Rules and Regulations

A. The "Board" shall refer to the five-member Phoenix Employment Relations Board, or members thereof authorized to act on behalf of the Board.

B. The "Board's Agent" shall refer to the Board's administrative staff and/or any other individual authorized by the Board to perform certain tasks on behalf of the Board.

C. The "Ordinance" shall refer to Phoenix City Code, Sections 2-209 through 2-221 inclusive and amendments thereto. Terms used in these Rules and Regulations shall have the same meaning as those defined in the ordinance unless their context clearly indicates otherwise.

D. "Hearing Officer" shall mean the person appointed by the Board or the Board's agent to conduct the hearing on a charge filed with the Board.

E. "Petition" shall mean the formal document constituting the request that the Board: (1) order an election to determine whether an employee organization should be certified as the authorized representative of the employees in an appropriate unit; (2) order an election to determine whether an employee organization retains sufficient support as an authorized representative of the employees in the appropriate unit; or (3) amend or clarify a certification pursuant to Rule 2.4 of these Rules and Regulations.

A. Representation Petition Seeking Certification (RC).
A petition for certification as authorized representative under Phoenix City Code, Section 2-216, may be filed by any individual, employee, group of employees or an employee organization alleging that at least thirty percent (30%) of the employees in the appropriate unit desire to be represented by the petitioner for meet and confer purposes. The petition shall be accompanied by evidence of the thirty percent (30%) showing of interest.

B. Decertification Petition (RD).
Any individual, employee, group of employees, or an employee organization may file a decertification petition alleging that at least thirty percent (30%) of the employees in the appropriate unit believe their current authorized representative no longer represents the employees in the bargaining unit. The petition shall be accompanied by evidence of the thirty percent (30%) showing of interest.

C. Employment Petition (RE).
The public employer may file a petition for an election in a unit where no authorized representative has been certified, but a claim for recognition has been made and strike action has been threatened, to determine if employees desire to be represented. The petition shall be accompanied by evidence supporting the claim.
The public employer may also file a petition for an election as a means of questioning the continued majority status of an authorized representative. The petition shall be accompanied by evidence that the public employer has reasonable cause to believe, through the application of objective considerations, that the authorized representative has lost its majority status since its certification.

D. Petition for Unit Clarification (UC).
A petition to clarify the inclusion or exclusion of job classifications of employees in a Board determined bargaining unit may be filed by the public employer, an affected public employee, or the authorized representative. Such petition must be in the absence of a question of representation.

E. Petition for Amendment of Certification (AC).
The public employer or the authorized representative may file a petition to amend a certification to reflect changed circumstances provided such petition does not raise a question concerning representation.

F. Petition to Intervene.
In the event a representation election is to be held, any other individual, employee, group of employees or an employee organization may file a petition alleging that at least ten percent (10%) of the employees in the appropriate unit desire to be represented by the intervening petitioner. The petition shall be accompanied by evidence of the ten percent (10%) showing of interest. If it is determined that there is an adequate showing of interest, the intervening petitioner shall be accorded a place on the ballot. A petition to intervene in an election shall not be entertained after the Board either directs an election or approves an election agreement.

A. Public employees eligible to support a petition shall be full-time and regular part-time employees in the appropriate unit and those included by determination of the Board.

B. Public employees not eligible to support a petition are those excluded by Phoenix City Code, Section 2-210, (4), (9), (14), (15) and (19) and Section 2-212, and those excluded by determination of the Board.

A. During the payroll period immediately preceding the date of the order directing an election or the approval of an election agreement, and remaining in an employee status on the date of an election; and

B. Those employees included by determination of the Board. Employees not eligible to vote in an election are those excluded by Phoenix City Code, Section 2-210(4), (9), (14), (15) and (19) and Section 2-212, and those excluded by determination of the Board.

Challenged Ballots.
Any prospective voter may be challenged for cause by any observer or by the person(s) conducting the election on behalf of the Board, by filing with the Board a notice of challenge within forty-eight (48) hours of the election. Any employee whose name does not appear on the eligibility list shall be challenged by the person(s) conducting the election on behalf of the Board. A challenge of an individual previously determined by the Board to be eligible shall only be sustained upon presentation of new or previously unavailable evidence which would support a determination that the challenged voter is no longer eligible to vote.

