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

                                  10020

                          I N  A S S E M B L Y

                            February 24, 2010
                               ___________

Introduced by M. of A. ABBATE -- read once and referred to the Committee
  on Governmental Employees

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
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

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

                                                           LBD15816-01-0

A. 10020                            2

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.