The Triborough Amendment: Necessary Protection for Public Employees or a Barrier to Reform?

Written by Hunter Raines, Albany Government Law Review Member

Introduction

The Public Employees’ Fair Employment Act, popularly known as the Taylor Law, has long governed the employment relationship between the State of New York and its’ employees.  While the law has proved to be successful in improving the formerly turbulent relationship between the two parties, an important aspect of the law should be revised as a matter of public policy.  New York State currently faces a nearly $10 billion dollar budget deficit as newly-elected Governor Andrew Cuomo prepares to present his budget proposal to law makers, which will require drastic action in order to address.[1] One way which has been proposed to accomplish this task is through repealing, “suspending” or “freez[ing]” the Triborough Amendment to the Taylor Law, referred to by some as one of the “dirty little secrets in collective bargaining.”[2]

The Triborough Amendment to the Taylor Law

The Taylor Law was the product of a study commissioned by Governor Nelson Rockefeller in 1966 to address labor disruptions in the public sector.[3] One of the primary purposes of the Taylor Law was to prohibit strikes by allowing public employees to unionize.[4] The Taylor Law gave the employee a voice in determining such terms of employment by way of a union instead of one-on-one, preventing an interaction or interrelationship between the public employer and the public employee with respect to collective bargaining of terms and conditions of employment (hereinafter “TCE”).[5] To assist in resolving disputes, the Taylor Law also created the Public Employees Relations Board (hereinafter “PERB”).[6]

The Triborough doctrine was developed first through case law and subsequently codified in 1982.[7] The Taylor Law requires that both the employer and the employee negotiate in good faith, which PERB interpreted in Triborough Bridge and Tunnel Authority to prohibit an employer from unilaterally altering mandatory subjects of negotiation while a successor agreement was being negotiated.[8] The decision was reached by considering that, since the law proscribes public employees from striking, so too must it proscribe a public employer from unilaterally altering TCEs during negotiations.[9] While originally this doctrine prohibited unilateral employer change of only mandatory subjects of negotiations, the subsequent codification expanded it to all agreements, even if the expired agreement was not in writing.[10] The over-arching goal of the Triborough Amendment is to maintain the status quo until a new collective bargaining agreement could be achieved by the parties involved.

The Triborough Law is even more beneficial to the employees than was the Triborough Doctrine.  The New York Court of Appeals has ruled that the maintenance of the status quo during negotiations does not require automatic scheduled pay raises that would have occurred under an expired contract, while under the Triborough Law, PERB concluded that this was no longer valid, since the language in the statute was enacted subsequent to the court decision.[11] Furthermore, PERB has addressed the issue of an employer’s requisite compelling interest for a unilateral change that would defeat Triborough, and as a result requires a “demonstrated emergency” after the exhaustion of all other options.[12]

Governor Andrew Cuomo has assembled a Mandate Relief Team, headed by Larry Schwartz, a former Secretary to Governor Patterson and Deputy Westchester County Executive.[13] Schwartz provided that the Team is examining options as to the Triborough amendment, including its “freeze” or “suspen[sion]”.[14] Such endeavors have been supported by Assemblyman Robert Castelli, who introduced his own bill to repeal the Triborough Amendment during the last legislative session.[15]

Complications Precipitating from the Triborough Amendment

The Taylor Law has been highly successful in preventing public employee strikes in New York State, but the Triborough Amendment has helped make this an expensive affair.[16] The cost is not exclusively in the area of salaries under Triborough; the greatest impact may be in healthcare benefits.[17] National expense on healthcare has increased from $75 billion in 1970, representing about 7.2% of the Gross Domestic Product, to a level in excess of $2.2 trillion in 2007, comprising over 16% of the national economy.[18] In the private sector, companies have responded to increases in healthcare costs by requiring employees to pay an increased share of the cost of health insurance, while public employers have not been able to do so.[19] Since Triborough works to continue the terms of an expired contract until a new agreement can be reached, the union has little incentive to bargain for a reduction in benefits, while in the interim health care costs continue to rise.[20] While it is true the Taylor Law burdens each party with the duty to negotiate in good faith, “hard bargaining” has not been found to be a violation of this duty.[21]

