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Between a Rock and a Hard Place: Public Sector Unions and New York’s Triborough Amendment

Ever wonder why union members salary and benefits, workload agreements, and other aspects of their collective bargaining agreements, or contracts, often remain unchanged and enforced during the all-too-common periods when public employees labor without a contract?1 In New York, the answer boils down to an understanding of the Public Employees Fair Employment Act (commonly known as the Taylor Law) and one particular clause in the law, the Triborough Amendment. Together they have provided powerful stability in New Yorks public union workplaces, while sacrificing public employees right to strike.2 This essay provides a brief summary of both measures and argues that this amendment to the Taylor Law be watched over diligently, lest the winds of anti-labor sentiment, which have blown through Wisconsin, Michigan, Illinois, Iowa, and Ohio, end up in New York and elsewhere.3

For six years, the 25,000 faculty and staff members of the Professional Staff Congress, the union of the City University of New York (CUNY), worked without a contract.4 During this time, every one of them continued to serve their students day in and day out. This situation is not unique to CUNY. Despite high-profile strikes by private-sector workers, including the nearly 40,000 Verizon workers on the picket line this year and the fast-food workers who walked off the job in hundreds of U.S. cities last year, its rare to see rank-and-file public union workers electing to strike in the absence of a contract. Meanwhile, home mortgages are paid off or renegotiated, college costs planned and budgeted, credit card debts erased, car payments maintained, retirements considered, healthcare costs managed, and tens of thousands of people, up and down the economic food chain of public employees, reap the benefits that accrue from stable, long-term public worker contracts.

Simply understood, employment stability means economic stability, not only in employee house- holds but also across communities and states. From an employees point of view, working without a contract produces much anxiety. But from a municipal or state perspective, the absence of a public-employee contract also makes it very difficult to accurately and efficiently budget, operate, and plan for stable financial revenue and expenditures. The presence of long-term contracts enables smart fiscal and budgetary policies that impact local and state bond ratings, unemployment rates, real estate development, and so on.5

The effects of stable contracts also extend to our workplaces, and, in higher education, to our ability to serve students. Denying employees a contract (or even a dialogue about one) is a lousy way to ask employees to remain committed, creative, and passionate in their work, which in many instances is work on behalf of a public good such as education or health care. Imagine a private-sector employer in a profitable enterprise telling her workers, again and again, over a period of five years, that there will be no discussions or evaluations of work performance, and no possibility of salary raises or bonuses. Would that employee have great morale? Would she be justified in looking elsewhere for better employment?

Meanwhile, public employees are right to fear it may get worse. A brief review of local and national news reveals a good deal of hand wringing by the political class about public employment. Rhetoric from state political leaders from Florida to Michigan, from Iowa to Maine, makes clear that unions are under attack in unprecedented ways. In this decade, state legislatures have passed laws to reduce the scope of collective bargaining, to eliminate compulsory dues payments, and to with-hold state pension contributions,while local ordinances have been revised to allow so-called right to work zones within counties. In New York, Governor Andrew Cuomo has made it clear he is no reliable friend of teachers unions, demanding the expansion of charter schools and tying the entire fiscal budget process to his conservative public school vision.6At the same time, unions ability to beat back these anti-worker efforts is diminished by their decreasing membership and, consequently, their decreasing power.7

Under these current conditions, the Triborough Amendment to the Taylor Law provides a modicum of personal financial stability and some respect for thousands of public workers who continue to work without a contract, as well as state and local budgetary predictability.

HOW DID WE GET THESE LAWS?

In 1967, Governor Nelson Rockefeller signed into New Yorks civil service law the Public Employees Fair Employment Act. The act, written by George W. Taylor, a University of Pennsylvania professor and chair of Rockefellers Committee on Public Employee Relations, created, among other things, a state agency called the Public Employment Relations Board (PERB) to negotiate in good faith with public employees who belonged to collective bargaining units, or unions. Commonly known as the Taylor Law, the act declared, it is the public policy of the state...to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government.8 In other words, the law suggests the public is well served by a smooth and consistently engaged workforce of public employees. (Unfortunately, this language that speaks to the public benefit of public employment seems overlooked, if not absent, from much of todays rhetoric related to public labor.) Further embedded in the law is the statement, no public employee shall cause, instigate, encourage or condone a strike.9

Thus, the prohibition on strikes is clear. What was less clear until the passage of the Triborough Amendment in 1982was the status of public employer/employee relations after collective bargaining contracts expired. Without clarity in this area, it was possible for all aspects of ones employment to vanish the moment the clock counted down on the final day of the contract. Public employees were left with no floor to their working conditions and no ability to strike to force bargainingmuch less good-faith bargaining.

