S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    138
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01893-01-3
 A. 138                              2
 
 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
 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.