APPENDIX
“History of The New York Experience”
(With Appreciation to Former Colleague Robert Reilly, Esq.)
A. New York State's Lag Payroll Legislation1
The most important early Contract Clause litigation was spawned by New York State's "lag
payroll" legislation. 2 In every forum in which the State defended the lag, the State lost.3 These
fora include arbitration hearings, the United States Court of Appeals, and the New York State
Court of Appeals.4 Every court which addressed the issue found the New York State lag payroll
legislation unconstitutional.5 As if summarizing the judicial mood, Circuit Judge Pratt queried:
"If a state government could so cavalierly disregard the obligations of its own contracts, of what
value would its promises ever be?"6
The lag payroll consisted of various, similarly worded acts of legislation which deferred two
weeks’ compensation of each affected employee from the year the legislation took affect until
the employee's termination of service with the state.7 The legislation gave the Comptroller
authority to develop procedures to implement the lag. (Id.) Pursuant to his delegated authority,
the Comptroller deferred one day's pay of each employee in each of ten consecutive biweekly
pay periods during the year.8 As a result, each employee was to be paid for fifty rather than
fifty-two weeks of work. (Id.)
For those unfamiliar with the history of New York State's lag payroll, some background
information will be helpful. In 1982, during negotiations for the 1982-1985 contract period, the
state proposed a lag payroll similar to the one just described.9 At that time, the State and the
unions representing its employees were able to agree to implement a lag payroll as part of their
collective bargaining agreements.10 But in 1990 and again in 1991, the State acted unilaterally
and imposed lag payrolls upon its employees via legislation. State Finance Law §200(2-a(a)), L.
1990, ch. 947, §12, was called the "Executive Lag" because it affected Executive branch
employees. The State Finance Law was amended by L. 1900, ch. 190, §375, which was called
the first "Judicial Lag" because it was one of two acts of the legislature to unilaterally impose a
lag payroll on employees of the Judicial branch. And State Finance Law §200 (2-b), L. 1991,
chs. 166 §382, and 171, §1 was called the second "Judicial Lag". Those in the fray referred to
these enactments as the Executive Lag, first Judicial Lag, and second Judicial Lag. Together
they were known as “the Lag Payroll” and were challenged in “the Lag Payroll litigation.”
The lag payroll litigation clarified three bodies of law: the Contract Clause of the United States
Constitution, the implementation clause of New York State's Taylor Law (Civil Service Law
§204-a(1)), and the Triborough Amendment to the Taylor Law (Civil Service Law §209a(1)(e)).11 Each issue was resolved favorably to public sector labor unions in New York State.
The lag payroll was found unconstitutional under the Contract Clause.12 Under the
implementation clause of the Taylor Law, monetary obligations under multi-year collective
bargaining agreements were found to be binding on the State starting when ratified by the State
and found to not be dependent on the necessary annual appropriations.13 And the terms and
conditions of expired collective bargaining agreements, which in New York State are continued
in effect pending negotiations of a successor agreement under the Triborough Amendment of the
Taylor Law, were found to continue as a matter of contractual right (as opposed to statutory
right) and therefore were protected by the Contracts Clause.14
The first New York State Court decision considering the lag payroll was handed down in Quirk
v. Regan.15 In Quirk the New York State Court Officers Association sued the Comptroller and
the Unified Court System, seeking declaratory and injunctive relief from the first Judicial Lag.
(Id. at 300) Justice Connor, after discussing various constitutional and statutory theories of
relief, held the lag legislation unconstitutional. (Id. at 306) Significantly, he distinguished the
case New York State attempted to rely on throughout the lag payroll litigation: Subway-Surface
Ass'n v. New York City Transit Authority.16 The State was ordered to repay the petitioners in
Quirk, their lagged pay.17
On June 21, 1991, Judge Prior, also of the Albany County Supreme Court, handed down his
decision in McDermott v. Unified Court System, a pending challenge similar to the Quirk
litigation.18 In McDermott, plaintiff union CSEA sought summary judgment arguing that Quirk
collaterally estopped the Unified Court System from defending the Judicial Branch Lag. (Id.)
