Section 12-301
§ 12-301 Short title. This chapter may be cited as the "New York city
collective bargaining law."
Section 12-302
§ 12-302 Statement of policy. It is hereby declared to be the policy
of the city to favor and encourage the right of municipal employees to
organize and be represented, written collective bargaining agreements on
matters within the scope of collective bargaining, the use of impartial
and independent tribunals to assist in resolving impasses in contract
negotiations, and final, impartial arbitration of grievances between
municipal agencies and certified employee organizations.
Section 12-303
§ 12-303 Definitions. As used in this chapter, unless the context
clearly indicates otherwise, and subject to the limitations of section
12-304:
a. The term "director" shall mean the director of the office created
by section eleven hundred seventy of the charter.
b. The term "board of collective bargaining" shall mean the board
created by section eleven hundred seventy-one of the charter.
c. The term "board of certification" shall mean the board created by
section eleven hundred seventy-two of the charter.
d. The term "municipal agency" shall mean an administration,
department, division, bureau, office, board, or commission, or other
agency of the city established under the charter or any other law, the
head of which has appointive powers, and whose employees are paid in
whole or in part from the city treasury, other than the agencies
specified in paragraph two of subdivision g of this section.
e. The term "municipal employees" shall mean persons employed by
municipal agencies whose salary is paid in whole or in part from the
city treasury.
f. The term "mayoral agency" shall mean any municipal agency whose
head is appointed by the mayor.
g. The term "public employer" shall mean (1) any municipal agency; (2)
the board of education, the New York city health and hospitals
corporation, the New York city off-track betting corporation, the New
York city board of elections and the public administrator and the
district attorney of any county within the city of New York; (3) any
public authority other than a state public authority as defined in
subdivision eight of section two hundred one of the civil service law,
whose activities are conducted in whole or in substantial part within
the city; and (4) any public benefit corporation, or any museum,
library, zoological garden or similar cultural institution, which is a
public employer or government within the meaning of article fourteen of
the civil service law, employing personnel whose salary is paid in whole
or in part from the city treasury.
h. The term "public employees" shall mean municipal employees and
employees of other public employers.
i. The term "municipal employee organization" shall mean any
organization or association of municipal employees, a primary purpose of
which is to represent them concerning wages, hours, and working
conditions.
j. The term "public employee organization" shall mean any municipal
employee organization and any other organization or association of
public employees, a primary purpose of which is to represent public
employees concerning wages, hours, and working conditions.
k. The term "municipal labor committee" shall mean an association
known by that name created pursuant to a memorandum dated March
thirty-first, nineteen hundred sixty-six, as amended, signed by
representatives of the city and certain employee organizations.
l. The term "certified employee organization" shall mean any public
employee organization: (1) certified by the board of certification as
the exclusive bargaining representative of a bargaining unit determined
to be appropriate for such purpose; (2) recognized as such exclusive
bargaining representative by a public employer in conformity with the
rules set forth in the office of collective bargaining rules of practice
and procedure; or (3) recognized by a municipal agency, or certified by
the department of labor, as such exclusive bargaining representative
prior to the effective date of this chapter, unless such recognition has
been or is revoked or such certificate has been or is terminated.
m. The term "matters within the scope of collective bargaining" shall
mean matters specified in section 12-307 of this chapter.
n. The term "executive order" shall mean, in the case of a mayoral
agency, an executive order, memorandum or directive of the mayor and in
the case of any other municipal agency or public employer, a written
order, directive or resolution of such agency or employer or the head
thereof, which provides for the application of the provisions of this
chapter or otherwise implements the provisions of this chapter.
o. The term "grievance" shall mean: (1) A dispute concerning the
application or interpretation of the terms of a written collective
bargaining agreement or a personnel order of the mayor, or a
determination under section two hundred twenty of the labor law
affecting terms and conditions of employment; (2) A claimed violation,
misinterpretation, or misapplication of the rules or regulations of a
municipal agency or other public employer affecting the terms and
conditions of employment; (3) A claimed assignment of employees to
duties substantially different from those stated in their job
classifications; or (4) A claimed improper holding of an
open-competitive rather than a promotional examination. Notwithstanding
the provisions of this subdivision, the term grievance shall include a
dispute defined as a grievance by executive order of the mayor, by a
collective bargaining agreement, or as may be otherwise expressly agreed
to in writing by a public employee organization and the applicable
public employer.
p. The terms "labor member," "city member," and "impartial member"
shall refer to those members of the board of collective bargaining
described in section eleven hundred seventy-one of the charter.
q. The terms "designated representative" and "designated employee
organization" shall mean a certified employee organization, council or
group of certified employee organizations designated for the purposes
specified in paragraph two, three or five of subdivision a of section
12-307.
Section 12-304
§ 12-304 Application of chapter. This chapter shall be applicable to:
a. All municipal agencies and to the public employees and public
employee organizations thereof;
b. any agency or public employer, and the public employees and public
employee organizations thereof, which have been made subject to this
chapter by state law;
c. any other public employer, and to the public employees and public
employee organizations thereof, upon the election by the public employer
or the head thereof by executive order of the chief executive officer to
make this chapter applicable, subject to approval by the mayor,
provided, however, that any such election by the New York city board of
education shall not include any teacher as defined in section 13-501 of
the administrative code or any employee who works in that capacity or
any para-professional employees with teaching functions; and
d. any public employer, and the public employees and public employee
organizations thereof, to whom the provisions of this chapter are made
applicable pursuant to paragraph four of subdivision c of section 12-309
of this chapter.
