Assembly Bill A9982

2009-2010 Legislative Session

Provides arbitration procedure for violation of fair employment act

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Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Apr 20, 2010	reported referred to codes
Feb 23, 2010	referred to governmental employees

2009-A9982 (ACTIVE) - Details

Current Committee:: Assembly Codes
Law Section:: Civil Service Law
Laws Affected:: Amd §210, Civ Serv L
Versions Introduced in 2011-2012 Legislative Session:: A4920

2009-A9982 (ACTIVE) - Summary

Provides arbitration process to determine if a public employee or organization has violated the no-strike provision of the Taylor law; defers imposition of penalty until after arbitration process is completed and allows the arbitrator to consider mitigating factors which may have provoked the alleged strike.

2009-A9982 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A9982

TITLE  OF  BILL:   An act to amend the civil service law, in relation to
arbitration procedures for violation of the fair employment act

PURPOSE OR GENERAL IDEA OF BILL:  This bill intends to  provide  a  more
equitable  means  of  determining  whether  or  not a public employee or
public employee organization has violated the no-strike provision of the
Taylor Law.

SUMMARY OF SPECIFIC PROVISIONS:  The bill would:

- provide a process of binding arbitration of employees'  objections  to
the  mandatory  imposition of the 2 for 1 penalty where the employee has
been deemed to have violated such provisions;

- defer the imposition of the penalty until after  binding  arbitration;
and,

-  allow  the  arbitrator to consider mitigating circumstances which may
have provoked the alleged strike.

JUSTIFICATION:   Under present law, when a  public  employee  or  public
employee  organization  has  been  deemed to have violated the no-strike
clause of the Taylor Law, the  2  for  1  penalty  must  immediately  be
imposed   regardless   of  the  circumstances  surrounding  the  alleged

violation.  This bill would provide for  an  impartial  review  of  that
decision  to  ensure  the  due process rights of the employee. While the
prohibition of public strikes continues, this  bill  provides  a  fairer
method  of imposing the resultant penalties. Under the provisions of the
bill, an employee or the employee organization may object to the finding
that the employee has violated the no-strike clause because the employer
engaged in acts which provoked  the  strike.  This  objection  would  be
subject to review by an arbitrator, chosen by both employee and employer
from a list according to rules of AAA. The cost of the arbitration would
be borne equally by both employee organization and employer.,

The arbitrator would decide that either:

-the  employer  failed to prove that the employee violated the no-strike
provision; or,

-the employee violated the no-strike provision and that the  strike  was
unprovoked and impose the 2 for 1 penalty; or,

-the  employee violated the no-strike provision and that such action was
provoked by the employer and then the arbitrator may impose a Penalty of
no greater than 1-1/2 nor less than 1 day's pay.  The  determination  of
the  arbitrator  would be reviewable pursuant to Article 75 of the Civil
Practice law and Rules.

By providing these options through the proven remedy  of  binding  arbi-
tration,  respect  for the due process rights of those accused of having
violated the no-strike provision of the Taylor Law is shown:

PRIOR LEGISLATIVE HISTORY:
2007-08: A5990 - referred to governmental employees
2006: A6229 -referred to governmental employees
2005: A6229 -referred to governmental employees
2004:A5576 -referred to governmental employees
2003:A5576 -referred to governmental employees
2002:A.10355(Abbate)
2001:A.6126(Vitaliano)
1999-2000 S3180/A6635 Remained in Committee

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:  None.

EFFECTIVE DATE:  This act shall take effect immediately.

2009-A9982 (ACTIVE) - Bill Text download pdf

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

                                  9982

                          I N  A S S E M B L Y

                            February 23, 2010
                               ___________

Introduced by M. of A. ABBATE -- read once and referred to the Committee
  on Governmental Employees

AN ACT to amend the civil service law, in relation to arbitration proce-
  dures for violation of the fair employment act

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

  Section 1.  Paragraph (e) of subdivision 2 of section 210 of the civil
service law, as amended by chapter 254 of the laws of 1983,  is  amended
to read as follows:
  (e)  Notice.  The  chief executive officer shall forthwith notify each
employee AND THE RECOGNIZED OR CERTIFIED EMPLOYEE ORGANIZATION  that  he
OR  SHE  has  [been] found SUCH A VIOLATION to have BEEN committed [such
violation], the date or dates thereof and of his OR HER right to  object
to  such  determination pursuant to paragraph [(g)] (F) 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  AND  THE  RECOGNIZED  OR CERTIFIED EMPLOYEE ORGANIZATION
shall be by personal service or by certified mail to  his  OR  HER  last
address filed by him OR HER with his OR HER employer.
  S  2.  Paragraph  (f)  of  subdivision  2  of section 210 of the civil
service law, as amended by chapter 503 of the laws of  1971  and  relet-
tered  by  chapter  254 of the laws of 1983, is relettered paragraph (g)
and amended to read as follows:
  (g) Payroll deductions. Not earlier than thirty nor later than  ninety
days  following  the  date  of [such] THE determination MADE PURSUANT TO
PARAGRAPH (D) OF THIS SUBDIVISION IN THE CASE OF  AN  EMPLOYEE  WHO  HAS
MADE NO OBJECTION TO SUCH DETERMINATION, OR THE DECISION OF THE ARBITRA-
TOR, WHERE SUCH OBJECTION HAS BEEN MADE, the chief fiscal officer of the
government  involved  shall IMPLEMENT THE DECISION OF THE ARBITRATOR, OR
IN THE CASE OF AN EMPLOYEE WHO HAS MADE NO  OBJECTION  TO  THE  DETERMI-
NATION  MADE  PURSUANT  TO PARAGRAPH (D) OF THIS SUBDIVISION deduct from
the compensation of each such public employee an amount equal  to  twice
his  OR  HER  daily rate of pay for each day or part thereof that it was

