Section 205. Public employment relations board

1. There is hereby created
  in the state department of civil service a board, to  be  known  as  the
  public  employment relations board, which shall consist of three members
  appointed by the governor, by and with the advice  and  consent  of  the
  senate  from  persons  representative  of  the public. Not more than two
  members of the board shall be members of the same political party.  Each
  member  shall  be  appointed for a term of six years, except that of the
  members first appointed, one shall be appointed for a term to expire  on
  May  thirty-first, nineteen hundred sixty-nine, one for a term to expire
  on May thirty-first, nineteen hundred seventy-one, and one for a term to
  expire on May thirty-first, nineteen hundred seventy-three. The governor
  shall designate one member who shall serve  as  chairman  of  the  board
  until  the  expiration of his term. A member appointed to fill a vacancy
  shall be appointed for the unexpired term of the member whom  he  is  to
  succeed.
    2.  Members  of  the board shall hold no other public office or public
  employment in the state. The chairman shall give his whole time  to  his
  duties.
    3. Members of the board other than the chairman shall, when performing
  the  work  of  the  board, be compensated at the rate of two hundred and
  fifty dollars per  day,  together  with  an  allowance  for  actual  and
  necessary  expenses incurred in the discharge of their duties hereunder.
  The chairman shall receive an annual  salary  to  be  fixed  within  the
  amount  available therefor by appropriation, in addition to an allowance
  for expenses actually and necessarily incurred by him in the performance
  of his duties.
    4. (a) The board may appoint an  executive  director  and  such  other
  persons,  including  but not limited to attorneys, mediators, members of
  fact-finding boards and representatives of  employee  organizations  and
  public  employers  to  serve  as technical advisers to such fact-finding
  boards, as it may from time to time deem necessary for  the  performance
  of  its  functions,  prescribe  their duties, fix their compensation and
  provide for reimbursement of their  expenses  within  the  amounts  made
  available  therefor  by  appropriation.  Attorneys  appointed under this
  section may, at the direction of the board, appear for and represent the
  board in any case in court.
    (b) No member  of  the  board  or  its  appointees  pursuant  to  this
  subdivision,  including  without  limitation any mediator or fact-finder
  employed or retained by the board, shall, except  as  required  by  this
  article,  be  compelled  to  nor  shall  he  voluntarily disclose to any
  administrative or judicial tribunal or at the legislative hearing,  held
  pursuant  to subparagraph (iii) of paragraph (e) of subdivision three of
  section two hundred nine, any information relating to the resolution  of
  a  particular  dispute in the course of collective negotiations acquired
  in the course of his official activities under this article,  nor  shall
  any   reports,  minutes,  written  communications,  or  other  documents
  pertaining to such  information  and  acquired  in  the  course  of  his
  official  activities  under  this  article  be  subject  to  subpoena or
  voluntarily disclosed; except that where  the  information  so  required
  indicates that the person appearing or who has appeared before the board
  has  been the victim of, or otherwise involved in, a crime, other than a
  criminal contempt in a case involving or growing out of a  violation  of
  this  article,  said  members  of  the  board  and its appointees may be
  required to testify fully in  relation  thereto  upon  any  examination,
  trial,  or other proceeding in which the commission of such crime is the
  subject of inquiry.

    5. In addition to the powers and functions provided in other  sections
  of  this  article,  the  board  shall  have  the  following  powers  and
  functions:
    (a)  To establish procedures consistent with the provisions of section
  two hundred seven of this article and after consultation with interested
  parties, to resolve disputes concerning  the  representation  status  of
  employee organizations.
    (b)  To  resolve, pursuant to such procedures, disputes concerning the
  representation status of employee  organizations  of  employees  of  the
  state  and  state  public  authorities  upon  request  of  any  employee
  organization, state department  or  agency  or  state  public  authority
  involved.
    (c) To resolve, pursuant to such procedures but only in the absence of
  applicable procedures established pursuant to section two hundred six of
  this  article,  disputes  concerning  the representation status of other
  employee organizations, upon request of  any  employee  organization  or
  other government or public employer involved.
    (d)  To  establish  procedures for the prevention of improper employer
  and employee organization practices as provided in section  two  hundred
  nine-a  of  this article, and to issue a decision and order directing an
  offending party to cease and desist from any improper practice,  and  to
  take  such  affirmative  action  as will effectuate the policies of this
  article (but not to assess exemplary damages), including but not limited
  to the reinstatement of employees with or without  back  pay;  provided,
  however,  that  except  as  appropriate  to  effectuate  the policies of
  subdivision three of section two hundred nine-a  of  this  article,  the
  board  shall  not  have  authority  to  enforce  an agreement between an
  employer  and  an  employee  organization   and   shall   not   exercise
  jurisdiction  over  an alleged violation of such an agreement that would
  not otherwise constitute an improper employer or  employee  organization
  practice; provided further that, without limiting in any way the board's
  general  power  to  take  affirmative action, including the provision to
  make whole relief, the board's power to address employer  violations  of
  cease  and  desist  orders issued pursuant to this section in connection
  with  charges  of  unfair  labor  practices  under  paragraph   (d)   of
  subdivision  one  of  section  two  hundred nine-a of this article shall
  include, to the extent the board deems  appropriate,  the  authority  to
  make  employees whole for the loss of pay and/or benefits resulting from
  the violation of the cease and desist order and  the  underlying  unfair
  labor  practice  by  providing that any agreement between the parties be
  given retroactive effect to the date on which the unfair labor  practice
  was  found  to  have commenced and by providing for appropriate interest
  from that date, calculated using the short-term  federal  rate  for  the
  underpayment  of  taxes as set out in 26 U.S.C. 6621.14, except that the
  make whole relief provided for under this paragraph shall not be ordered
  when and to the extent that the employee organization is also  found  to
  have  refused  to  bargain  in good faith. When the board has determined
  that a duly recognized or certified employee  organization  representing
  public  employees  has  breached  its duty of fair representation in the
  processing or failure to process a claim alleging that a public employer
  has breached its agreement with such employee  organization,  the  board
  may  direct the employee organization and the public employer to process
  the contract claim in accordance with the parties' grievance  procedure.
  The  board  may,  in  its  discretion,  retain jurisdiction to apportion
  between such employee  organization  and  public  employer  any  damages
  assessed  as  a  result  of  such  grievance  procedure. The pendency of
  proceedings under this paragraph shall not be used as the basis to delay
  or interfere with determination of  representation  status  pursuant  to

