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Frequently Asked Questions

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Will PERB represent me or my organization?

No. The New York State Public Employment Relations Board is a neutral agency. Our purpose is to help adversarial parties settle their differences or, if this is not possible, consider the merits of the case and render an impartial decision.

 

Can PERB help me fill out petition and charge forms?

PERB employees cannot answer the questions for a filing party. PERB can explain or clarify what is being asked and address procedural questions.

 

How long after I file a charge can I expect to hear anything?

PERB makes every effort to review and respond to new charges as quickly as possible after it is received. A charge which has been correctly filed will be assigned to an administrative law judge (ALJ) who will schedule a pre-hearing conference at the earliest available opening on his/her calendar. New cases are received daily and each is reviewed as quickly as possible. If the Director finds a deficiency, a letter to the initiating party is sent (with copies to other named parties) for amendment if allowed or, if not, a request that the case be withdrawn.

 
Does it matter which form I use to file a petition, improper or unfair labor practice charge

Yes. The forms used for private entities fall under the New York State Employment Relations Act. The forms for public entities are under Public Employees’ Fair Employment Act. These are separate and distinct laws and the forms are not interchangeable.
 
 
What if I don’t file the correct number of copies? Is the original included in the number of copies requested?

The processing of a charge or petition may be delayed if a party fails to file the correct number of copies. PERB requires an original and four copies of a charge or petition, including any attachments. The original is separate from the four copies.


How much does it cost to file a petition or a charge?

PERB does not charge a filing fee for petitions or improper practice charges.


What happens at a conference? Can someone bring people to a scheduled conference?

An administrative law judge (ALJ) will conduct the conference. The goal is to bring the parties together, discuss the issues and try to resolve them. You may appear on your own behalf (as a pro se) or you can retain an attorney to attend the conference as your representative.


Can PERB help me get back pay that is owed to me by an employer?

No. The New York State Department of Labor has jurisdiction over unpaid wage claims.

 

What is the difference between the National Labor Relations Board (NLRB) and the Public Employment Relations Board (PERB)?

The NLRB is a federal agency, while PERB is a state agency.  The NLRB administers a law regarding private sector employment only. PERB’s Office of Private Employment Practices and Representation also decides matters related to private sector employment.  However, the NLRB and PERB have jurisdiction over different employers, laws, and claims. Before you file a charge with PERB, it is advisable to contact the NLRB to be sure that the NLRB doesn’t have jurisdiction over your claim.

 

If my Unfair Labor Practice charge paperwork is sufficient, then what happens?

For private sector cases, if the Director of Private Employment Practices and Representation finds that the paperwork is sufficient and the facts, as alleged, may constitute an unfair labor practice under the SERA, then you will receive a notice informing you that a conference has been scheduled. Important note: This is not a ruling on your case. Both parties will be given an opportunity to be heard before any decision is rendered.

Please see PERB’s Guide to Representing Yourself for more information.

 

Can PERB help me find an attorney to handle my case?

No. PERB is an administrative agency and does not provide legal services.

Office of Counsel

What is the effect of a final order of the Public Employment Relations Board?

Final orders of the Public Employment Relations Board are conclusive against all parties to its proceedings and persons who have had an opportunity to be parties to its proceedings, unless reversed or modified by a court in a proceeding for enforcement or judicial review. See Rules 213.10(b).

 

When is judicial review of PERB's final determination in a representation proceeding available?

Orders of the Public Employment Relations Board or its agents made pursuant to its power to define the appropriate employer-employee negotiating unit (Civil Service Law Section 207 [1]), or to ascertain employees’ choice of employee organization as their representative (Civil Service Law Section 207 [2]) can be reviewed only in a proceeding brought to review an order of PERB made pursuant to its power to certify an employee organization under Civil Service Law Section 207 (3). Petitions for judicial review that are started before PERB issues a certification order or an order dismissing a representation petition are premature and the courts will dismiss them.

 

Can a final order unrelated to representation be appealed?

Yes. Pursuant to CSL Section 213(a)(i), final orders can be reviewed by a court under Article 78 of the Civil Practice Law and Rules. An aggrieved party can file a petition within 30 days after receipt of service by registered or certified mail of a copy of the final order on that party.

 

What does "enforcement" of a PERB order mean?

