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Taylor Made: The Cost and Consequences of New York's Public-Sector Labor Laws Part 2

by Terry O'Neil and E.J. McMahon

October 17, 2007

 

The Triborough Amendment

 

Within a few years of the Taylor Law's enactment, PERB held that, following the expiration of a contract, public employers were prohibited from unilaterally altering "terms and conditions of employment" while negotiating a successor agreement following the expiration of a contract. This doctrine was adopted in 1972 in a case involving Triborough Bridge and Tunnel Authority employees, and thus became known as the Triborough doctrine.[31] The rationale was based on a quid pro quo theory-since unions could not strike to protest a failure to agree on a new contract, employers should not be able to unilaterally change "terms and conditions of employment" while negotiations continued.

 

However, nonmandatory subjects of bargaining were not deemed "terms and conditions of employment" under the Taylor Law, even if they were contained in a collective bargaining agreement. As a result, after a contract expired, the original Triborough doctrine allowed employers to alter any nonmandatory subjects even if included in the expired agreement. Employers could also refuse to negotiate a union's demand to continue contractual provisions that were nonmandatory subjects of bargaining, such as staffing levels. Unions thus lost some nonmandatory provisions in a successor agreement when they did not settle prior to the expiration of an existing agreement and invoked arbitration. This often occurred when police and fire negotiations reached compulsory arbitration. Employers filed "improper practice" charges in connection with such subjects (also known as "scope changes," because they involved the scope of bargaining), and such provisions were "scoped" out of the contract during the interes t arbitration process.

 

If a union went on strike, it lost all the protections of the Triborough doctrine-the "quid" was gone, so the employer did not have to grant the "quo."[32]

 

For decades, most government employees in New York, as in other states and the federal government, have been paid according to salary schedules with multiple pay grades and "steps" based on years of service. Teachers also can move to higher pay "lanes" by accumulating additional graduate credits. As a result, the resulting pay progression is especially steep and rapid for teachers. (See Figure 10 in "The Triborough Effect").

 

The Triborough Effect

 

Teacher salary schedules in NewYork State typically include 20 to 30 annual pay "steps" on each of at least four "lanes"-for teachers with bachelor's degrees, master's degrees, master's plus 30 credits of graduate credits, and a master's plus 60 credits. The following is a simplified example; many districts actually have more steps and lanes than shown here.

 

Most teachers spend most of their careers moving up salary steps-and, occasionally, across salary lanes-even if their union contract has expired, because the Triborough Amendment guarantees these changes. as a result, a school district's salary costs rise even when union negotiations have reached impasse and there is no new contract. For the same reason, contract settlements calling for seemingly modest, inflationlevel increases in base salaries can be far more costly than they look. This is especially true in districts with predominantly younger teaching staffs.

 

 

Figure 8 illustrates the projected 10-year pay history of a newly hired teacher, fresh out of college, working in a district with a salary schedule matching the reported medians for all Suffolk County districts in 2006-07. Assuming the teacher earns a master's degree within two years-a prerequisite for certification-and assuming all base salary steps also increase annually by 2.6 percent under the union contract, her salary by Step 6 will reach $68,753, a pay boost of 58 percent after five years. Even if the salary schedule is frozen at 2006-07 levels due to a contract impasse, the Triborough Law guarantees that the Step 6 salary for a certified teacher with the same level of experience will reach $60,472, an increase of 39 percent in five years.

 

Earning 30 more graduate or "in-service" credits by the end of her sixth year will move the teacher up yet another lane on the salary schedule. assuming continued annual inflation level increases in base steps, the salary for this teacher in the "Masters + 30" lane by Step 10 will reach $100,687-an increase of 132 percent after 10 years on the job. Even if the salary schedule remained frozen throughout the period, Triborough would guarantee that the teacher's pay by Step 10 reached $77,893-an increase of 79 percent from Step 1. By tacking on another 30 graduate or in-service credits during this period, the teacher could move to the "Masters + 60" lane and climb the ladder even faster, reaching $122,000 in her 11th year assuming continued inflation-level increases in base salaries.

 

Higher pay for most public schools teachers is based solely on two factors: continued employment and extra training. But these are measures of inputs, not outcomes. according to the 2007 annual survey of the New york State School Boards association, less than 2 percent of school districts said they based pay on performance, and only 9 percent said they used extra pay incentives to attract highly qualified teachers to their classrooms.

 

Few districts have even experimented with "performance pay" or other productivity measures, because unions and school administrators inevitably disagree over the outcome measures to be used in evaluating performance. However, it remains clear that any outcome measure, whatever its failings, would be a better measure of performance than longevity and added training alone.