Judge Prior agreed with CSEA and directed the State to compensate all judicial employees and
CSEA for any losses sustained as a result of the lag. (Id.) The court noted that there had been a
prior lag payroll in 1983, but that it had been implemented as part of a collective bargaining
agreement. (Id.) The lag payroll challenged in both Quirk and McDermott had not been
collectively bargained.19
Quirk and McDermott had been brought in New York State court. Earlier, the Judicial Lag had
been challenged in federal court starting with the Southern District of New York.20 Although the
District Court granted the State's motion for summary judgment, the State's victory there was
short lived. (Id.) The decision was soon appealed.
On July 31, 1991, the United States Court of Appeals for the Second Circuit decided against the
State in Ass'n of Surrogates I.21 Before the Second Circuit could hand down its decision, it had
to resolve the conflict between the New York State trial courts and the United States District
Court.53 Since the conflict resulted from an apparent difference in interpretation of New York
State law, the Second Circuit certified a question to the New York State Court of Appeals.22 The
certified question was “whether Civil Service Law §204-a(1) makes ‘the compensation sections
of collective bargaining agreements to which it applies conditional upon or subject to annual
legislative appropriations.’” (Id.) Civil Service Law §204-a(l), (The Taylor Law), provides that
public sector collective bargaining agreements in New York State must contain “notice that any
provision requiring legislative action to permit its implementation by amendment of law or by
providing the additional funds therefore, shall not become effective until the appropriate
legislative body has given approval.”23 Essentially the New York court had to decide whether
legislative ratification of a multi-year collective bargaining agreement was enough to bind the
State for the length of the collective bargaining agreement or whether ratification coupled with
an annual appropriation was required before the State was bound in any given year during the
term of the collective bargaining agreement.24 The court concluded that either interpretation of
§204-a(1) was plausible and the legislative history of §204-a(l) was inconclusive.25 Therefore
the court found it necessary to focus on the Taylor Law as a whole as well as its history.26 The
2
court found that “the Taylor Law overwhelmingly favors multi-year collective bargaining
agreements” and “multi-year contracts further the purposes of the Taylor Law.” (Id.)
Furthermore, the court noted that under the Triborough Amendment “public employers are
forbidden to refuse to continue the terms of an expired agreement while a new one is being
negotiated (Civil Service Law §209-a(l)(e)).” (Id.) This is the quid pro quo for prohibiting
public employees from striking.27 After its extensive analysis, the court concluded that
legislative ratification of a collective bargaining agreement alone was sufficient to bind the
State.28
With the answer of the New York State Court of Appeals in hand, the Second Circuit found New
York State's lag payroll to violate the Contract Clause of the U.S. Constitution.29 Below, District
Judge Patterson had granted summary judgment for the State defendants.30 However, his
decision was handed down before and in short order stood in conflict with the New York
Supreme Court decision in Quirk.31 It was this conflict which prompted the Second Circuit to
certify a question to the New York Court of Appeals.32 Having the benefit of New York's
answer, Judge Pratt, writing for the Second Circuit, found the District Court's holding - that there
was no contractual impairment - erroneous as a matter of New York State law. (Id. at 771)
The court, relying on United States Trust Co. (431 U.S. 1 (1997)) undertook a searching analysis
to see if the first Judicial Lag was a substantial impairment and whether it was reasonable and
necessary to serve an important public purpose. (Id. at 771-772) In concluding that the
impairment was substantial, the court noted there was a term in each collective bargaining
agreement which “require[d] that bi-weekly salaries be paid on the basis of ten working days.”