In addition to state and local finance concerns, the Triborough Amendment is also complicating issues in the realm of receiving federal stimulus funds under the United States Department of Education’s (hereinafter “DOE”) Race to the Top initiative.[22] The DOE distributed $4 billion in federal money to ten states under the Race to the Top program.[23] New York was awarded nearly $700 million under the program, largely as a result of passing Education Law 3012-C.[24]

Under the new law, the criteria for teacher evaluations, among other things, has been changed.  The law requires all collective bargaining agreements that took effect after July 1, 2010 to be consistent with the revised criteria for evaluation.[25] Under the Taylor Law some aspects of the assessments are classified as a TCE and, therefore, are mandatorily bargainable.[26] If the unions representing educators and the public school districts enter an impasse as to the mandatorily bargainable provisions of evaluation, the Triborough Amendment would continue the present terms until such time a new contract can be agreed upon.  As funds have already been distributed to assist in the training of school officials as to the new evaluation standards, what happens to the larger pool of nearly $700 million if a new collective bargaining agreement cannot be reached to reflect the changes consistent with Education Law 3012-C?[27] The effect this may have on the $700 million in Race to the Top funding is unclear, placing an additional cash incentive on eliminating or altering the function of Triborough in this realm.[28]

Reform Resistance

Union resistance to the repealing or otherwise altering the function of the Triborough amendment is quickly building, especially in the light of a failed legislative effort to prevent student performance on standardized exams from being included as part of teacher evaluations.[29] The President of the New York State United Teachers Union, Richard Iannuzzi, has proclaimed he feels “demonized” by Governor Cuomo’s efforts and is prepared to “strike back.”[30] Iannuzzi has also characterized the Triborough Amendment as “a tradeoff for labor peace” referencing the Taylor Law’s prohibition on work stoppages.[31]

In contrast, the New York State School Boards Association’s President Florence Johnson has admitted that the Triborough Amendment has “result[ed] in union members getting much larger raises than those in the private sector and tilts the playing field towards unions in contract talks.”[32] Be that as it may, some unions have taken on an aggressive tone and are examining options such as a media campaign against the Governor’s proposal.[33]

Conclusion

It is critical that the Triborough Amendment be eliminated in order for state and local municipalities to reign in administration costs of their public services.  Allowing such a one-sided amendment to jeopardize a nearly three-quarters of a billion dollar federal stimulus award that will provide much needed financial aid to cash-strapped schools is incredibly unwise.  The bilateral duty to bargain in good faith imposed upon the parties by the Taylor Law should be held sufficient to protect public employees from drastic, arbitrary changes in their TCEs in the temporary absence of a new contract.  However, in an endeavor to reach a deal that alienates a minimal amount of people, in may be necessary to reform the Triborough Amendment in a way that accomplishes the goals of cost reduction and greater bargaining power by the public employer, while still providing union members with some level of protection for existing TCEs during contract negotiation.

Just as Governor Rockefeller commissioned the Taylor Committee that resulted in the then-ground breaking Taylor Law, which has provided the model for many other states’ public employment legislation, the Mandate Relief Team assembled by Governor Cuomo must examine all options on reforming or dismantling the Triborough Amendment.  With the New York State Senate currently dominated by members of the historically anti-high-tax, pro-business Republican Party, this may be a rare opportunity to actually make meaningful changes to the legislation.[34] However, with historic strong spending by unions lobbying the legislative branch, totaling $11.4 million by NYSUT and its affiliates alone in 2008-2009, the legislative battle will most likely be difficult.[35] Results are expected from this investment; as Iannuzzi put it, “I expect the good people of the Assembly and Senate to fight back” against the Governor’s proposal.[36] With the formation of Governor Cuomo’s commission, the Rubicon has been proverbially crossed; the results of the battle that ensues will likely determine the direction of the state – and its financial health – for many years.