 

 -E.J. McMahon

 

 

During the first 10 years after enactment of the Taylor Law, union negotiators for teachers commonly insisted on treating costs associated with step and lane movements as "old money"; only raises applied to base salaries on the pay schedule were considered "new money." The unions generally refused to acknowledge the costs of increments as part of a final settlement, regarding them as "guaranteed." Thus, a 4 percent raise, plus increment, generally meant a 5 to 7 percent settlement cost to the employer. An added percentage point was usually also added to the cost of the agreement to cover the cost of lane movements.

 

In 1977, public employers scored a major victory in the state's highest court on the applicability of the Triborough doctrine to step increments. In the case of BOCES v. PERB, the Court of Appeals found that the doctrine "should not apply where the employer maintains the salaries in effect at the expiration of the contract but does not pay increments." The unanimous court explained:

 

The concept of continual successive annual increments ? is tied into either constantly burgeoning growth and prosperity on the part of the public employer, or the territory served by it, or a continuing general inflationary spiral, without admeasurement either of the growth or inflation and without consideration of several other relevant good faith factors such as comparative compensation, the condition of the public fisc and a myriad of localized strengths and difficulties. In thriving periods the increment of the past may not squeeze the public purse, nor may it on the other hand be even fair to employees, but in times of escalating costs and diminishing tax bases, many public employers simply may not be able in good faith to continue to pay automatic increments to their employees.[33] [emphasis added]

 

The BOCES ruling meant all pay increases were truly negotiable-and the employer was not required to implement the approximately 2.5 percent to 6 percent increases applicable to individuals who had not yet reached top step.[34] This leveled the playing field for both employers and taxpayers, putting more pressure on unions to settle without prolonged negotiations because no member of the unit was assured of a raise until a settlement was reached.

 

However, this pro-taxpayer precedent lasted less than five years. In 1982, then-Governor Hugh Carey and the Legislature amended the Taylor Law to make it an "improper practice" for an employer to refuse to continue all of the terms of an expired agreement until a new agreement was negotiated. The Triborough doctrine thus gave way to what became known as the Triborough Amendment.[35] Within a year, PERB had interpreted the amendment to require employers to continue paying for both steps and lane movements in the absence of a new contract.[36]

 

Technically, the continuation of pay steps and lanes could still be negotiated like any other provision of a contract. Practically speaking, however, unions have treated these provisions as off limits in contract talks.

 

The Triborough Amendment also had an unintended impact on the use of compulsory interest arbitration. PERB held that under the Triborough Amendment, the provisions of existing contract could not be altered by an interest arbitration award.[37] This was based on the statutory language that provisions of an expired agreement could only be changed by a new "negotiated contract."[38]

 

PERB subsequently ruled that an employer could not exercise its right to initiate interest arbitration unless a union first waived its own rights under the law to have the contract continued or filed its own arbitration petition.[39] Thus, a union may "stand on the contract," leaving the employer with no way of initiating compulsory interest arbitration.

 

While compulsory interest arbitration has driven up salaries for police and firefighters, there are some circumstances in which an employer might find it beneficial to pursue the arbitration option. However, as a result of the Triborough Amendment, a union that has a favorable contract-especially one protecting a costly non-salary item, such as a "no-layoff" guarantee-may simply stop the bargaining process at mediation and refuse to go any further. Interpreted strictly, the law would allow a union to block arbitration indefinitely if the impasse involves a crucial item.[40] There has yet to be a case in which a government employer in New York has been able to proceed to arbitration over a union's objections.

 

 Impact of PERB Decisions

 

The police and firefighter interest arbitration amendments-which are subject to renewal every two years-and the Triborough Amendment are the two major provisions of the Taylor Law that affect the size of pay increases and the resulting burden on taxpayers. A number of decisions by PERB also have had financial impacts.[41]

 

PERB has generally taken a balanced approach in determining "scope of negotiations" cases; i.e., those items public employers should not be required to negotiate under the law, such as staffing levels, layoffs and class size. However, public employers are greatly restricted as a result of PERB decisions holding some items to be mandatory subjects of negotiation.

