N.Y. Civil Service Law § 205: Public employment relations board

§ 205. Public employment relations board. 1. There is hereby created

in the department a board, to be known as the public employment

relations board, which shall consist of three members appointed by the

governor, by and with the advice and consent of the senate from persons

representative of the public. Not more than two members of the board

shall be members of the same political party. Each member shall be

appointed for a term of six years, except that of the members first

appointed, one shall be appointed for a term to expire on May

thirty-first, nineteen hundred sixty-nine, one for a term to expire on

May thirty-first, nineteen hundred seventy-one, and one for a term to

expire on May thirty-first, nineteen hundred seventy-three. The governor

shall designate one member who shall serve as chairperson of the board

until the expiration of his or her term. A member appointed to fill a

vacancy shall be appointed for the unexpired term of the member whom he

or she is to succeed.

2. Members of the board shall hold no other public office or public

employment in the state. The chairperson shall give his or her whole

time to his or her duties.

3. Members of the board other than the chairperson shall, when

performing the work of the board, be compensated at the rate of two

hundred fifty dollars per day, together with an allowance for actual and

necessary expenses incurred in the discharge of their duties hereunder.

The chairperson shall receive an annual salary to be fixed within the

amount available therefor by appropriation, in addition to an allowance

for expenses actually and necessarily incurred by him or her in the

performance of his or her duties.

4. (a) The chairperson of the board may appoint an executive director

and such other persons, including but not limited to attorneys,

mediators, members of fact-finding boards and representatives of

employee organizations and public employers to serve as technical

advisers to such fact-finding boards, as it may from time to time deem

necessary for the performance of its functions, prescribe their duties,

fix their compensation and provide for reimbursement of their expenses

within the amounts made available therefor by appropriation. Attorneys

appointed under this section may, at the direction of the chairperson of

the board, appear for and represent the board in any case in court.

(b) No member of the board or its appointees pursuant to this

subdivision, including without limitation any mediator or fact-finder

employed or retained by the board, shall, except as required by this

article, be compelled to nor shall he or she voluntarily disclose to any

administrative or judicial tribunal or at the legislative hearing, held

pursuant to subparagraph (iii) of paragraph (e) of subdivision three of

section two hundred nine of this article, any information relating to

the resolution of a particular dispute in the course of collective

negotiations acquired in the course of his or her official activities

under this article, nor shall any reports, minutes, written

communications, or other documents pertaining to such information and

acquired in the course of his or her official activities under this

article be subject to subpoena or voluntarily disclosed; except that

where the information so required indicates that the person appearing or

who has appeared before the board has been the victim of, or otherwise

involved in, a crime, other than a criminal contempt in a case involving

or growing out of a violation of this article, said members of the board

and its appointees may be required to testify fully in relation thereto

upon any examination, trial, or other proceeding in which the commission

of such crime is the subject of inquiry.

5. In addition to the powers and functions provided in other sections

of this article, the board shall have the following powers and

functions:

(a) To establish procedures consistent with the provisions of section

two hundred seven of this article and after consultation with interested

parties, to resolve disputes concerning the representation status of

employee organizations.

(b) To resolve, pursuant to such procedures, disputes concerning the

representation status of employee organizations of employees of the

state and state public authorities upon request of any employee

organization, state department or agency or state public authority

involved.

(c) To resolve, pursuant to such procedures but only in the absence of

applicable procedures established pursuant to section two hundred six of

this article, disputes concerning the representation status of other

employee organizations, upon request of any employee organization or

other government or public employer involved.

(d) To establish procedures for the prevention of improper employer

and employee organization practices as provided in section two hundred

nine-a of this article, and to issue a decision and order directing an

offending party to cease and desist from any improper practice, and to

take such affirmative action as will effectuate the policies of this

article (but not to assess exemplary damages), including but not limited

to the reinstatement of employees with or without back pay; provided,

however, that except as appropriate to effectuate the policies of

subdivision three of section two hundred nine-a of this article, the

board shall not have authority to enforce an agreement between an

employer and an employee organization and shall not exercise

jurisdiction over an alleged violation of such an agreement that would

not otherwise constitute an improper employer or employee organization

practice; provided further that, without limiting in any way the board's

general power to take affirmative action, including the provision to

make whole relief, the board's power to address employer violations of

cease and desist orders issued pursuant to this section in connection

with charges of unfair labor practices under paragraph (d) of

subdivision one of section two hundred nine-a of this article shall

include, to the extent the board deems appropriate, the authority to

make employees whole for the loss of pay and/or benefits resulting from

the violation of the cease and desist order and the underlying unfair

labor practice by providing that any agreement between the parties be

given retroactive effect to the date on which the unfair labor practice

was found to have commenced and by providing for appropriate interest

from that date, calculated using the short-term federal rate for the

underpayment of taxes as set out in 26 U.S.C. 6621.14, except that the

make whole relief provided for under this paragraph shall not be ordered

when and to the extent that the employee organization is also found to

have refused to bargain in good faith. When the board has determined

that a duly recognized or certified employee organization representing

public employees has breached its duty of fair representation in the

processing or failure to process a claim alleging that a public employer

has breached its agreement with such employee organization, the board

may direct the employee organization and the public employer to process

the contract claim in accordance with the parties' grievance procedure.

