Rules §§ 205.4(b), 205.5(b), 205.14(b) and 205.16(b) have been modified so that proposed contract language must be attached only if such language was presented during negotiations.

Part 214, “Misconduct Before the Agency,” has been modified to remove the inadvertent reference to “disbarment” in Rule § 214.2.

A revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement is not required because changes made to the last published rules do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2022, which is no later than the 5th year after the year in which this rule is being adopted.

Electronic Filing and Service:

A comment suggested that the proposed Rules allowing the Public Employment Relations Board (hereinafter “PERB”) to adopt electronic filing and service are premature because e-filing is still “an experiment.”

No changes to the proposed Rules were made in response to this comment. The authorization in proposed Rule § 200.12(b) and other Rules allowing electronic filing and service are flexible enough to allow PERB to begin a voluntary pilot program that will be limited to proceedings before the board (and thus will not involve filing of potentially voluminous exhibits and other evidentiary matters which are received by administrative law judges). Upon successful completion of a pilot program, e-filing will be gradually expanded. The proposed Rules are flexible enough to allow PERB to develop a functional and accessible e-filing methodology and protocol that will meet the needs of the agency and the parties.

Another comment raised concern that continuing to require the submission of a single paper copy of a filing seemed to defeat the purpose of electronic filing and suggested that, if there is a need for a paper copy in a given matter, PERB could change its proposed Rules to permit it to require the filing of a paper copy upon notice to the party or parties, after electronic filing, rather than requiring it in every case.

No changes to the proposed Rules were made in response to this comment. Requiring one paper copy is designed to preserve the verification requirement, ensure the maintenance of a paper file in case of technical failures in the digital library, and remind all signatories that pleadings (especially sworn pleadings) and papers are legally significant and binding documents.

Another comment questioned why the proposed Rules require that electronic filings be in a searchable format.

No changes to the proposed Rules were made in response to this comment. The proposed Rules are consistent with the requirements of certain courts within the New York State Unified Court System, which require that documents be filed electronically in searchable pdf format. The proposed Rules recognizes that not all parties may have the ability to submit papers in searchable format and provides an exception to accommodate such parties.

Expedited Determinations:

A comment suggested that the proposed Rules allowing for expedited determination of disputes involving primarily a disagreement as to the scope of negotiations should be deleted because the process is rarely used and results in even more delay in case disposition than does normal case processing.

No changes to the proposed Rules were made in response to this comment. The existing Rules concerning expedited determination of scope of negotiations disputes continue to function as intended. The board has indicated that it will use this power sparingly “to encourage the parties to resolve their disputes through collective negotiations.” (Bd of the City Sch Dist, City of NY, 46 PERB ¶ 3012 (2013)).

PERB does not agree that bypassing administrative law judge review will add time to the process of determining such matters, and, in any event, believes that these rules provide an appropriate vehicle for the determination of arbitrability and scope matters, especially when interest arbitration or fact-finding are at issue.

Injunctive Relief:

A comment suggested that changing the time frame to respond to an application for injunctive relief from five calendar days to five working days could alleviate attempts to potentially disadvantage the responding party by, for example, delivering an application late on a Friday to truncate the usefulness of the five calendar days.

No changes to the proposed Rules were made in response to this comment. Section 209-a.4(b) of the Public Employees' Fair Employment Act (hereinafter “the Act”) requires PERB to petition in Albany County Supreme Court for an injunction or to deny an application for injunctive relief within ten calendar days of PERB’s receipt of the application. Adopting the commenter’s proposal would result in PERB having insufficient time to give due consideration to a response to an application for injunctive relief, particularly in the scenario outlined by the commenter. That is, if an application were received by PERB on a Friday, and the response was received by the close of business the following Friday (five working days later), PERB would have no working days to consider the response before it was required to either apply for an injunction in Supreme Court or deny the application on Monday (ten calendar days from filing of the application).

