2006 New York Code - Bargaining Notice; Mediation; Impasse Panels.

 
    §  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.