The Chief
February 2, 2007

City Names Arbiter, Says PBA Defaulted

Contract Tensions Simmer


In a move designed to advance the arbitration process, the Bloomberg administration Jan. 25 asserted that its choice to chair the mediation panel handling the Patrolmen's Benevolent Association contract has been automatically selected because the union failed to participate in the process.

PATRICK J. LYNCH: 'City stacking the deck.'     
PATRICK J. LYNCH: 'City stacking the deck.'  

The decision is a controversial one, since the PBA has called Mr. Zack biased against the union because he was on a panel that a decade ago froze cops' pay for two years. That prior decision was based on a wage pattern set by other uniformed unions at the time.

In the latest dispute, the two sides were due to meet Dec. 27 to choose the panel chairperson from among a list of nine names presented by the Public Employment Relations Board.

But the PBA canceled, contending that PERB officials promised the union that the list of arbitrators would not include any mediators who were involved in past PBA decisions. The union has also questioned PERB's authority to act in the absence of a functioning board.

"While the PBA seeks nothing more than a fair opportunity to make its case before an unbiased and neutral arbitrator, the city wants to stack the deck against its own police officers by installing the very individual responsible for the infamous zeroes for heroes contract of the 90s," PBA President Patrick J. Lynch said in a statement last week.

Memo Made Rules Clear

But a memo attached to the list arbitrators presented by PERB to both sides in December specifically stated that the city and union had to make their selections within five days. "The parties shall immediately notify the Board of the designated public member," the document states. "Upon the failure of one party to participate in the selection process, all names on the list shall be deemed acceptable to it."

      JAMES F. HANLEY: Takes fight to PBA.

JAMES F. HANLEY: Takes fight to PBA.

The PBA, however, has maintained that PERB reneged on its promise concerning which arbitrators would be placed on the list. "What they did is they took arbitrators off the list that favorably ruled in an arbitration and included those that gave zeroes to New York City police officers - we think that's unfair," Mr. Lynch said.

Union 'Delaying'?

Richard A. Curreri, PERB's Director of Conciliation, has denied making such a promise. "There was no automatic rejection of panel members' names," he has said. "There was nothing like that."

Critics of the union have pointed out that the two arbitrators at issue, Mr. Zack and Stanley Aegis, were part of a panel operating under the jurisdiction of the city Board of Collective Bargaining, not PERB. Following their 1997 award, the PBA succeeded in getting legislation approved that permitted it to take contract disputes to the state panel.

Mr. Hanley has noted that the two arbitrators were on the lists of choices PERB presented to the two sides for the PBA arbitrations that were decided in 2002 and 2005. In neither case, he pointed out, did the union reject the lists based on their inclusion. He said he believed the union did so this time as a delaying tactic.

But Mr. Lynch has maintained that PERB currently doesn't have the power to decide the matter. "The PBA's challenge to the list has been filed with PERB and we await a decision from the full PERB board, who are the only ones empowered to rule in this matter," he said.

Zack By Default

Mr. Hanley contended that argument was irrelevant because the union had "defaulted." Asked if PERB had recognized Mr. Zack as the panel's chairperson, Mr. Hanley responded, "It's purely an administrable act once [the PBA] elected to default."

Mr. Hanley noted that Mr. Zack is the former president of the National Academy of Arbitrators, calling him "a really good arbitrator."

The city's move comes as the NYPD continues to struggle to attract new officers to join the department at the reduced starting salary of $25,100 for officers training in the Police Academy.

Mayor Bloomberg has insisted that figure is misleading, because officers earn additional money via overtime and receive additional benefits.

Corruption Concern

But Police Commissioner Raymond W. Kelly, who has called the pay a "disgrace," disputed that notion. "There is virtually no overtime for anyone for the first six months in the academy," he told reporters after the Mayor's Jan. 25 budget address. "So it's very challenging. I know the Mayor wants to change it."

Asked if he believes the low pay may lead to corruption, Mr. Kelly responded, "I think it's one of the things we have to be concerned about."

Governor Spitzer's delay in appointing a new PERB Chairperson has complicated the situation. It remains unclear why he hasn't already acted. His press office has not returned repeated calls.

PERB's Chairman Michael R. Cuevas left in December after heading the agency for the past eight years. The board's two other per-diem members, John T. Mitchell and Marc A. Abbott, have also departed, with no replacements named.

A memo posted on the PERB Web site last week noted the situation and detailed how the state agency would operate until a new chairman was named. "Appeals to the Board and other matters requiring formal Board proceedings, cannot be acted upon until at least two seats are filled through nomination by Governor Spitzer and confirmation by the Senate," the note stated.

Hanley Pushing On

Asked about that message, Mr. Hanley cited the latter part of the statement, which said: "Clientele should be aware, however, that all regular program functions in the Office of Conciliation and Office of Public Employment Practices and Representation, including the provision of mediation, fact-finding, arbitration and other conciliation services, and representation and improper practice matters before PERB Administrative Law Judges, are unaffected by the Board vacancies, and will continue in normal operation."

City negotiators have contended that Mr. Lynch would prefer that the contract not be decided until after his election this spring. A contract reached 15 months ago with the Uniformed Firefighters' Association that overlaps the two-year period at issue in the PBA negotiating impasse provides raises of 3 and 3.15 percent.

Mr. Lynch and Sergeants' Benevolent Association President Ed Mullins have scoffed at the last two years of that deal, contending that it doesn't keep up with inflation.

The unions representing Detectives and Lieutenants, however, have both agreed to extended four-year contracts, noting that there has been a 100-year-plus salary parity between cops and Firefighters. An arbitration panel, they have said, will likely insist on maintaining that tradition.