A central provision of New York state law — its prohibition on public-employee strikes — is at risk of breaking into pieces, as Gov. Hochul frantically tries to tape the shards back together.
Corrections officers at a pair of upstate prisons refused to enter for their scheduled shifts Monday morning, following a violent uprising by inmates at one of the facilities a week earlier.
By Tuesday, COs at up to 20 other state prisons had also walked off the job, according to reports.
Strikes have never been allowed in New York’s public sector (outside of commuter rails subject to federal law). They are prohibited by the 1967 Public Employees’ Fair Employment Act, commonly known as the Taylor Law, which modified older prohibitions.
Hochul waited more than 24 hours before speaking out about the strike (her initial response was to direct journalists to press officers at the Department of Corrections and Community Supervision).
On Tuesday afternoon, she said she will deploy the National Guard if COs aren’t back on the job by Wednesday, and will “take the appropriate disciplinary action as necessary.”
But serious damage to the deterrent value of the strike ban has already been done.
The Taylor Law was written with the expectation that the state’s top executives would enforce it immediately and completely. Hochul hasn’t.
The union representing the COs, the New York State Correctional Officers and Police Benevolent Association, has had a tense relationship with the Hochul administration over a lengthy list of issues, including staffing levels, safety, potential prison closures and a 2021 law signed by former Gov. Andrew Cuomo that restricted COs’ ability to put inmates in solitary confinement.
Union officials said they were “keenly aware” of the strikes and that they were “not in any way sanctioned by NYSCOPBA.”
“Staff chose to not enter for their work shifts as a result of their discontentment with current working conditions,” the union contended in a statement.
Historically, state officials have thrown the book at unions that allow strikes, even wildcat actions — and have done so quickly.
The state Public Employment Relations Board, which oversees the Taylor Law and has enforced its strike ban for almost 60 years, held the Buffalo Teachers Federation responsible for a 2018 sick-out in which at least 16 teachers claimed illness after a student was attacked outside the building.
The teachers’ pay was docked, and the union lost its ability to take dues from any employee paychecks for two months. The union appealed, but an appellate panel sided unanimously with PERB.
PERB’s firm response to the Buffalo wildcat action likely played a role in staving off a planned strike by Rochester teachers in March 2020, as well as other actions that were expected as schools reopened from the coronavirus lockdown later that year.
New York state extends enormous privileges to public employee unions. Government payroll offices deduct and remit dues on their behalf at no expense.
The state’s “exclusive representation” regime means individual employees can’t modify the terms and conditions of their own employment without going through the union. Top union officials are often released from their government jobs, and unions get their own offices in government buildings.
New employees are forced to sit for union pressure sessions and can be contacted at home if they don’t sign up to pay dues.
All these benefits are predicated on the assumption that government services won’t be interrupted by public-employee strikes.
In a prison setting, the safety of both inmates and COs is at increasing risk the longer the strikes go on.
The Taylor Law gives unions a range of legal remedies for complaints about working conditions that in the private sector may precipitate a strike, but NYSCOPBA doesn’t appear to have sought them.
More important, under state law it’s up to a public employer’s chief executive officer — in this case, Gov. Hochul — to notify PERB of an illegal strike, which then has the task of determining the union’s culpability.
The law also requires the governor to notify the chief fiscal officer, state Comptroller Tom DiNapoli, so he may deduct two days’ worth of pay for each day of the strike.
Meanwhile, the Taylor Law requires Hochul to direct the state’s chief legal officer, Attorney General Letitia James, to file in state Supreme Court for an injunction against the strikers.
Hochul said Tuesday she’s directed her counsel to “work with” James’ office — but she’s sending mixed messages about how she plans to hold people accountable for a situation that has put the safety of COs and inmates alike in avoidable danger.
This is shaping up to be New York’s biggest public-employee strike since 2005, when city transit workers walked off the job and temporarily crippled the city’s economy.
State officials back then dropped the hammer, fining the union and taking away its deduction privileges.
Then-Attorney General Eliot Spitzer carried out his duties under the Taylor Law, even as he campaigned for governor.
If state or local officials get into the habit of pretending a strike isn’t happening, the Taylor Law’s prohibitions will be meaningless.
That will invite more sickouts and other wildcat actions, jeopardizing core government services.
Hochul and James, in their complaints about President Trump, have repeatedly expressed concern about his supposed threats to the rule of law.
New Yorkers are counting on them to follow through on their lawful responsibilities closer to home.
Ken Girardin is research director at the Empire Center for Public Policy.