 

1. Subcontracting and Reassignment of Unit Work

 

PERB has consistently held that both subcontracting and the reassignment of "unit work"-work done by members of a particular union bargaining unit-are mandatory subjects of bargaining. Virtually any idea for saving money through outsourcing or consolidation of services must first be negotiated and agreed to by the union representing the employees who currently provide the service.[42] Thus, absent a union's agreement, the taxpayers may be forced to shoulder the burden of outdated, inefficient or costly delivery of services. PERB's "emergency doctrine," which theoretically should allow some relief in these areas, has not been applied to circumstances where "mere monetary savings" are at stake. PERB has held that the goal of saving money is "insufficient" to overcome an employer's obligation to fully bargain the topic.[43]

 

It is also clear under current law that with regard to police and fire, absent any waiver by the union, subcontracting issues must be negotiated, mediated and ultimately subject to interest arbitration. Thus, crucial decisions-such as whether a city can contract with the county sheriff's department for services currently provided by city police officers-require the union's agreement or are subject to the decision of an arbitrator. This is also true for decisions on whether to move certain tasks from uniformed employees to other employees of the same municipality.[44]

 

2. Binding Past Practices

 

PERB has found many unilaterally established, outdated inefficient and/or expensive "past practices" to be binding on public employers. It has done so even where the establishment and/or continuation of the practice was not approved by the employer's chief executive officer and legislative body- the two parties necessary to produce a binding contractual guarantee.

 

There was encouraging news for public employers in some relatively recent PERB decisions that said approval and knowledge of a practice by a supervisor or department head was insufficient to bind a public employer to a practice. For example, PERB ruled in 2003 that a school district could not be bound by an alleged past practice allowing some buildings and grounds employees to take home school district equipment-because the practice, supposedly authorized by their immediate supervisor, had never been authorized by the district superintendent of schools (i.e., the chief executive officer).[45]

 

However, these rulings were watered down in the subsequent County of Nassau case,[46] where PERB found that the county police commissioner could bind the entire county government to a practice (personal use by employees of departmental vehicles) that was not approved by the county executive and the county legislature. Most recently, in a case involving health benefits for some school district retirees, PERB may have signaled an intention to further depart from the previous standard by broadening the definition of past practices that can be binding on an employer without the approval of the chief executive officer and/or legislative body.[47]

 

3. Retiree Health Insurance

 

PERB has held that health insurance for future retirees is a mandatory subject of negotiation.[48] However, once employees actually retire, there is no way for an employer to negotiate a change in their benefits.[49] Moreover, a separate state law affecting only school districts prohibits employers from "diminishing" health insurance for current retirees unless a "corresponding diminution" in benefits is negotiated with active employees in the same bargaining units.[50] This effectively prevents school districts from making any alteration in health insurance for any retirees, unless the same change is negotiated with a corresponding group of active employees. The Legislature has also repeatedly passed bills that would extend the same protection to all public employees. These measures have been vetoed by former Governor George Pataki and Governor Spitzer, but are likely to reappear in the future.[51]

 

 Management: Alive and Fighting

 

Through all of this, public employers have succeeded in excluding certain crucial issues from the bargaining table. Perhaps the most important and controversial of the items found to be "nonmandatory" has been police disciplinary procedures. The state Court of Appeals has held that such procedures are generally not negotiable for the overwhelming majority of employers in New York State.[52] In 2007, at the urging of Mayor Michael Bloomberg and other municipal leaders, Governor Spitzer vetoed two different bills that would have overturned this ruling.[53]

 

Another key area in which employers have retained a modicum of managerial control involves the generous and costly disability benefits available to uniformed officers. Under General Municipal Law Sections 207-a and 207-c, respectively, firefighters or police officers (including sheriff's deputies) who suffer a disabling injury "in the performance of (their) duties" are entitled to continue at full salary until the disability has passed, or they reach the maximum retirement age, whichever comes first. Firefighters outside New York City who are retired with a performance-of-duty pension receive 100 percent of their salary tax-free until age 70, plus whatever annual raises and longevity increases are granted to active firefighters. This amount is almost always supplemented by tax-free Social Security disability payments.

 

These laws were originally based on the understandable premise that police work and firefighting are inherently more dangerous than other work, and that uniformed employees are entitled to financial security when injured in the line of duty. However, the disability provisions are easily subject to abuse. This was dramatized in a Pulitzer Prize-winning 1994 investigative series in Newsday, which documented "a boom in police disability cases" that had cost Long Island taxpayers tens of millions of dollars. As Newsday reported:

 

The police disability system, whose financial rewards have been stretched and sweetened over the years by the State Legislature and the courts, has evolved into a program that invites malingering and fraud and pays a large portion of its benefits to officers whose injuries had nothing to do with fighting crime. Long Island police officials believe that as many as one in three disability claims may be fraudulent or highly exaggerated.[54]

 

While police disabilities on Long Island reportedly have decreased since the Newsday series, the Legislature has not changed the law that made possible the abuses.[55] The Court of Appeals has not helped matters in recent years by abandoning its previous standard limiting 207-a and 207-c disability status to those injuries resulting from the "heightened risk" involved in public safety work.[56] As a result, uniformed officers injured in routine workplace accidents can qualify for the same disability benefits as officers who are shot in the line of duty.[57] In 2003, for example, the court approved 207-c benefits for a corrections officer who pulled his back while opening a stuck door to admit some inmates to a kitchen; an officer who was hit in the shoulder by a closing office door while supervising an inmate who was cleaning a hallway; and an officer who bumped his head on a television set hanging from the ceiling of the correctional facility where he was taking an inmate count.[58]

