When Congress formulated the National Labor Relations Act in 1935, a huge category of employees was unfortunately omitted from coverage: public sector employees. In New York State, until the Taylor Law was enacted in 1967, public sector employees were not granted the right to unionize and bargain collectively with their employers. Thus, on a superficial level, the Taylor Law appears to be a huge victory for public sector employees. Recent events, unfortunately, prove that it is just the opposite.

Not only has the Taylor Law exacted a huge toll on public sector employees who have violated its strike prohibition — imposing upon them and their union huge financial penalties — but fines and criminal sanctions may be imposed on labor leaders who permit their membership to engage in a strike against a public sector employer.

The recent incarceration of Roger Toussaint, one of New York’s most prominent labor leaders, and the multi-million dollar fine imposed upon his union, TWU Local 100, are prime examples of the draconian nature of the statute.

Why is it that private sector employees have the right to strike while public sector employees do not?

The major reason for this difference is the fact that public sector employers are governmental entities whose financial ability is determined by tax revenue. Hence, their ability to negotiate over enhanced wages and benefits is severely constrained by public fisc.

Additionally, many public sector employees work in essential areas such as fire, police, health and sanitation services. Many will argue that these services are so important to the public welfare that they must continue unabated.

Under the Taylor Law strikes against a public sector employer are therefore illegal.

Yet, while the Taylor Law’s penalties are a potent deterrent to strike activity , strikes still do occur. We can all remember the UFT strike of 1967, the sanitation strike of 1981 and of course, the transit strike of 2005.

Since the Taylor Law’s enactment, several significant public sector strikes have taken place. The dynamics which compel strike activity still exist, even within the public sector. This is even more the case when a public sector employer adamantly refuses to engage in good faith bargaining with a public sector union.

The recent TWU strike should be a catalyst to motivate labor leaders to seek reform of the Taylor Law. This statute should provide a potent penalty against an intransigent employer who refuses to engage in good faith bargaining. The fact that public employees do not have the right to strike is hardly the impetus to compel public sector employers to engage in true good faith negotiation.

As we know, the strike (or threat of a strike) is the most effective weapon in labor’s arsenal to combat employers who refuse to negotiate fairly. Giving public sector employees the right to negotiate but not the right to strike is like asking a soldier to engage in combat with blanks in his or her weapon.

At a minimum, then, public sector strikes should be permissible as a last resort, if it is proven that an employer has engaged in bad faith bargaining. If that were the current state of the law, I believe there probably would have been no transit strike of 2005.

Harvey Mars is counsel for Local 802. Legal questions are welcome from 802 members. E-mail them to jurmars566@aol.com. Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.