Relates to the powers of the public employment relations board to investigate unfair labor practices

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.