Sunday, September 04, 2005

The Origins of the Taylor Law

Contrary to popular belief there has never been a “legal” right to strike for public employees in New York State. As noted by Justice Emilio Nunez in Board of Education v. Albert Shanker[1], “from time immemorial, it has been a fundamental principle that a government employee may not strike.” While Nunez described public employee strikes as the “indulgence of arbitrary self-interest at the expense of the public” he tried to put the new Taylor Law (in effect for just over two weeks when he wrote his decision) into historical perspective.

Prior to legislation in 1947 the common law of New York clearly made public employee strikes illegal. They were subject to court injunction and fines and imprisonment, though rare, were clearly available.

In 1947, with the rise of labor unions and the experience of Truman’s nationalization of the mines under John L. Lewis, Governor Dewey signed into law the Condon-Wadlin law. This law was incredibly harsh with severe penalties for public employee concerted action. The Condon-Wadlin law, as originally enacted, consisted of six subdivisions, the first three respectively defining a strike, prohibiting a strike and prohibiting a consent to strike. Subdivision 4 provided for termination of employment of strikers qualified by conditional re-employment In subdivision 5 a striking public employee was barred, for three years, for an increase in pay and was placed on probation for the next five years. Subdivision 6, provided for a hearing, including notice, examination and confrontation under oath and a record. A determination was subject to judicial review including whether or not there was discretion in any imposed penalty. Punishment was subject to judicial modification.

Because of arguments that the penalties were onerous and oppressive, for two years between April 23, 1963, and July 1, 1965 there was an experimental legislative amendment of the penalty provision in subdivisions 5 and a new subdivision 7 was added. The restriction on the increase of compensation was reduced from three years to six months and the probationary period from five years to one year. A new provision imposing a fixed penalty in the nature of a fine amounting to two days' pay for each day of striking and moreover, additional punishment--removal, suspension without pay up to 60 days, an additional sanction--was authorized.

In January 1965 members of the Social Service Employees Union working at New York City’s Welfare Department walked off their jobs for 28 days. 5,000 workers were subject to the two days’ pay for each day of striking provision, return to probation and were threatened with automatic dismissal. Nineteen union officials were held in contempt and three were jailed for refusing to call off the strike.[2]

While the statute was tested for constitutionality the union leaders were released from prison and the Legislature eventually granted amnesty to the striking workers.
There was a continuous effort to repeal Condon-Wadlin but it wasn’t until New Year’s Day 1966 when 30,000 employees of the New York City Transit Authority went on strike that pressure to change the law went to the boiling point. The strike resulted in the jailing of the TWU president and lasted 12 days.

Three days later Governor Rockefeller appointed a committee to study public sector employee relations. He appointed George W. Taylor, a respected authority on labor relations from the University of Pennsylvania as chairman.

By April 1966 Taylor’s committee issued their final report which called for the repeal of Condon-Wadlin. Borrowing on the private sector’s National Labor Relations Act the legislation proposed would grant public employees the right to organize and bargain collectively and require public employers to recognize and negotiate with employees’ representatives. Unlike the NLRA the Taylor committee continued the Condon-Wadlin prohibition on strikes and set up a Public Employment Relations Board to settle disputes and impose sanctions for striking public employees.

Due, in part, to Mayor Lindsay’s insistence that New York City have the power to set up its own public employment relations board enactment of the Taylor committee’s recommendations did not take place until a year later, April 21, 1967 with an effective date of September 1, 1967.

With the Taylor Law barely 10 days old the UFT collected 40,000 resignations from teachers in what they argued was not a strike since no one could be forced to work, even under the Taylor Law. Justice Nunez was not persuaded by this argument and Shanker was jailed and the union severely fined after a bitter and lengthy teachers’ strike.

[1] 54 Misc.2d 91, 283 N.Y.S.2d 548 (Sup.Ct., 1967)
[2] City of New York v. Social Service Emp. Union, 48 Misc.2d 820, 266 N.Y.S.2d 277 (Sup.Ct., 1965)

No comments: