June 6, 2016, 6:00pm
The head of the National Academy of Arbitrators disciplinary committee has rejected a Patrolmen’s Benevolent Association complaint that Howard Edelman violated its ethical code in his handling of the union’s arbitration case last fall, in the process delivering a stinging rebuke for what he suggested was an abuse of the process.
Daniel J. Nielsen, chair of the academy’s Committee on Professional Responsibilities and Grievances, concluding that Mr. Edelman fulfilled his duties regarding disclosure and that the PBA only made an issue of what it claimed were conflicts of interest after it became apparent he was going to rule against its contract proposal.
‘Not a Cudgel’
He said the arbiters’ Code of Professional Responsibilities was meant to ensure that academy members “behave in conformance with the highest standards of ethical and professional conduct. It is not a cudgel to be wielded against an arbitrator who has acted in good faith, but whose decision is unpopular with one side or the other.”
PBA President Patrick J. Lynch responded, “This decision only serves to protect a skewed system that favors employers who can dole out lucrative future arbitration work. It also sends a message to working people everywhere that those who dare to speak out against an unjust outcome will either be ignored or pressured into silence.”
The ruling compounded the defeat the PBA suffered last November when Mr. Edelman as chair of a three-person panel ruled that union members should not get raises exceeding the two 1-percent hikes negotiated by other uniformed unions in the opening years of longer contracts they negotiated with the de Blasio administration.
Arbitrator: ‘Fair Report’
Mr. Edelman, who held his tongue during a union campaign pillorying him as a member of the “1 percent” who had violated his oath with an award meant to curry favor with the city, was less reticent about the June 2 ruling. “The report it seems to me was very fair and pretty predictable,” he said in a phone interview the following afternoon. “It reaffirms what every arbitrator knows about the process.”
The PBA had its chances of getting “market-rate” pay increases for cops compromised by the city’s having reached terms with virtually every other uniformed union—including the four representing cops in higher ranks and the Uniformed Firefighters’ Association, whose members have long enjoyed salary parity with Police Officers—by the time the panel was deliberating on the case.
Mr. Edelman cited the long history of pattern bargaining in the city and said that the PBA’s case for a departure from that tradition was not compelling enough to risk the harm it could do to the negotiating process if the union got a more-generous award. When he issued a preliminary award indicating his inclinations, the union responded with an early-morning demonstration outside his Upper East Side apartment and a series of newspaper ads that questioned his integrity.
Claims Lacked Merit
The claims it made in those ads were at the heart of its complaint to the National Academy, but Mr. Nielsen found them to lack merit. Among them, he noted, were that Mr. Edelman failed to disclose campaign contributions to Bill de Blasio during the 2013 race for Mayor, as well as “other arbitral appointments he received from the City of New York” during the PBA arbitration.
But Mr. Nielsen noted in his ruling that Mr. Edelman disclosed the campaign contributions during a December 2014 meeting early in the arbitration process, and that the PBA, after asking whether he could “render a fair and impartial decision” and being told he could, raised no further question about his serving as chair beyond the issue coming up again six months later when the Mayor was about to testify in the case.
Noting that Mr. Edelman’s contributions amounted to $1,000 out of more than $13 million Mr. de Blasio spent on the campaign, Mr. Nielsen called them “a far cry” from anything that “could induce an established professional to skew a high-profile interest-arbitration case.”
He also dismissed the union’s claim that Mr. Edelman failed in his duty to disclose his appointment to two other arbitration cases involving the city, one concerning a contract for Detective Investigators employed by District Attorneys, the other for a local of the Service Employees International Union. Mr. Nielsen noted that at one point during the proceedings Mr. Edelman had offered to schedule a conference call to discuss those other assignments, which indicated he had not been delinquent in informing the union of this other city work. He also pointed out that Mr. Edelman had a busy calendar apart from the work he did for the city and so was not dependent on its business to make a decent living, having by his estimate handled about six cases annually involving the city from a “normal yearly caseload of 150 to 200 cases.”
PBA Had ‘Definite Agenda’
Further, Mr. Nielsen wrote in his decision, he was chosen for each city assignment in the same fashion that he got the job involving the PBA: he was mutually agreed upon by both labor and management from a list of nine arbitrators presented to them. He also observed that the PBA raised the issue of a conflict only after Mr. Edelman issued his draft award, at a point when the union “had already started to publicly air its displeasure at the impending result… any reasonable person in the position of the arbitrator would have understood that a definite agenda was being pursued in the PBA’s inquiry…”
And, Mr. Nielsen noted, an arbitrator taking on other cases involving the same employer in the midst of a case was “a routine and expected occurrence in most successful arbitrators’ practices, and is understood as much by even relatively unsophisticated advocates. The parties in this case, and their advocates, can hardly be termed unsophisticated.”
This was not the first time the union’s conduct raised the hackles of an arbitrator not involved in the contract case. In March, 27 arbitrators wrote to the heads of the city Office of Collective Bargaining and the state Public Employment Relations Board asking that they not be considered for future assignments involving the PBA because of their outrage with the “bullying” and “public vilification” to which Lynch had subjected Mr. Edelman.
The union leader responded last month by asking the heads of the city and state mediation offices to disqualify those arbitrators from all future assignments by the panels, saying they had shown they could not be objective in their deliberations.