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

                                  2339

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 15, 2009
                               ___________

Introduced  by  M. of A. McENENY, PHEFFER -- Multi-Sponsored by -- M. of
  A. CLARK, COOK, GLICK, GOTTFRIED, JOHN, LATIMER, TOWNS  --  read  once
  and referred to the Committee on Governmental Employees

AN  ACT  to  amend  the  civil service law, in relation to the effect of
  deductions for excluded employee organizational dues  and  fair  share
  fee deductions use for employment

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

  Section 1. The civil service law is amended by adding a new article 15
to read as follows:
                                ARTICLE 15
               MANAGEMENT/CONFIDENTIAL ORGANIZATIONAL ACT
SECTION 300. STATEMENT OF LEGISLATIVE INTENT.
        301. DEFINITIONS.
        302. RIGHT OF ORGANIZATION.
        303. ELECTION OF EXCLUDED EMPLOYEE ORGANIZATION.
        304. RIGHT OF REPRESENTATION.
        305. RECOGNITION OF THE EXCLUDED EMPLOYEE ORGANIZATION.
        306. MERIT SYSTEM.
        307. RIGHTS OF THE RECOGNIZED EXCLUDED EMPLOYEE ORGANIZATION.
  S 300. STATEMENT OF LEGISLATIVE INTENT. THE LEGISLATURE OF  THE  STATE
OF  NEW  YORK DECLARES THAT IT IS THE PUBLIC POLICY OF THE STATE AND THE
PURPOSE OF THIS ARTICLE TO PROMOTE THE EFFICIENT AND EFFECTIVE  ADMINIS-
TRATION OF EMPLOYER DESIGNATED STATE PROGRAMS BY MAINTAINING HIGH MORALE
AND  OBJECTIVE  CONSIDERATION  OF ISSUES RAISED BETWEEN EMPLOYEES DESIG-
NATED  MANAGERIAL  AND  CONFIDENTIAL  AND  THE  STATE.  THE  LEGISLATURE
BELIEVES  THAT  THE  CONDUCT  OF  STATE  BUSINESS BETWEEN MANAGERIAL AND
CONFIDENTIAL EMPLOYEES AND THE STATE IS BEST EFFECTUATED BY: (A)  RECOG-
NIZING  A  DESIGNATED  EMPLOYEE  ORGANIZATION;  (B)  OPEN  COMMUNICATION
BETWEEN THE STATE AS EMPLOYER AND  AN  OBJECTIVE  EMPLOYEE  ORGANIZATION
REPRESENTING  MANAGERIAL  AND CONFIDENTIAL EMPLOYEES REGARDING TERMS AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00536-01-9
              

