticity of all cards of interest submitted. A Petition for
Investigation of Controversies as to Representation may be dismissed,
without prejudice, if the petition is filed by a labor organization
without a sufficient showing of interest.
4. In order to proceed with a
Petition for Investigation of Controversies as to Representation, the
incumbent(s) must be employed in the position, for a period of thirty
(30) days, prior to the filing of the petition.
5. In order to file a Petition
for Investigation of Controversies as to Representation, the number
of employees in the unit sought must be more than one (1) employee.
B. Eligibility to Vote
1. All employees, agreed to by
the parties at the informal conference, who are determined to be
eligible to participate in the election process up to the end of the
determined eligibility period, shall be eligible to vote. Disputes
regarding the accuracy of the voting list shall be raised at the
informal conference. The Board shall resolve any disputes regarding
the accuracy of the updated list up to and including five (5)
business days before the scheduled election.
C. Petition: Withdrawal or
Amendment
1. At any time before the
issuance of a Notice of Hearing on a Petition for Investigation of
Controversies as to Representation, the Board may permit the
amendment of the petition, or its withdrawal, in whole or in part. At
any time after the issuance of such Notice of Hearing, the Board,
upon motion, may permit withdrawal of the petition, in whole or in
part, and the Board may permit amendment thereof. Withdrawal of the
petition, in whole or in part, shall not be permitted once the
Board’s Notice of Election has been posted.
2. In the event of a
withdrawal of a petition, in whole or in part, by a labor
organization, the cards of interest submitted pursuant to R.I. Gen.
Laws § 28-7-9(b)(1) and § 1.13(A) of this Part, shall be returned
only to the labor organization that submitted the original petition.
If the petition is withdrawn, in part, the labor organization shall
request, in writing, the specific cards of interest it seeks to have
returned.
D. Voluntary Revocation of
Certification by Union
1. An employee organization
currently certified to represent a bargaining unit may request the
Board to revoke its certification by filing a written request,
accompanied by a statement that the employee organization disclaims
all interest in continued representation of the bargaining unit. (A
copy of the Certification of Representatives and the Unit
Clarification Disposition must also be attached) The employee
organization shall be required to certify a copy of said request to
each party of the proceeding.
2. After review and
determination of the request for voluntary revocation by the Board,
the Board’s Administrator or its Agent, shall notify the parties in
writing of the results of the Board’s action. Upon granting the
voluntary revocation by the Board, the Certification of
Representatives and Unit Clarification Disposition shall be negated
as of the date of determination by the Board.
E. Abeyance by Preemption of
Unit Clarification and/or Accretion Petition
1. If a Unit Clarification
and/or Accretion Petition is filed prior to a Petition for
Investigation of Controversies as to Representation relative to the
same positions, then the Petition for Investigation of Controversies
as to Representation shall be held in abeyance, pending the outcome
of the Unit Clarification and/or Accretion Petition.
F. Subsequent or Repetitive
Requests by the Same Petitioner to File a Petition for Investigation
of Controversies as to Representation Upon the Failure of an Election
Process
1. Upon conclusion of an
election process where the election has failed, the petitioning party
may not re-file a Petition for Investigation of Controversies as to
Representation for the same proposed bargaining unit for a twelve
(12) month period starting from the date of the failed election.
G. Recognition Requirements
of Newly Created Independent Labor Organization/Association
1. When a newly created
independent labor organization/association seeks to file a Petition
for Investigation of Controversies as to Representation with the
Board, it shall, in conjunction with the filing of the petition, in
accordance §§ 1.13(A) and 1.14(A) of this Part, submit the
following required documentation as confirmation of the creation of
the said independent labor organization/association:
a. A certified copy of the
notice of meeting reflecting the date, time, and place, as well as
the subject matter, to discuss and vote on the creation of the
independent labor organization/association;
b. A copy of the certified
minutes reflecting:
(1) Signing of “cards of
interest” to indicate intent to be represented;
(2) The discussion of the
formation of the bargaining unit;
(3) The motion to hold an
election to create the independent labor organization/association;
(4) The election results (The
majority of votes must be fifty-one percent (51%) of the total unit,
not the total votes);
(5) The election of the union
officers, with titles and names; and
(6) The request for
recognition letter to the employer.
1.14 Petition for Investigation of
Controversies as to Representation:
Procedural
A. Petition Contents
1. A Petition for
Investigation of Controversies as to Representation may be filed by
an employee, or his or her representative, or by an employer.
Petition forms may be obtained on the Board’s website at
www.rislrb.ri.gov. The petition shall include:
a. An indication of whether
the petition is being filed by or on behalf of employees, or by an
employer;
b. The name, address, and
labor relations representative (if known) of the employer;
c. A list of the titles of
positions in the unit in question, with attached job descriptions (if
available);
d. The number of employees in
the unit sought or unit involved in the controversy. If the employees
are currently represented by a labor organization, the petitioner
must verify that the petition is filed within the appropriate time
frame as outlined in R.I. Gen. Laws § 28-7-9(b)(2), as well as
providing the name, address, and Board's certification number for the
incumbent labor organization; and
e. A list of any other
employee organizations known to have an interest in the employees
petitioned for.
2. Cards of interest shall be
submitted along with the petition pursuant to R.I. Gen. Laws §
28-7-9(b)(1); the cards of interest must be in alphabetical order, by
last name. Only cards of interest with original signatures shall be
accepted.
3. Cards of interest submitted
in any proceeding before the Board may not be filed electronically.
All cards of interest must be submitted no later than 3:00 p.m. in
accordance with § 1.6(H)(4) of this Part, on the same day as the
electronic submission of the petition.
B. Certification of
Authenticity of Cards of Interest
1. Upon receipt of a Petition
for Investigation of Controversies as to Representation, the Board
shall certify the authenticity of all cards of interest submitted as
outlined in R.I. Gen. Laws § 28-7-9(b)(1). Only cards of interest
with original signatures shall be accepted. A copy of the petition
and any attachments will be provided to the employer prior to the
scheduling of the card confirmation. The process of certifying the
authenticity of the cards of interest is that of a confidential
nature and the disclosure of the names of the interested parties will
not be revealed.
2. All cards of interest
signed and submitted with the Petition for Investigation of
Controversies as to Representation must be signed within a one (1)
year period prior to the filing of the petition.
C. Determination of
Representatives; No Contest; Process
1. Subject to the approval of
the Board, the parties to a representation proceeding may waive an
informal hearing, and agree on a method by which the Board shall
determine the question of representation, to wit: Agreement for
Consent Election or Agreement for Consent Election By Comparison of
Signatures.
a. Agreement for Consent
Election
(1) Where a Petition for
Investigation of Controversies as to Representation has been filed,
the employer, employee organization, or person(s) representing a
substantial number of employees involved, and any intervener(s),
which have submitted the required showing of interest may, subject to
the approval of the Board, enter into a stipulation for the waiving
of the informal hearing and commence the consent election process.
Such stipulation shall be in the form of an Agreement for Consent
Election, which must be executed by the appropriate representatives
of the employer and the employee organization(s).
(2) No Agreement for Consent
Election shall be executed for the filing of a Petition for
Investigation of Controversies as to Representation, if the parties
of interest cannot agree on the inclusion of said positions
constituting in number more than ten percent (10%) of the proposed
bargaining unit. If more than ten percent (10%) of the positions
shall be contested, an informal hearing shall commence.
(3) The matter shall then be
scheduled before the Board, as soon as practicable, for determination
on how to proceed with the contested position(s). If the Board
establishes that further investigation of the contested position(s)
in question is to proceed, the matter shall be expedited. The Board,
subsequent to the formal hearing(s), shall resolve the determination
of eligibility of the position(s) in dispute.
b. Agreement for Consent
Election by Comparison of Signatures
(1) Where a Petition for
Investigation of Controversies as to Representation has been filed
and it is not the employer’s intention to challenge the
representation of the proposed bargaining unit, the parties shall
enter into an Agreement for Consent Election by Comparison of
Signatures, which shall be conducted by the Board, through its
Administrator or Agent.
(2) The Designation of
Bargaining Agent and Waiver of Right to Vote forms, signed by at
least fifty-one percent (51%) of the employees in the proposed
bargaining unit, submitted in any proceeding before the Board, may
not be filed electronically.
(3) All said Designation of
Bargaining Agent and Waiver of Right to Vote forms must be submitted
no later than 3:00 p.m. in accordance with § 1.6(H)(4) of this Part,
on the same day as the electronic submission of the petition.
(4) All said Designation of
Bargaining Agent and Waiver of Right to Vote forms must be in
alphabetical order, by last name. Only said forms with original
signatures shall be accepted.
(5) Designation of Bargaining
Agent and Waiver of Right to Vote forms may be obtained on the
Board’s website at www.rislrb.ri.gov .
