New York Codes, Rules and Regulations
Title 4 - DEPARTMENT OF CIVIL SERVICE
Appendices
Appendix 4

Current through Register Vol. 44, No. 38, September 21, 2022

SUMMARY OF THE RULES

OF

THE PUBLIC EMPLOYMENT RELATIONS BOARD

INTRODUCTION

The following is a summary of the Rules adopted under provisions of the Public Employees' Fair Employment Act (Taylor Law). This summary is designed to help public employers, public employees and employee organizations understand their responsibilities and rights under the Act. As such, it summarizes relevant aspects of the Act and of the Rules adopted by the New York State Public Employment Relations Board.

The criteria adopted by the Board (e.g., those relating to the requirements for the filing of petitions and to showings of interest) need not be adopted by impartial agencies operating under provisions of the Act which authorize local governments to enact their own procedures.

The Taylor Law and the Rules of the Board:

[*] Give public employees the right to join or refrain from joining any employee organization;

[*] Give public employees the right to be represented by employee organizations of their own choosing and to negotiate collectively with their public employers;

[*] Allow for the designation of persons as "managerial" or "confidential";

[*] Require public employers to negotiate with the duly recognized or certified representatives of their employees and to enter into written agreements with them;

[*] Oblige public employers and employee organizations to refrain from "improper practices" which deny to employees rights granted by the Act;

[*] Establish impasse procedures for the resolution of disputes in negotiations in the public sector;

[*] Prohibit strikes by public employees.

Fundamental to the exercise of these rights is the selection of organizations to represent employees in collective negotiations. The selection of such organizations involves two basic issues: the determination of an appropriate negotiating unit, and the determination of the employee organization which will represent the public employees in the unit determined to be appropriate.

These determinations may be made jointly by a public employer and its public employees so long as they are not disputed. The designation of an employee organization as negotiating agent in this manner is called recognition. Where the representation status of an employee organization is challenged or when the public employer does not grant recognition after receiving a request for recognition from an employee organization, the question involved must be resolved by the Public Employment Relations Board or by a local impartial agency in accordance with provisions and procedures established by the local government under sections 206.1 or 212 of the Act. In the absence of established local government procedures under sections 206.1 or 212 of the Act, or when the procedures established under section 206.1 do not provide for resolution of disputes by an impartial agency (both of these sections are discussed in this summary), questions regarding the selection of employee organizations will be resolved by PERB in accordance with its own Rules.

REPRESENTATION PROCEEDINGS

When confronted with a request for recognition by one employee organization, an employer must initially resolve the two basic issues cited above: the appropriateness of the unit and the status of the employee organization. If the employer, after deciding upon what it believes to be the appropriate unit for collective negotiations, determines that the employee organization involved represents the employees it claims to represent within that unit, it should grant recognition to that employee organization. If there is no dissent from this determination, there is no need for PERB to become involved. A question concerning representation may be brought before the Board in the following ways:

[*] By a public employer who has received a request for recognition.

[*] By a public employer seeding a determination that certain of its employees are managerial or confidential --Such an employer may file an application with PERB from the first day of the fourth month through the last day of the fifth month after the commencement of its fiscal year.

[*] No response by the public employer to a request for recognition --In the event that the public employer makes no response to a request for recognition, the party seeking recognition may, after thirty days and within sixty days, file a petition for certification with PERB.

[*] Refusal by the public employer to grant recognition --Within thirty days thereafter, a petition for certification may be filed with PERB by the party which is refused recognition by the public employer.

[*] There is objection to the public employer's recognition of an employee organization --A petition for certification and/or decertification may be filed by, or on behalf of a competing employee organization, or a petition for decertification may be filed by am employee or group of employees, which has reason to believe that there has been an error either in establishment of the negotiating unit or in granting recognition. This petition must be filed within thirty days after the employer has posted and published notice that it has granted recognition to an employee organization. Such posting and publication are required immediately after the granting of recognition. Upon the expiration of the period during which an employee organization is entitled to unchallenged representation statue--A petition for certification or decertification may be filed during the thirty days preceding the expiration of this period.

PROCESSING OF PETITIONS BY PERB

Once a petition is filed with PERB, it will be reviewed by the Director.

1. Appropriate negotiating unit --It is recognized that in many cases different parties may be able to argue with varying degrees of logic that different units are appropriate. The complexity of this issue was recognized by the Legislature, which included in the Taylor Law a mandate for continuous study of the question. The Act does, however, set forth the following criteria for determination of an appropriate unit:

(a) Community of interest --This is a most significant element that must be considered in determining the appropriate unit in a particular case. The following will be important in this regard: whether the employees sought to be grouped together are subject to common working rules, personnel practices, environment or salary and benefit structure. A helpful question to ask is whether any real conflict of interest exists among the employees in the proposed unit.

