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New York State Taylor Law: Negotiating To Avoid Strikes in the Public Sector

Kristin Guild, May 1998

The Origin of the Taylor Law

From 1947 to 1967, employees of all levels of government in New York State were governed by the Condon-Wadlin Act which prohibited public sector strikes and assessed harsh penalties to strikers. However, workers continued to strike, despite the prohibition, and penalties were seldom applied because they were perceived to be too extreme. The Condon-Wadlin Act provided no alternative methods to resolve labor-management disputes.

In the 1960s, a series of large public sector strikes, including a transit workers strike which brought New York City to a halt for twelve days, made it clear that the law needed an overhaul. In January of 1966, Governor Nelson Rockefeller created a Public Employee Relations Committee chaired by Professor George W. Taylor of the University of Pennsylvania to make legislative recommendations that became the Taylor Law.

More detailed history

The Interpretive Role of the Public Employment Relations Board

The Taylor Law created an agency called the Public Employment Relations Board (PERB) to implement and interpret the statute, resolve any negotiating conflict, and conduct research on civil service industrial relations. The PERB board consists of three members appointed by the Governor to staggered six-year terms. PERB employs approximately forty staff to perform mediation, legal and administrative duties. The board is located administratively within the State Department of Civil Service, but is independent of any governmental department.

PERB can be involved in any stage of the negotiation process, upon the request of either party, or on the board's own initiative. The Public Employment Relations Board has "exclusive jurisdiction of labor disputes between public employers and public employees involving the right to organize and the right to negotiate in good faith" (Lawyers Co-Operative Publishing Co. 1982: 199). PERB has broad powers to prevent improper practices of negotiation such as bad faith negotiation by imposing penalties to parties which engage in improper practices. However, the board only has authority over the organizing and negotiating process, not the contracts which are the end result of collective bargaining.

What is the collective bargaining process mandated by the Taylor Law?

The collective bargaining steps required of local governments by the Taylor Law are as follows:

1. Determine the bargaining unit.
   A bargaining unit is usually determined based on either a common employer, place of work, or a common job task. For example, all employees of a county may be represented by one union, or the custodial staff by one union and administrative staff by another. The bargaining units are most likely already established, but may need occasional revisions. If there is conflict over designating the bargaining unit, Public Employment Relations Board mediators can help to resolve the conflict.
2. Determine the recognized employee organization for each bargaining unit.
   This organization will represent all employees of that bargaining unit in negotiations with the public employer, whether all employees are members or not. If there are competing employee organizations with nearly equal membership within the bargaining unit, employees will vote to determine which organization will represent them in negotiations. Here too, the PERB can assist with conflict resolution.
3. Determine mandatory bargaining issues.
   If there is conflict over what constitutes a mandatory bargaining issue (and there often is), the Public Employee Relations Board determines this based on the statute and case law. The PERB decision can be appealed to New York courts, and decisions have been overruled in the past. Numerous examples appear in Volume 19 of New York Jurisprudence published by the Lawyers Co-Operative Publishing Co.
4. Negotiate in good faith.
   If either the public employer or the union do not negotiate in good faith, PERB has the authority to impose penalties. If negotiation reaches an impasse,
   1. PERB mediates. If mediation is unsuccessful,
   2. the parties may voluntarily submit to binding arbitration or
   3. PERB assigns a fact-finding board which investigates the negotiating issues and makes recommendations.
   4. If the parties refuse to comply with the fact-finders' recommendations, the matter goes to the appropriate legislative body for a hearing. The appropriate legislative body makes the ultimate decision. Which legislative body has jurisdiction over the final decision depends upon the level of government. For example the local school board has jurisdiction over a dispute with educational workers, and the county legislative board would determine the contract conditions of county employees.
   5. The Taylor Law exempts fire and police services from this process, due to the essential nature of the service, and requires that they go directly to binding arbitration following unsuccessful mediation.
5. The appropriate legislative body approves the negotiated contract.

What are mandatory bargaining issues?

Public employers are required by the Taylor Law to negotiate with recognized employee groups on mandatory bargaining issues, which some call "bargainable" issues. This does not mean that public employers must yield to union demands on the issue in question, but just that it must be a topic of negotiation. The Taylor Law defines terms and conditions of employment as mandatory bargaining issues. What legitimately constitutes "terms and conditions of employment," however, is defined not by the statute itself, but by subsequent decisions by the Public Employment Relations Board, and when the PERB decision has been contested, by the New York courts.

