N.Y. Civil Service Law § 209-a: Improper employer practices; improper employee organization practices; application

§ 209-a. Improper employer practices; improper employee organization

practices; application. 1. Improper employer practices. It shall be an

improper practice for a public employer or its agents deliberately (a)

to interfere with, restrain or coerce public employees in the exercise

of their rights guaranteed in section two hundred two of this article

for the purpose of depriving them of such rights; (b) to dominate or

interfere with the formation or administration of any employee

organization for the purpose of depriving them of such rights; (c) to

discriminate against any employee for the purpose of encouraging or

discouraging membership in, or participation in the activities of, any

employee organization; (d) to refuse to negotiate in good faith with the

duly recognized or certified representatives of its public employees;

(e) to refuse to continue all the terms of an expired agreement until a

new agreement is negotiated, unless the employee organization which is a

party to such agreement has, during such negotiations or prior to such

resolution of such negotiations, engaged in conduct violative of

subdivision one of section two hundred ten of this article; (f) to

utilize any state funds appropriated for any purpose to train managers,

supervisors or other administrative personnel regarding methods to

discourage union organization or to discourage an employee from

participating in a union organizing drive; (g) to fail to permit or

refuse to afford a public employee the right, upon the employee's

demand, to representation by a representative of the employee

organization, or the designee of such organization, which has been

certified or recognized under this article when at the time of

questioning by the employer of such employee it reasonably appears that

he or she may be the subject of a potential disciplinary action. If

representation is requested, and the employee is a potential target of

disciplinary action at the time of questioning, a reasonable period of

time shall be afforded to the employee to obtain such representation. It

shall be an affirmative defense to any improper practice charge under

paragraph (g) of this subdivision that the employee has the right,

pursuant to statute, interest arbitration award, collectively negotiated

agreement, policy or practice, to present to a hearing officer or

arbitrator evidence of the employer's failure to provide representation

and to obtain exclusion of the resulting evidence upon demonstration of

such failure. Nothing in this section shall grant an employee any right

to representation by the representative of an employee organization in

any criminal investigation; or (h) to disclose home addresses, personal

telephone numbers, personal cell phone numbers, personal e-mail

addresses of a public employee, as the term "public employee" is defined

in subdivision seven of section two hundred one of this article, except

(i) where required pursuant to the provisions of this article, (ii) to

the extent compelled to do so by lawful service of process, subpoena,

court order, or (iii) in accordance with subdivision four of section two

hundred eight of this article, or as otherwise required by law. This

paragraph shall not prohibit other provisions of law regarding

work-related, publicly available information such as title, salary, and

dates of employment.

2. Improper employee organization practices. It shall be an improper

practice for an employee organization or its agents deliberately (a) to

interfere with, restrain or coerce public employees in the exercise of

the rights granted in section two hundred two, or to cause, or attempt

to cause, a public employer to do so provided, however, that an employee

organization does not interfere with, restrain or coerce public

employees when it limits its services to and representation of

non-members in accordance with this subdivision; (b) to refuse to

negotiate collectively in good faith with a public employer, provided it

is the duly recognized or certified representative of the employees of

such employer; or (c) to breach its duty of fair representation to

public employees under this article. Notwithstanding any law, rule or

regulation to the contrary, an employee organization's duty of fair

representation to a public employee it represents but who is not a

member of the employee organization shall be limited to the negotiation

or enforcement of the terms of an agreement with the public employer. No

provision of this article shall be construed to require an employee

organization to provide representation to a non-member (i) during

questioning by the employer, (ii) in statutory or administrative

proceedings or to enforce statutory or regulatory rights, or (iii) in

any stage of a grievance, arbitration or other contractual process

concerning the evaluation or discipline of a public employee where the

non-member is permitted to proceed without the employee organization and

be represented by his or her own advocate. Nor shall any provision of

this article prohibit an employee organization from providing legal,

economic or job-related services or benefits beyond those provided in

the agreement with a public employer only to its members.

3. The public employer shall be made a party to any charge filed under

subdivision two of this section which alleges that the duly recognized

or certified employee organization breached its duty of fair

representation in the processing of or failure to process a claim that

the public employer has breached its agreement with such employee

organization.