Section 12-305
§ 12-305 Rights of public employees and certified employee
organizations. Public employees shall have the right to
self-organization, to form, join or assist public employee
organizations, to bargain collectively through certified employee
organizations of their own choosing and shall have the right to refrain
from any or all of such activities. However, neither managerial nor
confidential employees shall constitute or be included in any bargaining
unit, nor shall they have the right to bargain collectively; provided,
however, that public employees shall be presumed eligible for the rights
set forth in this section, and no employee shall be deprived of these
rights unless, as to such employee, a determination of managerial or
confidential status has been rendered by the board of certification; and
provided further, that nothing in this chapter shall be construed to:
(i) deny to any managerial or confidential employee his or her rights
under section fifteen of the civil rights law or any other rights; or
(ii) prohibit any appropriate official or officials of a public employer
as defined in this chapter to hear and consider grievances and
complaints of managerial and confidential employees concerning the terms
and conditions of their employment and to make recommendations thereon
to the chief executive officer of the public employer for such action as
such chief executive officer shall deem appropriate. A certified or
designated employee organization shall be recognized as the exclusive
bargaining representative of the public employees in the appropriate
bargaining unit.
Section 12-306
§ 12-306 Improper practices; good faith bargaining. a. Improper public
employer practices. It shall be an improper practice for a public
employer or its agents:
(1) to interfere with, restrain or coerce public employees in the
exercise of their rights granted in section 12-305 of this chapter;
(2) to dominate or interfere with the formation or administration of
any public employee organization;
(3) to discriminate against any employee for the purpose of
encouraging or discouraging membership in, or participation in the
activities of, any public employee organization;
(4) to refuse to bargain collectively in good faith on matters within
the scope of collective bargaining with certified or designated
representatives of its public employees;
(5) to unilaterally make any change as to any mandatory subject of
collective bargaining or as to any term and condition of employment
established in the prior contract, during a period of negotiations with
a public employee organization as defined in subdivision d of section
12-311 of this chapter.
b. Improper public employee organization practices. It shall be an
improper practice for a public employee organization or its agents:
(1) to interfere with, restrain or coerce public employees in the
exercise of rights granted in section 12-305 of this chapter, or to
cause, or attempt to cause, a public employer to do so;
(2) to refuse to bargain collectively in good faith with a public
employer or on matters within the scope of collective bargaining
provided the public employee organization is a certified or designated
representative of public employees of such employer;
(3) to breach its duty of fair representation to public employees
under this chapter.
c. Good faith bargaining. The duty of a public employer and certified
or designated employee organization to bargain collectively in good
faith shall include the obligation:
(1) to approach the negotiations with a sincere resolve to reach an
agreement;
(2) to be represented at the negotiations by duly authorized
representatives prepared to discuss and negotiate on all matters within
the scope of collective bargaining;
(3) to meet at reasonable times and convenient places as frequently as
may be necessary, and to avoid unnecessary delays;
(4) to furnish to the other party, upon request, data normally
maintained in the regular course of business, reasonably available and
necessary for full and proper discussion, understanding and negotiation
of subjects within the scope of collective bargaining;
(5) if an agreement is reached, to execute upon request a written
document embodying the agreed terms, and to take such steps as are
necessary to implement the agreement.
d. Joinder of parties in duty of fair representation cases. The public
employer shall be made a party to any charge filed under paragraph three
of subdivision b of this section which alleges that the duly 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.
e. A petition alleging that a public employer or its agents or a
public employee organization or its agents has engaged in or is engaging
in an improper practice in violation of this section may be filed with
the board of collective bargaining within four months of the occurrence
of the acts alleged to constitute the improper practice or of the date
the petitioner knew or should have known of said occurrence. Such
petition may be filed by one or more public employees or any public
employee organization acting on their behalf, or by a public employer,
together with a request to the board for a final determination of the
matter and for an appropriate remedial order.
Section 12-307
§ 12-307 Scope of collective bargaining; management rights. a. Subject
to the provisions of subdivision b of this section and subdivision c of
section 12-304 of this chapter, public employers and certified or
designated employee organizations shall have the duty to bargain in good
faith on wages (including but not limited to wage rates, pensions,
health and welfare benefits, uniform allowances and shift premiums),
hours (including but not limited to overtime and time and leave
benefits), working conditions and provisions for the deduction from the
wages or salaries of employees in the appropriate bargaining unit who
are not members of the certified or designated employee organization of
an agency shop fee to the extent permitted by law, but in no event
exceeding sums equal to the periodic dues uniformly required of its
members by such certified or designated employee organization and for
the payment of the sums so deducted to the certified or designated
employee organization, subject to applicable state law, except that:
(1) with respect to those employees whose wages are determined under
section two hundred twenty of the labor law, the duty to bargain in good
faith over wages and supplements shall be governed by said section;
(2) matters which must be uniform for all employees subject to the
career and salary plan, such as overtime and time and leave rules, shall
be negotiated only with a certified employee organization, council or
group of certified employee organizations designated by the board of
certification as being the certified representative or representatives
of bargaining units which include more than fifty percent of all such
employees, but nothing contained herein shall be construed to deny to a
public employer or certified employee organization the right to bargain
for a variation or a particular application of any city-wide policy or
any term of any agreement executed pursuant to this paragraph where
considerations special and unique to a particular department, class of
employees, or collective bargaining unit are involved;
(3) matters which must be uniform for all employees in a particular
department shall be negotiated only with a certified employee
organization, council or group of certified employees organizations
designated by the board of certification as being the certified
representative or representatives of bargaining units which include more
than fifty percent of all employees in the department;
* (4) all matters, including but not limited to pensions, overtime and
time and leave rules which affect employees in the uniformed police,
fire, sanitation and correction services, or any other police officer as
defined in subdivision thirty-four of section 1.20 of the criminal
procedure law who is also defined as a police officer in this code,
shall be negotiated with the certified employee organizations
representing the employees involved. For purposes of this paragraph
only:
(i) employees of the uniformed fire service shall also include persons
employed at any level of position or service by the fire department of
the city of New York as fire alarm dispatchers and supervisors of fire
alarm dispatchers, fire protection inspectors and supervisors of fire
protection inspectors, emergency medical technicians and advanced
emergency medical technicians, as those terms are defined in section
three thousand one of the public health law, and supervisors of
emergency medical technicians or advanced emergency medical technicians;
(ii) employees of the uniformed police service shall also include
persons employed at any level of position or service by the police
department of the city of New York as traffic enforcement agents and
supervisors of traffic enforcement agents, and school safety agents and
supervisors of school safety agents; and
(iii) employees of the uniformed sanitation service shall also include
persons employed at any level of position or service by the sanitation
department of the city of New York as sanitation enforcement agents and
supervisors of sanitation enforcement agents;
* The validity of local law 56 of 2005 is currently a subject of
disagreement between the Mayor and the City Council. This certification
is not intended as a legal opinion as to the validity of the local law
other than certifying the truth of the facts presented herein.
