senate Bill S4016

Amended

Relates to the powers of the public employment relations board to investigate unfair labor practices

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 14 / Mar / 2011
    • REFERRED TO LABOR
  • 03 / May / 2011
    • 1ST REPORT CAL.439
  • 04 / May / 2011
    • 2ND REPORT CAL.
  • 09 / May / 2011
    • ADVANCED TO THIRD READING
  • 13 / Jun / 2011
    • PASSED SENATE
  • 13 / Jun / 2011
    • DELIVERED TO ASSEMBLY
  • 13 / Jun / 2011
    • REFERRED TO CODES
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO LABOR
  • 05 / Jun / 2012
    • 1ST REPORT CAL.1074
  • 06 / Jun / 2012
    • 2ND REPORT CAL.
  • 11 / Jun / 2012
    • AMENDED 4016A
  • 11 / Jun / 2012
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2012
    • COMMITTED TO RULES

Summary

Relates to the powers of the public employment relations board to investigate unfair labor practices.

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Bill Details

Versions:
S4016
S4016A
Legislative Cycle:
2011-2012
Current Committee:
Senate Rules
Law Section:
Labor Law
Laws Affected:
Amd §§706 & 708, Lab L

Sponsor Memo

BILL NUMBER:S4016

TITLE OF BILL:
An act
to amend the labor law, in relation to powers of the public employment
relations board to investigate unfair labor practices

PURPOSE:
This bill would amend the New York State Employment Relations Act
(SERA), Labor Law §700 et seq., with respect to unfair labor practice
procedures, the authority to issue subpoenas, and service of
pleadings, orders and other papers.

SUMMARY OF PROVISIONS:
Section 1 of the bill would amend Labor Law §706(2) to eliminate the
responsibility of PERB to issue and prosecute complaints with respect
to unfair labor practice charges alleging violations of Labor Law

§-704 and 704-a.
Section 2 of the bill would amend Labor Law §-708(1) and (5) to permit
PERB Administrative Law Judges to issue subpoenas, and would
eliminate references to the telegraph as an acceptable means of
service under SERA.

Section 3 of the bill would provide for an immediate effective date.

EXISTING LAW:
Under Labor Law §706(2), after an unfair labor practice charge is
filed by a labor organization or employees against an employer, PERB
has the responsibility to determine whether to issue a formal
complaint in its own name, and then serve it upon the employer. See,
12 N.Y.C.R.R. §-2S2.15-2 52.17. Labor Law §7080) provides that PERB
Board members have the authority to issue subpoenas, and Labor Law
§708(5) references the telegraph as a means of service under SERA.

LEGISLATIVE HISTORY:
Labor Law §706(2) has not been amended since 1937. It is unknown
whether there have been prior proposals to amend it, or to amend
Labor Law §-708(1) and (5).

STATEMENT IN SUPPORT:
SERA is New York's private sector collective bargaining law for
employees and employers who are not covered by the National Labor
Relations Act. Effective July 22, 2010, the Public Employment
Relations Board (PERB) became responsible for administering SERA
along with its responsibilities under the Public Employees' Fair
Employment Act, commonly known as the Taylor Law.

The proposed amendment to Labor Law §706(2) seeks to harmonize the
procedures for unfair labor practice charges under SERA with PERB's
decades-old procedures for the processing of improper practice

charges under civil Service Law §209-a. At the same time, it aims at
preserving agency resources, and retaining PERB's reputation for
neutrality, by eliminating the statutory obligation for PEER to issue
a complaint with respect to an unfair labor practice charge under SERA.

In processing improper practice charges under the Taylor Law, the
Board does not issue a complaint or function as a prosecutor.
Instead, the party filing the charge is responsible for preparing and
presenting the charge before an Administrative Law Judge. See, PERB's
Rules of Procedure (Rules), 4 N.Y.C.R.R. §-204.1-204.3, 212.1-212.6.
The forty-year old policy decision to utilize a non-prosecutorial
model under the Taylor Law is aimed at avoiding allegations of
partiality against the agency for either prosecuting a charge or for
refusing to prosecute a charge.

Unlike the National Labor Relations Board (NLRB) , PEER has
responsibilities for the resolution of negotiation disputes in the
public sector. PEER's neutral mediation and fact-finding roles would
be undermined if at the same time PEER was prosecuting a complaint
against either the employer or the employee organization.
See, Manhasset Union Free School Dist, 41 PERB 3 005 (2008),
confirmed and mod in part on other grounds, Manhasset Union Free Sch
Dist v New York State Pub Empi Rel Bd, 61 AD3d 1231, 42 PEER 7004
(3d Dept 2009), on remittitur, 42 PERB 3016 (2009).

Nevertheless, in order to avoid unnecessary costs to PEER and the
parties resulting from meritless charges, PERB's Director of
Employment Practices and Representation (Director) has the
responsibility to review all newly filed charges, and he can
summarily dismiss a charge if it fails to state a claim or is
untimely, subject to review by the PERB Board. See, Rules, §204.2(a)i
MABSTOA, 40 PERB 3023 (2007).

