Absence from work without permission during a strike creates a rebuttable presumption that individuals so absent are participating in the strike

Ahern [et al] v Jones, 292 A.D.2d 854

Civil Service Law Section 210(2)(b), the Taylor Law, establishes a presumption that “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 [or her] 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.”*

This, however, is a "rebuttable presumption" and the employee has the burden of proof to demonstrate that he or she was not engaged in the strike notwithstanding his or her absence.

Daniel Ahern and his eight co-petitioners [Ahern] served as teaching assistants with the Syracuse City School District. They were absent from work on a day on which a strike against the district occurred. The Ahern petitioners contended that their respective absences was due to personal illness.

The teaching assistants were subsequently were notified by the District's Superintendent, Stephen C. Jones, of his determination that they had violated Civil Service Law Section 210(1) in that they were absent on the day a strike occurred and therefore were presumed to have participated in the strike.

An employee may appeal the appointing authority's initial determination that he or she had engaged in a strike by filing a sworn affidavit, supported by available documentary proof, containing a short and plain statement of the facts upon which the individual relies to show that such determination was incorrect. Superintendent Jones denied the appeals that Ahern and the other teaching assistants had filed challenging his initial decision and they sued.

The Appellate Division, Fourth Department, unanimously confirmed the Superintendent's determination. The court said that Jones had found that Ahern and the others "had raised questions of fact and appointed a Hearing Officer to conduct a hearing." Following the hearing, the Superintendent "accepted" the Hearing Officer's findings and recommendations and imposed the statutory penalty of a two-day loss of pay for each day of absence.

The decision notes that “At the hearing, [Ahern] had the burden to overcome the presumption that an illegal strike had occurred and the presumption that [he] engaged in the strike. The Hearing Officer determined, based upon the credibility of the witnesses at the hearing, that [Ahern] failed to prove by a preponderance of the evidence that [he] did not violate the statute.”

Finding that the determination that Ahern engaged in a strike in violation of Civil Service Law Section 210(1) was supported by substantial evidence, the Appellate Division dismissed Ahern's appeal.

* §210.1 of the Civil Service Law provides that “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.”