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The Law That Saved New York Commuters By: Carl F. Horowitz
FrontPageMagazine.com | Wednesday, December 28, 2005


It lasted just 60 hours – three working days, actually. But to New York City commuters who suddenly had to walk, pedal, roller-skate, take a cab, or carpool, the recently-concluded transit workers’ strike must have felt like 60 days. The executive board of Local 100 of the Transport Workers Union of America (TWU), knowing this time they lacked support from national headquarters, wisely voted to end the strike by a 36-5 margin.

Contract talks have resumed; trains and buses are running again; and shoppers and merchants alike managed to get through the Christmas shopping season with a sigh of relief. But whatever settlement emerges from the talks, it’s clear that Local 100 President Roger Toussaint overplayed his hand. And the prime reason is, according to all sources, that he and his local’s 33,700 rank-and-file members broke the law.

 

New York Governor George Pataki and New York City Mayor Michael Bloomberg each had denounced the strikers as lawbreakers. An incensed Bloomberg declared, “You can’t break the law and use that as a negotiating tactic. This is unconscionable.” Just as the strike began, the mayor had obtained an order from State Supreme Court Justice Theodore Jones to impose a $1 million fine on the union for each day of the strike.

 

If the strike’s illegality explains its quick demise, one would do well to understand the law that makes it illegal, and why it is a taxpayers’ safety valve. For the injunction would not likely have happened were it not for New York State’s nearly 40-year-old “Taylor Law,” enacted in the wake of the great transit strike of January 1966. That legislation, which proscribes penalties for striking unions and their individual members, seems unfair on the surface. But considering its historical context, it arguably is the best alternative from among a range of unattractive ones. Moreover, the law’s effectiveness as a brake upon lengthy, paralyzing strikes underscores why public-sector unions, as a matter of necessity, must be treated differently from their counterparts in the private sector.

 

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The Transport Workers Union has roots in a tradition of labor radicalism that is as much Irish as American. The union began in 1934 in the heart of the Depression, after transit companies had announced a 10 percent wage cut. New York City subway workers, like cops and firemen at the time, were heavily Irish. A group of subway workers, all Irish Republican Army veterans and members of the secret society Clan na Gael, met in Stewart’s Cafeteria just off Columbus Circle. They were inspired in particular by the writings of Irish socialist labor leader James Connolly.

 

The leaders needed financial support. They failed to get any from the Ancient Order of Hibernians or the Friendly Sons of St. Patrick. They had better luck with other trade unionists, plus a variety of socialists, including members of the Communist Party. One activist, in particular, Michael J. Quill, rose quickly to the top. A fiery and brilliant orator, Quill, born in 1905 in County Kerry, by age 18 already had fought for Irish independence against the hated British Black and Tans. He’d come to America in the mid-1920s after fleeing Ireland.

 

New York City subway workers had some major issues back then. A typical subway sit-man or cleaner back then worked anywhere from 8.5 to 12 hours a day, seven days a week, and made low wages, with few, if any, benefits. It was low pay for gritty and often dangerous work, a fact compounded by the practice of transit companies hiring undercover agents – “beakies” – to spy on employees. The TWU decided to match their employers (back then subway and bus lines were in private hands) blow for blow. The leaders demanded a repeal of a 10 percent wage cut, the introduction of a 40-hour workweek, and better working conditions.

 

The union was one of the first to realize success with the sit-down strike as a bargaining tool, and by no small coincidence, was an early member of the Congress of Industrial Organizations, whose rapid growth was a direct result of this tactic. The TWU often found itself crossing swords with its American Federation of Labor rival, the Amalgamated Transit Workers. Quill was a progressive leftist, but a politically astute one; after World War II, he broke off relations with U.S. Communists and their leader, William Z. Foster.

 

Quill in the 1950s and early ‘60s was a visible supporter of Mayor Robert F. Wagner Jr., a Democrat and, of course, the son of Senator Robert Wagner Sr., the prime mover behind the National Labor Relations Act of 1935, organized labor’s Magna Carta. He knew that Mayor Wagner, despite protestations that the City cupboard was almost bare, was someone from whom he could extract concessions. A 1963 transit settlement, for example, added $32 million to the municipal budget.

