S T A T E   O F   N E W   Y O R K
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                                  4747

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 22, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Civil Service and Pensions

AN ACT to amend the civil service law, in  relation  to  powers  of  the
  public employment relations board to assess damages

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

  Section 1. Paragraph (d) of subdivision 5 of section 205 of the  civil
service law, as amended by chapter 83 of the laws of 2006, is amended to
read as follows:
  (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 AND
THE ASSESSMENT OF EXEMPLARY DAMAGES UPON A  FINDING  THAT  AN  OFFENDING
PARTY   HAS  COMMITTED  REPEATED  IMPROPER  PRACTICES  OR  AN  EGREGIOUS
PRACTICE; 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 subdivi-
sion one of section two hundred nine-a of this article shall include, to
the extent the board deems appropriate, the authority to make  employees

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08620-01-3
              

S. 4747                             2

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  recog-
nized  or  certified employee organization representing public employees
has breached its duty of fair representation in the processing or  fail-
ure  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 subse-
quent 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 employ-
ee  organization practices as provided in section 12-306 of the adminis-
trative 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 collec-
tive bargaining. Such proceeding to review shall be brought within thir-
ty  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  appropri-
ate,  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.
  S 2. This act shall take effect immediately.