S 938: Relates to the right of public employees and employee organizations to strike; repeals certain provisions relating thereto.

  
  STATE OF NEW YORK ________________________________________________________________________ 938 2025-2026 Regular Sessions  IN SENATE (Prefiled) January 8, 2025 ___________ Introduced by Sen. BRISPORT -- read twice and ordered printed, and when printed to be committed to the Committee on Civil Service and Pensions AN ACT to amend the civil service law, in relation to the rights of public employees and employee organizations to strike; and to repeal certain provisions of the civil service law and the judiciary law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 1, 2, 3 and 4 of section 210 of the civil 2 service law, as amended by chapter 24 of the laws of 1969, paragraph (f) 3 of subdivision 2 and paragraph (a) of subdivision 3 as amended and 4 subdivision 4 as renumbered by chapter 503 of the laws of 1971, para- 5 graph (f) of subdivision 2 as relettered and paragraphs (e) and (g) of 6 subdivision 2 as amended by chapter 254 of the laws of 1983, and para- 7 graphs (f) and (g) of subdivision 3 as amended by chapter 677 of the 8 laws of 1977, are amended to read as follows: 9 1. No public employee or employee organization shall engage in a 10 strike[, and no public employee or employee organization shall cause, 11 instigate, encourage, or condone a strike]. 12 2. Violations and penalties; [presumption;] prohibition against 13 consent to strike; determination; notice; [probation; payroll 14 deductions;] objections; and restoration. (a) Violations and penalties. 15 A public employee shall violate this subdivision by engaging in a strike 16 or violating paragraph [(c)] (b) of this subdivision and shall be liable 17 as provided in this subdivision pursuant to the procedures contained 18 herein. In addition, any public employee who violates subdivision one of 19 this section may be subject to [removal or] other disciplinary action 20 provided by law [for misconduct]. 21 (b) [Presumption. For purposes of this subdivision an employee who is 22 absent from work without permission, or who abstains wholly or in part EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01572-01-5 
 S. 938 2 1 from the full performance of his duties in his normal manner without 2 permission, on the date or dates when a strike occurs, shall be presumed 3 to have engaged in such strike on such date or dates. 4 (c)] Prohibition against consent to strike. No person exercising on 5 behalf of any public employer any authority, supervision or direction 6 over any public employee shall have the power to authorize, approve, 7 condone or consent to a strike, or the engaging in a strike, by one or 8 more public employees, and such person shall not authorize, approve, 9 condone or consent to such strike or engagement. Nothing in this para- 10 graph, however, shall be construed to prohibit any public employer from 11 negotiating or entering into an agreement with an employee organization, 12 nor shall a public employer's failure to pursue adverse action against 13 an employee organization or public employee in response to a strike be 14 construed as a violation of this paragraph. 15 [(d)] (c) Determination. In the event that it appears that a violation 16 of this subdivision may have occurred, the chief executive officer of 17 the government involved [shall] may, on the basis of such investigation 18 and affidavits as [he] such chief executive officer may deem appropri- 19 ate, determine whether or not such violation has occurred and the date 20 or dates of such violation. If the chief executive officer determines 21 that such violation has occurred, [he shall] such chief executive offi- 22 cer may further determine, on the basis of such further investigation 23 and affidavits as [he] such chief executive officer may deem appropri- 24 ate, the names of employees who committed such violation and the date or 25 dates thereof. Such determination shall not be deemed to be final until 26 the completion of the procedures provided for in this subdivision. 27 [(e)] (d) Notice. The chief executive officer shall forthwith notify 28 each employee that [he] such employee has been found to have committed 29 such violation, the date or dates thereof and of [his] such employee's 30 right to object to such determination pursuant to paragraph [(g)] (e) of 31 this subdivision; [he] such chief executive officer shall also notify 32 the chief fiscal officer of the names of all such employees and of the 33 total number of days, or part thereof, on which it has been determined 34 that such violation occurred. Notice to each employee shall be by 35 personal service or by certified mail to [his] the last address filed by 36 [him] such employee with [his] the employer. 