(5) all matters, including but not limited to pensions, overtime and
time and leave rules which affect the following employees at any level
of position or service in the following agencies shall be negotiated
with the certified employee organizations representing the employees
involved:
(i) persons employed by the department of homeless services of the
city of New York as special officers, senior special officers,
supervising special officers and principal special officers;
(ii) persons employed by the department of health and mental hygiene
of the city of New York as special officers, senior special officers,
supervising special officers and principal special officers;
(iv) persons employed by the human resources administration of the
city of New York as special officers, senior special officers,
supervising special officers and principal special officers;
(v) persons employed by the administration for children's services of
the city of New York as special officers, senior special officers,
supervising special officers and principal special officers;
(vi) persons employed by the taxi and limousine commission of the city
of New York as taxi and limousine inspectors, supervising taxi and
limousine inspectors, senior taxi and limousine inspectors and associate
taxi and limousine inspectors;
(vii) persons employed by the department of transportation of the city
of New York as parking control specialists and associate parking control
specialists;
(viii) persons employed by the department of parks and recreation of
the city of New York as urban park rangers and associate urban park
rangers; and
(ix) persons employed by the department of finance of the city of New
York as deputy sheriffs, supervising deputy sheriffs and administrative
sheriffs.
(6) matters involving pensions for employees other than those in the
uniformed forces referred to in paragraph four hereof, shall be
negotiated only with a certified employee organization, council or group
of certified employee organizations designated by the board of
certification as representing bargaining units which include more than
fifty percent of all employees included in the pension system involved.
b. It is the right of the city, or any other public employer, acting
through its agencies, to determine the standards of services to be
offered by its agencies; determine the standards of selection for
employment; direct its employees; take disciplinary action; relieve its
employees from duty because of lack of work or for other legitimate
reasons; maintain the efficiency of governmental operations; determine
the methods, means and personnel by which government operations are to
be conducted; determine the content of job classifications; take all
necessary actions to carry out its mission in emergencies; and exercise
complete control and discretion over its organization and the technology
of performing its work. Decisions of the city or any other public
employer on those matters are not within the scope of collective
bargaining, but, notwithstanding the above, questions concerning the
practical impact that decisions on the above matters have on terms and
conditions of employment, including, but not limited to, questions of
workload, staffing and employee safety, are within the scope of
collective bargaining.
c. It shall be the policy of the city of New York that, to the extent
not inconsistent with law, the city shall make benefits available to the
domestic partners of city employees on the same basis as the city makes
benefits available to the spouses of city employees.
Section 12-308
§ 12-308 Judicial review and enforcement of a final order of the board
of collective bargaining or the board of certification.
a. Any order of the board of collective bargaining or the board of
certification shall be (1) reviewable under article seventy-eight of the
civil practice law and rules upon petition filed by an aggrieved party
within thirty days after service by registered or certified mail of a
copy of such order upon such party, and (2) enforceable by the supreme
court in a special proceeding, upon petition of the board of collective
bargaining, board of certification or any aggrieved party.
b. If a proceeding by the board for enforcement of its order is
instituted prior to the expiration of the period within which a party
may seek judicial review of such order, the respondent may raise in his
or her answer the questions authorized to be raised by section seven
thousand eight hundred three of the civil practice law and rules and
thereafter the proceedings shall be governed by the provisions of
article seventy-eight of the civil practice law and rules that are not
inconsistent herewith, except that if an issue specified in question
four of section seven thousand eight hundred three of the civil practice
law and rules is raised, the proceeding shall be transferred for
disposition to the appellate division of the supreme court. Where an
issue specified in question four of section seven thousand eight hundred
three of the civil practice law and rules is raised, either in a
proceeding to enforce or review an order of the board, the appellate
division of the supreme court, upon completion of proceedings before it,
shall remit a copy of its judgment or order to the court in which the
proceeding was commenced, which court shall have the power to compel
compliance with such judgment or order.
c. In a proceeding to enforce or review an order of the board, the
court shall have power to grant such temporary relief or restraining
order as it deems just and proper, and to make and enter a judgment or
decree enforcing, modifying and enforcing as so modified, or setting
aside in whole or in part the order of the board.