4. Injunctive relief. (a) A party filing an improper practice charge

under this section may petition the board to obtain injunctive relief,

pending a decision on the merits of said charge by an administrative law

judge, upon a showing that: (i) there is reasonable cause to believe an

improper practice has occurred, and (ii) where it appears that immediate

and irreparable injury, loss or damage will result thereby rendering a

resulting judgment on the merits ineffectual necessitating the

maintenance of, or return to, the status quo to provide meaningful

relief.

(b) Within ten days of the receipt by the board of such petition, if

the board determines that a charging party has made a sufficient showing

both that there is reasonable cause to believe an improper practice has

occurred and it appears that immediate and irreparable injury, loss or

damage will result thereby rendering a resulting judgment on the merits

ineffectual necessitating maintenance of, or return to, the status quo

to provide meaningful relief, the board shall petition the supreme

court, in Albany county, upon notice to all parties for the necessary

injunctive relief or in the alternative may issue an order permitting

the charging party to seek injunctive relief by petition to the supreme

court, in which case the board must be joined as a necessary party. The

board or, where applicable, the charging party, shall not be required to

give any undertakings or bond and shall not be liable for any damages or

costs which may have been sustained by reason of any injunctive relief

ordered. If the board fails to act within ten days as provided herein,

the board, for purposes of review, shall be deemed to have made a final

order determining not to seek injunctive relief.

(c) If after review, the board determines that a charging party has

not made a sufficient showing and that no petition to the court is

appropriate under paragraph (b) of this subdivision, such determination

shall be deemed a final order and may be immediately reviewed pursuant

to and upon the standards provided by article seventy-eight of the civil

practice law and rules upon petition by the charging party in supreme

court, Albany county.

(d) Injunctive relief may be granted by the court, after hearing all

parties, if it determines that there is reasonable cause to believe an

improper practice has occurred and that it appears that immediate and

irreparable injury, loss or damage will result thereby rendering a

resulting judgment on the merits ineffectual necessitating maintenance

of, or return to, the status quo to provide meaningful relief. Such

relief shall expire on decision by an administrative law judge finding

no improper practice to have occurred, successful appeal or motion by

respondent to vacate or modify pursuant to the provisions of the civil

practice law and rules, or subsequent finding by the board that no

improper practice had occurred. The administrative law judge shall

conclude the hearing process and issue a decision on the merits within

sixty days after the imposition of such injunctive relief unless

mutually agreed by the respondent and charging party.

(e) A decision on the merits of the improper practice charge by an

administrative law judge finding an improper practice to have occurred

shall continue the injunctive relief until either: (i) the respondent

fails to file exceptions to the decision and implements the remedy, or

(ii) the respondent successfully moves in court, upon notice, to vacate

or modify the injunctive relief pursuant to provisions of the civil

practice law and rules.

(f) Any injunctive relief in effect pending a decision by the board on

exceptions: (i) shall expire upon a decision by the board finding no

improper practice to have occurred, of which the board shall notify the

court immediately, or (ii) shall remain in effect only to the extent it

implements any remedial order issued by the board in its decision, of

which the board shall notify the court immediately.

(g) All matters in which the court has granted injunctive relief

pursuant to this subdivision shall be given preference in the

scheduling, hearing and disposition over all other matters before the

board or its administrative law judges.

(h) The appeal of any order granting, denying, modifying or vacating

injunctive relief ordered by the court pursuant to this subdivision

shall be made in accordance with the provisions of article fifty-five of

the civil practice law and rules except that where such injunctive

relief is stayed pursuant to section fifty-five hundred nineteen of the

civil practice law and rules, an appeal for removal of such stay may be

given preference in the same manner as provided in rule fifty-five

hundred twenty-one of the civil practice law and rules.

(i) Nothing in this section shall be deemed to eliminate or diminish

any right that may exist pursuant to any other law.

(j) Pursuant to paragraph (d) of subdivision five of section two

hundred five of this article, the board shall make such rules and

regulations as may be appropriate to effectuate the purposes and

provisions of this subdivision.

