Relates to the powers of the public employment relations board to investigate unfair labor practices.
Ayes (62): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Huntley, Johnson, Kennedy, Klein, Krueger, Kruger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
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 immediate effective date.
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 immediately.
STATE OF NEW YORK ________________________________________________________________________ 4016 2011-2012 Regular Sessions IN SENATE March 14, 2011 ___________Introduced by Sen. GOLDEN -- (at request of the Public Employment Relations Board) -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law, in relation to powers of the public employment relations board to investigate unfair labor practices THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 2 of section 706 of the labor law, as added by chapter 443 of the laws of 1937, is amended to read as follows: 2. Whenever a charge has been made that any employer has engaged in or is engaging in any unfair labor practice, the board OR ITS AGENT shall have THE power to
[issue and cause to be served]SERVE upon such employ- er [a complaint stating the charges in that respect and containing a notice of hearing before the board at a place therein fixed to be held not less than seven days after the serving of said complaint]A COPY OF THE CHARGE THAT WAS FILED WITH THE BOARD. Any such [complaint]CHARGE may be amended [by the board or its agent conducting the hearing at any time]FROM TIME TO TIME prior to the issuance of an order based thereon. The EMPLOYER OR THE person so [complained of]CHARGED shall have the right to file an answer to the original or amended [complaint not less than five days after the service of such original or amended complaint]CHARGE and to appear in person or otherwise to give testimony at the place and time set [in the complaint]BY THE BOARD OR ITS AGENT. In the discretion of a member or agent conducting the hearing, or of the board, any other person may be allowed to intervene in the said proceeding and to present testimony. In any such proceeding the board or its agent shall not be bound by technical rules of evidence prevailing in the courts of law or equity. S 2. Subdivisions 1 and 5 of section 708 of the labor law, subdivision 1 as amended by section 6 of part O of chapter 56 of the laws of 2010EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09428-01-1 S. 4016 2
and subdivision 5 as amended by chapter 496 of the laws of 1963, are amended to read as follows: 1. The board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purposes of examination, and the right to examine, copy or photograph any evidence, including payrolls or lists of employees, of any person being investigated or proceeded against that relates to any matter under investigation or in question. The board OR ITS DESIGNATED AGENTS shall have power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investi- gation or in question before the board, its member, agent, or agency, conducting the hearing or investigation. Any member of the board, or any agent or agency designated by the board for such purposes, may adminis- ter oaths and affirmations, examine witnesses, and receive evidence. 5.
[Complaints]CHARGES, PETITIONS, orders, and other process and papers of the board, its member, agent, or agency, may be served either personally or by certified or registered mail [or by telegraph]or by leaving a copy thereof at the [principle]PRINCIPAL office or place of business of the person required to be served. The verified return by the individual so serving the same setting forth the manner of such service shall be proof of the same, and the return post-office receipt [or tele- graph receipt]therefor when registered and mailed [or telegraphed]as aforesaid shall be proof of service of the same. Witnesses summoned before the board, its member, agent, or agency shall be paid the same fees and mileage that are paid witnesses in the courts of this state, and witnesses whose depositions are taken and the person taking the same shall severally be entitled to the same fees as are paid for like services in the courts of this state. S 3. This act shall take effect sixty days after it shall have become a law.