S T A T E O F N E W Y O R K
________________________________________________________________________
5858
2009-2010 Regular Sessions
I N A S S E M B L Y
February 20, 2009
___________
Introduced by M. of A. ESPAILLAT, GREENE, BENJAMIN, CAMARA, SCARBOROUGH,
COOK, POWELL, PERALTA, ROBINSON, J. RIVERA, ZEBROWSKI, MILLMAN, COLTON
-- Multi-Sponsored by -- M. of A. BRENNAN, DIAZ, FARRELL, GOTTFRIED,
HEASTIE, HOOPER, LENTOL, PERRY, RAMOS, TITUS -- read once and referred
to the Committee on Governmental Employees
AN ACT to amend the civil service law, in relation to enhancing the
collective bargaining obligations of public employers and adjusting
penalties for striking of public employees
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (a) of subdivision 4 of section 209-a of the
civil service law, as added by chapter 695 of the laws of 1994, is
amended to read as follows:
(a) A party filing an improper practice charge under this section may
petition the board to obtain injunctive relief, pending a decision on
the merits of said charge by an administrative law judge, upon a showing
that: (i) there is reasonable cause to believe an improper practice has
occurred, OR THERE IS REASONABLE CAUSE TO BELIEVE THAT THE INSISTENCE OF
A PUBLIC EMPLOYER OR EMPLOYEE ORGANIZATION UPON A BARGAINING DEMAND
WHICH IS A NON-MANDATORY SUBJECT OF BARGAINING IS LIKELY TO LEAD TO A
VIOLATION OF SECTION TWO HUNDRED TEN OF THIS ARTICLE, and (ii) where it
appears that immediate and irreparable injury, loss or damage will
result thereby rendering a resulting judgment on the merits ineffectual
necessitating the maintenance of, or return to, the status quo to
provide meaningful relief.
S 2. 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09083-01-9
A. 5858 2
(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 nego-
tiation, 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 organ-
ization; and the board [may] SHALL consider (i) the refusal of the
employee organization or the appropriate public employer or the repre-
sentative thereof, to submit to the mediation and fact-finding proce-
dures 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 organiza-
tion, 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. IF THE BOARD FINDS THAT THE PUBLIC EMPLOYER HAS ENGAGED IN
ACTS OF EXTREME PROVOCATION SUCH AS TO DETRACT FROM THE RESPONSIBILITY
OF THE EMPLOYEE ORGANIZATION FOR THE STRIKE, THE BOARD SHALL ORDER THE
PUBLIC EMPLOYER TO REMIT TO THE EMPLOYEE ORGANIZATION A PORTION OF THE
LOSSES OF INCOME SUSTAINED BY THE EMPLOYEE ORGANIZATION OWING TO FORFEI-
TURE OF DUES DEDUCTION PROVIDED FOR IN THIS SUBDIVISION, NOT TO EXCEED
FIFTY PERCENT OF SUCH LOSSES. IN DETERMINING THE PAYMENT TO BE REMITTED
BY THE PUBLIC EMPLOYER TO THE EMPLOYEE ORGANIZATION, THE BOARD SHALL
CONSIDER THE EXTENT TO WHICH THE PUBLIC EMPLOYER'S ACTS CONTRIBUTED TO
THE EMPLOYEE ORGANIZATION'S DECISION TO VIOLATE SUBDIVISION ONE OF THIS
SECTION. FOR PURPOSES OF THIS SECTION, ACTS OF EXTREME PROVOCATION SHALL
INCLUDE THE USE OF ANY BARGAINING TACTICS WHICH ARE DESIGNED TO OR HAVE
THE EFFECT OF UNDULY EXACERBATING TENSIONS THAT ARISE IN COLLECTIVE
NEGOTIATIONS WHICH THE BOARD FINDS HAVE CONTRIBUTED TO THE ONSET OF THE
ACTIVITY WHICH VIOLATES SUBDIVISION ONE OF THIS SECTION, IRRESPECTIVE OF
WHETHER SUCH TACTICS ARE THE IMMEDIATE CAUSE OF THE STRIKE.
S 3. This act shall take effect immediately; provided, however, that
the amendments to paragraph (a) of subdivision 4 of section 209-a of the
civil service law made by section one of this act shall not affect the
repeal of such subdivision and shall be deemed repealed therewith.