September 2, 2016

Editorial: PBA Isolating Itself In a Time of Frustration


EHIND THE BITTER WALL OF BLUE: The Patrolmen’s Benevolent Association’s decision to honor Milwaukee County Sheriff David Clarke (left)—who has forcefully defended cops nationwide but also called President Obama a ‘race-hustler’—figured to raise hackles among the union’s minority members at the same time that President Pat Lynch (center) has escalated his war with Mayor de Blasio at the risk of alienating fellow union leaders. John Jay College Professor Gene O’Donnell (right) remarked, ‘This is a terrible time for moderation,’ adding that the PBA’s embracing Sheriff Clarke despite some of his fiery rhetoric was ‘a reflection of where they are.’

Twenty-five years ago, for a contract arbitration in which it came out on the short end with the Dinkins administration, the Patrolmen’s Benevolent Association submitted a brief that featured one obnoxiously dumb statement and another that was stunning in its candor.

The city, having given the United Federation of Teachers a raise slightly more generous than it should have the previous fall, only to announce a few days later that a budget crunch had forced it to postpone a police class that was scheduled to be inducted the following January, had constructed a rationale for making the PBA take slightly less than not only the UFT but a couple of other large civilian unions.

That may explain why, in the brief written by a union lawyer, there was a statement that more money might be available to pay cops what they deserved if the city wasn’t spending so much on welfare. When I asked a couple of city officials who showed me the PBA brief about what was clearly a gratuitous aside meant to anger Mayor David Dinkins, they rolled their eyes.

Further into the brief, though, it took a philosophical turn, musing on how police work tended to leave many cops isolated from the general public, particularly in the city’s poorer neighborhoods where tensions ran highest between communities and the police. Many officers, it said, felt comfortable only in the company of fellow cops and were alienated from the people they were being paid to protect.

More Than a Glimmer of Truth

It wasn’t clear whether this, like the throwaway line about welfare, was just a different form of venting or if the intent was to convince the arbitrators from the Office of Collective Bargaining that giving the PBA less than the other city unions would only add to the cynicism of many of its members. Whichever the case, it seemed to contain more than a glimmer of truth about the lot of Police Officers.

While it seems like he’s been in the job forever, it would be another eight years before Pat Lynch became PBA president. He capitalized on member discontent with another disappointing arbitration outcome, the 1997 “zeroes for heroes” contract, to vault to power over the incumbent PBA president and two other veterans of the union’s board, his biggest edge being that he had not been part of the board and thus could not be blamed for that award. But over the past year, the union has drifted in a direction that potentially places more distance not only between it and the de Blasio administration but the rest of the city labor movement, the minority community and even its growing number of black and Latino members.

Part of the reason for this drift reflects the frustration among its rank and file about its treatment in contract bargaining. At least as significant a factor—which is no small thing given the importance that members attach to economic issues—is the sense of being under siege and underappreciated that began with the assassination of two officers in December 2014, intensified with the murder of two other officers who confronted armed assailants last year, and was magnified by the murders of eight cops in two Southern cities during a short period earlier this summer, even as protests against alleged police brutality continued.

Battle Lines Drawn

But it also may be reflective of a mood that can be seen in the presidential race, where the Republican nominee rose from a novelty act by taking radical stands that were contrary to his party leadership’s wishes after losing the last two national elections but struck a chord among an alienated, largely-white segment of the electorate. His Democratic opponent, meanwhile, even as she offered a more-inclusive message, took steps during her party’s convention that had a grating effect on some cops. It wasn’t just having family members of unarmed black men who’d lost their lives in confrontations with police—including Eric Garner—given a spotlight; the mother of Trayvon Martin was up on stage as well.

That in particular should not have sat well with cops, according to Gene O’Donnell, an ex-NYPD officer who’s now a Professor of Law and Police Studies at John Jay College. Through this gathering to commemorate the victims—some of whom died in less-controversial circumstances than others—cops found themselves on the receiving end, and lumped together with Mr. Martin’s killer, George Zimmerman, a mentally unstable vigilante. It may have helped Hillary with her base, Mr. O’Donnell said in an Aug. 30 phone interview, but it also served to reinforce the feeling of some officers that the Democrats weren’t going to give them fair consideration in the debate over policing issues.

