The Motive Power in Public Sector Collective Bargaining

In the private sector, George Taylor referred to the strike as providing the “motive power” in collective bargaining. A major reason behind the enactment of public employee collective bargaining laws is to reduce the interruption of public services from job actions. This was the case with the enactment of New York’s Taylor Law.This paper, written for a conference commemorating the 50th anniversary of the Taylor Law and published in a special issue of the Hofstra Labor and Employment Law Journal focused on the Taylor Law, examines what, in the absence of a right to strike, provides the motive power for collective bargaining under the Taylor Law. It focuses on the Triborough rule as codified by the New York legislature and interpreted by NYPERB and the New York courts, coupled with severe strike penalties and a heavy dose of mediation by PERB. It examines two aspects of the Triborough rule that are unique to New York: the rule applies to permissive subject of bargaining and the rule displaces to a significant extent the statutory legislative impasse resolution provision.The paper explores alternative models adopted in other states, including three, Illinois, Ohio, and Pennsylvania, which recognize a right to strike for most public employees, but do so in significantly different ways. It then examines Florida which, like New York, has severe strike penalties but aims those penalties at unions rather than employees, and allows for employer unilateral implementation following exhaustion of impasse procedures and Michigan which went from a de facto dependence on strikes which, although technically illegal were very difficult to enjoin, to severe strike penalties including a one-for-one employee fine and a significantly reduced scope of bargaining, to significant limitations on an employer’s duty to maintain the status quo during negotiations and exhaustion of impasse procedures and a prohibition on applying improvements in compensation retroactively. The paper analyzes the policy tradeoffs lawmakers should consider when choosing from among the models