A challenged voter shall be permitted to vote, but the ballot of such voter shall be sealed in a perforated envelope, the stub of which bears the name of the voter, the voter's job title, the date of the election, the polling place, the reason for challenge, and the name of the individual who challenged the voter. The stubs shall be detachable. If it is subsequently determined that the challenged ballot should be counted, the stub shall be removed in order to destroy the Identity of the voter.

In all elections, a majority of the valid votes cast shall determine whether or not an employee representative has been designated. Immediately following the counting of the ballots, the Board's agent shall complete and serve on all parties by hand delivery a tally of ballots. The counting of the ballots shall be open to the public so long as there is no interference with the process. No individual other than the one(s) designated by the Board's agent shall be permitted to handle the ballots.

A. The name, address, telephone number and affiliation, if any, of the charging party;

B. The name, address, telephone number and affiliation, if any, of the charged party;

C. A clear and complete statement of the facts supporting the alleged violation(s) of the ordinance, including dates, times, and places of occurrence of each particular act alleged, and the section(s) of the ordinance alleged to have been violated;

D. A statement of the relief sought by the charging party, provided that the statement shall not limit the Board's ability to award relief based on the record; and

E. A statement by the charging party that the charge does not involve disciplinary action taken by the City where such action was the subject of a matter timely filed under the City's Civil Service System.

F. The charge shall also be accompanied by an affidavit of the charging party, presenting facts, if proven true, would constitute a basis upon which the Board could reasonably find that the ordinance has been violated.

Discussions in mediation sessions shall be confidential among the parties, their representatives and the mediator, and shall be inadmissible in any proceeding under the ordinance, any grievance proceeding, in a Civil Service Board proceeding, and cannot otherwise be disclosed unless required by law.

In the event the charged party fails to file a timely response in accordance with these Rules and Regulations, the Board may, in its discretion, deem the allegations contained in the charge to be true and enter an appropriate order.

Notwithstanding Rules 3.4 and 3.5 hereof, any charge alleging the discriminatory discharge of an employee or the causing of the employer to discriminatorily discharge an employee shall be placed on the agenda of the Board's next regularly scheduled meeting held not less than three (3) days after the charge is filed. If the Board determines that the charge has been properly filed in accordance with Rules 3.2 and 3.3 hereof, and further determines that the charge is accompanied by an affidavit of the affected employee, presenting facts which, if proven true, would constitute a basis to reasonably find that the Ordinance has been violated, then the Board shall direct its agent to issue and serve a notice of hearing in accordance with Rule 3.10 hereof. The charged party shall file a response to such a charge within ten (10) days from the date the notice of hearing is issued.

A. Voluntary Withdrawal of Charge.
The charging party may voluntarily withdraw a charge by filing a notice of withdrawal of charge at any time prior to the filing of a response to the charge by one or more of the charged parties. Following the filing of a response to the charge by one or more of the charged parties, the charge may be withdrawn only with the consent of the Board. Requests to withdraw a charge shall be filed with the Board and shall be heard and determined by the Board at its next regularly scheduled meeting.

B. Voluntary Adjustment of Charge.

1. Agreement Between All Parties.
The Board encourages voluntary adjustment of a dispute which gives rise to the filing of a charge with the Board. To that end, parties to a dispute may enter into a voluntary adjustment of a dispute which provides the basis for the entry of a consent order by the Board. Such voluntary adjustment shall be signed by all parties and shall be filed with the Board.

At its next regularly scheduled meeting, the Board shall meet to consider the terms of the proposed adjustment and decide whether to approve the voluntary adjustment. Upon approval of a voluntary adjustment, a consent order shall be issued by the Board and served on the parties.

Immediately after service of the consent order, the parties shall comply with the terms and conditions of the order of the Board. Upon completion of compliance with the terms and conditions, the parties shall so notify the Board, and the proceedings on the charge shall be closed.

If the terms and conditions of the consent order are not being met, the aggrieved party may file with the Board a complaint, together with evidence in support of the alleged noncompliance. If the Board determines that there has been noncompliance with the terms of a voluntary adjustment, it may revoke its consent order and direct its agent to issue a notice of hearing on the original charge.

