The Chief
May 4, 2001

City, PBA Back to Table; PERB fight Continues

OLR Warns of 'Chaos' At PERB, No End to '48-Hour' Rule

By William Van Auken

The Office of Labor Relations and the patrolmen's Benevolent Association are returning to the bargaining table, even as the city and its largest police union continue sparring in court over the PBA's bid for contract mediation by the state's Public Employment Relations Board.

Sources familiar with the contract dispute reported that the two sides would meet May 1 for the first bargaining sessions since talks broke off nearly five months ago.

Neither PBAS officials nor Labor Relations Commissioner James F. Hanley would comment on the resumption of talks. PBA President Patrick J. Lynch acknowledged, however, that an Albany State Appellate Division Justice had asked the two sides to negotiate again. "We agreed, on the condition that this does not impact on the PBA!s declaration of impasse," Mr. Lynch said.

When the two sides last met on Dec. 7, the union presented the demand for a 39-percent salary increase, while the city failed to budge from its original offer of a 2.5-percent hike. After talks broke off, the PBA and the city ended up contesting a court case in Albany over the constitutionality of a 1998 law placing police and fire unions under the jurisdiction of PERB.

An Albany Supreme Court Justice affirmed PERB jurisdiction over both arbitration and scope of bargaining for the police union's contract in an Apr. 16 decision. The city announced it would appeal, and obtained a temporary restraining order last week from Albany Appellate Division Justice Anthony J. Carpinello blocking both PERB and the city's Board of Collective Bargaining from taking any action on the PBA contract.

City's Reasoning

The two sides were to appear in court in Albany again as this newspaper went to press to present arguments on the city's demand for an injunction barring mediation.

In. an affidavit in support of the injunction, Labor Relations Commissioner Hanley spelled out in the clearest terms thus far the rationale behind the city's adamant opposition to ceding arbitration of police contracts to PERB.

He warned that without an injunction, PERB could proceed on the PBA's petition for a declaration of impasse, triggering the mediation process, whi e the BCB could act simultaneously on the city's improper practice petition charging the union with failing to bargain in good faith.

"There is a substantial risk of inconsistent determinations being rendered by these administrative agencies, which would result in confusion and probable chaos in labor relations in New York City," he warned. The only thing that had prevented such "chaos" previously, he added, had been a "standstill" agreement between the union and the city that expired with the State Supreme Court ruling.

Fears 'Police Unrest'

The Labor Relations Commissioner predicted that if the city prevailed on appeal after PERB had already determined a contract award, and the BCB were to then render an inferior deal, it could result in "labor unrest and diminished dedication of Police Officers [that] could be extremely harmful to the safety and welfare of the citizens of this city."

PBA attorneys countered that there is little danger of such a sequence, given the slow pace of PERB in conducting mediation before proceeding to impasse arbitration and a final decision.

On scope of bargaining issues, Mr. Hanley suggested that the union could expect far more favorable terms from PERB than from the BCB.

The two boards, he said, now use different standards in deciding which issues must be negotiated. Based on a 1998 deision, PERB now gives greater weight than the BCB to whether a provision was included in the prior contract in deciding whether it is a mandatory subject of collective bargaining.

48-Hour Rule at Issue

One of the key issues in the dispute over PERB versus BCB arbitration, the Commissioner said, is the controversial "48-hour rule," which allows police officers 48 hours' notice before they must submit to questioning in an administrative investigation.

Mr. Hanley pointed to the widespread demands for abolishing the 48-hour rule in the wake of the 1997 stationhouse torture of Abner Louima and the 1999 shooting of Amadou Diallo by four Street Crime Unit cops.

Police union officials have insisted that the rule had no bearing on either of these high profile cases, given that during criminal investigations, state and Federal prosecutors routinely request that the NYPD refrain from conducting its own interrogations on possible administrative infractions.

'The 48-hour waiting period undermines the public's perception of the credibility of officers' testimony, because there is a perception that officers could have 'gotten their stories straight' during the waiting period," Mr. Hanley wrote.

Other Ranks Lost Right

During the last round of bargaining, the Sergeants' Benevolent Association challenged the city's refusal to negotiate over the 48-hour rule. The BCB ruled in the city's favor and, as a result, the provision was eliminated for members of the SBA, as well as those in the Detectives, Lieutenants and Captains unions. Only the PBA, which had already gotten a contract, kept the rule intact.

