Getting Triborough wrong
“Mandate relief remains elusive,” is one of the state-related headlines in today’s Albany Times Union — and that much, at least, is true. Unfortunately, the article beneath the headline repeats a familiar canard about the origins of the Triborough Amendment.
Rick Karlin of the paper’s Capitol Bureau writes:
The Triborough Amendment is one of the most-cited mandates.
Under the rule, which came as part of an agreement by public unions not to go on strike, the terms and conditions of an existing contract stay in place even if it is expired and workers and management haven’t settled on a new deal. [Emphasis added.]
Unions have long claimed that there was a link between Triborugh and the strike prohibition. But this is simply not true.
As explained in our recent report, “Triborough Trouble,” the law was not enacted pursuant to any “agreement by unions not to strike.” Public employee strikes have never been legally permissible in New York. They were explicitly outlawed by the Condon-Wadlin Act in 1947, a full 20 years before unionization and collective bargaining in the public sector was authorized on a statewide basis. In 1967, the Taylor Law reaffirmed the strike ban, weakening some of the more draconian Condon-Wadlin strike penalties.
The Triborough amendment was enacted in 1982, based on a “doctrine” cooked up by a state labor arbitrator a decade earlier. In the mid 1970s, the state Court of Appeals ruled the Triborough doctrine did not require payment of automatic “step” increases after expiration of a contract, which is why public employee unions fought for the stronger law. They got it, in (not coincidentally) a statewide election year, over the strong objections of the state’s local government and school board organizations, and against the advice of Hugh Carey’s own Budget Division analysts.
Union leaders such as NYSUT’s Dick Iannuzzi may like to argue that the existence of Triborough is the only thing that keeps them from striking–which, in itself, is basically a threat aimed at any politician who would dare think of repealing the law. But the unions are bending the facts to suit their own agenda.
The Times Union article was factually wrong, and thus cries out for correction.
Democrats and their Union Bosses !!! Gee; How Quaint !!!
Comment by eatingdogfood — June 20, 2012 @ 9:57 am
While you are correct in that Karlin, as usual, is factually wrong when it comes to the Triborough amendment, you generally are as well.
For example, the Triborough decision - which is the basis of the Triborough doctrine and the Triborough amendment, was not a decision by some po-dunk labor arbitrator. It was a decision by PERB, which basically states that if unions do not have the power to strike, then longstanding contract provisions should remain in place, because labor effectively has no power to fight back and the employer has all the power.
What Triborough has done is brought relative labor peace. Wildcat strikes, which occurred in violation of the no-strikes provision of the Taylor law, are now a rare thing. While the TWU has conducted one or two since Triborough, they have suffered significant consequences for each one especially the last one. If Triborough was to go away, I’d bet unions would again be far more apt to call for wildcat strikes in direct contradiction to the no-strike provision of the Taylor law.
Removing Triborough will effectively do one thing and one thing only: delay - not remove - step increases. Health insurance would continue, because there is no sufficient case law that reflects it would be protected under the Triborough doctrine that would remain in force even after a repeal of the Triborough law, while as you correctly note, steps are not protected under the Triborough doctrine - which I suspect would eventually be challenged in court again anyway if the Triborough law as repealed. Why do I say that step increases would merely be delayed? You and I both know they aren’t going anywhere. You were a state manager at one point managing professional and paraprofessional staff. You know just as well as anyone how large the gap is between the meager starting pay for a professional level state job and what the norm would be for such jobs in the private sector. Such a gap could not stand, as the state would not be able to recruit. Additionally, you are well aware that steps themselves on the state level are a previous concession. It wasn’t that long ago it only took 3 years to move from the hiring rate to the journeyman rate, and today, it takes 7, saving the state tens of millions each year. Finally, teachers steps are not going away either. Why? Because without steps, an entry level, 1st year teacher with only a Batchelors and still needing to work for their Masters would make exactly the same as a teacher who has been on the job for 30 years and has a Masters, and that just won’t work either.