In a case where the charged party fails or refuses to comply with a final PERB order, PERB’s enforcement proceeding allows PERB to petition the State Supreme Court to order such compliance. See Rules 213.11. An aggrieved party may file a request for enforcement with the Office of Counsel.

Strikes

What conduct is prohibited by the Taylor Law's no-strike provisions?

Civil Service Law Section 210 states that “[n]o public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike.” In addition, the law states that “[n]o person exercising on behalf of any public employer any authority, supervision or direction over any public employee shall have the power to authorize, approve, condone or consent to a strike, or the engaging in a strike, by one or more public employees, and such person shall not authorize, approve, condone or consent to such strike or engagement.”

 

What is a strike?

The Taylor Law defines a strike as any strike or other concerted stoppage of work or slowdown by public employees. The Board has found sick-outs, slowdowns, a refusal to work regularly scheduled overtime, concerted high absenteeism, sometimes called the “blue flu,” “work-to-rule” tactics, and teachers’ refusals to participate in field trips, faculty meetings, and parent-teacher conferences, all to be unlawful strikes in the particular circumstances presented in each case.
 

Is the reason for a strike relevant to determining whether a strike has occurred?

No. The Board has found strikes in the particular circumstances where employees refused to work in allegedly hazardous and uncomfortable working conditions, because of an alleged lack of the proper safety equipment on the employers’ vehicles, and in response to certain administrative policies or procedures.
 

What is the penalty for striking?

A public employee whose employer determines that he or she has unlawfully engaged in or consented to a strike is liable to have deducted from his or her compensation an amount equal to twice his or her daily rate of pay for each day or part of a day that it is determined that the employee violated Civil Service Law Section 210. This penalty is often referred to as the “two-for-one” penalty. In addition, an employee who unlawfully strikes may be subject to removal or other disciplinary action provided by law for misconduct. The public employer makes the strike determination and imposes these strike penalties.

A public employee union that violates Civil Service Law Section 210 is liable to forfeit its right to have the public employer deduct membership dues and agency shop fees from the compensation of employees in the bargaining unit that union represents. PERB makes the strike determination and imposes any strike penalty in regard to unions.

 

I've just received notice from my employer that I have been found to have violated Civil Service Law Section 210. What happens now?

You have the right to object to that determination by filing with the chief executive officer of your employer a sworn affidavit, supported by available documentary proof, containing a short and plain statement of the facts on which you rely to show that your employer’s determination is incorrect. Your affidavit is subject to the penalties of perjury, and you must file it within 20 days after the employer’s notice was served on you or mailed to you.

  • If the chief executive officer determines that your filing establishes that you did not unlawfully strike, the chief executive officer must sustain your objection.
  • If the chief executive officer determines that your filing fails to establish that you did not unlawfully strike, the chief executive officer must dismiss your objection and give you notice.
  • If the chief executive officer determines that your filing raises a question of fact, which, if resolved in your favor, would establish that you did not unlawfully strike, the chief executive officer must appoint a hearing officer to determine, after a hearing at which you will have the burden of proof, whether in fact you did unlawfully strike.

If, after the hearing, the hearing officer determines that you failed to establish that you did not unlawfully strike, the chief executive officer will so notify you.

If, after the hearing, the chief executive officer sustains your objection, or if the hearing officer determines on a preponderance of the evidence that you did not unlawfully strike, the chief executive officer will notify your employer’s chief fiscal officer, who will cease making any strike penalty deductions from your compensation and refund any such deductions that were previously made.

You may file a petition in State Supreme Court under Article 78 of the Civil Practice Law and Rules to have a court review any final strike determinations that your employer makes in regard to you.

Injunctive Relief

What is "injunctive relief"?

As related to improper practice charges, injunctive relief is an order from a court to either maintain or restore the status quo, while PERB makes a determination of the merits of the charge, so that the charging party does not suffer an irreparable injury, loss, or damage before the charge is decided on its merits.
 

Is injunctive relief available in an improper practice proceeding?

Yes. A party filing an improper practice charge, or who has already filed an improper practice charge, may petition the Board for injunctive relief pending a decision on the merits of the charge by an Administrative Law Judge. However, injunctive relief is only available where the harm alleged in the improper practice charge is (1) immediate and irreparable and (2) cannot be adequately addressed by the Board’s broad remedial powers in its final determination. The Board has repeatedly held that pure economic damages alone will not rise to the level of harm required for injunctive relief. 
 

