How Taylor Law Took Root; PERB Chair Helped Create It

By RICHARD STEIER

Jerome Lefkowitz's appearance at the Cornell School of Industrial and Labor Relations June 24 was billed as a discussion on "The State of Public-Sector Collective Bargaining in New York," but the Chairman of the Public Employment Relations Board turned it into a history lesson - one in which he played a prominent role.

The Chief-Leader/Eric Weiss A FAIR BARGAIN: Jerome Lefkowitz, the Public Employment Relations Board Chairman who more than 40 years ago helped author what became the Taylor Law, tells students at the Cornell University School of Industrial and Labor Relations that the law's prohibition of public-employee strikes is balanced by its granting of the right to settle bargaining disputes through arbitration.

Could Have Been 'Lefkowitz Law'

So prominent, in fact, that if he hadn't been what then-Gov. Nelson Rockefeller's Counsel described as "a nobody named Jerry Lefkowitz," the 1967 law governing public-employee bargaining might bear his name, rather than that of George W. Taylor, the distinguished Professor of Industrial Relations at the Wharton School who four years earlier had received a Presidential Medal of Freedom for his role in resolving labor disputes over more than three decades.

ARTHUR CHELIOTES: 'Playing field isn't level.'

Students at Cornell submitted 22 questions to Mr. Lefkowitz prior to his appearance, and rather than delivering a lecture, he spoke from notes in answering all of them, as well as a couple volunteered from the audience - among them why a judge would have sentenced Transport Workers Union Local 100 President Roger Toussaint to jail for the 2005 transit strike when the same penalty had wound up killing his TWU predecessor, Michael J. Quill, 39 years earlier.

Displaying a dry and sometimes impish wit, Mr. Lefkowitz began his discourse on the Taylor Law with a history of what had come before.

Following World War II, he said, nationally "there was an explosion of strikes. For the first time, people thought it wasn't unpatriotic to strike."

As a deterrent to job actions by public employees, the state adopted the Condon-Wadlin Law, named for two legislators who sponsored the bill. The most-severe penalty for employees who took part in a strike was supposed to be loss of job, but this wasn't particularly practical in cases where it might require the then-Transit Authority to quickly replace a workforce of 30,000-plus TWU members. This meant that the real impact of Condon-Wadlin stemmed from a lesser punishment, Mr. Lefkowitz noted: employees could return to their jobs but would be barred from receiving any pay raises for three years.

City Soft on Enforcement

There was just one problem, he said: "This was a law that was notorious for not being enforced in New York City, and was rigorously enforced everywhere else in the state." Since the large majority of job actions by public workers occurred within the five boroughs, "this meant [Condon-Wadlin] didn't really deal with the problem where it was greatest."

It certainly didn't deter Mr. Quill from welcoming John V. Lindsay as the city's new Mayor with a strike that began on Jan. 1, 1966 and continued after Mr. Quill was jailed for defying a court order, in the process inviting the judge who issued it to "drop dead."

As it dragged on, Mr. Lefkowitz, who was then a Deputy Industrial Commissioner in the State Labor Department, was called in by Governor Rockefeller's Counsel, Robert Douglas, to offer a possible solution. As he told it, he suggested that a revision of Condon-Wadlin that guaranteed certain employee rights - including collective bargaining and the right to organize - while also containing penalties for strikes might be persuasive. As it turned out, the strike was settled later that night, and his idea was temporarily shelved.

Taylor Had the Name

Mr. Lefkowitz said he was subsequently informed by Mr. Douglas that Mr. Rockefeller liked his prescription "but doesn't think he can pass it because it was proposed by a nobody named Jerry Lefkowitz." So the Governor created a panel headed by Professor Taylor, who along with his successes in resolving labor disputes nationally had played a prominent role on behalf of Mayor Wagner in settling a 1961 Teacher strike here.

The commission, according to Mr. Lefkowitz, used his basic guidelines but came up with some decidedly different details in producing the recommendations that were enacted as the Taylor Law in the spring of 1967. And the law was named after the panel chairman, he said, because the bill's only sponsor was the Governor, explaining, "No legislator wanted his name on it - they were afraid of retaliation" by the affected unions.

"Originally," Mr. Lefkowitz told his audience, "there were no penalties against individuals" for public-employee strikes that violated the Taylor Law. Less than year after the law was enacted, however, state officials were given reason to reconsider.

Sanit 'Boss' Overruled

During a tense negotiation between Mayor Lindsay and Uniformed Sanitationmen's Association President John J. DeLury at City Hall in early February of 1968 on a contract that was seven months overdue, Mr. Lindsay improved his pay-raise offer - to $400 a year - enough that Mr. DeLury decided to go outside and present the proposal to 7,000 of his members who had massed in City Hall Park.

As Mr. Lefkowitz recounted it, "DeLury came out into the street to announce this wonderful settlement. And they didn't like it. They whistled and booed" and also, according to one account at the time, threw eggs at their union leader. And so rather than sign off on the deal, Mr. DeLury backed off and led what became a nine-day strike that was settled by Governor Rockefeller when he made a wage offer slightly above Mr. Lindsay's final proposal - something the Mayor vigorously protested as rewarding the Sanitationmen for striking.

But the fact that Mr. DeLury found himself overruled by his rank and file, Mr. Lefkowitz said, made an impression on state officials. "The Legislature realized that the 'bad union bosses' weren't such bosses, and the employees had minds of their own," he remarked. That became the genesis of the amendment to the Taylor Law that fined individual workers who took part in a walkout two days' pay for each day on strike.