Section 12-309
§ 12-309 Powers and duties of board of collective bargaining; board of
certification; director. a. Board of collective bargaining. The board of
collective bargaining, in addition to such other powers and duties as it
has under this chapter and as may be conferred upon it from time to time
by law, shall have the power and duty:
(1) on the request of a public employer or public employee
organization which is a party to a disagreement concerning the
interpretation or application of the provisions of this chapter, to
consider such disagreement and report its conclusion to the parties and
the public;
(2) on the request of a public employer or certified or designated
employee organization to make a final determination as to whether a
matter is within the scope of collective bargaining;
(3) on the request of a public employer or a certified or designated
employee organization which is party to a grievance, to make a final
determination as to whether a dispute is a proper subject for grievance
and arbitration procedure established pursuant to section 12-312 of this
chapter;
(4) to prevent and remedy improper public employer and public employee
organization practices, as such practices are listed in section 12-306
of this chapter. For such purposes, the board of collective bargaining
is empowered to establish procedures, make final determinations, and
issue appropriate remedial orders;
(5) to recommend any needed changes in the provisions of this chapter
or of an executive order;
(6) to hold hearings and compel the attendance of witnesses and the
production of documents;
(7) to adopt rules and regulations for the conduct of its business and
the carrying out of its powers and duties including rules and
regulations governing the procedures to be followed by mediation and
impasse panels constituted pursuant to subdivision b or c of section
12-311 of this chapter;
(8) where either party to collective bargaining negotiations has
rejected in whole or in part the recommendations of an impasse panel, to
review such recommendations as provided in paragraph four of subdivision
c of section 12-311 of this chapter.
b. Board of certification. The board of certification, in addition to
such other powers and duties as it has under this chapter and as may be
conferred upon it from time to time by law, shall have the power and
duty:
(1) to make final determinations of the units appropriate for purposes
of collective bargaining between public employers and public employee
organizations, which units shall be such as shall assure to public
employees the fullest freedom of exercising the rights granted hereunder
and under executive orders, consistent with the efficient operation of
the public service, and sound labor relations, provided that in any case
involving a petition for certification where supervisory or professional
employees petition to be represented for purposes of collective
bargaining separate and apart from non-supervisory or non-professional
employees, or where a petition for certification has been filed
requesting a unit of supervisory and non-supervisory or a unit of
professional and non-professional employees and the public employer
objects thereto, the board of certification shall not include such
supervisory or professional employees in a bargaining unit which
includes non-supervisory or non-professional employees respectively
unless a majority of the supervisory or professional employees voting in
an election vote in favor thereof;
(2) to determine the majority representative of the public employees
in an appropriate collective bargaining unit by conducting secret-ballot
elections or by utilizing any other appropriate and suitable method
designed to ascertain the free choice of a majority of such employees,
to certify the same as the exclusive bargaining representative thereof;
to designate representatives; and to determine the length of time during
which such certification or designation shall remain in effect and free
from challenge or attack;
(3) to decertify as exclusive bargaining representative an employee
organization which has been found by secret-ballot election no longer to
be the majority representative, or which shall otherwise become
ineligible for certification under the provisions of this chapter, and
to terminate or vacate designations of representatives;
(4) to determine whether specified public employees are managerial or
confidential within the meaning of subdivision seven of section two
hundred one of the civil service law and thus are excluded from
collective bargaining;
(5) to hold hearings and compel the attendance of witnesses and the
production of documents; and
(6) to adopt rules and regulations for the conduct of its business and
the carrying out of its powers and duties, including rules relating to
the standards for determination of bargaining units.
c. Director. The director in addition to such other powers and duties
as he or she has under this chapter and as may be conferred upon such
director from time to time by law, shall have the power and duty:
(1) To oversee adherence to the provisions of this chapter and to
administer the provisions of section 12-311 of this chapter and the
rules and regulations adopted by the board of collective bargaining,
subject to the direction of such board;
(2) To administer the provisions of subdivision b of this section and
the rules and regulations adopted by the board of certification, subject
to the direction of such board;
(3) To maintain communication with public employers and public
employee organizations engaged in collective bargaining negotiations, to
facilitate such negotiations by furnishing at the request of both
parties, such data or information as may aid them therein, and, if such
director determines that either party is remiss in its obligations, to
communicate this information as he or she deems appropriate;
(4) On the request of the mayor, to make available the mediation,
impasse, and arbitration services of the office of collective bargaining
to public employers and public employee organizations not otherwise
entitled to make use thereof at a cost to them to be determined by the
board; and
(5) To direct the operations of the staff of the office of collective
bargaining.
Section 12-310
§ 12-310 Meetings; quorum; vote required; public hearings prior to
adoption of rules. a. Meetings of board of collective bargaining. (1)
The board of collective bargaining shall hold special meetings upon the
call of the director or the request of any two members. Written notice
of all regular and special meetings, including agendas and amendments to
agendas shall be given to each board member, including alternate
members, not more than ten days nor less than one day prior to any such
meeting. A quorum shall consist of one city member, one labor member and
one impartial member or of any four members.
(2) The board of collective bargaining, or such members thereof as it
may designate, shall conduct meetings between representatives of the
city responsible for labor relations and representatives of the
municipal labor committee at least twice a year, and at such other times
as the director determines. These meetings shall not take up grievances
or negotiate changes in wages, hours, or working conditions, but shall
deal with problems of general application, including those arising out
of the administration of the procedures set forth in this chapter. The
director shall also from time to time convene similar meetings between
representatives of particular employers and certified employee
organizations.
b. Meetings of board of certification. The board of certification
shall hold regular and special meetings upon the call of the chairperson
or of the other two members, but shall meet at least ten times a year.
Two members shall constitute a quorum.
c. Vote required. Except as otherwise specifically provided, all
actions, determinations, findings, and recommendations of the board of
collective bargaining and the board of certification shall be by
majority vote of members present and voting. In the absence of a city or
labor member, or in the event of a vacancy, an alternate member of the
board of collective bargaining may vote in the place and stead of the
member for whom he or she is the alternate, or on account of whom the
vacancy exists.
d. Promulgation of rules. Rules and amendments to rules promulgated by
the board of collective bargaining or the board of certification shall
be in conformity with the requirements of chapter forty-five of the city
charter.
