2023 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.
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.