New York’s largest teachers union this summer threatened to go on strike rather than allow schools to reopen for in-person classes—despite months of preparation by officials and a state law that prohibits union work stoppages.

Public employee strikes have never been legal in New York. They were first banned under the state Condon-Wadlin Act of 1947, which pre-dated the formal recognition of public-sector collective bargaining in New York. The ban continued under the state Taylor Law, enacted in 1967, which broadened the punitive focus to unions and their leaders.

Under the Taylor Law, any employee who is absent from work without permission, or who abstains in any part from performing his or her full job duties in a normal manner, while a strike is occurring is presumed to have been on strike.

The New York City teachers union, the United Federation of Teachers, indicated last month it was preparing for its first strike since 1975 over disagreements with the de Blasio administration’s plans to resume classes. City schools ultimately reached an agreement with UFT to delay reopening until at least September 21, but UFT made it clear that it was willing to break the law.

“The members of the UFT know that public employee strikes are illegal,” the UFT wrote “but we are determined to do what is necessary to protect our students and the families of New York City.”

Schools have had more than five months to plan reopening, and it is unclear whether UFT’s concerns will be assuaged during the two-week delay.

If teachers strike, state law (Civil Service Law section 210) requires their employer to deduct two days of pay for every day on which the employer determines they were on strike. School officials may also pursue removal or other disciplinary action against each of them for misconduct.

The union itself faces the loss of its dues deduction privileges, meaning it would have to bill each member for funds that are otherwise collected for them by the payroll office. That penalty applies even if the union doesn’t authorize the strike, and has sometimes been applied when a union has failed to prevent unauthorized job actions, such as sickouts.

But the ban on strikes is not self-enforcing: when a strike appears imminent, the Taylor Law requires a school district to seek an injunction against the union. If a court grants the injunction, union leaders face contempt charges, with penalties of fines or jail, if the strike happens. And the union itself can be fined at amounts set at the court’s discretion.

The Transportation Workers Union (TWU) Local 100 was fined $2.5 million, and its president spent three days in jail, for its two-and-a-half day strike that crippled New York City days before Christmas 2005. The union lost its dues privileges for nearly two years and ultimately sold its headquarters to make ends meet. Last year, more than a decade after dues deductions were restored, about 7 percent of TWU Local 100 members were still considered “not in good standing” because they hadn’t repaid dues owed during the suspension period.

The last major teacher strike, by about 4,000 Buffalo educators in 2000, disrupted schools for two days over two weeks. Striking teachers were docked four days of pay. The union was fined $250,000 and the union president was separately fined and briefly jailed. The union’s dues deduction privilege was set to be suspended for 12 months, but the penalty was suspended and ultimately cancelled under a negotiated settlement.

More recently, a one-day sickout by 16 teachers (also in Buffalo) saw the union temporarily lose its dues privileges at the school involved. Those strikers, as in other cases, were fined two days’ pay. This matter was noteworthy because the strike was driven by safety concerns after a violent incident involving a non-student.

In fighting post-strike penalties, the Buffalo Teachers Federation pointed to contract language that said teachers shall have “safe and healthful conditions under which to carry out their professional duties.” But the state Public Employment Relations Board (PERB), which adjudicates Taylor Law disputes, held that someone would have to face a “clear and present” danger in order to justify refusing to perform a task—let alone staying out of work entirely. In meting out the penalty, PERB further noted that the union had not utilized its grievance process related to the “safe and healthful” standard.

The Taylor Law does not envision any scenario where a strike would be justified. Instead, it provides other ways for unions to press workplace safety concerns. PERB has held that unions can demand that employers negotiate with them over the creation of safety standards or the use of equipment workers consider unsafe. If employers aren’t honoring these terms, the union can seek relief through existing dispute resolution procedures such as grievances, arbitration or litigation.

The UFT contract, like Buffalo’s, requires school officials to “eliminate recognized hazards that are likely to cause serious physical harm”—meaning the union could use its existing grievance process if it felt administrators weren’t upholding their end of the deal.

Likewise, state law (Labor Law Section 27-a) allows UFT or individual New York City teachers to petition state courts to shut down a public workplace with dangers that “could reasonably be expected to cause death or serious physical harm.”

UFT however did not publicly pursue either avenue—potentially because the resultant determination by a judge or arbitrator could undercut claims that a strike was justified by safety issues.

Concerns over novel coronavirus are themselves decreasingly novel, as nearly six months have passed since schools were closed. As preventative measures, medical treatment, and public awareness improve, the likelihood that the pandemic can justify an illegal teacher strike shrinks.

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