 

The year 1965 was an election year, and Mayor Wagner, having served 12 years in office, decided to step down. The frontrunner and eventually victorious candidate was John V. Lindsay, a left-leaning Republican Congressman whose plurality victory owed largely to the fact that his Democratic opponent, City Comptroller Abe Beame, had much of his party’s Catholic ethnic base siphoned off by Conservative Party candidate William F. Buckley Jr., who got 13.4 percent of the vote.

 

Lindsay repeatedly had vowed during his campaign to return the City to fiscal responsibility, to end City Hall’s “cozy deals” with union and Democratic Party bosses. As transit talks headed toward a January 1, 1966, deadline, with no resolution in sight, the old brinksmanship wasn’t going to work this time. Adding to that was that bred-to-the-bone Irish working-class resentment toward WASP elites, of whom the Yale-educated Lindsay, unlike his predecessors, was visibly a member in good standing. The mother of New York City labor battles was coalescing. Mayor-elect Lindsay and the Metropolitan Transportation Authority of New York (MTA) made an offer near the end of December, but it was completely unacceptable to the TWU.

 

Lindsay’s first day in office, New Year’s Day, was his baptism of fire. Subway and bus workers walked off their jobs, bringing the city to a near standstill. Almost immediately, the City obtained a court injunction to halt the strike. Mike Quill was unimpressed. “An injoonction can’t run a subway,” he said in his thick brogue. Though ailing from a series of heart attacks, Quill had just begun to fight. At one of his many press appearances, in front of TV cameras, Quill tore up the injunction. Negotiations remained at an impasse. A judge issued an order for the arrest of Quill.

 

But the union would not budge. “The courts may have their finest hours, but they’ll not break us. We will not settle for one penny less than our objectives,” Quill declared. The next morning, he walked into the ballroom of the Americana Hotel to meet the press, mediators and union negotiators, and famously announced for the world to hear: “The judge can drop dead in his black robes. I don’t care if I rot in jail. I will not call off the strike.” Subsequently, he and several other union officials were arrested and taken to jail.

 

The TWU held fast, winning the support of other municipal unions in the process. On January 10, some 15,000 picketers, many from other local unions within and outside the TWU, gathered near City Hall. On January 13, the City officials effectively conceded defeat. It granted the Transport Workers Union a wage increase from $3.18 to $4.14 an hour, plus paid holidays, increased contributions toward the worker pensions, and other benefits. The package added up to an estimated $62 million, a sizable sum back then. City officials saw it as a necessary price to pay to bring a crippled city back to normal – New York was still reeling from the electrical blackout of two months earlier. But Mike Quill wouldn’t have much time to savor victory; by the end of the month he would die of a heart attack.

 

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Public officials, understandably, were less than pleased with the strike’s outcome. “I am determined,” declared New York Republican Governor Nelson Rockefeller, “that this should never happen again.” Quickly, he appointed a commission to develop a strategy to head off a similar debacle. Heading the panel was George W. Taylor, professor of industrial relations at the University of Pennsylvania’s Wharton School. Taylor by then had earned the sobriquet, “the father of American arbitration.” Though he’d always maintained teaching was his first love, over the years he’d been heavily in demand as a labor mediator. A strong believer in the equality of parties in collective bargaining, over the course of his distinguished career Taylor helped resolve more than 2,000 labor-management disputes in the automotive, steel, aircraft, apparel, and other industries. He also had served as a labor-issues adviser to five consecutive U.S. presidents – Roosevelt, Truman, Eisenhower, Kennedy, and Johnson.

 

New York State already had an anti-strike law that applied to public employees. Enacted in 1947, the legislation, the Condon-Wadlin Act (passed in the aftermath of a Buffalo teachers’ walkout), mandated the firing of any public employee who went on strike, imposed heavy fines on union officials and members, barred rehired workers from getting raises for three years, and placed those who were hired back on five-year probation. Yet in practice, the law was rarely enforced. Unlike its federal equivalent, the National Labor Relations Act, it provided no real framework for collective bargaining. Though highly punitive on the surface, it rarely was enforced. Indeed, through 1964, the Condon-Wadlin statute was invoked only seven times out of 21 strikes, and even in those instances, a mere combined 18 strikers across the state had lost their jobs. Even when lawmakers reduced the pay-freeze period to six months and the reinstatement probationary period to one year, the law appeared unworkable.

