S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9376
 
                           I N  A S S E M B L Y
 
                               March 6, 2024
                                ___________
 
 Introduced  by  M.  of  A.  GALLAGHER  --  read once and referred to the
   Committee on Governmental Employees
 
 AN ACT to amend the civil service law, in  relation  to  the  rights  of
   public  employees  and employee organizations to strike; and to repeal
   certain provisions of the civil service  law  and  the  judiciary  law
   relating thereto

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivisions 1, 2, 3 and 4 of  section  210  of  the  civil
 service law, as amended by chapter 24 of the laws of 1969, paragraph (f)
 of  subdivision  2  and  paragraph  (a)  of subdivision 3 as amended and
 subdivision 4 as renumbered by chapter 503 of the laws  of  1971,  para-
 graph  (f)  of subdivision 2 as relettered and paragraphs (e) and (g) of
 subdivision 2 as amended by chapter 254 of the laws of 1983,  and  para-
 graphs  (f)  and  (g)  of subdivision 3 as amended by chapter 677 of the
 laws of 1977, are amended to read as follows:
   1. No 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].
   2.  Violations  and  penalties;  [presumption;]  prohibition   against
 consent   to   strike;   determination;   notice;   [probation;  payroll
 deductions;] objections; and restoration. (a) Violations and  penalties.
 A public employee shall violate this subdivision by engaging in a strike
 or violating paragraph [(c)] (B) of this subdivision and shall be liable
 as  provided  in  this  subdivision pursuant to the procedures contained
 herein. In addition, any public employee who violates subdivision one of
 this section may be subject to [removal or]  other  disciplinary  action
 provided by law [for misconduct].
   (b)  [Presumption. For purposes of this subdivision an employee who is
 absent from work without permission, or who abstains wholly or  in  part
 from  the  full  performance  of his duties in his normal manner without
 permission, on the date or dates when a strike occurs, shall be presumed
 to have engaged in such strike on such date or dates.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01885-03-3
              

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   (c)] Prohibition against consent to strike. No  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.  NOTHING IN THIS  PARA-
 GRAPH,  HOWEVER, SHALL BE CONSTRUED TO PROHIBIT ANY PUBLIC EMPLOYER FROM
 NEGOTIATING OR ENTERING INTO AN AGREEMENT WITH AN EMPLOYEE ORGANIZATION,
 NOR SHALL A PUBLIC EMPLOYER'S FAILURE TO PURSUE ADVERSE  ACTION  AGAINST
 AN  EMPLOYEE  ORGANIZATION OR PUBLIC EMPLOYEE IN RESPONSE TO A STRIKE BE
 CONSTRUED AS A VIOLATION OF THIS PARAGRAPH.
   [(d)] (C) Determination. In the event that it appears that a violation
 of this subdivision may have occurred, the chief  executive  officer  of
 the  government involved [shall] MAY, on the basis of such investigation
 and affidavits as he OR SHE may deem appropriate, determine  whether  or
 not such violation has occurred and the date or dates of such violation.
 If  the  chief  executive  officer  determines  that  such violation has
 occurred, he [shall] OR SHE MAY further determine, on the basis of  such
 further  investigation and affidavits as he OR SHE may deem appropriate,
 the names of employees who committed such  violation  and  the  date  or
 dates  thereof. Such determination shall not be deemed to be final until
 the completion of the procedures provided for in this subdivision.
   [(e)] (D) Notice. The chief executive officer shall  forthwith  notify
 each  employee  that  he  OR  SHE  has been found to have committed such
 violation, the date or dates thereof and of his OR HER right  to  object
 to  such  determination pursuant to paragraph [(g)] (E) of this subdivi-
 sion; he OR SHE shall also notify the chief fiscal officer of the  names
 of  all such employees and of the total number of days, or part thereof,
 on which it has been determined that such violation occurred. Notice  to
 each employee shall be by personal service or by certified mail to [his]
 THE last address filed by [him] SUCH EMPLOYEE with [his] THE employer.
   [(f) Payroll deductions. Not earlier than thirty nor later than ninety
 days  following the date of such determination, the chief fiscal officer
 of the government involved shall deduct from the  compensation  of  each
 such  public employee an amount equal to twice his daily rate of pay for
 each day or part thereof that it was determined  that  he  had  violated
 this subdivision; such rate of pay to be computed as of the time of such
 violation.  In  computing  such  deduction,  credit shall be allowed for
 amounts already withheld from such employee's compensation on account of
 his absence from work or other withholding of services on  such  day  or
 days.  In  computing  the  aforesaid thirty to ninety day period of time
 following the determination of a violation pursuant to  subdivision  (d)
 of paragraph two of this section and where the employee's annual compen-
 sation is paid over a period of time which is less than fifty-two weeks,
 that  period  of time between the last day of the last payroll period of
 the employment term in which the violation occurred and the first day of
 the first payroll period of the next succeeding employment term shall be
 disregarded and not counted.
   (g)] (E) Objections and restoration. Any employee determined  to  have
 violated  this  subdivision  may  object to such determination by filing
 with the chief executive officer, (within twenty days  of  the  date  on
 which  notice  was  served or mailed to him OR HER pursuant to paragraph
 [(e)] (D) of this subdivision) [his sworn affidavit, supported by avail-
 able documentary proof, containing] a short and plain statement [of  the
 facts  upon  which he relies to show] that such determination was incor-
 rect. [Such affidavit shall be subject to the penalties of  perjury.  If
 A. 9376                             3

 the  chief  executive  officer  shall  determine  that the affidavit and
 supporting proof establishes that the  employee  did  not  violate  this
 subdivision,  he  shall  sustain  the  objection. If the chief executive
 officer shall determine that the affidavit and supporting proof fails to
 establish  that  the employee did not violate this subdivision, he shall
 dismiss the objection and so notify the employee. If]  UPON  RECEIPT  OF
 SUCH  STATEMENT,  the  chief executive officer [shall determine that the
 affidavit and supporting proof raises  a  question  of  fact  which,  if
 resolved in favor of the employee, would establish that the employee did
 not violate this subdivision, he shall] MAY appoint a hearing officer to
 determine  whether  in  fact  the  employee did violate this subdivision
 after a hearing at which such [employee] EMPLOYEE'S EMPLOYER shall  bear
 the  burden  of  proof.  If the hearing officer shall determine that the
 [employee failed to  establish]  EMPLOYER  ESTABLISHED  that  [he]  SUCH
 EMPLOYEE did [not] violate this subdivision, the chief executive officer
 shall  so  notify the employee.  If the chief executive officer sustains
 an objection or the hearing officer determines on a preponderance of the
 evidence that such EMPLOYER FAILED TO ESTABLISH THAT SUCH employee  [did
 not  violate]  VIOLATED  this  subdivision,  the chief executive officer
 shall forthwith notify the chief  fiscal  officer  who  shall  thereupon
 cease  all  further deductions and refund any deductions previously made
 pursuant to this [subdivision] SECTION.  The determinations provided  in
 this  paragraph shall be reviewable pursuant to article seventy-eight of
 the civil practice law and rules.
   3. (a) [An employee organization which is determined by the  board  to
 have  violated  the provisions of subdivision one of this section shall,
 in accordance with the provisions  of  this  section,  lose  the  rights
 granted  pursuant  to the provisions of paragraph (b) of subdivision one
 of section two hundred eight of this chapter.
   (b)] In the event that it appears that a violation of subdivision  one
 of  this  section may have occurred, [it shall be the duty of] the chief
 executive officer of the public employer involved MAY (i) [forthwith  to
 so]  notify  the  board  and  the  chief legal officer of the government
 involved, and (ii) [to] provide the board and such chief  legal  officer
 with  such  facilities, assistance and data as will enable the board and
 such chief legal officer to carry out their duties under this section.
   [(c)] (B) In the event that it appears that a violation of subdivision
 one of this section may have occurred, the chief legal  officer  of  the
 government  involved[,  or the board on its own motion, shall forthwith]
 MAY institute proceedings before the board  to  determine  whether  such
 employee  organization has violated the provisions of subdivision one of
 this section.
   [(d)] (C) Proceedings against  an  employee  organization  under  this
 section  shall  be  commenced  by  service  upon it of a written notice,
 together with a copy of the charges. A copy of such notice  and  charges
 shall  also  be  served,  for  their  information,  upon the appropriate
 government officials who recognize such employee organization and  grant
 to  it  the rights accompanying such recognition. The employee organiza-
 tion shall have eight days within which to serve its written  answer  to
 such  charges. The board's hearing shall be held promptly thereafter and
 at such hearing, the parties shall be permitted  to  be  represented  by
 counsel  and  to  summon  witnesses in their behalf. Compliance with the
 technical rules of evidence shall not be required.
   [(e)] (D) In determining whether an employee organization has violated
 subdivision one of this section, the board  shall  consider  [(i)]  ONLY
 whether the employee organization called the strike [or tried to prevent
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 it,  and  (ii) whether the employee organization made or was making good
 faith efforts to terminate the strike].
   [(f)]  (E)  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  (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 negotiation, 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 organ-
 ization, the board shall direct that, notwithstanding  such  forfeiture,
 such  membership  dues deduction shall be continued to the extent neces-
 sary 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 organization; and the board may consider (i) the refusal
 of the employee organization or the appropriate public employer  or  the
 representative  thereof,  to  submit  to  the mediation and fact-finding
 procedures 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.
   (g) An employee organization whose  rights  granted  pursuant  to  the
 provisions of paragraph (b) of subdivision one, and subdivision three of
 section  two  hundred  eight of this article have been ordered forfeited
 pursuant to this section may be granted such  rights  after  the  termi-
 nation  of  such  forfeiture only after complying with the provisions of
 clause (b) of subdivision three of section two  hundred  seven  of  this
 article] SUCH EMPLOYEE ORGANIZATION TO PAY A FINE OF NOT MORE THAN FIFTY
 DOLLARS PER DAY FOR THE DURATION OF THE STRIKE.
   [(h)]  (F)  No  compensation  shall  be paid by a public employer to a
 public employee with respect to  any  day  or  part  thereof  when  such
 employee  is engaged in a strike against such employer. The chief fiscal
 officer of the government involved shall withhold such compensation upon
 receipt of the notice provided by paragraph [(e)] (D) of subdivision two
 of THIS section [two hundred ten]; notwithstanding the failure  to  have
 received  such  notice,  no  public employee or officer having knowledge
 that such employee has so engaged in such  a  strike  shall  deliver  or
 A. 9376                             5
 
 caused  to  be  delivered  to  such  employee any cash, check or payment
 which, in whole or in part, represents such compensation.
   (G)  THE  FOREGOING PENALTIES SHALL BE THE SOLE AND EXCLUSIVE REMEDIES
 AVAILABLE FOR ANY VIOLATION OF SUBDIVISION ONE OR TWO OF  THIS  SECTION.
 NO  PUBLIC  EMPLOYEE  SHALL  BE  COMPELLED  BY  ANY LEGAL ACTION TO WORK
 AGAINST SUCH EMPLOYEE'S WILL IN ANY MATTER ARISING OUT OF A VIOLATION OF
 SUBDIVISION ONE OR TWO OF THIS  SECTION.  NO  ADDITIONAL  PENALTIES  FOR
 VIOLATIONS  OF  SUBDIVISION ONE OR TWO OF THIS SECTION MAY BE IMPOSED BY
 COURT ORDER AGAINST AN EMPLOYEE ORGANIZATION OR PUBLIC EMPLOYEE, INCLUD-
 ING BUT NOT LIMITED TO INCARCERATION OR FINES SECURED  THROUGH  CONTEMPT
 PROCEEDINGS.
   4.  Within sixty days of the termination of a strike, the chief execu-
 tive officer of the government involved shall prepare and make public  a
 report  in  writing,  which shall contain the following information: (a)
 the circumstances surrounding the commencement of the  strike,  (b)  the
 efforts used to terminate the strike, AND (c) [the names of those public
 employees  whom  the  public  officer or body had reason to believe were
 responsible for causing, instigating or encouraging the strike  and  (d)
 related  to the varying degrees of individual responsibility,] the sanc-
 tions imposed [or  proceedings  pending  against  each  such  individual
 public employee].
   § 2. Section 211 of the civil service law is REPEALED.
   § 3. Subdivision 2 of section 751 of the judiciary law is REPEALED.
   § 4.  This act shall take effect immediately.