The Chief
April 20, 2007

3 Police Unions Block Schmertz Role At PERB

Cite Impact of PBA Arbitration Award On Their Talks

By REUVEN BLAU

The unions representing Police Detectives, Lieutenants and Captains have bottled up Governor Spitzer's nomination of Eric J. Schmertz to the Public Employment Relations Board, THE CHIEF-LEADER has learned.

ERIC J. SCHMERTZ: Caught in cross-fire.  
ERIC J. SCHMERTZ: Caught in cross-fire.  
Mr. Schmertz was the chair of the 2005 Patrolmen's Benevolent Association arbitration panel, which created much controversy by sharply reducing the starting pay for new cops.

'Irresponsible Decision'

Practically all of the city's uniformed unions have blasted that pattern-setting award, which also increased incumbent officer salaries by 10.25 percent over two years. But those raises were partially funded by slashing the pay scale for new cops and other givebacks.

"Schmertz leveled the worst concessions in three decades on uniformed civil service," asserted Michael J. Palladino, president of the Detectives' Endowment Association. "Schmertz levied an awful lot of pain on the rank of Detective. I think his decision was irresponsible to say the least."

Mr. Schmertz stressed that the 2005 decision was a unanimous award agreed to by the parties representing both the Bloomberg administration and the PBA. He also contended that the award did not cover the supervisory unions, although the city has used its terms as a pattern for all other uniformed unions.

  POLICE UNIONS DIVIDED: An ongoing feud between Patrolmen's Benevolent Association President Patrick J. Lynch (far left) and Michael J. Palladino, Tony Garvey and John F. Driscoll - the union leaders representing Detectives, Lieutenants and Captains - has intensified after the supervisory unions began lobbying against the appointment of former PBA arbitrator Eric J. Schmertz to the Public Employment Relations Board.
  POLICE UNIONS DIVIDED: An ongoing feud between Patrolmen's Benevolent Association President Patrick J. Lynch (far left) and Michael J. Palladino, Tony Garvey and John F. Driscoll — the union leaders representing Detectives, Lieutenants and Captains — has intensified after the supervisory unions began lobbying against the appointment of former PBA arbitrator Eric J. Schmertz to the Public Employment Relations Board.
On March 26, the State Senate Labor Committee approved the other two PERB nominations, Jerome Lefkowitz and Robert S. Hite. They are awaiting confirmation by the Senate Finance Committee, a process which was delayed by the recent budget negotiations.

Late Paperwork?

Mr. Schmertz's nomination, however, is still being reviewed, according to Adam Tabelski, the spokesman for George D. Maziarz, the Labor Committee's Chairman. His background information was submitted late, Mr. Tabelski said.

Asked if the union opposition has played a role in the holdup, he responded, "It's something that we certainly consider ... all the background info we can get, pro and con, is always helpful."

Albany insiders speculated last week that the supervisory unions' opposition may prove to be enough to persuade Senate Majority Leader Joseph L. Bruno to block the nomination. They pointed out that Mr. Bruno - who feuded with Mr. Spitzer over key budget provisions and a Long Island special election for a Senate seat - may be looking to flex some political muscle by jamming up one of the new Governor's selections.

"He could just blame it on the unions," said a person familiar with the situation, referring to Mr. Bruno.

Not all the police unions have opposed Mr. Schmertz's nomination. "The DEA, LBA and CEA are doing the city's bidding by opposing the nomination of Eric Schmertz, who has a long history of fairly applying the state's labor laws," PBA President Patrick J. Lynch said in a statement. "In the face of a civilian settlement of zero and three percent over two years, Mr. Schmertz awarded the PBA 10.25 percent over the same period, paying police well over $100 million more in salary and benefits than they would have gotten under the civilian settlement."

Kelly Shocked

It was unclear, however, whether the Bloomberg administration has taken a position on Mr. Schmertz's nomination. During his recent testimony before the City Council, Police Commissioner Raymond W. Kelly noted in disbelief that Mr. Schmertz had been nominated for a position on the state board. Mr. Kelly, however, declined to discuss the matter further last week.

The PBA and the Mayor have continually traded barbs concerning the 2005 arbitration award, with each side blaming the other for agreeing to the reduction in pay for new cops.

Mr. Lynch has repeatedly asserted that city negotiators first suggested the idea. But critics of the PBA have pointed out that the union's representative on the tripartite arbitration panel, Jay Waks, signed off on the award as well.

Lieutenants' Benevolent Association President Anthony Garvey said he couldn't understand why the PBA would back Mr. Schmertz's selection. "It doesn't make sense to me to support someone who has injured your own membership," he remarked.

'Messed Us All Up'

Mr. Lynch countered by pointing out that the deals that the DEA and LBA accepted conformed to the pattern set by that arbitration award. "[They] voluntarily settled their contracts along the same lines, suggesting they agreed with what Mr. Schmertz had done," Mr. Lynch said. "Their opposition to Mr. Schmertz now contrasts with their silence over the attempted appointment of Arnold Zack as the PBA arbitrator, an individual who was responsible for two years of zeroes in previous police union arbitrations."

Mr. Lynch was referring to the PBA's current dispute with the city over the latest arbitration process. City Labor Relations Commissioner James F. Hanley contends that Mr. Zack - the city's choice to head the arbitration panel - should be automatically appointed because the PBA "defaulted" during the selection process.

By all accounts, the 2005 arbitration award has created problems for the city, which has struggled to recruit Police Officers and Correction Officers at the reduced rate.