(6) When proceeding under an
Agreement for Consent Election by Comparison of Signatures, the
parties are deemed to have waived their statutory right to an
informal hearing and other consent election processes.
(7) Upon the parties’ joint
submission of an Agreement for Consent Election by Comparison of
Signatures, the Board shall certify to the parties, five (5) business
days thereafter, a Certification of Representatives for the
designated bargaining unit. The Certification of Representatives
issued after completion of the Consent Election by Comparison of
Signatures process, shall not be subject to decertification for a one
(1) year period immediately following the Board’s certification.
D. Contested Elections;
Investigation; Ascertainment of Desires of Employees; Hearing; Notice
1. Where a Petition for
Investigation of Controversies as to Representation has been filed
and the employer, employee organization, or person(s) representing a
substantial number of employees involved, or any intervener(s), which
have submitted the required showing of interest, challenges more than
ten percent (10%) of the positions sought, an informal hearing shall
commence. The matter shall then be scheduled before the Board, as
soon as practicable, for determination on how to proceed with the
contested position(s).
2. In the course of its
investigation of a question or controversy concerning representation,
the Board may instruct its Agent to conduct an investigation of the
challenged position(s), proceed to formal hearing, upon due notice,
or may direct an election, or use other suitable methods to ascertain
the wishes of employees, either in conjunction with a proceeding
instituted under the Act, or otherwise.
3. Upon completion of the
investigation process, the Agent shall provide a written
investigative report to the parties.
a. Upon receipt of the Agent’s
report, each party shall have a period of thirty (30) days from the
date of mailing to file any written responses or statement it deems
appropriate, under the circumstances.
b. The Board’s Administrator
shall have the discretion, upon good cause shown, to grant one (1)
extension of the date for filing a response. All requests for filing
extensions must be made no later than five (5) business days prior to
the filing date, in writing, and should be by agreement of the
parties.
c. Any party filing a response
to the Agent’s report must submit an original, signed in blue ink,
to the Board’s office, and must submit a copy to the opposing
party(s), with a carbon copy (CC) to the Board’s Administrator, and
must certify the same therein.
d. At the end of this thirty
(30) day response period, the record of proceedings shall be closed,
and the case shall be referred to the Board for its consideration.
The Agent’s report and the responses of the parties shall be
considered as, and included within, the public record on the matter.
4. If upon review of the
submission of the investigative report, as well as the responses to
the report from either or both parties, the Board determines that
there were no objections stated by either or both parties, the
Board’s Agent may proceed with an administrative Direction of
Election; an election by secret ballot, under the supervision of the
Board or its Agent, at a date, time, and place to be determined by
the Board’s Administrator or its Agent. An informal conference
shall commence to determine all aspects of said election process.
5. However, if upon review of
the investigative report, there remains a challenge to the election,
the Board may order additional investigation, direct an election,
proceed to formal hearing or grant or deny the requested action.
6. When a formal hearing has
been directed, the Board, its Administrator or Agent, shall prepare,
and cause to be served upon the parties, a notice of hearing before
the Board, at a time and place fixed therein. A copy of the petition
shall be served with the notice of hearing.
E. Elections: Terms and
Conditions
1. If the Board determines, as
a part of its investigation of a question or controversy concerning
representation, that an election by secret ballot shall be held, it
shall provide that such election be conducted by an Agent of the
Board at such time and place, and upon terms or conditions, as the
Board may specify.
2. Every effort shall be made
to schedule the election to reasonably accommodate all work shifts.
All individuals eligible to vote must be present to vote; there shall
be no submission of an absentee ballot for individuals unable to be
present for the election.
F. Observer Notification; Who
may observe; Role of Observers
1. Each party to the
election process may elect to be represented during the conduct of
the election. Upon determination by the parties to have an
observer(s) present, the parties must submit written notification of
the name(s) of the observer(s), to the Board’s office no later than
five (5) business days prior to the date of the election. Copies must
be sent to all other parties, with a carbon copy (CC) to the Board’s
Administrator, and the notice shall contain a certification of said
notification. Failure to provide the appropriate written
notification, as outlined above, may result in a party being denied
the opportunity to have an observer(s) present at the election.
2. Observers shall be
employees of the employer. An employer’s observer shall not be a
supervisor or manager of the employees. A union official may serve as
an observer if he or she is also an employee of the employer.
3. The observer’s role is
to represent their parties during the election process by carrying
out the fundamental functions of challenging voters and monitoring
the election process. The observer shall also assist the Board’s
Agent in the conduct of the election.
G. Prohibited Election Conduct
1. No electioneering
(campaigning) will be permitted on the day of the election in the
building or other facility where the balloting is taking place, or
within two hundred (200) feet of said building or other facility. In
the event that any party shall engage in prohibited conduct, as
ascertained by the Board or its staff, the Board shall reschedule
said election; and the party, which has engaged in the prohibited
conduct, shall be responsible for all costs associated with the
rescheduling.
2. Failure by the employer to
allow the posting of the Notice of Election by the Board’s Agent at
least five (5) business days prior to the election pursuant to R.I.
Gen. Laws § 28-7-40.
3. A promise of or an award
by the employer upon any employee, of any benefit not required by
contract or law which would tend to influence the outcome of an
election.
4. Unlawful polling.
5. Any other conduct that
would tend to interfere with, restrain, or coerce employees from
exercising their rights to participate in elections, pursuant to RI
Gen. Laws § 28-7-46.
H. Challenged Ballots
1. During an election, the
Board’s Agent, or an observer, has the right to challenge the
eligibility of any person to vote in the election.
2. A Board’s Agent is
required to challenge votes where the voter’s name does not appear
on the eligibility list, or when the Agent has reason to believe that
the voter is ineligible to vote, even if the observer(s) do not
challenge the same.
3. The reason for each
challenge must be stated before the actual casting of the ballots
and, wherever practicable, should be stated before the voter(s)
receive(s) a ballot.
4. During an election,
whether ordered by the Board or held by the consent of the parties,
if the right of an employee to vote is challenged, the employee shall
be permitted to vote, but his or her ballot shall be sealed, by him
or her, in a separate envelope provided for such purpose, and the
employee shall deliver the envelope to the Agent, or person duly
designated by the Board to conduct the election. The Agent shall then
deliver the challenged ballot to the Board for determination;
however, if the challenged ballots are insufficient in number to
affect the result of the election, no determination with respect to
them shall be made.
I. Determination of the Scope
of the Bargaining Unit
1. In a contested case, the
Board’s task is to determine “an” appropriate unit, not the
“most” appropriate unit.
2. The petitioning party has
the burden of defining an appropriate unit.
3. The burden to show that the
unit is inappropriate falls to the objecting party.
4. Bargaining units will be
decided on the basis of whether or not the particular employees share
a “community of interest”, as well as determining a unit that has
a direct relevancy to the circumstances in which collective
bargaining is to take place. In applying the “community of
interest” standard, the Board may consider a number of criteria
including, but not limited to: those factors set forth in the
definition of community of interest in § 1.2(A)(10) of this Part.
5. The Board has significant
discretion in determining the scope of a bargaining unit and can
decide, in each instance, what weight shall be applied to the various
criteria. There is no set formula for determining the proper scope of
a bargaining unit.
J. Board Determination of
Exclusion of Ineligible Employees
1. The Board shall, whenever
requested or required to do so, in each instance, determine who are
managerial, supervisory, administrative, confidential, casual, and
seasonal employees, as these terms are defined in § 1.2 of this
Part.
K. Tie Vote; No Union
Representation Elections
1. Where the ballot provides
for a choice among one (1) employee organization and a “no union”
representation, and the election process results in a tie vote or the
“no union” representation receives a majority of the votes, a
dismissal order shall be issued indicating that the employee
organization did not receive a majority of the votes cast; thus,
resulting in a dismissal of the election petition.
L. Re-Run and Run-Off
Elections
1. The Board may declare an
election invalid and may order another election providing for a
selection from the choices afforded in the previous ballot, or may
order a run-off election, in the following situations:
a. The ballot provided for a
choice among two (2) or more employee organizations and “no
representation”; and the votes cast are equally divided among the
several choices;
b. The number of ballots cast
for one (1) choice in an election is equal to the number cast for
another choice, but less than the number cast for the third choice
(which did not receive a majority of valid votes cast);
c. The ballot provided for a
choice among two (2) or more employee organizations and "no
representation"; and no one (1) choice receives a majority of
the votes cast, a run-off election will be held among the top two (2)
vote-getters, pursuant to R.I. Gen. Laws § 28-7-18; and
d. A run-off ballot provided
for a choice between two (2) employee organizations, and the votes
are equally divided.
2. If the Board concludes that
the results of the prior election are invalid due to objectionable
conduct of the election, or objectionable conduct affecting the
results of the election, the Board may exercise this option, sua
sponte .