 

Unions have sought to make disability determinations a mandatory subject of negotiation, which effectively means they could force arbitration of an employer's denial of benefits. With direction from the state Court of Appeals, PERB has held that the decision on whether an employee is eligible for Section 207-a or 207-c disability is a nonmandatory subject of negotiation.[59] On the other hand, PERB has ruled that the procedures for administering these statutes are mandatory subjects of bargaining, with the definition of "procedures" generally covering whether to remove an officer from the disabled category or place him on light duty.

 

 Unions on the Lobbying Offensive

 

In recent years, unions have been increasingly successful in persuading the Legislature to adopt their agenda for changing the Taylor Law, as well as for beefing up pension benefits.

 

In 2006, the State Legislature passed a series of bills that collectively must be regarded as the most significant legal assault on public-sector management in New York since 1967. The most sweeping of these measures would have:

 

  • Required acceptance of a union's "last offer" by an employer found to have committed an improper practice by refusing to negotiate in good faith-a violation that could involve something as minor as pursuing a nonmandatory subject of bargaining to impasse over the union's objection. The union offer would then become a binding agreement that could not be changed or modified except by mutual agreement. From an employer standpoint, the result would have been as draconian as the old Condon-Wadlin strike penalties-in reverse. Moreover, there was no demonstrated need for this legislation. The New York State Public Employer Labor Relations Association noted that in the four years prior to the bill's passage, there had been not a single PERB decision finding an employer had engaged in a "pattern" of bad faith negotiations.[60]
  • Required PERB to rule on bad-faith bargaining charges on an expedited 10-day basis if a contract had expired. If it were found that an employer had failed to negotiate in good faith, PERB would have the power to order an immediate 1 percent salary increase for the unit members-increased by 0.5 percent for every three months without a settlement, to a maximum of 2.5 percent. Such penalty wage payments could not be used to "offset" future bargaining increases.[61]
  • Reduced the "2 for 1" wage penalty for illegal strikes to a "one for one" wage deduction and prohibited the suspension of a striking union's dues check-off privilege if the public employer was found guilty of a refusal to negotiate in good faith during the strike period.[62]

 

While these and other bills were vetoed by then-Governor Pataki, the overwhelming support they received in both houses of the Legislature is a troubling sign that they will re-emerge.

 

3. Recommendations

 

First and foremost, New York State should reaffirm its strong commitment to the principle that public employees have no "right" to strike. At a minimum, this means preserving the no-strike penalties contained in the Taylor Law, including the 2-for-1 penalty for workers and stiff financial sanctions for unions that illegally go on strike. Perhaps not coincidentally, two of New York's largest public employee strikes in recent years-by transit workers in New York City in 2005 and teachers in Yonkers in 1999-were directed against employers headed by appointed boards. Unions chose to violate the law when they could not achieve their aims through political pressure on elected officials, and only the employers remained bound by the Taylor Law's provisions.

 

Public employees have done well in negotiations-to say the least-without this added weapon in their arsenal. The Taylor Committee had it right to begin with: "The strike cannot be a part of the negotiating process."

 

Moving from what needs to be preserved to what needs to be changed in the Taylor Law, three reform priorities stand out.

 

1. Make Arbitrators Consider Affordability

 

The Taylor Committee was also right about compulsory arbitration. The state would have been better off-and police and fire would still be fairly paid-if the Legislature had continued following its advice. As the state Conference of Mayors noted in its 2006 Legislative Program, "The compulsory arbitration process is an unfunded mandate upon municipalities and should be repealed."

 

The ultimate problem with compulsory interest arbitration is the way it undermines accountability in government. After all, unions are single-mindedly focused on protecting and promoting the interests of their members. Professional arbitrators are considered successful if they produce results perceived by both sides as "fair." Elected officials must think beyond the demands of a particular group of employees in a particular arbitration proceeding and make tough decisions on how to allocate scarce resources among a variety of public services. Yet unelected arbitrators can essentially end up making these decisions for them.

 

However, after more than three decades of this practice, it may be argued that compulsory arbitration is so deeply ingrained in the negotiating systems for police and firefighters that simply repealing it now would be severely disruptive and destabilizing, even if politically feasible.