Section 12-311
§ 12-311 Bargaining notice; mediation; impasse panels. a. Bargaining
notices. (1) At such time prior to the expiration of a collective
bargaining agreement as may be specified therein (or, if no such time is
specified, at least ninety but not more than one hundred fifty days
prior to expiration of the agreement) a public employer, or a certified
or designated employee organization, which desires to negotiate on
matters within the scope of bargaining shall send the other party (with
a copy to the director) a notice of the desire to negotiate a new
collective bargaining agreement on such matters. The parties shall
commence negotiations within ten days after receipt of such a bargaining
notice, unless such time is extended by agreement of the parties, or by
the director or the board of collective bargaining.
(2) At any time after a public employee organization has been newly
certified or designated to represent the public employees in a
designated bargaining unit, the public employer or the newly certified
or designated employee organization, if it desires to negotiate on
matters within the scope of collective bargaining, may send the other
party (with a copy to the director) a bargaining notice for the terms of
a collective bargaining agreement on such matters. The parties shall
commence negotiations within ten days after receipt of such a bargaining
notice, unless such time is extended by agreement of the parties, or by
the director or the board of collective bargaining.
(3) Nothing herein shall authorize or require collective bargaining
between parties to a collective bargaining agreement during the term
thereof, except that such parties may engage in collective bargaining
during such term on a matter within the scope of collective bargaining
where (a) the matter was not specifically covered by the agreement or
raised as an issue during the negotiations out of which such agreements
arose and (b) there shall have arisen a significant change in
circumstances with respect to such matter, which could not reasonably
have been anticipated by both parties at the time of the execution of
such agreement.
b. Mediation panels. (1) The office of collective bargaining shall
maintain a register of mediators who have been approved for listing
thereon by the board of collective bargaining.
(2) If the director, upon the request of a party or upon his or her
own initiative determines that collective bargaining negotiations
between a public employer and a certified or designated employee
organization would be aided by mediation, he or she shall appoint a
mediation panel from such register to assist the parties in arriving at
an agreement. A mediation panel shall not be appointed less than thirty
days after the commencement of negotiations, unless requested by both
parties. It shall be the duty of the parties to cooperate with the
mediation panel to arrive at an agreement.
(3) The mediation panel shall perform its duties under the general
direction and guidance of the director, to whom it shall report.
c. Impasse panels. (1) The office of collective bargaining shall
maintain a register of impasse panel members who have been approved for
listing thereon by a majority of the entire board of collective
bargaining, including at least one city member and one labor member.
(2) If the board of collective bargaining, upon recommendation of the
director, determines that collective bargaining negotiations (with or
without mediation) between a public employer and a certified or
designated employee organization have been exhausted, and that the
conditions are appropriate for the creation of an impasse panel, it
shall promptly instruct the director to appoint such a panel. The
director may also appoint an impasse panel upon request of both parties.
In appointing a panel, the director shall submit to the parties a single
list of seven persons from the register of impasse panel members, and
each party shall inform the director of its preferences. To the extent
the preferences disclose agreement, the person or persons agreed upon
shall be appointed to the impasse panel; to the extent the preferences
are not in agreement, the director shall proceed to designate the
members of such panel from the register. Each party may at its own
expense designate a consultant to an impasse panel, who shall be
available to the panel for assistance.
(3) (a) An impasse panel shall have power to mediate, hold hearings,
compel the attendance of witnesses and the production of documents,
review data, and take whatever action it considers necessary to resolve
the impasse. If an impasse panel is unable to resolve an impasse within
a reasonable period of time, as determined by the director, it shall,
within such period of time as the director prescribes, render a written
report containing findings of fact, conclusions, and recommendations for
terms of settlement.
(b) An impasse panel appointed pursuant to paragraph two of this
subdivision c shall consider wherever relevant the following standards
in making its recommendations for terms of settlement:
(i) comparison of the wages, hours, fringe benefits, conditions and
characteristics of employment of the public employees involved in the
impasse proceeding with the wages, hours, fringe benefits, conditions
and characteristics of employment of other employees performing similar
work and other employees generally in public or private employment in
New York city or comparable communities;
(ii) the overall compensation paid to the employees involved in the
impasse proceeding, including direct wage compensation, overtime and
premium pay, vacations, holidays and other excused time, insurance,
pensions, medical and hospitalization benefits, food and apparel
furnished, and all other benefits received;
(iii) changes in the average consumer prices for goods and services,
commonly known as the cost of living;
(iv) the interest and welfare of the public;
(v) such other factors as are normally and customarily considered in
the determination of wages, hours, fringe benefits, and other working
conditions in collective bargaining or in impasse panel proceedings.
(c) The report of an impasse panel shall be confined to matters within
the scope of collective bargaining. Unless the mayor agrees otherwise,
an impasse panel shall make no report concerning the basic salary and
increment structure and pay plan rules of the city's career and salary
plan. If an impasse panel makes a recommendation on a matter which
requires implementation by a body, agency or official which is not a
party to the negotiations: (i) it shall address such recommendation
solely to such other body, agency or official; (ii) it shall not
recommend or direct that the municipal agency or other public employer
which is party to the negotiations shall support such recommendation;
and (iii) it may recommend whether a collective bargaining agreement
should be concluded prior to such implementation. Any alternative
recommendations proposed by an impasse panel in the event such
implementation does not occur shall not exceed the total cost of the
original recommendations.