(Id.) The court said “[t]his term cannot be dismissed as ‘minimal’ in light of the state's past
history of imposing lag payrolls only by agreement.” (Id.) In concluding the substantial
impairment was not reasonable and necessary, the court noted:
The state could have shifted the seven million dollars [for the expansion of
the court system, its stated purpose,] from another governmental program, or
it could have raised taxes. We recognize that neither alternative would have
been popular among politician-legislators, but that is precisely the reason
that the contracts clause exists - as a ‘constitutional check on state
legislation.’33
The court found the presence of these alternatives sufficient to protect the extant collective
bargaining agreements from legislative impairment. (Id.) In the court's words: “The Contract
Clause, if it is to mean anything, must prohibit New York from dishonoring its existing
contractual obligations when other policy alternatives are available.” (Id. at 774)
The first Judicial Lag Payroll legislation challenged was that enacted by L.1990, ch. 190, §375 in
May 25, 1990 and was to take effect June 1, 1990 and was to impact the payroll during March
1991. During this time period collective bargaining agreements were in effect between the State
and the various unions representing employees in the State Judicial Branch; for instance, the
CSEA Agreement covered the period between April 1, 1988 to March 31, 1991. The first
Judicial Lag was repeatedly rejected by the courts in Quirk, McDermott and Ass'n of
Surrogates.34
3
But not to be deterred and despite the early losses, the State enacted subsequent lag legislation on
June 12, 1991.35 This legislation also victimized employees of the judicial branch and became
known as the second Judicial Lag. In the inevitable court challenges to this second Judicial Lag,
the State tried to distinguish the cases striking down the first Judicial Lag by explaining that the
first lag was enacted during the term of the collective bargaining agreements affected whereas,
the second lag was enacted after the collective bargaining agreements had expired.36
On January 16, 1992, in Ass'n of Surrogates III, the New York State Court of Appeals addressed
the lag payroll directly when a case challenging this second Judicial Lag reached its calendar.37
The Court affirmed an order granting summary judgment against the State. (Id.)
The Court ruled that Civil Service Law §209-a(1)(e) (“Triborough Amendment” to the Taylor
Law) extension of the contractual obligations of the State during negotiations for a successor
agreement was a matter of contract right, not statutory right and therefore the protection of the
Contract Clause covered those extended portions of the contracts.38 This is perhaps the
most important holding of the entire lag payroll litigation. Whereas
statutory rights are subject to repeal by subsequent enactments,
contract rights are entitled to protection of the Contract Clause. The
Court found that ‘[w]hen the contracts were negotiated, the existing
statutes, specifically the continuation of benefits clause [C.S.L. §209a(1)(e)], were incorporated into them and continued as part of the
agreement until new agreements were executed.’39
According to the Court, the Legislature intended to “create private rights of a contractual nature
enforceable against the state.” (Id. quoting United States Trust Co., 431 U.S. at 17) In other
words, legislatures can draft statutes to give contractual rights to parties to collective bargaining
agreements. Having found that the right to a biweekly salary based on ten days’ pay continued
as a contractual right despite the end of the contract term, the Court adopted the reasoning of the
Second Circuit in Ass'n of Surrogates I, which had concluded that the legislative impairment was
substantial and was not reasonable and necessary.40
The Court found that withholding of 10% of an employees expected wages was not insubstantial
to someone “confronted with monthly debt payments and daily expenses for food and the other
necessities of life[;]” nor was it reasonably necessary where other revenue-raising or revenuesaving alternatives were present. (Id.) Significantly the Court distinguished Subway-Surface:
The Subway-Surface case does not require a different result ... The court in
that case dealt with State legislation enacted to meet a declared financial
emergency in New York City. The statute was challenged because it
eliminated a prospective salary increase. Unlike this case where earned
salaries may be deferred for indefinite periods of perhaps 25, 30, or 40
years, until the employee leaves State service, the Financial Emergency
Act considered in Subway-Surface was a temporary measure, adopted after
formal findings of necessity, to avoid the perceived emergency created by
4
New York City's imminent bankruptcy. It postponed a future benefit to
employees for one year only until the emergency was declared over. (Id.
citations omitted)
According to Ass'n of Surrogates III, Subway-Surface has a narrow application requiring the
satisfaction of three elements: temporary measures, formal findings of fact concerning financial
emergency, and the perceived threat of imminent bankruptcy.
As a clean-up measure, in Ass'n of Surrogates III, the Court ruled that the lag was inappropriate
even as applied to employees not represented by a bargaining agent. (Id.)