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

                                                           LBD15786-01-0

A. 9982                             2

determined that he OR SHE had violated this subdivision;  such  rate  of
pay to be computed as of the time of such violation. In IMPLEMENTING THE
DECISION OF THE ARBITRATOR, OR computing such deduction, credit shall be
allowed  for  amounts already withheld from such employee's compensation
on account of his OR HER absence  from  work  or  other  withholding  of
services on such day or days. In computing the aforesaid thirty to nine-
ty  day  period of time following THE DECISION OF THE ARBITRATOR, OR the
determination of a violation pursuant to [subdivision] PARAGRAPH (d)  of
[paragraph two of] this [section] SUBDIVISION IN THE CASE OF AN EMPLOYEE
WHO  HAS  MADE NO OBJECTION TO SUCH DETERMINATION, and where the employ-
ee'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.
  S 3. Paragraph (g) of subdivision  2  of  section  210  of  the  civil
service  law,  as  amended by chapter 254 of the laws of 1983, is relet-
tered paragraph (f) and amended to read as follows:
  (f) Objections [and],  restoration  AND  ARBITRATION.    Any  employee
determined to have violated this subdivision may object to such determi-
nation  ON  THE  GROUNDS  THAT NO SUCH VIOLATION HAS OCCURRED AND, IF NO
SUCH OBJECTION IS FILED BY THE RECOGNIZED OR CERTIFIED  EMPLOYEE  ORGAN-
IZATION ON THE GROUNDS THAT THE GOVERNMENT INVOLVED PROVOKED THE CONDUCT
ALLEGEDLY CONSTITUTING SUCH VIOLATION 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) of this subdivision)  his
OR  HER  sworn  affidavit,  supported  by  available  documentary proof,
containing a short and plain statement of the facts upon which he OR SHE
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  estab-
lishes  that  the  employee  did not violate this subdivision, he OR SHE
shall sustain the objection. If the chief executive officer shall deter-
mine that the affidavit and supporting proof fails to establish that the
employee did not violate this subdivision, OR IF THE OBJECTION IS  BASED
SOLELY  UPON  PROVOCATION  ON THE PART OF THE GOVERNMENT INVOLVED, he OR
SHE shall dismiss the objection and so  notify  the  employee[.  If  the
chief  executive officer shall determine that the affidavit and support-
ing proof raises a question of fact which, if resolved in favor  of  the
employee,  would establish that the employee did not violate this subdi-
vision, 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  para-
graph shall be reviewable pursuant to article seventy-eight of the civil
practice  law  and rules] AND THE EMPLOYEE ORGANIZATION THAT REPRESENTED
HIM OR HER. WITHIN TWENTY DAYS AFTER RECEIPT OF SUCH NOTIFICATION BY THE
PUBLIC EMPLOYEE OR THE EMPLOYEE ORGANIZATION  WHICHEVER  IS  LATER,  THE
PUBLIC  EMPLOYEE, THROUGH HIS OR HER EMPLOYEE ORGANIZATION, WHERE APPLI-