(d) The report of an impasse panel shall be submitted to the parties
to the negotiations, to any other body, agency or official whose action
is required to implement the panel's recommendations, and to the
director. The director shall, with the advice and guidance of the board
of collective bargaining, determine the time at which such report shall
be released to the public, which shall not be later than seven days
after its submission or, upon agreement of the parties and approval of
the director, not later than thirty days after its submission, provided
that if the parties conclude a collective bargaining agreement prior to
the date on which the report is to be released, the report shall not be
released except upon consent of the parties.
(e) Acceptance or rejection. Within ten days after submission of the
panel's report and recommendations, or such additional time not
exceeding thirty days as the director may permit, each party shall
notify the other party and the director, in writing, of its acceptance
or rejection of the panel's recommendations. Failure to so notify shall
be deemed acceptance of the recommendations. The director may release
the acceptance or rejections to the public at such time as the director,
in his or her discretion, may deem advisable. Upon acceptance by all
parties or ten days after the latest rejection by any party, unless an
appeal is earlier filed with the board pursuant to subparagraph (a) of
paragraph four of this subdivision, the recommendation shall become
final and binding and shall constitute an award within the meaning of
article seventy-five of the civil practice law and rules, provided,
however, that any provisions of such award the implementation of which
requires the enactment of a law shall not become binding until the
appropriate legislative body enacts such law.
(4) Review of impasse panel recommendations:
(a) A party who rejects in whole or in part the recommendation of an
impasse panel as provided in subparagraph (e) of paragraph three of this
subdivision may appeal to the board of collective bargaining for review
of the recommendations of the impasse panel by filing a notice of appeal
with said board within ten days of such rejection. The notice of appeal
shall also be served upon the other parties within said time. Upon
failure to appeal within the time provided herein, the recommendations
shall be final and binding upon the party failing to so appeal, as
provided in subparagraph (e) of paragraph three of this subdivision,
except that the board, upon its own initiative, may review
recommendations which have been rejected. Panel recommendations which,
pursuant to the provisions of this subparagraph, become final and
binding on both parties shall constitute an award within the meaning of
article seventy-five of the civil practice law and rules, provided,
however, that any provision of such award the implementation of which
requires the enactment of a law shall not become binding until the
appropriate legislative body enacts such law.
(b) The notice of appeal shall specify the grounds upon which the
appeal is taken, the alleged errors of the panel, and the modifications
requested. The board shall afford the parties a reasonable opportunity
to argue orally before it or to submit briefs, or may permit both
argument and briefs. Review of the recommendations shall be based upon
the record and evidence made and produced before the impasse panel and
the standards set forth in subparagraph (b) of paragraph three of this
subdivision and shall include consideration of issues, if any, of
conformity of the recommendations with any law or regulation properly
governing the conduct of collective bargaining between the city of New
York and its employees, provided, however, that when an appeal is taken
to the board on any of the grounds of prejudice set forth in
subparagraph (i), (ii) or (iii) of paragraph one of subdivision (b) of
section seventy-five hundred eleven of the civil practice law and rules,
review shall also be based upon the record made in any hearing which the
board may direct on such issues, provided, however, that the board
orders such hearing within thirty days of the filing of the notice of
appeal.
(c) Upon such review, the board may affirm or modify the panel
recommendations in whole or in part. A modification of the
recommendations shall be by the vote of a majority of the board. The
board may also set aside the recommendations of an impasse panel in
whole or in part if it finds that the rights of a party have been
prejudiced on any of the grounds set forth in subparagraph (i), (ii) or
(iii) of paragraph one of subdivision b of section seventy-five hundred
eleven of the civil practice law and rules. An order setting aside a
recommendation of such grounds shall be based on a written decision and
shall be made upon a vote of a majority of the board. A member of the
board who has acted as a member of an impasse panel shall not be
disqualified from subsequently participating in a decision or
determination of the board in the same dispute.
(d) The recommendations of the impasse panel shall be deemed to have
been adopted by the board if the board fails to issue a final
determination within thirty days of filing of the notice of appeal, or
within forty days of a notification of rejection to the director of the
board where the board, upon its own initiative, reviews the panel's
recommendations, provided, however, that when a hearing is ordered
pursuant to subparagraph (b) of this paragraph four relating to
allegations of prejudice, the impasse panel's recommendations shall be
deemed to have been adopted by the board only if the board fails to
issue a determination thereon within thirty days after the close of such
hearing, and provided further, that the director may extend the thirty
day or forty day periods mentioned in this subparagraph for an
additional period not to exceed thirty days.
(e) Notwithstanding the provisions of this paragraph four, and except
for purposes of judicial review, any provision of a determination of the
board of collective bargaining the implementation of which requires the
enactment of a law shall not become binding until the appropriate
legislative body enacts such law.
(f) A final determination of the board pursuant either to subparagraph
(c) or (d) of this paragraph four shall be binding upon the parties.