2. Unilateral Agreement.
The Board may approve a voluntary adjustment of a dispute executed only by the charged party if it determines that said adjustment effectuates the policies of the ordinance. The Board's agent shall serve a copy of the proposed adjustment on all interested parties. Any interested party shall have five (5) days within which to file objections to the entry of a consent order of the Board pursuant to the proposed voluntary adjustment. If the Board determines that the objections are not meritorious, it may enter and serve on the parties a consent order. If the Board determines that the objections are meritorious, it shall not enter a consent order.

3. Effect of Voluntary Adjustment Filed After Issuance of Notice of Hearing.
The Board's agent, upon receipt of a voluntary adjustment after the issuance of a notice of hearing, shall issue and serve upon the parties an order postponing said hearing pending consideration of and ruling on the proposed voluntary adjustment by the Board.

A party, within seven (7) days from the date the notice of hearing is issued, may file a request with the Board for a change of hearing officer. The request shall be accompanied by an affidavit stating facts supporting a party's claim that, on account of the bias, prejudice, or interest of the assigned hearing officer, he cannot obtain a fair and impartial hearing. the Board shall consider and rule on the request at its next regularly held meeting

The hearing officer shall hold a prehearing scheduling conference within twenty (20) days of service of the notice of hearing. The conference may be conducted telephonically. Items to be discussed at the conference may include: Length of the hearing, specification of claims, exchange of documents, stipulation of uncontested facts, number of witnesses expected to be used, advance filing of exhibits, and any other matters the parties may wish to discuss.

Not later than ten (10) days prior to the date of the hearing, the parties shall file with the Board, and shall provide a copy thereof to the hearing officer, a jointly prepared statement containing: (1) the name of each party and, if represented, the name, address and telephone number of such representative; (2) the names and addresses of all witnesses each party intends to call and a concise summary of the anticipated testimony of such witnesses; (3) a list of exhibits each party intends to introduce, along with a statement that all listed exhibits have been made available to the other party; and (4) a statement of all facts to which the parties have stipulated as being true.

Any person served with a subpoena, whether ad testificandum or duces tecum, who does not intend to comply with the subpoena, shall, prior to the time fixed in the subpoena for appearance by the witness, petition the Board or hearing officer, as the case may be, in writing, to quash the subpoena. A petition to quash a subpoena shall be served on the party at whose request the subpoena was issued. A petition to quash a subpoena, a response filed thereto, and the ruling thereon shall not become a part of the official record except upon request of the party aggrieved by the ruling.

A subpoena may be served by any person who is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person. Witness fees and mileage shall be paid by the party at whose request the witness is subpoenaed. The amount paid to a subpoenaed witness shall be the same amount paid to a witness subpoenaed in proceedings before the Superior Court of the State of Arizona. Proof of service of a subpoena shall be made by filing with the Board's agent a statement of the date and manner of service and of the name(s) of the person(s) served, certified by the person who made the service, along with the original of the issued subpoena.

If a person fails to comply with a subpoena, the Board may seek compliance by initiating proceedings authorized by Section 12-2212 of the Arizona Revised Statutes.

Any party shall have the right to appear at any hearing in person, by counsel, or by other representative. All parties, the Board, or its hearing officer shall have the power to call and examine witnesses and to introduce documentary and other evidence; provided, however, that a party filing a charge or a party objecting to the conduct of an election shall have the burden of establishing a prima facie case upon which relief may be granted by the Board. A party shall, upon offering an exhibit into evidence at a hearing, simultaneously furnish copies of such exhibit to the other parties to the proceeding unless such other parties have already received a copy of the exhibit, or unless excused by the Board or its hearing officer.

Witnesses shall be examined under oath. Stipulations of fact may be introduced in evidence with respect to any issue. When the Board is conducting a hearing in which the Board is receiving the testimony of witnesses, the Chairman shall rule on all objections to the introduction of evidence and that ruling shall be final and binding on the other members of the Board.

The refusal of a witness at any hearing to answer any question which has been ruled proper shall be noted in the record and such refusal may be considered in weighing the testimony of such witness, or may be grounds, if requested by any party, for striking all the testimony of that particular witness. Closing arguments, if any, shall be presented at the conclusion of the hearing. Any legal authority which a party wants the Board or hearing officer, as the case may be, to consider shall be put in the form of a legal memorandum and shall be filed prior to or at the close of the hearing, or at such other time as ordered by the Board or hearing officer.