(b) Power to reach agreement --Briefly, this means that the agent of the public employer who would ordinarily deal with the proposed unit should have the power to act effectively concerning the terms and conditions of employment to be negotiated.

(c) Responsibilities to the public --The proposed unit must be compatible with the joint responsibilities of the public employer and the employees to serve the public. This criterion means that a proposed negotiating unit might be inappropriate if its structure and composition were found to interfere with providing a service to the public. It takes into consideration the administrative convenience of the employer and suggests that an excessive number of units is undesirable. On the other hand, too large a unit would preclude meaningful and effective negotiations.

To summarize, the following criteria, among others, are considered in determining the appropriate negotiating unit in each particular case:

(a) the manner in which wages and other terms of employment are determined;

(b) the method of job and salary classification;

(c) interdependence of jobs and interchange of employees;

(d) the desires of employees (this is indicative of a felt community of interest);

(e) past practices regarding organization and negotiations;

(f) the manner in which the employer is organized to do his job;

(g) occupational differences; and

(h) the number of employee organizations with which the employer might have to negotiate.

2. Showing of interest --At the outset of the proceeding, it will be determined administratively whether the employee organization involved has the support of a sufficient number of employees in filing the petition to warrant further processing of the petition. In making this determination, the following showing of interest requirements will be applied unless the petitioner or intervenor is a public employer.

(a) In cases where there has been no response by the public employer to the demand for recognition, where the employer has expressly refused to grant recognition, or where the period of unchallenged representation of an employee organization is expiring, a showing of interest of 30% of the employees in the unit alleged to be appropriate shall be required.

(b) In cases where the petitioner is seeking to review a decision by a public employer to voluntarily recognize an employee organization, a showing of interest of 10% of the employees in the unit deemed appropriate by the employer or alleged to be appropriate by the petitioner shall be required.

(c) Where an employee organization is seeking to intervene in a representation proceeding, a showing of interest of 10% of the employees in the unit already claimed to be appropriate or alleged to be appropriate by the employee organization seeking intervention shall be required.

Ordinarily, the accepted indicia of a showing of interest are evidence of dues deduction authorizations which have not been revoked, evidence of current membership, designation cards or petitions which were signed and dated within six months of the filing of the petition, or a combination of these.

3. Exclusivity --If an employee organization becomes an exclusive negotiating agent, it must represent all employees within the negotiating unit, whether or not such employees are members of the organization. It should be noted that employees cannot be required to join any employee organization.

4. Certification by PERB without an election --If the choice available to the employees in a negotiating unit is limited to the selection or rejection of a single employee organization, that choice may be ascertained on the basis of dues deduction authorizations which have not been revoked, or by individual designation cards which have been executed within six months prior to the certification, or by a combination of both.

5. Certification by PERB after an election --If an election is held, it will be by secret ballot and if an employee organization is found by PERB to represent a majority of those eligible employees who cast valid ballots, that employee organization will be certified as the negotiating agent.

6. Interference with representation procedures --Conduct by any party that prejudices the right of public employees to form, join and participate in or to refrain from forming, joining and participating in concerted activities on behalf of any employee organization of their own choosing will be grounds for setting aside the results of a representation election. If such conduct is determined to have taken place after the filing of a petition in a representation proceeding before PERB, objections nay be filed within five working days after final results of the election have been furnished by PERB to the parties. The objections then will be investigated, hearings will be held, if necessary and the representation election will be set aside if it is determined that there is merit to the objections.

RIGHTS OF A CERTIFIED OR RECOGNIZED EMPLOYEE ORGANIZATION

Once an employee organization has been either recognized or certified, it is extended the right to:

[*] Represent the employees within the unit in negotiations and in settlement of grievances;

[*] Check-off upon presentation to the employer of check-off authorization cards signed by individual employees; and

[*] Unchallenged representation status for the period provided in section 208.2 of the Act.

IMPROPER PRACTICES

PERB has exclusive jurisdiction to prevent improper employer and improper employee organization practices throughout the State, except that the New York City Office of Collective Bargaining may presently also exercise this authority in its jurisdiction. The Act prohibits a public employer from interfering with the exercise of the rights which it grants to public employees; it prohibits a public employer from dominating or interfering with the internal affairs of any employee organization and requires every public employer to negotiate in good faith with recognized and certified representatives of its public employees. Employee organizations are also required to negotiate in good faith and are prohibited from interfering with or coercing public employees in the exercise of rights granted by the Taylor Law.

