§ 32-10. Prohibition of strikes.

A. 

No employee of the Town of Hempstead, or employee organization, shall engage in a strike, and no employee organization shall cause, instigate, encourage or condone a strike.

B. 

Employee violations: penalties; presumption; prohibition against consent to strike; determination; notice; probation; payroll deductions; objections; restoration.

(1) 

Violations and penalties. Any employee of the Town of Hempstead who shall violate this section by engaging in a strike or violating Subsection (3) of this subsection shall be liable as provided in this subsection pursuant to the procedures contained herein. In addition, any public employee who violates Subsection A of this section may be subject to removal or other disciplinary action provided by law for misconduct.

(2) 

Presumption. For purposes of this section, 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.

(3) 

Prohibition against consent to strike. No person exercising on behalf of the Town of Hempstead any authority, supervision or direction over any Town of Hempstead employee shall have the power to authorize, approve, condone or consent to a strike or the engaging in a strike by one or more Town of Hempstead employees, and such person shall not authorize, approve, condone or consent to such strike or engagement.

(4) 

Determination. In the event that it appears that a violation of this subsection may have occurred, the Presiding Supervisor 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 Presiding Supervisor 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 subsection.

(5) 

Notice. The Presiding Supervisor, who is also the chief fiscal officer of the Town of Hempstead, shall forthwith notify each employee found to have committed such violation of such finding and the date or dates thereof; and of his right to object to such determination pursuant to Subsection B(8) of this section; he shall also notify the Town Comptroller 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 at his last address filed by him with the Town of Hempstead.

[Amended 12-21-1971 by L.L. No. 104-1971, effective 12-27-1971]

(6) 

Probation. Notwithstanding any inconsistent provision of law, any Town of Hempstead employee who has been determined to have violated this subsection shall be on probation for a term of one year following such determination, during which period he shall serve without tenure; provided, however, that the effect of probation hereunder with regard to teachers shall not exceed or differ from the effect of probation hereunder with regard to other Town of Hempstead employees.

(7) 

Payroll deductions. Not earlier than 30 nor later than 90 days following the date of such determination, the Presiding Supervisor of the Town of Hempstead shall cause to be deducted from the compensation of each such Town of Hempstead 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 subsection; 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 Subsection B(4) of this section, and where the employee's annual compensation is paid over a period of time which is less than 52 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.

[Amended 12-21-1971 by L.L. No. 104-1971, effective 12-27-1971]

(8) 

Objections and restoration. Any Town of Hempstead employee determined to have violated this subsection may object to such determination by filing with the Presiding Supervisor [within 20 days of the date on which notice was served or mailed to him pursuant to Subsection B(5) of this subsection] 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 Presiding Supervisor shall determine that the affidavit and supporting proof establishes that the employee did not violate this subsection, he shall sustain the objection. If the Presiding Supervisor determines that the affidavit and supporting proof fails to establish that the employee did not violate this subsection, he shall dismiss the objection and so notify the employee. If the Presiding Supervisor 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 subsection, he shall appoint a hearing officer to determine whether in fact the employee did violate this subsection. A hearing shall be conducted, after certified mail notice to the employee at his last address filed with the town, 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 subsection, the Presiding Supervisor shall so notify the employee. If the Presiding Supervisor sustains an objection or the hearing officer determines on a preponderance of the evidence that such employee did not violate this subsection, the Presiding Supervisor shall forthwith restore to the employee the tenure suspended pursuant to Subsection B(6) of this subsection and shall cause all further deductions to cease, and also shall cause to be refunded any deductions previously made pursuant to this subsection. The determinations provided in this subsection shall be reviewable pursuant to Article 78 of the Civil Practice Law and Rules.

C. 

Employee organization penalties.

[Amended 2-13-1968 by L.L. No. 2-1968, effective 2-23-1968; 2-17-1970 by L.L. No. 9-1970, effective 2-19-1970]

(1) 

An employee organization which is determined by the Town Public Employment Relations Board to have violated the provisions of § 32-10A of this chapter shall, in accordance with the provisions of the said section, lose the rights granted pursuant to the provisions of § 32-8A(2) of this chapter.