Another area you get wrong on Triborough is that it always gives employees the power and employers are powerless because of it. That is yet another bogus claim. Look at NYSCOPBA - did Triborough help them? They went 9 YEARS without a contract, which means 9 years without a general salary increase. The employER had all the power there, because while Triborough maintained their health care and steps, those that were at the top of their payscale went for almost a decade without a raise, with more and more employees reaching that plateau each year for those 9 years. This effectively save the state millions, as retroactive raises are effectively cheaper for the state due to inflation.
Finally, you miss one more item that effectively negates the repeal of Triborough: Most labor contracts in either the public or the private sector tend to stipulate that the provisions of the contract will remain in force when the contract ends and will continue to remain in force until a successor agreement is made and ratified. So this leaves you dealing the with the contracts clause of the US Constitution when trying to not honor the long term terms of a contract, which I don’t see working out too well for employers trying to break such terms.
So while you keep sounding the “alarm” that Triborough is so expensive, the reality is that even if it is repealed, not much will change - except labor might be more inclined to strike in contradiction to the no-strikes provision of Taylor. Whether you and other right-wingers like it or not, employees
Comment by Darth Stateworker — June 20, 2012 @ 10:44 am
Typo on my part:
“Health insurance would continue, because there is no sufficient case law that reflects it would be protected under the Triborough doctrine that would remain in force even after a repeal of the Triborough law…”
should be:
“Health insurance would continue, because there is now sufficient case law that reflects it would be protected under the Triborough doctrine that would remain in force even after a repeal of the Triborough law…”
Comment by Darth Stateworker — June 20, 2012 @ 11:06 am
The “Triborough Doctrine” and the “Triborough Ammendment are almost never mentioned with precision. First, one may view it as a cooked up doctrine by a labor arbitrator but, to be precise, it was established by a 1972 decision by the Public Employment Relations Board made up of three members, no two of whom can be from the same party, nominated by the Governor and confirmed by the Senate.
The logic of PERB’s decision was that since the law made it an improper practice for an employer to unilaterally change a term and condition of employment (which are mandatory subjects of negotiations) an employer could not do such things as lower (or raise) salaries or ignore the grievance procedure after the expiration date of the contract.
The logic of this is, of course, is that once a contract expires, a Union can not raise salaries on its own or override a management decision that, say, disregarded a job bidding procedure. In short, it kept the status quo until a new contract was signed. You might not agree with that, but it does have an obvious sense of fairness to it. Even with that, the status quo almost always favored the employer, at least from a fiscal point of view, because salaries would remain in place until new ones were negotiated. Except for police and fire, an employer could sit on its hands for years and there was no way to force management to agree to retroactive raises–aside from the arbitration process that applies to police and fire.
True, the political process might force the employer’s hand but even when raises were retroactive, they were most often paid with inflation depreciated dollars.
In 1982, the Legislature amended the Taylor Law to extend the Triborough Doctrine to non-mandatory subjects of negotiation that were contained in the collective bargaining agreement. Even with this amendment, labor and management can still agree that any term of an agreement would terminate upon the expiration of the contract and unilateral action may be taken by the employer if the union strikes.
While the Triborough Amendment was not a quid pro quo for prohibiting employees from striking, the no-strike provision was one of its foundational basis. In the Triborough decision, PERB specifically upheld the hearing officer’s decision that was based on the fact that “…the statutory prohibition against an employee organization resorting to self help by striking imposes a correlative duty upon a public employer to refrain from altering terms and conditions of employment unilaterally during the course of negotiations.”
The subject that almost always comes up in this context are the step raises that an employee receives on each of his or her first 7 anniversary dates. When I started out as an apprentice ironworker, I was paid 60% of a journeyman’s rate and that was increased each year until I became a journeyman. I don’t remember anyone thinking of it as a raise. Both I and American Bridge recognized that my skills each year were enhanced and I was more productive, at least by 10%, and after 4 years I was able to work with a full set of skills. The fact is, almost all of these salary-step arrangements were first proposed and instituted by management, both as a cost savings item and a recognition of increased productivity of a fully trained employee and many predate union contracts.