 

The Taylor commission sought to develop a new basis for negotiations, one hopefully that would put public-sector labor and management on a more even keel. Contrary to assertions by labor activists, the State of New York was not promoting an “anti-worker agenda.” In fact, special legislation introduced in 1966 by Gov. Rockefeller (facing his own re-election that year) granted transit workers amnesty from most of the Condon-Wadlin law’s penalties, as the state had done likewise for New York City welfare workers who’d conducted a four-week walkout the previous year.

 

In 1967, the New York State legislature acted on the Taylor panel’s key recommendations, passing the Public Employees Fair Employment Act. The legislation affirmed the right of public employees to engage in collective bargaining, and established a range of procedures for contract mediation, fact-finding, binding arbitration, legislative hearings, and conciliation. A three-person, governor-appointed entity – the Public Employment Relations Board – would oversee disputes. The law over the years would provide a template for similar statutes in other states.

 

Union leaders despised the Taylor Law from the get-go because among its many provisions, it outlawed strikes. Section 210 of the statute, as amended, was clear on that point:

 

No public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike.

 

As for establishing employee motive, Section 210 left no room for doubt either:

 

(A)n employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his duties in his normal manner without permission, on the date or dates when a strike occurs, shall be presumed to have engaged in such strike on such dates or dates.

 

Everyone, it seemed, wanted the new law, but nobody, even Republicans at this point, wanted their name on it. Who wanted to be known as an enemy of working people? Hence, the law became known, by default, as “the Taylor Law.” Professor George Taylor, who died in 1972, recalled: “This is one law where the legislators didn’t fight to have their name on it.”

 

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Increasingly militant public-employee union officials would test the waters. In their eyes, the Taylor Law was an abomination, and Mayor Lindsay was a patsy. Surprise, surprise – there followed a flurry of strikes, in particular by teachers, police officers and sanitation workers. In the case of the sanitation strike, local President John DeLury went to jail. The legislature, as an emergency measure, amended the Taylor Law in 1969 to penalize each striking worker with a loss of two days’ pay for each day they were absent.

 

In the face of this labor turmoil, bus and subway operations could no longer be counted on to deliver quality service, the result of years of increased rider usage, deferred maintenance, and more recently, vandalism and violent crime. Derailments and accidents were becoming far more frequent. The city’s rapidly growing AFDC welfare underclass, egged on by a heightened sense of racial grievance, added to the fiscal nightmare. By the spring of 1975 the New York City found the borrowing window closed. City officials, led by Abe Beame as mayor, had to seethe as their city was placed into state receivership by way of an agency known as Municipal Assistance Corporation (“Big Mac”).

 

The TWU, under Mike Quill’s successor, Matthew Guinan, continued to push the envelope in negotiations. With a contract due to expire on March 31, 1978, Local 100 demanded (among other things) a 20 to 25 percent pay hike, two additional paid holidays, free public transportation for workers’ spouses, the payment of all unused sick days at retirement, increased lunch money allowances, and increases in the number of paid bereavement days. The city countered with proposals that would save about $120 million over two years, such as an end to the ban on the hiring of part-time workers, reductions in vacation allowances, and a limitation on pensions to 120 percent of the final year’s base pay. Guinan, outraged, thundered back, “We’re not going to negotiate away things we achieved over the last 40 years.” In the end, the union won out, getting an effective two-year pay hike of about 9 to 10 percent. “We gave back absolutely nothing,” the union proudly wrote in a letter to members.

