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Commentary By Nicole Gelinas

Put Teeth in Taylor

Cities New York City

New York has been on edge for weeks, worried that the Transport Workers Union will call a strike when its contract is up tonight and cripple the city's subways and buses during a possible snowstorm at the height of the holiday season. Yet everybody knows that the state's Taylor Law forbids public employees from walking out on the job. The law docks workers two days' pay for each day of unauthorized absence, and levies hefty penalties on the union itself. Isn't that enough to deter any strike?

But New Yorkers are right to be anxious. History isn't comforting to those who think that a tough law alone can keep workers from walking out. Both of the TWU's previous strikes against city bus and subway riders were illegal, and both times, the union beat the law.

In January 1966, when the union walked out on Mayor Lindsay, the state law in place at the time - the Condon-Wadlin Act - called for the mandatory firing of striking workers, and for jail time for union leaders. But despite short stints in the clink for TWU leadership, the union and its workers came out of the '66 strike smiling - boasting salary and pension hikes over two years that totaled nearly $400 million in today's dollars. The state simply had chosen not to enforce the law. The legislature even held an emergency session to vote for retroactive amnesty (such amnesties were common during the era). The law was a lie.

Out of the 1966 failure came the watered-down Taylor Law in 1967, which ditched the mandatory firing of strikers and instead imposed an array of financial penalties for strikers and their unions. The Taylor Law provides for firing unlawful workers if a public employer requests it, but dismissal isn't automatic and isn't the focus of the law.

The Taylor Law proved ineffective during its major test run in New York City: an 11-day TWU walkout in April 1980 under Mayor Ed Koch. Union workers and the union itself found themselves duly fined for striking. But the strikers simply calculated how long they could stay off the job without erasing the gains they were after. That strike was another success for the TWU, winning pay increases of 18% over two years, 50% higher than the state-run Metropolitan Transportation Authority had offered.

Twenty-five years later, the Taylor Law faces another test. Seeking to reinforce the law - no doubt aware of its past ineffectiveness - State Attorney General Eliot Spitzer has won a judge's injunction that explicitly bans a strike. And Mayor Bloomberg has asked the judge to impose extra penalties that would start at $25,000 per worker and at $1 million for the union itself. Six years ago at contract deadline, a different judge approved similar requests.

But the state and city can't rely on injunctions to serve as deterrents. The TWU leadership knows that if such injunctions prove effective at preventing a strike every few years, the union's regular threats will become toothless. It also knows that if it strikes, after a week or so of chaos during the wintry conditions of the city's busy holiday season, public officials might break down, with not only the MTA meeting union contract demands but also city and state leaders getting the state legislature to grant amnesty from Taylor Law penalties, in order to get the city moving again.

If New York's leaders want to continue to rely on the Taylor Law to prevent future strikes, they must stick it out to the end if the TWU walks. The stakes would be particularly high for Mr. Spitzer, with his reputation for toughness. If he backed down, the damage to his prospective gubernatorial run would be considerable.

In the event of a strike, the MTA, backed by the state and city, should announce that it will seek to suspend and fire all strikers for lawbreaking. Then, it should begin to train replacement workers who would do their jobs for reasonable pay and benefits. It shouldn't be hard for the MTA to find such people; the MTA usually has 30 qualified applicants for each train operator position, and as soon as strikers realize that they have struck at the expense of their own jobs, they likely would clamor to re-apply.

Further, the city could ameliorate some of the effects of the strike itself by allowing private bus operators and dollar vans to run service on regular MTA bus routes. Perhaps that move could lead to future bus-line privatization: the city should remember that it's a bad idea to put virtually all of the city's public-transit assets in the hands of the MTA.

A subway strike would unquestionably be tough on New Yorkers. Costs to the city could total more than $500 million a day in lost wages, productivity, tourists, and taxes, as well as extra police overtime. But a bad resolution to an illegal strike would be tougher still. The pain of a strike would be for naught if its resolution landed New York right back where it started: facing an uncompromising union that can threaten to shut down the whole city every few years if it doesn't retain its members' unsustainable benefit packages and get them ever more outlandishly high pay. Moreover, the TWU, as well as other city and state unions, would feel emboldened by the TWU'S emerging intact from a strike (in fact, the 1980 transit strike was followed by a PATH train strike just months later).

If the TWU prevailed after a strike, Gotham will have proven correct the recent words of one dissident union faction: "The Taylor Law [will] be exposed as nothing but a piece of paper and [be] swept away along with all the bosses' other threats."