The Chief
September 14, 2007

Part of PBA Arbitration

Length of Cop Tours Is Ruled Negotiable

By REUVEN BLAU

The Public Employment Relations Board has ruled that the length of police tours is a mandatory subject of bargaining, reversing an Administrative Law Judge's earlier finding that extending officers' tours beyond eight hours is a prohibited topic and violates state law.

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PATRICK J. LYNCH: Can benefit both sides.

PERB's decision clears the way for the Patrolmen's Benevolent Association to attempt to negotiate either 10 or 12-hour tours, which would enable its members to be scheduled for fewer appearances. The PBA and several supervisory police unions have been seeking to negotiate lengthened tours for years, but to this point only Lieutenants have been granted that right with fewer appearances resulting, and that's on a limited trial basis.

'Reopens the Door'

"This reopens the door for negotiations that can bring a modern chart system to the NYPD that can benefit both the city and its Police Officers," said Patrick J. Lynch in a statement.

PERB Chairman Jerome Lefkowitz and board member Robert Hite noted that Administrative Law Judge Philip L. Maier's ruling in May contradicted prior case law. "Based upon our review of the legal arguments raised by the PBA, city and amici, we disagree with the ALJ's conclusion that the work schedule proposal constituted a prohibited subject of bargaining," the board ruled.

JEROME LEFKOWITZ: Right for arbitration.
JEROME LEFKOWITZ: Right for arbitration.

The 22-page PERB decision stated that a 1975 Board of Collective Bargaining ruling did not prohibit the negotiability of the length of police tours, noting the prior practice of shifts exceeding eight hours. The following year, a similar finding was reached by a PERB ALJ, the board noted.

'Won't Sit Idly'

Mr. Lynch welcomed PERB's decision to reverse Mr. Maier's ruling. "We won't sit idly by when an injustice is done to our membership," he said. "PERB had previously decreed that charts were negotiable. This same ALJ who made the erroneous ruling acknowledged the proper law on a previous occasion."

The PBA's appeal of Mr. Maier's decision pointed out that the city itself hadn't sought to have the issue declared a prohibited subject of collective bargaining.

Notably, the city also appealed the ruling, contending that it should be allowed to negotiate tour schedules and that the issue should be declared a non-mandatory subject of bargaining.

Hanley Happy

Office of Labor Relations Commissioner James F. Hanley initially hailed the ruling, which some labor attorneys believed would allow city negotiators to require cops to work more tours.

But OLR agreed to include a side letter in all of the recently negotiated police contracts stating that city officials would agree to lobby the State Legislature to have the relevant Unconsolidated Law amended if Mr. Maier's decision was not overturned by PERB.

Mr. Maier's finding was rendered after OLR sought a declaratory ruling to determine what contract issues were considered outside the scope of bargaining and precluded from the upcoming PBA arbitration hearing scheduled to begin in November.

The ruling would have given the NYPD the right to move its approximately 35,000 officers back to standard eight-hour tours, which would eliminate the accumulated multiple days off known as "chart days" that cops accrue under the current system.

Had Ripple Effect

The decision would have also blocked the state's other police unions from negotiating longer tours and cast a cloud over some of their already-bargained extended shift schedules.

In June, four union groups - the Lieutenants Benevolent Association, the Captains Endowment Association, the New York State Union of Police Associations, and the Suffolk County Police Conference - backed the PBA's appeal by filing amicus briefs in the case. Those briefs of support marked one of the first times such documents were submitted in a PERB case, veteran labor attorneys said.

Several other local police departments have already moved to 10- or 12-hour tours, because the extended shifts reduce sick leave and save on personnel costs, according to Michael Axelrod, an attorney who represents numerous local uniformed unions. "It's more of a consistent work schedule," he has said.

Presently, NYPD cops work eight-hour and 35-minute tours and must be scheduled to make 243 appearances to reach the mandated 2,088 hours of scheduled work each year. The PBA will likely seek to negotiate either 10- or 12-hour tours, which would reduce the number of appearances its members are required to make each year. (The actual number of days worked is reduced because of vacation days and sick-leave time.) As an example, if tours were extended to 10 hours, officers would only have to be scheduled for 209 appearances.

The PBA contends that extending tours would also save the city money. "We think the proposal is one of many issues that should be corrected at the bargaining table," Michael Murray, its primary attorney, has said. "The world is moving to modern charts. This department is back in the '70s, while the world is marching forward."

Overtime Costs

City negotiators, however, contend the extended tours actually add costs, because the NYPD is required to pay personnel overtime for officers who miss tours.

PERB also ruled that the issues of bullet-resistant vests, creating health and safety guidelines similar to those used for private-sector employees, and premium pay for the lack of negotiable disciplinary procedures are all mandatory subjects of collective bargaining.

The board, however, concluded that the PBA's other demands - including attaining specific safe staffing levels, a chronic sick program, and a contract maintenance proposal - are not mandatory topics of negotiation.

Mr. Lynch said the bulletproof-vest decision could have far reaching ramifications "setting the stage, we hope, for the day when every police officer in New York State will be provided with the best bullet-resistant technology."

The NYPD is currently fitting its entire force with new, uniquely designed bulletproof vests, which better protect officers' necks and torsos and are more comfortable to wear.