In McDermott v. Cuomo,41 CSEA and the Public Employees Federation (“PEF”) challenged the
Executive Lag.42 On the basis of the Ass'n of Surrogates cases, a motion for summary judgment
was made “and granted, with that Court finding McDermott indistinguishable from Ass'n of
Surrogates and holding Ass'n of Surrogates to be controlling precedent.” (91-CIV-0057) The
court disagreed with the State's argument that the Executive Lag was, somehow, more reasonable
and necessary than the Judicial Lag because under the Executive Lag more employees were
affected and the financial crisis was deeper. (Id.) The State was enjoined from continuing the lag
and was directed to return the withheld monies.43
The result of all this lag payroll litigation in New York State briefly can be summarized. First,
the Contracts Clause of the United States Constitution is violated when the State unilaterally
forces its employees to loan the State money by deferring contractually agreed upon wages, in
light of other policy alternatives.44 To justify such action as “reasonable and necessary” at least
in New York State, the impairment of the State's own contractual obligations must be temporary,
adopted after formal findings of necessity, and adopted to avoid an imminent threat of
bankruptcy.45 Second, the implementation clause of the Taylor Law (Civil Service Law §204a(l)) is satisfied by legislative ratification of the collective bargaining agreement in issue; it does
not require ratification coupled with an annual appropriation.46 Third, the continuation of the
contractual terms pending negotiations of a successor agreement under the Triborough
Amendment to the Taylor Law (Civil Service Law §209-a(l)(e)) brings along the continued
protection of the Contracts Clause.47
The lag cases, particularly Ass'n of Surrogates III, are instructional to other states' legislators.
Ass'n of Surrogates III emphasizes the finding of the Court in United States Trust Co. that “the
obligation of the contracts included ‘not only the express terms but also the contemporaneous
state law pertaining to [their] interpretation and enforcement.’” (Id. quoting United States Trust
Co., 431 U.S. at 19-20, n.17) Therefore, legislative draftsmanship can extend the scope of
protections afforded to collective bargaining agreements. Legislatures can increase the fora in
which those contractual rights may be defended by writing statutes which create contract
obligations that run with and possibly extend collective bargaining agreements. Contract clause
litigation can be aligned with arbitration to guard collective bargaining agreements.
5
B. The New York City Financial Emergency Act
The lag payroll was New York State's most blatant use of legislative impairment of existing
collective bargaining agreements in the economic slowdown of the late 1980s. The lessons
learned from experience of economic hard times in New York goes back to the mid-1970s. At
that time the New York State Financial Emergency Act for the City of New York created the
Emergency Financial Control Board (“EFCB”) and gave to that Board substantial powers to
supervise and control the City’s financial affairs.48 The Financial Emergency Act required the
development of a three-year financial plan designed to produce a balanced budget by 1978. (Id.)
Section 10 of the Act, entitled “Wage Freeze,” suspended all increases in salaries or wages
unless such increases received approval of the EFCB. (Id.) The Act also stated that “[n]othing
contained in this act shall be construed to impair the right of employees to organize and bargain
collectively.” (Id.) The Act provided, in the alternative, that in place of the one year wage
freeze, duly negotiated wage deferral agreements could be had. (Id.) Indeed such deferral
agreements were negotiated, most notably with the New York City teachers through their union
the United Federation of Teachers, UFT, NYSUT, AFL-CIO. But in November of 1975, the
EFCB imposed a one-year wage freeze (subject to extension) of certain negotiating unit
employees in order to preserve its three year financial plan.49 Subway-Surface Supervisors v.
Transit Authority, raised the issue of how the statutory wage freeze applied to pre-legislation
negotiated increases.50 The Court of Appeals found the wage freeze legislation to apply to prior
negotiated increases as well as increases yet to be negotiated, if any.51 The Court found the wage
freeze legislation reasonable. (Id., 375 N.E.2d at __, 404 N.Y.S.2d at 330) In making its
determination, the Court noted the impairment of the contract - the one year wage freeze - was
prospective in nature only affecting services not yet rendered; as to those services, the
employment contract was still executory. (Id.) Moreover, the wage freeze was a limited
intrusion on contractual rights: it neither terminated the employment relationship nor deprived
individuals of pay for services rendered in the past. (Id.) Thus, the Court found the prospective
impairment of executory aspects of a contract could be tolerated when done by appropriate
legislation addressing a financial crisis. (Id.)