M. Procedure Following
Elections; Objection to Election Process and/or Report Thereon
1. Upon the conclusion of any
election, the Board or its Agent, duly designated by the Board to
conduct the election, shall prepare a report as to the result of the
election; and in cases where the right of an employee to vote has
been challenged, and the challenged ballots are sufficient in number
to affect the result of the election, the report shall contain a
plain statement of the grounds for the challenge. The Board shall
cause this report to be served upon the parties.
2. Within five (5) business
days thereafter, any party may serve upon all other parties, and file
with the Board (with proof of service) an original, signed in blue
ink, of the objection(s) to the election or to the report thereon.
The objection(s) shall contain a concise statement of the facts
constituting the grounds of the objection(s). The Board may direct
oral argument to be heard before it, or, with or without a hearing,
make a determination with respect to the objection(s) before it.
N. Certification of
Representatives; Life of; Exceptions
1. The Board, upon the
completion of the election process, shall certify to the parties,
five (5) business days thereafter, either a Certification of
Representatives for the designated bargaining unit or a Dismissal
Order, based upon the outcome of the election process.
2. When a representative has
been certified by the Board as having been designated or selected,
such certification shall remain in effect for one (1) year from the
date thereof, and thereafter, or until such time the Board is made
aware that the certified representative does not represent a majority
of the employees within an appropriate unit.
3. In any case where unusual
or extraordinary circumstances require such action, or where probable
cause is shown that such action may be necessary to prevent the
occurrence or continuation of an unfair labor practice, the Board, in
its discretion, may shorten or extend the life of the original
certification. If the Board finds that, during the life of a
certification, the employer has refused to bargain collectively with
the certified representative, the time of the continuance of such
refusal to bargain shall not be a part of the time limited in
computing the life of the certification.
O. Challenged Position(s)
During the Election Process; Procedure after Election Process
1. Upon receipt of the
Certification of Representatives, either party shall have a period of
thirty (30) days from the date of electronic transmission (e-mail) of
the Certification of Representatives, to file a written letter of
request for formal hearing of any or all challenged position(s) in
question. Said request shall be served upon all other parties and
filed with the Board (with proof of service). The letter of request
shall state the correct title(s) of the position(s) for which said
formal hearing is being requested.
P. Blocking Charge Bar to
Elections - General Rule
1. While there is an Unfair
Labor Practice Charge pending before the Board, or before the Court,
the Board generally will not entertain a Petition for Investigation
of Controversies as to Representation by any labor organization, or
any individual, until the Unfair Labor Practice Charge has been
finally resolved. However, where an Unfair Labor Practice Charge is
filed too late to permit a proper investigation before a scheduled
election, the Board or its Administrator may:
a. Postpone the election;
b. Conduct the election and
impound the ballots; or
c. Conduct the election, and
then proceed to investigate.
Q. Exceptions to the Blocking
Charge Bar to Elections
1. The Board will normally
proceed with the election, if the party who filed the charge so
requests. However, the Board may refuse to conduct the election if,
in the Board’s view, the conduct complained of could have an impact
on the employees' exercise of their free choice in the election. The
Board will consider the following factors when deciding whether to
proceed with a representation case once an Unfair Labor Practice
Charge has been filed:
a. The length of time the
representation proceeding has been pending;
b. The employees in the unit
have been without an election;
c. Whether any previous
charges based upon the same unlawful conduct have been dismissed;
d. The timing of the filing of
the charge in relation to the date for election;
e. The presence of a strike;
and
f. Any past practice to the
effect that the charging party has used an unfair labor practice as a
tactic to delay a representation proceeding.
2. The Board may also decide
to proceed, even in the absence of a request, if it determines that a
fair election can be held.
3. If the Unfair Labor
Practice Charge is found to have merit, the Board will make a
determination as to whether the alleged unlawful conduct would affect
the election; if so, the petition will generally be held in abeyance
until the Unfair Labor Practice Charge has been resolved.
4. If the Unfair Labor
Practice Charge is dismissed, after investigation, the “block” is
removed, and the election may proceed.
1.15
Petition for Decertification of a Certified Bargaining
Representative
A. Petition Contents;
Sufficiency
1. A Petition for
Decertification of a Certified Bargaining Representative may be filed
by an employee, an employer, or an opposing labor organization, to
displace or decertify a certified or recognized labor organization.
Petition forms may be obtained on the Board’s website at
www.rislrb.ri.gov.
2. The filing of a petition by
the employees or employer does not relieve an employer from the
responsibility to bargain with the existing labor organization.
3. The petition shall include:
a. An indication of whether
the petition is being filed by or on behalf of employees, or by an
employer;
b. The name, address,
telephone number, and representative (if known) of the employer;
c. The name, address,
telephone number, and representative (if known) of the employee
organization;
d. Composition of current
certified unit for decertification;
e. The number of total
employees in the current unit to be decertified, certification
number, date certified, copy of current certification of
representatives, expiration date of most recent collective bargaining
agreement; and
f. The name and address of any
other employee organizations known to have an interest in the
employees previously described, if applicable.
B. Requirements for
Decertification
1. A petition filed by an
employer must be accompanied by evidence that the employer has a good
faith objective basis for doubting that the labor organization
continues to represent a majority of the bargaining unit employees.
2. No election may be
conducted under this section in a bargaining unit within which, in
the preceding twelve (12) months, a valid election has been held.
3. No election for
decertification may be conducted when there exists a Collective
Bargaining Agreement; provided that the Board may consider such
petition within a thirty (30) day period immediately preceding sixty
(60) days prior to the expiration of such Collective Bargaining
Agreement.
4. To serve as “bar” to
decertification, the contract must:
a. Be in writing and be signed
by the employer and the labor organization;
b. Address substantial terms
and conditions of employment; and
c. Exist for a definite
duration.
5. No election for
decertification shall be conducted for “partial” bargaining
units, even in situations where changed circumstances may indicate
that the originally certified unit is no longer appropriate.
6. The Board shall require the
petitioning party to submit Decertification Cards of Interest with
original signatures, by at least thirty percent (30%) of the
employees in the said bargaining unit, indicating a desire to
decertify from the designated labor organization. Cards of interest
signed by at least twenty percent (20%) of the employees in the
designated unit are required to intervene.
C. Certification of
Authenticity of Cards of Interest
1. Upon receipt of a Petition
for Decertification of a Certified Bargaining Representative, the
Board shall certify the authenticity of all Decertification Cards of
Interest submitted as outlined in R.I. Gen. Laws § 28-7-9(b)(1). A
copy of the petition and any attachments will be provided to the
employer prior to the scheduling of the card confirmation. The
process of certifying the authenticity of the cards of interest is
that of a confidential nature and the disclosure of the names of the
interested parties will not be revealed.
a. The Decertification Cards
of Interest must be in alphabetical order, by last name. Only cards
of interest with original signatures shall be accepted. The date of
the signatures must be within one (1) year of the date on which the
petition is filed. Decertification Cards of Interest may be obtained
on the Board’s website at www.rislrb.ri.gov.
b. The Decertification Cards
of Interest submitted in any proceeding before the Board, may not be
filed electronically. All said Decertification Cards of Interest must
be submitted no later than 3:00 p.m. in accordance with § 1.6(H)(4)
of this Part, on the same day as the electronic submission of the
petition.
D. Decertification Election
Process
1. The procedures for the
decertification election process, alleging that the members of a
bargaining unit no longer wish to be represented by the labor
organization presently representing them, shall be regulated by the
same Rules and Regulations as a petition filed under § 1.13 of this
Part.
E. Intervening Labor
Organization Requirements
1. An intervening labor
organization, seeking to succeed the incumbent labor organization
involved in a Decertification Petition process shall submit a
Petition for Investigation of Controversies as to Representation on
behalf of the said employees involved in the decertification process.
The intervening labor organization shall then follow the procedures
for Petition for Investigation of Controversies as to Representation
as set forth in § 1.14 of this Part.
2. The intervening labor
organization shall submit the Designation of Bargaining Agent and
Waiver of Right to Vote forms with the Petition. The Designation of
Bargaining Agent and Waiver of Right to Vote forms may be found on
the Board’s website at www.rislrb.ri.gov.
3. Designation of Bargaining
Agent and Waiver of Right to Vote forms submitted in any proceeding
before the Board may not be filed electronically. All Designation of
Bargaining Agent and Waiver of Right to Vote forms must be submitted
no later than 3:00 p.m. in accordance with § 1.6(H)(4) of this Part,
on the same day as the electronic submission of the petition.
F. Outcomes of the
Decertification Election Process
1. Upon conclusion of the
decertification election process, should the election vote result in
a tie vote or a failure to decertify the incumbent, the incumbent
shall remain the certified representative of the bargaining unit.
2. Upon conclusion of the
decertification election process, should the election vote result in
a majority vote of no union by the voters participating, the current
Certification of Representatives shall no longer be in effect and the
bargaining unit shall be deemed decertified.