37 [(f) Payroll deductions. Not earlier than thirty nor later than ninety 38 days following the date of such determination, the chief fiscal officer 39 of the government involved shall deduct from the compensation of each 40 such public employee an amount equal to twice his daily rate of pay for 41 each day or part thereof that it was determined that he had violated 42 this subdivision; such rate of pay to be computed as of the time of such 43 violation. In computing such deduction, credit shall be allowed for 44 amounts already withheld from such employee's compensation on account of 45 his absence from work or other withholding of services on such day or 46 days. In computing the aforesaid thirty to ninety day period of time 47 following the determination of a violation pursuant to subdivision (d) 48 of paragraph two of this section and where the employee's annual compen- 49 sation is paid over a period of time which is less than fifty-two weeks, 50 that period of time between the last day of the last payroll period of 51 the employment term in which the violation occurred and the first day of 52 the first payroll period of the next succeeding employment term shall be 53 disregarded and not counted. 54 (g)] (e) Objections and restoration. Any employee determined to have 55 violated this subdivision may object to such determination by filing 56 with the chief executive officer, (within twenty days of the date on 
 S. 938 3 1 which notice was served or mailed to [him] such employee pursuant to 2 paragraph [(e)] (d) of this subdivision) [his sworn affidavit, supported 3 by available documentary proof, containing] a short and plain statement 4 [of the facts upon which he relies to show] that such determination was 5 incorrect. [Such affidavit shall be subject to the penalties of perjury. 6 If the chief executive officer shall determine that the affidavit and 7 supporting proof establishes that the employee did not violate this 8 subdivision, he shall sustain the objection. If the chief executive 9 officer shall determine that the affidavit and supporting proof fails to 10 establish that the employee did not violate this subdivision, he shall 11 dismiss the objection and so notify the employee. If] Upon receipt of 12 such statement, the chief executive officer [shall determine that the 13 affidavit and supporting proof raises a question of fact which, if 14 resolved in favor of the employee, would establish that the employee did 15 not violate this subdivision, he shall] may appoint a hearing officer to 16 determine whether in fact the employee did violate this subdivision 17 after a hearing at which such [employee] employee's employer shall bear 18 the burden of proof. If the hearing officer shall determine that the 19 [employee failed to establish] employer established that [he] such 20 employee did [not] violate this subdivision, the chief executive officer 21 shall so notify the employee. If the chief executive officer sustains 22 an objection or the hearing officer determines on a preponderance of the 23 evidence that such employer failed to establish that such employee [did 24 not violate] violated this subdivision, the chief executive officer 25 shall forthwith notify the chief fiscal officer who shall thereupon 26 cease all further deductions and refund any deductions previously made 27 pursuant to this [subdivision] section. The determinations provided in 28 this paragraph shall be reviewable pursuant to article seventy-eight of 29 the civil practice law and rules. 30 3. (a) [An employee organization which is determined by the board to 31 have violated the provisions of subdivision one of this section shall, 32 in accordance with the provisions of this section, lose the rights 33 granted pursuant to the provisions of paragraph (b) of subdivision one 34 of section two hundred eight of this chapter. 35 (b)] In the event that it appears that a violation of subdivision one 36 of this section may have occurred, [it shall be the duty of] the chief 37 executive officer of the public employer involved may (i) [forthwith to 38 so] notify the board and the chief legal officer of the government 39 involved, and (ii) [to] provide the board and such chief legal officer 40 with such facilities, assistance and data as will enable the board and 41 such chief legal officer to carry out their duties under this section. 42 [(c)] (b) In the event that it appears that a violation of subdivision 43 one of this section may have occurred, the chief legal officer of the 44 government involved[, or the board on its own motion, shall forthwith] 45 may institute proceedings before the board to determine whether such 46 employee organization has violated the provisions of subdivision one of 47 this section. 48 [(d)] (c) Proceedings against an employee organization under this 49 section shall be commenced by service upon it of a written notice, 50 together with a copy of the charges. A copy of such notice and charges 51 shall also be served, for their information, upon the appropriate 52 government officials who recognize such employee organization and grant 53 to it the rights accompanying such recognition. The employee organiza- 54 tion shall have eight days within which to serve its written answer to 55 such charges. The board's hearing shall be held promptly thereafter and 56 at such hearing, the parties shall be permitted to be represented by 
