Gov. Andrew Cuomo sent a letter to Public Service Commission chairman Garry Brown, urging him to bring together representatives from Con Edison and from Utility Workers Union of America Local 1-2 in order to end a lockout now reaching its fourth week.
“This lockout has gone on long enough,” Gov. Cuomo wrote. “Elected state and city officials are rightfully concerned. I urge you to bring both parties together to strongly encourage an expeditious resolution, and to emphasize that both Con Ed and the union will be held accountable by the people of the state if their failure to settle the dispute contributes to service disruptions or impacts safety.”
Gov. Cuomo has come under some withering criticism is recent days for his unwillingness to get involved in the labor dispute, with Times columnist Michael Powell mocking the governor for casting himself as “a near powerless observer.”
The governor’s office had noted previously that Mr. Cuomo only appoints one member to the PSC; and the agency itself has said (in a memo to the governor, one also reprinted below) that it has no authority over management and labor matters unless they begin to affect public safety.
Mr. Cuomo dismissed these concerns, writing that “my administration has focused on fundamentally changing the way state government operates in order to position the government to proactively address problems facing New Yorkers and, when possible, prevent them happening in the first place. When we can take steps to avert disaster before it strikes, it is a dereliction of our public duty not to act.”
Full letter below:
Dear Chairman Brown:
I am in receipt of your memorandum outlining your view of the legal authority of the Public Service Commission to respond to work stoppages or lockouts involving regulated utilities.
I understand that the Public Service Commission’s view is that its authority to intervene directly in what is primarily a labor dispute is prevented by federal labor law. I understand further from your memorandum that the Commission has not previously inserted itself into a labor dispute. The Commission’s position is that it can only respond when “a severe event compromising safety or disrupting the provision of reliable service” occurs.
I respectfully suggest an alternative perspective. My administration has focused on fundamentally changing the way state government operates in order to position the government to proactively address problems facing New Yorkers and, when possible, prevent them happening in the first place. When we can take steps to avert disaster before it strikes, it is a dereliction of our public duty not to act. In the case of the current Con Ed lockout, it would be a failure to serve the public to respond only after a blackout or serious safety incident that occurs due to the labor dispute. I believe there is a real possibility of a safety or reliability issue if this situation continues. This is especially true as our region faces an ongoing heat wave which places significant stress on the power grid and requires all parties to devote the highest level of attention to the energy system.
This lockout has gone on long enough. Elected state and city officials are rightfully concerned. I urge you to bring both parties together to strongly encourage an expeditious resolution, and to emphasize that both Con Ed and the union will be held accountable by the people of the state if their failure to settle the dispute contributes to service disruptions or impacts safety.
GOVERNOR ANDREW M. CUOMO
STATE OF NEW YORK DEPARTMENT OF PUBLIC SERVICE
THREE EMPIRE STATE PLAZA, ALBANY, NY 12223-1350
PUBLIC SERVICE COMMISSION
GARRY A. BROWN PETER McGOWAN
Chairman General Counsel
PATRICIA L. ACAMPORA
MAUREEN F. HARRIS JACLYN A. BRILLING
JAMES L. LAROCCA Secretary
GREGG C. SAYRE
July 25, 2012
TO: Howard Glaser, Director of State Operations Mylan Denerstein, Counsel to the Governor
FROM: Garry Brown, Chairman This memorandum is prepared in response to the Governor’s Office’s request for the Department of Public Service to examine the maximum legal authority and fullest extent of jurisdiction over disputes between regulated utilities and their labor unions. Recognizing that a motion on this issue is pending before the Commission and additional legal arguments have been requested, this analysis is offered to address what the Commission can do to maintain safe and reliable service for the benefit of a regulated utility’s customers. 1. Federal Preemption Federal labor law precludes any state entity, including the Public Service Commission, from ordering a private sector employer (a public utility) to end a labor-management dispute such as a strike or a lockout. Federal labor law protects the parties (that is, a labor union and a regulated utility) from state interference with their exercise of federally protected rights under the National Labor Relations Act. These federally protected rights include the union’s right to strike and the utility’s right to lockout. The Commission therefore does not have legal authority to directly intervene to order an end to a work stoppage, and the attempt to exercise such authority would not withstand legal challenge. Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986); Machinist v.Wisconsin Employment Relations Commission, 427 US 132 (1976); San Diego Bldg. Trades Council v. Garmon, 359 US 236 (1959); National Labor Relations Board v. State of New York, 436 F. Supp. 335 (EDNY, 1977). 2. Authority Over Regulated Utilities in a Work Stoppage or Lockout
The Public Service Commission has the legal responsibility to ensure the safety and reliability of utility service. There are ways the Commission can exert authority over regulated utilities consistent with our powers under the Public Service Law, which are focused on matters involving safety, reliability and rates. Prior to the current Con Ed lockout, Con Ed was required
to develop contingency plans for the provision of safe and reliable service, and the Department is monitoring the implementation of the contingency plans on-site on a daily basis. A failure of the contingency plan to prevent a severe event compromising safety or disrupting the provision of reliable service could expose the utility to a claim that it acted imprudently and trigger corrective action ordered by the Commission.
Past work stoppages or lockouts have not given rise to intervention by the Public Service Commission. For example, the last strikes affecting New York electric utilities were in 1984, involving LILCO, and in 1983, involving Con Ed. The Con Ed strike lasted 9 weeks and was settled without intervention by the Public Service Commission.
3. Authority Over Labor Unions The Public Service Commission has no statutory authority over labor unions.