465 R.I. Code R. 465-RICR-10-00-1.17

Current through November 7, 2024

Section 465-RICR-10-00-1.17 - 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. 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 exclude 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 exclude must accompany the Petition; and the exclusion Petition may require that an election for exclusion 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 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 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.

465 R.I. Code R. 465-RICR-10-00-1.17

Amended effective 2/1/2021