When can I file for injunctive relief?

You may separately file an injunctive relief application with PERB’s Office of Counsel after you have separately filed an improper practice charge with the Office of Public Employment Practices and Representation.
 

What goes into an application for injunctive relief?

Per Rules 204.7, you must separately file with the Office of Counsel an original and two copies of the following:

  • an injunctive relief application form;
  • a copy of the separately-filed improper practice charge that is related to the application;
  • an affidavit or affidavits stating in a clear and concise manner; (1) those facts personally known to the person swearing to the affidavit that constitute the alleged improper practice; the date of the alleged improper practice; the alleged injury, loss, or damage arising from the improper practice; and the date when the alleged injury, loss, or damage occurred or will occur; and (2) why the alleged injury, loss, or damage is immediate, irreparable, and will render a resulting judgment on the merits of the improper practice charge ineffectual if injunctive relief is not granted, and why there is a need to maintain or return to the status quo to provide meaningful relief;
  • copies of any documentary evidence in support of the application; and
  • proof of the actual date on which each public employer and employee
  • organization named as a party to the improper practice charge actually received a copy of the application form and the above documents, including a copy of the separately-filed improper practice charge.

For the complete details of these filing requirements, please check the Rules.

 

A copy of an injunctive relief application was just delivered. Does my organization get a chance to respond?

Yes. You may file an original and two copies of an affidavit or affidavits in response with the Office of Counsel within five days after the injunctive relief application was delivered. In certain situations, you may receive notice from the Office of Counsel of a compelling need for an accelerated response. You must serve copies of your response on all other parties.
 

I filed an application for injunctive relief with PERB. When do I get the injunction?

Injunctions are not automatically issued after a charging party files an application for injunctive relief. The Office of Counsel must determine, on the basis of the application and any response, that the application makes a sufficient showing that: (1) there is reasonable cause to believe that an improper practice has occurred; and (2) it appears that immediate and irreparable injury, loss or damage will result, thereby rendering a resulting judgment on the merits ineffectual necessitating the maintenance of, or return to, the status quo for PERB to be able to provide meaningful relief at the end of the improper practice proceeding.

If an application does not make a sufficient showing, Counsel will deny the application and give all parties notice of the denial. If Counsel does not decide the application within 10 days after receiving it, or if Counsel denies the application, the charging party may bring a petition under Article 78 of the Civil Practice Law and Rules in Supreme Court, Albany County, to have a court review the circumstances of the application.

If an application makes a sufficient showing, Counsel will give all parties notice and will petition in State Supreme Court for an injunction or will authorize the charging party to bring a petition for an injunction. Once the petition for an injunction is made to the court, the court controls the timing of the process. The court will grant or deny the petition for an injunction based on the same standard Counsel applies in reviewing the application for injunctive relief.

Representation (Public Sector)

How does an employee organization become the bargaining agent?

An employee organization becomes a bargaining agent either by voluntary recognition by the employer or by certification by PERB. Certification by PERB is the granting of an employee organization’s petition under Part 201 of PERB’s Rules of Procedure to be the exclusive negotiating agent for a bargaining unit.

 

Is there any difference between the rights or obligations of a recognized employee organization as opposed to a certified employee organization?

No. The rights and obligations are identical.

 

What is a bargaining unit?

A bargaining unit is the grouping of employees for the purposes of collective negotiations. The employer and union may agree upon the composition of such unit. If they cannot, PERB must determine the most appropriate bargaining unit. Section 207 of the Act defines the criteria for determining the most appropriate unit.

 

Can a recognized or certified bargaining agent be removed or replaced?

An employee organization, an employer or public employees may file a petition seeking to “decertify” an incumbent bargaining agent.

 

What are the filing requirements for a certification or decertification petition?

The petition must be on a form prescribed by PERB and must be filled out in accordance with Part 201 of the Rules of Procedure, which contain detailed requirements concerning the time periods for the filing of such petitions and the documents which must accompany them. Most notably, these include a showing of interest and a declaration of authenticity.

 
How is a representation petition processed?

The Director assigns the matter to an Administrative Law Judge to conduct an investigation into all representation questions raised by the petition. Typically, a conference is conducted to limit, clarify and attempt to resolve the issues and a hearing may be conducted to resolve any dispute.

