The Chief
November 16, 2001

PBA, City Fight PERB Battle at Appeals Court

By William Van Auken

The city and the Patrolmen's Benevolent Association battled it out in court once again November 15 as the State Court of Appeals considered the Giuliani administration's final legal challenge to the union's right to arbitration of its contract by the state Public Employment Relations Board.

The city's brief, prepared by Assistant Corporation Counsel Linda H. Young, began with a two-edged reference to the tragic events of September 11. While paying tribute to the "heroic work" of the city's police officers and other emergency service workers at Ground Zero, it argued that the destruction in lower Manhattan will have a severe fiscal impact on the city, affecting its ability to meet collective-bargaining demands.

'Must Control Destiny'

"Now more than ever the city needs to control its own destiny in order to rebuild and protect its financial integrity." Ms. Young concluded, arguing that arbitration of the police union's contract should remain in the hands of the city's Board of Collective Bargaining.

The PBA's attorney, Peter M. Fishbein, fired back that September 11 was beside the point in the legal dispute. "Having failed to persuade any of six judges who decided on this case below, the city is now attempting to shift the focus to irrelevant extra judicial considerations," he wrote. "But this case is not about the heroism of New York's police and firefighters" or "the financial condition of the city."

Rather, he said, the legal dispute centers solely on whether a 1998 union-backed amendment to the Taylor Law allowing police and fire unions statewide to seek PERB arbitration violates the State Constitution's home-rule provisions, and how the statute should be interpreted.

City Rebuffed Twice

The city's challenge was rejected by an Albany State Supreme Court Justice, whose decision was upheld by a five-member State Appellate Division panel in July.

PERB, meanwhile, has acted upon the PBA's petition. It declared an impasse in the PBA's collective bargaining with the city and named a mediator, Alan R. Viani. After a series of mediation sessions described as fruitless by the union, The PBA has asked for the selection of an arbitration panel. The lower courts rejected the city's motions to halt the arbitration process.

In its appeal, the city argued that the law violates home-rule provisions, because it applies solely to New York City and three other jurisdictions - Nassau, Suffolk and Westchester counties - that created "mini-PERBs," such as the city's Board of Collective Bargaining, to handle arbitration of contract disputes with their public employee unions.

The PBA countered that just as the Taylor Law applied equally to all jurisdictions before the passage of the 1998 amendment, the amended law also applies statewide by precluding all jurisdictions from unilaterally denying the police and fire unions the right to go to PERB.

Cites Precedents

The union's legal brief also points out that other police unions operating in jurisdictions that have mini-PERBs have availed themselves of the new law and taken their contract disputes to the state panel. These include the Suffolk County Police Superior Officers' Association and the Nassau County Detectives' Association.

In 1996, the city was successful in overturning an earlier law that granted the PBA the right to PERB arbitration. That statute applied solely to New York City, and the Court of Appeals found that it did violate home rule rights. While the city cited that decision in its arguments, the PBA countered that the State Legislature had learned from the earlier court challenge and had crafted the new law accordingly.

Police union officials voiced optimism after the court heard the oral arguments in Albany. The PBA has long sought PERB arbitration on the theory that the state panel would be more likely to take into consideration the higher salaries paid by police departments in suburban counties.

Lynch to Press Case

"We're confident that we'll be on top with this ruling," said PBA President Patrick J. Lynch. He said that the union's intention is to press ahead with arbitration by the state panel.

"We're still on the PERB path," he said when asked if the union is hoping to restart negotiations once Mayor-elect Michael R. Bloomberg takes office in January. "We are continuing with arbitration, while we hope that the new Mayor will realize that you have to pay our police officers substantially more. Time will tell."

PBA officials said they expect a decision by the Court of Appeals before the end of the year.