"All of the unions have been messed up because of this arbitration," said John F. Driscoll, president of the Captains' Endowment Association. "You can see the havoc that it's created. It's a crazy decision that's hurting New York City and the New York City Police Department."

'Impossible to Recruit'

The letter the unions sent to Senator Maziarz noted that for the first time in the NYPD's history, the department has not been able to meet its projected hiring goals. "At a starting Police salary of $25,100 per year, Mr. Schmertz has made it impossible for the NYPD to recruit new Police Officers, who are much needed in this post 9/11 environment," the note said.

Mr. Schmertz countered, "That's easily dealt with in collective bargaining. That part of the award was unanimously agreed to. The wage increase far exceeded the pattern, which the city argued was applicable to the police."

He added, "The starting salary was just a piece of the decision. New recruits' pay accelerates rather quickly after six months."

Mr. Lynch blasted the letter and his counterparts' contract bargaining stance. "These unions' letter of opposition to Mr. Schmertz shows they have capitulated to the city's idea of pattern bargaining as some kind of unassailable concept, even in the face of gross wage disparities between New York City police officers and virtually every other police officer performing like services," he said. "In the face of these gross disparities, embracing pattern bargaining doesn't strike us as serving our memberships well."

Following Pattern

The DEA and LBA, however, have both agreed to extended four-year contracts that closely replicate the terms agreed to 18 months ago by the Uniformed Firefighters' Association, 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.

The PBA has rejected that notion and is now in arbitration. While that process continues to slowly move along, the NYPD and Correction Department have also begun having difficulties persuading incumbent officers to study and take promotion exams.

The passing rate for Police Sergeants and Correction Captains has plummeted, requiring the city to hold more tests. If the problem persists the city may not have enough qualified candidates to promote, which would likely lead to having current supervisors work more overtime.

Most of the city's uniformed unions have agreed to reduce pay and benefits for new promotees in order to match the pattern set by the PBA's attrition-based arbitration award.

Kelly Cited Impact

Mr. Kelly has said that attrition bargaining has had a "significant impact" on the department's supervisory titles. "All the raises have been compacted and they have been stretched out," Mr. Kelly told reporters. "So the desirability of moving ahead in the ranks has been impacted."

The NYPD has also recently been struggling to convince Lieutenants to take the Captain promotion test. Captain Driscoll contended that the problem is "destroying" the department.

The DOC is dealing with a similar problem. Only 186 Correction Officers have passed the Captain promotion exam, based on preliminary results. Barring multiple questions being tossed or a scoring curve being implemented, the list will not contain enough eligibles to fill projected vacancies over the next several years, past promotion figures suggest.

A significant portion of the city's costs from wage hikes for the PBA was offset by the reduction in the pay scale for future hires. But because savings to the city from the pay scale being stretched are greater under the PBA deal due to the higher attrition rate among cops, the Bloomberg administration demanded additional savings from smaller uniformed unions with more stable work forces to even out its costs.

The union officials representing those supervisory titles all agreed to concessions including less vacation time, stretched-out pay scales, and working longer tours in order to match the savings generated by the PBA arbitration award, which was drafted by Mr. Schmertz. One exception is the CEA, which has not reached a deal because of what Mr. Driscoll charges is an unfair valuation the city placed on concessions he proposed.

'Decision Poorly Crafted'

"I think the decision was so poorly crafted that I could not support him as a member of the PERB panel," said Anthony Garvey, president of the Lieutenants' Benevolent Association. "We have no problem with the other appointees, but we have a problem with Eric Schmertz based upon what I consider a thoughtless decision."

Mr. Palladino noted that Mr. Schmertz briefly served as the Commissioner of the city's Office of Labor Relations. "He understood the impact that these concessions would have on the other uniformed unions in the city," he asserted. "He had full knowledge of the parity issues and at the very least he should have established values if he was going to hit the unions with concessions of this magnitude."

Mr. Schmertz replied, "You have to consider the award in its total context. It seems to me that I wouldn't have gotten a unanimous decision if it wasn't a fair and balanced decision."

Was Paid $250,000

Mr. Garvey repeatedly pointed out that Mr. Schmertz was paid more than $250,000 for his several months of work heading the arbitration panel. "I think it's an absolute disgrace how he was compensated," the union president asserted, "when he certainly didn't give thought and concern for the hard-working cops starting at $25,100 - there's a disconnect there."

Mr. Schmertz responded, "I bill a traditional fee that arbitrators charge on a per-diem basis, and I provided the parties a full accounting for the time I spent on the case and the details on how I spent the time."

He said that he didn't volunteer for the nomination to PERB. "I did not seek this particular appointment," he remarked, noting that he served on the state board from 1991 to 1997. "A number of people on both sides - management and labor - asked me to consider it."

The veteran arbitrator contended that he had the support of the majority of local unions and management officials. "I'd be very surprised if you took a survey in this city and did not come out with an overwhelming support for my candidacy," he said.

'None More Experienced'

He pointed out that he has over 50 years of experience in the field. "No one's had the impartial experience that I've had," he asserted, noting that he had been appointed to similar positions by Governors Rockefeller, Cuomo, and now Spitzer. "The [Detectives], Lieutenants and Captains can say whatever they wish, but they haven't had the courtesy to send me the letter that they sent to the committee."

Mr. Palladino, however, also highlighted Mr. Schmertz's previous experience. The union president contended that it should have made him aware of the ramifications the PBA award would have on the city's other uniformed unions. "I can't possibly embrace Eric Schmertz as a member of PERB, because he single-handedly wrecked the promotion system in the NYPD and for the other uniformed unions as well."