The board may, in its discretion, retain jurisdiction to apportion

between such employee organization and public employer any damages

assessed as a result of such grievance procedure. The pendency of

proceedings under this paragraph shall not be used as the basis to delay

or interfere with determination of representation status pursuant to

section two hundred seven of this article or with collective

negotiations. The board shall exercise exclusive nondelegable

jurisdiction of the powers granted to it by this paragraph, in which

connection, no finding of fact or law contained in a report and

recommendation of a hearing officer appointed pursuant to subdivision

two of section seventy-five of this chapter shall preclude the

resolution of any issue of fact or law in a subsequent proceeding held

under procedures established by the board under this paragraph;

provided, however, that this sentence shall not apply to the city of New

York. The board of collective bargaining established by section eleven

hundred seventy-one of the New York city charter shall establish

procedures for the prevention of improper employer and employee

organization practices as provided in section 12-306 of the

administrative code of the city of New York, provided, however, that a

party aggrieved by a final order issued by the board of collective

bargaining in an improper practice proceeding may, within ten days after

service of the final order, petition the board for review thereof.

Within twenty days thereafter, the board, in its discretion, may assert

jurisdiction to review such final order. The failure or refusal of the

board to assert jurisdiction shall not be subject to judicial review.

Upon the refusal of the board to assert jurisdiction, an aggrieved party

shall have the right to seek review of the final order of the board of

collective bargaining. Such proceeding to review shall be brought within

thirty days of the board's refusal and shall otherwise conform to the

requirements of article seventy-eight of the civil practice law and

rules. If the board shall choose to review, it may affirm, or reverse in

whole or in part, or modify the final order, or remand the matter for

further proceedings, or make such other order as it may deem

appropriate, provided, however, that findings by the board of collective

bargaining regarding evidentiary matters and issues of credibility

regarding testimony of witnesses shall be final and not subject to board

review.

(e) To make studies and analyses of, and act as a clearing house of

information relating to, conditions of employment of public employees

throughout the state.

(f) To request from any government, and such governments are

authorized to provide, such assistance, services and data as will enable

the board properly to carry out its functions and powers.

(g) To conduct studies of problems involved in representation and

negotiation, including, but not limited to (i) the problems of unit

determination, (ii) those subjects which are open to negotiation in

whole or in part, (iii) those subjects which require administrative or

legislative approval of modifications agreed upon by the parties, and

(iv) those subjects which are for determination solely by the

appropriate legislative body, and make recommendations from time to time

for legislation based upon the results of such studies.

(h) To make available to employee organizations, governments,

mediators, fact-finding boards and joint study committees established by

governments and employee organizations statistical data relating to

wages, benefits and employment practices in public and private

employment applicable to various localities and occupations to assist

them to resolve complex issues in negotiations.

(i) to establish, after consulting representatives of employee

organizations and administrators of public services, panels of qualified

persons broadly representative of the public to be available to serve as

mediators, arbitrators or members of fact-finding boards.

(j) To hold such hearings and make such inquiries as it deems

necessary for it properly to carry out its functions and powers. At any

conference, hearing, investigation, inquiry or other proceeding before

the board or any agent thereof, a party shall have the right to appear

in person, by counsel or by other authorized representative. Nothing

contained herein shall restrict the right of the board to exclude,

suspend or disbar any representative for misconduct in accordance with

the board's rules.

(k) For the purpose of such hearings and inquiries, to administer

oaths and affirmations, examine witnesses and documents, take testimony

and receive evidence, compel the attendance of witnesses and the

production of documents by the issuance of subpoenas, and delegate such

powers to any member of the board or any person appointed by the board

for the performance of its functions. Such subpoenas shall be regulated

and enforced under the civil practice law and rules.

(l) To make, amend and rescind, from time to time, such rules and

regulations, including but not limited to those governing its internal

organization and conduct of its affairs, and to exercise such other

powers, as may be appropriate to effectuate the purposes and provisions

of this article.

(m) To administer the provisions of article twenty of the labor law to

the extent provided for in such article, and to serve all the functions

of the board as defined in section seven hundred one of the labor law,

including to make, amend and rescind such rules and regulations as may

be necessary to carry out the provisions of such article.

6. Notwithstanding any other provisions of law, neither the president

of the civil service commission nor the civil service commission or any

other officer, employer, board or agency of the department of civil

service shall supervise, direct or control the board in the performance

of any of its functions or the exercise of any of its powers under this

article; provided, however, that nothing herein shall be construed to

exempt employees of the board from the provisions of the civil service

law.