Such a final determination shall constitute an award within the meaning
of article seventy-five of the civil practice law and rules.
d. Preservation of status quo. During the period of negotiations
between a public employer and a public employee organization concerning
a collective bargaining agreement, and, if an impasse panel is appointed
during the period commencing on the date on which such panel is
appointed and ending sixty days thereafter or thirty days after the
panel submits its report, whichever is sooner, provided, however, that
upon motion of the panel, and for good cause shown, the board of
collective bargaining may allow a maximum of two sixty-day extensions of
time for the completion of impasse panel proceedings, provided further,
that additional extensions of time for the completion of impasse panel
proceedings may be granted by the panel upon the joint request of the
parties, and during the pendency of any appeal to the board of
collective bargaining pursuant to subdivision c of this section, the
public employee organization party to the negotiations, and the public
employees it represents, shall not induce or engage in any strikes,
slowdowns, work stoppages, or mass absenteeism, nor shall such public
employee organization induce any mass resignations, and the public
employer shall refrain from unilateral changes in wages, hours, or
working conditions. This subdivision shall not be construed to limit the
rights of public employers other than their right to make such
unilateral changes, or the rights and duties of public employees and
employee organizations under state law. For the purpose of this
subdivision the term "period of negotiations" shall mean the period
commencing on the date on which a bargaining notice is filed and ending
on the date on which a collective bargaining agreement is concluded or
an impasse panel is appointed.
e. Number of members on panels; vote required. (1) Mediation and
impasse panels shall consist of such odd number of persons (one or more)
as may be agreed upon by the parties to the negotiations, or, in the
absence of such agreement, as shall be deemed appropriate by the
director. (2) All actions, determinations, findings and recommendations
of an impasse panel shall be by majority vote.
f. Anything in this chapter notwithstanding, public employers and
certified or designated employee organizations hereby are empowered to
enter into written agreements setting forth procedures to be invoked in
the event of an impasse in collective bargaining negotiations, and such
agreements may include the undertaking by each party to submit
unresolved issues to impartial arbitration, provided that (1) if the
agreement between the parties fails to provide procedures which result
in a final determination of all issues, then all unresolved issues
between the parties shall be subject to the provisions of subdivision c
of this section or so much thereof as may be applicable under the
circumstances, and
(2) questions, issues or disputes as to arbitrability or the scope of
collective bargaining shall be determined by the board of collective
bargaining only.
Section 12-312
§ 12-312 Grievance procedure and impartial arbitration. a. The board
of collective bargaining shall maintain a register of arbitrators who
have been approved for listing thereon by a majority of the entire board
of collective bargaining including at least one city member and one
labor member. The board of collective bargaining shall establish
procedures for impartial arbitration which may be incorporated into
executive orders and collective bargaining agreements between public
employers and public employee organizations.
b. Executive orders, and collective bargaining agreements between
public employers and public employee organizations, may contain
provisions for grievance procedures, in steps terminating with impartial
arbitration of unresolved grievances. Such provisions may provide that
the arbitrator's award shall be final and binding and enforceable in any
appropriate tribunal in accordance with the applicable law governing
arbitration, except that awards as to grievances concerning assignment
of employees to duties substantially different from those stated in
their job classifications, or the use of open-competitive rather than
promotional examinations, shall be final and binding and enforceable
only to the extent permitted by law.
c. Arbitrators appointed under arbitration provisions relating to
municipal agencies shall be persons on the register of the board of
collective bargaining. The costs of such arbitration shall be determined
and allocated pursuant to section eleven hundred seventy-four of the
charter. The board of collective bargaining, in its discretion, may
publish arbitration awards.
d. As a condition to the right of a municipal employee organization to
invoke impartial arbitration under such provisions, the grievant or
grievants and such organization shall be required to file with the
director a written waiver of the right, if any, of said grievant or
grievants and said organization to submit the contractual dispute being
alleged under a collective bargaining agreement to any other
administrative or judicial tribunal except for the purpose of enforcing
the arbitrator's award. This subdivision shall not be construed to limit
the rights of any public employee or public employee organization to
submit any statutory or other claims to the appropriate administrative
or judicial tribunal.
e. Public employees and public employee organizations shall not induce
or engage in any strikes, slowdowns, work stoppages, or mass absenteeism
nor shall public employee organizations induce any mass resignations
during the term of a collective bargaining agreement. A provision to
that effect shall be inserted in all written collective bargaining
agreements between public employers and public employee organizations.
This subdivision shall not be construed to limit the rights of public
employers or the duties of public employees and employee organizations
under state law.
f. It is hereby declared to be the policy of the city that written
collective bargaining agreements with certified or designated employee
organizations should contain provisions for grievance procedures and
impartial binding arbitration, which may be invoked by a public employer
or by a certified or designated employee organization.
g. An employee may present his or her own grievance either personally
or through an appropriate representative, provided that:
(1) a grievance relating to a matter referred to in paragraph two,
three or five of subdivision a of section 12-307 of this chapter may be
presented and processed only by the employee or by the appropriate
designated representative or its designee, but only the appropriate
designated representative or its designee shall have the right to invoke
and utilize the arbitration procedure provided by executive order or in
the collective agreement to which the designated representative is a
party; and provided further that
(2) any other grievance of an employee in a unit for which an employee
organization is the certified collective bargaining representative may
be presented and processed only by, the employee or by the certified
employee organization, but only the certified employee organization
shall have the right to invoke and utilize the arbitration procedure
provided by executive order or in the collective agreement to which the
certified representative is a party.
Section 12-313
§ 12-313 Membership and rules of municipal labor committee. Membership
in the municipal labor committee shall be open to any certified employee
organization as defined in this chapter and which is otherwise eligible
for membership under the rules of such committee. The board of
collective bargaining may, upon the request of any certified employee
organization, abrogate any rule of such committee relating to voting or
eligibility for membership which it determines to be arbitrary or
discriminatory, provided that prior to any such abrogation such
committee shall be given an opportunity on at least ten days' notice to
be heard thereon.
