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This entry was published on 2021-06-18
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SECTION 209-A
Improper employer practices; improper employee organization practices; application
Civil Service (CVS) CHAPTER 7, ARTICLE 14
§ 209-a. Improper employer practices; improper employee organization
practices; application. 1. Improper employer practices. It shall be an
improper practice for a public employer or its agents deliberately (a)
to interfere with, restrain or coerce public employees in the exercise
of their rights guaranteed in section two hundred two of this article
for the purpose of depriving them of such rights; (b) to dominate or
interfere with the formation or administration of any employee
organization for the purpose of depriving them of such rights; (c) to
discriminate against any employee for the purpose of encouraging or
discouraging membership in, or participation in the activities of, any
employee organization; (d) to refuse to negotiate in good faith with the
duly recognized or certified representatives of its public employees;
(e) to refuse to continue all the terms of an expired agreement until a
new agreement is negotiated, unless the employee organization which is a
party to such agreement has, during such negotiations or prior to such
resolution of such negotiations, engaged in conduct violative of
subdivision one of section two hundred ten of this article; (f) to
utilize any state funds appropriated for any purpose to train managers,
supervisors or other administrative personnel regarding methods to
discourage union organization or to discourage an employee from
participating in a union organizing drive; (g) to fail to permit or
refuse to afford a public employee the right, upon the employee's
demand, to representation by a representative of the employee
organization, or the designee of such organization, which has been
certified or recognized under this article when at the time of
questioning by the employer of such employee it reasonably appears that
he or she may be the subject of a potential disciplinary action. If
representation is requested, and the employee is a potential target of
disciplinary action at the time of questioning, a reasonable period of
time shall be afforded to the employee to obtain such representation. It
shall be an affirmative defense to any improper practice charge under
paragraph (g) of this subdivision that the employee has the right,
pursuant to statute, interest arbitration award, collectively negotiated
agreement, policy or practice, to present to a hearing officer or
arbitrator evidence of the employer's failure to provide representation
and to obtain exclusion of the resulting evidence upon demonstration of
such failure. Nothing in this section shall grant an employee any right
to representation by the representative of an employee organization in
any criminal investigation; or (h) to disclose home addresses, personal
telephone numbers, personal cell phone numbers, personal e-mail
addresses of a public employee, as the term "public employee" is defined
in subdivision seven of section two hundred one of this article, except
(i) where required pursuant to the provisions of this article, (ii) to
the extent compelled to do so by lawful service of process, subpoena,
court order, or (iii) in accordance with subdivision four of section two
hundred eight of this article, or as otherwise required by law. This
paragraph shall not prohibit other provisions of law regarding
work-related, publicly available information such as title, salary, and
dates of employment.

2. Improper employee organization practices. It shall be an improper
practice for an employee organization or its agents deliberately (a) to
interfere with, restrain or coerce public employees in the exercise of
the rights granted in section two hundred two, or to cause, or attempt
to cause, a public employer to do so provided, however, that an employee
organization does not interfere with, restrain or coerce public
employees when it limits its services to and representation of
non-members in accordance with this subdivision; (b) to refuse to
negotiate collectively in good faith with a public employer, provided it
is the duly recognized or certified representative of the employees of
such employer; or (c) to breach its duty of fair representation to
public employees under this article. Notwithstanding any law, rule or
regulation to the contrary, an employee organization's duty of fair
representation to a public employee it represents but who is not a
member of the employee organization shall be limited to the negotiation
or enforcement of the terms of an agreement with the public employer. No
provision of this article shall be construed to require an employee
organization to provide representation to a non-member (i) during
questioning by the employer, (ii) in statutory or administrative
proceedings or to enforce statutory or regulatory rights, or (iii) in
any stage of a grievance, arbitration or other contractual process
concerning the evaluation or discipline of a public employee where the
non-member is permitted to proceed without the employee organization and
be represented by his or her own advocate. Nor shall any provision of
this article prohibit an employee organization from providing legal,
economic or job-related services or benefits beyond those provided in
the agreement with a public employer only to its members.

3. The public employer shall be made a party to any charge filed under
subdivision two of this section which alleges that the duly recognized
or certified employee organization breached its duty of fair
representation in the processing of or failure to process a claim that
the public employer has breached its agreement with such employee
organization.