But as mentioned earlier, Subway-Surface has appeared to have been limited to its facts by the
Court of Appeals in Ass'n of Surrogates III. Courts of other states considering Subway-Surface
have distinguished it on the grounds that in Subway-Surface the New York legislature made a
formal finding that the public's health and safety was endangered, which justified exercise of the
State's police power. 52
C. Arbitral Response to New York's Lag Payroll
New York State's lag payroll was also challenged in several grievance arbitrations.53 The first
decision handed down, involving Council 82 AFSCME, was judicially confirmed on January 22,
1992.54 The underlying grievance challenged the lag as a violation of the collective bargaining
agreement covering the Security Services Unit and the Security Supervisors unit. (Id.) As
Arbitrator George Nicolau noted, although the parties previously had negotiated lag payrolls, the
lag at issue before him was implemented unilaterally by the State. (Id. at 4) Arbitrator Nicolau,
after summarizing Ass'n of Surrogates I and II, found the language of the Council 82 collective
bargaining agreements substantially similar to the collective bargaining agreements in Ass'n of
6
Surrogates and “if the agreement had been impaired, i.e., diminished in value, then it has
certainly been modified, altered and breached.” (Id. at 14) The State was ordered to return all
withheld compensation. (Id. at 18)
A similar arbitration involving the PBA (State Troopers) was decided on March 24, 1992, by
Arbitrator Steven Goldsmith.55 The clause at issue said “[i]n the event that funds sufficient to
implement any provision of this agreement are not provided, the parties shall reopen negotiations
solely for the purpose of negotiating a substitute for any such provision.” (Id. at 2) Instead of
negotiating, the State unilaterally implemented a lag payroll. (Id.) Arbitrator Goldsmith found it
“beyond dispute that the legislation decreased employees salaries by one weeks' pay for fiscal
year 1990-91,” despite the deferral of such pay until separation from service. (Id. at 5) For that
reason the State was found to be contractually bound to reopen negotiations with the PBA. (Id. at
7)
On June 22, 1992, Arbitrator Herbert L. Haber ruled in a decision under the PEF contract with
the State that the State violated the agreement when the Governor submitted, the Legislature
passed, and the Governor then signed the Executive Lag legislation.56 Arbitrator Haber directed
repayment plus interest. (Id.) The case is important as the State's argument rested in part on the
dual aspect of the Governor's role, i.e. his role as employer and his sovereign role. (Id.)
Arbitrator Haber acknowledged the distinct roles the legislative and executive branches played
and held them both to have breached the contract. (Id.)
D. Arbitration During New York's 1975 Financial Crisis
And, as with the Contract Clause litigation, arbitral lessons can still be learned from the New
York State's financial crises of the 1970s. Not only New York City but also the City of Yonkers
was in financial crisis at that time and, as with New York City, the State Legislature enacted
emergency legislation for the City of Yonkers.57 This legislation was a factor in Board of
Education City of Yonkers v. Cassidy, where a challenge was made to the refusal by the Board to
pay a 5% salary increase, certain increments, and longevity payments.58 The Board's defense
was the enactment of the Financial Emergency Act for the City of Yonkers in 1975. (Id., 399
N.Y.S.2d at 21) The question arose as to whether the union could go to arbitration on the
Board's failure to pay. (Id.) The Court of Appeals found there was nothing in the Act or the
contract which precluded arbitration and it was up to the arbitrator to fashion a remedy consistent
with the law at the time. (Id., 399 N.Y.S.2d at 29-30)
In Board of Education v. Levittown, the Board of Education was initially granted stays of
arbitration from six grievances stemming from the imposition of furloughs, a 10% abolition in
staff, and a sabbatical moratorium.59 The three-year collective bargaining agreement contained a
job security clause, sabbatical leave provision, salary schedule, work and workload provisions,
class size provisions, and, fortunately, a provision for binding arbitration. (Id., 386 N.Y.S.2d at
441) Although the Board argued that its actions were taken to reduce its deficit and to get its
budget in order and therefore were not subject to arbitration, the court found that despite
financial problems, the Board of Education could not abrogate agreements in these areas in
which it had bargained. (Id.)
7
Another interesting case involving sabbatical leaves arose out of the New York City Board of
Education's efforts with respect to the 1970s financial crisis. In Board of Education v. Ruether,
the Board of Education had canceled all sabbaticals in December of 1975 and recalled teachers
to report to work as of February 1, 1976.60 Initially the United Federation of Teachers (“UFT”)
filed a grievance but when the employer refused to expedite the arbitration, the UFT went to
court to enjoin the cancellation of sabbaticals. (Id., 396 N.Y.S.2d at 42) Between its first
appearance in court and the court decision on its motion for a preliminary injunction, the UFT
demanded arbitration on the underlying grievance. (Id.) Outwitted by its own effort to stop the
cancellation of the arbitrations, the UFT was faced with a court decision which denied its motion
for preliminary injunction, and then an arbitrator's refusal to proceed with the grievance because
of suggested language by the court that, in seeking injunctive relief, the union had waived its
right to go to arbitration. (Id.)
