NY Civ Serv L § 210 (2021)
2021 New York Laws CVS - Civil Service Article 14 - Public Employees' Fair Employment Act 210 - Prohibition of Strikes.

§ 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.