Comment by W Dennis Duggan — June 20, 2012 @ 4:13 pm
The Triborough Amendment coupled with Automatic Step Pay Increases for Longevity and Coursework is the most insidious, humiliating affront to taxpayers, municipalites and school districts. How can a state like NY disallow the Will and Benefit of the People by legislatively allowing the Triborough Amendment to stand. Support Assemblyman Robert Castelli’s bills to Repeal or Amend the Triborough Amendment.
Comment by Ralph Mitchell — June 21, 2012 @ 12:11 am
In my own school district, an irresponsibly generous Board granted as much as 11%/year raises to the highest-paid teachers in a three-year contract while the economy was melting down in mid-2008. In spite of electing a few more-responsible Board members, with the expiration of that contract a year ago, the Teacher’s Union has been unwilling to accept less, and due to Triborough, has no incentive to even negotiate, since they can continue to get unparalleled raises open-ended. And the Board’s hands are tied. One wonders when the second half of this travesty, “binding arbitration”, will be called on to drive the final spike, preempting responsible management and making this gross miscarriage of justice complete. If and when it does, folks should directly thank the Governor and their elected Legislators when next the polls open. Understand, we have a very difficult time finding capable folks willing to raise their hand to invest the time and effort to manage school districts; if Legislators and the Governor tie their hands in this increasingly difficult time, very soon, there will either be no one filling this responsibility, or as the union threatened to do this year, the unions will simply run their own candidates and make their ownership of schools, entitlements and taxes complete.
As we’ve all watched first-hand, the ‘tax-cap’ is a farce at controlling spending; what isn’t granted on the front-end, is merely slid around the back in the form of ‘State Aid’ (which originates from the same pockets). The rest is imposed by labor contracts and pension costs ever-burgeoning via Triborough. Instead of responsibly providing relief in the law, the Legislature and the Governor have pushed this conflict into the streets and in doing so, foster a growing and unnecessary confrontation and bitterness between citizens and teachers, with our kids and their interests directly caught in the middle.
Comment by John Kelch — June 21, 2012 @ 6:14 am
Re: Previous Cmments
Since the Triborough Amendment is a legislative act, it is not part of the contracts clause of the US Constitution. The act of continuing to maintain the provisions of an existing contract was a past practice that was challenged by the Rockland County BOCES in BOCES v PERB (41 N.Y.2d 753, 1977).
In their decision the NYS Court of Appeals cites Civil Service Law 209-A subdivision 3(now subdivision 6), which stated that the legislature understood the differences between public and private sector employment and that federal law was not binding on NYS collective bargaining practices with public employee unions. The Appeals Court also recognized the fact that State and Local revenues were unpredictable and determined that the taxpayer should not burdened escalating costs if the State or Local revenues could not support the continuation of non-negotiated raises.
Moreover, on the constitutional contract claim issue the fact is that Governor Walker of Wisconsin unilaterally invalidated a number of provisions of the public employees bargaining rights would support a similar legislative change by the NYS legislation. In fact the major problem with Walker’s plan according to the Federal District Court was that by exempting Police and Firefighters he set up two distinct areas of public employment(public safety related and others) and the court ruled that this decision appeared arbitrary and capricious. The federal court did not cite contract law as the basis for its decision.
As to claim that attacking the collective bargaining rights and denying Step increases will undermine a School District’s ability to hire qualified teachers, given today’s economy I doubt that this claim would withstand scrutiny. A case in point was an article in the NY Times approximately 2 years ago, where the Pelham School District received 3000 applications for one position. I seriously doubt whether the fact that Pelham School Teachers were covered by a Collective Bargaining Agreement was the prime motivations for the applicants.
In conclusion, the Triborough Amendment should be repealed and the process by which the Fact-Finders determine teacher compensation should be expanded to cover the pay of both public and private teachers. Additionally the law granting tenure should be eliminated.
Comment by Jim Kirk — June 21, 2012 @ 11:19 am
Jim Kirk:
You should try actually READING what I wrote before running off and saying the contracts clause doesn’t come into play.
To reiterate: Triborough or not, if a contract has a clause in it that says the terms of the contract will remain in force until a successor agreement is reached (which many union contracts do, including most of the contracts the state signs with it’s unions), that is indeed something that is protected by the contracts clause, because it’s a clause in a contract and not something unwritten in a contract that relies on Triborough.