 

At a minimum, some changes in the arbitration process can help control costs without undue disruption of the process. The most heavily weighted issue in interest arbitration should be the question of whether there is "ability to pay" on the part of the community whose taxes must support a pay increase.[63] In making this determination, the arbitration panel should look beyond simplistic fiscal capacity measures, such as constitutional tax limits, to consider and analyze potential tax rate increases, total tax burdens and the income of the taxpayers who live in the community.

 

In other walks of life, those who work for poorer employers generally earn less. But as things now stand, some cash-strapped municipalities in New York are pressured to pay police and fire salaries rivaling those in wealthier communities. Although the current statute does require some consideration of this issue, "ability to pay" needs to be defined and applied in a way that reflects the true affordability of a proposed contract. The goal should be to protect poorer communities from inflated arbitration awards without allowing arbitrators to inflate the salaries of police and firefighters in communities that are not financially distressed.

 

In addition, New York State should move from its traditional issue-by-issue interest arbitration format to a last-best offer system-one in which an impartial arbitrator could choose between the complete "final offers" of the employer and the union. This would avoid the "splitting the baby" approach so prevalent in our current structure. Last-best-offer arbitration is not a panacea-it reportedly did not work well in New Jersey, for example-but experience suggests that management advocates in New York would use the opportunity to present more reasonable packages to the panels. This approach would offer a better chance of addressing the skyrocketing cost of health insurance benefits in a manner that has been resisted by traditional arbitration panels. Like the existing interest arbitration provision, last-best-offer arbitration could be regarded as an "experiment," scheduled to sunset after several years.

 

2. Tackle the Triborough Amendment

 

Since the majority of teachers in most districts are eligible for some step or lane movement every year, the Triborough Amendment means only the most senior and highly paid teachers go without a pay increase while negotiations for a new contract continue. Consequently, there is less pressure on the union to settle things quietly or quickly.

 

Protracted negotiations generally are more difficult for a school board than for a teachers' union to withstand. During this period, union members can put pressure on boards through legal job actions such as picketing and distributing leaflets, or through illegal job actions such as refusing to volunteer for co-curricular activities. In many districts, lawn signs ticking off a local union's "days without a contract" mislead district residents into assuming that the teachers are enduring a hard pay freeze while negotiations continue.

 

If there is to be any real economic control over rising costs in school district negotiations, employers should not be required to continue financing step increments and lane movements after the expiration of a collective bargaining agreement. Pay hikes that require new taxes should not be considered "old" money.

 

Salaries and benefits make up 75 percent of total operating expenditures for an average school district in New York State. School budget increases are driven primarily by the cost of personnel-not extras like clubs, sports or transportation, although these are usually the first areas cut when money must be found to accommodate the steadily growing teacher pay packages protected by the Triborough Amendment.

 

In addition to preventing automatic pay increases, the Triborough Amendment needs to be modified to give employers the same right as unions to petition for interest arbitration. The rights at issue are analogous to the Taylor Committee's recommendation that employers and unions have equal access to mediation and fact-finding. PERB interpretations and subsequent legislative history that produced this inequity should be overridden by new statutory language.

 

3. Modify PERB's Approach to Key Issues

 

  • The ultimate decision on subcontracting and reassignment of "unit work" should-after good-faith bargaining with affected unions-be left to elected officials who ultimately are responsible for managing costs and delivering services. Given the difference in the nature of private and public employment, a public employer should have far more flexibility in this area than it currently possesses under PERB's decisions.[64]
  • With health insurance costs rising and with the advent of "GASB 45,"[65] a new government accounting rule that will force local governments and school districts to disclose the full value of health insurance promised to retirees, this issue is coming to dominate contract talks across the state. All retiree benefits, not just pensions, should be removed from the scope of negotiations. Employers need the flexibility to address this challenge in a manner that balances the legitimate interests of employees, retirees and taxpayers. They should not be required to negotiate contract clauses they effectively can never change.
  • Past practices in the workplace, such as policies allowing personal use of vehicles or equipment, should only be held contractually binding if explicitly authorized by the chief executive. For practices involving the direct expenditure of funds, the approval of the legislative body should also be required. If the Taylor Law requires the consent of these parties to create a binding contract, how can it require something less to bind employers to a practice they never even negotiated with their unions?
  • Given the demonstrated potential for serious and costly abuse of the police and firefighter disability provisions of the General Municipal Law, employers should retain as much discretion as possible in determining the fitness of employees to return to light duty or full duty.[66]

 

Conclusion

 

The Taylor Law was a response to the challenges of a previous era. But 40 years later, in a more intensely competitive global economy, New York faces very different challenges that demand new solutions. These include:

 

Consolidating local governments and school districts. Governor Spitzer has formed a commission to study ways of improving the efficiency and competitiveness of New York's 4,200 taxing jurisdictions, including mergers and sharing of services. Left unchanged, PERB's interpretation of the subcontracting and "unit work" issues will make it very difficult for taxpayers to achieve real savings or efficiency improvements from attempted consolidations.