[1] News Editorial Board, State of Uncertainty:Cuomo must help New Yorker’s clafity inconsistent beliefs about state finances, Buffalo News, Jan. 29, 2011, available at http://www.buffalonews.com/editorial-page/buffalo-news-editorials/article327119.ece.

[2] Press Release, Assemb. Robert J. Castelli, Castelli Applauds Remarks by Cuomo’s Mandate Relief Committee on Triborough (Jan. 20, 2011), available at http://bobcastelli.com/2011/01/20/castelli-applauds-remarks-by-cuomos-mandate-relief-committee-on-triborough/; see also Andrew J. Hawkins, Other Pro-Business Groups Target Repeal of Triborough Amendment, City Hall Daily, Jan. 19, 2011, available at http://www.cityhallnews.com/newyork/article-1745-other-pro-business-groups-target-repeal-of-triborough-amendment.html.

[3] Cornell University, Restructuring Local Government, New York State Taylor Law: History, http://government.cce.cornell.edu/doc/reports/labor-management/ny_civil_service_law_history.asp (last visited Mar. 1, 2011).

[4] N.Y. Civ. Serv. Law. § 202 (McKinney 2011).

[5] N.Y. Civ. Serv. Law. § 203 (McKinney 2011).

[6] N.Y. Civ. Serv. Law. § 205 (McKinney 2011).

[7] See Triborough Bridge & Tunnel Auth., 5 PERB ¶ 3037 (1972); N.Y. Civ. Serv. Law § 209-a(1)(e) (McKinney 2011).

[8] See generally Triborough Bridge, 5 PERB ¶ 3037.

[9] Id.

[10] Ass’n of Surrogates and Sup. Ct. Reporters Within the City of N.Y. v. Unified Ct. Sys., 28 PERB ¶ 3012 n.8 (1995).

[11] BOCES v. PERB, 41 N.Y.2d 753, 758–59 (1977); Cobleskill Cent. Sch. Dist. v. Cobleskill Teacher’s Ass’n, 16 PERB ¶ 3057 (1983).

[12] Chautauqua County Employees Unit 6300 v. County of Chautauqua, 22 PERB ¶ 3016 (1989).

[13] Assemb. Castelli, supra note 2.

[14] Id.

[15] Id.

[16] Lawrence M. Cummings, Guest Essay: Triborough Amendment Needs Amending, Post Star, http://poststar.com/news/opinion/article_d5c35cfa-346d-11df-8a6c-001cc4c03286.html (last visited Mar. 5, 2011).

[17] Id.

[18] The Henry J. Kaiser Family Foundation, Trends in Health Care Costs & Spending 1, (2007), available at http://www.kff.org/insurance/upload/7692.pdf.

[19] Cummings, supra note 16.

[20] Id.

[21] David S. Shaw & Norma G. Meacham, Collective Bargaining For Survival 7 (2010) (on file with author).

[22]Cory Allyn, Schools Pool Funds to Comply With Race to the Top, The Millerton News, Nov. 11, 2010, available at http://www.tcextra.com/news/publish/millertonnews/Schools_pool_funds_to_comply_with_Race_to_the_Top/1555200.shtml.

[23] Sam Dillon, Race to the Top Fund, N.Y. Times, Jan. 31, 2011, available at http://www.nytimes.com/info/race-to-the-top-fund/.

[24] Shaw, supra note 21, at 1.

[25] N.Y. State Education Dep’t, Memorandum from the New York State Education Department (Aug. 31, 2010) available at http://www.p12.nysed.gov/memos/performeval/qa.html.

[26] Shaw, supra note 21, at 8–9.

[27]Allyn, supra note 22.

[28] Id.

[29] Marc Humbert, Unions Face New Political Climate as States Confront Spending Issues, On Board Online, Jan. 24, 2011, available at http://www.nyssba.org/index.php?src=news&srctype=detail&category=On%20Board%20Online%20January%2024%202011&refno=1604.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Humbert, supra note 29.