 

Do unit employees get to vote on what bargaining unit they are included in?

No. Inclusion of titles in a bargaining unit is a determination to be made by the union and the employer or PERB. The employees in that unit do choose if they wish to be represented by any employee organization.

 

How is that choice made?

If only one employee organization seeks bargaining rights, it may be certified if it produces evidence, e.g., designation cards or petitions, that it represents a majority of the employees in the unit. Otherwise, a representation election will be conducted by the Director. The election may be at the work site or by mail. In both cases, employees in the bargaining unit cast their ballots in secret. A majority of the valid votes that are cast will be dispositive. A run-off election may be conducted when no choice on the ballot receives a majority of the valid votes that are cast.

 

Are the parties entitled to observers at the election site?

Yes. The observers are there to assist the PERB agent conducting the election and to verify that only eligible voters get to vote.
 

What if a party thinks the election process was tainted by improper conduct?

Any party may file objections to the election or to conduct affecting the results of the election. If, after investigation, the Director finds that improper conduct tainted the election, a new election may be ordered.
 

A petition has been filed to decertify the current bargaining agent. Can the employer and incumbent union continue to bargain?

No. Absent the consent of all parties, no bargaining is allowed for employees affected by the petition until the matter is concluded.
 

Can an unrepresented position be added to a bargaining unit?

Yes. A petition for unit clarification or unit placement can be filed in accordance with Section 201.5(e) of the Rules of Procedure. A unit placement petition seeks to place an unrepresented position into an existing unit by applying the Act’s uniting criteria. A unit clarification petition seeks a finding that a position is already included within a unit. No showing of interest need be filed with the petition.

 

What are managerial or confidential employees?

Managerial employees are those who formulate policy or may be required to assist directly in the preparation for and conduct of negotiations or have a major role in contract or personnel administration. Confidential employees are those who assist and act in a confidential capacity to managerial employees with labor relations responsibilities. The employees who are designated by PERB as managerial or confidential are excluded from representation in any bargaining unit.

 

Are supervisors automatically deemed managerial employees?

No. Supervisors are not excluded from representation rights, unless they meet the definition of managerial employees, described above.
 

How is such a designation obtained?

An employer may file an application for designation of employees as managerial or confidential with PERB pursuant to Section 201.9 of the Rules of Procedure.

Representation (Private Sector)

How does an employee organization become the bargaining agent?

An employee organization (union) becomes the bargaining agent either by voluntary recognition by the employer or by certification by PERB. Certification by PERB is the granting of an employee organization’s petition under PERB’s Rules of Procedure to be the exclusive negotiating agent for a bargaining unit.

 

How is a representation petition processed?

The Director of Private Employment Practices and Representation assigns the matter to a hearing officer to conduct an investigation into all representation questions raised by the petition. Typically, a conference is conducted to limit, clarify, and attempt to resolve the issues. A hearing may be conducted to resolve any factual disputes.

 

Is there any difference between the rights and obligations of a “recognized” employee organization and those of a “certified” employee organization?

No. The rights and obligations are identical.

See the FAQ “How does an employee organization become the bargaining agent?”

 

What are the filing requirements for a certification or decertification petition?

The petition must be on a form prescribed by PERB and must be filled out in accordance with PERB’s Rules of Procedure, which contain detailed requirements and list the additional documents that must be submitted. Most notably, these additional documents include a showing of interest and a declaration of authenticity. See, generally, Section 705 of the SERA and Parts 250-251 of PERB’s Rules of Procedure for more information.

 

What is a bargaining unit?

A bargaining unit is the grouping of employees for the purposes of collective negotiations (i.e, to form a contract). The employer and the employee organization (union) may agree upon the composition of such unit. If they cannot agree, PERB must determine the most appropriate bargaining unit.

 

Are supervisors excluded from being represented by an employee organization?

No. Supervisors are not excluded from exercising their representation rights. However, PERB will analyze the job duties of the bargaining unit employees in order to ensure that the unit composition is appropriate.

 

Do employees get to vote on what bargaining unit they are included in?

No. Employees get to vote on whether or not they wish to be represented by an employee organization (union). Once the employee organization is certified as the exclusive bargaining agent, however, the inclusion of job titles in a particular bargaining unit is a determination made by the employee organization and the employer, or by PERB.

 

What is the process for determining whether an employee organization is certified as the bargaining agent?