 

Financing government retiree health care. Under new accounting rules, the total unfunded liability for retiree health care among New York's local governments and school districts is expected to range into the tens of billions of dollars statewide. Once the true costs of these long-term obligations become clear, it will also become clear that local governments and school districts cannot possibly afford to pay them without creatively restructuring and reforming retiree benefits-as was recently agreed to by automakers and their employers. But the Taylor Law, as currently interpreted, could hinder or prevent such changes from even being considered in many places.

Over the past four decades, the Taylor Law has made it possible for public employee unions to secure significant gains in wages and benefits for their members-with significant costs and consequences for New York, its taxpayers and its economy. Meanwhile, in recent years, the state Legislature has been increasingly receptive to union proposals that would further tilt the collective bargaining rules in favor of employees. Lawmakers should be moving in the opposite direction-updating and improving the Taylor Law in ways that can benefit all New Yorkers.

 

Endnotes

1. A government or government agency cannot be sued or forced into a contract without its consent.

2. The legislature cannot delegate its powers to a third-party.

3. Samuel I. Rosenman, ed., The Public Papers and Addresses of Franklin D. Roosevelt (New York, 1937) 6: p. 325, as cited by William Gomberg in "The Problem of Arbitration-The Resolution of Public Sector Disputes," Proceedings of the American Philosophical Society, Vol. 118, No. 5 (Oct. 15, 1974), pp. 409-414. To quote Roosevelt: "The process of collective bargaining as usually understood cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purpose of government makes it impossible for administrative officials to represent fully or bind the employer in mutual discussions with government employee organizations."

4. Various New York State laws other than the Taylor Law guarantee additional benefits for public employees, including: paid military leave; limits on suspensions without pay for almost all government workers; limits on the number of hours police officers can work in the "open air," on a daily and weekly basis; the maximum number of hours firefighters can work; the number of holidays and vacation days to which police and firefighters are entitled; the maximum number of consecutive hours teachers may work; the minimum number of sick leave days for teachers; maximum sick leave accumulations for teachers; and terminal leave calculations for teachers based on accumulated sick days.

5. Contributing to the climate of public unhappiness with government work stoppages, Rochester city workers had gone on strike in 1946, and New York City transit workers threatened to strike the following year.

6. State of New York, Governor's Committee on Public Employee Relations, Final Report, March 31, 1966, as reprinted in Jerome Lefkowitz, Melvin H. Osterman and Rosemary A. Townley, eds, Public Sector Labor and Employment Law, Second Edition, New York State Bar Association (1998), 60.

7. In addition to Taylor, the committee consisted of E. Wight Bakke of Yale University; David L. Cole, a New Jersey lawyer and labor mediator; John T. Dunlop of Harvard; and Frederick H. Harbison of Princeton. None of the committee members were from New York State.

8. Police were initially excluded, but collective bargaining provisions were extended to them in 1962.

9. Unlike state and local government in New York, the federal government is an "open shop" employer, meaning that employees can choose not to join a union or pay union dues. Moreover, since pay and benefits are set by statute on the federal level, the scope of bargaining between the federal government and its employee unions is limited to personnel policies and working conditions. The current statute governing labor relations in the federal government includes a strong management rights provision, further constraining the scope of bargaining.

10. Governor's Committee on Public Employee Relations, op cit, 60.

11. Ibid. 67.

12. Ibid. 95

13. Experience indicates that reliance on impasse procedures in a local contract, as opposed to the state statutory process, has been the exception rather than the rule.

14. In practice, elected municipal executives exercise a more clear-cut role as negotiators separate from their legislative bodies than do superintendents of schools, who function both as chief executives and school board employees.

15. Article 14 of the New York State Civil Service Law.

16. Collective bargaining by public employees in New York City is overseen by a city agency, the Office of Collective Bargaining, whose adjudicatory body for dispute resolution is the Board of Collective Bargaining (BCB). In case of impasse, the city and its unions can turn to PERB for factfinding.

17. Agency fee (the obligation placed on employees to pay a fee to the union to represent them even if they do not join the union) was a hotly contested issue in early negotiations. In 1977 it was mandated for state employees and made negotiable at the local level. It was not until 1992 that it was mandated for all public employees.

18. The 1967 law did not contain the remedial improper practice sections, which were not enacted until 1969.

19. As of 2006, PERB had defined 367 mandatory subjects, 256 nonmandatory subjects, and 13 prohibited subjects. See State of New York, Public Employment Relations Board, Mandatory/Nonmandatory Subjects of Negotiation, 2006 Edition.