[36] Id.

5 Comments

Filed under Employment Law, Government Reform

5 responses to “The Triborough Amendment: Necessary Protection for Public Employees or a Barrier to Reform?

  1. Hestia de Vries

    Thank you for writing this analysis in plain English. It has helped me tremendously to better understand the issue. Truly hope that this amendment can be repealed; New York’s children in public schools are the innocent victims.

  2. Charles Samek

    The Taylor Law is an honorable and useful solution to
    what existed. When approached in good faith from both
    sides it promoted negotiation and in the event of an
    impasse, arbitration to be acceptable by both sides even
    though each side would not be completerly happy. Neither
    side would be badly hurt. Employment would not be delayed and there is always the next time.
    The Triborough Ammendment opened numerous anenues
    for cheating and coercion. The intent of law is much a part
    of same and should be compelling.
    The stated intent of the N Y Teachers union to ‘make a big
    scene’ is in effect bullying, bribery and coercion and has no
    place in intelligent legislation.

  3. This amendment helps/affects many state workers and not only teachers. Does the Taylor Law protect state employees enough so that when current contracts expire, the employers still have a standard to maintain in regards to wages and benefits? I am being told by my union that if this amendment is withdrawn, my employer will be able to pay me minimum wage with no benefits.

  4. Your article is flawed with 2 assumptions:

    In regards to the repeal of Triborough – repealing the law does not change the original case law from the 1972 PERB decision that Triborough is the direct result of. The case law correctly found that it is an unfair advantage for the employer to be able to legislate that there are no strikes while also being able to unilaterally change employment terms in the event of an expired contract. This means that repealing Triborough does nothing, unless the No Strikes clause of Taylor (Article 14, Section 210) is also repealed. As strikes generally result in costly shutdowns that affect public services, and generally result in far greater gains in pay and benefits that would be gained because of a “holdout” over terms due to Triborough, that would be even more costly – see the results of recent “wildcat” strikes by the MTA. Triborough, for the most part, has enabled public employers to routinely offer raises that do not keep up with the rate of inflation for that year or the average raise seen by the private sector that year as figured by US DOL.

    In regards to insurance increases, you reference a study by the Kaiser Family Foundation to support your assertion that public employees pay less for health care than private sector employees. This is subjective, as health care is merely a form of compensation that is not salary/cash, and in many cases, especially with professional positions, public sector employees receive a smaller salary than they could command in the private sector. Additionally, it ignores that the Kaiser study only shows an overall average of the percentage of the premiums borne by the employee – meaning some are above and some are below. Interestingly enough, the same holds true in the public sector in New York – the percentage of the premium varies widely depending upon the employer. In some cases, such as some local school districts, the employers are responsible for 100% of the premiums. The back story in many of those cases, however, is that the employer is responsible for that amount due to contract negotiations where the employees gave something else up, such as raises to obtain such a benefit. Additionally, in some cases, employees pay close to the national average as a percentage of the premiums already – state employees bear 25% of the burden as of today if on a family plan – almost identical to the national average as sited in the Kaiser report.

    This opinions in this “article” reek of partisan talking points and has little substance or basis in reality.

  5. Dan Finnerty

    The law does not need to be changed. Politicians continually negotiate with unions caring only about today and their next election. Unions negotiate for years from now. If politicians truly cared about someone other than themselves they easily could make bargains now and take an upfront cost to save a longterm cost savings for the state. The unions regularly willingly take zero wage increase to maintain their future rights. Politicians care about their here and now and their free life benefits after 4 years of public service. 4 years. Does the state really want to take benefits from police and firemen and give them the right to strike. The right to strike means chaos in our community. Imagine one day even one week not a single police car on patrol hence the law. Look to Wisconsin. The politicians didn’t go after the police and fire persons. Why well who could the fibrils order to put the strikers down if he did. The city would of burned crime thru the roof. The national guard would have had to have been called and then martial law. The easier way is politicians to truly care about the community and country and think big picture. Think outside of their election and themselves

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s