 S. 938 4 1 counsel and to summon witnesses in their behalf. Compliance with the 2 technical rules of evidence shall not be required. 3 [(e)] (d) In determining whether an employee organization has violated 4 subdivision one of this section, the board shall consider [(i)] only 5 whether the employee organization called the strike [or tried to prevent 6 it, and (ii) whether the employee organization made or was making good 7 faith efforts to terminate the strike]. 8 [(f)] (e) If the board determines that an employee organization has 9 violated the provisions of subdivision one of this section, the board 10 shall order [forfeiture of the rights granted pursuant to the provisions 11 of paragraph (b) of subdivision one, and subdivision three of section 12 two hundred eight of this chapter, for such specified period of time as 13 the board shall determine, or, in the discretion of the board, for an 14 indefinite period of time subject to restoration upon application, with 15 notice to all interested parties, supported by proof of good faith 16 compliance with the requirements of subdivision one of this section 17 since the date of such violation, such proof to include, for example, 18 the successful negotiation, without a violation of subdivision one of 19 this section, of a contract covering the employees in the unit affected 20 by such violation; provided, however, that where a fine imposed on an 21 employee organization pursuant to subdivision two of section seven 22 hundred fifty-one of the judiciary law remains wholly or partly unpaid, 23 after the exhaustion of the cash and securities of the employee organ- 24 ization, the board shall direct that, notwithstanding such forfeiture, 25 such membership dues deduction shall be continued to the extent neces- 26 sary to pay such fine and such public employer shall transmit such 27 moneys to the court. In fixing the duration of the forfeiture, the board 28 shall consider all the relevant facts and circumstances, including but 29 not limited to: (i) the extent of any wilful defiance of subdivision one 30 of this section (ii) the impact of the strike on the public health, 31 safety, and welfare of the community and (iii) the financial resources 32 of the employee organization; and the board may consider (i) the refusal 33 of the employee organization or the appropriate public employer or the 34 representative thereof, to submit to the mediation and fact-finding 35 procedures provided in section two hundred nine and (ii) whether, if so 36 alleged by the employee organization, the appropriate public employer or 37 its representatives engaged in such acts of extreme provocation as to 38 detract from the responsibility of the employee organization for the 39 strike. In determining the financial resources of the employee organiza- 40 tion, the board shall consider both the income and the assets of such 41 employee organization. In the event membership dues are collected by the 42 public employer as provided in paragraph (b) of subdivision one of 43 section two hundred eight of this chapter, the books and records of such 44 public employer shall be prima facie evidence of the amount so 45 collected. 46 (g) An employee organization whose rights granted pursuant to the 47 provisions of paragraph (b) of subdivision one, and subdivision three of 48 section two hundred eight of this article have been ordered forfeited 49 pursuant to this section may be granted such rights after the termi- 50 nation of such forfeiture only after complying with the provisions of 51 clause (b) of subdivision three of section two hundred seven of this 52 article] such employee organization to pay a fine of not more than fifty 53 dollars per day for the duration of the strike. 54 [(h)] (f) No compensation shall be paid by a public employer to a 55 public employee with respect to any day or part thereof when such 56 employee is engaged in a strike against such employer. The chief fiscal 
 S. 938 5 1 officer of the government involved shall withhold such compensation upon 2 receipt of the notice provided by paragraph [(e)] (d) of subdivision two 3 of this section [two hundred ten]; notwithstanding the failure to have 4 received such notice, no public employee or officer having knowledge 5 that such employee has so engaged in such a strike shall deliver or 6 caused to be delivered to such employee any cash, check or payment 7 which, in whole or in part, represents such compensation. 8 (g) The foregoing penalties shall be the sole and exclusive remedies 9 available for any violation of subdivision one or two of this section. 10 No public employee shall be compelled by any legal action to work 11 against such employee's will in any matter arising out of a violation of 12 subdivision one or two of this section. No additional penalties for 13 violations of subdivision one or two of this section may be imposed by 14 court order against an employee organization or public employee, includ- 15 ing but not limited to incarceration or fines secured through contempt 16 proceedings. 17 4. Within sixty days of the termination of a strike, the chief execu- 18 tive officer of the government involved shall prepare and make public a 19 report in writing, which shall contain the following information: (a) 20 the circumstances surrounding the commencement of the strike, (b) the 21 efforts used to terminate the strike, and (c) [the names of those public 22 employees whom the public officer or body had reason to believe were 23 responsible for causing, instigating or encouraging the strike and (d) 24 related to the varying degrees of individual responsibility,] the sanc- 25 tions imposed [or proceedings pending against each such individual 26 public employee]. 27 § 2. Section 211 of the civil service law is REPEALED. 28 § 3. Subdivision 2 of section 751 of the judiciary law is REPEALED. 29 § 4. This act shall take effect immediately.