N.Y. Civil Service Law § 210: Prohibition of strikes

§ 210. Prohibition of strikes. 1. No public employee or employee

organization shall engage in a strike, and no public employee or

employee organization shall cause, instigate, encourage, or condone a

strike.

2. Violations and penalties; presumption; prohibition against consent

to strike; determination; notice; probation; payroll deductions;

objections; and restoration. (a) Violations and penalties. A public

employee shall violate this subdivision by engaging in a strike or

violating paragraph (c) of this subdivision and shall be liable as

provided in this subdivision pursuant to the procedures contained

herein. In addition, any public employee who violates subdivision one of

this section may be subject to removal or other disciplinary action

provided by law for misconduct.

(b) Presumption. 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 without

permission, on the date or dates when a strike occurs, shall be presumed

to have engaged in such strike on such date or dates.

(c) Prohibition against consent to strike. No person exercising on

behalf of any public employer any authority, supervision or direction

over any public employee shall have the power to authorize, approve,

condone or consent to a strike, or the engaging in a strike, by one or

more public employees, and such person shall not authorize, approve,

condone or consent to such strike or engagement.

(d) Determination. In the event that it appears that a violation of

this subdivision may have occurred, the chief executive officer of the

government involved shall, on the basis of such investigation and

affidavits as he may deem appropriate, determine whether or not such

violation has occurred and the date or dates of such violation. If the

chief executive officer determines that such violation has occurred, he

shall further determine, on the basis of such further investigation and

affidavits as he may deem appropriate, the names of employees who

committed such violation and the date or dates thereof. Such

determination shall not be deemed to be final until the completion of

the procedures provided for in this subdivision.

(e) Notice. The chief executive officer shall forthwith notify each

employee that he has been found to have committed such violation, the

date or dates thereof and of his right to object to such determination

pursuant to paragraph (g) of this subdivision; he 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 shall be by personal

service or by certified mail to his last address filed by him with his

employer.

(f) Payroll deductions. Not earlier than thirty nor later than ninety

days following the date of such determination, the chief fiscal officer

of the government involved shall deduct from the compensation of each

such public employee an amount equal to twice his daily rate of pay for

each day or part thereof that it was determined that he had violated

this subdivision; such rate of pay to be computed as of the time of such

violation. In computing such deduction, credit shall be allowed for

amounts already withheld from such employee's compensation on account of

his absence from work or other withholding of services on such day or

days. In computing the aforesaid thirty to ninety day period of time

following the determination of a violation pursuant to subdivision (d)

of paragraph two of this section and where the employee'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.

(g) Objections and restoration. Any employee determined to have

violated this subdivision may object to such determination by filing

with the chief executive officer, (within twenty days of the date on

which notice was served or mailed to him pursuant to paragraph (e) of

this subdivision) his sworn affidavit, supported by available

documentary proof, containing a short and plain statement of the facts

upon which he 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 establishes that the employee did not violate this subdivision, he

shall sustain the objection. If the chief executive officer shall

determine that the affidavit and supporting proof fails to establish

that the employee did not violate this subdivision, he shall dismiss the

objection and so notify the employee. If the chief executive officer

shall determine that the affidavit and supporting proof raises a

question of fact which, if resolved in favor of the employee, would

establish that the employee did not violate this subdivision, 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 paragraph shall be

reviewable pursuant to article seventy-eight of the civil practice law

and rules.

3. (a) An employee organization which is determined by the board to

have violated the provisions of subdivision one of this section shall,

in accordance with the provisions of this section, lose the rights

granted pursuant to the provisions of paragraph (b) of subdivision one

of section two hundred eight of this chapter.

(b) In the event that it appears that a violation of subdivision one

of this section may have occurred, it shall be the duty of the chief

executive officer of the public employer involved (i) forthwith to so

notify the board and the chief legal officer of the government involved,

and (ii) to provide the board and such chief legal officer with such

facilities, assistance and data as will enable the board and such chief

legal officer to carry out their duties under this section.

(c) In the event that it appears that a violation of subdivision one

of this section may have occurred, the chief legal officer of the

government involved, or the board on its own motion, shall forthwith

institute proceedings before the board to determine whether such

employee organization has violated the provisions of subdivision one of

this section.

(d) Proceedings against an employee organization under this section

shall be commenced by service upon it of a written notice, together with

a copy of the charges. A copy of such notice and charges shall also be

served, for their information, upon the appropriate government officials

who recognize such employee organization and grant to it the rights

accompanying such recognition. The employee organization shall have

eight days within which to serve its written answer to such charges. The

board's hearing shall be held promptly thereafter and at such hearing,

the parties shall be permitted to be represented by counsel and to

summon witnesses in their behalf. Compliance with the technical rules of

evidence shall not be required.

(e) In determining whether an employee organization has violated

subdivision one of this section, the board shall consider (i) whether

the employee organization called the strike or tried to prevent it, and

(ii) whether the employee organization made or was making good faith

efforts to terminate the strike.

(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, 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 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 organization; and the board may consider (i) the refusal of the

employee organization or the appropriate public employer or the

representative thereof, to submit to the mediation and fact-finding

procedures 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

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 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.

(g) An employee organization whose rights granted pursuant to the

provisions of paragraph (b) of subdivision one, and subdivision three of

section two hundred eight of this article have been ordered forfeited

pursuant to this section may be granted such rights after the

termination of such forfeiture only after complying with the provisions

of clause (b) of subdivision three of section two hundred seven of this

article.

(h) No compensation shall be paid by a public employer to a public

employee with respect to any day or part thereof when such employee is

engaged in a strike against such employer. The chief fiscal officer of

the government involved shall withhold such compensation upon receipt of

the notice provided by paragraph (e) of subdivision two of section two

hundred ten; notwithstanding the failure to have received such notice,

no public employee or officer having knowledge that such employee has so

engaged in such a strike shall deliver or caused to be delivered to such

employee any cash, check or payment which, in whole or in part,

represents such compensation.

4. Within sixty days of the termination of a strike, the chief

executive officer of the government involved shall prepare and make

public a report in writing, which shall contain the following

information: (a) the circumstances surrounding the commencement of the

strike, (b) the efforts used to terminate the strike, (c) the names of

those public employees whom the public officer or body had reason to

believe were responsible for causing, instigating or encouraging the

strike and (d) related to the varying degrees of individual

responsibility, the sanctions imposed or proceedings pending against

each such individual public employee.