Image by Andrew Caringi: “PSC Union members want an end to the Taylor Law, which makes strikes and work stoppages illegal in New York State.” – photo from October 1, 2015
The New York City transit workers’ strike of 1966 brought the city to a standstill in spite of the Condon-Wadlin Act, which made public sector strikes illegal. However, this law also called for the firing of all striking workers, something the New York state government simply couldn’t enforce. Due to this lack of possible enforcement and the fact that it failed to deter public sector workers from going on strike, a year of deliberation began. The Taylor Law was finally voted into law in 1967.
The Taylor Law applies to New York state’s public employees, whether employed by the state, the city, or a specific county, and it affects most teachers, nurses, transportation workers, and sanitation workers, as well as those in other municipal positions. Nine hundred thousand state and local employees were under its purview when the law was passed. Perhaps the most (in)famous element of this law is the no-strike clause, but this is only one of many aspects of the law that affects labor rights. It is also an aspect of the law that has been broken many times and can continue to be broken.
For a further explanation of the origins of the Taylor Law, read the first article in this series The Origins of New York’s No Strike Clause.
The Right to Collective Bargaining
Using a rhetoric of compromise, the Taylor Law takes away workers’ right to strike and provides the workers with access to collective bargaining. This right had already been given to private sector workers via the Wagner Act, which created the National Labor Relations Board and allowed workers to form unions and to conduct strike votes (though today, many private sector contracts include clauses which prohibit strikes for the duration of the contract period).
Under the Taylor Law, municipal workers may be represented by the union of their choice. According to Ronald Donovan’s book Administering the Taylor Law: Public Employee Relations in New York, when it was passed, 340,000 public sector workers were already represented by collective bargaining organs; after its ratification, even more were able to unionize.
The law also provides the right to automatic dues checkoff, a system that requires all workers who are represented by a union to pay a portion of their salary toward the union. Dues checkoff uses the logic that all workers who benefit from collective bargaining should contribute to that bargaining unit. This method of funding for unions is currently being challenged at the federal level by the Janus Case before the Supreme Court. Regardless of the Taylor Law, it is likely that automatic dues checkoff will soon be ruled unconstitutional by SCOTUS.
In the first years after the creation of the Taylor Law, the main focal point was the issue of representation. Huge numbers of public sector workers filed for increased representation by unions which were managed by the newly-created Public Employment Relations Board. According to Helsby and Joyner, in the first three years of the Taylor Law, the board received 600 representation petitions.
The No-Strike Clause
The Taylor Law includes a no-strike clause in which unions, as well as employees, engaging in a strike are subject to major penalties; individual employees are fined two days’ pay for each day they are out on strike.
Importantly, “strike” is defined in vague and broad terms, and penalties for striking apply to any employee who “is absent from work without permission” or “abstains wholly or in part from the full performance of his duties in his normal manner” during a strike.
Unions that go on strike — or encourage strikes — are subject to millions of dollars in fines and their right to automatic dues checkoff is taken away for a time determined by the Public Employment Relations Board. Furthermore, individual union leaders can be jailed for striking or encouraging a strike. Today, this means that the Taylor Law can be used as an excuse by union bureaucrats to refuse to even discuss the possibility of a strike. According to the legislative wording, it is a crime to “cause, instigate, encourage or condone a strike.”
Despite the no-strike clause, the Taylor Law has been broken dozens of times, especially when it was first created. (The consequences enacted on unions and union leaders who have been involved in strikes will be addressed by the next article in this series.)
In New York State, the no-strike clause of the Taylor Law exists to make striking and work stoppages illegal for public sector workers. Teachers, nurses, postal workers, sanitation workers and transit workers have been challenging these restrictions for the past 50 years.
Posted by Left Voice on Monday, January 7, 2019
Although the most well-known aspect of the Taylor Law is the no-strike clause, this provision had already been introduced by the Condon-Wadlin Act, which also included a no-strike clause. In fact, the Taylor Law lessened the penalty for striking; instead of termination, workers would now be fined. This lessening of the consequences, however, was introduced in order to make the law more enforceable.