Very generally, this is the process: If only one employee organization (union) seeks to become the exclusive bargaining agent for a particular bargaining unit, it may be certified as the unit employees’ representative if it produces evidence (e.g., dues deduction cards or signed statements from employees) that a majority of the employees in the unit wish to be represented. Otherwise, a representation election will be conducted by the Director of Private Employment Practices and Representation.

The election may be at the work site or by mail, as determined by the Director. Employees will always cast their ballots in secret. If an employee organization obtains a majority of the valid votes cast, it will be certified. If more than one employee organization seeks to become the exclusive bargaining agent and none of them receives a majority of the valid votes cast, a run-off election may be conducted.

Improper Practices (Public Sector)

What is an improper practice?

Section 209-a.1 (a) through (f) of the Taylor Law identifies improper employer practices. Section 209-a.2 (a), (b) and (c) of the Act sets forth improper employee organization practices.
 
 
How is a complaint made that an improper practice has occurred?

An original and four copies of an improper practice charge, on PERB’s form, must be filed with the Director of Public Employment Practices and Representation. See Part 204 of the Rules of Procedure for the filing requirements.
 
 
When must such charge be filed?

An improper practice charge must be filed within four months of the alleged misconduct.
 
 
What constitutes filing?

Section 200.10 of the Rules defines filing as delivery to the Board or the act of mailing or the deposit of the papers in the custody of an overnight delivery service. Parties are not authorized to file pleadings with PERB by facsimile.


How are improper practice charges initially processed?

The Director reviews the charge to determine whether the facts alleged may constitute a violation of the Act and whether the charge is timely. If the charge is deficient, the charging party is given an opportunity to either amend the charge, if it can be amended, or withdraw it if it cannot.


How is the case processed after the initial review by the Director?

The charge is assigned to an Administrative Law Judge (ALJ) for the purpose of clarifying, limiting and resolving the issues.  If the charge is not resolved at the conference, the ALJ may either conduct a hearing, if there are disputed facts, or decide the matter on a stipulated record.


What kind of hearing is conducted?

Although a lawyer is not required, each party may be represented and is afforded the right to examine and cross-examine witnesses. The technical rules of evidence do not apply.


What if a party does not appear at the conference or hearing?

Failure of a party to appear at either the conference or hearing may result in dismissal of that party’s pleading.


Can a witness be compelled to attend a hearing or to bring documents to a hearing?

It is a party’s burden to call witnesses and produce evidence in support of its case. Part 211 of the Rules of Procedure governs requests for subpoenas in the event that witnesses have advised that they would not appear voluntarily or voluntarily produce documents.
 
What happens after the hearing?

The ALJ may ask the parties or the parties may ask to file legal briefs. Thereafter, the ALJ issues a decision. The parties may then appeal that decision to the Board.
 
My union violated its internal election procedures. Can PERB help me?

This agency generally lacks jurisdiction concerning internal union affairs.
 
The employer is not following a particular provision of the collective bargaining agreement. Is that an improper practice?

No. Alleged breaches of agreement are not improper practices. PERB lacks jurisdiction over claimed breaches of agreements.
 
My union is not processing my grievance. Is that improper?

A union is not required to process every grievance presented by an employee. There is no violation so long as the union’s decision-making is not arbitrary, discriminatory or in bad faith.

Unfair Labor Practices (Private Sector)

What is an unfair labor practice?

Unfair labor practices by a private employer are defined in Section 704 of the SERA.  Additional unfair labor practices by an agricultural employer are defined in Section 704-b.  Unfair labor practices by a farm laborer or an employee organization (union) representing farm laborers are defined in Section 704-b.

 

What can I do if I feel an unfair labor practice has occurred?

If you are a member of an employee organization (union), your union may be able to provide assistance. However, you may file an improper practice charge with PERB, whether or not you are a member of a union. See PERB’s website for the appropriate form for private sector employment.

 

How is an unfair labor practice charge initially processed?

First, the paperwork is reviewed by the Director of Private Employment Practices and Representation to determine if it is complete. If the Director finds a deficiency, a letter is sent to the initiating party (with copies to all other named parties) for amendment if allowed per PERB’s Rules of Procedure; or, if not allowed, a request to withdraw the case is sent to the initiating party. Alternatively, the Director may find that the paperwork is complete. Either way, you will receive a letter informing you of next steps.