Section 12-314
§ 12-314 Special provisions relating to initial certification. a. Any
employee organization which (1) discriminates with regard to the terms
and conditions of membership because of race, color, creed, religion,
disability, gender, sexual orientation, age, or national origin, or (2)
is engaged in or advocates the violent overthrow of the government of
the United States or of any state or any political subdivision thereof
shall be ineligible for certification as an exclusive bargaining
representative. For purposes of this section, the finding of a court or
an administrative tribunal of competent jurisdiction that an employee
organization has engaged in discrimination upon one of the above bases
in a particular case shall not be dispositive of the question of that
employee organization's eligibility for certification unless it is also
found that the employee organization has engaged in a pattern or
practice of such discrimination generally.
b. No organization seeking or claiming to represent members of the
police force of the police department shall be certified if such
organization (i) admits to membership, or is affiliated directly or
indirectly with an organization which admits to membership, employees
other than members of the police force of the police department, or (ii)
advocates the right to strike.
c. Certificates or designations issued by the department of labor
prior to the effective date of this chapter and in effect on such date
shall remain in effect until terminated by the board of certification
pursuant to its rules. Nothing contained in this subdivision shall limit
the power of the board of certification to determine bargaining units
differing from those determined by the department of labor.
Section 12-315
§ 12-315 Delegation of powers. The director, with the approval of at
least five other members of the board of collective bargaining, may
delegate to independent and impartial private institutions those
functions of the office of collective bargaining relating to (a) the
maintenance of registers of mediators, arbitrators, and members of
impasse panels, (b) the submission of the names of persons on the
impasse panel and arbitration registers for selection by parties to
negotiations or to a grievance, and (c) the conduct of representation
and decertification elections.
Section 12-316
§ 12-316 Emergency suspension of salary and wages. a. It is hereby
found and declared that a fiscal emergency exists for the city of New
York by reason of the following: As a result of the severe economic and
social dislocations of recent years, there has been a great increase in
the need and demand for public services at a time when financing such
services has become increasingly difficult. Due to a general decline in
investor acceptance of local government securities and almost
unprecedented high interest rates, the city of New York, despite the
financial soundness of its obligations, recently has faced increased
difficulty in selling a sufficient amount of its securities to enable it
to refund its outstanding obligations or to meet its cash requirements.
For the immediate future, this increased difficulty has caused concern
that it may be unable to provide, without interruption, many services
essential to its inhabitants while also meeting obligations to the
holders of its outstanding securities as they come due. It is in the
public interest and it is the policy of the city of New York to provide,
without interruption, services essential to its inhabitants while
meeting its obligations to the holders of its outstanding securities.
The state of New York, in an attempt to assist the city of New York and
other municipalities faced by a similar or analogous problem has enacted
chapter one hundred sixty-eight and one hundred sixty-nine of the laws
of nineteen hundred seventy-five, which among other provisions create a
municipal assistance corporation for the city of New York, empowering it
to issue bonds and notes and to use the proceeds from their sale
primarily to provide the city of New York with amounts to pay the
short-term obligations of the city as they mature. Despite statutory
provisions which, in effect, secure the bonds and notes issued by the
municipal assistance corporation for the city of New York with all the
proceeds of the state stock transfer tax and of the state municipal
assistance sales and compensating use taxes to the extent needed for
that purpose, despite the agreement of the city of New York to make and
observe such changes in its record keeping, accounting, budgeting and
financial management practices as the municipal assistance corporation
for the city of New York requires pursuant to such legislation and
despite numerous economy measures taken by the city of New York,
including a substantial reduction in the number of its employees, the
municipal assistance corporation for the city of New York has been
experiencing difficulty in selling the bonds it has issued and has
expressed grave concern with regard to its ability to sell bonds which
it plans to issue in the near future. The city of New York, as a result,
is faced by a fiscal emergency which could seriously impair its ability
to carry on orderly and uninterrupted operations and functions of
government. Imposing certain additional nuisance taxes which the state
in the past had given it power to impose is not a feasible solution
since to do so may further impair the city's credit standing because the
burden of present taxes has contributed to flight from the city of
middleclass taxpaying residents and of a number of business firms. In
view of this situation, it is necessary for the city to exercise its
sovereign police power to suspend salary increases in the manner
provided in subdivision b of this section.
b. The mayor shall have the power to direct by executive order that
all or any part of increases in salary or wages of public employees
which have taken effect since June thirtieth, nineteen hundred
seventy-five or which will take effect after that date pursuant to
collective bargaining agreements or other analogous contracts requiring
such salary increases as of July first, nineteen hundred seventy-five or
as of any date thereafter shall be suspended. All or any part of
increased payments for holiday and vacation differentials, shift
differentials, salary adjustments according to plan and step-ups or
increments which have taken effect since June thirtieth, nineteen
hundred seventy-five or which will take effect after that date pursuant
to collective bargaining agreements or other analogous contracts
requiring such increased payment, as of July first, nineteen hundred
seventy-five or as of any date thereafter may, in the same manner, be
suspended. For the purposes of computing the pension base of retirement
allowances, the suspended salary or wage increases and the suspended
other payment shall not be considered as part of compensation or final
compensation or of annual salary earned or earnable. The suspensions
provided herein shall be effective for the first pay period ending on or
subsequent to September first, nineteen hundred seventy-five and shall
continue until one year thereafter.
c. This section shall not be applicable to public employees covered by
a collective bargaining agreement or a public employee not covered by a
collective bargaining agreement where the collective bargaining
representative or such unrepresented employee, by an instrument in
writing, has agreed to a deferment of salary or wage increase which has
been certified by the mayor as being an acceptable and appropriate
contribution toward alleviating the city's fiscal crisis. The mayor may,
if he or she finds that the fiscal crisis has been alleviated or for any
other appropriate reason, direct by executive order that the suspensions
of salary or wage increases or suspension of other increased payments
shall, in whole or in part, be terminated.
d. Notwithstanding the provisions of section 12-304 of this chapter,
this section shall be applicable to all public employees, including
public employees of any public employer as defined in this chapter.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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