On application of a party and for use as evidence, the hearing officer, if the matter has been assigned to a hearing officer, or any Board member, if the matter has been retained by the Board, may permit a deposition to be taken of a witness who cannot be subpoenaed or is unable to attend the hearing. Prehearing depositions and subpoenae for the production of documents may be ordered by the hearing officer, if the matter has been assigned to a hearing officer, or any Board member, if the matter has been retained by the Board, provided that the party seeking such discovery demonstrates that the party has reasonable need of the deposition testimony or materials being sought.

After the last date on which any exceptions, response to exceptions and/or cross-exceptions may be filed, the Board shall, at its next regularly scheduled meeting, hear oral argument of the parties, consider the entire record in the matter, together with the report and recommendation of the hearing officer, any exceptions, cross-exceptions and responses thereto, and shall adopt, reject or modify the report and recommendation, or take any other action it deems appropriate, including remanding the matter to the hearing officer or any other hearing officer for further consideration.

When a Motion for rehearing or reconsideration is filed, the Board may allow oral argument at the time said Motion is considered. Thereafter, the Board shall, in writing, affirm, modify, or set aside its previous decision and order. Failure to file a Motion for rehearing or reconsideration shall not be deemed to be failure of a party to exhaust its administrative remedies.

A. Agreement of Parties.
The employer and authorized employee representative, during the course of meeting and conferring over the terms of a memorandum of understanding, may agree upon procedures to be followed in the event they determine that an impasse exists; provided however, any such procedures must result in an agreement on a memorandum of understanding by March 1.

B. Determination of Impasse.

1. If the parties have adopted informal resolution procedures, but such procedures do not result in an agreement on a memorandum of understanding by March 1, then a written notice, signed by the employer and the authorized employee organization, shall be filed with the Board no later than March 1, stating that an impasse still exists.

2. Upon receiving a notice that an impasse still exists, the Board shall meet and shall either:

a. Order that the matter(s) in dispute be submitted to formal mediation, in which case Rule 6.3(C)(4), Rule 6.3(C)(5) and Rule 6.3(E) of these Rules and Regulations shall apply; or

b. Order that the matter(s) in dispute be submitted to the Phoenix City Council or to a fact finder; provided however, that the matter(s) in dispute may not be submitted directly to the Phoenix City Council unless both parties so agree.

C. Submission to Phoenix City Council.
If both parties execute and submit to the Board a statement that the matter(s) in dispute may be submitted directly to the Phoenix City Council, and the Board so orders that the matter(s) in dispute be submitted directly to the Phoenix City Council, then each party shall, within ten (10) days of such order, file with the Phoenix City Clerk a position paper on the issues in dispute and shall certify that a copy of the position paper has been served on the other party.

D. Submission to Fact Finder.
If both parties have not agreed to submit the matter(s) in dispute directly to the Phoenix City Council and the Board orders that the matter(s) in dispute be submitted to a fact finder, then, simultaneously with such an order, the Board's agent shall furnish the parties with a list of not less than five (5) qualified fact finders. Thereafter, the procedures set forth in Rule 6.3(G) shall apply.

A. Applicability of Formal Resolution Procedures.
If the parties, during the course of meeting and conferring over the terms of a memorandum of understanding, have not agreed upon procedures to be followed in the event they determine that an impasse exists, then the procedures set forth in this section shall apply.

B. Notice of Dispute.
If, after meeting and conferring for a reasonable period of time a dispute exists between the employer and the authorized employee organization or if a memorandum of understanding has not been reached prior to March 1, a written notice, signed by the employer and the authorized employee organization, shall be filed with the Board no later than March 1, stating that a dispute still exists and containing a clear and concise statement of the issue(s) in dispute.

C. Determination of Impasse.

1. If, after meeting and conferring for a reasonable period of time a dispute exists between the employer and the authorized employee organization or if a memorandum of understanding has not been reached prior to March 1, then, in addition to the notice required under Rule 6.3(B) of these Rules and Regulations, either party, or both parties, may request that the Board determine that an impasse exists and that the matter be submitted to formal mediation. The request shall contain the following:

a. Name, address and telephone number of the authorized employee organization and the name and telephone number of its principal representative to be contacted;

b. Name and telephone number of the principal employer representative to be contacted;

c. Identification of the bargaining unit;

d. Dates and duration of negotiation sessions held;

e. A clear and concise statement of the issue(s) in dispute;

f. A statement noting whether the request is joint or unilateral; and

g. Certification that a copy of the request was served on the other party.