 

In the early spring of 1980, yet another contract was about to expire. As a means of financing infrastructure improvements, the Metropolitan Transportation Authority called for a reduction in weekend pay (relative to regular pay), a combination of job titles, and an end to Accumulated Vacation on Allowance. It didn’t have much choice in the matter. New MTA Chairman Richard Ravitch had inherited a projected $200 million deficit, and despite recent state voter approval of a massive bond issue to replace and rebuild trains, he also inherited some of the noisiest and most dangerous subway cars anywhere in the urban world. But TWU International President John Lawe, also the head of Local 100, didn’t want to hear about any givebacks from his union. Joined by other unions, transit workers on March 27 conducted a massive march on City Hall. For the Irish-born Lawe and his union, it seemed like the Spirit of ’66 all over again.

 

On April 1, Local 100 went on strike, paralyzing the city as it had done more than 14 years earlier. First-term Mayor Ed Koch, though initially committed to non-involvement in the strike, found himself drawn in anyway, buoying the spirits of sneaker-bound commuters walking over the Brooklyn Bridge with his patented “How’m I doin’?” line. But the union had even more troops on its side than the last time: the New York Central Labor Council and the regional Teamsters Council each assisted in negotiations. In the end, after an 11-day strike, the Transport Workers won a two-year, 17 percent pay raise. The strike cost the New York City economy an estimated $1.1 billion.

 

The strike might well have lasted longer were it not for the Taylor Law kicking in; the union was fined $1.5 million, while workers were fined a combined $18 million. The TWU was determined more than ever to persuade the State to repeal the Taylor Law. They didn’t succeed, but they did convince the state legislature in 1982 to pass a measure triggering an arbitration process for any transit workers’ contract under dispute. A year later, with contract negotiations stalemated, an arbitration panel determined that a three-year, 21.5 percent pay hike would be in order.

 

This pattern – whatever the Transport Workers Union wants, the Transport Workers Union gets, at least within the Taylor Law framework – has continued virtually uninterrupted since. Even where strikes are threatened but not carried out, as in 1998 and again in 2002, union demands have led to extensive MTA concessions. As a result, transit workers in New York haven’t done too badly. Train operators, station agents and cleaners currently have annual base salaries (not including bonuses or overtime) in the range of $47,000 to $55,000. That’s almost as good as the $59,588 base salary of a New York City cop with 5.5 years on the job. And once the WTU negotiations are over, count on that range rising again.

 

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For current TWU Local 100 President Roger Toussaint, radicalism runs deep, as it had for his hero, Mike Quill. Despite the racial difference, the parallels are many. Like Quill, he was born into poverty in a British-held land – in this case, Trinidad. As a teenager, in the early ‘70s, he’d taken part in a widespread revolt against the island’s colonial government. Like Quill, Toussaint had to leave his country penniless. Like Quill, he chose New York City as his point of arrival. Like Quill, he found work in the subways, starting off as a cleaner and advancing to the rank of track worker. And like Quill, he discovered the power of union activism, throwing himself into it full-time.

 

Toussaint reached the pinnacle of power once the ballots of the local’s 2000 elections were counted. His slate, “New Directions,” ousted the old leadership on a vow to restore the union’s (alleged) lost strength. The days of Irish ethnic dominance among rank and file long gone, union membership now consisted mainly of American- and Caribbean-born blacks, and Hispanics. Not surprisingly, public support for the latest strike broke down sharply along racial lines. A Marist College poll taken during the strike revealed that only 23 percent of white New Yorkers favored the walkout, in contrast to fully 63 percent of the city’s blacks. (Hispanics were evenly divided.)

 

It’s not as if Toussaint has forgotten where the TWU’s roots lie. Back in October 2002 he traveled to Ireland to address a Transport Workers conference. Paying his respects at a memorial for Mike Quill in Kilgarvan, County Kerry, he also met with Sinn Fein leader Gerry Adams, as well as Bob Crow, the general secretary for Britain’s National Union of Rail, Maritime and Transport Workers (RMT), which represents some 70,000 workers, including those in London Underground subways. Toussaint dropped more than a few hints about where he wanted to take his union:

 

We want to go back to the militant legacies of trade unionism in the context of modern trade unionism, which fights on a very sophisticated battlefield, where winning the hearts and minds of the people is crucial. The union needs to become a legislative machine, as well as to have support on the streets. You need a sophisticated PR machine, because you cannot ignore attempts to confuse people and isolate your fight. The union becomes part of the glue that holds families together in hard times of constant and unrelenting battle, where the bosses still think they are running a plantation.

