Understanding Triborough: It is not Just a Complex of Bridges in the City

By Karlee S. Bolaños

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.

4 Responses to “Understanding Triborough: It is not Just a Complex of Bridges in the City”

1. Carlos D says:

   June 30, 2012 at 5:14 am

   I am not clear on how there was quid pro quo. Paraphrasing from your article govt. agrees to continue contract terms and unions agree to follow the law. What did the unions give up when they agreed to follow the law?

   Reply
   • Harvey Randall says:

     July 2, 2012 at 2:51 pm

     The employer need not negotiate the continuation of any of the terms and conditions of the unreplaced expired collective bargaining agreement — rather this is mandated, initially by a PERB decision; subsequently codified into law. The only provisions of an expired agreement that are not subject to “Triboro” are those having an “expiration date” that is specifically and unambiguously set out in the otherwise expired CBA.

     Reply
   • Karlee S. Bolaños says:

     July 3, 2012 at 10:08 am

     Carlos, thank you for reading our blog and for your question. I think you raise a great point in response to my post. You are correct; the “agreement” is very loosely an agreement and more of an Albany insider “deal” as clearly indicated in the last paragraph of the Executive Memo from 1982 that I provided a link to in my post. The memo states that the governor’s office was only willing to sign the codification of the Triborough “doctrine” into the Triborough “amendment” because there were “assurances” that the Taylor Law would also be amended to specify that public employers could lawfully change terms and conditions of employment if a union engaged in a strike. A good counterpoint is that if the Triborough law had not been codified, there would have been no need for the “agreement.” However, the Triborough doctrine was already in effect according to PERB standards, so in reality, public employers were not able to change terms and conditions after expiration without negotiations. Moreover, at that time PERB was indicating that the Triborough “doctrine” it had been applying could be extended such that public employers would not be able to change terms and conditions of employment even if the public employee organization were to engage in a strike. The “agreement” was, therefore, helpful to public employers because if PERB had acted on that position and extended its interpretation, Triborough would be even worse than it is today – an employer would never be able to adjust contract terms – even during an illegal strike. The “benefit” extended to public employers seems to be a codification of something bad, but an avoidance of something much uglier. The “benefit” sometimes reveals itself in negotiations. I had a situation occur recently where individual teachers willfully notified a school district that they would no longer participate on committees because of their unhappiness with the district for not reaching agreement with their union on wage increases. When the school district notified the union of the teacher behavior and that it would implement its final offer if the behavior did not cease, the union stopped the teacher behavior immediately and made sure that the teachers continued to participate on committees. Had the union not intervened in this manner or had the teachers insisted on their strike, the district could have implemented its last proposal or the union could have lost ratification rights for any settlement that had been reached. Of course, the union did not want that to happen so it quickly corrected the problem. That is one real life example of how the “agreement” works in the negotiations process today. I would be interested to learn if our readers had other examples to share or even some Triborough horror stories or triumphs. The Triborough issue continues to be very popular and a very complex issue for municipalities. In my blog piece I was hoping to spread the message that there are things we can do now, despite no mandate relief from Triborough, to limit the economic impact of the law.

     Reply
2. Harvey Randall says:

   June 29, 2012 at 9:45 am

   Good afternoon Karlee-

   I enjoyed reading your article Understanding Triborough.

   By way of self-introduction, I served with the “Governor’s Office of Employee Relations” when it was initially created back in the days of the Rockefeller Administration. Permit me to make the following observations:

   1. The Taylor Law merely continued provisions in the New York State’s Civil Service Law’s prohibition against strikes by employees of New York State and its political subdivisions — the prohibition did not originate with the Taylor Law. Such strikes were initially barred by [then] Section 22-a of the Civil Service Law [Chapter 391 of the Laws of 1947] and subsequently reflected in Section 108 of the Civil Service Law [Chapter 790, Laws of 1959]. The provision was continued as Section 210 of the Civil Service Law upon the enactment of the Taylor Law [Chapter 392 of the Laws of 1967].

   2. The State’s administrators of the Taylor Law as initially enacted did not contemplate the continuation of benefits set out in a particular collective bargaining agreement upon its expiration.

   For example, the Attendance Rules for State Employees relevant to those in a collective bargaining unit specifically provides for the continuation of certain leave benefits in the event a collective bargaining agreement expired without a successor agreement in place is some evidence of this. Absent such a provision employees would not enjoy any “leave benefits” while there was no successor collective bargaining agreement in place.

   OER’s intent in advancing this rule was to avoid such an employee-adverse impact in the event of an impasse in collective bargaining under the Taylor Law. The adoption of this amendment to the Attendance Rules by the State Civil Service Commission at the request of the [Governor's] Office of Employee Relations [which I authored some 40+ years ago] reflected this concern.

   Simply stated, the rule, 4 NYCRR 26.3, set out below and still in effect, was adopted solely to provide continuation of annual leave, sick leave and similar benefits otherwise provided state employees under the Attendance Rules for State Employees in the event a Taylor Law Agreement between the State and an employee organization representing employees in a collective bargaining unit expired without a successor agreement in place.

   3. As you note, the genesis of the so-called “Triborough Doctrine” in statute was a decision by the New York State Public Employment Relations Board [PERB]. However, it was never understood by those initially charged with negotiating on behalf of the State that failing a timely new CBA the provisions of the expired CBA would continue in force, hence the adoption of 4 NYCRR 26.3.

   Indeed, it was the thinking of the day [this is back in the 1970's and pre-Triborough Doctrine] that the termination of the terms and conditions of employment set out in the expiring CBA would motivate a timely replacement to the expiring agreement and avoid an impasse in negotiations.

   4. As to the reference to the National Labor Relations Act’s role in public sector labor relations in this State, §209-a subdivision 6 of the Civil Service Law provides that “In applying this section, fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent.” Clearly, although PERB is not bound by the NLRA nor by NLRB determinations, it may “adopt” such provisions, in whole or in part.

   Cordially,

   Harvey

   4 NYCRR 26.3 Rules applicable to employees in negotiating units. The provisions of these attendance rules, insofar as they apply to employees in the negotiating units established pursuant to article 14 of the Civil Service Law, shall be continued; provided, however, that during periods of time when there is in effect an agreement between the State and an employee organization reached pursuant to the provisions of said article 14, the provisions of such agreement and the provisions of such rules shall both be applicable. In the event the provisions of the agreement are different from the provisions of the attendance rules, the provisions of the agreement shall be controlling.

   The thrust of my draft was to provide for the continuation of the “attendance rules” in the absence of a CBA.

   Reply