2013 New York Consolidated Laws
CVS - Civil Service
Article 14 - (200 - 214) PUBLIC EMPLOYEES' FAIR EMPLOYMENT ACT
210 - Prohibition of strikes.


NY Civ Serv L § 210 (2012) What's This?
 
    § 210. Prohibition  of  strikes. 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) 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.
    (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.
    (d)  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,  on  the  basis  of  such investigation and
  affidavits as he 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  further determine, on the basis of such further investigation and
  affidavits as he 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)  Notice.  The  chief executive officer shall forthwith notify each
  employee that he has been found to have committed  such  violation,  the
  date  or  dates thereof and of his right to object to such determination
  pursuant to paragraph (g) of this subdivision; he 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 last address filed by him with his
  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
  compensation 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)  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 pursuant to  paragraph  (e)  of
  this   subdivision)   his   sworn   affidavit,  supported  by  available
  documentary proof, containing a short and plain statement of  the  facts
  upon which he relies to show that such determination was incorrect. Such
  affidavit  shall  be  subject  to the penalties of perjury. If 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 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
  appoint  a hearing officer to determine whether in fact the employee did
  violate this subdivision after a hearing at which  such  employee  shall
  bear  the  burden  of proof. If the hearing officer shall determine that
  the  employee  failed  to  establish  that  he  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 employee
  did  not  violate  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. 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 (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)  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
  institute  proceedings  before  the  board  to  determine  whether  such
  employee  organization has violated the provisions of subdivision one of
  this section.
    (d) 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  organization 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)  In  determining  whether  an  employee  organization has violated
  subdivision one of this section, the board shall  consider  (i)  whether
  the  employee organization called the strike or tried to prevent it, and
  (ii) whether the employee organization made or  was  making  good  faith
  efforts to terminate the strike.
    (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
  (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  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 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
  organization, 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
  termination of such forfeiture only after complying with the  provisions
  of  clause (b) of subdivision three of section two hundred seven of this
  article.
    (h) 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) of subdivision two of 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 caused to be delivered to such
  employee  any  cash,  check  or  payment  which,  in  whole  or in part,
  represents such compensation.
    4. Within sixty days  of  the  termination  of  a  strike,  the  chief
  executive  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, (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 sanctions imposed  or  proceedings  pending  against
  each such individual public employee.

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