After a ruling by PERB in 1972 involving the Triborough Bridge and Tunnel Authority employees, the law was amended so that employers could not alter the terms and conditions of employment when a con- tract expired. However, the courts continued to hear cases regarding the validity of expired employment obligations until 1982. At that time, the Triborough Amendment was added to the Taylor Law.10

The Triborough Amendment requires public employers to maintain the terms and conditions of the previous, expired contractsalary schedules, pension contributions, workload limits, and moreuntil a new contract is signed, no matter how many years it might take. With that, the worst-case scenario for employees no strike and no contract was avoided to some degree, and the amendment was generally interpreted as a gain for labor. According to the Rockville Centre Teachers Association, an affiliate of the New York State United Teachers, Triborough has made New York an exemplar in ensuring stability and continuity in providing public services by virtually eliminat[ing] the strikes that were so painful both to workers and communities. And, public workers want stability, not crisis. Triborough has been critical in ensuring that the delivery of vital public servicesmost especially the education of our children are not disrupted by protracted labor disputes.11 Others have argued that opting for stability over the ability to strike has created a weaker union and has precipitated the long decline in union membership, activism, and political influence.12

The strike prohibition also established a power dynamic. While administrators can ignore their role in good-faith negotiations, workers would be breaking the law if they suggested a work slowdown or strike to bring negotiations to fruition. In an interesting way, the strike prohibition suggests that employees strikes may be more destructive to the public good and the orderly functioning of government than employers failure to negotiate fair contracts with thousands of dedicated public workers.

Recently, additionaland dangerousforays have been made into the terms of the Taylor Law and the Triborough Amendment. Just as Governor Rockefeller commissioned the Taylor Committee, in 2011 Governor Cuomo assembled a commission of his own.13 Called the Mandate Relief Redesign Team (or Council), Cuomo charged this group with examining options to the Triborough Amendment, including its freeze or suspension. Its report indicates the Triborough Amendment was discussed as a critical issue, but the commission did not offer any specific recommendations about rejecting the amendment, even though these requests were made to the commission.14

Consider the current political climate in New York and understand that these threats to unions and their members are very real. With the state Senate dominated by pro-business Republicans, and an anti-labor Democrat in the governors mansion, the historical statutory accord between public sector unions and their employers is under threat. Businesses and their friends in government at all levels have nearly destroyed private sector unions and, as a result, private-sector pay has stagnated.15 At the same time, anti-tax Democrats such as Cuomo and his allies in both parties provide generous tax breaks to New Yorks wealthiest citizens and its private corporations, draining the states coffers and squeezing budgets at the state, county, and municipal levels.16 According to a recent report by the watchdog group Good Jobs First, New York awarded $22.6 billion in corporate subsidies since 2007.17

In this political climate, its too easy to point the finger at public employees instead of private corporations as the culprit in New Yorks budget woes. Not surprisingly, anti-Triborough voices are gaining traction. For example, New York State School Boards Association President Florence Johnson says the Triborough Amendment has result[ed] in union members getting much larger raises than those in the private sector and tilts the playing field towards unions in contract talks.18

WHERE DO WE GO FROM HERE?

The historical question at the heart of the Taylor Law and Triborough Amendment still needs our answer: Is it worth it for public employees to hold onto their salary step increases, and frozen healthcare costs, and other obligations of an expired contract in lieu of the ability to strike?

Some say the answer is no. They argue the Triborough Amendment is a classic Faustian bargain that serves the interests of bosses at the expense of workers. Absent the ability to strike, and some may say the right to strike, public employers may have no incentive to negotiate in good faith and public employees no special weapon to force their hand. The essential balance of power between employers and unionized employees is tipped in favor of the public employer and state politicians, who can burnish their anti-labor credentials by waging public campaigns over expired contracts and reveling in the free publicity around their refusals to negotiate.19 This imbalance of power is most clearly manifest in the one-directional, state-imposed penalties for breaching the Taylor Law, which provides monetary fines and jail time to unions and their workers only, not the state or city.

Historically, strikes have been understood to be dramatic and often effective tools to force real negotiations for workplace protection and economic security. As children, we learned in history class about the power of striking American railway, auto, textile, or steel workers. As adults, we have cheered on our union brothers and sisters who have made the bold decision to strike for better wages and working conditions. We understand why others have suggested that by ceding the right to strike public employees have given up their most effective means of pressuring recalcitrant government officials to engage in sincere negotiations.

Others have suggested that the language of essential services public employee be revised to not include teachers, as currently is the law in 11 states.20 One could argue that teachers, while valuable to the lives of millions of people, are not the same as firefighters, police, or postal workers. When teaching ceases during holidays, winter recess, or in the summer, no one would claim an essential service tied to the health and safety of the public is in jeopardy.

The Taylor Law should be repealed; through rigorous union activity as well as a campaign to educate the public on the social and economic value of union labor. The right to strike, for both economic and workplace issues, is all but guaranteed in the National Labor Relations Act. We believe teachers deserve this right. Yet, at a time when the political winds are blowing strong against labor, we see the Triborough Amendment as a concession worthy of acknowledgement. Until our unions organize more new members and amass new powerand we do believe this must also be a prioritythe Triborough Amendment provides much needed continuity of employees terms of employment, while also providing economic stability to our local and state communities. This is the essential service provided by thousands of public employees; the ebb and flow of workplace stability, consistent and livable wages and benefits, professional development, and professionalism in ones field of public employment. Absent genuine good faith bargaining by cities and states, the work of public employees slowly becomes non-essential.

