§ 210 — Prohibition of strikes

§ 210. Prohibition of strikes. 1. No public employee or employee\norganization shall engage in a strike, and no public employee or\nemployee organization shall cause, instigate, encourage, or condone a\nstrike.\n 2. Violations and penalties; presumption; prohibition against consent\nto strike; determination; notice; probation; payroll deductions;\nobjections; and restoration. (a) Violations and penalties. A public\nemployee shall violate this subdivision by engaging in a strike or\nviolating paragraph (c) of this subdivision and shall be liable as\nprovided in this subdivision pursuant to the procedures contained\nherein. In addition, any public employee who violates subdivision one of\nthis section may be subject to removal or other disciplinary action\nprovided by law for misconduct.\n (b) Presumption. For purposes of this subdivision an employee who is\nabsent from work without permission, or who abstains wholly or in part\nfrom the full performance of his duties in his normal manner without\npermission, on the date or dates when a strike occurs, shall be presumed\nto have engaged in such strike on such date or dates.\n (c) Prohibition against consent to strike. No person exercising on\nbehalf of any public employer any authority, supervision or direction\nover any public employee shall have the power to authorize, approve,\ncondone or consent to a strike, or the engaging in a strike, by one or\nmore public employees, and such person shall not authorize, approve,\ncondone or consent to such strike or engagement.\n (d) Determination. In the event that it appears that a violation of\nthis subdivision may have occurred, the chief executive officer of the\ngovernment involved shall, on the basis of such investigation and\naffidavits as he may deem appropriate, determine whether or not such\nviolation has occurred and the date or dates of such violation. If the\nchief executive officer determines that such violation has occurred, he\nshall further determine, on the basis of such further investigation and\naffidavits as he may deem appropriate, the names of employees who\ncommitted such violation and the date or dates thereof. Such\ndetermination shall not be deemed to be final until the completion of\nthe procedures provided for in this subdivision.\n (e) Notice. The chief executive officer shall forthwith notify each\nemployee that he has been found to have committed such violation, the\ndate or dates thereof and of his right to object to such determination\npursuant to paragraph (g) of this subdivision; he shall also notify the\nchief fiscal officer of the names of all such employees and of the total\nnumber of days, or part thereof, on which it has been determined that\nsuch violation occurred. Notice to each employee shall be by personal\nservice or by certified mail to his last address filed by him with his\nemployer.\n (f) Payroll deductions. Not earlier than thirty nor later than ninety\ndays following the date of such determination, the chief fiscal officer\nof the government involved shall deduct from the compensation of each\nsuch public employee an amount equal to twice his daily rate of pay for\neach day or part thereof that it was determined that he had violated\nthis subdivision; such rate of pay to be computed as of the time of such\nviolation. In computing such deduction, credit shall be allowed for\namounts already withheld from such employee's compensation on account of\nhis absence from work or other withholding of services on such day or\ndays. In computing the aforesaid thirty to ninety day period of time\nfollowing the determination of a violation pursuant to subdivision (d)\nof paragraph two of this section and where the employee's annual\ncompensation is paid over a period of time which is less than fifty-two\nweeks, that period of time between the last day of the last payroll\nperiod of the employment term in which the violation occurred and the\nfirst day of the first payroll period of the next succeeding employment\nterm shall be disregarded and not counted.\n (g) Objections and restoration. Any employee determined to have\nviolated this subdivision may object to such determination by filing\nwith the chief executive officer, (within twenty days of the date on\nwhich notice was served or mailed to him pursuant to paragraph (e) of\nthis subdivision) his sworn affidavit, supported by available\ndocumentary proof, containing a short and plain statement of the facts\nupon which he relies to show that such determination was incorrect. Such\naffidavit shall be subject to the penalties of perjury. If the chief\nexecutive officer shall determine that the affidavit and supporting\nproof establishes that the employee did not violate this subdivision, he\nshall sustain the objection. If the chief executive officer shall\ndetermine that the affidavit and supporting proof fails to establish\nthat the employee did not violate this subdivision, he shall dismiss the\nobjection and so notify the employee. If the chief executive officer\nshall determine that the affidavit and supporting proof raises a\nquestion of fact which, if resolved in favor of the employee, would\nestablish that the employee did not violate this subdivision, he shall\nappoint a hearing officer to determine whether in fact the employee did\nviolate this subdivision after a hearing at which such employee shall\nbear the burden of proof. If the hearing officer shall determine that\nthe employee failed to establish that he did not violate this\nsubdivision, the chief executive officer shall so notify the employee.\nIf the chief executive officer sustains an objection or the hearing\nofficer determines on a preponderance of the evidence that such employee\ndid not violate this subdivision, the chief executive officer shall\nforthwith notify the chief fiscal officer who shall thereupon cease all\nfurther deductions and refund any deductions previously made pursuant to\nthis subdivision. The determinations provided in this paragraph shall be\nreviewable pursuant to article seventy-eight of the civil practice law\nand rules.\n 3. (a) An employee organization which is determined by the board to\nhave violated the provisions of subdivision one of this section shall,\nin accordance with the provisions of this section, lose the rights\ngranted pursuant to the provisions of paragraph (b) of subdivision one\nof section two hundred eight of this chapter.