Senate Bill S7789

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

                                  7789

                            I N  S E N A T E

                              May 11, 2010
                               ___________

Introduced  by  Sen.  ADAMS  -- 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 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
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

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

                                                           LBD14146-01-9

S. 7789                             2

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,
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

S. 7789                             3

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.