S T A T E   O F   N E W   Y O R K
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                                  5858

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 20, 2009
                               ___________

Introduced by M. of A. ESPAILLAT, GREENE, BENJAMIN, CAMARA, SCARBOROUGH,
  COOK, POWELL, PERALTA, ROBINSON, J. RIVERA, ZEBROWSKI, MILLMAN, COLTON
  --  Multi-Sponsored  by -- M. of A. BRENNAN, DIAZ, FARRELL, GOTTFRIED,
  HEASTIE, HOOPER, LENTOL, PERRY, RAMOS, TITUS -- read once and referred
  to the Committee on Governmental Employees

AN ACT to amend the civil service law,  in  relation  to  enhancing  the
  collective  bargaining  obligations  of public employers and adjusting
  penalties for striking of public employees

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraph  (a)  of  subdivision 4 of section 209-a of the
civil service law, as added by chapter 695  of  the  laws  of  1994,  is
amended to read as follows:
  (a)  A party filing an improper practice charge under this section may
petition the board to obtain injunctive relief, pending  a  decision  on
the merits of said charge by an administrative law judge, upon a showing
that:  (i) there is reasonable cause to believe an improper practice has
occurred, OR THERE IS REASONABLE CAUSE TO BELIEVE THAT THE INSISTENCE OF
A PUBLIC EMPLOYER OR EMPLOYEE  ORGANIZATION  UPON  A  BARGAINING  DEMAND
WHICH  IS  A  NON-MANDATORY SUBJECT OF BARGAINING IS LIKELY TO LEAD TO A
VIOLATION OF SECTION TWO HUNDRED TEN OF THIS ARTICLE, and (ii) where  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 to
provide meaningful relief.
  S 2. Paragraph (f) of subdivision  3  of  section  210  of  the  civil
service  law,  as amended by chapter 677 of the laws of 1977, is amended
to read as follows:
  (f) If the board determines that an employee organization has violated
the provisions of subdivision one of this section, the board shall order
forfeiture of the rights granted pursuant to the provisions of paragraph

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09083-01-9
              

A. 5858                             2

(b) of subdivision one, and subdivision three  of  section  two  hundred
eight  of  this  chapter, for such specified period of time as the board
shall determine, or, in the discretion of the board, for  an  indefinite
period  of  time subject to restoration upon application, with notice to
all interested parties, supported by proof of good faith compliance with
the requirements of subdivision one of this section since  the  date  of
such violation, such proof to include, for example, the successful nego-
tiation,  without  a  violation of subdivision one of this section, of a
contract covering the employees in the unit affected by such  violation;
provided, however, that where a fine imposed on an employee organization
pursuant  to  subdivision  two of section seven hundred fifty-one of the
judiciary law remains wholly or partly unpaid, after the  exhaustion  of
the  cash  and  securities of the employee organization, the board shall
direct that,  notwithstanding  such  forfeiture,  such  membership  dues
deduction  shall  be  continued to the extent necessary to pay such fine
and such public employer shall transmit such moneys  to  the  court.  In
fixing  the duration of the forfeiture, the board shall consider all the
relevant facts and circumstances, including but not limited to: (i)  the
extent  of  any  wilful defiance of subdivision one of this section (ii)
the impact of the strike on the public health, safety,  and  welfare  of
the  community  and (iii) the financial resources of the employee organ-
ization; and the board [may] SHALL  consider  (i)  the  refusal  of  the
employee  organization  or the appropriate public employer or the repre-
sentative thereof, to submit to the mediation  and  fact-finding  proce-
dures  provided  in  section  two  hundred  nine and (ii) whether, if so
alleged by the employee organization, the appropriate public employer or
its representatives engaged in such acts of extreme  provocation  as  to
detract  from  the  responsibility  of the employee organization for the
strike. In determining the financial resources of the employee organiza-
tion, the board shall consider both the income and the  assets  of  such
employee organization. In the event membership dues are collected by the
public  employer  as  provided  in  paragraph  (b) of subdivision one of
section two hundred eight of this chapter, the books and records of such
public  employer  shall  be  prima  facie  evidence  of  the  amount  so
collected.    IF THE BOARD FINDS THAT THE PUBLIC EMPLOYER HAS ENGAGED IN
ACTS OF EXTREME PROVOCATION SUCH AS TO DETRACT FROM  THE  RESPONSIBILITY
OF  THE  EMPLOYEE ORGANIZATION FOR THE STRIKE, THE BOARD SHALL ORDER THE
PUBLIC EMPLOYER TO REMIT TO THE EMPLOYEE ORGANIZATION A PORTION  OF  THE
LOSSES OF INCOME SUSTAINED BY THE EMPLOYEE ORGANIZATION OWING TO FORFEI-
TURE  OF  DUES DEDUCTION PROVIDED FOR IN THIS SUBDIVISION, NOT TO EXCEED
FIFTY PERCENT OF SUCH LOSSES. IN DETERMINING THE PAYMENT TO BE  REMITTED
BY  THE  PUBLIC  EMPLOYER  TO THE EMPLOYEE ORGANIZATION, THE BOARD SHALL
CONSIDER THE EXTENT TO WHICH THE PUBLIC EMPLOYER'S ACTS  CONTRIBUTED  TO
THE  EMPLOYEE ORGANIZATION'S DECISION TO VIOLATE SUBDIVISION ONE OF THIS
SECTION. FOR PURPOSES OF THIS SECTION, ACTS OF EXTREME PROVOCATION SHALL
INCLUDE THE USE OF ANY BARGAINING TACTICS WHICH ARE DESIGNED TO OR  HAVE
THE  EFFECT  OF  UNDULY  EXACERBATING  TENSIONS THAT ARISE IN COLLECTIVE
NEGOTIATIONS WHICH THE BOARD FINDS HAVE CONTRIBUTED TO THE ONSET OF  THE
ACTIVITY WHICH VIOLATES SUBDIVISION ONE OF THIS SECTION, IRRESPECTIVE OF
WHETHER SUCH TACTICS ARE THE IMMEDIATE CAUSE OF THE STRIKE.
  S  3.  This act shall take effect immediately; provided, however, that
the amendments to paragraph (a) of subdivision 4 of section 209-a of the
civil service law made by section one of this act shall not  affect  the
repeal of such subdivision and shall be deemed repealed therewith.