Please see PERB’s Guide to Representing Yourself for more information.

 

How is a charge processed after the initial review for sufficiency by the Director?

The Director of Private Employment Practices and Representation will review a newly filed charge and any documents submitted with it. The Director will make one of the following determinations: 1) the facts alleged may constitute an unfair labor practice as set forth in Section 704 and/or 704-b of the SERA and FLFLPA, respectively; or 2) the facts alleged do not, as a matter of law, constitute an unfair labor practice; or 3) the charge form is deficient.

If the Director determines that the facts alleged may constitute an unfair labor practice charge, she will assign the case to a hearing officer for processing, and the parties to the case will receive a Notice that contains information about the next steps. Important note: This assignment does not mean that the Director has determined that an unfair labor practice has occurred; the other party/parties will have the opportunity to respond to the allegations.

Also, see the FAQ “How is an unfair labor practice charge initially processed?”

Please see PERB’s Guide to Representing Yourself for more information.

 

What does a PERB hearing consist of?

A hearing officer conducts every hearing concerning private sector employment. Although a lawyer is not required, each party may choose to be represented by counsel. Both parties have the right to offer exhibits and to call witnesses, and to examine and cross-examine witnesses. The federal rules of evidence do not apply in a PERB hearing.

 

What if a party does not appear at the conference or hearing?

Failure of a party to appear at either the conference or hearing may result in dismissal of that party’s pleading.

 

Can a witness be compelled to attend a hearing or to bring documents to a hearing?

It is a party’s burden to call witnesses and produce evidence in support of its case. PERB’s Rules of Procedure govern requests for subpoenas in the event that a witness has advised that they would not appear voluntarily or voluntarily produce documents. Generally, PERB leaves the subpoena process to the parties.

 

What happens after the hearing?

The hearing officer may ask the parties, or the parties may request, to file legal briefs. Thereafter, the hearing officer will issue a decision. The parties may then appeal hearing officer’s decision to the Board. This is called filing “exceptions” per Section 263.67 of PERB’s Rules of Procedures.

 

I believe that my union violated its internal rules. Can PERB help me?

This agency generally lacks jurisdiction concerning a union’s internal affairs.

 

My employer is not following a particular provision of the collective bargaining agreement (the contract). Is that an unfair labor practice?

Generally, an alleged breach of the collective bargaining agreement is not an unfair labor practice. It is advisable to check with your union about any such issues.

 

Can PERB hear my discrimination claim?

The New York State Division of Human Rights and other municipal and federal agencies have jurisdiction over discrimination claims based on race, creed, color, national origin, sexual orientation, military status, sex, age, marital status, disability, or familial status. PERB has jurisdiction over discrimination claims related to collective bargaining in the SERA (which includes the FLFLPA). The unfair labor practices are listed in their entirety in SERA Sections 704, 704-a, and 704-b.

Conciliation & Impasse Procedures

Our contract negotiations have stalled. How do we obtain the services of a mediator from PERB?

Either the public employer, or the employee organization, or both jointly, may file a Declaration of Impasse with the Director of Conciliation electronically at [email protected]. You should not fax nor mail a hard copy to the agency.
 
PERB maintains a form for this purpose. The Declaration of Impasse must contain all the information specified in Section 205.1(b) of PERB’s Rules of Procedure. A detailed description of the negotiating history of the dispute is especially important. Assuming the information submitted is complete and sufficient, the Director will assign a mediator to the negotiations.

 

Who will be assigned as the mediator?

The mediator will either be a member of PERB’s full-time staff of professional mediators, or a member of PERB’s ad hoc panel of independent, professional neutrals.

 

Who are the individuals that serve on PERB's ad hoc mediation panel?

Only individuals having significant, at-the-table labor relations experience and expertise are deemed qualified by PERB to serve on its ad hoc panel. By profession, these individuals may be full-time public and/or private sector labor neutrals, such as independent arbitrators, may be academics in the field of labor or industrial relations, economics or the like, or may be in business or industry. Some of these neutrals are former advocates for either management or labor, but in such case, their candidacy for the panel was not considered by PERB until a minimum period of six months had elapsed from their last advocacy role. Panelists must be residents of, or maintain bona fide business offices within New York State, or an immediately contiguous area of a bordering state. With the exception of qualified academics, no current public employee will be considered for membership on PERB’s neutral panels.
 