Unions Wanted Employer Paid

Even though the Taylor Law guaranteed collective-bargaining to the public-employee unions, virtually all of them had vehemently opposed it, Mr. Lefkowitz said, the exception being the Civil Service Employees Association (which he later served as general counsel) because the law granted it the right to represent state and local workers simply based on a showing of interest by the eligible group rather than requiring a formal election. But on the issue of the 2-for-1 penalty, he said, it was the unions that insisted that the money workers forfeited go directly to the employer rather than into a general fund. Their reasoning was simple, he said: that money created a new pot that could be tapped into when the employer otherwise might lack the funds to offer a decent raise.

PERB was created to mediate bargaining disputes and administer the Taylor Law, and has done so fairly over the past four decades, Mr. Lefkowitz said, with the exception of one board - whose members he declined to identify - which consisted of "political hacks and they didn't even understand the law."

A Balance of Power

On the one hand, he said, the Taylor Law, by discouraging striking with its stringent penalties against unions and employees, has hampered labor at the bargaining table by casting a shadow over its most-powerful leverage. On the other, unions have been able to compensate by enlisting the support of legislators - Republicans as well as Democrats - for bills that benefit them and their members.

While the unions can produce votes and financial contributions to help office-holders retain power, he pointed out, "Local governments can do very little to help the legislators." This means that when it comes to limiting the enactment of costly legislation benefiting union members, "It's the Governor who really is the gatekeeper." And in the battle between labor seeking to improve benefits and management trying to roll them back, he said, "It is union bills that sometimes get past the gate."

The one conspicuous exception has been the reduction of pension rights for employees on two separate occasions during the 1970s, with the impact that pension obligations had on the city's financial condition and, to a lesser extent, the state's, proving a powerful impetus for granting less-generous benefits for those hired from mid-1973 forward. But even in that area, Mr. Lefkowitz said, the unions got a break when the Kinzel Commission - whose recommendations led to the creation of less-generous pension tiers - recommended that negotiations of pension improvements be forbidden.

A Second Forum for Gains

Mr. Lefkowitz said that when he testified before the panel, he said that such a ban "was a crazy thing to do." It would have made more sense, he said last week, to require that any such improvements be made in the context of overall collective bargaining, so that any pension gains came from a pot that otherwise could have been used to provide better pay raises.

"Unions benefit from [the ban] very much because they can now negotiate" wage and other benefit improvements without having to carve out part of the pie for pension upgrades, which they can pursue through their influence with the Legislature, he said.

Public employees have one unique advantage over most groups, he continued: "They can vote their bosses in and out of office, and the bosses know it." As an example, Mr. Lefkowitz cited the close victories of Mario M. Cuomo in winning first the Democratic primary for Governor and then the general election in 1982, with a large assist from the unions, and then the narrow loss in his bid for a fourth term 12 years later after his relationship soured with the CSEA, which had been one of his prime backers but stayed neutral in that race.

Strengthened Unions' Hand

Two major changes in state labor law that benefited the unions, Mr. Lefkowitz said, were the expansion of contract arbitration rights and the approval of the Agency Shop Law, which requires that public workers in a bargaining unit that is unionized pay the equivalent of dues even if they choose not to be members of their union.

Employers, on the other hand, have been unsuccessful in their efforts over the years to eliminate the Triborough Doctrine, first passed in 1982, which requires that if a contract covering public employees expires, its terms continue in effect until a new agreement is reached. This is a particularly important issue, Mr. Lefkowitz said, at a time when "management is almost always pushing for higher health contributions, higher co-pays," but cannot take advantage of a lapse in a contract to impose those increases rather than having to negotiate such changes.

Overturning "Triborough" remains a prime management objective, he said, but "I do not put much stock in any likelihood that they're gonna get it."

Right-to-Strike Ambivalence

Asked whether he believed public employees should have the right to strike, Mr. Lefkowitz noted that some government workers in states including Illinois and Pennsylvania have that right, while "no state permits police or firefighters to strike."

While the unions have pressed for a reduction in the Taylor Law penalties and some way of punishing management if it is found culpable for actions that helped provoke a strike, Mr. Lefkowitz said he doubted they wanted the right to strike or they might have persuaded the Legislature to give it to them.

The following day, that supposition was challenged by Arthur Cheliotes, the president of Communication Workers of America Local 1180.

"I think the right to strike is a basic human right," he said from his international union's convention in Las Vegas. "I think as long as we don't have that, we undermine our basic rights as working people. Look at how we have not been able to keep pace with the cost of living and maintain our benefits. We may have it better than other states, but that doesn't mean it's a level playing field."

Asked whether the law's no-strike provision frustrated collective-bargaining, Mr. Lefkowitz said, "In specific instances it might. Very, very rarely."

A countervailing force, Mr. Lefkowitz pointed out, is the right to go to arbitration in contract disputes. That becomes a different kind of hammer for the unions to persuade management to come to terms, because "employers are afraid that arbitrators may give away the store and create major problems."

Imperfect But Effective

But given the Taylor Law's strictures, he said, "Anything other than arbitration would give management a pretty significant advantage to break the tie."

And so the bargaining structure, and the method for resolving disputes, often leads to delays in resolving contracts, something he called "a problem for management and for labor."

There is one consolation, however, Mr. Lefkowitz said: "This is a slow process many times, but it works."