\n (b) In the event that it appears that a violation of subdivision one\nof this section may have occurred, it shall be the duty of the chief\nexecutive officer of the public employer involved (i) forthwith to so\nnotify the board and the chief legal officer of the government involved,\nand (ii) to provide the board and such chief legal officer with such\nfacilities, assistance and data as will enable the board and such chief\nlegal officer to carry out their duties under this section.\n (c) In the event that it appears that a violation of subdivision one\nof this section may have occurred, the chief legal officer of the\ngovernment involved, or the board on its own motion, shall forthwith\ninstitute proceedings before the board to determine whether such\nemployee organization has violated the provisions of subdivision one of\nthis section.\n (d) Proceedings against an employee organization under this section\nshall be commenced by service upon it of a written notice, together with\na copy of the charges. A copy of such notice and charges shall also be\nserved, for their information, upon the appropriate government officials\nwho recognize such employee organization and grant to it the rights\naccompanying such recognition. The employee organization shall have\neight days within which to serve its written answer to such charges. The\nboard's hearing shall be held promptly thereafter and at such hearing,\nthe parties shall be permitted to be represented by counsel and to\nsummon witnesses in their behalf. Compliance with the technical rules of\nevidence shall not be required.\n (e) In determining whether an employee organization has violated\nsubdivision one of this section, the board shall consider (i) whether\nthe employee organization called the strike or tried to prevent it, and\n(ii) whether the employee organization made or was making good faith\nefforts to terminate the strike.\n (f) If the board determines that an employee organization has violated\nthe provisions of subdivision one of this section, the board shall order\nforfeiture of the rights granted pursuant to the provisions of paragraph\n(b) of subdivision one, and subdivision three of section two hundred\neight of this chapter, for such specified period of time as the board\nshall determine, or, in the discretion of the board, for an indefinite\nperiod of time subject to restoration upon application, with notice to\nall interested parties, supported by proof of good faith compliance with\nthe requirements of subdivision one of this section since the date of\nsuch violation, such proof to include, for example, the successful\nnegotiation, without a violation of subdivision one of this section, of\na contract covering the employees in the unit affected by such\nviolation; provided, however, that where a fine imposed on an employee\norganization pursuant to subdivision two of section seven hundred\nfifty-one of the judiciary law remains wholly or partly unpaid, after\nthe exhaustion of the cash and securities of the employee organization,\nthe board shall direct that, notwithstanding such forfeiture, such\nmembership dues deduction shall be continued to the extent necessary to\npay such fine and such public employer shall transmit such moneys to the\ncourt. In fixing the duration of the forfeiture, the board shall\nconsider all the relevant facts and circumstances, including but not\nlimited to: (i) the extent of any wilful defiance of subdivision one of\nthis section (ii) the impact of the strike on the public health, safety,\nand welfare of the community and (iii) the financial resources of the\nemployee organization; and the board may consider (i) the refusal of the\nemployee organization or the appropriate public employer or the\nrepresentative thereof, to submit to the mediation and fact-finding\nprocedures provided in section two hundred nine and (ii) whether, if so\nalleged by the employee organization, the appropriate public employer or\nits representatives engaged in such acts of extreme provocation as to\ndetract from the responsibility of the employee organization for the\nstrike. In determining the financial resources of the employee\norganization, the board shall consider both the income and the assets of\nsuch employee organization. In the event membership dues are collected\nby the public employer as provided in paragraph (b) of subdivision one\nof section two hundred eight of this chapter, the books and records of\nsuch public employer shall be prima facie evidence of the amount so\ncollected.\n (g) An employee organization whose rights granted pursuant to the\nprovisions of paragraph (b) of subdivision one, and subdivision three of\nsection two hundred eight of this article have been ordered forfeited\npursuant to this section may be granted such rights after the\ntermination of such forfeiture only after complying with the provisions\nof clause (b) of subdivision three of section two hundred seven of this\narticle.\n (h) No compensation shall be paid by a public employer to a public\nemployee with respect to any day or part thereof when such employee is\nengaged in a strike against such employer. The chief fiscal officer of\nthe government involved shall withhold such compensation upon receipt of\nthe notice provided by paragraph (e) of subdivision two of section two\nhundred ten; notwithstanding the failure to have received such notice,\nno public employee or officer having knowledge that such employee has so\nengaged in such a strike shall deliver or caused to be delivered to such\nemployee any cash, check or payment which, in whole or in part,\nrepresents such compensation.\n 4. Within sixty days of the termination of a strike, the chief\nexecutive officer of the government involved shall prepare and make\npublic a report in writing, which shall contain the following\ninformation: (a) the circumstances surrounding the commencement of the\nstrike, (b) the efforts used to terminate the strike, (c) the names of\nthose public employees whom the public officer or body had reason to\nbelieve were responsible for causing, instigating or encouraging the\nstrike and (d) related to the varying degrees of individual\nresponsibility, the sanctions imposed or proceedings pending against\neach such individual public employee.\n