3. Upon conclusion of the
decertification election process, should the intervening labor
organization obtain a majority vote of the entire bargaining unit,
the intervening labor organization shall automatically become the
certified representative of the bargaining unit immediately upon the
effective date of decertification of the incumbent. There shall be no
break in the representation status of the bargaining unit during the
transition from the incumbent to the newly-certified intervening
labor organization.
4. Upon conclusion of the
decertification election process, should the intervening labor
organization obtain a majority vote of the voters participating, but
not the majority vote of the full bargaining unit, then the
intervening labor organization may not automatically become certified
as the next certified representative. An informal conference may then
be scheduled to proceed with a representation election process.
a. The pendency of the
informal conference and representation election process does not
relieve an employer from the responsibility to bargain with the
existing incumbent labor organization.
G. Notification of Board’s
Actions
1. The Board, upon the
completion of the election, shall certify to the parties, five (5)
business days thereafter, either a:
a. Notice and Dismissal Order
- as a result of a tie vote, or failure to decertify the bargaining
unit;
b. Notice and Decertification
of Representatives - as a result of the incumbent labor
organization losing majority support; or
c. Notice and Decertification
of Representatives/Certification of Representatives - as a result
of the intervening organization winning the majority support of the
entire bargaining unit.
1.16 Petition for Unit
Clarification: Accretion
A. Petition Contents;
Sufficiency
1. Either a union or an
employer may, at any time, file a request to add or “accrete” a
position(s) to an existing bargaining unit. Petition forms may be
obtained on the Board’s website at www.rislrb.ri.gov. The request
should include:
a. An indication as to
whether the petition is being filed by a labor organization or an
employer;
b. The name, address, and
labor relations representative (if known), of the employer;
c. The name and address of the
certified bargaining agent, Board's certification number, and date of
Board certification;
d. Number of employees in the
existing unit and number of employees in the proposed unit. If the
petitioner is seeking to accrete positions totaling more than twenty
percent (20%) of the existing bargaining unit, then cards of interest
for more than fifty percent (50%) of the employees holding the
positions that the petitioner seeks to accrete must accompany the
petition; and the accretion petition may require that an election
(for accretion purposes) be held;
e. The title of each disputed
position, name(s) of individual(s) holding the said title(s), and the
length of time the incumbent(s) held the position(s). A copy of the
job description(s), if available, should be attached to the request;
and
f. A list of any other
employee organization(s) that may claim to represent any of the
employees affected by the petition.
2. Attached to the Petition
for Unit Clarification and/or Accretion, shall be a copy of the
appropriate Certification of Representatives, as well as a copy of
the Board’s Unit Clarification Disposition Record, which may be
obtained on the Board’s website at www.rislrb.ri.gov.
3. In order to proceed with a
Petition for Unit Clarification and/or Accretion, the incumbent(s)
must be employed in the position for a period of thirty (30) business
days, prior to the filing of the petition.
B. Processing of Petition
1. Upon receipt of a Petition
for Unit Clarification and/or Accretion, an informal hearing shall be
scheduled within thirty (30) days. If, upon conclusion of the
informal hearing, the parties cannot agree to the accretion of the
position(s), the Board’s Agent shall cause an investigation to
commence.
2. Upon completion of the
investigation, the Agent shall provide a written investigative report
to the parties’ representatives of record. Upon receipt of the
Agent’s report, each party shall have a period of thirty (30) days
from the date of mailing to file any written responses or statement
it deems appropriate. At the end of this thirty (30) day response
period, the record of proceedings shall be closed, and the case shall
be referred to the Board for its consideration. After consideration
of the matter, the Board may refer the matter to its Agent for
further investigation, order a formal hearing, or preliminarily grant
or deny the requested action.
3. After determination of
said matter by the Board, the Board shall notify all parties, in
writing, of its preliminary determination as to whether or not the
requested position(s) shall be accreted into the existing bargaining
unit. The said written notification shall be sent to all parties of
record.
4. Pursuant to R.I. Gen. Laws
§ 28-7-9(d), the matter shall be set down for a formal hearing only
if requested by either party within thirty (30) days of the written
notice of the Board’s preliminary determination. Should neither of
the parties involved in the matter request a formal hearing, in
writing, within the thirty (30) day period referenced above, and the
Board’s preliminary determination includes an accretion of a
position(s), then the accretion will take effect on the date of the
written notification to the parties.
5. Subsequent to the
expiration of the aforementioned timeframe, where there was no
request for a formal hearing submitted by either party, the
Administrator of the Board shall notify the parties, in writing, of
the final determination in the matter.
6. The Agent’s report and
the responses of the parties shall be considered as, and included
within, the public record on the matter.
7. The Board’s Administrator
shall have the discretion, upon good cause shown, to grant one (1)
extension of the date for filing a response. All requests for filing
extensions must be made, in writing, no later than five (5) business
days prior to the filing due date, and should be by agreement of the
parties’ representative of record. Any party filing a response to
the Agent’s report shall submit an original, signed in blue ink, to
the Board; as well as a copy to the opposing party(s), with a carbon
copy (CC) to the Board’s Administrator, and must certify the same
therein.
C. Formal Hearings After
Preliminary Determination to Accrete
1. Should any of the parties
of record request a formal hearing and the request is granted by the
Board, upon conclusion of the formal hearing process, the Board will
issue a final written decision and order. Should the Board determine
in its decision and order that the position(s) shall be accreted,
then the effective date of the accretion will be the date of the
Board’s final written decision and order.
2. Should the parties reach
an agreement on the accretion of the position(s) in question, after
request and/or commencement of a formal hearing, by any of the
parties of record, but prior to the Board’s final written decision
and order, the parties shall submit a Consent Agreement &
Affidavit in accordance with § 1.16(J) of this Part.
D. Burden of Petitioner
1. It shall be the
petitioner’s affirmative duty and burden to demonstrate, through
either testimony or documentary evidence, or a combination thereof,
that the petitioned for position(s) share a community of interest
with the existing bargaining unit.
E. Factors Considered in
Accretion
1. In reviewing a petition to
accrete a position(s) into an existing bargaining unit, the
petitioner shall provide the Board with information concerning the
community of interest, as defined in § 1.2(A)(10) of this Part,
shared by the position(s) sought and the bargaining unit.
F. Vacant Positions
1. If the position is vacated
after a petition has been filed and prior to informal hearing, the
petition will be denied; and the requesting party will be instructed
to resubmit the request, if and when the position is filled.
2. If the position is vacated
after informal hearing, but prior to investigation, the petition will
be denied; and the requesting party will be instructed to resubmit
the request, if and when the position is filled.
3. If the position is vacated
after informal hearing and investigation, but prior to the formal
hearing (if applicable), then the matter will be treated as moot; and
no further action shall be taken, unless and until the employer
notifies the Board that the position has been filled, in which case,
the matter will be placed back on the formal hearing calendar.
4. If the position is vacated
after the formal hearing, but prior to the written decision and order
being rendered, the Board will decide the inclusion of the position
based on the evidence adduced at the formal hearing.
5. In order to proceed with a
Petition for Unit Clarification and/or Accretion, the incumbent(s)
must be employed in the position, for a period of thirty (30) days,
prior to the re-filing of the petition.
G. Abeyance by Preemption of
Election Petition
1. If a Petition for
Investigation of Controversies as to Representation is filed prior to
a Petition for Unit Clarification and/or Accretion relative to the
same position(s), then the Petition for Unit Clarification and/or
Accretion shall be held in abeyance, pending the outcome of the
Petition for Investigation of Controversies as to Representation.
H. Requests for Abeyance
1. Since R.I. Gen. Laws §
28-7-9(b)(3) allows for the Petition for Unit Clarification and/or
Accretion to be filed at any time, the parties shall not be allowed
to request that a Petition for Unit Clarification and/or Accretion be
held in abeyance. If the petitioner does not wish to proceed with the
informal hearing and/or the investigation, the matter must be
withdrawn.
I. Voluntary Recognition;
Accretion of Position(s) by Parties
1. When the parties determine
that they have reached an agreement on an inclusion of any
position(s), prior to the filing of a Petition for Unit Clarification
and/or Accretion with the Board, the parties shall submit a Consent
Agreement and Affidavit in lieu of the Petition for Unit
Clarification and/or Accretion.
a. All parties must sign the
consent agreement; the affidavit must outline why it is appropriate
to include the position(s) into the bargaining unit. Included as part
of the Consent Agreement and Affidavit, shall be an indication of a
proposed effective date, as agreed upon by the parties, for the
accreted position(s). When filing the Consent Agreement and Affidavit
with the Board, the parties shall submit an original, signed in blue
ink, in accordance with § 1.5 of this Part.
2. Notwithstanding the
foregoing, the Board retains jurisdiction of the matter and may
reject the Consent Agreement and Affidavit, if the same is determined
by the Board to be in violation of applicable law.