A. 2339                             2

CONDITIONS OF EMPLOYMENT; (C) INFORMING SUCH EMPLOYEES OF  THEIR  RIGHTS
AND  TERMS  AND CONDITIONS OF EMPLOYMENT THROUGH THE DESIGNATED EMPLOYEE
ORGANIZATION; AND (D) PROVIDING  CERTAIN  BENEFITS  FOR  SUCH  EMPLOYEES
THROUGH  THE EMPLOYEE ORGANIZATION. THE INTENT OF THE LEGISLATURE IS NOT
TO REVISE, CHANGE OR MODIFY IN ANY WAY EXISTING REQUIREMENTS FOR  SETTL-
ING  STATE EMPLOYEE TITLE DISPUTES BETWEEN ORGANIZATIONS WHICH REPRESENT
EMPLOYEES AND AN ORGANIZATION AUTHORIZED UNDER THIS ARTICLE.
  S 301. DEFINITIONS. AS USED IN THIS ARTICLE:
  1. THE TERM "EXCLUDED EMPLOYEES" MEANS ALL EMPLOYEES OF THE  STATE  OF
NEW  YORK  DESIGNATED MANAGERIAL OR CONFIDENTIAL PURSUANT TO SUBDIVISION
SEVEN OF SECTION TWO HUNDRED ONE OF THIS CHAPTER EXCLUDING THOSE EMPLOY-
EES PAID PURSUANT TO SECTION ONE HUNDRED  SIXTY-NINE  OF  THE  EXECUTIVE
LAW.  SUCH EMPLOYEES SHALL NOT:
  (A)  HOLD  ANY OFFICE IN AN EMPLOYEE ORGANIZATION THAT ALSO REPRESENTS
EMPLOYEES NOT COVERED BY THIS ARTICLE;
  (B) PARTICIPATE IN THE HANDLING OF GRIEVANCES ON BEHALF  OF  EMPLOYEES
NOT COVERED BY THIS ARTICLE; AND
  (C)  PARTICIPATE IN ANY NEGOTIATION SESSION, INTERROGATIONS, OR DISCI-
PLINARY INTERVIEWS WITH THE EMPLOYER ON BEHALF OF EMPLOYEES NOT  COVERED
BY THIS ARTICLE.
  2.  THE  TERM  "EXCLUDED  EMPLOYEE ORGANIZATION" MEANS AN ORGANIZATION
THAT REPRESENTS EXCLUDED EMPLOYEES BEFORE THE STATE EMPLOYER TO MEET AND
CONFER REGARDING TERMS AND CONDITIONS OF EMPLOYMENT.
  3. THE TERM "STATE EMPLOYER" OR "EMPLOYER" MEANS THE GOVERNOR  OR  HIS
OR HER DESIGNATED REPRESENTATIVE.
  4.  THE TERM "MEET AND CONFER" MEANS THE EMPLOYER SHALL FULLY CONSIDER
SUCH PRESENTATIONS MADE BY THE EXCLUDED EMPLOYEE ORGANIZATION ON  BEHALF
OF  ITS  MEMBERS  PRIOR  TO ARRIVING AT A DETERMINATION OF ANY POLICY OR
COURSE OF ACTION WITH RESPECT TO SUCH EMPLOYEES.
  5. THE TERM "TERMS AND CONDITIONS OF EMPLOYMENT"  MEANS  WAGES,  SALA-
RIES,  HOURS  AND  OTHER  TERMS  AND CONDITIONS OF EMPLOYMENT; PROVIDED,
HOWEVER, THAT SUCH TERM SHALL NOT INCLUDE ANY BENEFITS PROVIDED BY OR TO
BE PROVIDED BY A PUBLIC RETIREMENT SYSTEM, OR  PAYMENTS  TO  A  FUND  OR
INSURER  TO  PROVIDE  AN INCOME FOR RETIREES, OR PAYMENTS TO RETIREES OR
THEIR BENEFICIARIES.  NO  RETIREMENT  BENEFITS  SHALL  BE  DISCUSSED  OR
PROVIDED  FOR  PURSUANT  TO THIS ARTICLE, AND ANY SUCH BENEFITS PROVIDED
SHALL BE VOID.
  S 302. RIGHT OF  ORGANIZATION.  NOTWITHSTANDING  SECTION  TWO  HUNDRED
FOURTEEN  OF  THIS  CHAPTER,  EXCLUDED EMPLOYEES SHALL HAVE THE RIGHT TO
JOIN AND PARTICIPATE IN, OR REFRAIN FROM JOINING  OR  PARTICIPATING  IN,
THE RECOGNIZED EXCLUDED EMPLOYEE ORGANIZATION OF THEIR CHOOSING.
  S  303. ELECTION OF EXCLUDED EMPLOYEE ORGANIZATION. THE PUBLIC EMPLOY-
MENT RELATIONS BOARD SHALL  DESIGNATE  A  REPRESENTATIVE  FOR  MEET  AND
CONFER PURPOSES OF EMPLOYEES COVERED BY THIS ARTICLE WHEN SUCH REPRESEN-
TATIVE  DEMONSTRATES  A  SHOWING  OF  MAJORITY  INTEREST BY EMPLOYEES AS
DEFINED BY THIS ARTICLE. IN CASES WHERE THE PARTIES  TO  A  DISPUTE  ARE
WITHOUT  AGREEMENT  ON THE MEANS TO ASCERTAIN THE CHOICE, IF ANY, OF THE
EXCLUDED EMPLOYEE ORGANIZATION AS THEIR REPRESENTATIVE, THE BOARD  SHALL
ASCERTAIN  SUCH EMPLOYEES' CHOICE OF EMPLOYEE ORGANIZATION, ON THE BASIS
OF DUES DEDUCTION AUTHORIZATION AND OTHER EVIDENCE, OR IF NECESSARY,  BY
CONDUCTING  AN  ELECTION. IN THE EVENT THAT EITHER PARTY PROVIDES TO THE
BOARD, PRIOR TO THE DESIGNATION OF A REPRESENTATIVE, CLEAR AND  CONVINC-
ING  EVIDENCE THAT THE DUES DEDUCTION AUTHORIZATIONS, AND OTHER EVIDENCE
UPON WHICH THE BOARD WOULD OTHERWISE RELY TO  ASCERTAIN  THE  EMPLOYEES'
CHOICE  OF REPRESENTATIVE, ARE FRAUDULENT OR WERE OBTAINED THROUGH COER-
CION, THE BOARD SHALL PROMPTLY THEREAFTER CONDUCT AN ELECTION. THE BOARD

