Any form of concerted work stoppage or work behavior that is not usual or customary is considered a strike,
The Taylor Law defines a strike as "any strike or other concerted stoppage of work or slow down by public employees". CSL §201(a). The term "strike" has been broadly interpreted by courts and PERB to include a wide variety of job actions.
In general, partial work stoppages of any kind or a failure to perform work in the customary or usual manner are strikes under the Taylor Law. Violations have been found for failure to work regularly scheduled overtime, teacher's refusing to participate in faculty meetings, field trips and parent-teacher conferences, mass sick outs, group resignations, refusal to accept extra duties, and performing work to conform precisely with rules ("work-to-rule").
The justification for work stoppages has little bearing on whether the Taylor Law is violated. For example, work stoppages to demonstrate or protest political activities are unlawful. State of New York (State University of New York, 12 PERB 3073 (1979). In State University of New York, employees struck to protest a proposed action by the Mayor of New York City.
To justify the strike the employees argued that the action was not intended to improve working conditions and was not related to any matters covered by the Taylor Law. PERB rejected this rationale and concluded that any concerted work stoppage, regardless of the terms used to describe it, is a strike. A strike might not violate the Taylor Law if it is based on a refusal to engage in unlawful or dangerous activities. Transportation Workers Union v. PERB, 58 N.Y.2d 354, 461 N.Y.5.2d 262, 267 (1983). However, concerns for safety and legality have not justified a work slow down where the actual motivation for the strike was related to Collective bargaining. (Ibid).
In Transportation Workers, the Court supported PERB's finding that safety concerns were a pretext for the employees' concerted refusal to work. During a strike the burden is on the employee to justify any absence from work. The Taylor Law presumes that "an employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his duties...when a strike occurs, shall be presumed to have engaged in unlawful strike...". CSL §210(2) (b). This presumption is rebuttal by a showing of substantial evidence that the individual was absent from work for a reason other than a strike.
This presumption may not be easy to overcome. For example, in Van Vlack v. Ternullo, 53 N.Y.2d 1003, 442 N.Y.5.2d 474 1981), employees absent from work during a strike claimed they were threatened with violence if they crossed a picket line.
The Court determined that while some employees were threatened with violence, there was also testimony that some crossed the picket line without incident and that there was no actual violence. The Court concluded there was substantial evidence to support the determination that the employees engaged in a strike. Thus, they did not overcome the presumption against them.
The Taylor Law imposes penalties on both employees and unions for engaging in strikes. An employee can receive a penalty equal to "twice his daily rate of pay for each day or part thereof" that he or she is on strike. CSL §210(f).
In addition, a union that violates the no strike provision can forfeit its right to the "dues check off" procedure. CSL §210(3)(a). In conclusion, any form of concerted work stoppage or work behavior that is not usual or customary is considered a strike in violation of the Taylor Law.