J. Consent Agreement and
Affidavit
1. If, prior to the completion
of the Board’s investigation on a Petition for Unit Clarification
and/or Accretion, the parties determine that they can agree on an
inclusion of a position(s), the requesting party must withdraw the
Petition for Unit Clarification and/or Accretion request upon
submission of the Consent Agreement and Affidavit.
a. All parties must sign the
consent agreement; the affidavit must outline why it is appropriate
to include the position(s) into the bargaining unit. Included as part
of the Consent Agreement and Affidavit, shall be an indication of a
proposed effective date for the accreted position(s) agreed upon.
When filing the Consent Agreement and Affidavit with the Board, the
parties shall submit an original, signed in blue ink, in accordance
with § 1.5 of this Part.
2. Notwithstanding the
foregoing, the Board retains jurisdiction of the matter and may
reject the Consent Agreement and Affidavit, if the same is determined
by the Board to be in violation of applicable law.
K. Request for Petition for
Unit Clarification and/or Exclusion of Position(s) After Accretion
Process
1. Upon accretion of a
position(s) to a certified bargaining unit, either by the filing of a
Petition for Unit Clarification and/or Accretion, or by Consent
Agreement and Affidavit, a Petition for Unit Clarification and/or
Exclusion may not be filed for a period of at least one (1) year from
the date of accretion.
L. Charge of an Unfair Labor
Practice filed After Preliminary Determination to Accrete
1. If an Unfair Labor Practice
Charge is filed based on a preliminary determination by the Board to
accrete a position(s) into a bargaining unit, prior to the formal
hearing process, the matter shall proceed to a designated informal
hearing process in accordance with § 1.22(F) of this Part. The
matter will then be scheduled before the Board, as soon as
practicable, for the Board to determine whether the Unfair Labor
Practice Charge should be placed into abeyance based on the outcome
of the Petition for Unit Clarification and/or Accretion, a complaint
should issue, or to dismiss the matter.
M. Subsequent or Repetitive
Requests by the Same Petitioner to Accrete
1. When a Petition for Unit
Clarification and/or Accretion for a position has been reviewed by
the Board, and the Board makes a determination to deny the accretion
of the position, the same position may not be the subject of a
subsequent petition unless:
a. A period of at least one
(1) year has passed from the date of the denial;
b. The request is accompanied
by an affidavit alleging a substantial change in circumstances of the
position. The affidavit shall describe the substantial change in
circumstances in sufficient detail; and
c. The Board shall have the
right to return any petition and affidavit that the Board, or its
Administrator or Agent, finds insufficient to meet these terms. No
processing shall commence until the petition is sufficient for
review.
1.17 Petition for Unit
Clarification: Exclusion
A. Petition Contents;
Sufficiency
1. Either a union or an
employer may, at any time, file a request to exclude positions from
an existing bargaining unit. Petition forms may be obtained on the
Board’s website at www.rislrb.ri.gov.The request should include:
a. An indication as to
whether the petition is being filed by a labor organization or an
employer;
b. The name, address, and
labor relations representative (if known), of the employer;
c. The name and address of the
certified bargaining agent, Board's certification number, and date of
Board certification;
d. Number of employees in the
existing unit and number of employees in the proposed unit;
e. The title of each disputed
position(s), name(s) of individual(s) holding the said title(s),
length of time the incumbent(s) held the position(s). A copy of the
job description(s), if available, should be attached to the request;
and
f. A list of any other
employee organization(s) that may claim to represent any of the
employees affected by the petition.
2. Attached to the Petition
for Unit Clarification and/or Exclusion, shall be a copy of the
appropriate Certification of Representatives, as well as a copy of
the Board’s Unit Clarification Disposition Record, which may be
obtained on the Board’s website at www.rislrb.ri.gov .
3. In order to proceed with a
Petition for Unit Clarification and/or Exclusion, the incumbent(s)
must be employed in the position, for a period of thirty (30)
business days, prior to the filing of the Petition.
B. Processing of Petition
1. Upon receipt of a Petition
for Unit Clarification and/or Exclusion, an informal hearing shall be
scheduled within thirty (30) days. If, upon conclusion of the
informal hearing, the parties cannot agree to the exclusion of the
position(s), the Board’s Agent shall cause an investigation to
commence.
2. Upon completion of the
investigation, the Agent shall provide a written investigative report
to the parties’ representatives of record. Upon receipt of the
Agent’s report, each party shall have a period of thirty (30) days
from the date of mailing to file any written responses or statement
it deems appropriate. At the end of this thirty (30) day response
period, the record of proceedings shall be closed, and the case shall
be referred to the Board for its consideration. After consideration
of the matter, the Board may refer the matter to its Agent for
further investigation, order a formal hearing, or preliminarily grant
or deny the requested action.
3. After determination of
said matter by the Board, the Board shall notify all parties, in
writing, of its preliminary determination as to whether or not the
requested position(s) shall be excluded from the existing bargaining
unit. The said written notification shall be sent to all parties of
record.
4. Pursuant to R.I. Gen. Laws
§ 28-7-9(d), the matter shall be set down for a formal hearing only
if requested by either party within thirty (30) days of the written
notice of the Board’s preliminary determination. Should neither of
the parties involved in the matter request a formal hearing, in
writing, within the thirty (30) day period referenced above, and the
Board’s preliminary determination includes an exclusion of a
position(s), then the exclusion will take effect on the date of the
written notification to the parties.
5. Subsequent to the
expiration of the aforementioned timeframe, where there was no
request for a formal hearing submitted by either party, the
Administrator of the Board shall notify the parties, in writing, of
the final determination in the matter.
6. The Agent’s report and
the responses of the parties shall be considered as, and included
within, the public record on the matter.
7. The Board’s Administrator
shall have the discretion, upon good cause shown, to grant one (1)
extension of the date for filing a response. All requests for filing
extensions must be made in writing, no later than five (5) business
days prior to the filing due date, and should be by agreement of the
parties’ representatives of record. Any party filing a response to
the Agent’s report shall submit an original, signed in blue ink, to
the Board, in accordance with § 1.5 of this Part; as well as to the
opposing party(s) with a carbon copy (CC) to the Board’s
Administrator, and must certify the same therein.
C. Formal Hearings After
Preliminary Determination to Exclude
1. Should any of the parties
of record request a formal hearing and the request is granted by the
Board, upon conclusion of the formal hearing process, the Board will
issue a final written decision and order. Should the Board determine
in its decision and order that the position(s) shall be excluded then
the effective date of the exclusion will be the date of the Board’s
final written decision and order.
2. Should the parties reach an
agreement on the exclusion of the position(s) in question, after
request and/or commencement of a formal hearing, by any of the
parties of record, but prior to the Board’s final written decision
and order, the parties shall submit a Consent Agreement &
Affidavit in accordance with § 1.17(H) of this Part.
D. Burden of Proof
1. The petitioner has the
burden of establishing that a substantial change in the duties of the
position(s) in question has occurred, such that the position(s) is no
longer eligible for inclusion within the bargaining unit or for
collective bargaining.
E. Requests for Abeyance
1. Since R.I. Gen. Laws §
28-7-9(b)(3) allows for the Petition for Unit Clarification and/or
Exclusion to be filed at any time, the parties shall not be allowed
to request that a Petition for Unit Clarification and/or Exclusion be
held in abeyance. If the petitioner does not wish to proceed with the
informal hearing and/or the investigation, the matter must be
withdrawn.
F. Charge of an Unfair Labor
Practice Filed After Preliminary Determination to Exclude
1. If an Unfair Labor Practice
Charge is filed based on a preliminary determination by the Board to
exclude a position(s) from a bargaining unit, prior to the formal
hearing process, the matter shall proceed to a designated informal
hearing process in accordance with § 1.22(F) of this Part. The
matter will then be scheduled before the Board, as soon as
practicable, for the Board to determine whether the Unfair Labor
Practice Charge should be placed into abeyance based on the outcome
of the Petition for Unit Clarification and/or Exclusion, a complaint
should issue, or to dismiss the matter.
G. Voluntary Recognition;
Exclusion of Position(s) by Parties
1. When the parties determine
that they have reached an agreement on an exclusion of any
position(s), prior to the filing of a Petition for Unit Clarification
and/or Exclusion with the Board, the parties shall submit a Consent
Agreement and Affidavit in lieu of the Petition for Unit
Clarification and/or Exclusion.
a. All parties must sign the
consent agreement; the affidavit must outline why it is appropriate
to exclude the position(s) from the bargaining unit. Included as part
of the Consent Agreement and Affidavit, shall be an indication of a
proposed effective date for the excluded position(s) agreed upon.
When filing the Consent Agreement and Affidavit with the Board, the
parties shall submit an original, signed in blue ink, in accordance
with § 1.5 of this Part.
