§ 209-A — Improper employer practices; improper employee organization practices; application

New York § 209-A

• Jurisdiction: New York
• Law CVS: Civil Service
• Art. 14: Public Employees' Fair Employment Act

Text

§ 209-a. Improper employer practices; improper employee organization\npractices; application. 1. Improper employer practices. It shall be an\nimproper practice for a public employer or its agents deliberately (a)\nto interfere with, restrain or coerce public employees in the exercise\nof their rights guaranteed in section two hundred two of this article\nfor the purpose of depriving them of such rights; (b) to dominate or\ninterfere with the formation or administration of any employee\norganization for the purpose of depriving them of such rights; (c) to\ndiscriminate against any employee for the purpose of encouraging or\ndiscouraging membership in, or participation in the activities of, any\nemployee organization; (d) to refuse to negotiate in good faith with the\nduly recognized or certified representatives of its public employees;\n(e) to refuse to continue all the terms of an expired agreement until a\nnew agreement is negotiated, unless the employee organization which is a\nparty to such agreement has, during such negotiations or prior to such\nresolution of such negotiations, engaged in conduct violative of\nsubdivision one of section two hundred ten of this article; (f) to\nutilize any state funds appropriated for any purpose to train managers,\nsupervisors or other administrative personnel regarding methods to\ndiscourage union organization or to discourage an employee from\nparticipating in a union organizing drive; (g) to fail to permit or\nrefuse to afford a public employee the right, upon the employee's\ndemand, to representation by a representative of the employee\norganization, or the designee of such organization, which has been\ncertified or recognized under this article when at the time of\nquestioning by the employer of such employee it reasonably appears that\nhe or she may be the subject of a potential disciplinary action. If\nrepresentation is requested, and the employee is a potential target of\ndisciplinary action at the time of questioning, a reasonable period of\ntime shall be afforded to the employee to obtain such representation. It\nshall be an affirmative defense to any improper practice charge under\nparagraph (g) of this subdivision that the employee has the right,\npursuant to statute, interest arbitration award, collectively negotiated\nagreement, policy or practice, to present to a hearing officer or\narbitrator evidence of the employer's failure to provide representation\nand to obtain exclusion of the resulting evidence upon demonstration of\nsuch failure. Nothing in this section shall grant an employee any right\nto representation by the representative of an employee organization in\nany criminal investigation; or (h) to disclose home addresses, personal\ntelephone numbers, personal cell phone numbers, personal e-mail\naddresses of a public employee, as the term "public employee" is defined\nin subdivision seven of section two hundred one of this article, except\n(i) where required pursuant to the provisions of this article, (ii) to\nthe extent compelled to do so by lawful service of process, subpoena,\ncourt order, or (iii) in accordance with subdivision four of section two\nhundred eight of this article, or as otherwise required by law. This\nparagraph shall not prohibit other provisions of law regarding\nwork-related, publicly available information such as title, salary, and\ndates of employment.\n 2. Improper employee organization practices. It shall be an improper\npractice for an employee organization or its agents deliberately (a) to\ninterfere with, restrain or coerce public employees in the exercise of\nthe rights granted in section two hundred two, or to cause, or attempt\nto cause, a public employer to do so provided, however, that an employee\norganization does not interfere with, restrain or coerce public\nemployees when it limits its services to and representation of\nnon-members in accordance with this subdivision; (b) to refuse to\nnegotiate collectively in good faith with a public employer, provided it\nis the duly recognized or certified representative of the employees of\nsuch employer; or (c) to breach its duty of fair representation to\npublic employees under this article. Notwithstanding any law, rule or\nregulation to the contrary, an employee organization's duty of fair\nrepresentation to a public employee it represents but who is not a\nmember of the employee organization shall be limited to the negotiation\nor enforcement of the terms of an agreement with the public employer. No\nprovision of this article shall be construed to require an employee\norganization to provide representation to a non-member (i) during\nquestioning by the employer, (ii) in statutory or administrative\nproceedings or to enforce statutory or regulatory rights, or (iii) in\nany stage of a grievance, arbitration or other contractual process\nconcerning the evaluation or discipline of a public employee where the\nnon-member is permitted to proceed without the employee organization and\nbe represented by his or her own advocate. Nor shall any provision of\nthis article prohibit an employee organization from providing legal,\neconomic or job-related services or benefits beyond those provided in\nthe agreement with a public employer only to its members.\n 3. The public employer shall be made a party to any charge filed under\nsubdivision two of this section which alleges that the duly recognized\nor certified employee organization breached its duty of fair\nrepresentation in the processing of or failure to process a claim that\nthe public employer has breached its agreement with such employee\norganization.