N.Y. Comp. Codes R. & Regs. tit. 4 § 201.9

Current through Register Vol. 46, No. 51, December 18, 2024

Section 201.9 - Employer applications for designation of persons as managerial or confidential

(a)Application; parties.

(1) An application by a public employer seeking a designation by the board of certain persons as managerial or confidential as defined in section 201.7(a) of the act shall be on a form prescribed by the board for that purpose. Unless the board has mandated or permitted electronic filing with respect to such applications, an original and four copies of the application shall be filed with the director. Prior to the issuance of a decision by the administrative law judge pursuant to section 201.10 of this Part, an application may be withdrawn only with the consent of the director. After the issuance of a decision by the administrative law judge, the application may be withdrawn only with the consent of the board. Whenever the director or the board, as the case may be, approves withdrawal of any application, the case shall be closed. Should the chairperson authorize electronic filing of applications, 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.

(2) The parties are the applicant and the persons who are within any of the job titles which the public employer is seeking to have designated as managerial or confidential; provided, however, that if any such persons are represented by a recognized or certified employee organization, such employee organization is a party in their stead.

(b)Time for filing of applications.

An application may be filed at any time; provided, however, that with respect to any persons who are in a unit for which an employee organization has been recognized or certified, only one application which has been processed to completion may be filed during a period of unchallenged representation status.

(c)Notice of filing of application.

Simultaneously with the filing of an application under this section, notice thereof, including the date when such application was filed with the director, shall be served by the public employer upon each of the persons who are within any of the job titles which the public employer is seeking to have designated as managerial or confidential, and upon any employee organization which has been recognized or certified to represent any of them.

(d)Contents of application.

An application shall contain the following:

(1) the name and address of the public employer filing the application;

(2) the name and address of the attorney or representative of the public employer;

(3) each of the job titles that the public employer seeks to have designated as managerial or confidential, and the number of persons in each job title;

(4) a statement as to whether any of these job titles are within a unit presently represented by a recognized or certified employee organization or whether an employee organization is presently seeking to represent the persons occupying any of these job titles and the name of the employee organization;

(5) if there is any contract covering the persons within the job titles which it claims are managerial or confidential, the public employer shall specify the duration, the parties, and the unit involved in the contract;

(6) a statement as to whether the employer has ever filed a previous application seeking the designation of any of these job titles as managerial or confidential;

(7) a statement as to whether copies of the relevant job descriptions are attached;

(8) a statement that notice of the filing of an application has been mailed to each of the persons who are within any of the job titles which it is alleged are managerial or confidential, and to any employee organization which has been recognized or certified to represent any of them; and

(9) a clear and concise factual statement in support of the application, which shall identify job duties performed which allegedly form the basis for the designation sought.

(e)Response.

The parties, as defined by paragraph (a)(2) of this section, except the applicant, shall file with the director within 10 working days after receipt of a copy of the application from the director, an original and 4 copies of a response to the application containing a signed declaration of its truthfulness by an identified representative of the responding party, with proof of service of a copy thereof upon all other parties. Should the chairperson authorize electronic filing of applications, 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. The response shall include a specific admission, denial or explanation of each allegation made by the applicant and a clear and concise statement of any other facts which may bear on the application. If a responding party objects to the processing of an application on the ground that it was filed earlier than the time provided in subdivision (b) of this section, the response shall include a specific, detailed statement of why the application is untimely. Such objection to the processing of the application, if not duly raised, may be deemed waived.

(f)Withdrawal of applications.

Before the issuance of a decision by the administrative law judge pursuant to section 201.10 of this Part, an application may be withdrawn only with the consent of the director. After the issuance of a decision by the administrative law judge, the application may be withdrawn only with the consent of the board. Whenever the director or the board, as the case may be, approves withdrawal of any application, the case shall be closed.

(g)Investigation.

After the filing of an application, the director shall direct an investigation of all questions raised by the application.

(h)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.

(i)Hearing.

A hearing may be conducted by an administrative law judge, in which event a notice of hearing specifying the time and place for the hearing shall be served on the parties. The conduct of the hearing shall be in accordance with the procedures specified in Part 212 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 4 § 201.9

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