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party is sent (with copies to other named parties) for amendment if allowed or, if not, a request that the case be withdrawn.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.
Frequently Asked Questions About the Taylor Law & Board
Q: What is the Taylor Law?
A: The Taylor Law (Article 14 of the Civil Service Law) is a comprehensive labor relations statute covering all public employees in New York State. It became effective in 1967 and does the following:
1. grants public employees the right to organize and be represented by a union of their choice, or to refrain therefrom;
2. requires public employers to negotiate with such unions concerning terms and conditions of employment of employees;
3. establishes impasse procedures for the resolution of disputes in negotiations;
4. defines and prohibits improper practices by unions and public employers;
5. prohibits strikes
Q: What is PERB?
A: PERB is the agency established by the Taylor Law to administer that Law.
Q: How does one take an exception to an ALJ or Director's decision?
Q: How much time do I have to file exceptions?
A: Section 213.2(a) provides that you have 15 working days from receipt of the ALJ or Director decision to file exceptions.
Q: Where are the exceptions filed?
A: Section 213.2(a) provides that the exceptions must be filed with the Board. [Note: Do not file exceptions with the Director of Public Employment Practices.]
Q: How many copies of the exceptions are filed?
A: Section 213.2(a) requires an original and three copies of exceptions and any brief in support thereof.
Q: Do I serve the exceptions on the other party involved in my case?
A: Section 213.2(a) requires that a copy of the exceptions and brief be filed on all other parties and proof of service must be filed with the Board.
Q: What should I put in my exceptions?
A: Section 213.2(b) requires that the exceptions include the specific finding, ruling, order, question(s) or policy objected to and that the specific page in the decision and/or record relating to same be identified.
Q: What happens if I fail to take an exception to a specific issue or policy discussed in the decision?
Q: What do I do if the other party files an exception in my case?
Q: How much time do I have to file a cross-exception and/or response?
A: Section 213.3 requires that a cross-exception and/or response to exceptions must be filed within seven working days after receipt of the exceptions.
Q: Where do I file my cross-exceptions and/or response to exceptions?
A: Cross-exceptions and/or response to exceptions must be filed with the Board.
Q: How many copies?
A: Section 213.3 requires an original and three copies of the cross-exceptions, response, and briefs in support thereof.
Q: Do I serve my cross-exceptions and/or response to exceptions on the other party?
A: Section 213.3 requires a copy of the cross-exceptions and/or response to exceptions be filed on the other party and proof of service must be filed with the Board.
Q: Can I file a response to a cross-exception?
Q: Can I file any other pleading with the Board?
A: Only if the Board requests the additional document or gives you permission.
Q: What happens if I need more time to file my pleading?
A: Section 213.4 permits you to request additional time provided the time to file has not yet expired. You must make your request in writing and notify all other parties to your case. In addition, you must indicate whether the other party consents to your request.
Q: Is it possible to make an oral presentation to the Board?
A: Section 213.5 provides that a party may request oral argument. However, this request must be made at the time your pleading (exceptions, cross-exceptions and/or response) is filed with the Board.
Q: What action will the Board take on my case?
A: Section 213.6 provides that the Board may affirm, all or part, reverse, all or part, modify and/or remand your case for further proceedings.
Q: When is the decision in my case final?
A: The decision of the ALJ or the Director is final if no timely exceptions are filed.
Q: How do I appeal a decision of the Board?
A: Judicial appeals of final decisions of the Board are governed by Civil Practice Law and Rules (CPLR) Article 78.
Frequently Asked Questions About Counsel's Office and Judicial Review
Q: What is the effect of a final order of the Public Employment Relations Board?
A: 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.
Q: When is judicial review of PERB's determination in a representation proceeding available?
A: 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 ), or to ascertain employees’ choice of employee organization as their representative (Civil Service Law Section 207 ) 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.
Q: Can a final order be appealed?
A: Yes. 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 for Article 78 review with 30 days after service by registered or certified mail of a copy of the order on that party.
Q: What does ``enforcement`` of an order mean?
A: PERB’s orders are not self-enforcing. Enforcement is a special proceeding by which PERB petitions State Supreme Court to order the respondent, the party charged, to comply with a PERB order.