[Amended 12-21-1971 by L.L. No. 104-1971, effective 12-27-1971]

(2) 

In the event that it appears that a violation of § 32-10A of this chapter may have occurred, it shall be the duty of the Presiding Supervisor to:

(a) 

Forthwith notify the Town Public Employment Relations Board and the Town Attorney.

(b) 

To provide the said Board and the Town Attorney with such facilities, assistance and data as will enable the said Board and the Town Attorney to carry out their duties under this section.

(3) 

In the event that it appears that a violation of § 32-10A of this chapter may have occurred, the Town Attorney or the Town Public Employment Relations Board, on its own motion, shall forthwith institute proceedings before the Town Public Employment Relations Board to determine whether such employee organization has violated the provisions of § 32-10A of this chapter.

(4) 

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 town 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 hearing of the Town Public Employment Relations Board 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.

(5) 

In determining whether an employee organization has violated § 32-10A of this chapter, the Board shall consider:

(a) 

Whether the employee organization called the strike or tried to prevent it.

(b) 

Whether the employee organization made or was making good faith efforts to terminate the strike.

(6) 

Forfeiture of rights; conditions affecting duration of forfeiture.

[Amended 12-21-1971 by L.L. No. 104-1971, effective 12-27-1971; 4-18-1978 by L.L. No. 38-1978, effective 4-24-1978]

(a) 

If the Board determines that an employee organization has violated the provisions of § 32-10A of this chapter, the Board shall order forfeiture of the rights granted pursuant to the provisions of § 32-8A(2) and C 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 Subsection A of this section since the date of such violation, such proof to include, for example, the successful negotiation, without a violation of Subsection A of this section, of a contract covering the employees in the unit affected by such violation; provided, however, that where a fine imposed upon an employee organization pursuant to § 751(2) 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 deductions shall be continued to the extent necessary to pay such fine, and the Town of Hempstead shall transmit such moneys to the court.

(b) 

In fixing the duration of the forfeiture, the Board shall consider all of the relevant facts and circumstances, including but not limited to:

[1] 

The extent of any willful defiance of Subsection A of this section.

[2] 

The impact of the strike on the public health, safety and welfare of the community.

[3] 

The financial resources of the employee organization.

[4] 

The refusal of the employee organization, or the Town of Hempstead or its representatives, to submit to the mediation and fact-finding procedures provided in § 32-9.

[5] 

Whether, if so alleged by the employee organization, the town or its representatives engaged in such acts of extreme provocation as to detract from the responsibility of the employee organization for the strike.

(c) 

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 that membership dues are collected by the town, as provided in § 32-8A(2) and C of this chapter, the books and records of the town shall be prima facie evidence of the amount so collected.

(7) 

An employee organization whose rights granted pursuant to the provisions of § 32-8A(2) and C of this chapter 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 § 32-7C(2) of this chapter.

[Amended 12-21-1971 by L.L. No. 104-1971, effective 12-27-1971; 4-18-1978 by L.L. No. 38-1978, effective 4-24-1978]

(8) 

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 § 32-10B(5); 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 cause to be delivered to such employee any cash, check or payment which, in whole or in part, represents such compensation.

D. 

Within 60 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:

[Amended 2-13-1968 by L.L. No. 2-1968, effective 2-23-1968; 2-17-1970 by L.L. No. 9-1970, effective 2-19-1970; 12-21-1971 by L.L. No. 104-1971, effective 12-27-1971]

(1) 

The circumstances surrounding the commencement of the strike.

(2) 

The efforts used to terminate the strike.

(3) 

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.

(4) 

Related to the varying degrees of individual responsibility, the sanctions imposed or proceedings pending against each such individual public employee.

Amended 2-17-1970 by L.L. No. 9-1970, effective 2-19-1970