5. Injunctive relief before the New York city board of collective

bargaining. (a) A party filing an improper practice charge under section

12-306 of the administrative code of the city of New York may petition

the board of collective bargaining to obtain injunctive relief before

the supreme court, New York county, pending a decision on the merits by

the board of collective bargaining, upon a showing that: (i) there is

reasonable cause to believe an improper practice has occurred, and (ii)

where it appears that immediate and irreparable injury, loss or damage

will result and thereby rendering a resulting judgment on the merits

ineffectual necessitating the maintenance of, or return to, the status

quo to provide meaningful relief.

(b) Within ten days of the receipt by the board of such petition, if

the board of collective bargaining determines that a charging party has

made a sufficient showing both that there is reasonable cause to believe

an improper practice has occurred and it appears that immediate and

irreparable injury, loss or damage will result thereby rendering a

resulting judgment on the merits ineffectual necessitating maintenance

of, or return to, the status quo to provide meaningful relief, said

board shall petition the supreme court in New York county, upon notice

to all parties, for the necessary injunctive relief, or in the

alternative said board may issue an order permitting the charging party

to seek injunctive relief by petition to the supreme court, New York

county, in which case said board must be joined as a necessary party.

Such application shall be in conformance with the civil practice law and

rules except that said board, or where applicable, the charging party

shall not be required to give any undertaking or land and shall not be

liable for any damages or costs which may have been sustained by reason

of any injunctive relief order. If the board of collective bargaining

fails to act within ten days as provided in this paragraph, the board of

collective bargaining, for purposes of review, shall be deemed to have

made a final order determining not to permit the charging party to seek

injunctive relief.

(c) If after review, the board of collective bargaining determines

that a charging party has not made a sufficient showing and that no

petition to the court is appropriate under paragraph (b) of this

subdivision, such determination shall be deemed a final order and may be

immediately reviewed pursuant to article seventy-eight of the civil

practice law and rules upon petition by the charging party to the

supreme court, New York county.

(d) Injunctive relief may be granted by the court, after hearing all

parties, if it determines that there is reasonable cause to believe an

improper practice has occurred and that it appears that immediate and

irreparable injury, loss or damage will result thereby rendering a

resulting judgment on the merits ineffectual necessitating maintenance

of, or return to, the status quo to provide meaningful relief. Any

injunctive relief granted by the court shall expire upon decision of the

board of collective bargaining finding no improper practice to have

occurred or successful challenge of the said board's decision pursuant

to article seventy-eight of the civil practice law and rules. The said

board shall conclude the hearing process and issue a decision on the

merits within sixty days after the imposition of such injunctive relief

unless mutually agreed by the respondent and charging party.

(e) A decision on the merits of the improper practice charge by the

board of collective bargaining finding an improper practice to have

occurred shall continue the injunctive relief until either: (i) the

respondent fails to appeal the decision and implements the remedy, or

(ii) the respondent successfully moves in court, upon notice, to vacate

or modify the injunctive relief pursuant to provisions of the civil

practice law and rules.

(f) Any injunctive relief in effect pending a decision by the board of

collective bargaining on appeal: (i) shall expire upon a decision by the

said board finding no improper practice to have occurred, of which the

said board shall notify the court immediately, or (ii) shall remain in

effect only to the extent it implements any remedial order issued by the

said board of its decision, of which the said board shall notify the

court immediately.

(g) All matters in which the court has granted injunctive relief upon

petition by the charging party pursuant to this subdivision shall be

given preference in the scheduling, hearing and disposition over all

other matters before the said board. The said board shall establish

rules and regulations dealing with the implementation of this section

including time limits for its own actions.

(h) The appeal of any order granting, denying, modifying or vacating

injunctive relief ordered by the court pursuant to this subdivision

shall be made in accordance with the provisions of article fifty-five of

the civil practice law and rules except that where such injunctive

relief is stayed pursuant to section fifty-five hundred nineteen of the

civil practice law and rules, an appeal for removal of such stay may be

given preference in the same manner as provided in rule fifty-five

hundred twenty-one of the civil practice law and rules.

(i) Nothing in this section shall be deemed to eliminate or diminish

any right that may exist pursuant to any other law.

(j) The board of collective bargaining shall make such rules and

regulations as may be appropriate to effectuate the purposes and

provisions of this subdivision.

6. Application. In applying this section, fundamental distinctions

between private and public employment shall be recognized, and no body

of federal or state law applicable wholly or in part to private

employment, shall be regarded as binding or controlling precedent.