As a result, certain individuals affected by the unilateral sabbatical cancellation grieved and, in
the employer's effort to stay the arbitration of these individual grievances, the court told the
Board of Education it had to arbitrate the question as to whether the abandonment of the
sabbatical leave program violated the contract. (Id.) The court said the issues reached on the
question of injunctive relief did not go to the merits of the alleged contract breach. (Id.) The
eventual case involved the relationship of a by-law retaining in the Chancellor the opportunity
and discretion to cancel sabbaticals and a contract provision which stated sabbaticals would be
granted to any applicant who followed the appropriate regulations. The arbitrator found that the
contract language took precedence over the older and staler by-law language. Had the parties
intended to retain the Chancellor's authority to unilaterally cancel, the contract language should
have so expressed. But perhaps the most important lesson to be learned from Ruether is that you
should stand by your arbitration language; arbitration is generally a friendly forum when you
have firm contract language.
E. New York State Public Employment Relations Board
In 1992, CSEA had five consolidated improper practice charges against the County of Nassau
pending before the New York State Public Employment Relations Board (“PERB”).61 Nassau
County unilaterally instituted a forced furlough program solely against unit employees
represented by CSEA because CSEA had refused to reopen negotiations and defer annual wage
and step increases due under the collective bargaining agreement.62
The furlough was calculated to offset the wage increases. (Id.) The other County unions did not
refuse to negotiate and were not subject to the forced furlough. (Id. at 2) CSEA argued that the
actions by the County of Nassau were retaliatory, discriminatory, and coercive. (Id. at 2) The
Board found that it did not have jurisdiction because the furlough was considered to be a breach
of the collective bargaining agreement.63
An interesting twist on the furlough issue arose in litigation involving the State of New York and
initially CSEA and the Public Employees Federation.64 In 1975 the State had directed a payless
day after Thanksgiving on which individual employees were either to charge to their annual
leave accruals or take the day without pay. (Id., at 450 N.Y.S.2d at 902) At that time the
grievance was lost. (Id.) In the following year, 1976, CSEA made a proposal in negotiations
8
relating to this situation but was not successful in getting an agreement that such payless day
would not be charged to leave time. (Id.) Subsequently, in 1976, 1977, and 1978, the employer
instituted the same directive. (Id.) CSEA filed an improper practice charge alleging a bad faith
unilateral change in terms and conditions of employment. (Id.) The case went up for judicial
review and back to PERB on several occasions concerning the question of whether CSEA had
waived its right to negotiate the issue. (Id.) Finally, the Appellate Division held that the PERB
determination that CSEA had waived the right to negotiate was improper, as there was no clear
explicit, knowing relinquishment of the right to negotiate on the issue. (Id.) Eventually PERB
ordered that the employees be paid for the day and the determination was confirmed.65
Unfortunately, this entire protracted litigation (1978-1989) did not deter the Governor from
talking about a legislated furlough before he settled for the 1990 legislated lag instead.66
1
This note is intended to protect the reader’s sanity. In this section reference will be made to three cases which all
have the same caption: Ass'n of Surrogates v. State of New York. Herein they are distinguished by Roman numeral
as follows: Ass'n of Surrogates I, 940 F.2d 766 (2d Cir. 1991); Ass'n of Surrogates II, 78 N.Y.2d 143, 577, N.E.2d
10, 573 N.Y.S.2d 19 (Ct. App.1991) (Answering question certified from Second Circuit); Ass'n of Surrogates III;
79 N.Y.2d 39, 588 N.E.2d 51, 580 N.Y.S.2d 153 (Ct. App.1992).
2
As is explained infra, the "lag payroll" legislation sought to defer payment of two weeks wages from the year of
the legislative enactment until each employee terminated service with the State.
3
However, the State and CSEA have mutually agreed to a lag payroll in their latest Collective Bargaining
Agreement.
4
See, Council 82 AFSCME, AFL-CIO v. State of New York, OER No.90-01-1217 (1991) (Nicolau); Ass'n of
Surrogates I, F.2d 766; Ass'n of Surrogates III, 79 N.Y.2d 39, 588 N.E. 251, 580 N.Y.S.2d. 153.
