New York Codes, Rules and Regulations
Title 12 - DEPARTMENT OF LABOR
Chapter IV - Resolution of Labor Disputes
Subchapter A - Labor Relations Board
Part 263 - Rules Implementing the Farm Laborers' Fair Labor Practices Act ("FLFLPA")
PETITION FOR CERTIFICATION
Section 263.24 - Statement of position and offer of proof in certification cases

(a) Filing and service of statement of position. All parties named in the petition, except for the petitioner, shall file with the assigned hearing officer within 8 calendar days after receipt of a copy of the petition a statement of position. The statement of position shall be served on all parties named in the petition. The statement of position shall be served electronically (see section 263.15 of this Part), or by any other means permitted by the hearing officer. The statement of position must be received by the hearing officer by noon on the 8th calendar day. The hearing officer may postpone the time for filing and serving the statement of position for up to 2 business days upon timely request of a party only upon a showing of special circumstances. The hearing officer may postpone the time for filing and serving the statement of position for more than 2 business days upon timely request of a party only upon a showing of extraordinary circumstances. The hearing officer may permit the employer to amend its statement of position in a timely manner for good cause.

(b) Content of statement of position. The employer's statement of position shall state whether the employer disputes that the board has jurisdiction over it, and if so, the basis for the dispute, and whether the employer agrees that the proposed unit is appropriate. If the employer does not agree that the proposed unit is appropriate, the statement of position shall state the basis for the employer's contention that the proposed unit is inappropriate, and state the classifications, locations, or other employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit; identify any individuals whose eligibility to vote the employer intends to contest in the proceedings and the basis of each such contention; raise any election bar; and describe all other issues the employer intends to raise in the proceedings. The statement of position shall include a specific admission, denial, or explanation of each allegation made by the petitioner. Any allegation in the petition which is not specifically denied shall be deemed to be true. The employer may not raise any issue in the proceedings which has not been raised in a timely statement of position. Failure to timely provide the required employee lists shall preclude an employer from contesting the appropriateness of the proposed unit.

(c) Offers of proof. The statement of position shall include an offer of proof setting forth the evidence that the party would present regarding any disputed issues that go to whether the petitioner has demonstrated majority support for the proposed unit. The offer of proof shall identify each witness the party would call and summarize each witness's testimony. If the hearing officer determines that the evidence described in an offer of proof, if proven, is insufficient to sustain the proponent's position, the evidence shall not be received.

(d) Representative for service. The statement of position shall also state the name, title, address, telephone number, facsimile number, and email address of the individual who will serve as the representative of the employer and accept service of all papers for purposes of the representation proceeding.

(e) Information on individuals in proposed unit. The statement of position shall include a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing. If the employer contends that the proposed unit is inappropriate, the employer shall separately list the full names, work locations, shifts, and job classifications of all individuals that the employer contends must be added to the proposed unit to make it an appropriate unit. The employer shall also indicate those individuals, if any, whom it believes must be excluded from the proposed unit to make it an appropriate unit. The list(s) of names shall be alphabetized (overall or by department) and be in an electronic format, either Microsoft Word, Adobe Acrobat pdf, or Excel, unless the employer certifies that it does not possess the capacity to produce the list in the required form.

(f) Declaration of truthfulness. The statement of position shall contain 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.