Can we request that a specific mediator be assigned to our impasse?
 
Yes, provided that it is in the form of a joint request from the appropriate employee organization and public employer representatives. In such case, either a particular staff mediator or panel mediator may be requested, and will be assigned if workload, availability and budget so allow. The Director must be advised of the joint request either prior to, or simultaneous with, the filing of the Declaration of Impasse. In no instance will the Director assign a requested neutral if it is a one-sided request.

 

Can the mediator require the parties to agree on any contract term(s)?

No. The mediator’s function is to assist the parties in reaching their own voluntary agreement. The mediator will seek to do so through his or her own creativity, expertise, problem-solving and consensus-building skills.

 

Who pays for the services of the mediator?

Mediators assigned by the Director of Conciliation are either salaried, or, if members of the agency’s ad hoc panel, are paid by PERB on a per diem basis. For budgetary reasons, the mediator’s assignment is generally limited by PERB to three days.

 

What happens if mediation does not result in a contract being reached?

Generally, in the case of all bargaining units other than police, fire fighters, troopers, state agency law enforcement services officers, state correctional services security services personnel, criminal law enforcement deputy sheriffs, and certain transit employees, if either party, or both, feels that further mediation efforts will not bring about an agreement, the party(ies) may so inform the Director of Conciliation by emailing [email protected], and request the assignment of a fact finder. In the case of police, fire fighters, troopers, state agency law enforcement services officers, state correctional services security services personnel, criminal law enforcement deputy sheriffs, and those transit and other employees specified in Sections 209.4 and 209.5 of the Act, either party, or both, may file a petition with the Director at [email protected] to move the impasse to public interest arbitration.

 

Must a particular form be used to request fact-finding?

No. A letter to the Director of Conciliation, with a copy to the other party, is sufficient. The letter should indicate PERB's mediation case number, the number and dates of the mediation sessions, and the primary issues that remain outstanding.

 

Who will be assigned as the fact finder?

Fact finders are assigned by the Director from PERB’s ad hoc panel of professional, neutral fact finders. All such individuals must also be admitted to PERB’s ad hoc mediation panel and must meet the same qualifications and restrictions noted above for that panel. As in the case of mediation, the parties may jointly request the assignment of a particular member of the ad hoc fact-finding panel to their dispute, which will be honored if availability permits.

 

What does a fact finder do?

A fact finder inquires into the causes and circumstances of the impasse, along with the positions being advanced by the parties on the disputed issues, through oral and/or written testimony, exhibits, briefs, etc. The fact finder may hold a hearing to receive such evidence. If deemed appropriate, the fact finder may conduct a limited amount of mediation during the course of his or her assignment.

 

Can the fact finder require the parties to agree on contract terms?

No. The fact finder is empowered only to make public recommendations for resolving the impasse. Either party is free to accept or reject the fact finder’s report and recommendations, in whole or in part. The report and recommendations are made public five days after their transmission to the parties.
 
Who pays for the services of the fact finder?
 
The fact finder is paid by PERB on a per diem basis. For budgetary reasons, the fact finder’s assignment is generally limited to three days.

 

One or both parties did not accept the fact finder's recommendations. Does PERB provide any further impasse resolution assistance?

The Director has discretion to authorize appointment of a conciliator to provide additional mediation after issuance of the fact finder’s report, but prior to any imposition of employment terms by the public employer’s legislative body. The Director is more likely to provide such assistance in the case of bargaining units in educational institutions like school districts, BOCES and community colleges, because under the Taylor Law, those impasses cannot culminate in a legislative imposition, and hence lack a mechanism to provide finality. The Director will generally require that the parties have attempted to voluntarily negotiate on the basis of the fact finder’s report before assigning a conciliator. The conciliator may be one of PERB’s full-time staff mediators, or a member of its ad hoc panel. Conciliation requests should be submitted to [email protected] in writing. Again, joint requests that a particular individual be appointed will be honored consistent with workload, availability and budget.

Interest Arbitration

Our unit is eligible for public interest arbitration under the Act. If a contract is not reached through mediation, what is the next step?

In the case of impasses involving units of police, fire fighters, troopers, state agency law enforcement services officers, state correctional services security services personnel, criminal law enforcement deputy sheriffs, and certain other employees specified in the Act, either the public employer or employee organization, or both, may file with the Director of Conciliation an original and three copies of a petition requesting that PERB refer the impasse to a public arbitration panel. The other party to the impasse must file an original and three copies of a response within 10 working days of its receipt of the petition.