* 4. Injunctive relief. (a) A party filing an improper practice charge
under this section may petition the board to obtain injunctive relief,
pending a decision on the merits of said charge by an administrative law
judge, upon a showing that: (i) there is reasonable cause to believe an
improper practice has occurred, and (ii) where it appears that immediate
and irreparable injury, loss or damage will result thereby rendering a
resulting judgment on the merits ineffectual necessitating the
maintenance of, or return to, the status quo to provide meaningful
relief.

(b) Within ten days of the receipt by the board of such petition, if
the board determines that a charging party has made a sufficient showing
both that there is reasonable cause to believe an improper practice has
occurred and it appears that immediate and irreparable injury, loss or
damage will result thereby rendering a resulting judgment on the merits
ineffectual necessitating maintenance of, or return to, the status quo
to provide meaningful relief, the board shall petition the supreme
court, in Albany county, upon notice to all parties for the necessary
injunctive relief or in the alternative may issue an order permitting
the charging party to seek injunctive relief by petition to the supreme
court, in which case the board must be joined as a necessary party. The
board or, where applicable, the charging party, shall not be required to
give any undertakings or bond and shall not be liable for any damages or
costs which may have been sustained by reason of any injunctive relief
ordered. If the board fails to act within ten days as provided herein,
the board, for purposes of review, shall be deemed to have made a final
order determining not to seek injunctive relief.

(c) If after review, the board determines that a charging party has
not made a sufficient showing and that no petition to the court is
appropriate under paragraph (b) of this subdivision, such determination
shall be deemed a final order and may be immediately reviewed pursuant
to and upon the standards provided by article seventy-eight of the civil
practice law and rules upon petition by the charging party in supreme
court, Albany county.

(d) Injunctive relief may be granted by the court, after hearing all
parties, if it determines that there is reasonable cause to believe an
improper practice has occurred and that it appears that immediate and
irreparable injury, loss or damage will result thereby rendering a
resulting judgment on the merits ineffectual necessitating maintenance
of, or return to, the status quo to provide meaningful relief. Such
relief shall expire on decision by an administrative law judge finding
no improper practice to have occurred, successful appeal or motion by
respondent to vacate or modify pursuant to the provisions of the civil
practice law and rules, or subsequent finding by the board that no
improper practice had occurred. The administrative law judge shall
conclude the hearing process and issue a decision on the merits within
sixty days after the imposition of such injunctive relief unless
mutually agreed by the respondent and charging party.

(e) A decision on the merits of the improper practice charge by an
administrative law judge finding an improper practice to have occurred
shall continue the injunctive relief until either: (i) the respondent
fails to file exceptions to the decision and implements the remedy, or
(ii) the respondent successfully moves in court, upon notice, to vacate
or modify the injunctive relief pursuant to provisions of the civil
practice law and rules.

(f) Any injunctive relief in effect pending a decision by the board on
exceptions: (i) shall expire upon a decision by the board finding no
improper practice to have occurred, of which the board shall notify the
court immediately, or (ii) shall remain in effect only to the extent it
implements any remedial order issued by the board in its decision, of
which the board shall notify the court immediately.

(g) All matters in which the court has granted injunctive relief
pursuant to this subdivision shall be given preference in the
scheduling, hearing and disposition over all other matters before the
board or its administrative law judges.

(h) The appeal of any order granting, denying, modifying or vacating
injunctive relief ordered by the court pursuant to this subdivision
shall be made in accordance with the provisions of article fifty-five of
the civil practice law and rules except that where such injunctive
relief is stayed pursuant to section fifty-five hundred nineteen of the
civil practice law and rules, an appeal for removal of such stay may be
given preference in the same manner as provided in rule fifty-five
hundred twenty-one of the civil practice law and rules.

(i) Nothing in this section shall be deemed to eliminate or diminish
any right that may exist pursuant to any other law.

(j) Pursuant to paragraph (d) of subdivision five of section two
hundred five of this article, the board shall make such rules and
regulations as may be appropriate to effectuate the purposes and
provisions of this subdivision.

