NY Civ Serv L § 205 (2021)
2021 New York Laws CVS - Civil Service Article 14 - Public Employees' Fair Employment Act 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.