Charges that a public employer or an employee organization is guilty of an improper practice may be filed within four months thereof by any public employee, an employee organization or a public employer. The person, employee organization or government issuing the charge will be responsible for prosecuting it.

LOCAL GOVERNMENT PROCEDURES UNDER SECTION 206.1 OF THE ACT

Under this section, which does not apply to the State or State public authorities, local public employers may adopt procedures for resolving representation disputes if such procedures are "not inconsistent" with the standards of section 207 of the Act. These procedures are to be adopted by the public employer's legislative body and require appropriate consultation with interested parties. If such procedures provide for the use of an impartial agency to resolve local representation disputes, PERB will conduct, upon receipt of a petition filed in timely fashion under Part 202 of these Rules, a limited review concerned only with whether the procedures established are consistent with the provisions of sections 206.1 and 207 of the Act and pertinent sections of these Rules, whether the procedures have been followed, and whether the decision reached by the impartial agency is repugnant to the Taylor Law. If there is procedural regularity, and no repugnancy exists, PERB's role will cease. If an impartial agency is not used, PERB may review the proceeding de novo.

An impartial agency, as used in this context and with regard to section 212 of the Act, means an agency independent of the local government and without predisposition or appearance of predisposition to favor such local government or any employee organization.

LOCAL GOVERNMENT PROCEDURES UNDER SECTION 212 OF THE ACT

Under section 212 of the Act, the legislature of a local government may enact a complete set of provisions and procedures for resolving representation disputes and settling impasses arising in the course of collective negotiations and procedures for penalizing employee organizations which violate the strike prohibition of the Act. These provisions and procedures, before being implemented, must be found by PERB to be substantially equivalent to the provisions and procedures of the Act and these Rules. Among other things, PERB requires that the administration of the local provisions and procedures be by an impartial agency. The local enactment must also provide that (a) the effective date of repeal, if any, shall be not less than sixty days after notice of the repeal has been given to PERB, and (b) no amendment be effective until PERB finds that the provisions and procedures as amended are substantially equivalent to the provisions and procedures of the Act and these Rules.

If PERB determines that the local enactment is substantially equivalent, the impartial agency created thereby will stand in the stead of PERB and its actions will be reviewable by PERB only to insure that the continued implementation of the local provisions and procedures is substantially equivalent to the provisions and procedures of the Act and these Rules.

IMPASSE

Section 209 of the Taylor Law provides that public employers and recognized or certified employee organizations may enter into written agreements setting forth procedures to be invoked if disputes between them reach an impasse during the course of collective negotiations. These written agreements may be incorporated in a general, collectively negotiated contract, or may be separate written agreements for the limited purpose of resolving particular disputes. If the agreed-upon machinery for resolving disputes breaks down, or if the parties fail to agree upon such procedures, PERB is obliged to invoke the procedures detailed in section 209, subdivision 3 of the Act.

Section 209 of the Taylor Law also provides that public employers may agree to submit unresolved issues to arbitration. If requested by both parties to a dispute, PHRB will furnish an arbitrator, provided that the parties are not subject to the jurisdiction of an agency established by a local government pursuant to section 212 of the Act. The Director of Conciliation will adopt procedures which give the parties an opportunity to participate in the selection of the arbitrator.

GRIEVANCES

A negotiated agreement may provide for arbitration for the resolution of grievances. The Public Employment Relations Board maintains a panel of arbitrators who are available to service parties to a grievance dispute at the expense of the parties.

STRIKES AGAINST A PUBLIC EMPLOYER

Section 210.1 of the Act makes it unlawful for any employee or an employee organization to engage in, cause, instigate, encourage or condone a strike. A charge that section 210.1 is being, or has been, violated by an employee organization may be made by the chief legal officer of the government involved or by the Counsel to PERB upon his own motion. A hearing will then be held by the Board to determine whether there is merit to the charge. One of the points of inquiry, if raised by the employee organization, will be whether the public employer or its representatives engaged in such acts of extreme provocation as to detract from the responsibility of the employee organization for any strike that may be found to have existed. The penalty which the Board may impose if it finds a violation of section 210.1 is that it may order forfeiture of the employee organization's right to dues check-off for a specified period of time or for an indefinite period of time subject to restoration upon application supported by proof that the employee organization no longer asserts the right to strike against any government.

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