BILL NUMBER:S4016A

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 effective date on the
sixtieth day after it shall become a law.
              

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 on the sixtieth day after it shall
become a law.