And so, he said, it shouldn’t have been a shock that the PBA had announced Aug. 25 that it would present its Person of the Year Award Sept. 1 to David Clarke Jr., the Milwaukee County Sheriff who offered the Republican National Convention a lucid black speaker who lauded Donald Trump as “the steadfast leader our nation needs…he has consistently and constantly raised his voice, not only in defense of the character of the American police officer but [on] the need for all people to feel they are being treated fairly and respectfully by law-enforcement.”

A Low-Key Style

Sheriff Clarke is not a shouter; unlike Rudy Giuliani, he made his points more effectively in half the time at the convention with firm statements rather than trying to use volume to overpower his audience, even while delivering some of the same message. When Sylville Smith, a Milwaukee resident with an extensive criminal record, was shot to death while allegedly pointing a gun at the cop who fired the fatal bullet Aug. 13, was mourned by some as another victim of police overreaction, Mr. Clarke, whose jurisdiction does not include that city, pointed out to reporters the past violence committed by Mr. Smith, and the fact that he violated probation several times yet barely paid a price for it.

“You punish unwanted behavior, you’ll see less of it,” he said, moments after stating, “I’ve said before, ‘Stop trying to fix the police; fix the ghettoes.’”

But his unstinting defense of cops and his claim that racism at this point is “episodic” rather than endemic in the United States has often taken on an ideological coloring that goes beyond his support of Mr. Trump. During his most-recent re-election campaign in 2014, Mr. Clarke wrote an essay in the Washington Times blaming liberal policies for making a “shambles” of black family life, saying they represented “the new racism in America.”

It is one thing for Sheriff Clarke to brand Al Sharpton a “race-hustler”—his history of three and even two decades ago gives that claim validity, and there are cops and ordinary citizens who don’t believe the older, less-rambunctious incarnation of the Reverend Al deserves forgiveness for those days. But a day before the PBA announced it was giving him the award, he used the same phrase against President Obama, and while it may not have been libelous it was grossly unfair and demonstrably untrue. Mr. Clarke had previously called Mr. Obama “the cop-hating commander-in-chief” and accused him of stoking the racial rage that led a disturbed ex-serviceman to murder five Dallas cops.

Not So Unlike Sharpton

All of which, while making Sheriff Clarke an in-demand guest on Fox News, also means he is guilty of the same kind of rabid rhetoric—in softer tones and from the other side of the political spectrum—that made Mr. Sharpton a public figure back in the 1980s.

Mr. Lynch airbrushed that part of Mr. Clarke’s resume in announcing the award, stating, “Sheriff Clarke is a passionate and vocal defender of police officers, at a time when our job is more difficult and dangerous than ever before. That is exactly what the PBA does for New York City police officers, so it has been encouraging to hear Sheriff Clarke make the same case on a national stage. We should be hearing that type of support from elected leaders in both parties and at all levels of government.”

Most elected officials have broader constituencies to worry about, which is why they are unlikely to follow Sheriff Clarke’s lead in deriding the African-American-led protest movement as “Black Lies Matter.” And it’s not clear that the expanding number of black and Latino cops represented by the PBA would be on board with honoring someone who has spoken so contemptuously of Mr. Obama.

When I asked a PBA spokesman whether Mr. Lynch had been aware of Mr. Clarke’s harsher remarks about the President at the time the union announced it would give him its highest award, he responded, “He’s not being honored for his political beliefs.” And, he said, Sheriff Clarke’s ringing endorsement of Mr. Trump was “irrelevant to us.” What mattered more, he continued, was that Mr. Clarke had “used the national stage to debunk myths about policing and brutality.”

Professor O’Donnell said of the PBA’s choice, “This is a terrible time for moderation. We’re in a global arms race at this moment where the only way you get noticed is to stake out an extreme position.”

‘Reflects Where They Are’

Asked whether Mr. Clarke’s comments about Mr. Obama might strike many cops, regardless of their race, as going too far, Mr. O’Donnell said, “You would think, but it’s a reflection of where they are” in the wake of the eight murdered officers and the steady drumbeat of anti-cop rhetoric.

“They don’t like being seen as the enemy,” he said of the cops. “And Mrs. Clinton won’t even seek the endorsement of the [Fraternal Order of Police]” out of fear of upsetting parts of her political base.

