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  November 2002
PANEL DELIBERATIONSAs you already know, much occurred during the course of deliberations by the PERB panel rendering the PBA's award. Panel deliberations commenced on July 30, continuing July 31 and August 1. The Panel reconvened on August 6 through the early morning hours of August 7 for further deliberations. After much public debate and discussion concerning a draft award issued by PERB's neutral arbitrator on August 12, including the PBA's historic rally in Times Square on August 15, the panel reconvened for two more sessions on September 3 and 4. The following is a summary of the award and the deliberations and events leading up to the award. THE AWARDOn September 4, 2002, the Arbitration Award was signed by the neutral arbitrator and the PBA arbitrator. The relevant excerpts of the Award are set forth below: TermThe duration of this Award is for a period of twenty-four (24) months: August 1, 2000-July 31, 2002. Health & WelfareHealth and welfare benefits shall be in accordance with the Municipal Labor Committee Health Benefits Agreement. ($350 lump sum payment into the Health and Welfare Funds for each Active and Retired member, $200 increase in rate per year for each Active and Retired member beginning August 1, 2002). General Increases Effective August 1, 2000, Employees shall receive
a rate increase of 5%. AdministrationThe general increases (referred to above) shall be calculated and administered in the manner set forth in Article VI, Section 3(b) of the 1995-2000 City of New York/PBA Collective Bargaining Agreement. The terms of Item 6 Performance Compensation in the Uniformed Forces Coalition Interim Agreement dated July 26, 2001 and Article XXII in the 1995-2000 NYC/PBA Grievance and Arbitration Procedure Collective Bargaining Agreement shall be applicable under this Award. AdjustmentEffective July 31, 2002 the PBA bargaining unit shall have available funds of 1.5% in rate to purchase recurring benefits, mutually agreed to by the parties, other than to enhance the general wage increases set forth (above). The funds available shall be based on the payroll, including spinoffs and pensions, as of the December 31, 1999 payroll. THE NEUTRAL ARBITRATOR'S OPINIONOn September 9, 2002, the neutral arbitrator, Dana Eischen, sent to PERB the signed award and an opinion signed solely by him, outlining the reasons he rendered the award. The PBA arbitrator will be filing a separate opinion. The neutral arbitrator first observed that pattern bargaining and parity, principles which require that different employee groups be treated essentially the same in collective bargaining, have governed the relationship between the City and the unions. Perhaps misstating the history given the PBA's three arbitrations in the last four rounds of bargaining, the arbitrator stated: "[T]he unions representing the New York City employees — prominently including the PBA — traditionally have participated in pattern bargaining. Regarding the related concept of parity, it is undisputed that police officers and firefighters have had the same basic maximum salary for more than 100 years, i.e., since 1898 and since 1964 the same basic maximum parity relationship has applied to correction officers." The neutral also noted the vertical parity relationships between police officers and the superior officer ranks. Relying on these assumptions, Eischen stated, "[e]ven if times and circumstances were otherwise normal it would be unwise and imprudent for this Panel to impose such major sea changes on an established bargaining relationship by arbitral fiat. To do so in the context of reverberating aftershocks from the unspeakable events of 9/11 would escalate an act of imprudence to one of irresponsibility." Eischen recited Mayor Bloomberg's statement that " [t]his is a historic time in the history of New York. I don't think in modern memory, there has ever been a time where the City was so challenged to do more for people with fewer resources." For this reason, Eischen concluded that "[e]specially because the Panel is acutely aware that the City's post-9/11 fiscal environment is fraught with so many perils, this would be an absolutely inappropriate time for this panel to blaze trails into new and unexplored areas of collective bargaining for the parties." In the end, Eischen used the events of 9/11 as justification for rejecting the PBA's request for a 21.9% market adjustment. Instead, Eischen looked to other settlements that had been made in this round, particularly the Uniformed Forces Coalition Settlement. That Settlement, if you recall, provided a 30-month contract period, involving the following terms: 5% increase on the first day of the contract, 5% on the first day of the 13th month, 1.5% on the first day of the 28th month, $350 dollars in a lump sum payment into the Health and Welfare plans, and $200 increase in rate on the last day of the contract period. Because some of the settling uniformed groups had extended even beyond the thirty months, the $200 increases into their Health and Welfare funds would not begin until some time beyond 30 months. But