The Role of The New York State Public Employment Relations Board
Another important aspect of the Taylor Law is the creation of the New York State Public Employment Relations Board (PERB) which executes different aspects of the Taylor Law. As Jean McKelvey states, “The proposed board was to be a labor relations agency, a mediation board, a court, a research institute — all wrapped into one package.” PERB is a governor-appointed board that administers the Taylor Law by providing an “unbiased” third-party examination of issues, mediation of disputes, arbitration, and determination of fault in employee strikes. The board members, who serve six-year terms, must be approved by the State Senate; no workers or workers’ organizations have any say in who is on the board.
One of the aspects most touted by supporters of the Taylor Law is the idea that PERB is ostensibly divorced from the government and therefore has an unbiased character. Raymond Horton argues that PERB provided “public employees a privileged forum for the pursuit of their goals, one from which all other political interest groups were directly excluded…If the state house and executive mansion were once the most important place for public employees to be represented, that is less the case today because of the Taylor Law.” The farcical depiction of PERB as a neutral arbitrator is a central element of the Taylor Law’s claims to equity. The board does the dirty work of hiding the political nature of arbitration; it distances the workers from negotiating with their employer and instead creates a confusing mechanism geared towards class conciliation.
The police are subject to a different procedure which is beyond the purview of this article, but in the vast majority of cases in which an employer and a union disagree on a contract, they can call on PERB to mediate the negotiation. If this does not work, PERB appoints an independent “fact finder” who then makes binding or nonbinding recommendations, depending on which sector of workers are involved (There is a more detailed description of this in Administering the Taylor Law: Public Employee Relations in New York by Ronald Donovan). If neither fact finding nor mediation resolve the impasse, a local legislative body imposes a final decision. In 1974, 10 percent of these cases reached legislative hearings, and less than 1 percent of cases had an impasse decided by a the legislature. This procedure was later changed by the Triborough Amendment, as explained in the next section of this article.
Lastly, PERB is the body in charge of punishing unions that go on strike, and the punishment is subject to its discretion. There are no clear rules that govern the specifics of the penalties, so the way in which this part of the law is enacted is based, in large part, on political pressure. Helsby and Joyner argue that “If the employee organization can convince a judge of PERB that the conduct of the employer was such that it provoked the strike, the respective penalties may be reduced or nor not imposed at all.” In the first three years the Taylor Law was active, there were 62 work stoppages. In some cases, PERB decided that unions should not be punished if the strike was due to outrageous action by the employer; in others, it suspended dues checkoff for minimal amounts of time.
The mechanisms of PERB are by no means accessible to the working class. Its website only quotes sections of the Taylor Law, and the language is difficult for anyone without a law degree to grasp. This means that workers must rely on union leaders or the government to explain the details of the negotiation process. And while public pressure can play a massive part in diminishing PERB’s use of punishments for breaking the no-strike clause, the inaccessibility of the language allows union bureaucracies to exploit confusion, giving them the necessary ammunition to quell talk of strikes.
The Triborough Amendment
New York discovered that the no-strike clause lacked “sufficient provisions to entice a union not to strike… In response, state legislators implemented one remedy — the Triborough Amendment.” This 1982 amendment states that public sector employees can continue to work under an expired contract, maintaining the terms and conditions of the previous contract until the new one is decided upon.
The amendment was passed by the legislature in an attempt to prevent what had happened in the early years of the Taylor Law, during which managements routinely stalled negotiations until the contract expired and then made huge changes to the contract — including rolling back gains that workers had already won. Unions argued that employers would prolong negotiations so that at the last minute, unions would be forced to agree to provisions favorable to the employer. Workers had been left with no recourse because of the no-strike clause.
In practice, however, this allows for stalled negotiations that save municipal governments huge sums by withholding badly-needed raises from workers who face soaring living expenses. Workers regularly spend years under expired contracts. When Michael Bloomberg left office in 2013, every single municipal union was working without a contract; CUNY workers, for example, had worked for almost seven years since their last contract expired.