Frequently Asked Questions About Strikes
Q: What conduct is prohibited by the Taylor Law's no-strike provisions?
A: 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.”
Q: What is a strike?
A: 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.
Q: Is the reason for a strike relevant to determining whether a strike has occurred?
A: 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.
Q: What is the penalty for striking?
A: 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.
Q: I've just received notice from my employer that I have been found to have violated Civil Service Law Section 210. What happens now?
A: 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.
Frequently Asked Questions About Injunctive Relief
Q: What is ``injunctive relief``?
A: 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.
Q: Is injunctive relief available in an improper practice proceeding?
A: 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.
Q: When can I file for injunctive relief?
A: 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.
Q: What goes into an application for injunctive relief?
A: 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.
Q: A copy of an injunctive relief application was just delivered. Does my organization get a chance to respond?
A: 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.
Q: I filed an application for injunctive relief with PERB. When do I get the injunction?
A: 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.
Frequently Asked Questions About Representation
Q: How does an employee organization become the bargaining agent?
A: 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.
Q: Is there any difference between the rights or obligations of a recognized employee organization as opposed to a certified employee organization?
A: No. The rights and obligations are identical.
Q: What is a bargaining unit?
A: 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.
Q: Can a recognized or certified bargaining agent be removed or replaced?
A: An employee organization, an employer or public employees may file a petition seeking to “decertify” an incumbent bargaining agent.
Q: What are the filing requirements for a certification or decertification petition?
A: 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.
Q: How is a representation petition processed?
A: 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.
Q: Do unit employees get to vote on what bargaining unit they are included in?
A: 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.
Q: How is that choice made?
A: 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.
Q: Are the parties entitled to observers at the election site?
A: Yes. The observers are there to assist the PERB agent conducting the election and to verify that only eligible voters get to vote.
Q: What if a party thinks the election process was tainted by improper conduct?
A: 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.
Q: A petition has been filed to decertify the current bargaining agent. Can the employer and incumbent union continue to bargain?
A: No. Absent the consent of all parties, no bargaining is allowed for employees affected by the petition until the matter is concluded.
Q: Can an unrepresented position be added to a bargaining unit?
A: 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.
Q: What are managerial or confidential employees?
A: 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.
Q: Are supervisors automatically deemed managerial employees?
A: No. Supervisors are not excluded from representation rights, unless they meet the definition of managerial employees, described above.
Q: How is such a designation obtained?
A: An employer may file an application for designation of employees as managerial or confidential with PERB pursuant to Section 201.10 of the Rules of Procedure.
Frequently Asked Questions About Improper Practices
Q: What is an improper practice?
A: 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.
Q: How is a complaint made that an improper practice has occurred?
A: 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.
Q: When must such charge be filed?
A: An improper practice charge must be filed within four months of the alleged misconduct.
Q: What constitutes filing?
A: 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.
Q: How are improper practice charges initially processed?
A: 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.
Q: How is the case processed after the initial review by the Director?
A: The charge is assigned to an Administrative Law Judge (ALJ) to conduct a conference for the purpose of clarifying, limiting and resolving the issues. If the charge is not resolved at the conference, the matter is reassigned to a different ALJ for the issuance of the decision. That ALJ may either conduct a hearing or decide the matter on a stipulated record.
Q: What kind of hearing is conducted?
A: 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.
Q: What if a party does not appear at the conference or hearing?
A: Failure of a party to appear at either the conference or hearing may result in dismissal of that party’s pleading.
Q: Can a witness be compelled to attend a hearing or to bring documents to a hearing?
A: 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.
Q: What happens after the hearing?
A: 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.
Q: My union violated its internal election procedures. Can PERB help me?
A: This agency generally lacks jurisdiction concerning internal union affairs.
Q: The employer is not following a particular provision of the collective bargaining agreement. Is that an improper practice?
A: No. Alleged breaches of agreement are not improper practices. PERB lacks jurisdiction over claimed breaches of agreements.
Q: My union is not processing my grievance. Is that improper?
A: 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.
Frequently Asked Questions About Declaratory Rulings
Q: What is a declaratory ruling petition?
A: A declaratory ruling petition seeks a ruling with respect to the applicability of the Act or with respect to the scope of negotiations under the Act. It may be filed by any person, employee organization or employer, under Part 210 of the Rules.