“Cops are insecure employees at the end of the day,” he continued. “They’re working-class people, and if this job goes away for them, they’re going to have a hard time replacing that income with just 60 college credits going for them. And working-class minority folks feel that justice is being done to them, not for them.”

Too often, Mr. O’Donnell said, the rhetoric from the left end of the political spectrum ends up “pitting the cops and the black community against each other,” when in fact there is much common ground that could bring them together in terms of their aspirations.

Scorched-Earth Pay Stance

But notwithstanding the PBA’s involvement in a large number of community events throughout the city, embracing Mr. Clarke, and the hint that it is more closely aligned with Mr. Trump than Ms. Clinton even if no formal endorsement is made, is hardly going to bridge the gap between the union and its critics in the minority community, which extends to some civilian-employee unions as well.

There is also the scorched-earth campaign the union has engaged in against the arbitrator who infuriated them with his contract award last November and top city officials who insisted that the pattern set with other uniformed unions had to be maintained.

A recent PBA ad quoted Labor Commissioner Bob Linn’s remark 14 years ago when he was the union’s outside bargaining counsel that city cops’ pay was “a laughing-stock” compared to what those in suburban departments, sometimes working in less-demanding, less-stressful environments, were earning.

Because the gap has widened since then, the PBA contends, the points Mr. Linn made from its side of the table are even more valid than they were back in 2002. But there’s a more-powerful countervailing force in play: the long history of pattern bargaining for municipal-union contracts, and the other uniformed unions having already set or signed onto that pattern beginning 21 months ago.

Ally a Pattern Guy

Mr. Lynch has raged against pattern bargaining as not only unfair to the PBA but in violation of the Taylor Law governing collective bargaining throughout the state. It would be interesting to know whether he’s made clear his displeasure with the concept to last year’s PBA Person of the Year, Governor Cuomo, who shortly after taking office bludgeoned the most-vulnerable state unions into contract deals a lot less palatable than the uniformed pattern the PBA is seeking to undo. Mr. Cuomo then used the pattern they established to bring the rest of the state workforce—much of which was not going to be affected by the layoffs he threatened if he didn’t get the concessions he wanted—into line.

But the aggravation the union has experienced in 32 months of bargaining with the de Blasio administration—the two 1-percent increases it received under the bitterly-protested arbitration award, the city’s insistence now that it accept a five-year deal with an additional 9 percent in raises to bring it into line with the rest of the uniformed unions—are by­products of the lack of unity among municipal labor groups over the years. And in no small measure because of its determination to go it alone in order to do better and close the pay gap with surrounding jurisdictions, the PBA failed to fully grasp the dilemma being created when Mayor Michael Bloomberg shut down bargaining in 2009 rather than finish off the pattern he had already created, leaving the UFT and several other smaller unions on the outside looking in.

At the time, Mr. Bloomberg was seeking a third term, and there was speculation that a last-minute deal might be reached with the UFT that would be followed by its endorsement. That could have given him a cushion in a race in which his biggest problem was not his Democratic challenger, then-City Comptroller Bill Thompson, but voter anger at the manner in which he evaded the city’s two-term limit through a City Council bill allowing him and its members to pursue third terms.

Hard Line’s Impact

But Mr. Bloomberg, either out of sheer stubbornness or because he meant what he had said in insisting that the city’s financial condition was too precarious in the wake of the 2008 national economic meltdown to honor the pattern he had created for the unions that hadn’t already reached contract terms, never yielded on the issue. After narrowly prevailing over Mr. Thompson, he started his third term in 2010 by insisting that no raises would be granted to anyone that weren’t funded by union concessions, and said he was also ending the long practice of including retroactive pay for deals that were settled after the old pacts had expired.

The PBA was among the unions which had already gotten the two 4-percent raises under the interrupted bargaining pattern, and so it didn’t feel the same urgency as the UFT and unions like the New York State Nurses Association. A kind of collective decision was made to wait out Mr. Bloomberg, with the expectation that the next Mayor would have gotten his job with union support rather than on the strength of a bottomless bankroll financing his campaign, and so that person would be more generous and less likely to defy decades of bargaining customs that had served both sides well.

