2023 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.