Frequently Asked Questions About the Office of Conciliation and Impasse Procedures
Q: Our contract negotiations have stalled. How do we obtain the services of a mediator from PERB?
A: Either the public employer, or the employee organization, or both jointly, may file an original and three copies of a Declaration of Impasse with the Director of Conciliation. 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.
Q: Who will be assigned as the mediator?
A: 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.
Q: Who are the individuals that serve on PERB's ad hoc mediation panel?
A: 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.
Q: Can we request that a specific mediator be assigned to our impasse?
A: 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.
Q: Can the mediator require the parties to agree on any contract term(s)?
A: 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.
Q: Who pays for the services of the mediator?
A: 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.
Q: What happens if mediation does not result in a contract being reached?
A: 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, in writing, 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 to move the impasse to public interest arbitration.
Q: Must a particular form be used to request fact-finding?
A: No. A letter to the Director of Conciliation, with a copy to the other party, is sufficient. The letter should indicate the number and dates of the mediation sessions, and the primary issues that remain outstanding.
Q: Who will be assigned as the fact finder?
A: 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.
Q: What does a fact finder do?
A: 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.
Q: Can the fact finder require the parties to agree on contract terms?
A: 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.
Q: Who pays for the services of the fact finder?
A: 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.
Q: One or both parties did not accept the fact finder's recommendations. Does PERB provide any further impasse resolution assistance?
A: 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 in writing. Again, joint requests that a particular individual be appointed will be honored consistent with workload, availability and budget.
Frequently Asked Questions About Interest Arbitration
Q: Our unit is eligible for public interest arbitration under the Act. If a contract is not reached through mediation, what is the next step?
A: 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.
Q: Must the arbitration petition or the response be on a specified form?
A: 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.
Q: Who is on the arbitration panel?
A. 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.
Q: How does the panel operate?
A: 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.
Q: Can the public arbitration panel establish employment terms for the unit?
A: 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.
Q: Are there restrictions on which items or proposals the panel may consider?
A: 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.
Q: Is the panel's award subject to approval by the public employer's legislative body?
A: No. The award is final and binding upon the parties and not subject to legislative approval.
Q: Is the panel's award subject to review by PERB or a court?
A: 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.
Q: Who pays for the services of the public arbitration panel?
A: 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.
Frequently Asked Questions About Voluntary Grievance Arbitration
Q: Our contract designated PERB as the administrator of our grievance arbitration procedure. Will PERB accept the filing of a Demand for Arbitration via fax?
A: No. A Demand for Arbitration must be mailed or personally delivered to PERB.
Q: Will PERB allow me to fax my ranked arbitrator selection list, and if so, must I also mail the hard copy?
A: PERB will accept ranked selection lists via fax. Mailing the hard copy is not necessary in such event.
Q: Will PERB give me an extension of time to rank and return my selections?
A: 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.
Q: 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?
A: 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.
Frequently Asked Questions About Staff Grievance Med-Arb
Q: Must the staff grievance med-arb procedure be written into the parties' collective agreement?
A: No. Because a med-arb request might not be appropriate, or accepted by the Director of Conciliation in every case, PERB encourages its use on an ad hoc basis, and auxiliary to a traditional contractual grievance arbitration procedure.
Q: Which cases might not be appropriate or accepted by the Director for med-arb?
A: Med-arb cases are not appropriate when: the parties have a dispute over arbitrability of the grievance; the parties are not prepared to invest time in seeking a mediated settlement of their dispute; there is a need for a transcript or arbitrator-issued subpoenas; the parties need to have a role in arbitrator selection; or the parties cannot agree that any award will be binding. The Director of Conciliation has discretion to reject a submission if the matter is otherwise subject to PERB’s own improper practice jurisdiction, or lies directly within another agency’s statutory jurisdiction; if it involves union security disputes; or staff workload so dictates.
Q: If the matter requires arbitration, will a written award be issued?
A: If an award is necessary, either a bench decision will issue, or a short written decision and award will be issued not later than ten days after the close of the hearing.
Q: Can the award in a med-arb case be appealed to PERB?
A: No. A party can appeal only under Article 75 of the Civil Practice Law and Rules, as is the case with traditional arbitration.