Assembly Bill A10035

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10035
 
                           I N  A S S E M B L Y
 
                               March 4, 2020
                                ___________
 
 Introduced  by  M.  of  A. SANTABARBARA -- 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.
                                                            LBD14597-01-9

 A. 10035                            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.
   § 2. This act shall take effect immediately.