5
See, Ass'n of Surrogates III, 79 N.Y.2d 39, 588 N.E.2d 5l, 580 N.Y.S.2d 153 and cases cited therein.
6
Ass'n of Surrogates I, 940 F.2d at 774.
7
See, L. 1990, ch.190, S375.
8
See, Ass'n of Surrogates II, 78 N.Y.2d at 147, 577 N.E.2d 10, 573 N.Y.2d at 20.
9
Ass'n of Surrogates I, 940 F.2d at 769; see, L. 1982, ch. 353 §l.
10
Ass'n of Surrogates I, 940 F.2d at 769.
11
The Taylor Law is the colloquial name for the Public Employees' Fair Employment Act, which is codified at Civil
Service Law §§200-214 (McKinney's 1983 Supp. 1992).
12
Ass'n of Surrogates I, 940 F.2d at 775.
13
Ass'n of Surrogates II, 577 N.E.2d at 16.
14
Ass'n of Surrogates, III, 588 N.E.2d at 54.
15
48 Misc.2d 300, 565 N.Y.S.2d 422 (Albany Co. January 15, 1991).
16
Subway Surface Ass'n v. New York City Transit Authority, 44 N.Y.2 101, 375 N.E.2d 384, 404 N.Y.S.2d 323
(1978) (where a wage freeze which applied to negotiated increases was found to be reasonable and not violative of
the contracts clause) (Discussed infra at page 13); see, i.e., Ass'n of Surrogates III, 588 N.E.2d 51 (for New York
State's reliance).
17
Quirk, 148 Misc.2d 300, 565 N.Y.S.2d 422.
18
RJI #01-90-ST2725 (Memorandum Decision Albany Co. June 21, 1991).
19
Quirk, 148 Misc.2d 300, 565 N.Y.S.2d 422.
20
749 F.Supp. 97 (S.D.N.Y. 1990).
21
940 F.2d 766.
22
See, Ass'n of Surrogates II, 78 N.Y.2d 143, 577 N.E.2d 10, 143, 573 N.Y.S.2d 19 (June 27, 1991).
23
Ass'n of Surrogates II, 78 N.Y.2d at 149, 577 N.E.2d 10, 573 N.Y.S.2d at 21; Civil Service Law §204-a.(1)
(McKinney's 1983).
24
See, Ass'n of Surrogates II, 78 N.Y.2d at 149, 577 N.E.2d 10, 573 N.Y. S.2d at 21.
25
Id. at 150-151, 577 N.E.2d at 12-13, 573 N.Y.S.2d at 212.
26
Id. at 151-54, 577 N.E.2d at 13-15, 573 N.Y.S.2d at 22-3.
27
Triborough Bridge and Tunnel Auth., 5 PERB ¶4505 (Milowe 1972), conf’d, 5 PERB ¶3037 (1972).
9
28
78 N.Y.2d at 156, 577 N.E.2d at 16, 573 N.Y.S.2d at 25; Compare, Boston Teachers Union Local 66 v. Boston
School Committee, Mass., 434 N.E.2d 1258, 1266 (1982) (where the court found that once Boston funded the first
year of a multi-year agreement it was bound to comply with the agreement for its full term.)
29
Ass'n of Surrogates I, 940 F.2d 766.
30
749 F. Supp. 97.
31
Quirk, 148 Misc.2d 300, 565 N.Y.S.2d 422.
32
Ass'n of Surrogates, 940 F.2d at 770
33
Id. at 773 (citing Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978)).
34
148 Misc.2d 300, 565 N.Y.S.2d 422; RJI 101-90-ST 2725, 940 F.2d 766.
35
State Finance Law, §200 (2-b), L. 1991, chs. 166, §382 and 171, §1.
36
See, Ass'n of Surrogates III, 79 N.Y.2d 39, 588 N.E.2d 51, 580 N.Y.S 153 (1992).
37
Ass'n of Surrogates III, 79 N.Y.2d 39, 588 N.E.2d 51, 580 N.Y.S.2d 153 (1992).
38
The Triborough Amendment expanded and codified, at Civil Service Law §209-a(1)(e) (McKinney's 1983 Supp.
