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A04739 Summary:

Amd 209-a, 209 & 210, Civ Serv L
Relates to disputes arising from collective negotiations; addresses strikes which occur 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 employee; relates to impasse resolution.
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A04739 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Pretlow
  TITLE OF BILL: An act to amend the civil service law, in relation to disputes arising from collective negotiations   PROVISIONS OF BILL: The bill amends Sections 209, 209-a and 210 of the Civil Service Law as described herein for the purpose of avoiding delay in the conduct of collective negotiations and in the processing of impasses through the statutory procedures and to allow such delay to be taken, into account in determining the penalties to be imposed upon unions found to have violated the no-strike provisions of the Taylor Law.   JUSTIFICATION: The Taylor Law was founded upon a belief that negotiations would be conducted in good faith and that those negotiations would result in an unbroken series of collective agreements with little or no periods of expiration between agreements. The impasse procedures were designed to help ensure that very result. Unfortunately, the legislative intent has not been accomplished. Negotiations in most instances continue long after agreements have expired resulting in many instances where the last agreement between the parties has been expired for several years before a successor agreement is reached. In these circumstances existing law has not afforded the parties an incentive to negotiate in good faith and the existing impasse procedures have not been invoked by the parties or PERB in a timely manner. The tensions generated by the failure of collective negotiations can and has caused strikes that the Taylor Law prohibits and strives to prevent. This bill avoids any rigid time limits for completion of the impasse procedures. Instead, it charges PERB to intervene quickly when parties have gone a year or more without an agreement in place and instructs PERB to take the steps necessary to ensure the completion of the statu- tory impasse procedures without delay. This bill also does not contain the financial penalties that were included in last year's proposal. Instead, it requires a consideration of the history of negotiation in fixing existing penalties for strikes. As no one legislative change can restore vitality to the bargaining and impasse processes, a combination of approaches is embodied in the bill. Bargaining that continues more than a year without a successor agreement in place would be presumed to have resulted from bad faith. In such circumstances, an impasse would be deemed to exist and PERB would be required to intervene and to monitor the applicable impasse procedures to ensure these procedures were completed as quickly as possible. Should a strike arise in this time frame, there would be a presumption of extreme provocation which would have to be considered in the estab- lishment of the duration of forfeiture of dues and fees imposed upon a union found to be responsible for the strike.   PRIOR LEGISLATIVE HISTORY: 2021-2022 A1804 referred to Governmental Employees 2019-2020 A3607 referred to governmental employees 01/30/18 A2934 referred to governmental 01/06/16 A2802 referred to governmental employees 01/20/15 A2802 referred to governmental employees   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect Immediately.
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A04739 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    February 23, 2023
        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:

     1    Section 1. Subdivision 6 of section 209-a of the civil service law, as
     2  amended by chapter 467 of the laws of 1990 and as renumbered by  chapter
     3  695 of the laws of 1994, is amended to read as follows:
     4    6.  Application.  In  applying  this section, fundamental distinctions
     5  between private and public employment shall be recognized, and  no  body
     6  of  federal or state law applicable wholly or in part to private employ-
     7  ment, shall be  regarded  as  binding  or  controlling  precedent.  With
     8  respect  to  any  improper practice charge filed against either a public
     9  employer or a public employee organization that  alleges  a  refusal  to
    10  negotiate  in good faith a presumption of bad faith shall apply whenever
    11  the last agreement between the  parties  or,  as  applicable,  the  last
    12  interest  arbitration  award between them, has been expired for a period
    13  in excess of one year from final execution of the agreement or  delivery
    14  of the award to the parties and no new agreement has been reached at the
    15  date such improper practice charge is filed.
    16    § 2. Subdivision 1 of section 209 of the civil service law, as amended
    17  by chapter 216 of the laws of 1977, is amended to read as follows:
    18    1. (a) For purposes of this section, an impasse may be deemed to exist
    19  if  the  parties  fail  to achieve agreement at least one hundred twenty
    20  days prior to the end of the fiscal year  of  the  public  employer  and
    21  shall  be  deemed  to exist if the last agreement between the parties at
    22  impasse, or as applicable, their last interest  arbitration  award,  has
    23  been  expired for a period in excess of one year from final execution of
    24  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.

