The Chief
April 6, 2007

Court Deals City Key Setback In PBA Arbitration

Rules Union Never Gave Up Right To Pick Chairman

By REUVEN BLAU

An Albany County Supreme Court Justice has ruled that only the Public Employment Relations Board can adjudicate the Patrolmen's Benevolent Association's protest concerning the selection of an arbitration chair assigned to handle the union's contract.

JEROME LEFKOWITZ: Awaiting confirmation.     
JEROME LEFKOWITZ: Awaiting confirmation.

 

The Bloomberg administration has filed a notice of motion for an expedited appeal, seeking to force PERB's Director of Conciliation, Richard A. Curreri, to name the city's choice, Arnold M. Zack, to chair the mediation panel.

Wrong Defendant

Justice Eugene P. Devine ruled that the court cannot compel PERB to act because the agency was not named in the city's suit. "And it cannot compel PERB's agent, respondent Curreri, to perform an act when a duly constituted board does not exist," his six-page decision stated.

PBA President Patrick J. Lynch last week blasted the city's Article 78 complaint, which was filed after the union questioned the list of nine potential arbitrators submitted by Mr. Curreri. "The court confirmed the PBA's belief that the city's action - which was a calculated effort to stack the deck against New York City Police Officers' arbitration case - was ill-conceived and patently frivolous," Mr. Lynch said in a statement.

PATRICK J. LYNCH: Stop suing, start talking.
PATRICK J. LYNCH: Stop suing, start talking.
The PBA has called Mr. Zack - the former president of the National Academy of Arbitrators - biased against the union because he served on a panel that a decade ago froze cops' pay for two years. That decision was based on a wage pattern set by other uniformed unions at the time.

The dispute began after the PBA questioned PERB's authority to act in the absence of a functioning board. PERB Chairman Michael R. Cuevas left in December after heading the agency for the past eight years.

Awaiting Confirmation

On Feb. 14, Governor Spitzer nominated Jerome Lefkowitz, Eric J. Schmertz and Robert S. Hite to the board. But they have not been confirmed by the State Senate yet, which has further complicated matters.

Mr. Lefkowitz said last week that he believed the city's appeal would be rendered "moot" once the board has been officially appointed. "Then at least one side or another can make an appeal on the merits," he said during a March 29 phone interview.

But a mayoral spokesman maintained that the case is ongoing. "If the board is named and still does not, in accordance with its rules, appoint an arbitrator to hear the dispute over the PBA's contract, then yes, the case will continue," said Jason Post in an e-mail. "We don't know whether or when Lefkowitz will be confirmed, and even if he is, the case would not necessarily be rendered moot."

The city has steadfastly asserted that Mr. Zack should be automatically selected because the union "defaulted." As proof, the Bloomberg administration has cited a memo attached to the list of nine arbitrators presented by Mr. Curreri to both sides in December stating that the city and union had to begin to make their choices within five days.

Use Right or Lose It

"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."

On that basis, the city contends that Mr. Curreri must immediately designate Mr. Zack as the chairperson. "Respondent Curreri is, thus, required by the PERB rules to perform the ministerial and nondiscretionary act of immediately designating [the] public arbitration panel," the city's appeal argued.

But Mr. Lynch noted that the city had neglected to name PERB in the suit. "In their haste to corrupt the arbitration process, the city's attorneys didn't even take the time to file their action against the proper party," he said. "Their energies would have been better spent working to solve the NYPD's critical retention and recruitment problem by developing a progressive compensation package that would make police pay more competitive in the metropolitan area."

City negotiators, however, have contended that Mr. Lynch would prefer that the contract not be decided until after his election this spring.

Claims Pledge Broken

But the PBA has maintained that Mr. Curreri promised the union and the city that the list of arbitrators would not include any mediators who were involved in prior PBA decisions.

The two arbitrators at issue, however, 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.

As for the city's appeal, the petition contended that the ramification of Mr. Devine's ruling "is presently unknown but likely substantial." The appeal pointed out that other city unions have had issues recently decided by PERB before the board was officially in place.

"As just an example, PERB has issued rulings in the city's impasse proceedings with the Police Captains and the Council of Supervisors and Administrators," the petition noted. "Since, according to the decision, PERB staff had no authority to act, those actions could be a nullity."

Who Enforces Law?

The appeal further contended that the court's finding that no one at PERB has had the authority to act also means that there is no one to enforce the Taylor Law. "And the very purpose of the Taylor Law - the orderly and efficient resolution of public labor disputes - is thwarted," the petition asserted.

It is unclear how much Mr. Devine's ruling legally covers. His decision noted that the issue was brought on by the election of a new Governor and the transition into a new administration. "The vacancies on the PERB did not leave the staff or agents of the PERB with any supervision, or the authority to act on the PERB's behalf," the ruling stated.

The city's plea to expedite the appeal may be complicated by PERB's recent staffing issues. Mr. Lefkowitz noted that PERB only has one lawyer for litigation, who is leaving "in the next couple of weeks." PERB's other litigating attorney position hasn't been filled yet, he said. "So we may be without a lawyer to defend that," he remarked, referring to the city's appeal. "And I'm trying to find out whether we can physically respond in the normal course of events."

Mr. Lefkowitz, who is also an attorney, said he doesn't want to personally handle the case. "I think there is a problem in that if there is an appeal to the board to the decision of the director, I might have to recuse myself," he said. "I'm exceedingly reluctant to put myself in that position. I have kept myself at arms length from the case."

The city's appeal concluded by pointing out that the NYPD has struggled to recruit new cops at the drastically reduced starting salary of $25,100 for officers in training. "There is continuing severe and irrevocable harm to appellants' vital interests," the petition asserted. "The inability to resolve the PBA contract, including through arbitration, impacts the Police Department's ability to effectuate change in the Police Officers' salaries."

The PBA, however, has long contended that Mayor Bloomberg has the ability to raise the starting pay at any time. The union has also argued that its members' salaries should be based on what other agencies in surrounding counties pay their cops.

Mayor Bloomberg, however, has maintained that the wage model for uniformed employees was set for the round of bargaining at issue in the PBA dispute in the fall of 2005 by the UFA's 50-month deal, which provided raises of 3 percent and 3.15 percent in its last 26 months. The earlier part of that deal replicated the two 5-percent raises the PBA won in arbitration in June 2005 for a two-year period.

City: Deal Moots Claim

City negotiators contend that the later UFA raises, if accepted by the PBA, would significantly increase the starting salary and maximum pay for Police Officers, eliminating the union's contention that there is a need to structurally change how cops are compensated based on other jurisdictions.

Beginning last May, the Bloomberg administration made two offers to the PBA that would have raised starting salary by about $10,000. But the city also demanded that new officers accept reductions in leave time and some differential pay, concessions the PBA rejected.

Then on March 2, the Uniformed Firefighters' Association tentatively accepted similar benefit givebacks to offset the cost of raising future Firefighters' starting pay to $35,000.