 

Must the arbitration petition or the response be on a specified form?

No. Any writing is sufficient, provided it contains all the information specified in Section 205.4 (for the petition) or 205.5 (for the response) of PERB’s Rules of Procedure, and proof of service on the other party. In the case of an impasse involving the New York City Transit Authority, Metropolitan Transit Authority or their subsidiaries, the petition must comply with Section 205.14 of PERB’s Rules of Procedure, and the response with Section 205.16. The process for these impasses is also slightly different, in that PERB must formally certify, after an investigation, that a voluntary resolution of the negotiations cannot be effected.

 

Who is on the arbitration panel?

The public arbitration panel is a tripartite panel. One member is chosen by the public employer, one by the employee organization, and the third, who serves as the neutral chair or public member, is chosen either by mutual agreement of the parties, or by the parties alternately striking names from a list of nine arbitrators provided by PERB, until one name remains. The arbitrators listed by PERB are a select group of labor relations professionals, each of whom must first have been admitted to, and done significant work on, the agency’s ad hoc mediation, fact-finding and voluntary grievance arbitration panels, before being considered for membership on its roster of public interest arbitrators.
 
 
How does the panel operate?
 
Conduct of the arbitration proceeding is under the exclusive control and jurisdiction of the panel itself. Generally, the public member of the panel will investigate whether the impasse can be settled without the necessity of issuing an award, and often will hold what are called executive sessions of the panel for this purpose. If the matter is not settled, the panel generally will hold a hearing at which both parties will present oral and written testimony and introduce exhibits in support of their respective positions.

 

Can the public arbitration panel establish employment terms for the unit?

Yes. The panel is empowered to render a final and binding determination of matters presented before it for a period of not more than two years from the expiration date of any previous collective bargaining agreement. If there is no previous agreement, then the panel’s award may not be for a period in excess of two years from the date of the award.

 

Are there restrictions on which items or proposals the panel may consider?

Absent objection, the panel may award on any and all items not otherwise prohibited from its consideration by statute or case law. Particular Taylor Law restrictions exist regarding troopers, state agency law enforcement services officers, state correctional services security services personnel, and criminal law enforcement deputy sheriffs. Either party, however, may object to the arbitrability of an item proposed in the petition or response by filing an improper practice charge or declaratory ruling petition with PERB in accordance with Section 205.6 of the Rules of Procedure. Objections may include, but are not limited to, that the item being submitted to arbitration is not a mandatory subject of negotiations, was not the subject of prior negotiations, or had been resolved during the course of prior negotiations.

 

Is the panel's award subject to approval by the public employer's legislative body?

No. The award is final and binding upon the parties and not subject to legislative approval.

 

Is the panel's award subject to review by PERB or a court?

The award is not subject to review by PERB. The award is subject to judicial review under the narrow standards for review of arbitration awards contained in Article 75 of the Civil Practice Law and Rules.

 

Who pays for the services of the public arbitration panel?

Each party is responsible for bearing the cost of the panel member it appointed, and the parties are responsible for sharing equally the cost of the public member.

Voluntary Grievance Arbitration

Our contract designated PERB as the administrator of our grievance arbitration procedure. Will PERB accept the filing of a Demand for Arbitration via fax?

No. A Demand for Arbitration must be electronically filed pursuant to the Office of Conciliation's Electronic Filing Guidelines.

 

Will PERB allow me to fax my ranked arbitrator selection list, and if so, must I also mail the hard copy?

PERB will only accept ranked (or rejected) selection lists, electronically. You should not fax nor mail a hard copy to the agency.

 
Will PERB give me an extension of time to rank and return my selections?
 
As administrator, PERB does not rule on requests for extensions of time but will abide by any such request if the consent of the other party has been obtained.
 

The parties want to utilize PERB as the contract grievance administrator but wish to tailor either the procedure or the panel of arbitrators to meet their particular needs. Will PERB serve as administrator in such circumstances?

In most instances, PERB will accommodate the parties, and administer panels or procedures that modify those maintained under the Voluntary Grievance Arbitration Rules of Procedure. Contact the Panel Administrator at 518-457-6014 to discuss your specific plans.