2. Upon receiving a request that it be determined that an impasse exists, the Board, within a reasonable time, shall meet to hear arguments of the parties and make a determination as to the existence of an impasse.

3. If the Board determines that an impasse does not exist, it shall order the parties to continue meeting and conferring.

4. If the Board determines that an impasse does exist, it shall cause its agent to immediately advise the Federal Mediation and Conciliation Service and request that a mediator be assigned to the case. The Board shall further cause its agent to simultaneously furnish the parties with a list of not less than five (5) qualified fact finders.

5. In the event the Federal Mediation and Conciliation Service notifies the Board that it is unable to assist the parties, then the American Arbitration Association shall be requested to appoint a mediator.

D. Joint Request for Formal Mediation.
If, in lieu of a request that the Board determine that an impasse exists, both the employer and the authorized employee organization sign and submit to the Board a request for formal mediation, the Board's agent shall immediately advise the Federal Mediation and Conciliation Service and request that a mediator be assigned to the case. The Board's agent shall simultaneously furnish the parties with a list of not less than five (5) qualified fact finders.
In the event the Federal Mediation and Conciliation Service notifies the Board that it is unable to assist the parties, then the American Arbitration Association shall be requested to appoint a mediator.

E. Mediation Process.
The mediator shall assist the parties in resolving the matter(s) in dispute. However, if the matter(s) in dispute are not resolved within ten (10) days of the first day of availability of the mediator, the mediator shall immediately advise the Board that a dispute still exists. The mediator has the option, prior to the expiration of the aforementioned ten-day period, to advise the Board that a dispute still exists if it is determined by the mediator that further mediation efforts will not likely resolve the dispute.
Upon notification from the mediator that a dispute still exists, the Board's agent shall have the matter(s) in dispute submitted directly to the Phoenix City Council or to a fact finder; provided however, that the matter(s) in dispute may not be submitted directly to the Phoenix City Council unless both parties so agree.

F. Submission to Phoenix City Council.
If both parties execute and submit to the Board a statement that the matter(s) in dispute may be submitted directly to the Phoenix City Council, then the Board's agent, upon receipt of the statement, shall submit the matter(s) in dispute to the Phoenix City Council. Each party shall file with the Phoenix City Clerk within ten (10) days from notification by the Board's agent that the matter(s) in dispute have been submitted to the Phoenix City Council, a position paper on the issues in dispute and shall certify that a copy of the position paper has been served on the other party.

G. Submission to Fact Finder.

1. If both parties have not agreed to submit the matter(s) in dispute directly to the Phoenix City Council, then, within forty-eight (48) hours from either the issuance of an order under Rule 6.2(B)(2) of these Rules and Regulations or the notification from the mediator under Rule 6.3(E) of these Rules and Regulations, the parties shall meet with the Board's agent to select a fact finder from the list provided by alternately striking names from those then available until one name remains. If the parties cannot agree as to who shall strike the first name, the order of selection shall be determined by the toss of a coin. If, for any reason, the parties have not timely selected a fact finder, the Board shall immediately meet and appoint a fact finder.

2. The fact finder shall complete fact-finding within five (5) business days of notification by the Board of the selection or appointment of the fact finder. Any hearings convened by the fact finder shall be private unless all parties agree to have them public. The fact finder may request of the Board or any authorized member thereof the issuance of subpoenas to compel the attendance of witnesses and production of documents relating to any matter under inquiry, investigation or hearing. The fact finder may administer oaths. Within three (3) business days of the completion of fact-finding, the fact finder shall file with the Board, and deliver to both parties, a report and advisory recommendation. The report and advisory recommendation shall not be made available to the public except as hereinafter provided.

3. If the parties have not reached an agreement within five (5) business days from receipt of the fact finder's report and advisory recommendation, the Board's agent shall transmit a copy of the report and recommendation to the Mayor and Phoenix City Council, shall file a copy with the Phoenix City Clerk and shall make it available to the public.

4. If either party fails to accept the fact finder's advisory recommendations, in whole or in part, then, within five (5) business days after the report and recommendation has been made public, the City Manager, or his designated representative, and the employee organization shall each submit to the Phoenix City Council written recommendations for settling the dispute. Thereafter, the procedures contained in Phoenix City Code, Section 2-219(J) shall apply.