209-A - Improper employer practices; improper employee organization practices; application.

§ 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; or (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.    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;  (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.    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  animproper 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   thescheduling,  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, 2011    * 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 animproper 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, 2011    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.