Bill S7773-2013

Provides for a thirty day limit on additional punishment for certain contempt citations involving an employee organization and view acts of extreme provocation

Provides for a thirty day limit on additional punishment for certain contempt citations involving an employee organization and view acts of extreme provocation in a light most favorable to the employee organization.

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  • Jun 6, 2014: REFERRED TO JUDICIARY

Memo

BILL NUMBER:S7773

TITLE OF BILL: An act to amend the judiciary law and the civil service law, in relation to judicial review of punishment for certain contempt citations

PURPOSE OR GENERAL IDEA OF BILL: To provide equity for employee organizations who may be subject to penalties pursuant to the Taylor Law.

SUMMARY OF PROVISIONS: Amends § 751 (2)(a) of the judiciary law, as separately amended by chapter 503 of the laws of 1971, and as amended by chapter 254 of the laws of 1983, to (1) limit the allowable period for forfeiture of rights to membership dues deduction to 30 days and (2) when considering the amount of fine and or duration of forfeiture to impose, the court shall also consider any acts of extreme provocation by the employer or its representatives in the light most favorable to the employee organization.

Amends § 210 (3)(f) of the civil service law, as amended by chapter 677 of the laws of 1977, and § 210 (2)(f) of the civil service law, as amended by chapter 503 of the laws of 1971, to (1) limit the allowable period for forfeiture of rights to membership dues deduction to 30 days and (2) when considering the amount of fine and or duration of forfeiture to impose, the court shall also consider any acts of extreme provocation by the employer or its representatives in the light most favorable to the employee organization.

JUSTIFICATION: Although the Fair Employee Act ("Taylor Law") requires both public employee organizations and employers to negotiate in good faith, the Act lacks equitable and meaningful mechanisms for enforcement. The Taylor Law imposes harsh restrictions, sanctions and penalties on employee organizations, often resulting in the loss of millions of dollars used to sustain the organization and rightfully derived from membership dues. In contrast, sanctions against employers, who fact finding bodies determine have acted in bad faith, are merely ordered to cease and desist their conduct of bad faith with no monetary penalty. It is clear the Taylor Law is in need of reform and this legislation will provide a balance in the application of the law to employee organizations by limiting the amount of time for forfeiture of membership dues t 30 days and requiring a judge to view all the facts indicating extreme provocation by the employer in the light most favorable to the employee organization.

PRIOR LEGISLATIVE HISTORY: 2011-2012 A.3046 2009-2010 A.3544 2008-2010 A.3544 2006-2008 A.5663 2005-2006 A.12067

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None to the state.

EFFECTIVE DATE: This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 7773 IN SENATE June 6, 2014 ___________
Introduced by Sen. AVELLA -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the judiciary law and the civil service law, in relation to judicial review of punishment for certain contempt citations THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (a) of subdivision 2 of section 751 of the judi- ciary law, as amended by chapter 254 of the laws of 1983, is amended to read as follows: (a) Where an employee organization, as defined in section two hundred one of the civil service law, wilfully disobeys a lawful mandate of a court of record, or wilfully offers resistance to such lawful mandate, in a case involving or growing out of a strike in violation of subdivi- sion one of section two hundred ten of the civil service law, the punishment for each day that such contempt persists may be by a fine fixed in the discretion of the court. In the case of a government exempt from certain provisions of article fourteen of the civil service law, pursuant to section two hundred twelve of such law, the court may, as an additional punishment for such contempt, 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 such law, for such specified period of time[, as the court shall determine or, in the discretion of the court, for an indefinite period of time] NOT TO EXCEED THIRTY DAYS, 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 section two hundred ten of the civil service law since the date of such violation, such proof to include, for example, the successful negotiation, without a violation of subdivision one of section two hundred ten of the civil service law, of a contract covering the employees in the unit affected by such violation; provided, however, that where a fine imposed pursuant to this subdivision remains wholly or partly unpaid, after the exhaustion of the cash and securities of the employee organization, such forfeiture shall be suspended to the extent necessary for the unpaid portion of such fine to be accumulated
by the public employer and transmitted to the court. In fixing the amount of the fine and/or duration of the forfeiture, the court shall consider all the facts and circumstances directly related to the contempt, including, but not limited to: (i) the extent of the wilful defiance of or a resistance to the court's mandate (ii) the impact of the strike on the public health, safety, and welfare of the community and (iii) the ability of the employee organization to pay the fine imposed; and the court may consider (i) the refusal of the employee organization or the appropriate public employer, as defined in section two hundred one of the civil service law, or the representatives there- of, to submit to the mediation and fact-finding procedures provided in section two hundred nine of the civil service law and (ii) whether, if so alleged by the employee organization AND WHEN VIEWED IN A LIGHT MOST FAVORABLE TO SUCH 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 ability of the employee organization to pay the fine imposed, the court shall consider both the income and the assets of such employee organization. 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 (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] NOT TO EXCEED THIRTY DAYS 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 subdivi- sion 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 trans- mit 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 finan- cial 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 AND WHEN VIEWED IN A LIGHT MOST FAVORABLE TO SUCH 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 organ- ization 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 subdi- vision 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. S 3. This act shall take effect immediately.

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