The alternative would have been a mobilization of municipal-union power that might have forced Mr. Bloomberg to honor the longtime provision for retroactive pay and pattern bargaining. There were risks inherent to such a strategy, not least of them possible Taylor Law sanctions if anything looking like a work slowdown or a stoppage took place. But there were risks on the city’s side also, not least of them the public-relations problems for a billionaire Mayor who was essentially declaring he had torn up the old rules of collective bargaining trying to rally the citizenry against Teachers, cops, firefighters, hospital workers and the other people who made the city run efficiently.

It wasn’t Mr. Lynch’s problem, though: his members had already gotten the two 4s, and they had been patient in the past when he played his cards in arbitration long after previous PBA deals expired.

But when Bill de Blasio was elected Mayor in 2013, it was with the help of the UFT, and that added to his commitment to reinstate the rules that Mr. Bloomberg had scrapped about honoring bargaining patterns and providing back pay. He was also smart enough to choose Mr. Linn to return to the role of chief negotiator for the city that he had held for the final half of Ed Koch’s 12 years as Mayor.

A Potential Pandora’s Box

Mr. Linn as much as anybody understood the craziness of what Mr. Bloomberg had tried to do in the name of financial exigency. If a Mayor proclaimed by fiat that a bargaining pattern didn’t have to be honored, it opened the door for a union like the PBA to step before an arbitrator and state that the bozo on the other side of the table had declared patterns no longer mattered and so they should feel free to give his members a larger-than-normal raise to bridge the gap with Long Island cops. Pattern bargaining had become an article of faith for Mayors back in the early 1970s after a series of arbitrations in which police and fire unions took turns topping each other, significantly driving up the city’s costs in the process.

But since four years had elapsed in which no city money was spent on pay raises, to restore order to the chaos King Mike had left at the bargaining table while not busting out the city’s budget and making it difficult to launch some of his own ambitious initiatives, Mr. de Blasio needed some careful maneuvering and the cooperation of the UFT.

Mulgrew’s Concession

The contract negotiated by Mr. Linn, under the watchful eye of Budget Director Dean Fuleihan, gave union members the two 4-percent raises that fit into the Bloomberg pattern, and with full retroactivity. But most of the retro money was given future payment dates that begin in 2018 to blunt the hit on the budget. A further concession was made by UFT President Mike Mulgrew in agreeing to an unprecedented nine-year contract, whose final seven years provided raises of just 10 percent, which didn’t figure to keep pace with inflation over that period.

Mr. Lynch signaled his displeasure with the terms on the day the deal was announced by asking the state Public Employment Relations Board for a declaration of impasse in his talks that would set in motion the arbitration process. More recently, he lobbed another volley at the deal by suing to block the city from imposing PBA-related savings under a health-benefits deal reached under the UFT accord that had the prior approval of the Municipal Labor Committee. That agreement was expected to save $3.4 billion over a seven-year period and was designed to offset some of the costs of the pay raises.

In its suit, which led an Appellate Court Judge in late June to issue a temporary restraining order, the PBA contended that the MLC was not authorized to negotiate such a change on its behalf. Making that case beyond obtaining the TRO figures to be difficult, however, given that the MLC has negotiated health-benefit issues on behalf of the entire city labor movement for the past four decades.

Putting his union at odds with the rest of the workforce in that fashion accentuated the degree to which Mr. Lynch has done that not only in this bargaining round but going back to 2005.

At that time, he had a rare bit of luck: the Bloomberg administration’s miscalculation in negotiating a contract with District Council 37 that looked so inadequate to other unions that none of them was willing to pursue a similar deal.

Because both then and now the PBA had the strongest case to make in comparing its members’ salaries to those in neighboring areas, it was able to convince the rest of the uniformed unions to sit back and let its arbitration case proceed, rather than seeking deals that might be somewhat better than DC 37’s but would undercut the PBA’s effort. Initially the strategy appeared to work: the arbitration panel chairman, Eric Schmertz, scoffed at the city’s claim that the DC 37 terms constituted a binding pattern and declared his intention of giving Police Officers 5-percent raises in each of two years, and of doing it for two more beyond that if the city was amenable.

‘Unborn’ Paid a Price

It most certainly was not, and frantically argued that concessions in other areas would have to be made or the award would compromise its budget for a new fiscal year that was fast approaching. Ultimately those concessions came as they had in a 1988 negotiated settlement between the PBA and the Koch administration: at the expense of the “unborn,” future members of the union.