Eischen ultimately departed from the uniformed pattern, relying primarily on (i) the recruitment and retention crisis proven in the arbitration by the PBA; and (ii) an inability to fashion a longer award without the agreement of the parties under PERB rules. Echoing arguments made by the PBA throughout negotiations and before PERB, the neutral concluded that: "for a variety of reasons including the large surge in retirement-eligible officers flowing from previous hiring initiatives and the attraction of experienced officers to less stressful police work in other venues, the NYPD uniformed force is shrinking in size. This very real crisis results from the indisputable fact that outflows of police officers have been and continue to be significantly greater than inflows of new recruits. Nor is it any longer open to reasonable debate that crime levels in New York City, a key measure of the City's quality of life, dramatically declined in recent years as a result of increases in the uniformed numbers of the NYPD. Particularly in the wake of 9/11, there can be no dispute that maintaining a numerically strong, high quality, high morale police force is a unique, critical, urgent and compelling need." Recognizing the difference between the 24-month PBA award and the 30-month uniformed coalition settlement, the neutral arbritrator valued the uniformed coalition contract extension of six months at 2.46%. In other words, by the arbitrator's own numbers the PBA award deviated from the uniformed coalition package, effectively awarding the PBA about 2.5% more than the other settling uniformed unions, with no give backs. SIGNIFICANCE OF THE PBA AWARDWhile the award was certainly not everything we sought, and much less than we deserve, there are several significant components. First, for the first time in the history of impasse arbitration with the City and its municipal unions, a panel has broken pattern bargaining, and both vertical and horizontal parity. According to Mayor Guiliani's own task force who studied this issue in 1998, the City's record in interest arbitration had been 27-0 ("of the 27 cases brought before it, the board (OCB) has voted in favor of the City 27 to 0"). The PBA's 11.5% award in 24 months as opposed to the Uniformed Coalition's 30-month agreement results in about 2.5% in extra funds to PBA members. The approximately 2.5% in additional funds in the PERB award is valued at approximately $50 million in additional funds per year for the PBA membership over and above the uniformed forces settlement. In addition, as a result of our award being 24 months as opposed to thirty months, our health and welfare funds will receive upwards of approximately $5 million in additional monies over the monies received by other uniformed groups. If anyone doubts that this is a pattern-breaking award, you merely had to observe the Mayor's very public reaction to the award. At a press conference after the award was issued, the Mayor was furious, even suggesting that the PBA was somehow disserving its members by not agreeing to allow them to work 10 additional tours for just 2% in additional monies. Similarly, the Chief Leader reported that other unions, that have not settled, including the Sergeant's, hope to duplicate the PBA's PERB award. Second, the panel concluded there was a "crisis" in recruitment and retention at the NYPD. The opinion and award were written in September 2002. We are in the next round of bargaining and as we all know, the NYPD has been unable to stave off the massive defections or to attract recruits in sufficient numbers. There continues to be a crisis in the NYPD that requires significant pay adjustments to correct. We will take that argument into the next round in making our case for fair compensation. Third, we have stopped the bleeding suffered by this union in collective bargaining, reversing a trend that began with the first zero increase in the early 1990's. Over the ten-year period of the 1990's, our members received approximately 22% in collective bargaining, a little more than 10% over what we received for 24 months in this round. Other police unions, locally and nationally, received between 40-45% during the 1990's. Through our shared efforts and determination, we hope to continue to make up for the disastrous 1990's, building on the raises in this round to further close the gap with other jurisdictions. Finally, for the first time in over 10 years, members will be receiving a significant retroactive check representing monies owed for time worked without a contract. About one third of our membership has never received a retroactive check and a great majority of our members received only a minimal amount of retroactive monies because of the eighteen months of zeros in the 1992-95 round and the 24 months of zeros in the 1995-2000 round. While it seems only fair that we should be awarded retroactive monies for time worked without a raise, a fully retroactive contract is something this union has not been able to achieve for years. Given the large amounts of overtime earned by many of our members over the past year, those checks will be significant. For example, even excluding