NY Civ Serv L § 209-A (2021)
2021 New York Laws CVS - Civil Service Article 14 - Public Employees' Fair Employment Act 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.   * NB Repealed June 30, 2023   * 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.   * NB Repealed June 30, 2023   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.