In allowing workers to remain under the protections of their old contract should negotiations outlast the end of the previous contract (which has long been the rule rather than the exception), the Triborough Amendment actually provides more opportunity for union bureaucracies to discourage rank-and-file mobilizations. It removes the urgency of fighting for a fair contract immediately or soon after the previous one expires, allowing employers and union leadership to take their time in deadlocked negotiations, and the workers become so desperate for any raise at all that even a contract that forfeits all retroactive salary increases becomes a better option than continuing to work under the current salary rate — which is constantly being outpaced by living costs with no end in sight. By the time an agreement is reached, the bureaucracy is able to convince its membership that they should take the deal without a fight.
For example, in 2014, five years after their last contract had expired, the leadership of the United Federation of Teachers was able to convince workers to accept a contract that included two years of 0-percent raises, covering the school years of 2011 through 2013. The pattern bargaining rules had allowed for 4-percent raises for the 2009 through 2011 school years, but the lack of contracts for other city municipal unions from 2011 on allowed Mayor Bill De Blasio to offer no raises for two years. The union leadership then cut a deal for four more school years with 1-percent raises each year, a year with a 2.5 percent raise, and a raise of 3 percent for the final year of the contract. (The contract also allowed for a huge reduction in health benefits.) The leadership obtained ratification of this contract through the threat of several more years without any raises. In doing so, it set a further pattern for other municipal unions who, although they fared slightly better with 1-percent raises in the place of the UFT’s 0 percent, were affected by the poor contract the UFT had accepted six months prior.
The Effects of the Taylor Law
As the next article in this series will demonstrate, the Taylor Law did not deter many strikes in the first few years after its creation. Some of the most important and controversial strikes — especially involving teachers — took place after the Taylor Law was created. However, with large-scale defeats of workers organizations throughout the ‘80s and further state attacks on worker organizing and unions, the Taylor Law today is seen as an insurmountable barrier to a strike. But it shouldn’t be. It is possible to defeat the Taylor Law, and it is possible to strike despite the Taylor Law– as many unions did when the law was first passed.
The Taylor Law was written to hinder an important sector of New York’s working class from its most powerful weapon: the strike. The bosses are not only given the upper hand — they hold all the cards: the power to hire and fire, to decide wages, to decide work hours, and more. Workers can complain, they can negotiate, they can organize, but according to the Taylor Law, it is illegal for them to use their strength as the working class to fight for their rights by withholding their labor. Under the Taylor Law, workers are rendered virtually powerless under the law to make their demands met.
But, as strikes have demonstrated, they are only illegal if they lose. It is possible for public sector workers to strike and keep any of the consequences of the Taylor Law from taking effect.
The third article in this series will analyze several incidents in which the Taylor Law was challenged by labor strikes and the outcomes of these challenges.
Barnes, Gordon. “Combating the Neoliberal University: The Case for a Strike.” Left Voice (June 10, 2016).
Eterno, James. “New Contract: Retro Delayed = Retro Denied.” Movement of Rank and File Educators, May 2, 2014. https://morecaucusnyc.org/2014/05/02/new-contract-retro-delayed-retro-denied/
Helsby, Robert D., and Thomas E. Joyner. “Impact of the Taylor Law on Local Governments.” Proceedings of the Academy of Political Science 30, no. 2 (1970): 29-41.
Horton, Raymond D. “Public Employee Labor Relations under the Taylor Law.” Proceedings of the Academy of Political Science 31, no. 3 (1974): 161-174.
Russ, Erin Audra. “Strike Three — You’re Out! Revamping the New York State Taylor Law in Response to Three Transport Workers’ Strikes.” Benjamin N. Cardozo School of Law Journal of Conflict Resolution 9, no. 1 (2007): 163-205.
Swearengen, Kate Montgomery. “Tailoring the Taylor Law: Restoring a Balance of Power to Bargaining.” Columbia Journal of Law and Social Problems 44, no. 4 (2011): 513-551.