20. "New Taylor Law Has Wide Impact," The New York Times, May 5, 1968.

21. Ronald Donovan, Administering the Taylor Law: Public Employee Relations in New York, Cornell University ILR Press (1990), 67.

22. From 1967 to 1981, the peak period for illegal public employee strikes in New York State, teachers unions were involved in 121 of the 215 total walkouts, according to PERB.

23. Jerome Lefkowitz, Melvin H. Osterman and Rosemary A. Townley, eds, Public Sector Labor and Employment Law, Second Edition, New York State Bar Association (1998); pension and retirement benefits issue cited at pp. 489-91.

24. Interest arbitration is where a third-party arbitrator awards all the term of a new contract. In the more traditional forms of rights or grievance arbitration, a third-party arbitrator decides disputes over the meaning of disputed clauses in collective bargaining agreements.

25. The union and the employer each appoint one panel member. The parties choose the third, neutral member from a list of professional arbitrators supplied by PERB.

26. The amendments initially maintained the existing fact-finding procedures in contract disputes, but ultimately eliminated that step in 1977 after most interest arbitrations had become rubber stamps of the preceding fact-finding recommendations.

27. Out of 86 public employee strikes in New York between 1967 and 1974, only five involved police or fire unions.

28. "End Jailings in Strikes, Taylor Law Panel Urges," The New York Times, March 29, 1975.

29. New York City police also have had the ability to take impasses to compulsory interest arbitration, but until the late 1990s, their arbitration panels were appointed by the city Board of Collective Bargaining. Hoping to duplicate the success of police elsewhere in the state, the city Patrolmen's Benevolent Association (PBA) waged a long and ultimately successful battle to have their contracts arbitrated by a state PERB panel, which the Legislature approved over the city's objections in 1998. So far, however, this has not produced the quantum leap in city police salaries that the PBA might have hoped for. Impartial arbitrators have attached strong weight to New York City's long tradition of pattern bargaining, in which the pay increases for one group of workers do not vary significantly from those won by others. The first PBA arbitration award under PERB auspices in 2002 gave police the same pay increase over 24 months that had already been granted over a 30-month period to the city's firefighters and other uniformed employees. The next police arbitration award, in 2005, was more controversial. It financed a two-year, 10.25 percent pay raise for incumbent officers in part by reducing the starting salary for newly hired police to $25,100. City officials have complained that this result has made it difficult to recruit qualified officers, while the PBA is citing it as evidence in support of their demands for a larger pay increase in their next contract-which, as of September 2007, had gone to arbitration.

30. The going rate itself is inflated by the process. Smaller employers settle for higher amounts rather than incur the time and expense (lawyers fees plus $1,700 per day for some arbitrators) of interest arbitration. It is also difficult to get major concessions in interest arbitration - even where justified. Thus, employers are forced to pay larger increases than they ordinarily would agree to in order to secure these concessions in negotiations.

31. Triborough, 5 PERB 3037 (1972)

32. PERB also recognized another exception to the Triborough doctrine when an employer had a "compelling need" to change a term and condition of employment before it could get the union's agreement. Under this exception: (a) the employer's action must have been required at the time it was taken; (b) the employer must have bargained to impasse with the union over the proposed change; and (c) the employer must have recognized a continuing willingness to negotiate over the change after it was made Wappingers CSD, 5 PERB 2074 (1972). Despite this exception, PERB does not appear to have allowed any meaningful change of a term and condition of employment made by an employer. In such cases, the board generally found the employer's actions only rose to the level of "administrative convenience" or an "economic benefit" - as would be gained, for example, by moving ahead with a plan to contract out bus service in time for the start of school.

33. BOCES v. PERB, 41 N.Y.2d 753 (1977)

34. The overall cost of steps generally ranges from 1-3 percent for an employer. This is the "average" cost for an entire unit. The movements from one step to another for an individual generally range from 2.5 to 5 percent. The overall cost to the employer is lower because there are some teachers on top step who are no longer eligible for increments. When these "zero" increases on the top steps are averaged with the 2.5 percent to 5percent increases on lower steps, they generally produce an average 1 percent to 3 percent overall cost to the employer depending upon the seniority of the staff.

35. 1982 N.Y. Laws chs. 868, 921.

36. Cobleskill Central School District, 16 PERB 3057 (1983).

37. City of Kingston, 18 PERB 3036 (1985).

38. PERB applied the same rationale to legislative determinations-but given their limited frequency, this ruling had little impact.

