N.Y. Comp. Codes R. & Regs. tit. 4 § 201.8

Current through Register Vol. 46, No. 45, November 2, 2024

Section 201.8 - Investigation and election

(a)Initial review and processing.

(1) Investigation. After the filing of a petition, the director shall direct an investigation of all questions concerning representation, including, if applicable, whether the showing of interest requirement, as set forth in sections 201.3 and 201.4 of this Part, has been satisfied; whether more than one employee organization seeks to represent some or all of the employees in the allegedly appropriate unit; and whether there is agreement among the parties as to the appropriateness of the proposed unit.

(2) Pre-hearing conference. The director may direct all parties to attend a pre-hearing conference pursuant to the procedures specified in Part 212 of this Title.

(3) Hearing. The director may direct that a hearing be conducted by an administrative law judge, in which event a notice of hearing specifying the time and place of the hearing shall be served upon the parties. The conduct of the hearing shall be in accordance with the procedures specified in Part 212 of this Title.

(b)Determination of representatives on consent.

Subject to the director's approval, the parties in a representation case may agree on a method by which the director may determine the question of representation.

(c)Action by director.

After completing the investigation or hearing, as the case may be, or upon the consent of the parties, the director shall dispose of the questions concerning representation.

(1) Certification without an election. If the choice available to the employees in a negotiating unit is limited to selecting or rejecting a single employee organization, that choice may be ascertained by the director on the basis of dues deduction authorizations and other evidence instead of by an election. In such case, the employee organization involved will be certified without an election if a majority of the employees within the unit have executed a showing of interest pursuant to section 201.4(b) of this Part which remains current as defined in that section. Any new or additional evidence of majority support shall be accompanied by a declaration of authenticity, as defined in section 201.4(d) of this Part. The determination by the director that the indications of employee support are not sufficient for certification without an election is a ministerial act and will not be reviewed by the board. The director shall inform all parties in writing if the director determines that the indications of employee support are sufficient for certification without an election. The director's determination in this respect is reviewable by the board pursuant to a written objection to certification filed with the board by a party within five working days after its receipt of the director's notification. An objection to certification shall set forth all grounds for the objection with supporting facts and shall be served on all parties to the proceeding. A response to the objection may be filed within five working days after a party's receipt of the objection. A copy of any response shall be served on all other parties.

(2) Direction of an election. An election will be held whenever the choice available to the employees within a negotiating unit includes more than one employee organization, or when the only employee organization seeking certification does not produce indications of employee support sufficient for certification without an election. If the director determines that an election shall be held, such election shall be conducted by an agent of the board at such time and place and upon such terms and conditions as the board, the director or the agent may specify.

(d)Election procedure.

(1) Unless otherwise directed by the board, the director shall conduct and supervise all elections. All elections shall be by secret ballot. Absentee ballots will not be permitted. A motion to intervene in any such election may be filed pursuant to section 212.1 of this Title, as long as notification of such desire is given to the director within what the director deems to be a reasonable time prior to the scheduled date of the election. Whenever two or more employee organizations are included as choices in an election, any participant may, upon prompt request to and approval by the director, have its name removed from the ballot; provided, however, that with respect to a petition for decertification, the employee organization certified or currently recognized may not have its name removed from the ballot without giving due notice in writing to all parties and the director, disclaiming any representation interest among the public employees in the unit. Any party may be represented by observers of its own selection, subject to such limitations as the director may prescribe. Any party or the board's agent may challenge, for good cause, the eligibility of any person to participate in the election. The ballots of such challenged persons shall be impounded. Upon the conclusion of the election, the tally of ballots shall be provided to the parties.

(2) Any party may file with the director an original and four copies of objections to the conduct of the election or conduct affecting the results of the election within five working days after its receipt of a final tally of ballots. Such objections shall contain a clear and concise statement of the facts constituting the bases for the objection, including the names of the individuals involved and the time and place of occurrence of each particular act alleged. The objections shall be in writing and be signed and sworn to before any person authorized to administer oaths. Copies of such objections shall simultaneously be served upon each of the other parties by the party filing them, and proof of service shall be filed with the director. Should the chairperson authorize electronic filing of objections, the filing of a paper original consistent with this section and electronic filing and service of a copy shall constitute compliance with the filing and service requirements herein contained.

(3) An original and four copies of an answer shall be filed with the director within five working days after receipt from the director of notice of processing of the objections, with proof of service on all other parties. The answer shall contain a specific admission, denial or explanation of each allegation of the objection and a clear and concise statement of any other relevant facts. The original shall be signed and sworn to before any person authorized to administer oaths. Should the chairperson authorize electronic filing of objections, the filing of a paper original consistent with this section and electronic filing and service of a copy shall constitute compliance with the filing and service requirements herein contained. If a party fails or refuses to file an answer, such failure or refusal may be deemed to constitute that party's admission of the material facts in the objections and a waiver by that party of a hearing.

(4) If objections are filed to the conduct of the election or conduct affecting the results of the election, or if challenged ballots are sufficient in number to affect the results of the election, the director shall investigate such objections or challenges, or both, and shall take the appropriate action which may include the direction of a hearing in accordance with the provisions of Part 212 of this Title and the issuance of a decision.

(e)Runoff election.

(1) The director may conduct a runoff election without further order of the board when an election in which the ballot provides for not less than three choices (i.e., at least two employee organizations and "neither") results in no choice receiving a majority of the valid ballots cast. Only one runoff shall be held pursuant to this section, unless the board directs otherwise.

(2) The ballot in the runoff election shall provide for a selection among the two or more choices receiving the largest number of votes, the sum of whose votes aggregate at least one more than half of the total votes cast. Upon the conclusion of the runoff election, the provisions of subdivision (d) of this section shall govern insofar as applicable.

N.Y. Comp. Codes R. & Regs. Tit. 4 § 201.8

Amended New York State Register August 2, 2017/Volume XXXIX, Issue 31, eff. 8/2/2017