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September 17, 2018

Senior Arbiter Donoghue Will Chair PBA Panel

To Decide Overdue Contract

By Richard Steier

John M. Donoghue, a veteran arbitrator who until 2012 was also an attorney specializing in labor and employment law, has been chosen as the chairman of the arbitration panel created to break the deadlock between the Patrolmen’s Benevolent Association and the de Blasio administration on a new contract for the union’s 25,000 members.

The old pact expired Aug. 1, 2017, and less than two weeks later PBA President Patrick J. Lynch filed for arbitration. Assuming the panel ultimately decides the terms of a new deal, it will be the fifth time in seven negotiations during his nearly 20 years in office that the union gets its contract through a third party.

Feinberg Union’s Rep

The PBA earlier this year took the unusual step of announcing its representative on the panel in advance of the Public Employment Relations Board declaring that a bargaining impasse had been reached—the condition under which the state board sets in motion the arbitration process. It chose Kenneth Feinberg, a veteran compensation expert best known for his past work as head of the World Trade Center Victims Compensation Fund, who acknowledged during a press conference in April that he had never been involved in a wage-contract arbitration.

The de Blasio administration designated Labor Commissioner Robert W. Linn as its representative, triggering a protest by the PBA on the grounds that Mr. Linn had worked for the union as its outside bargaining expert in the 2002 arbitration—the first contract decided during Mr. Lynch’s tenure. That protest has not yet been resolved, according to one source, and as a result, no dates have been set for hearings in which the two sides will present their cases. Under the tripartite nature of the proceedings, in final deliberations the union representative will make what amounts to its closing arguments and the city designee will advocate for its position, with Mr. Donoghue then crafting a decision that will be discussed among the three of them before it is finalized.

A prime reason PBA deals so frequently wind up in arbitration—Mr. Lynch’s predecessors went that route three times over a 14-year span before he took office—is the union’s determination to have Police Officer salaries reach parity with what cops in neighboring jurisdictions receive, rather than being yoked to the bargaining pattern set with other city unions, as Mayors have preferred over the years.

Dueling Breakdowns

Mr. Lynch has argued that his members’ pay has fallen substantially behind that received not only by officers on Long Island—who beginning in the late 1970s won a series of generous arbitration decisions that were influenced by their close relationships with Republican officials in both Nassau and Suffolk counties—but in less-prosperous jurisdictions, from Newark, N.J. to the officers working for the Metropolitan Transportation Authority.

Mr. Linn has contended that once fringe benefits are included in the equation—including a $12,000-a-year Variable Supplements Fund payment to NYPD retirees that no other group of Police Officers receives—the difference in compensation is negligible. The PBA countered during a 2015 arbitration by citing rhetoric he used on its behalf during the 2002 arbitration contending that the salary for its members was “a joke” compared to what was paid in neighboring jurisdictions.

The tactic did not succeed in that instance. Arbitration panel chairman Howard Edelman agreed with the city’s position that parity should be maintained between the PBA and other police unions, and in November 2015 awarded 1-percent raises in each of two years, matching what was negotiated for that same period by a coalition of uniformed unions 11 months earlier. Under PERB’s rules, an arbitration award cannot exceed two years unless both sides consent to a longer term.

Settlement’s Fallout

The PBA in January 2017 reached a negotiated settlement corresponding to the final five years of the other uniformed-union deals. It matched the 9-percent raises spread over that period for those unions, but also included a 2.25-percent raise connected to the NYPD’s neighborhood-policing initiative. That extra money was offset in cost to the city by reductions in the pay scale affecting future hires, but the other police unions reacted with anger that reflected their rank and files’ unhappiness that Police Officers got those additional raises.

Mr. Lynch, in turn, contended that their response confirmed his belief that the uniformed coalition had essentially colluded with the city in acceding to lesser terms based on its belief that it would enable Mr. de Blasio and Mr. Linn to use that pattern to thwart the PBA’s more-ambitious demands.

The lingering acrimony has led the PBA to hold protests at city locations including the Park Slope YMCA where Mr. de Blasio goes for his morning workouts, and to lobby against the Mayor's national ventures, such as his attempt to convince the Democratic National Committee to hold its 2020 presidential convention in the city. The Mayor responded by saying that his administration has made fair, reasonable offers to the PBA, with Mr. Linn at one point arguing that it was the union that had negotiated in bad faith by failing to respond with counter-proposals.

The Mayor and his chief negotiator in June reached a 44-month contract with District Council 37 providing 7.42 percent in wage and fringe-benefit gains that Mr. Linn subsequently said should be “a framework for negotiations going forward with the rest of the workforce.”

PBA Wasn’t Buying

Mr. Lynch heartily disagreed, saying the union would not be “bound by a one-size-fits-all pattern that was structured around the needs of other city workers and does not address the enormous wage disparity that New York City police officers face” with their counterparts in neighboring jurisdictions.

The chairman of the panel that will try to reconcile the conflicting positions, Mr. Donoghue, has been an arbitrator used by both the Federal Mediation and Conciliation Service and the American Arbitration Association since 1972. He serves on permanent arbitration panels in a variety of industries in both the public and private sectors, including telecommunications, publications, media, agriculture and transportation.

When he was practicing employment law, he worked primarily for management in public-school districts, colleges and health-care facilities, while representing unions in the construction industry for much of the 1970s. Since the beginning of 2012, he has been a full-time arbitrator.

His office is in Fishkill, which may have played a role in the PBA’s decision to join with the city in designating him as the panel chairman. There have occasionally been complaints in the past that arbitrators who did extensive public-sector work in New York City were leery of making recommendations that had negative consequences for its Mayor, since they stood to lose more business from the city than any union could deny them in the future.

Once the dispute over the city representative on the panel is hashed out, it figures to be 6-to-12 months before a contract award is issued.