 

The latest New York City strike must be contagious. London’s RMT, backed by the Socialist Alliance, as of this writing is threatening a New Year’s Eve Underground Tubeway walkout – even the city’s radical mayor, “Red Ken” Livingstone, has condemned the action as increasing the likelihood of drunk-driving accidents.

 

As for current contract talks, a settlement reportedly is likely imminent. The MTA has shown a willingness to drop its demand that all future workers contribute 6 percent of their wages toward pensions (compared to the 2 percent figure for current workers) provided the union drops certain health-care coverage demands. As pension contributions were the main sticking point with the TWU, that’s a good sign – over the short run.

 

Over the long run, pensions and other benefits remain a meltdown in the works. New York and other major U.S. cities are facing a massive benefit shortfall. The city’s health care commitments to teachers, police, firefighters, maintenance men and other city workers, many of whom now retire with full benefits at age 50, are set to rise far higher. Currently, the MTA spends about $380 million a year for health care alone on current and retired unionized employees. Next year the City of New York will switch from its current “pay-as-you-go” accounting system (which greatly understates taxpayer obligations because it doesn’t include benefits payable in the future, even if accrued in the current year) to a more realistic “accrual” system.

 

The Taylor Law cannot possibly address this problem. But at least it has kept unions at the bargaining table rather than set them loose to plunge a city into chaos. “People perceived that the transit workers suffered greatly in that (1980) strike as a result of the Taylor Law penalties,” said Joshua Freeman, a pro-union labor historian and author of the book, Working-Class New York: Life and Labor Since World War II. “Those penalties were a real downer and made people to this day think very carefully about taking job actions.”

 

“Think very carefully” – well, that ought to be the point. The union’s strike this time around, is going to cost it at least $3 million in fines, not including the fines assessed upon individual members. Local 100 at present has about $3 million in assets, notes the group’s lawyer, Arthur Schwartz. You don’t suppose there’s a coincidence here, do you?

 

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The latest exercise in citywide trauma has taught us, once again, the uniqueness of public-employees unions, especially in New York City. Public-sector unions have an interest in an enlarged public sector. A strike by one public union, if successful, benefits other public unions. Such unions are political entities, and they build their capital by convincing public officials of the need to place more services under public control. As National Bureau of Economic Research labor economist Richard Freeman has stated, “Public sector unions can be viewed as using their political power to raise demand for public services, as well as using their bargaining power to fight for higher wages.” (Emphasis added.)

 

More so than steel, airline, automotive, and other manufacturers, governments are vulnerable to union power. This is especially so in New York City, whose high population density practically necessitates a far greater reliance upon subways and buses than elsewhere. The very knowledge of this dependency gives the Transport Workers Union enormous leverage in contract negotiations. The Taylor Law is a partial corrective to this power. It gives the State of New York the same kind of authority to preempt strikes that Congress gave federal agencies in 1955 (the latter upheld by the Supreme Court in 1971). The issue, then, is one of will rather than way. 

Public employees’ unions are fully aware strikes are illegal, and that by the very public nature of their work, cannot operate under the same rules as private-sector unions. Privatization of public services would provide a partial way out of this dilemma, though not without a sudden ratcheting upward of strikes and/or a major curtailment of service. In August 1981, President Reagan used the authority of his office to break what was clearly an illegal strike by the nation’s air traffic controllers. City officials in New York, understandably reluctant to play the man in the black hat, should be commended for exercising similar authority. To have done otherwise would have consigned the City of New York to a major disaster, not just a major inconvenience.

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Carl F. Horowitz is director of the Organized Labor Accountability Project at the National Legal and Policy Center, a Falls Church, Va.-based nonprofit organization that promotes ethics and accountability in American life. He has a Ph.D. in urban planning and policy development, and has written widely on immigration, labor, housing, welfare and other domestic policy issues.


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