A. 9982                             3

CABLE, MAY REQUEST THAT A DETERMINATION AS TO WHETHER HE OR SHE VIOLATED
THIS SUBDIVISION AND/OR WHETHER SUCH ALLEGED VIOLATION WAS  PROVOKED  BY
THE  GOVERNMENT  INVOLVED BE MADE BY AN ARBITRATOR SELECTED, PURSUANT TO
THE RULES AND PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION, BY THE
GOVERNMENT  INVOLVED  AND  THE  EMPLOYEE  ORGANIZATION  REPRESENTING THE
OBJECTING EMPLOYEES, FROM A LIST SUPPLIED BY  THE  AMERICAN  ARBITRATION
ASSOCIATION  AFTER A HEARING CONDUCTED UNDER THE RULES AND PROCEDURES OF
THE AMERICAN ARBITRATION ASSOCIATION AT WHICH  THE  GOVERNMENT  INVOLVED
SHALL  BEAR  THE BURDEN OF PROOF. ALL OBJECTIONS ARISING OUT OF THE SAME
INCIDENTS CONSTITUTING THE ALLEGED VIOLATIONS  OF  THIS  SECTION  AND/OR
PROVOCATION ON THE PART OF THE GOVERNMENT INVOLVED SHALL BE CONSOLIDATED
FOR  DISPOSITION  AND  DETERMINATION BY ONE ARBITRATOR.  THE COST OF THE
ARBITRATION PROCEEDING AND THE FEE OF THE ARBITRATOR  SHALL  BE  EQUALLY
SHARED  BY  THE  GOVERNMENT  INVOLVED  AND  THE EMPLOYEE OR THE EMPLOYEE
ORGANIZATION REPRESENTING THE OBJECTING EMPLOYEE. WITHIN  FIVE  DAYS  OF
THE  CONCLUSION  OF THE ARBITRATION HEARING THE ARBITRATOR SHALL FORWARD
HIS OR HER REPORT CONSISTING OF HIS OR HER FINDINGS AND  RECOMMENDATIONS
INCLUDING  RECOMMENDATIONS  AS  TO PENALTIES IF WARRANTED TO THE PARTIES
AND TO THE CHIEF FISCAL OFFICER OF THE GOVERNMENT INVOLVED. IF THE ARBI-
TRATOR FINDS THAT THE GOVERNMENT INVOLVED FAILED TO PROVE THE  OBJECTING
EMPLOYEE VIOLATED THIS SUBDIVISION HE OR SHE SHALL SUSTAIN THE OBJECTION
OF  THE  EMPLOYEE.  IF  THE  ARBITRATOR  FINDS BY A PREPONDERANCE OF THE
EVIDENCE THAT THE GOVERNMENT  INVOLVED  PROVED  THE  OBJECTING  EMPLOYEE
VIOLATED  THIS SUBDIVISION AND FURTHER FINDS THAT SUCH VIOLATION WAS NOT
PROVOKED BY THE GOVERNMENT INVOLVED, HE OR SHE SHALL  REQUIRE  THAT  THE
CHIEF  FISCAL OFFICER OF THE GOVERNMENT INVOLVED DEDUCT FROM THE COMPEN-
SATION OF EACH SUCH EMPLOYEE AN AMOUNT EQUAL TO TWICE HIS OR  HER  DAILY
RATE  OF  PAY  FOR  EACH  DAY OR PART THEREOF IT WAS FOUND HE OR SHE HAD
VIOLATED THIS SUBDIVISION. IF THE ARBITRATOR FINDS  THAT  THE  OBJECTING
EMPLOYEE VIOLATED THIS SUBDIVISION AND FURTHER FINDS THAT THE GOVERNMENT
INVOLVED  PROVOKED SUCH VIOLATION HE OR SHE SHALL REQUIRE THAT THE CHIEF
FISCAL OFFICER OF THE GOVERNMENT INVOLVED DEDUCT FROM  THE  COMPENSATION
OF  EACH  SUCH EMPLOYEE AN AMOUNT WHICH SHALL BE NO GREATER THAN ONE AND
ONE-HALF NOR LESS THAN AN AMOUNT EQUAL TO, HIS OR HER DAILY RATE OF  PAY
FOR  EACH  DAY  OR PART THEREOF IT WAS FOUND HE OR SHE HAD VIOLATED THIS
SUBDIVISION. THE DETERMINATION OF THE  ARBITRATOR  SHALL  BE  REVIEWABLE
PURSUANT TO ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES.
  S  4. Subdivision 2 of section 210 of the civil service law is amended
by adding a new paragraph (h) to read as follows:
  (H) OBJECTIONS BY EMPLOYEE ORGANIZATIONS.  NOTWITHSTANDING  ANY  OTHER
PROVISION  OF  LAW  TO  THE CONTRARY, A RECOGNIZED OR CERTIFIED EMPLOYEE
ORGANIZATION MAY, WHERE SUCH OBJECTION IS BASED SOLELY UPON  PROVOCATION
ON THE PART OF THE GOVERNMENT INVOLVED, FILE OBJECTIONS ON BEHALF OF ALL
PERSONS  REPRESENTED  BY  SUCH  EMPLOYEE  ORGANIZATION  PURSUANT  TO THE
PROVISIONS OF PARAGRAPH (F) OF THIS SUBDIVISION.
  S 5. This act shall take effect immediately.

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Assembly Bill A9982

Sponsored By

Archive: Last Bill Status - In Assembly Committee

Actions

2009-A9982 (ACTIVE) - Details

2009-A9982 (ACTIVE) - Summary

2009-A9982 (ACTIVE) - Sponsor Memo

2009-A9982 (ACTIVE) - Bill Text download pdf

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Sponsored By

ABBATE

Archive: Last Bill Status - In Assembly Committee

Actions

2009-A9982 (ACTIVE) - Details

2009-A9982 (ACTIVE) - Summary

2009-A9982 (ACTIVE) - Sponsor Memo

2009-A9982 (ACTIVE) - Bill Text download pdf

Comments