S T A T E   O F   N E W   Y O R K
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                                  8663

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              June 2, 2009
                               ___________

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 jurisdiction over
  improper employer practices

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

  Section  1.  Subdivision 3 of section 212 of the civil service law, as
amended by chapter 190 of the laws  of  2007,  is  amended  to  read  as
follows:
  3.  Notwithstanding  any  other  provision of law to the contrary, the
resolution of disputes in  the  course  of  collective  negotiations  as
provided  by  section two hundred nine, AND THE ADJUDICATION OF IMPROPER
PRACTICES AS PROVIDED BY SECTION TWO HUNDRED  NINE-A  of  this  article,
shall  apply  to  any organized fire department, police force, or police
department of any government  and  detective-investigators,  or  rackets
investigators  employed in the office of a district attorney of a county
subject to either subdivision one or  two  of  this  section.  Provided,
however,  that a recognized or certified employee organization may elect
to continue dispute resolution procedures OR PROCEDURES FOR THE  ADJUDI-
CATION  OF  IMPROPER  PRACTICES  which  existed  on the day prior to the
effective date of this subdivision by notifying the  appropriate  public
employment relations board in writing.
  S  2.  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14146-01-9
              

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to  the  reinstatement  of employees with or without back pay; provided,
however, that except as appropriate to effectuate the policies of subdi-
vision 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  consti-
tute  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,] 6621 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, SUBJECT
TO  THE PROVISIONS OF SUBDIVISION THREE OF SECTION TWO HUNDRED TWELVE OF
THIS ARTICLE 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,

A. 8663                             3

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.
  S 3. This act shall take effect immediately.