Preparing for Janus 5: Why NYSUT Matters

In our last post, we told you about the Empire Center for Public Policy (ECPP) and its role as a right-to-work beachhead for the network of right-wing organizations behind the Janus case, and we showed you why we need an organization as well-funded as NYSUT on our side. In this post, we want to dig a little deeper into some of the work NYSUT has done for us over the years, much of it funded by members’ voluntary contributions to VOTE-COPE, the organization’s political action arm. This work includes:

• Protecting public pensions against the kinds of incursions that have recently motivated teachers in Kentucky to take action;
• Eliminating employees’ required 3% contribution to SUNY optional retirement plans after 10 years on the job;
• Stopping performance based funding from taking effect on SUNY campuses.

NYSUT has also been instrumental in fighting to preserve tenure for our K–12 colleagues, in opposing unfair teacher evaluations, high-stakes standardized testing, teacher-accountability schemes, and the privatization of education through charter schools.

It’s easy, and even tempting, to think of these issues as separate and apart from the ones we face in higher education, but in fact they are not. The arguments put forward against tenure in public schools are not so different from the ones used to question tenure at the college level; and while the pressures towards standardization, accountability, and privatization might take different forms in higher ed than they do in K–12, the socioeconomic ideologies driving those pressures are the same. In addition, the students moving through the public school system eventually become our students, and so we have a vested interest in making sure those students receive the kind of public education that will not only prepare them for college level work, but will also instill in them the values of engaged citizenry that it is part of our job to deepen and grow.

There are many ways, in other words, that we can make common cause with our K–12 colleagues, even though our different contracts, the very different policies governing our jobs, and the differences between our student bodies might make it seem otherwise. Indeed, one important function NYSUT serves is as a forum where those connections can be made. In this post, however, we want to focus on something much more concrete that we share with our K–12 colleagues, and, in fact, with all public sector unions in the state; something that NYSUT is largely responsible for instituting and defending and that right-to-work advocates like the ECPP have put squarely in their crosshairs: the Triborough Amendment to the Taylor Law.

As we explained in our first Preparing-for-Janus post, the Taylor Law, passed in 1967, represented a compromise between New York State and its public employees. Those employees accepted a legal prohibition against striking in return for the right to unionization and collective bargaining. The goal of this compromise was to secure public employees’ right to organize and bargain in their own self-interest, while–in the language of the Public Employees Fair Employment Act–“protect[ing] the public by assuring, at all times, the orderly and uninterrupted operations and functions of government.” No one wanted a repeat of the chaos that ensued when 35,000 members of the Transit Workers Union went on strike for twelve days, starting on New Year’s Day in 1966.

While the Taylor Law required state government to recognize public sector unions and to bargain with them, however, it said nothing about how either side should handle the situation once a collective bargaining agreement expired. To put that another way, under the Taylor Law, if a contract expired before a new one had been negotiated, then not only was everything in that contract up for renegotiation; nothing prevented the employer from unilaterally changing work rules, salaries, or any other terms of employment.[1] More to the point, without the last resort option of striking–or, to be more precise, unless its members were willing to break the law and suffer the consequences of striking, the union was powerless to do anything in response.

To address this imbalance, the Public Employee Relations Board (PERB) ruled in its 1972 Bridge & Tunnel Authority decision that, just as public employees were prohibited from striking, public employers were prohibited from changing terms and conditions of employment while a new contract was being negotiated, even if the old contract had already expired. This “Triborough Doctrine,” as it came to be known, protected what are called “mandatory subjects of bargaining,” such as salary and hours. Once the old contract expired, however, employers were still free to alter “permissive subjects of bargaining,” including such things as retiree benefits, class size, and staffing levels. In addition, settlements reached through binding arbitration also lapsed when a contract expired, which meant the employer could diminish or discontinue the benefits won through such settlements, and the union was still powerless to strike.

In response, NYSUT, along with other public sector unions, lobbied for and, in 1982, won passage of the Triborough Amendment, which makes it an improper labor practice for a public employer to alter anything in an expired contract while a new contract is being negotiated. Moreover, with the exception of those items explicitly intended by both parties “to sunset,” to end, everything in that expired contract remains in force until the terms of a new contract are negotiated. Things that sunset in our contract, for example, include:

• Wages (section 23),
• Academic Senate reassigned time (section 20–5),
• The number of available sabbaticals in each year of the contract (section 28–2),
• The number of lines available during the term of the contract for promotion to Associate and Full Professor (section 58–1).

Everything else: grievances; shared governance, which includes the Academic Senate and both the Sabbatical and Promotion and Tenure committees; health insurance benefits (with some caveats in the case of a prolonged negotiations impasse)–everything else remains in place until a new contract is negotiated. This makes the Triborough Amendment very inconvenient for those who would like to see public-sector unions weakened, if not eliminated, which is why the Empire Center for Public Policy (ECPP) has made attacking the Triborough Amendment central to its union-busting agenda. They understand very well what we have to lose–what they could take away from us–if the Triborough Amendment were to be revised or repealed. (Those of us who were around when our last contract was negotiated will recall how reassuring it was to know that the Triborough Amendment was in place.)

EPCC presents its argument for repeal in a report called “Triborough Trouble” (a PDF is here), where it singles out NYSUT as the public employee union responsible–cynically in ECPP’s telling–for spearheading the lobbying campaign that got the Triborough Amendment passed:

Why was the Triborough change made? Public employee unions, in a lobbying campaign spearheaded by the largest statewide teachers’ union, New York State United Teachers (NYSUT), asserted that the Triborough Doctrine’s status quo guarantee wasn’t strong enough. The union-backed amendment won bi-partisan support from members of the state Senate and Assembly, who filed memoranda repeating the union’s arguments for passage. But in a statewide election year, the New York State School Boards Association (NYSSBA) saw another motive for the Legislature’s action. “Rather than reflecting any merit in the bill,” NYSSBA wrote to Governor Hugh L. Carey, “the Legislature’s approval was manifestly its way of appeasing public employee unions….(3)

The report is worth reading in its entirety, if only to gain insight into our opposition’s thinking, something we will go more deeply into in future posts. What we want to leave you with here is, first, a clear understanding that–through the Triborough Amendment, the recent changes to the Taylor Law, and any number of other legal actions and/or policy agreements–we owe much of the job security we now enjoy to the political work that NYSUT does on our behalf; and, second, a sense that NYSUT’s work is how we show our strength as part of a labor movement, a force to be reckoned with no less seriously than the teachers who have recently been taking action and winning in some of the reddest states in the nation.

We said it in our last post, and we’ll say it again here: As a dues-paying NYSUT member, the NCCFT contributes its fair share of what it costs for NYSUT to do this work on our behalf, work that is crucial to the health and vitality of organized labor in New York State, and to our survival as a small union local.