A. 2339                             3

SHALL ALSO INVESTIGATE AND CONSIDER A PARTY'S ALLEGATIONS THAT THE  DUES
DEDUCTION  AUTHORIZATIONS  AND  OTHER EVIDENCE SUBMITTED IN SUPPORT OF A
DESIGNATION FOR REPRESENTATIVE WITHOUT  AN  ELECTION  WERE  SUBSEQUENTLY
CHANGED,  ALTERED,  WITHDRAWN OR WITHHELD AS A RESULT OF EMPLOYER FRAUD,
COERCION OR ANY OTHER UNFAIR EMPLOYER LABOR PRACTICE, IT SHALL DESIGNATE
THE REPRESENTATIVE WITHOUT THE CONDUCT OF AN ELECTION.
  S 304. RIGHT OF REPRESENTATION.  EXCLUDED  EMPLOYEES  SHALL  HAVE  THE
RIGHT  TO  BE REPRESENTED BY THE EXCLUDED EMPLOYEE ORGANIZATION, TO MEET
AND CONFER WITH THE STATE EMPLOYER IN DETERMINATION OF TERMS AND  CONDI-
TIONS OF EMPLOYMENT, EXCEPT THAT NOTHING IN THIS ARTICLE SHALL AUTHORIZE
SUCH ORGANIZATION TO BARGAIN COLLECTIVELY WITH THE STATE.
  S  305.  RECOGNITION  OF THE EXCLUDED EMPLOYEE ORGANIZATION. THE STATE
EMPLOYER IS HEREBY EMPOWERED TO RECOGNIZE THE EXCLUDED  EMPLOYEE  ORGAN-
IZATION  AS THE EXCLUSIVE REPRESENTATIVE FOR THE PURPOSE OF THIS ARTICLE
FOR MEETING AND CONFERRING ON MATTERS RELATED TO THE  TERMS  AND  CONDI-
TIONS  OF EMPLOYMENT.  IT IS THE MUTUAL OBLIGATION OF THE STATE EMPLOYER
AND THE RECOGNIZED EXCLUDED EMPLOYEE ORGANIZATION TO MEET AT  REASONABLE
TIMES  AND  CONFER IN GOOD FAITH WITH RESPECT TO WAGES, HOURS, AND OTHER
TERMS AND CONDITIONS OF EMPLOYMENT OR ANY QUESTION  ARISING  THEREUNDER,
BUT  SUCH OBLIGATION DOES NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL
OR REQUIRE THE MAKING OF A CONCESSION.
  S 306. MERIT SYSTEM. NOTHING IN THIS ARTICLE  SHALL  BE  CONSTRUED  TO
CONTRAVENE  THE SPIRIT OR INTENT OF THE MERIT SYSTEM IN STATE GOVERNMENT
NOR TO LIMIT THE ENTITLEMENTS OF EACH SUCH EXCLUDED EMPLOYEE.
  S 307. RIGHTS OF THE RECOGNIZED EXCLUDED  EMPLOYEE  ORGANIZATION.  THE
STATE  EMPLOYER  SHALL  EXTEND TO THE EXCLUDED EMPLOYEE ORGANIZATION THE
RIGHT TO REPRESENT THE EXCLUDED  EMPLOYEE  IN  COMMUNICATIONS  WITH  THE
STATE EMPLOYER REGARDING TERMS AND CONDITIONS OF EMPLOYMENT.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law.