Updated May 16, 2016

PBA Claims Arbitrators’ ‘Reprehensible’ Charge Proves They’re Biased


Michael Friang
Patrick J. Lynch: Ban Us? We'll Ban You.

The Patrolmen’s Benevolent Association, assailed by 27 arbitrators for its “reprehensible” public campaign against a colleague whose contract award enraged the union, has responded by claiming their refusal to accept future cases in which it’s involved shows their bias and has asked city and state dispute-resolution offices to remove those arbitrators from their panels.

No Longer Impartial?

In a May 5 letter sent to city Office of Collective Bargaining Chair Susan J. Panepento and her counterpart at the state Public Employment Relations Board, Seth Agata, PBA President Patrick J. Lynch stated that “their evident inability to fulfill the duty of impartiality required of arbitrators” meant they should be barred from the registers of both agencies.

While PERB officials did not respond to a request for comment on the letter, Ms. Panepento said in a May 10 phone interview, “Our procedures provide for appointment of neutrals to the register, but don’t have a corollary mechanism for removal.”

That means that the one way by which arbitrators can be removed from the register is if both the labor and management members of OCB’s adjudicative arm, the Board of Collective Bargaining, agree to drop one or more of them.

Sympathy From City

Labor Commissioner Robert W. Linn said, “It is very sad that 27 fine arbitrators would feel so negatively impacted by the PBA’s behavior that they will not participate in any PBA matter.”

He declined comment on one source’s claim that Mr. Linn shared the arbitrators’ concerns that the PBA’s public attacks on the arbitrator, Howard Edelman, were so over the top as to potentially have an intimidating effect on future arbitrators assigned to its cases, and had considered filing an improper-labor-practice charge against the union with OCB before changing his mind.

In the original March 24 letter that touched off the latest battle, the arbitrators—including a longtime BCB member who stepped down in January, Carol Wittenberg—used words like “bullying” and “public vilification” to characterize Mr. Lynch’s tactics against Mr. Edelman, which began even before the award was completed and continued for three weeks after he released the final decision last Nov. 13.

Ms. Wittenberg said in a May 11 phone interview about the union response, “It is a letter that shows great hubris: that the PBA is speaking on behalf of all the [Municipal Labor Committee] unions in asking that the arbitrators be taken off the lists for OCB and PERB.”

Protested Outside Home

In addition to a series of full-page ads in newspapers including this one, union members in late October massed outside Mr. Edelman’s residence in an Upper East Side building early one morning to denounce him as a member of the “one percent” and claim he was improperly swayed by having been given other arbitration business by the city.

Other arbitrators have insisted there was nothing improper about Mr. Edelman having taken on the two other cases he was handling while working on the PBA award, saying it was not unusual for well-regarded neutrals to be handling multiple cases involving a single employer or single union at the same time.

In their letter, the 27 arbitrators stated, “It is inexcusable and highly unprofessional for the PBA to take its dissatisfaction with the outcome of a case to the Arbitrator’s personal residence.”

Occasionally public-employee unions have staged protests outside the homes of management officials. One faction of a divided Uniformed Firefighters Association board more than 20 years ago held a raucous rally outside the home of the city’s chief negotiator at the time, James F. Hanley. A couple of years before that, mem­bers of Hospital Workers Local 420 of District Council 37 protested outside the home of city Budg­et Director Philip R. Michael, who defused their anger by inviting them into his backyard for refreshments.

‘Punished for Free Speech’

While his union’s rally outside Mr. Edelman’s home did not end amicably, Mr. Lynch in his letter argued that the 27 arbitrators were trying “to punish the PBA for exercising its First Amendment rights on a matter of public controversy.”

It was not known how many of the 27 signers of the letter belong to the PERB panel from which arbitrators can be selected to decide a PBA contract. Twenty of those who signed the letter belong to the OCB register, which contains about 120 names.

In the wake of a disappointing 1997 award by an OCB panel, the union gained approval of legislation that moved wage-contract disputes under PERB’s jurisdiction. While OCB still has jurisdiction over grievances pertaining to interpretations of the contract, those are handled by several arbitrators mutually agreed to by the city and the PBA prior to such disputes arising.

What incensed Mr. Lynch about the contract award was that Mr. Edelman disregarded the union’s request for a “market-rate” wage increase that would close the sizable gap between salaries for city Police Officers and those in neighboring jurisdictions, instead continuing the wage pattern that had been established for other uniformed unions whose raises have long been linked with those for the PBA. Those groups, which included the UFA—which has a historic parity relationship with the PBA pertaining to maximum salary for their members—and the four unions representing cops in higher NYPD ranks—had agreed to seven-year contracts providing 11-percent wage increases plus other benefits.

A Pair of ‘Ones’

Under PERB’s rules, which were in effect for the PBA case, an award cannot exceed two years in duration unless both sides consent. Because of this constraint, Mr. Edelman in his award granted the union the same 1-percent raises in each year that the other unions’ members received in the opening years of their longer contracts. He said he believed that deviating from the established pattern would have a disruptive impact on the city bargaining process.

As a result, the PBA and the city are in talks on a new contract that could cover the five years for which the other uniformed unions have agreed to raises totaling 9 percent—something Mr. Lynch has declared similarly inadequate for his members. Little prog­ress has been reported so far, and if the two sides wind up in arbitration again, it would be for a two-year deal that would run only through July 31, 2014 unless both sides agreed to a longer award.

Mr. Lynch enjoyed some previous successes in gaining awards that exceeded the basic patterns in effect at the time, but sometimes achieved this by accepting givebacks that primarily affected future hires. He won office in 1999 by rallying members’ anger against his three opponents for president who had been part of the PBA board when it was forced in 1997 to accept a two-year wage freeze at the start of a five-year pact—providing 12 percent in raises over the final three years—that was decided by a BCB arbitration panel. Those terms conformed to earlier deals negotiated with then-Mayor Rudy Giuliani.

Carried a Grudge

Mr. Lynch felt so strongly about that being an unfair basis for deciding his members’ contracts that a decade ago he made a point of denouncing the inclusion of two arbitrators involved in that “Zeroes for Heroes” contract among a group of nine submitted to the union and city for consideration as the chairman of a contract panel.

One arbitrator who was not among those who asked that they be excluded from consideration for future PBA work said last week, “I thought [their] letter was a mistake. I would have merely said we’re appalled but we’re neutrals and we’ll continue to judge impartially.

“Now,” he continued, “the PBA is just turning the tables on them.”

And while he thought the union had gone too far in its crusade against Mr. Edelman, this arbitrator, who spoke conditioned on anony­mity, said, “That’s part of the job of being an arbitrator: you take a certain amount of heat.”