Public Arbitration Panels:

With respect to proposed Rule § 205.4(a), which amended the filing requirements for a petition requesting the director of conciliation to refer an impasse to a public arbitration panel, a comment suggested that denying processing of a petition “absent completion of the mediation process” is contrary to the terms of the Act, which requires only a fifteen-day hold period running from the appointment of a mediator, and raises additional questions about who would make the determination as to whether mediation has been completed, what the indicia of completion would be, and whether a party can challenge a determination that mediation has been completed. These additional questions generate litigation by employers seeking to deny or delay the arbitration process.

After consideration, PERB agrees that this proposed amended Rule was not consistent with this provision of the Act and has decided to adopt the commenter’s suggestion that proposed Rule § 205.4(a) not include the phrase “provided, however, that no such petition will be processed absent completion of the mediation process.” Section 209.4(b) of the Act provides that, “if the mediator is unable to effect settlement of the controversy within fifteen days after his appointment, either party may petition the board to refer the dispute to a public arbitration panel.” The other proposed revisions in Rule 205.4(a) remain unchanged. An identical requirement was eliminated from § 205.14 under the Rules related to section 209.5 of the Act.

Compulsory Interest Arbitration:

With respect to provisions in proposed Rules § 205.4(b), § 205.5(b), § 205.16(b) which required that petitions requesting appointment of a public arbitration panel and responses to such petitions must contain proposed contract language, a comment raised concern that parties often do not have contract language developed during negotiations and recommended that the submission of language should remain optional or that the proposed Rules should require submission of contract language only if such language was presented during negotiations.

PERB believes that the commenter has raised a valid and reasonable concern. After consideration, PERB has decided to adopt the suggestion that proposed contract language must be attached only if such language was presented during negotiations. Rules 205.4(b), 205.5(b), and 205.16(b) have been modified accordingly. An identical provision in Rule § 205.14(b) has also been modified.

Expenses and Fees:

A comment suggested that proposed Rule § 207.15(d) is unnecessary and could be used as a justification by PERB to inject itself into a billing dispute between the chair of a public arbitration panel and a party.

No changes to the proposed Rules were made in response to this comment. The proposed Rule states only that “[s]ince the designated arbitrator is not an agent or representative of the board, all matters involving arbitrator payments and compensation are to be resolved between the parties and the arbitrator directly.” This language is intended to prevent parties from endeavoring to draw PERB into billing disputes, as has occurred in the past, and provides no basis for PERB’s assertion of any role in such a dispute.

Misconduct before the Agency:

A comment suggested there should be some identification and specification of what is sanctionable misconduct in proposed Rules Part 214.

No changes to the proposed Rules were made in response to this comment. The proposed rule has been modified, however, to remove an inadvertent reference to “disbarment” in Rule § 214.2. The proposed Rule merely extends the long-standing rule applicable to all proceedings before PERB and/or its designees, codifying PERB’s established practice of interpreting the rule as “prohibit[ing] misconduct at all stages of case processing, including conferences.” Matter of Munafo, 31 PERB ¶ 3012 (1998); see also Matter of Halley, 30 PERB ¶ 3023 (1997). The proposed Rules also provide due process lacking in the prior articulation of the rule by creating a process by which any sanction imposed by an administrative law judge may be appealed to the board.

Historically, the board has construed this section as providing a basic enforcement mechanism of enforcing the well-established notion that “[t]he privilege of representing individuals or entities before this agency carries with it a certain set of responsibilities, not the least one of which is a simple duty to observe ordinary principles of civility, courtesy and decorum during appearances, even when frustrated or upset.” Munafo, supra. Likewise, in Halley, the board found misconduct to include “nonresponse where response is required, selective disclosure of facts with an intent to mislead and cause delay, or the persistent raising of issues and arguments lacking any good faith basis in law or fact.” These well-established rules, universally applicable to advocates before PERB, have been enunciated and applied since 1998 and 1997 respectively, and are not abstruse or vague.

PERB also received comments pointing out a number of typographical errors. The proposed Rules have been amended to correct these errors.