  section   two   hundred   seven  of  this  article  or  with  collective
  negotiations.  The   board   shall   exercise   exclusive   nondelegable
  jurisdiction  of  the  powers  granted to it by this paragraph, in which
  connection,  no  finding  of  fact  or  law  contained  in  a report and
  recommendation of a hearing officer appointed  pursuant  to  subdivision
  two   of  section  seventy-five  of  this  chapter  shall  preclude  the
  resolution of any issue of fact or law in a subsequent  proceeding  held
  under   procedures  established  by  the  board  under  this  paragraph;
  provided, however, that this sentence shall not apply to the city of New
  York. The board of collective bargaining established by  section  eleven
  hundred  seventy-one  of  the  New  York  city  charter  shall establish
  procedures  for  the  prevention  of  improper  employer  and   employee
  organization   practices   as   provided   in   section  12-306  of  the
  administrative code of the city of New York, provided, however,  that  a
  party  aggrieved  by  a  final  order  issued by the board of collective
  bargaining in an improper practice proceeding may, within ten days after
  service of the final order,  petition  the  board  for  review  thereof.
  Within  twenty days thereafter, the board, in its discretion, may assert
  jurisdiction to review such final order. The failure or refusal  of  the
  board  to  assert  jurisdiction shall not be subject to judicial review.
  Upon the refusal of the board to assert jurisdiction, an aggrieved party
  shall have the right to seek review of the final order of the  board  of
  collective bargaining. Such proceeding to review shall be brought within
  thirty  days  of  the board's refusal and shall otherwise conform to the
  requirements of article seventy-eight of  the  civil  practice  law  and
  rules. If the board shall choose to review, it may affirm, or reverse in
  whole  or  in  part, or modify the final order, or remand the matter for
  further  proceedings,  or  make  such  other  order  as  it   may   deem
  appropriate, provided, however, that findings by the board of collective
  bargaining  regarding  evidentiary  matters  and  issues  of credibility
  regarding testimony of witnesses shall be final and not subject to board
  review.
    (e) To make studies and analyses of, and act as a  clearing  house  of
  information  relating  to,  conditions of employment of public employees
  throughout the state.
    (f)  To  request  from  any  government,  and  such  governments   are
  authorized to provide, such assistance, services and data as will enable
  the board properly to carry out its functions and powers.
    (g)  To  conduct  studies  of  problems involved in representation and
  negotiation, including, but not limited to  (i)  the  problems  of  unit
  determination,  (ii)  those  subjects  which  are open to negotiation in
  whole or in part, (iii) those subjects which require  administrative  or
  legislative  approval  of  modifications agreed upon by the parties, and
  (iv)  those  subjects  which  are  for  determination  solely   by   the
  appropriate legislative body, and make recommendations from time to time
  for legislation based upon the results of such studies.
    (h)   To   make  available  to  employee  organizations,  governments,
  mediators, fact-finding boards and joint study committees established by
  governments and employee  organizations  statistical  data  relating  to
  wages,   benefits   and  employment  practices  in  public  and  private
  employment applicable to various localities and  occupations  to  assist
  them to resolve complex issues in negotiations.
    (i)   to  establish,  after  consulting  representatives  of  employee
  organizations and administrators of public services, panels of qualified
  persons broadly representative of the public to be available to serve as
  mediators, arbitrators or members of fact-finding boards.
    (j) To hold  such  hearings  and  make  such  inquiries  as  it  deems
  necessary  for it properly to carry out its functions and powers. At any

  conference, hearing, investigation, inquiry or other  proceeding  before
  the  board  or any agent thereof, a party shall have the right to appear
  in person, by counsel or by  other  authorized  representative.  Nothing
  contained  herein  shall  restrict  the  right  of the board to exclude,
  suspend or disbar any representative for misconduct in  accordance  with
  the board's rules.
    (k)  For  the  purpose  of  such hearings and inquiries, to administer
  oaths and affirmations, examine witnesses and documents, take  testimony
  and  receive  evidence,  compel  the  attendance  of  witnesses  and the
  production of documents by the issuance of subpoenas, and delegate  such
  powers  to  any member of the board or any person appointed by the board
  for the performance of its functions. Such subpoenas shall be  regulated
  and enforced under the civil practice law and rules.
    (l)  To  make,  amend  and  rescind, from time to time, such rules and
  regulations, including but not limited to those governing  its  internal
  organization  and  conduct  of  its  affairs, and to exercise such other
  powers, as may be appropriate to effectuate the purposes and  provisions
  of this article.
    6.  Notwithstanding any other provisions of law, neither the president
  of the civil service commission nor the civil service commission or  any
  other  officer,  employer,  board  or  agency of the department of civil
  service shall supervise, direct or control the board in the  performance
  of  any of its functions or the exercise of any of its powers under this
  article; provided, however, that nothing herein shall  be  construed  to
  exempt  employees  of the board from the provisions of the civil service
  law.