The Chief
April 27, 2001

Court: PERB is Right Place For PBA Arbitration

Jubilant Union Wants Process Sped, But City Plans Appeal

By William Van Auken

The Patrolmen's Benevolent Association has won an unqualified victory in its legal action to reaffirm its right to seek impasse arbitration under the state Public Employment Relations Board, a forum that it hopes will allow it to gain a pattern-breaking agreement for its 27,000 members.

Albany State Supreme Court Justice Bernard J. Malone Jr. ruled April 16 that a law that the PBA managed to push through the State Legislature in 1998 giving PERB jurisdiction over its collective-bargaining disputes is constitutional.

The city had argued that the measure violated the home rule provisions of the State Constitution.

'Helps Make PBA Case'

"This ought to afford the PBA the opportunity to make its case, and it can present a compelling case for a substantial market adjustment for Police Officers," said the union's chief negotiator, Robert W. Linn.

The decision establishes that the city's firefighter unions can seek PERB arbitration as well.

"We will certainly appeal," said Lorna Bade Goodman, spokeswoman for the Corporation Counsel.

While the police union expressed jubilation over the court victory, Mayor Giuliani noted that even under PERB an arbitration panel must take into account the employer's financial position.

"Those rates would literally and figuratively bankrupt the city," the Mayor said at an April 17 press conference, referring to the wage hike demanded by the PBA. To agree to increases of that magnitude, he said, would be "fiscal insanity" and would force the city to raise taxes to pay for higher cop salaries.

The court case was prompted by conflicting actions taken by the city and the union late last year as bargaining between the two sides stalled following six negotiating sessions.

Early Maneuvers

With the city offering a 2.5-percent salary hike and the union demanding 39 percent over two years, the Office of Labor Relations filed a scoping petition with the city's Board of Collective Bargaining, seeking to have some union demands as well as provisions in the expired contract declared non-mandatory subjects of bargaining.

The union countered by demanding that the city's petition be dismissed on the grounds that the matter belonged before PERB. It also went to Albany State Supreme Court, seeking affirmation of PERB's responsibility to mediate the contract dispute.

The police union has long sought PERB arbitration on the theory that the state panel would factor in higher salaries in surrounding urban jurisdictions when determining an award, thereby allowing the PBA to escape the grip of pattern bargaining.

In 1996, during the last round of bargaining, the PBA succeeded in having the State Legislature override the Governor's veto, passing legislation that placed city police bargaining under PERB's jurisdiction.

The State Supreme Court, however, ruled in favor of the city, finding that the law violated the home rule provision of the State constitution because it was passed without a home rule message and involved a matter of exclusive concern to the city.

Impact on '97 Award

As a result, the arbitration was handled by the BCB, which in September 1997 awarded the same "double zeroes" negotiated by the city's civilian unions.

The legislation passed in 1998 was crafted to overcome this defect, extending PERB's jurisdiction not only to the NYPD and its unions, but to all police and fire labor disputes throughout the state. Justice Malone ruled that because the new law was statewide in its scope, it passed constitutional muster.

Both sides agreed that if the law were found constitutional, PERB would handle impasse bargaining issues, while improper practice disputes would remain under the jurisdiction of the city's Board of Collective Bargaining.

They disagreed, however, over which agency would handle scope of bargaining disputes, with the PBA insisting that the task belonged with PERB, and the city maintaining that it should stay with the BCB.

Judge: City Absurd

The judge ruled in favor of the union of this issue as well, calling the city's proposal an "absurdity." Allowing the BCB to continue ruling on scope of bargaining issues, he wrote, would result in cumbersome and time-consuming processes that would have two separate agencies on two different levels of government attempting to separately resolve the intertwined issues of scope of bargaining and impasse resolution."

PBA President Patrick J. Lynch said that the court decision should prompt the city to either resume negotiations or prepare to arbitrate the dispute at PERB. He acknowledged, however, that legal appeals could put a new contract on hold for many more months.

"Unfortunately the city is once again dragging its feet on the contract," said the police union leader. "We don't know why they don't want to pay a fair and liable salary to Police Officers, but they are going to have to face up to the crisis in police recruitment and retention. We also don't know why they would question the judge's decision. It was fair, the arguments were made and the city should be preparing for arbitration at PERB."