In contrast with our practices under the Taylor Law, Labor Law §706(2)
mandates a prosecutorial role for PEER in the processing of private
sector unfair labor practice charges. This provision requires PEER to
process private sector unfair labor practice charges in an
inconsistent manner from the procedures utilized for public sector
improper practice charges. This inconsistency can lead to confusion
for both staff and the parties.

Furthermore, retention of SERA's outdated unfair labor practice
procedure creates the potential for allegations of partiality because
PEER also has the responsibility to mediate certain private sector
negotiation impasses under SERA. Finally, PERB lacks sufficient
resources to play a prosecutorial role in unfair labor practice cases.
In the short time since PERB accreted the responsibility to
administer SERA, the Director has issued eight complaints involving
unfair labor
practice charges. It would be far more efficient for the Director to
review newly filed unfair labor practice charges to ensure that each

charge states a claim under SERA, instead of examining the merits of
the charge, and preparing a complaint.

Consistent with SERA's procedural model, Labor Law §708(1) provides
that subpoenas may be issued by a PERB Board member. An amendment of
this provision permitting Board designees to issue subpoenas would
result in greater administrative efficiency, and would avoid the
potential for allegations of partiality.

Finally, based upon the revolution in technology since 1937, there is
no reason for SERA to continue to reference the telegraph as an
acceptable means of service.

FISCAL IMPLICATIONS:
This bill would have not any adverse fiscal impact. One of the
purposes of this bill is to ensure greater efficiency and consistency
with respect to PERB'S administration of SERA and the Taylor Law.
This bill will not have any impact on local governments.

EFFECTIVE DATE:
This bill would take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4016

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 14, 2011
                               ___________

Introduced  by  Sen.  GOLDEN  --  (at  request  of the Public Employment
  Relations Board) -- read twice and ordered printed, and  when  printed
  to be committed to the Committee on Labor

AN  ACT  to  amend  the  labor  law, in relation to powers of the public
  employment relations board to investigate unfair labor practices

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Subdivision 2 of section 706 of the labor law, as added by
chapter 443 of the laws of 1937, is amended to read as follows:
  2. Whenever a charge has been made that any employer has engaged in or
is engaging in any unfair labor practice, the board OR ITS  AGENT  shall
have THE power to [issue and cause to be served] SERVE upon such employ-
er  [a  complaint  stating  the charges in that respect and containing a
notice of hearing before the board at a place therein fixed to  be  held
not  less than seven days after the serving of said complaint] A COPY OF
THE CHARGE THAT WAS FILED WITH THE BOARD.  Any such  [complaint]  CHARGE
may  be amended [by the board or its agent conducting the hearing at any
time] FROM TIME TO TIME prior to the issuance of an order based thereon.
The EMPLOYER OR THE person so [complained of]  CHARGED  shall  have  the
right  to  file an answer to the original or amended [complaint not less
than five days after the service of such original or amended  complaint]
CHARGE  and  to  appear  in person or otherwise to give testimony at the
place and time set [in the complaint] BY THE BOARD OR ITS AGENT. In  the
discretion of a member or agent conducting the hearing, or of the board,
any  other person may be allowed to intervene in the said proceeding and
to present testimony. In any such proceeding  the  board  or  its  agent
shall  not  be  bound  by  technical rules of evidence prevailing in the
courts of law or equity.
  S 2. Subdivisions 1 and 5 of section 708 of the labor law, subdivision
1 as amended by section 6 of part O of chapter 56 of the  laws  of  2010

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09428-01-1

S. 4016                             2

and  subdivision  5  as  amended by chapter 496 of the laws of 1963, are
amended to read as follows:
  1.  The board, or its duly authorized agents or agencies, shall at all
reasonable times have access to, for the purposes  of  examination,  and
the  right  to  examine,  copy  or  photograph  any  evidence, including
payrolls or lists of employees, of  any  person  being  investigated  or
proceeded  against  that relates to any matter under investigation or in
question. The board OR ITS DESIGNATED AGENTS shall have power  to  issue
subpoenas  requiring  the  attendance and testimony of witnesses and the
production of any evidence that relates to  any  matter  under  investi-
gation  or  in  question before the board, its member, agent, or agency,
conducting the hearing or investigation. Any member of the board, or any
agent or agency designated by the board for such purposes, may  adminis-
ter oaths and affirmations, examine witnesses, and receive evidence.
  5.  [Complaints]  CHARGES,  PETITIONS,  orders,  and other process and
papers of the board, its member, agent, or agency, may be served  either
personally  or  by  certified or registered mail [or by telegraph] or by
leaving a copy thereof at the [principle] PRINCIPAL office or  place  of
business of the person required to be served. The verified return by the
individual  so serving the same setting forth the manner of such service
shall be proof of the same, and the return post-office receipt [or tele-
graph receipt] therefor when registered and mailed [or  telegraphed]  as
aforesaid  shall  be  proof  of  service of the same. Witnesses summoned
before the board, its member, agent, or agency shall be  paid  the  same
fees  and  mileage  that are paid witnesses in the courts of this state,
and witnesses whose depositions are taken and the person taking the same
shall severally be entitled to the  same  fees  as  are  paid  for  like
services in the courts of this state.
  S  3. This act shall take effect sixty days after it shall have become
a law.

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