Prior to their agreeing to sit back, the other uniformed unions had gotten a pledge from Mr. Lynch that if they allowed him to set the pattern, it would not include terms that gouged the unborn. The reasoning was simple, and stemmed from the 1988 deal’s fallout: reductions in starting salary and a downgrading of the pay scale before new cops reached maximum would have a negative impact on virtually every other uniformed union.

For those representing entry-level workers, with the exception of Correction Officers, their lower attrition rates meant the savings the city got from new cops would exceed those for, say, Firefighters, since their lower turnover rate meant fewer members of that workforce over a given timespan would be coming on the job under the reduced pay scale.

For those representing superior officers in the Police Department as well as the Fire, Sanitation and Correction departments, the attrition-based scheme was a double whammy: their turnover being significantly lower than for Police Officers cut sharply into the city’s potential savings, and those being promoted into their unions were getting whipsawed enough that some complained that the added responsibility that came with the upgrades was not adequately compensated for by their slightly improved salaries. When leaders of those unions had to make severe concessions to match the PBA terms under the 1988 contract, most of them wound up losing their next election, as new members who had suffered the weight of those givebacks exacted their political revenge.

Excuse Didn’t Wash

After Mr. Lynch grudgingly agreed to the arbitration award that knocked starting salary down by more than $10,000 and created a pay scale under which future hires would be earning $48,000 less during their first five years on the job than those who were already on the force, his explanation to his fellow uniformed-union leaders was that his pledge had only covered a negotiated settlement, not an arbitration proceeding. They weren’t terribly understanding when it came to that distinction.

He might have been able to avoid all the hard feelings had he explored how much of the concessions could have been avoided if he told Mr. Schmertz that the union could live with two 4-percent raises instead, if no givebacks were attached. But 5 percent has a certain ring to it, and that was the number the union came away with in its previous arbitration, and so that was that.

It came with a price, however: since then, the other uniformed unions have not sat back to take their chances on what the PBA might do—for them or to them—in its recurring arbitration battles. Mr. Lynch also didn’t exactly ingratiate himself with his fellow labor leaders when, not long after that 2005 arbitration, he issued a manifesto accusing the heads of the other police unions of being too intent on currying favor with NYPD brass to fight for what their members needed.

And so just as he found himself boxed in last year by the uniformed-union pattern, that same fate looms in a coming arbitration that would overlap with at least the first two years of the final five remaining on those unions’ contracts.

Some Room to Innovate

There are ways to generate additional money beyond the pattern when unions are willing to give the city something it wants in return, sometimes involving greater management flexibility rather than financial concessions that come at members’ expense. American Federation of Teachers President Randi Weingarten, during her tenure at the UFT, was twice able to produce such deals with the Bloomberg administration.

In the first case, in 2005, she agreed to slightly extended school hours for Teachers, relaxing of transfer rules and changes in school-discipline policies in return for additional money. There was grumbling that went beyond her usual political opposition over some of the concessions, but that deal was still approved by 70 percent of her members.

And in 2007, she set aside the union’s long-time opposition to merit pay for Teachers—which it viewed as a divisive issue within the ranks—in favor of a version under which all Teachers in a school would get the bonus if it met the city’s criteria of achieving marked improvement in struggling schools. A key condition of that contract came from a carryover of the 2005 deal that agreed to a study of the feasibility of giving Teachers the right to retire at full pension at age 55 if they had 25 years’ service: the 2007 pact included a commitment by the Bloomberg administration to support legislation to make that happen.

Will Tiger Change Stripes?

Whether Mr. Lynch will take risks in the name of that kind of innovation, rather than making the same “market-rate” argument that failed to sway Mr. Edelman 10 months ago, remains to be seen. But hunkering down in Lonesome Cowboy Mode once again poses risks for both him and his rank and file.

“Cops claim ‘we’re special, we’re special,’ but deep down they’re insecure,” Mr. O’Donnell said, a consequence of how much their work-lives are governed by forces beyond their control.

And whatever justification exists for giving Police Officers raises that exceed the pattern, the PBA has separated itself from the rest of the city’s unions to the degree that it knows that at best they’re neutral in this battle.

Which may leave the rank and file identifying less with Sheriff Clarke than with the movie prototype for that job: Gary Cooper’s besieged lawman in “High Noon.”