\n 4. Injunctive relief. (a) A party filing an improper practice charge\nunder this section may petition the board to obtain injunctive relief,\npending a decision on the merits of said charge by an administrative law\njudge, upon a showing that: (i) there is reasonable cause to believe an\nimproper practice has occurred, and (ii) where it appears that immediate\nand irreparable injury, loss or damage will result thereby rendering a\nresulting judgment on the merits ineffectual necessitating the\nmaintenance of, or return to, the status quo to provide meaningful\nrelief.\n (b) Within ten days of the receipt by the board of such petition, if\nthe board determines that a charging party has made a sufficient showing\nboth that there is reasonable cause to believe an improper practice has\noccurred and it appears that immediate and irreparable injury, loss or\ndamage will result thereby rendering a resulting judgment on the merits\nineffectual necessitating maintenance of, or return to, the status quo\nto provide meaningful relief, the board shall petition the supreme\ncourt, in Albany county, upon notice to all parties for the necessary\ninjunctive relief or in the alternative may issue an order permitting\nthe charging party to seek injunctive relief by petition to the supreme\ncourt, in which case the board must be joined as a necessary party. The\nboard or, where applicable, the charging party, shall not be required to\ngive any undertakings or bond and shall not be liable for any damages or\ncosts which may have been sustained by reason of any injunctive relief\nordered. If the board fails to act within ten days as provided herein,\nthe board, for purposes of review, shall be deemed to have made a final\norder determining not to seek injunctive relief.\n (c) If after review, the board determines that a charging party has\nnot made a sufficient showing and that no petition to the court is\nappropriate under paragraph (b) of this subdivision, such determination\nshall be deemed a final order and may be immediately reviewed pursuant\nto and upon the standards provided by article seventy-eight of the civil\npractice law and rules upon petition by the charging party in supreme\ncourt, Albany county.\n (d) Injunctive relief may be granted by the court, after hearing all\nparties, if it determines that there is reasonable cause to believe an\nimproper practice has occurred and that it appears that immediate and\nirreparable injury, loss or damage will result thereby rendering a\nresulting judgment on the merits ineffectual necessitating maintenance\nof, or return to, the status quo to provide meaningful relief. Such\nrelief shall expire on decision by an administrative law judge finding\nno improper practice to have occurred, successful appeal or motion by\nrespondent to vacate or modify pursuant to the provisions of the civil\npractice law and rules, or subsequent finding by the board that no\nimproper practice had occurred. The administrative law judge shall\nconclude the hearing process and issue a decision on the merits within\nsixty days after the imposition of such injunctive relief unless\nmutually agreed by the respondent and charging party.\n (e) A decision on the merits of the improper practice charge by an\nadministrative law judge finding an improper practice to have occurred\nshall continue the injunctive relief until either: (i) the respondent\nfails to file exceptions to the decision and implements the remedy, or\n(ii) the respondent successfully moves in court, upon notice, to vacate\nor modify the injunctive relief pursuant to provisions of the civil\npractice law and rules.\n (f) Any injunctive relief in effect pending a decision by the board on\nexceptions: (i) shall expire upon a decision by the board finding no\nimproper practice to have occurred, of which the board shall notify the\ncourt immediately, or (ii) shall remain in effect only to the extent it\nimplements any remedial order issued by the board in its decision, of\nwhich the board shall notify the court immediately.\n (g) All matters in which the court has granted injunctive relief\npursuant to this subdivision shall be given preference in the\nscheduling, hearing and disposition over all other matters before the\nboard or its administrative law judges.\n (h) The appeal of any order granting, denying, modifying or vacating\ninjunctive relief ordered by the court pursuant to this subdivision\nshall be made in accordance with the provisions of article fifty-five of\nthe civil practice law and rules except that where such injunctive\nrelief is stayed pursuant to section fifty-five hundred nineteen of the\ncivil practice law and rules, an appeal for removal of such stay may be\ngiven preference in the same manner as provided in rule fifty-five\nhundred twenty-one of the civil practice law and rules.\n (i) Nothing in this section shall be deemed to eliminate or diminish\nany right that may exist pursuant to any other law.\n (j) Pursuant to paragraph (d) of subdivision five of section two\nhundred five of this article, the board shall make such rules and\nregulations as may be appropriate to effectuate the purposes and\nprovisions of this subdivision.