The NY Torch, the Empire Center for New York State Policy’s blog, recently posted an interesting and thought-provoking article about the Triborough Amendment linked here. The post references this article by Rick Karlin of the Albany Times Union about the elusiveness of mandate relief out of the legislature.
The NY Torch article was a criticism of Karlin’s “familiar canard about the origins of the Triborough Amendment.” The Triborough Amendment which requires the terms of expired public sector contracts to continue, including step schedule increases, is one of New York’s most cited mandates. The NY Torch says that Karlin got it wrong when he said that the Triborough Amendment “came as part of an agreement by public unions not to go on strike” and instead asserts that there is no link between Triborough and the public sector strike prohibition. Did Karlin get it wrong? Did the NY Torch get it right? A review of the law surrounding Triborough and the legislative history of the amendment holds the answers.
The NY Torch article author, E.J. McMahon, extrapolates Karlin’s language, “Under the [Triborough Amendment], which came as part of an agreement by public unions not to go on strike . . .” into a full-blown assertion that the Triborough Amendment was enacted in exchange for a prohibition of strikes in the public sector. McMahon finds fault with this “premise” because public employee strikes were already unlawful at the time the Triborough Amendment was enacted. This is absolutely true and McMahon is correct on that point—strikes in the public sector were prohibited decades before the Triborough Amendment (and even the Taylor Law) was adopted.
I do not read Karlin’s article as stating, however, that this longstanding strike ban was conditioned on preservation of contract terms. In fact, it seemed he was saying the exact converse: the continuation of terms of an expired agreement was conditioned on unions following the existing strike prohibition in the Taylor Law. There was quid pro quo in the sense that employers were required to continue the terms of an expired agreement, but only if the union did not conduct an unlawful strike. In the event that the union violated the Taylor Law by going on strike, the employer’s obligation to keep expired contract terms would cease to be.
The governor’s memorandum (then Governor Hugh Carey) approving the Triborough Amendment illuminates the “agreement” to which Karlin refers. (See attached memorandum). When the law was originally enacted, it made a public employer’s refusal to continue all the terms of an expired agreement during negotiations an improper employer practice. Hugh Carey’s memorandum expresses the concern that under the new law, public employers would be required to continue all of the terms of an expired agreement, even if the affected union were to engage in a strike in violation of the Taylor Law. Prior to his taking action on the bill, the governor sought and received assurances that the legislature would later pass a chapter amendment to the bill, resulting in a modification of the improper practice, so that the improper practice would be the refusal to continue all the terms of an expired agreement during negotiations unless the union went on strike. The modification tempered the employer’s duty to continue old contract terms with the protection of the already existing Taylor Law.
I do not believe Karlin was factually inaccurate by saying there was an “agreement” because, in a way, it was an agreement. The employers’ duty to refrain from altering terms and conditions unilaterally during negotiations imposed a corresponding prohibition against a union resorting to self-help by striking. McMahon was also right on point when noted that this corresponding prohibition was not the genesis of the no-strike prohibition and the union leader arguments that the existence of Triborough was the only thing keeping them from striking was purely threatening rhetoric. In fact, unions can strike but they risk civil and criminal penalties.
To put yet another spin on the issue, the Triborough “doctrine” long preceded the Triborough Law, and it was really nothing new or special to New York. In the private sector, the National Labor Relations Act has long required maintenance of terms and conditions of employment after the expiration of a contract. The National Labor Relations Board also requires that employees on a salary schedule, with steps relating to years of service, advance on their anniversary dates even after the contract expires. Of course, in the private sector, the union can strike and the employer can unilaterally implement all or part of its last settlement offer after impasse, which cannot be done in the public sector. There was some strike activity in the public sector at the time the Triborough doctrine became law and labor convinced the lawmakers that this was because public employers were willy-nilly changing terms and conditions after expiration, which simply was not accurate. The real disaster of Triborough is that it requires continuation of all the terms of the contract, including binding grievance arbitration and collecting union dues (not required under the private sector decisions or the Triborough “doctrine”). To make matters worse, it was interpreted by the courts as taking away the legislative determination, to the extent that a legislative body cannot impose less favorable terms through a legislative determination unless the union puts all the terms “in play” by participating in the legislative hearing process, which they never do.
One matter that the writers of the various blogs and the public outcry against the Triborough all seem to be in agreement on is that mandate relief on Triborough is important and should not be ignored. In our previous post about the Triborough amendment we opined that in this time of tight state and municipal budgets, the return of the right to strike might well be a worthwhile exchange for the end of Triborough if provisions could be made for the continuation of the strike prohibition for truly essential employees such as police and firefighters. Nearly 30 years after the Triborough Amendment was enacted into law, and nearly 40 years after the New York Public Employment Relations Board’s (equivalent of the NLRB) initial decision in Triborough Bridge and Tunnel Authority, wherein PERB ruled that the Taylor Law prohibits a public employer from unilaterally altering mandatory subjects of negotiation while a successor agreement is being negotiated — and in view of our experience with the doctrine’s impact since — it may well be a discussion worth having.
In the meantime, municipalities can take a few smart steps during negotiations to combat the impact of Triborough. First, municipalities can take a strong stand on retroactivity. If this is a serious proposal then the longer unions wait to negotiate a new agreement, relying on the effects of Triborough to get increases, the more they risk losing any additional payments for the years at issue. For example, in his recent State of the City, Mayor Bloomberg announced that city workers would not receive retroactive increases potentially saving $2.7 billion by 2013 (see New York Post article linked here). That would result in $2.7 billion left on the table by unions for not settling “expired” agreements in a timely fashion. Second, municipalities can let unions know at the start of negotiations that step increases pursuant to Triborough will be considered a cost in the calculation of a new contract settlement. For example, if 25 percent of employees receive step increases totaling 2 percent and the employer is only willing to spend 2 percent on the total new contract for all unit members, the unions must be aware that if they do not negotiate a new agreement and unit members on step receive the 2 percent, there will not be any money available for the off step employees. There are many more negotiation strategies that can be employed to deal with the Triborough mandate, but in the end, it is a relief option that could prove helpful to struggling municipalities if offered by the state government.