* NB Repealed June 30, 2023

* 5. Injunctive relief before the New York city board of collective
bargaining. (a) A party filing an improper practice charge under section
12-306 of the administrative code of the city of New York may petition
the board of collective bargaining to obtain injunctive relief before
the supreme court, New York county, pending a decision on the merits by
the board of collective bargaining, upon a showing that: (i) there is
reasonable cause to believe an improper practice has occurred, and (ii)
where it appears that immediate and irreparable injury, loss or damage
will result and thereby rendering a resulting judgment on the merits
ineffectual necessitating the maintenance of, or return to, the status
quo to provide meaningful relief.

(b) Within ten days of the receipt by the board of such petition, if
the board of collective bargaining determines that a charging party has
made a sufficient showing both that there is reasonable cause to believe
an improper practice has occurred and it appears that immediate and
irreparable injury, loss or damage will result thereby rendering a
resulting judgment on the merits ineffectual necessitating maintenance
of, or return to, the status quo to provide meaningful relief, said
board shall petition the supreme court in New York county, upon notice
to all parties, for the necessary injunctive relief, or in the
alternative said board may issue an order permitting the charging party
to seek injunctive relief by petition to the supreme court, New York
county, in which case said board must be joined as a necessary party.
Such application shall be in conformance with the civil practice law and
rules except that said board, or where applicable, the charging party
shall not be required to give any undertaking or land and shall not be
liable for any damages or costs which may have been sustained by reason
of any injunctive relief order. If the board of collective bargaining
fails to act within ten days as provided in this paragraph, the board of
collective bargaining, for purposes of review, shall be deemed to have
made a final order determining not to permit the charging party to seek
injunctive relief.

(c) If after review, the board of collective bargaining determines
that a charging party has not made a sufficient showing and that no
petition to the court is appropriate under paragraph (b) of this
subdivision, such determination shall be deemed a final order and may be
immediately reviewed pursuant to article seventy-eight of the civil
practice law and rules upon petition by the charging party to the
supreme court, New York county.

(d) Injunctive relief may be granted by the court, after hearing all
parties, if it determines that there is reasonable cause to believe an
improper practice has occurred and that it appears that immediate and
irreparable injury, loss or damage will result thereby rendering a
resulting judgment on the merits ineffectual necessitating maintenance
of, or return to, the status quo to provide meaningful relief. Any
injunctive relief granted by the court shall expire upon decision of the
board of collective bargaining finding no improper practice to have
occurred or successful challenge of the said board's decision pursuant
to article seventy-eight of the civil practice law and rules. The said
board shall conclude the hearing process and issue a decision on the
merits within sixty days after the imposition of such injunctive relief
unless mutually agreed by the respondent and charging party.

(e) A decision on the merits of the improper practice charge by the
board of collective bargaining finding an improper practice to have
occurred shall continue the injunctive relief until either: (i) the
respondent fails to appeal the decision and implements the remedy, or
(ii) the respondent successfully moves in court, upon notice, to vacate
or modify the injunctive relief pursuant to provisions of the civil
practice law and rules.

(f) Any injunctive relief in effect pending a decision by the board of
collective bargaining on appeal: (i) shall expire upon a decision by the
said board finding no improper practice to have occurred, of which the
said board shall notify the court immediately, or (ii) shall remain in
effect only to the extent it implements any remedial order issued by the
said board of its decision, of which the said board shall notify the
court immediately.

(g) All matters in which the court has granted injunctive relief upon
petition by the charging party pursuant to this subdivision shall be
given preference in the scheduling, hearing and disposition over all
other matters before the said board. The said board shall establish
rules and regulations dealing with the implementation of this section
including time limits for its own actions.

(h) The appeal of any order granting, denying, modifying or vacating
injunctive relief ordered by the court pursuant to this subdivision
shall be made in accordance with the provisions of article fifty-five of
the civil practice law and rules except that where such injunctive
relief is stayed pursuant to section fifty-five hundred nineteen of the
civil practice law and rules, an appeal for removal of such stay may be
given preference in the same manner as provided in rule fifty-five
hundred twenty-one of the civil practice law and rules.

(i) Nothing in this section shall be deemed to eliminate or diminish
any right that may exist pursuant to any other law.

(j) The board of collective bargaining shall make such rules and
regulations as may be appropriate to effectuate the purposes and
provisions of this subdivision.

* NB Repealed June 30, 2023

6. Application. In applying this section, fundamental distinctions
between private and public employment shall be recognized, and no body
of federal or state law applicable wholly or in part to private
employment, shall be regarded as binding or controlling precedent.