Patching Taylor Law Holes

Public-employee unions are pushing for a Taylor Law amendment to guarantee members the right to have a union representative present at any conference where they might face discipline - a right they believed they had until last week.

A majority on the State Court of Appeals concluded that because that right isn't explicitly provided in the Taylor Law, it doesn't exist. Chief Judge Judith Kaye, in a lengthy dissenting opinion, argued that the Taylor Law's essence is to guarantee public employees' right to union membership, and that being counseled by a labor rep is implicitly conferred because it is such a fundamental element of belonging to a union.

The high court's majority disagreed, and so it set aside two lower-court rulings as well as the opinion of the Public Employment Relations Board. The decision cast a distinct irony on Governor Pataki's veto of a bill last year that explicitly guaranteed employees the right to union representation in such situations on the grounds that such legislation duplicated a right they already possessed: the four judges who concluded otherwise were all Pataki appointees.

When Eliot Spitzer was elected Governor last November, some of the state's top labor officials said they believed one consequence would be that unions would get a fairer hearing from him and his staff on workplace-related complaints.

This bill will be an early test of that belief. The right to have a union representative present in any proceeding that could lead to employee discipline - even if that is not the expressed purpose of that meeting - is granted to private-sector employees under a 32-year-old decision known as "Weingarten" by the U.S. Supreme Court. It is inconceivable that Mr. Spitzer or any other fair-minded chief executive could deny public workers the same treatment, particularly since they are already at a disadvantage compared to their private-sector counterparts because they are barred from striking under the Taylor Law.

The primary decision unions have to make is whether to merely pursue a bill responding to the Court of Appeals ruling - which figures to be relatively easy to enact - or to tie it to legislation seeking more-comprehensive reform of the 40-year-old Taylor Law.

Union leaders in recent years have noted that while Taylor Law penalties serve as a strong deterrent against their using the leverage that can be generated by a strike, there is no similar disincentive for management to drag out negotiations.

This tilts the playing field against labor, since contracts that go unresolved for several years (as has increasingly become the case in municipal bargaining) put the squeeze on members - many of whom were already struggling to pay their bills - who find their salaries falling behind the cost of living. Retroactive checks may seem like windfalls once the contracts are finally settled, but if, as has also become increasingly common, members are getting by in the interim by not fully paying off credit-card debt, the added interest charges eat into the value of whatever raises they eventually got.

One possible remedy, proposed by the Patrolmen's Benevolent Association, would be to pay interest in cases where raises are implemented late. City officials contend, with justification, that the PBA itself has been guilty of letting negotiations meander, but that is no reason to penalize a union's rank and file. The money is not sitting in a safe at the Mayor's Office of Management and Budget; it is earning interest while it is invested, and there is no reason that the employees should not receive it as they would have if they had gotten their raises on time and put the extra money into a bank account.

The other proposal that has been advanced by unions in the past is to impose sanctions against management in cases where its actions contributed to a strike. This more-controversial step could have been invoked during the 2005 transit walkout, which as we noted at the time, reflected a failure by both sides to act responsibly.

Transport Workers' Union Local 100 President Roger Toussaint committed the overt act that led to his being jailed and the union and members being fined for the illegal walkout.

But the Metropolitan Transportation Authority was hardly without blame. Its final offer to the union prior to the walkout included a demand that it accept an inferior pension for future members, which Mr. Toussaint cited as the reason for the strike.

This demand was on the table even as the MTA clamored for the union to submit to contract arbitration rather than striking.

Since the pension provision was not a mandatory subject of bargaining, it was a sure thing to be tossed in an arbitration proceeding, and the MTA knew it. To continue pushing it despite that understanding suggested that either management wasn't sincere about wanting arbitration, or knew that Mr. Toussaint wouldn't voluntarily accept arbitration and wanted him to confront the dilemma of either risking the consequences of a strike or those brought on within his union if he capitulated on the pension issue.

There was equal culpability for the walkout that ensued, but decidedly unequal punishment. Would the MTA have engaged in this game of chicken if Chairman Peter Kalikow had shared the risk of spending time behind bars? We're not inclined to believe so.

And so the unions find themselves in the same position as a motorist trying to decide whether the trip to a garage to patch a tire is the right time to get the other creaks and knocks fixed.