2. Notwithstanding the
foregoing, the Board retains jurisdiction of the matter and may
reject the Consent Agreement and Affidavit, if the same is determined
by the Board to be in violation of applicable law.
H. Consent Agreement and
Affidavit
1. If, prior to the completion
of the Board’s investigation on a Petition for Unit Clarification
and/or Exclusion, the parties determine that they can agree on an
exclusion of a position(s), the requesting party must withdraw the
Petition for Unit Clarification and/or Exclusion upon submission of
the Consent Agreement and Affidavit.
a. All parties must sign the
consent agreement; the affidavit must outline why it is appropriate
to exclude the position(s) from the bargaining unit. Included as part
of the Consent Agreement and Affidavit, shall be an indication of a
proposed effective date for the excluded position(s) agreed upon.
When filing the Consent Agreement and Affidavit with the Board, the
parties shall submit an original, signed in blue ink, in accordance
with § 1.5 of this Part.
2. Notwithstanding the
foregoing, the Board retains jurisdiction of the matter and may
reject the Consent Agreement and Affidavit, if the same is determined
by the Board to be in violation of applicable law.
1.18 Affiliation/Merger
A. Requirements of Request to
Board
1. Employees represented by an
independent labor organization or association may seek to
affiliate/merge with a national organization while a contract is in
existence by filing with the Board:
a. A Petition for
Affiliation/Merger of Bargaining Representatives; (Petition forms may
be obtained on the Board’s website at www.rislrb.ri.gov);
b. Cards of interest shall be
submitted pursuant to R.I. Gen. Laws § 28-7-9(b)(1);
c. A copy of the notice of
meeting of employees that will take place to discuss and vote on
affiliating/merging with the national organization;
d. An affidavit, signed by a
representative of the independent association or organization, which
indicates that a majority of the members of the bargaining unit have
voted to affiliate/merge. The affidavit shall set forth the total
number of employees in the bargaining unit, and the total number of
employees voting for the merger;
(1) The majority of votes must
be fifty-one percent (51%) of the total unit, not the total votes;
e. A certified copy of the
minutes of the meeting at which the vote to affiliate/merge took
place. The minutes of the meeting should reflect the taking of the
vote, as well as the results of the vote; and
f. A letter from the national
organization requesting the Board to affiliate/merge the two (2)
organizations by certification.
2. Cards of interest submitted
in any proceeding before the Board may not be filed electronically.
All cards of interest must be submitted no later than 3:00 p.m. in
accordance with § 1.6(H)(4) of this Part, on the same day as the
electronic submission of the petition. The cards of interest must be
in alphabetical order, by last name. Only cards of interest with
original signatures shall be accepted.
B. Action by Board
1. Upon receipt of a Petition
for Affiliation/Merger of Bargaining Representatives, the Board’s
Administrator or its Agent shall notify the employer of the request
to affiliate/merge. The Board shall certify the authenticity of the
cards of interest, as well as verifying the number of employees in
the current bargaining unit. A copy of the petition and any
attachments will be provided to the employer prior to the scheduling
of the card confirmation. The employer shall be directed to submit
its objection, if any, within five (5) business days, together with a
clear and concise statement of its reasons for its objections.
2. The Board shall undertake
review of the request, and any objections filed, and may either grant
the request to affiliate/merge and amend the certification, refer the
matter to its Agent for further investigation, or may deny the
request.
C. Notification of Board’s
Action
1. The Board’s Administrator
or its Agent shall notify the petitioner, in writing, of the results
of the Board’s action. Upon acceptance of the affiliation/merger by
the Board, the Board shall amend the Certification of Representatives
to reflect the change in organizations. Each party shall receive a
copy of the amended certification. (Upon the denial of the
affiliation/merger by the Board, the petitioner may adhere to the
procedures as set forth by § 1.18(D) of this Part).
D. Requests for Hearing and/or
Reconsideration
1. Requests, which have been
denied, may be set down for a hearing only upon written request for
hearing, which is filed within five (5) business days after the
denial. Any aggrieved petitioner also has the right to request a
reconsideration of its request. In submitting such a request, the
petitioner shall state with specificity the reasons why it believes
the Board’s prior determination was erroneous.
1.19 Merger of Two or More
Bargaining Units into One Bargaining
Unit Within the
Same Affiliation
A. Required Documentation
1. In order to effectuate a
merger of two (2) or more bargaining units within the same
affiliation, the requesting party must submit the following
documentation:
a. A letter from the
affiliation requesting the Board to merge the bargaining units
involved, as well as listing all appropriate documentation in support
of the request;
(1) The Certification of
Representatives, which will be affected by this merger, must be
attached to the letter.
b. A copy of the notice of
meeting of employees that will take place to discuss and vote on the
merger;
c. A certified copy of the
minutes of the meeting at which the vote to merge the bargaining
units took place. The minutes of the meeting should reflect the
taking of the vote, as well as the results of the vote;
(1) The majority of votes must
be fifty-one percent (51%) of the total bargaining units, not the
total votes.
d. An affidavit, signed by a
representative of the affiliation, affirming that the bargaining unit
members involved held a union meeting for the purpose of voting to
merge; that a majority of the members of the bargaining units have
voted for the merger; as well as indicating the titles of positions
to be merged; and
e. A consent agreement
executed between the union and the employer, indicating the
authorization and agreement of the members to merge the affected
bargaining units. Included as part of the consent agreement, shall be
an indication of a proposed effective date for the merger as agreed
upon.
2. When filing the merger
documentation with the Board, the affiliation is required to submit
an original, signed in blue ink, in accordance with § 1.5 of this
Part.
B. Notification of Board’s
Action
1. The Board’s Administrator
or its Agent shall notify the petitioner, in writing, of the results
of the Board’s action. Upon acceptance of the Consent Agreement and
Affidavit by the Board, the Board shall issue an amended
Certification of Representatives to reflect the merger. Each party
shall receive a copy of the amended certification.
1.20 Transfer of Bargaining Units
and/or Portions Thereof Within the
Same Labor
Organization
A. Required Documentation
1. In order to effectuate a
transfer of an entire bargaining unit, and/or a portion thereof, the
requesting party must submit the following documentation:
a. An affidavit signed by the
duly authorized representative, indicating why the parties feel it is
appropriate to transfer the bargaining unit, or portion thereof, as
well as the titles of positions to be transferred and the number of
positions within each title;
b. A consent agreement
executed between the union(s) and the employer indicating the
agreement and authorization of the members to transfer, as well as a
proposed effective date for the transferred position(s) agreed upon;
and
c. Cards of interest
containing the names, title of positions to be transferred, and the
signatures of at least fifty-one percent (51%) of the bargaining
unit, and/or portion thereof, being transferred. (Upon receipt of the
cards of interest or the petition, the Board shall certify the
authenticity of the said signatures).
(1) Cards of interest shall be
submitted along with the Consent Agreement & Affidavit pursuant
to R.I. Gen. Laws § 28-7-9(b)(1); the cards of interest must be in
alphabetical order, by last name. Only cards of interest with
original signatures shall be accepted.
(2) Cards of interest
submitted in any proceeding before the Board may not be filed
electronically. All cards of interest must be submitted no later than
3:00 p.m. in accordance with § 1.6(H)(4) of this Part, on the same
day as the electronic submission of the Consent Agreement &
Affidavit.
2. When filing the transfer
documentation with the Board, the labor organization is required to
submit an original, signed in blue ink, in accordance with § 1.5 of
this Part.
3. When transferring a
“portion” of a bargaining unit from one bargaining unit to
another bargaining unit within the same labor organization, the
petitioner must transfer the entire portion of the specific title,
not just one of the positions within that specific title.
B. Contested Transfers
1. Upon receipt of the request
for a transfer of bargaining unit(s) and/or portions thereof, within
the same labor organization, the requesting party advises the Board
that a party(s) objects to the transfer, as well as its refusal to
sign the consent agreement, the Board’s Administrator will notify
the objecting party(s), in writing, of the pending request for
transfer. The party(s) shall be directed to submit its objection(s),
within five (5) business days, together with a clear and concise
statement of its reasons for its objection(s). The matter shall then
be scheduled before the Board, as soon as practicable, for
disposition.
C. Notification of Board’s
Action
1. The Board’s Administrator
or its Agent shall notify the parties, in writing, of the results of
the Board’s action. Upon acceptance of the Consent Agreement and
Affidavit for a transfer of bargaining unit(s) and/or portions
thereof, within the same labor organization, the Board shall publish
its determination in the Unit Clarification Disposition section of
the Board’s website at www.rislrb.ri.gov. Upon the denial of the
transfer by the Board, the petitioner may adhere to the procedures as
set forth by § 1.20(D) of this Part.