1992), the former Triborough Doctrine announced by the Public Employment Relations Board in Triborough
Bridge and Tunnel Authority, 5 PERB ¶3037 (Board 1972). Under the Triborough Amendment, a public employer
cannot "refuse to continue all the terms of an expired agreement until a new agreement is negotiated unless the
employee organization which is a party to such agreement has, during such negotiations or prior to such resolution
of such negotiations, [engaged in a strike]."
39
Ass'n of Surrogates III, 79 N.Y.S.2d at __, 588 N.E.2d at __, 580 N.Y.S.2d at __.
40
Ass'n of Surrogates III, 79 N.Y.2d at __, 588 N.E.2d at __, 580 N.Y.S.2d at __.
41
91-CIV-0057 (N.D.N.Y. 1991).
42
L. 1990 ch. 947, 812 (codified as State Finance Law §200 (2-a(a)).
43
As part of its recent collective bargaining negotiations, CSEA withdrew its Executive Branch Lag Payroll claim
against the State, but PEF argued the motion to victory.
44
Ass'n of Surrogates I, 940 F.2d 766; Ass'n of Surrogates III, 79 N.Y.2d 39, 588 N.E.2d 51, 580 N.Y.S.2d 153.
45
Ass'n of Surrogates III, 79 N.Y.2d 39, 588 N.E.2d 51, 580 N.Y.S.2d. 153.
46
Ass'n of Surrogates II, 78 N.Y.2d 143, 577 N.E.2d 10, 573 N.Y.S.2d 19.
47
Ass'n of Surrogates III, 79 N.Y.2d 39, 588 N.E.2d 51, 580 N.Y.S.2d. 153.
48
L. 1975, ch. 868. During the Yonkers financial crisis, a similar Financial emergency act for the City of Yonkers
was enacted. L. 1975, ch. 871.
49
Subway-Surface Supervisors v. Transit Authority, 44 N.Y.2d 101, 375 N.E.2d 384, 404 N.Y.S.2d 323 (1978).
50
Id., 375 N.E.2d at __, 404 N.Y.S.2d at 326.
51
Id. However, it did find that to the extent to which the legislation modified pension calculations by stating
negotiated increases could not be included in the pension bases, it was in violation of the New York State
Constitution with respect to the impairment of pension rights.
52
See, Sonoma County Organization of Public Employees v. County of Sonoma, 23 Cal. 3d 96, 591 p.2d 1, 152 Cal.
Rptr. 903 (1979); Carlstrom, 103 Wash.2d 391, 694 P.2d 1 (1985).
53
See, i.e., Council 82, OER No. 90-01-1217.
54
Id., Confirmed by Justice Thomas Reegan in a Letter Decision dated January 22, 1992, citing Ass'n of Surrogates
II, 79 N.Y.2d 39, N.Y.S.2d.
55
Police Benevolent Association (State Troopers), OER No. 91-07-525.
56
Public Employees Federation v. State of New York, OER 90-05-1272 (1992) (Haber).
57
L. 1975, Ch. 871 (Yonkers); L. 1975, Ch. 868 (New York City).
58
59 A.D.2d 180, 399 N.Y.S.2d 20, 180 (2d Dep't 1977).
59
53 A.D.2d 902, 386 N.Y.S.2d 440 (2d Dep't 1976), aff'd 42 N.Y.2d 904, 366 N.E.2d 1357, 397, N.Y.S.2d 1003
(1977) (on the memorandum of the Appellate Division).
60
58 A.D.2d 637, 396 N.Y.S.2d 41 (2d Dep't 1977).
61
Improper Practice Charges U-12813, U-12847, U-12989, U-13042, and U-13071 consolidated for hearing and
decision by Administrative Law Judge Philip Maier on February 26, 1992.
62
Brief for Charging Party at 4-5.
63
Nassau Co., 26 PERB ¶3027 (1993).
64
Civil Service Employees Ass’n v. Newman, 88 A.D.2d 685, 450 N.Y.S.2d 901 (Third Dep't 1982), aff'd ___N.Y.2d
___, ___ N.E.2d 1231, 475 N.Y.S.2d 379 (1984).
65
State of New York v. Public Employment Relations Board, 116 A.D.2d 827, 497 N.Y.S.2d 491 (Third Dep’t 1986).
66
New York Times, December 15, 1990, Sec. 1, p. 1, col. 4.
10