S T A T E O F N E W Y O R K
________________________________________________________________________
2468
2009-2010 Regular Sessions
I N A S S E M B L Y
January 16, 2009
___________
Introduced by M. of A. PRETLOW -- read once and referred to the Commit-
tee on Governmental Employees
AN ACT to amend the civil service law, in relation to disputes arising
from collective negotiations
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 6 of section 209-a of the civil service law, as
amended by chapter 467 of the laws of 1990 and as renumbered by chapter
695 of the laws of 1994, is amended to read as follows:
6. Application. In applying this section, fundamental distinctions
between private and public employment shall be recognized, and no body
of federal or state law applicable wholly or in part to private employ-
ment, shall be regarded as binding or controlling precedent. WITH
RESPECT TO ANY IMPROPER PRACTICE CHARGE FILED AGAINST EITHER A PUBLIC
EMPLOYER OR A PUBLIC EMPLOYEE ORGANIZATION THAT ALLEGES A REFUSAL TO
NEGOTIATE IN GOOD FAITH A PRESUMPTION OF BAD FAITH SHALL APPLY WHENEVER
THE LAST AGREEMENT BETWEEN THE PARTIES OR, AS APPLICABLE, THE LAST
INTEREST ARBITRATION AWARD BETWEEN THEM, HAS BEEN EXPIRED FOR A PERIOD
IN EXCESS OF ONE YEAR FROM FINAL EXECUTION OF THE AGREEMENT OR DELIVERY
OF THE AWARD TO THE PARTIES AND NO NEW AGREEMENT HAS BEEN REACHED AT THE
DATE SUCH IMPROPER PRACTICE CHARGE IS FILED.
S 2. Subdivision 1 of section 209 of the civil service law, as amended
by chapter 216 of the laws of 1977, is amended to read as follows:
1. (A) For purposes of this section, an impasse may be deemed to exist
if the parties fail to achieve agreement at least one hundred twenty
days prior to the end of the fiscal year of the public employer AND
SHALL BE DEEMED TO EXIST IF THE LAST AGREEMENT BETWEEN THE PARTIES AT
IMPASSE, OR AS APPLICABLE, THEIR LAST INTEREST ARBITRATION AWARD, HAS
BEEN EXPIRED FOR A PERIOD IN EXCESS OF ONE YEAR FROM FINAL EXECUTION OF
THE AGREEMENT OR DELIVERY OF THE ARBITRATION AWARD TO THE PARTIES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00938-01-9
A. 2468 2
(B) IN ANY CIRCUMSTANCE IN WHICH AN IMPASSE HAS BEEN FOUND TO EXIST OR
HAS BEEN DEEMED TO EXIST, THE BOARD SHALL TAKE SUCH ACTION AS IT CONSID-
ERS TO BE NECESSARY AND APPROPRIATE TO ENSURE THE COMPLETION WITHOUT
DELAY OF ANY AND ALL APPLICABLE IMPASSE RESOLUTION PROCEDURES AUTHORIZED
OR REQUIRED BY THIS ARTICLE.
S 3. Paragraph (b) of subdivision 2 of section 210 of the civil
service law, as amended by chapter 24 of the laws of 1969, is amended to
read as follows:
(b) Presumption. (I) 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 with-
out permission, on the date or dates when a strike occurs, shall be
presumed to have engaged in such strike on such date or dates.
(II) ANY STRIKE WHICH OCCURS ON A DATE OR DATES MORE THAN ONE YEAR
AFTER THE EXPIRATION OF THE LAST AGREEMENT BETWEEN THE EMPLOYEE'S PUBLIC
EMPLOYER AND THE PUBLIC EMPLOYEE ORGANIZATION REPRESENTING SUCH EMPLOY-
EE, OR, AS APPLICABLE, MORE THAN ONE YEAR AFTER DELIVERY OF AN INTEREST
ARBITRATION AWARD TO SUCH EMPLOYEE'S EMPLOYER AND PUBLIC EMPLOYEE ORGAN-
IZATION SHALL BE PRESUMED TO HAVE BEEN ONE CAUSED BY ACTS OF EXTREME
PROVOCATION WITHIN THE MEANING OF THIS ARTICLE.
S 4. Paragraph (f) of subdivision 3 of section 210 of the civil
service law, as amended by chapter 677 of the laws of 1977, is amended
to read as follows:
(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] ARTICLE, 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, OR ANY OTHER COURT OR OTHER TRIBUNAL AUTHORIZED BY LAW, INCLUDING
WITHOUT LIMITATION SECTION SEVEN HUNDRED FIFTY-ONE OF THE JUDICIARY LAW,
TO DETERMINE SUCH ISSUE 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)] (IV) the refusal of the employee organiza-
tion or the appropriate public employer or the representative thereof,
to submit to the [mediation and fact-finding] IMPASSE RESOLUTION proce-
dures provided in section two hundred nine OF THIS ARTICLE; and [(ii)]
(V) whether, if so alleged by the employee organization, the appropriate
public employer or its representatives engaged in such acts of extreme
A. 2468 3
provocation as to detract from the responsibility of the employee organ-
ization 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 subdi-
vision one of section two hundred eight of this [chapter] ARTICLE, the
books and records of such public employer shall be prima facie evidence
of the amount so collected.
S 5. This act shall take effect immediately, provided that the amend-
ments to paragraph (f) of subdivision 3 of section 210 of the civil
service law made by section four of this act shall be subject to the
expiration and reversion of such paragraph pursuant to section 7 of
chapter 677 of the laws of 1977, as amended, when upon such date the
provisions of section five of this act shall take effect.