"BCB would clearly hold that the 48-hour rule is not within the scope of bargaining," said the Labor Relations Commissioner. PERB, he continued, "may rule that the 48-hour rule is within the scope of bargaining, which in practical terms means that it will be part of the new contract."

Mr. Hanley also warned of dire economic consequences for the city if an arbitration panel awarded the PBA the 38.89 percent wage increase it demanded five months ago. The annual cost to the city, he said, would be $750 million if the raise was granted solely to the PBA's more-than 26,000 members, and $2.33 billion if extended to all uniformed employees.

Delay Not Unusual

The Commissioner dismissed union charges that the city's appeal is further delaying the negotiation of a new contract, after its members have been forced to work under expired agreements since last July.

"In New York City, it is often the case that a new contract is formed long after the expiration of the prior contract," he wrote. Unions, he argued, are interested "not in obtaining a contract by, or close to, the time that the prior contract expires, but in obtaining a contract with favorable terms."

"If it's not unusual for contracts to be settled only long after the previous ones have expired, that's the city's fault," Mr. Lynch responded when asked about Mr. Hanley's argument. "The whole point of arbitration is that we have an arm to go to when contract talks are stalled to get a speedy resolution. That's what the Taylor Law is supposed to be about."

'Members Need Money'

Mr. Lynch added that the prolonged delay in bargaining a new contract placed increased pressure on the union. "Our members have bills to pay, and they need more money now," said the police union leader.

This point was reiterated by the PBA's chief negotiator, Robert W. Linn, who served for six years as Labor Relations Director in the Koch administration. "You've got a system that is being pushed to the breaking point in terms of the way the city is using it," he said. 'The Taylor Law's prohibition on public-employee strikes is supposed to have the trade-off of an expedited resolution of a bargaining impasse."

Mr. Linn said he is confident that the police union can make a case before a PERB panel that police salaries are "extraordinarily uncompetitive" in the local market, making it increasingly difficult for the city to recruit and retain cops.

"The crisis permeating a lot of the labor negotiations is how far out of the labor market some city workers have come," said the union negotiator. He pointed to the recent 8-percent "catch-up" raise negotiated by Librarians on top of the 8-percent permanent pay hike that all members of District Council 37 will receive if the membership ratifies the union's tentative contract.

'Cops Farthest Behind'

"This indicates how far out of line the city thought those salaries were," Mr. Linn said. "But the most seriously out of line of all city titles are New York City Police Officers. We want to adjust that compensation to catch up with market rates, hopefully through an agreed-upon contract, and if not, by making our case at PERB."

In their decade-long battle to win legislation granting PERB arbitration, police union officials often argued that the state board, unlike the BCB, would take into account salaries in better-paid suburban jurisdictions.

Insiders, however, say that both boards would consider the same local and national prevailing salaries, while also taking into account the city's ability to pay.

The real problem the PBA faces with arbitration at the BCB stems from the tripartite character of the board, said one long-time observer of city labor relations. The board's chair and other impartial members, he pointed out, are selected jointly by the city and the Municipal Labor Committee, in.which DC 37 has historically exerted the greatest influence.

'Want Pattern to Hold'

"You have a situations where there is strong control by people on both the city and the labor side whose main interest is seeing the pattern upheld," he said. "There is tremendous pressure to see that no one should get more."

Members of PERB, on the other hand, are selected by the Governor, with no input from the city.

Another veteran labor relations expert pointed out that PERB and OCB both draw their arbitration panels from the same pool and operate with the same criteria in looking at comparable salaries and collective-bargaining laws. The key difference between the two boards, he said, pertains to scope of bargaining.

Under the BCB's jurisdiction, he said, the city has been able to arbitrarily refuse to negotiate over what are known as "permissive" subjects of bargaining — those that are normally managerial prerogatives but are included in prior contracts.

"They wait until after a union has filed for impasse and then use this power to club it into submission," he added. If the city has defined something as a permissive subject of bargaining, it cannot be considered by an impasse panel. Ironically, during Mr. Linn's tenure as a city negotiator, he used this power to strip the Uniformed Firefighters Association of its guarantee that certain staffing levels would be maintained for engine companies.

PERB, on the other hand, has held in recent decisions that once something is in the contract, it is automatically converted into a mandatory subject of bargaining, and it can be removed only through negotiation.