The rest of your post is similarly uninformed and reflects that you didn’t actually READ what was written.
Comment by Darth Stateworker — June 22, 2012 @ 3:59 pm
While the contracts clause has come into play in several State contracts it has usually been when the State tried to change benefits for retirees after the fact.
As far as a successor clause goes, this is usually inserted into private contracts where the sale of the business holds the subsequent buyer responsible for a contract signed between the union and the previous owner of the business. I have reviewed several State contracts and numerous Teachers contracts and I have yet to find language that states that the terms and conditions of the current contract will remain in effect pending the negotiated settlement of a new contract. In the private sector, it is unnecessary to include this language as the NLRA has ruled that the terms and conditions of a previous contract will remain in effect until such time as a new contract is negotiated.
However, under the 11th Amendment the NLRA does not apply to municipal or State Unions unless the State agrees that it applies. The 11th Amendment provides the State with qualified immunity against federal actions. The bottom line is that the State or local municipality (political subdivision) must prove a legitimate argument for why the State or local municipality has decided to unilaterally change the terms and conditions of an existing CBA.
Finally, I have reviewed a number of State and local contracts and have yet to find language where it states that the terms and conditions of the current contract will remain in effect at the expiration of the present contract. In the private sector it is understood, via an NLRB decision that this will be the case. In the public sector the terms of an existing contract will remain in effect based upon State legislative authority, such as the Triborough Amendment.
Comment by Jim Kirk — June 25, 2012 @ 1:45 am
Jim,
You are absolutely right about the NLRA - it doesn’t apply to government workers. Hence why they work to get such clauses added to contracts.
Something tells me that you didn’t read through them very closely if you didn’t see the clause. The last one I read - one of the CSEA contracts - it was there.
Regardless, even if the language is no longer added, it doesn’t really matter, because if Triborough was to go away, I’d bet my next paycheck unions would start insisting such language be put into contracts. Sure, the state could decline, but without Triborough, we go back to a key point I made before: unions will be more apt to vote in favor of wildcat strikes regardless of what Taylor says, because without Triborough, the employer has ALL the power. And public or private sector, things don’t work if one side holds all the power. With Triborough, contrary to popular dogma, the power is about as even as it could get. The length of time it took NYSCOPBA to get a new contract is illustrative of this. Either side can use Triborough to their advantage, depending upon the circumstances - and that was the point of the law - to level the playing field.
Comment by Darth Stateworker — June 25, 2012 @ 10:08 pm
I disagree with you on the Triborough Amendment but I think the real public misconception is about public wages and benefits. The Teachers are generally the scapegoat of this misconception and in the lower Hudson Valley there is some validity to this claim, but the police and firefighters also receive their share of notoriety, particularly in the area of pension annuities.
What the public does not know is that there are many other public employees and their wages and benefits do not even come close to breaking the State budget.
I am a retired Federal employee and my pension plan (CSRS) was very similar to the current teachers pension plan in that teachers earn 2% for each year of employment up to 30 years. After 30 years the 2% is reduced to, I believe, 1.75%. In the Federal sector, under the now discontinued CSRS retirement plan, we earned 1.875% for each year of service up to 30 years, after which we earned 2% for each additional year. Where the teachers pension plan is much more generous than the federal plan is in the area of health benefits.
However, where the misconception on teachers salaries comes into play is in areas outside the greater NY Metro area. Teachers in one particular district upstate receive an annual salary of 75K per year and under the contract provisions it takes a teacher 40 years to reach top grade. Moreover, this particular contract does not provide for Step and Lane increases. A lane increase is granted when a teacher receives a certain number of graduate or in-service work credits. When I ran for School Board several years ago, I inquired about the Step and Lane process and was informed that this practice was primarily unique to the NY Metro Area.
The police and firefighters have the option of padding their retirement through working additional hours in their last few working years and headline articles usually cite the officer who is earning 100K per year in pension benefits.
NY has taken some steps to curtail this practice, such as limiting the number of hours a police officer can work in each succeeding year by 10%. However, a simple formula will tell you that all an officer has to do is begin their retirement planning after about 14 years of service.