        A. 4739                             2
     1    (b) In any circumstance in which an impasse has been found to exist or
     2  has been deemed to exist, the board shall take such action as it consid-
     3  ers to be necessary and appropriate to  ensure  the  completion  without
     4  delay of any and all applicable impasse resolution procedures authorized
     5  or required by this article.
     6    §  3.  Paragraph  (b)  of  subdivision  2  of section 210 of the civil
     7  service law, as amended by chapter 24 of the laws of 1969, is amended to
     8  read as follows:
     9    (b) Presumption. (i) For purposes of this subdivision an employee  who
    10  is  absent  from  work  without permission, or who abstains wholly or in
    11  part from the full performance of his duties in his normal manner  with-
    12  out  permission,  on  the  date  or dates when a strike occurs, shall be
    13  presumed to have engaged in such strike on such date or dates.
    14    (ii) Any strike which occurs on a date or dates  more  than  one  year
    15  after the expiration of the last agreement between the employee's public
    16  employer  and the public employee organization representing such employ-
    17  ee, or, as applicable, more than one year after delivery of an  interest
    18  arbitration award to such employee's employer and public employee organ-
    19  ization  shall  be  presumed  to have been one caused by acts of extreme
    20  provocation within the meaning of this article.
    21    § 4. Paragraph (f) of subdivision  3  of  section  210  of  the  civil
    22  service  law,  as amended by chapter 677 of the laws of 1977, is amended
    23  to read as follows:
    24    (f) If the board determines that an employee organization has violated
    25  the provisions of subdivision one of this section, the board shall order
    26  forfeiture of the rights granted pursuant to the provisions of paragraph
    27  (b) of subdivision one, and subdivision three  of  section  two  hundred
    28  eight  of  this  [chapter] article, for such specified period of time as
    29  the board shall determine, or, in the discretion of the  board,  for  an
    30  indefinite  period of time subject to restoration upon application, with
    31  notice to all interested parties,  supported  by  proof  of  good  faith
    32  compliance  with  the  requirements  of  subdivision one of this section
    33  since the date of such violation, such proof to  include,  for  example,
    34  the  successful  negotiation,  without a violation of subdivision one of
    35  this section, of a contract covering the employees in the unit  affected
    36  by  such  violation;  provided, however, that where a fine imposed on an
    37  employee organization pursuant  to  subdivision  two  of  section  seven
    38  hundred  fifty-one of the judiciary law remains wholly or partly unpaid,
    39  after the exhaustion of the cash and securities of the  employee  organ-
    40  ization,  the  board shall direct that, notwithstanding such forfeiture,
    41  such membership dues deduction shall be continued to the  extent  neces-
    42  sary  to  pay  such  fine  and  such public employer shall transmit such
    43  moneys to the court. In fixing  the  duration  of  the  forfeiture,  the
    44  board, or any other court or other tribunal authorized by law, including
    45  without limitation section seven hundred fifty-one of the judiciary law,
    46  to  determine  such  issue  shall  consider  all  the relevant facts and
    47  circumstances, including but not limited  to:  (i)  the  extent  of  any
    48  wilful  defiance  of subdivision one of this section; (ii) the impact of
    49  the strike on the public health, safety, and welfare  of  the  community
    50  [and];  (iii) the financial resources of the employee organization; [and
    51  the board may consider (i)] (iv) the refusal of the  employee  organiza-
    52  tion  or  the appropriate public employer or the representative thereof,
    53  to submit to the [mediation and fact-finding] impasse resolution  proce-
    54  dures  provided  in section two hundred nine of this article; and [(ii)]
    55  (v) whether, if so alleged by the employee organization, the appropriate
    56  public employer or its representatives engaged in such acts  of  extreme

        A. 4739                             3
     1  provocation as to detract from the responsibility of the employee organ-
     2  ization  for  the  strike. In determining the financial resources of the
     3  employee organization, the board shall consider both the income and  the
     4  assets  of  such employee organization. In the event membership dues are
     5  collected by the public employer as provided in paragraph (b) of  subdi-
     6  vision  one  of section two hundred eight of this [chapter] article, the
     7  books and records of such public employer shall be prima facie  evidence
     8  of the amount so collected.
     9    § 5. This act shall take effect immediately.
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