According to case law, any provision relating to payment including wages, medical benefits, sick, vacation, and holiday leave, reimbursement for expenses, or severance pay, or to disciplinary policies and work rules is subject to mandatory collective bargaining (Lawyers Co-operative Publishing Co. 1982, 206-7). Job security, however, is not a condition of employment and is not a mandatory issue for bargaining, nor is the allocation of positions to salary grades. According to the New York courts, class size in the case of educational services is not a term or condition of employment, and thus does not have to be a subject of collective bargaining (ibid.: 207).

When is subcontracting a government service a mandatory bargaining issue?

One major means for government restructuring is subcontracting government services to the private or non-profit sectors. Subcontracting unionized services is sometimes deemed to be a term and condition of employment in New York State and, therefore, a mandatory issue for collective bargaining. Case law and PERB decisions have established two broad criteria for services proposed for subcontracting which must be collectively bargained:

1. The service is currently provided exclusively by unionized workers, and
2. the work to be subcontracted must be substantially the same as the work conducted by unionized employees.

However, even if these two conditions are the case, the issue may not require negotiation if the public employer can demonstrate that there has been a significant change in the qualifications for service. John Crotty, Counsel to the Public Employment Relations Board and PERB Deputy Chairperson, gives a recent example from Erie County. Medical care to elderly and infirm citizens has traditionally been provided by general practitioners. County officials decided that geriatric specialists would better serve their constituents, and contracted with a private firm of geriatric specialists to provide the service, firing all of the county-employed general practitioners. The employee organization representing the general practitioners claimed that this change in service provision was a mandatory issue of collective bargaining, and the matter went to the Public Employment Relations Board for a decision. While the service was previously provided exclusively by the general practitioners, and while the service to be provided would still be medical care to the same client group, PERB determined that the qualifications for employment, and thus the nature of the service provided, had been substantially changed. PERB ruled that this change was not an issue of mandatory collective bargaining.

Crotty estimates that, of cases of subcontracting brought to PERB, 40% are determined to be mandatory bargaining issues, whereas 60% are dismissed.

Is downsizing government services legal according to the Taylor Law?

Yes. The purpose of civil service legislation is "to protect efficient public employees from partisan control [It] is not designed to prevent reorganization of a department to promote effectiveness and economy (Lawyers Co-operative Publishing Co. 1982: 230). Public service positions can be abolished in good faith when there is no longer a need for the service, or when financial circumstances require government cost-cutting. To legally eliminate a position for economic reasons, the cost savings must be equal, or nearly equal, to the amount that would be paid to the employee. Thus, it is illegal to discharge an employee only to replace them with a newly hired employee to perform essentially the same or similar services. Similarly, it is illegal in New York State to eliminate positions by subcontracting the service if the service will remain essentially the same.

What resources for contract negotiation, mediation, and information are available?

The Public Employment Relations Board employs mediators and lawyers who can help guide local governments through the process and assist in conflict resolution. However, PERB is a small agency with numerous responsibilities, and does not have much time to devote to improving labor-management relations and mediation. PERB has offices in Albany, Buffalo, and New York City.

The United States Secretary of Labor's Task Force on Excellence in State and Local Government Through Labor-Management Cooperation produced a report in 1996. The report gives numerous examples of cooperation throughout the country. 

The text of the Public Employees' Fair Employment Act can be easily accessed through the internet at http://www.law.cornell.edu/states/ny.html#codes. Select Statutes, then Civil Service.

Written resources include:

Donovan, Ronald. 1990 Administering the Taylor Law: Public Employee Relations in New York. Ithaca, NY: ILR Press Cornell University.

This text describes the events in New York State leading to the passage of the Taylor Law. It describes the role of the Public Employee Relations Board in administering the law.

Kearney, Richard C. 1984. Labor Relations in the Public Sector. New York: Marcell Dekker, Inc.

Documents the history and legal environment of public sector collective bargaining in the United States, and notes the proportion of public sector unionization in the states of the union. It investigates the monetary and personnel impacts of collective bargaining, and explores methods to resolve impasses in the negotiating process.

Lawyers Co-operative Publishing Co. 1982 New York Jurisprudence 2d. Volume 19. Civil Service Law ß347-ß404. Rochester, NY: Lawyers Co-Operative Publishing Co.

One in a series of volumes describing important case law pertaining to New York statutes (organized by statute, subject, and keyword) in a readable narrative format which highlights critical aspects of cases and of decisions. This volume contains descriptions of civil service case law.