In the federal sector pensions are based on base wages only, therefore to secure a significant pension annuity one had to seek promotions to add to their basic annuity.
However, my basic point, which I admittedly took some time to get to, is that teachers, police and firefighters are not the only public employees. I know several people who work for the State Social Services and most of these employees receive compensation at much lower levels than their private counterparts. In fact one of my former co-workers had multiple mental health and addiction certifications and he left the State to work for the Federal government as an EAP specialist, because in this area the federal government provided a greater salary and according to him his position at the federal government was accorded greater respect than a similar position at the State level.
I realize this post was verbose, somewhat off topic, and even included arguments as to why I should not oppose the Triborough Amendment. But my opposition to Triborough is based more on the fact that our legislators at the State and local levels were always willing to provide concessions to the politically powerful labor unions where the true cost was passed along to future taxpayers. After the fiscal crisis of the 70’s the State implemented the Tier III pension plan for teachers. Under Tier III, a teachers pension was reduced by 50% of their social security annuity for the period of time that the teacher contributed to social security as a public employee. Tier IV eliminated this provision and teachers hired under Tier III could opt for the more favorable terms of Tier IV.
I also disagree about the effect a repeal of Triborough would have on the current labor force; I doubt there will be a spate of wildcat strikes but we will see more instances of labor actions such as the Blue Flu.
I apologize for the lengthy and somewhat verbose post.
Comment by Jim Kirk — June 26, 2012 @ 2:03 pm
I can’t disagree with you on some of your statements: downstate teachers, firefighters and police tend to skew averages and present outliers that can be used to point to “statewide” abuses which are, for lack of a better word, disingenuous and politically motivated.
Personally, I see that as home rule: if the taxpayers and voters of Hicksville or whatever town down there want to pay their teachers, firefighters and police offices $150k a year or some other ridiculous amount, have at it. But don’t ask for help from the rest of us in the form of overly large amounts of state aid - pay it yourself. Me - I worry what my town and county pay their employees, and if it seems out of whack, I might complain. However, being upstate, what I see is not out-of-whack IMO in my town and county.
However, your comments on Triborough still seem to be based on political boogiemen. While I constantly read about all of these mythical items that politicians “give away” to powerful unions, where are they really? About the only positive change I have seen during my entire career was the removal of a requirement to pay in toward pensions after 10 years on the job, and that was done not because the unions requested it, but because the pension trust fund was “overfunded” and there was no other way to get money out of it, since the state and localities were already paying in near 0% ECRs for years. Other than that, I’ve seen none of these mythical “giveaways”. And let’s say for arguments sake there are “political giveaways”: How does the existence of Triborough or repeal of Triborough affect that? Triborough going away suddenly means that the mythical “giveaways” won’t happen anymore? Seems…unlikely.
Overtime padding was always an issue for public safety officials, and TBQH, I’m glad the issue was resolved. It has been practically impossible for anyone OTHER than public safety officials to pad pensions for a long, long time as it was. However, no one had the courage to single them cops and firefighters out on it, because their unions are far more cohesive than others, and because of the nature of their jobs, they have an easier time creating ads that attack changes aimed at them, because it is far easier to convince the public that their safety might be impaired if you cut back on public safety officials than it to convince them they might lose something if they cut the faceless clerk at the local DMV, even though the faceless clerk costs far less.
The problem with public employee compensation is this: It’s not “one size fits all”. However, those that are always arguing to reduce it make “one size fits all” arguments. There are cases where compensation is egregiously large. There are other cases where it is a pittance. However, the egregious outliers are just that - outliers. Not the norm. In studies that control for job, education and experience, it’s shown again and again that generally, it pays less to work for the public sector, benefits included. I’m well aware of this, as when my own salary is compared to someone doing the exact same job I do now in this area with the same experience and education on a popular salary engine, I’m in the 10th percentile. When I reach top of grade, I still won’t crack the 50th percentile. But apparently, I’m overpaid depending on who you ask. And TBQH, I’m tired of hearing such nonsense. I chose to serve, and do so proudly. However, I’m tired of the disrespect and outright lies, as are most other professional staff I know.
Comment by Darth Stateworker — June 26, 2012 @ 6:34 pm