D. Requests for Hearing and/or
Reconsideration - Transfer of Bargaining Units and/or Portions
Thereof Within the Same Labor Organization
1. Requests, which have been
denied, may be set down for a formal hearing only upon written
request, which is to be filed within five (5) business days after the
denial. Any aggrieved petitioner also has the right to request a
reconsideration of its request. In submitting such a request, the
petitioner shall state, with specificity, the reasons why it believes
the Board’s prior determination was erroneous.
1.21 Transfer of Bargaining
Unit(s) Between National Organizations:
Change of
Jurisdiction
A. Required Documentation
1. In order to effectuate a
transfer of an entire bargaining unit based on a change in
jurisdiction between national organizations, the requesting party
must submit:
a. A letter of intent from
the filing national organization;
b. An affidavit, signed by
the duly authorized representative of the national organization,
affirming that a union meeting was held by the existing national
organization’s bargaining unit members for the purpose of voting to
transfer national organizations, that a majority of the members of
the bargaining unit have voted for the transfer, and that the
existing national organization is granting the transfer;
c. A consent agreement
executed between the union(s) and the employer indicating the
authorization and desire of the members to transfer, as well as a
proposed effective date for the transferred position(s) agreed upon;
d. Cards of interest
containing the names, titles of positions to be transferred, and
original signatures of at least fifty-one percent (51%) of the
bargaining unit, being transferred; and
e. A letter from the current
certified national organization approving the transfer of
organizations.
2. Cards of interest submitted
in any proceeding before the Board may not be filed electronically.
All cards of interest must be submitted no later than 3:00 p.m. in
accordance with § 1.6(H)(4) of this Part, on the same day as the
electronic submission of the Consent Agreement & Affidavit.
3. When filing the transfer
documentation with the Board, the labor organization is required to
submit an original, signed in blue ink, in accordance with § 1.5 of
this Part.
B. Action by Board; No Contest
1. Upon receipt of the request
and the required documentation, the Board shall certify the
authenticity of the signatures listed on the cards of interest. The
Board shall then review the request, and may either grant the request
to transfer jurisdiction of organizations and amend the
certification, or deny the request.
C. Contested Transfers
1. Upon receipt of the Request
For a Transfer of Bargaining Unit(s) Between National Organizations:
Change of Jurisdiction, should the requesting party advise the Board
that a party(s) objects to the transfer of jurisdictional
representation, as well as its refusal to sign the consent agreement,
the Board’s Administrator will notify the objecting party(s), in
writing, of the pending request for transfer. The party(s) shall be
directed to submit its objection(s), within five (5) business days,
together with a clear and concise statement of its reasons for its
objection(s). The matter shall then be scheduled before the Board, as
soon as practicable, for disposition.
D. Notification of Board’s
Action
1. The Board’s Administrator
or its Agent shall notify the parties, in writing, of the results of
the Board’s action. Upon acceptance of the Consent Agreement and
Affidavit for a change in jurisdiction of a national organization by
the Board, the Board shall amend the Certification of Representatives
to reflect the change in the organizations. Each party shall receive
a copy of the amended certification. Upon the denial of the transfer
by the Board, the petitioner may adhere to the procedures as set
forth by § 1.21(E) of this Part.
E. Requests for Hearing and/or
Reconsideration - Transfer of Bargaining Unit(s) Between National
Organizations: Change of Jurisdiction
1. Requests, which have been
denied, may be set down for a formal hearing only upon written
request, which is to be filed within five (5) business days after the
denial. Any aggrieved petitioner also has the right to request a
reconsideration of its request. In submitting such a request, the
petitioner shall state, with specificity, the reasons why it believes
the Board’s prior determination was erroneous.
1.22 Procedures for the Prevention
of Unfair Labor Practices
A. Charge; Persons Eligible To
File
1. Any person, employer, or
labor organization may make a charge that an individual has engaged
in or is engaging in an unfair labor practice. Any person who is a
member of a labor organization must first seek to have the labor
organization file the Unfair Labor Practice Charge(s) on his or her
behalf. Any person who demonstrates that his or her exclusive
bargaining agent has refused to file the charge(s) on the bargaining
unit member’s behalf shall be permitted to file his or her own
charge, which shall be subject to all the rules, regulations, and
requirements of this section. Any person filing a charge directly
shall attach to the charge an affidavit, which attests to the labor
organization’s refusal to file.
B. Charge; Form and Filing;
Deadline
1. The Unfair Labor Practice
Charge shall be typewritten and submitted on legal size paper (8.5 x
14 in size). The petitioner shall submit an original, signed in blue
ink, with the Board, in accordance with § 1.5 of this Part. Petition
forms may be obtained on the Board’s website at www.rislrb.ri.gov.
Charges must be filed with the Board within six (6) months from the
date of knowledge of the alleged unfair labor practice.
C. Contents of Charge
1. A charge shall contain:
a. An indication as to
whether the charge is being filed on behalf of an "individual",
"employee organization", or an "employer";
b. The name, address, and
labor relations representative (if known) of the employer;
c. The name and address of the
employee organization or individual;
d. An indication of whether
the charge is being filed against an "employer" or an
"employee organization";
e. An enumeration of the
specific Sub-Section(s) of R.I. Gen. Laws §§ 28-7-13 or 28-7-13.1
that the complainant is alleging has been violated;
f. A summary of the basis for
the charge to include, where known, the approximate dates and places
of the alleged acts, and the names of the respondent's agents, or
other representatives by whom the acts were committed. In the event,
it is alleged that an employee or employees have been discharged,
refused employment or suffered discrimination in violation of the
Act, the name or names of such employees;
g. The remedy requested by
the complainant; and
h. An indication as to any
previous action that has been taken in the matter, to wit: grievance,
negotiations, mediation, fact-finding, conciliation, interest
arbitration.
2. Charges which, in the
opinion of the Board or its Administrator or Agent, do not provide
sufficient detail of factual allegations and the legal theory
underlying the alleged unfair labor practice(s), or fail to provide
adequate and due notice to the accused, shall be returned to the
complainant, without prejudice to re-file; provided however, any such
re-filing is completed within the six (6) month period set forth in §
1.22(B) of this Part.
D. Amendment of Charge
1. Otherwise than as set forth
in § 1.22(G) of this Part, such charge may be amended at any time
prior to the issuance of the final decision and order of the Board.
The complaint may thereupon be amended, in accordance with the
provisions of § 1.23(H) of this Part.
E. Investigation of Charge;
Report
1. After a charge has been
filed, the Board may conduct all investigations, which in its opinion
are necessary and proper for the exercise of the power vested in it
by the Act. For the purposes of this investigation, the Board, its
Administrator or Agent, may exercise all the powers, respectively,
specified in the Act.
F. Designated Informal Hearing
Process with Charging Party and Respondent
1. Upon the filing of an
Unfair Labor Practice Charge, the parties will be notified and
provided with a copy of said charge by the Board. The parties shall
be notified in writing, by the Board’s Administrator or its Agent,
as to the designated informal hearing process and the associated
procedural requirements, pursuant to R.I. Gen. Laws § 28-7-9(5).
2. Upon a “late” filing of
a written statement by either party, in accordance with § 1.9(B)(4)
of this Part, the opposing party may file a Motion of Objection to
the Acceptance of the Written Statement by the Board, within five (5)
business days of the written statement’s due date. The objection
shall then be forwarded to the Board for review and determination on
how to proceed. The Administrator of the Board shall notify the
parties, in writing, of the results of the Board’s action.
G. Withdrawal of Charge
1. A charge, or any part
thereof, may be withdrawn only with the consent of the Board, and
upon such terms and conditions as the Board may deem just and proper.
Upon withdrawal of any charge at any time prior to the issuance of
the complaint thereon, or upon application of the person, employer,
or labor organization filing the charge, the Board may permit the
withdrawal of the whole, or any part thereof. At any time subsequent
to the issuance of a complaint thereon, and upon motion of the
person, employer, or labor organization filing the charge, the Board
may permit the withdrawal of such charge, or any part thereof. The
complaint may thereupon be amended or withdrawn, in accordance with
§§ 1.23(H) and 1.23(K) of this Part.
H. Administrative Dismissal of
Unfair Labor Practice Charges After Designated Informal Hearing
Process
1. Pursuant to R.I. Gen. Laws
§ 28-7-9(d), after the designated informal hearing process has
concluded, and after consideration of the Agent’s confidential
report, the Board may administratively dismiss the charge without
issuing a complaint against the respondent. Upon determination of the
dismissal of the charge by the Board, the Board’s Administrator or
its Agent shall notify the petitioner, in writing, of the results of
the Board’s action.
I. Unfair Labor Practice
Charge - Administrative Dismissal; Request for Reconsideration
1. Upon receipt of
notification of an administrative dismissal of the charge, the
charging party shall have five (5) business days from the date of the
written dismissal to submit a written request for reconsideration,
with legal justification to substantiate said reconsideration. Upon
receipt of the request, the matter may be placed on the next
applicable monthly Board Agenda for review and determination. The
Administrator or its Agent of the Board shall notify the petitioner,
in writing, of the results of the Board’s action.
J. Unfair Labor Practice
Charges Held in Abeyance
1. Once an Unfair Labor
Practice Charge has been filed, the matter will proceed to a
designated informal hearing process. The Board will only hold an
Unfair Labor Practice charge in abeyance, upon request by the
charging party, with the consent of the opposing party. Status
letters will be sent to the charging party, with a copy sent to the
responding party, every sixty (60) days, requesting an update.
Failure to respond to any request for a status update may result in
the unfair labor practice charge being dismissed.
1.23 Issuance of Unfair Labor
Practice Complaint by Board
A. Investigative Report Not
Part of Complaint
1. The report of the Board’s
Administrator or its Agent shall not be deemed or considered as part
of the complaint, or a part of the public record as defined in § 3.4
of this Subchapter.
B. Complaint and Notice of
Hearing; Other Disposition of Charge
1. After a charge has been
filed, the Board may issue, and cause to be served upon the parties
to the proceeding, a complaint in the name of the Board, containing a
concise statement as to the alleged violations of the Act, together
with a notice of hearing, at a place therein fixed and at a time not
less than five (5) business days after the service of the complaint;
provided, however, that the parties to the proceedings may waive the
five (5) business days’ notice by stipulating thereto in writing.
The Board’s Administrator or its Agent, is hereby authorized and
empowered to sign and disburse all complaints authorized to be issued
by the Board.
2. After the Board, in its
discretion, and after the designated informal hearing process
thereon, may determine that no complaint shall be issued on a charge
filed with it, the Board shall administratively dismiss the charge by
issuing a letter of dismissal to both the charging party and the
respondent.
C. Service and Filing of
Answer
1. The respondent against whom
the complaint is issued shall have the right to file an answer within
five (5) business days from the service of the complaint. Such answer
shall be in writing, the original being signed by the respondent or
his or her representative. The respondent or his or her
representative shall file, with the Board, an original, signed in
blue ink, in accordance with § 1.5 of this Part, of the answer to
the complaint and copies, thereof, for each party to the proceeding.
The respondent shall be required to certify a copy of said answer to
each party of the proceeding, with a carbon copy (CC) to the Board’s
Administrator.
D. Extension of Time to File
Answer
1. The Board may extend the
time within, which the answer shall be filed, upon request or motion
of the respondent.
E. Failure to File Answer
1. Upon failure of the
respondent to file an answer within the time period provided in §
1.23(C) of this Part, the Board may proceed to hold a hearing at a
time and place specified in the notice of hearing, and may make its
findings of fact and enter its order upon the testimony so taken. The
respondent, however, in the event of such failure, shall have the
right to appear at such hearing, and cross-examine all witnesses, but
shall not have the right to interpose or seek to establish any
affirmative defense without permission of the Board.
F. Denial of Complaint
1. In its answer, the
respondent shall specifically deny or explain each of the allegations
contained in the complaint, unless the respondent is without
knowledge, in which case the respondent shall so state, such
statement operating as a denial. Such answer shall contain a concise
statement of the facts that constitute the grounds of defense. Any
allegations in the complaint not specifically denied in the answer,
unless the respondent shall state in the answer that the respondent
is without knowledge, shall be deemed admitted to be true and may be
so found by the Board.
G. Defense and New Matter
1. Any allegation of new
matter contained in the answer is to be deemed denied without the
necessity of a reply.
H. Amendment of Complaint
1. In the discretion of the
Board, the Board’s Administrator or its Agent may amend the
complaint upon due notice to all parties, at any time before the
issuance of the final decision and order. Where a charge has been
amended in accordance with § 1.22(D) of this Part, the Board may
amend the complaint. Such amendment(s) to the complaint may be made
on notice to all parties in accordance with this section, upon such
terms as may be deemed just and proper, at any time prior to the
issuance of a final decision and order based thereon.
I. Amendment of Answer by
Motion
1. After the answer is filed,
the answer may be amended upon motion of the party filing it, upon
due notice to all parties, and upon such terms as may be deemed just
and proper. Such amendment(s) of the answer may be permitted at any
time prior to the issuance of a final order based upon the complaint.
J. Amendment of Answer by
Right
1. In any case where a
complaint has been amended, the respondent shall have an opportunity
to amend his or her answer, within such period as may be fixed by the
Board, after it permits an amendment to the complaint.
K. Withdrawal of Complaint
1. Any such complaint or
amended complaint, or any part thereof, may be withdrawn by the
Board, on its own motion, or on motion of the Board’s Administrator
or its Agent, at any time before the issuance of a final decision and
order, upon notice to all parties to the proceeding.
L. Complaints Held in
Abeyance
1. Once a complaint has been
issued, the matter will be placed on the formal hearing calendar. The
Board will only hold a complaint in abeyance, upon request by the
charging party, with the consent of the opposing party. Status
letters will be sent to the charging party, with a copy sent to the
responding party, every sixty (60) days, requesting an update.
Failure to respond to any request for a status update may result in
the charge and complaint being dismissed.
1.24 Agents and Legal Counsel of
the Board
A. Powers and Duties of the
Administrator
1. The Administrator of the
Board, in addition to all powers, hereinabove, conferred upon him or
her, is hereby designated by the Board as its Agent:
a. To conduct and be in full
charge and control of any and all informal hearing processes and the
records thereof;
b. To accept service of
subpoenas duces tecum for Board records;
c. In the absence of the
Board’s Agent, to serve subpoena(s) or subpoena duces tecum issued
by the Board, by certified mail, in accordance with §§ 1.10(D) and
1.10(E) of this Part;
d. In the event the Board is
without legal counsel for any period of time, to accept service on
court summons, subpoenas, or complaints, on appeals of Board cases;
e. To oversee the daily
operations and responsibilities of the Rhode Island State Labor
Relations Board’s Administrative Office, as well as the planning,
directing, and management of the staff engaged in the investigations
and clerical activities; and to work for and under the direction of
the Rhode Island State Labor Relations Board and its Chairperson as
required;
f. To do any and all things
necessary and proper to effectuate the policies of the Act and these
general Rules and Regulations.
B. Powers and Duties of the
Investigator(s)
1. All Investigators, now or
hereafter, in the employ of the Rhode Island State Labor Relations
Board, are hereby designated by the Board as its Agents:
a. To conduct any inquiry
necessary to the functions of the Board;
b. To investigate concerning
the representation of employees, including the taking of secret
ballots of employees pursuant to the Act;
c. To have access to, and the
right to copy evidence, to administer oaths and affirmations, in
connection with his or her investigations, to examine witnesses, and
to receive evidence, pursuant to the Act; and
d. To serve subpoena(s) or
subpoena duces tecum issued by the Board, by certified mail, in
accordance with §§ 1.10(D) and 1.10(E) of this Part.
C. Powers and Duties of the
Legal Counsel
1. Pursuant to R.I. Gen. Laws
§ 28-7-7, the Board has the authority to select its own legal
counsel:
a. To attend formal hearings;
b. To prepare Board decisions;
c. To accept service, on
behalf of the Board, of court summons, subpoenas, or complaints,
relative to labor board matters;
d. To represent the Board
before the RI Superior Court and the RI Supreme Court, on appeals;
and to prepare briefs, pleadings, etc.;
e. To advise the Board on
legal questions and on the Board’s rights and autonomy under the
Act;
f. To represent the Board
before tribunals, committees, courts, and on legislative matters,
when requested; and
g. To do any and all things
necessary and proper to effectuate the policies of the Act and these
general Rules and Regulations.
D. Not Limiting Board to Make
Special Designation of Agents
1. The foregoing designations
are not to be construed to limit the power of the Board to make such
special designations of Agents, consistent with the law, as may, in
its discretion, be necessary or proper to effectuate the policies of
the Act, nor shall the foregoing designations be construed as
limiting the power of the Board, at any time, to confer upon its
Agent(s), such additional and different duties as it may deem
necessary and proper.
1.25 Construction; Amendments;
Application of General Rules and
Regulations
A. Construction of Rules
1. These general Rules and
Regulations shall be liberally construed and shall not be deemed to
limit the powers conferred upon the Board by the Act.
B. Amendments; Rules and
Regulations
1. Any rule or regulation may
be amended or rescinded by the Board, at any time, but such amendment
or rescinding shall not be effective until the same is filed with the
Office of the Secretary of State pursuant to the Administrative
Procedures Act.
C. Application of General
Rules and Regulations
1. These general Rules and
Regulations, and any amendments thereto, shall govern all proceedings
filed with the Board on or after January 1, 2018, and all other
proceedings or charges then pending, except to the extent that in the
judgment of the Board, their application to such proceedings or
pending charges and petitions would not be feasible or would work an
injustice, in which event these general Rules and Regulations shall
not apply.