39. City of Kingston, op. cit.

40. In Matter of Utica (Zumpano), 672 N.Y.S.2d 844, 91 N.Y.2d 964 (1998), the state Court of Appeals rejected a city's challenge to the continuation of a minimum staffing and equipment provision in an expired collective bargaining agreement with its firefighters. The city unsuccessfully argued that continuing the provision after expiration of a contract would violate the state constitution's home rule provisions.

41. Because PERB is unlikely to revisit and reverse the cases presented here, legislation would be necessary to address the problems they create.

42. Some public employers have negotiated contract provisions that explicitly allow subcontracting actions. However, these provisions were generally negotiated long ago and are the exception rather than the rule.

43. Enlarged CSD of Troy, 11 PERB 3056 (1978).

44. A line of PERB decisions-see, for example, Town of Mamaroneck, 33 PERB 3010 (2000)-allows for the civilianization of certain police functions when various preconditions are met. However, analysis of these cases is beyond the scope of this paper.

45. Sherburne-Earlville School District, 36 PERB 3011 (2003)

46. County of Nassau, 38 PERB 3030 (2005).

47. Chenango Forks Central School District, 40 PERB 3012 (2007).

48. Lynbrook, 10 PERB 3067.

49. Unions do not represent retired workers, leaving employers no one to negotiate with.

50. 1994 N.Y.S. Laws Ch. 729, as last amended by 2006 N.Y.S. Laws Ch. 27. The law sunsets every two years.

51. The latest such bills were S.6030 and S.6031. rejected by Spitzer in Veto Memos 119 and 120, respectively.

52. Matter of Patrolmen's Benevolent Association of The City of New York, Inc.,v. New York State Public Employment Relations Board, et al., and Matter of Town of Orangetown, et al.,v. Orangetown Policemen's Benevolent Association, et al., 2006 NY Int. 32 at http://www.law.cornell.edu/nyctap/I06_0032.htm.

53. See A.4592 and Veto Memo 1 of 2007; and A.8139, Veto Memo 96 of 2007. If such a bill became law, many cases now resolved within police departments (through what is commonly referred to as "command discipline") would be pursued to disciplinary arbitration, which involves costly fees for lawyers and arbitrators. Discipline in these paramilitary operations would suffer if employers prove unwilling or unable to bear the costs of such proceedings, as is now often the case with school districts under the teacher discipline provisions in Education Law Section 3020-a.

54. "For Some LI Cops?Lucrative Disability," Newsday, June 26, 1994, 3.

55. As of 2006, disability pensions were being collected by 16 percent of all retired city police and firefighters outside New York City and 22 percent of retired county police officers (nearly all from Long Island), according to the Comprehensive Annual Financial Report of the New York State and Local Retirement System.

56. The "heightened risk" standard was established in Balcerak v. County of Nassau, 94 NY2d 253 (1999).

57. In addition, public safety officers stricken by heart disease, strokes, tuberculosis, H.I.V., and hepatitis are automatically deemed to have "line-of-duty" disabilities qualifying them for tax-free disability pensions worth three-quarters of their final salaries.

58. Theroux v. Reilly, 2003 N.Y. Lexis 4029

59. In the Matter of Poughkeepsie Professional Firefighters' Association, Local 596, IAFF, AFL-CIO-CLC, et al., Appellants, v. New York State Public Employment Relations Board, et al., Respondents, http://vlex.com/vid/322116.

60. S.3177, Veto No. 364.

61. S.3178, Veto No. 292.

62. Ibid.

63. This is not the same as the "ability to pay" standard proposed by Governor Pataki's Commission on Local Government Reform (2002-2004) and incorporated in Pataki's last several executive budget proposals. The standard recommended here would require a more rigorous analysis of fiscal capacity in local communities.

64. For purposes of this limited discussion, decisions to outsource services performed by a public employer, and decisions to move work from one unionized group to another bargaining unit or to other unorganized employees of the same employer, are treated as the same. Although these decisions are quite different, a public employer is bound by the same obligation - that is, it must bargain.

65. "GASB" stands for Government Accounting Standards Board, which regulates the Generally Accepted Accounted Principles (GAAP) that must be used in the financial statements issued by all but the smallest governmental units and school districts. GASB Rule 45 will require government entities using GAAP to disclose their long-term unfunded liabilities for retiree health insurance and other post-employment benefits, which governments now generally finance annually, on a pay-as-you-go basis.

66. Although police and firefighter disability benefits are not within the Taylor Law, Sections 207-a and 207 c clearly need to be amended in light of the most recent Court of Appeals decision in this area. At a minimum, the Legislature needs to restore a common-sense standard of "heightened risk" that stresses injuries incurred in the course of hazardous duties and excludes routine workplace accidents.