In fact, the Taylor Law may have it backward: it is not strikes that should be forbidden. Considering it is the public worker that provides the essential services to the public, the real problem occurs when contracts are not negotiated in good faith. Therefore, a better law would bar employers from bad- faith negotiationsfrom ignoring reasonable demands of organized labor or not taking seriously the public importance of timely and realistic bargaining. As we noted earlier, long-term fiscal stability emerges from public employee contracts. Educating workers and the public about these benefits must be a priority for unions.

Yes, forgoing the right to strike is a sizeable concession. But striking is never an end in itself. Rather, it should be viewed as a means to another end. A strike, to be successful and not simply an act of desperation, requires rank and file mobilization, communication between all levels of the workforce, including management, and most importantly, public support based on a clearly articulated rationale tailored to the concerns of the public.21

A union that can effectively mobilize the foundations of a successful strike may be a union that does not need to rely on one to achieve its ends.

The Triborough Amendment does not prevent us from active unionism. The Triborough Amendment provides a modicum of economic stability to those who provide valuable public servicesteachers, faculty and staff, sanitation workers, public transportation workers, fire fighters, and police officersduring the difficult if not disrespectful times we labor without a contract. In the meantime, we must continue to communicate, organize, and mobilize support so that not just us, but all workers win the dignity, respect, and recognition that comes with a good labor contract.

James E. Freeman is a professor and Peter Kolozi an associate professor of political science at Bronx Community College, City University of New York (CUNY). They can be reached at james.freeman@bcc.cuny.edu and peter.kolozi@bcc.cuny.edu.

ENDNOTES

  1. State statutes governing public employees and collective bargaining vary. Some states, such as North Carolina prohibit public sector workers from collective bargaining. In other states, among the most recent being Wisconsin, public sector workers collective bargaining is limited to wages and benefits
  2. See Keefe, Laws Enabling Public-Sector Collective Bargaining Have Not Led to Excessive Public-Sector Pay; Bass, Overview: How Different States Respond to Public Sector Labor Unrest; Anderson et al., The Union Advantage for Women.
  3. New York State has the highest union member density in the United States, and 71 percent of public sector workers in the state are union members. Milkman and Luce, The State of the Unions 2013: A Profile of Organized Labor in New York City, New York State, and the United States.
  4. The Professional Staff Congress (PSC) is the union that represents faculty and staff at the City University of New York (CUNY) and the CUNY Research Foundation. In June 2016, the PSC and CUNY reached agreement on a contract. In August 2016, members of the PSC collective bargaining unit voted to ratify the new contract.
  5. Kersten, Public Sector Unions Provide Many Important Benefits to Public Workers, Political Debate and Society as a Whole.
  6. Strauss, Cuomo Calls Public School System a Monopoly He Wants to Bust.
  7. Milkman and Stephanie Luce, op cit; Milkman, Back to the Future? US Labour in the New Gilded Age, pp. 645-65.
  8. New York Code, Article 14 Public Employees Fair Employment Act, Civil Service Law 200-214.
  9. New York States Taylor LawPERB, 210 Prohibition on Strikes.
  10. McMahon, Triborough Trouble: How an Obscure State Law Guarantees Pay Hikes for Government Employees and Raises the Tax Toll on New Yorkers.
  11. Rockville Centre Teachers Association, Learning About: Triborough Amendment and the Taylor Law.
  12. Sustar, Teachers Unions at the Crossroads: Can the Assault on Teachers be Rebuffed? pp. 60-68; Aronowitz, Reversing the Labor Movements Free Fall; Brecher, Strike!; Early, Saving Our Unions: Dare to Struggle, Dare to Win? pp. 15-27.
  13. 2011 Mandate Relief Redesign Team Report, Putting the Brakes on Underfunded Mandates: A New State-Local Partnership.
  14. Vielkind, Cuomos Mandate Group Goes Quietly.
  15. See Milkman and Luce for more about the decline in private sector unions in New York. For wage stagnation and decline see, Mishel, et al., Wage Stagnation in Nine Charts.
  16. Yee, Cuomos Start-Up Program, Meant to Supercharge Economy, Has Created 408 Jobs; Fitzgerald, New York Tax Break Program: $50 Million Bill for 408 Jobs; Mattera and Tarczynska, Uncle Sams Favorite Corporations: Identifying the Large Corporations that Dominate Federal Subsidies; Cantu, New Report: Fortune 100 Companies Have Received $1.2 Trillion in Corporate Welfare Recently.
  17. Cohn, State Incentives: Business Boon or Corporate Welfare?
  18. Raines, The Triborough Amendment: Necessary Protection for Public Employees or a Barrier to Reform?
  19. Burleigh, Politicians Try to Union-Bust Their Way to the White House.
  20. FindLaw, Teachers Unions/Collective Bargaining: State and Local Laws; Hilzik, Why Public Employees Should Have the Right to Strike.
  21. There are several examples of teachers unions doing this quite successfully including in Seattle and St. Paul, Minnesota. See Strauss, The Surprising Things Seattle Teachers Won for Students by Striking.

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