\n 5. Injunctive relief before the New York city board of collective\nbargaining. (a) A party filing an improper practice charge under section\n12-306 of the administrative code of the city of New York may petition\nthe board of collective bargaining to obtain injunctive relief before\nthe supreme court, New York county, pending a decision on the merits by\nthe board of collective bargaining, upon a showing that: (i) there is\nreasonable cause to believe an improper practice has occurred, and (ii)\nwhere it appears that immediate and irreparable injury, loss or damage\nwill result and thereby rendering a resulting judgment on the merits\nineffectual necessitating the maintenance of, or return to, the status\nquo to provide meaningful relief.\n (b) Within ten days of the receipt by the board of such petition, if\nthe board of collective bargaining determines that a charging party has\nmade a sufficient showing both that there is reasonable cause to believe\nan improper practice has occurred and it appears that immediate and\nirreparable injury, loss or damage will result thereby rendering a\nresulting judgment on the merits ineffectual necessitating maintenance\nof, or return to, the status quo to provide meaningful relief, said\nboard shall petition the supreme court in New York county, upon notice\nto all parties, for the necessary injunctive relief, or in the\nalternative said board may issue an order permitting the charging party\nto seek injunctive relief by petition to the supreme court, New York\ncounty, in which case said board must be joined as a necessary party.\nSuch application shall be in conformance with the civil practice law and\nrules except that said board, or where applicable, the charging party\nshall not be required to give any undertaking or land and shall not be\nliable for any damages or costs which may have been sustained by reason\nof any injunctive relief order. If the board of collective bargaining\nfails to act within ten days as provided in this paragraph, the board of\ncollective bargaining, for purposes of review, shall be deemed to have\nmade a final order determining not to permit the charging party to seek\ninjunctive relief.\n (c) If after review, the board of collective bargaining determines\nthat a charging party has not made a sufficient showing and that no\npetition to the court is appropriate under paragraph (b) of this\nsubdivision, such determination shall be deemed a final order and may be\nimmediately reviewed pursuant to article seventy-eight of the civil\npractice law and rules upon petition by the charging party to the\nsupreme court, New York county.\n (d) Injunctive relief may be granted by the court, after hearing all\nparties, if it determines that there is reasonable cause to believe an\nimproper practice has occurred and that it appears that immediate and\nirreparable injury, loss or damage will result thereby rendering a\nresulting judgment on the merits ineffectual necessitating maintenance\nof, or return to, the status quo to provide meaningful relief. Any\ninjunctive relief granted by the court shall expire upon decision of the\nboard of collective bargaining finding no improper practice to have\noccurred or successful challenge of the said board's decision pursuant\nto article seventy-eight of the civil practice law and rules. The said\nboard shall conclude the hearing process and issue a decision on the\nmerits within sixty days after the imposition of such injunctive relief\nunless mutually agreed by the respondent and charging party.\n (e) A decision on the merits of the improper practice charge by the\nboard of collective bargaining finding an improper practice to have\noccurred shall continue the injunctive relief until either: (i) the\nrespondent fails to appeal the decision and implements the remedy, or\n(ii) the respondent successfully moves in court, upon notice, to vacate\nor modify the injunctive relief pursuant to provisions of the civil\npractice law and rules.\n (f) Any injunctive relief in effect pending a decision by the board of\ncollective bargaining on appeal: (i) shall expire upon a decision by the\nsaid board finding no improper practice to have occurred, of which the\nsaid board shall notify the court immediately, or (ii) shall remain in\neffect only to the extent it implements any remedial order issued by the\nsaid board of its decision, of which the said board shall notify the\ncourt immediately.\n (g) All matters in which the court has granted injunctive relief upon\npetition by the charging party pursuant to this subdivision shall be\ngiven preference in the scheduling, hearing and disposition over all\nother matters before the said board. The said board shall establish\nrules and regulations dealing with the implementation of this section\nincluding time limits for its own actions.\n (h) The appeal of any order granting, denying, modifying or vacating\ninjunctive relief ordered by the court pursuant to this subdivision\nshall be made in accordance with the provisions of article fifty-five of\nthe civil practice law and rules except that where such injunctive\nrelief is stayed pursuant to section fifty-five hundred nineteen of the\ncivil practice law and rules, an appeal for removal of such stay may be\ngiven preference in the same manner as provided in rule fifty-five\nhundred twenty-one of the civil practice law and rules.\n (i) Nothing in this section shall be deemed to eliminate or diminish\nany right that may exist pursuant to any other law.\n (j) The board of collective bargaining shall make such rules and\nregulations as may be appropriate to effectuate the purposes and\nprovisions of this subdivision.\n 6. Application. In applying this section, fundamental distinctions\nbetween private and public employment shall be recognized, and no body\nof federal or state law applicable wholly or in part to private\nemployment, shall be regarded as binding or controlling precedent.\n