465 R.I. Code R. 465-RICR-10-00-1.16

Current through November 7, 2024

Section 465-RICR-10-00-1.16 - 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. Type of Petition filed, to wit: clarification, accretion or exclusion;

c. The name, address, representative, telephone number, and e-mail of the Employer;

d. The name and address of the certified bargaining agent, Board's certification number, disposition and date of Board certification;

Attached to the Petition for Unit Clarification and/or Accretion/ 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.

e. Number of employees in the existing unit, number of employees to be accreted into/excluded from 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 of at least fifty-one percent (51%) 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;

f. 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) and the date(s) each position was created; and

g. A list of any other employee organization(s) that may claim to represent any of the employees affected by the Petition.

2. 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 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)(11) 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.

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.

465 R.I. Code R. 465-RICR-10-00-1.16

Amended effective 2/1/2021