overtime and night shift differential, members who have reached this top salary step will be receiving approximately $7,500 in gross pay before taxes. With overtime and night shift differential, depending on the amount of overtime worked, those gross amounts could climb over $10,000 for the most senior officers. HOW WE GOT THEREIn order to put the award in perspective, we want to take you through the background of the deliberations, the horrendous draft Award, the PBA's draft dissent and the PBA's historic rally in Times Square. Initial DeliberationsAlmost from the outset of deliberations, it became clear that the neutral arbitrator was not interested in awarding the naked market adjustment called for in the PBA's 21.9% compensation demand. While the evidence overwhelmingly supported the raise sought by the PBA, the neutral arbitrator refused to consider it, largely because of the City's financial difficulties in the aftermath of the attack on the WTC. Because of these concerns, the arbitrator spent much of the first three days attempting to find a way to get money into the members' pockets without overtly breaking the pattern, relying primarily on increased productivity. The neutral arbitrator had hoped to fashion an award based on the teachers' arbitration and settlement. Since the teachers had agreed to work 20 additional minutes a day in exchange for increased pay, the neutral arbitrator had hoped to render an award for police officers that would provide for additional pay within patterns already set by other unions using 20 minutes of non-patrol time at the beginning of the tour in a more productive fashion. With that goal in mind, the neutral arbitrator sought to bring the parties to a 17.5%, 30-month deal that involved, among other things, decreasing our work day from 8 hours and 35 minutes to a tour of 8 hours and 15 minutes and using the 20 minutes freed up from reducing the length of the day to schedule, within a fixed chart, 20 tours a year of approximately 12 hours. His stated goal was not to have us work a single extra appearance or work a minute of more time a year, but to essentially try to use what he considered unproductive time to get our members 6% extra in their paychecks. The alternative offered by the arbitrator at that point was entirely unattractive to our membership, involving a 24-month deal, with less compensation and a more burdensome reconfiguration of tours. Agreeing to what we believed to be the least unfavorable alternative, the PBA's arbitrator joined the neutral arbitrator in signing the 30-month award providing for a 17.5% increase. But despite disingenuous press accounts of the City's desire to get more money into our members' pockets, the City steadfastly refused to consider this option. Since PERB requires complete agreement of the three arbitrators to do an award in excess of 24 months, i.e., a 30-month award, the proposal was killed as a result of the City's refusal to give its consent. The City couldn't allow any award that could be seen as providing additional compensation to the PBA for going to PERB. The reasons are readily apparent. This would embolden other uniformed unions to assert their rights at PERB, potentially bringing to an end the City's policy of continually underpaying its most deserving workers. Also, we are told that the City was barraged by demands from other unions that this not be allowed to happen. Other unions who had settled more cheaply would have egg on their faces. Lacking complete agreement between the parties, the arbitrators had to go back to the drawing board. The arbitrators reconvened on August 6. Discussions went well into the night, with all parties, including the neutral arbitrator, expressing frustration with the process. The PBA arbitrator continued our call for a market adjustment reflecting the overwhelming evidence in the case or an award which recognized the evidence that would not make our job any more difficult; the City, for its part, continued to push for an award of 5% and 4% over two years or some other alternative that required painful give backs from our members. TEN EXTRA TOURS: THE DRAFT AWARD AND DRAFT DISSENTStill expressing that he wanted the police officers to get additional increases, the neutral arbitrator tried to push the parties back to a 30-month deal. However, at approximately 1:30 A.M. in the morning on August 7, either out of sheer frustration or something worse, the neutral arbitrator bit on a proposal pushed by the City that called for a 24-month deal requiring police officers to work 10 additional appearances a year. Members would have been required to work regular tours of 8:15 minutes as opposed to 8:35 minutes. It would have provided for a wage increase of just 13.5% over those two years Ð or just 2% more than the award ultimately rendered Ð in exchange for ten extra days. Despite the PBA's objections that he had no authority to implement that award, the neutral arbitrator indicated that he would issue a draft award along those lines. Thereafter, on or about August 12, the neutral arbitrator forwarded a written, unsigned draft award and executive summary to both party arbitrators that provided:
Not surprisingly, the City immediately signed the draft award. Just as quickly, we mobilized our efforts to kill the draft award. First, by cover letter dated August 15, the PBA's arbitrator circulated to the other arbitrators a stinging draft dissent, challenging the validity of the award and pointing out the numerous errors made by the panel in failing to follow the guidelines under PERB practice for rendering an award, and exceeding its authority under the Taylor Law. In addition to other points raised, it was clear from our point of view that the panel had no authority to render an award that changed tours without the approval of the PBA. There simply was no evidence introduced in the arbitration to support such an award. TAKING OUR FIGHT TO THE STREETSOn that same day, despite efforts by the City and Department to block our exercise of free speech, we again (for the third time in this round) took our argument to the streets, organizing a rally that exceeded any in the PBA's history. As a result of your efforts, and the efforts of our brothers and sisters turned out by the Uniformed Firefighters Association, we put, by some estimates, 50,000 people on the streets in and around Times Square — a location chosen to highlight our successful efforts to bring about the renaissance in this City. The rally was preceded by a three-day campaign undertaken by our Trustees, delegates, members and PBA staff, to blanket the transportation facilities in the City with tens of thousands of flyers asking the citizens to stand with us to put down the injustice and to give us what we deserve. Stand with us they did — in record numbers. Also turning out in record numbers were our brothers and sisters from the trade unions — many of whom had stood with us at the WTC. With record numbers of people crowding into Times Square, we were joined by celebrities and a throng of politicians — some of whom have always stood with us and others with whom we have disagreed in the past. All of them pushed with us to beat back the extra tours and joined in our demand that we be given the raises we deserve. The rally produced unprecedented coverage in the media. While management sought to instigate our members through many acts of provocation, we stood fast. We didn't allow them to diminish our message. The message was loud and clear: WE WILL NEVER AGAIN STAND FOR THE INJUSTICES THAT WERE PUT UPON US DURING THE 1990'S. WE HAVE GIVEN TOO MUCH TO THIS CITY. Media coverage generated by the rally was supplemented by press appearances, op-ed pieces and other vehicles used to get our message out there. The implementation of a new member service on our website — employment listings for other law enforcement agencies around the country — generated a significant amount of press coverage. I personally made many media appearances including on NY 1 News' "Inside City Hall"and on the nationally broadcast "Phil Donohue Show" on MSNBC. Plans for the rally appeared in virtually every newspaper and every TV news program. The rally itself was a massive media event which generated positive news coverage in all of the main-stream media. Bringing further media attention to our cause was our effort to secure FEMA monies for the payment of meaningful raises. After learning that the federal government was deviating from FEMA rules to target monies for a transportation hub in downtown Manhattan, we asked for a similar deviation to fund the salaries of our members — whose efforts in the rescue, recovery and clean up at the WTC clearly merited such recognition. On August 10, joined by Senator Schumer and UFA President Cassidy, we held a press conference at the 19th Precinct in Manhattan, which was heavily attended by members of the media. Although ultimately unsuccessful because the City refused to even consider making the request to FEMA, the FEMA issue triggered coverage of our continuing battle at PERB, and marshaled further public support for the rally of August 15. Throughout the month of August, we continued our efforts to beat back the draft award and to have the panel consider the evidence presented in our PERB case. Despite press accounts to the contrary, I met with the Mayor after the rendering of the draft award and asked him to work with me to pay our members what they were worth and correct the injustice being proposed by the arbitrator. He flatly refused. He said that he would not negotiate at all, saying essentially that we should feel the pain for having gone to PERB. Despite the accusations planted in the media — we know which party has been unwilling to negotiate from the outset. At any time during this process, the Mayor could have allowed his arbitrator to join with ours in agreeing to a fair award. He simply refused to do so. Although it appeared extremely unlikely that we would get out from under this horrible draft award, we continued to push. As a result of our shared efforts, we ultimately learned that the neutral intended to scrap the draft award and get the arbitrators back to deliberations. But that was not before the Mayor announced that the award providing for ten extra tours was a done deal. On August 16, 2002, the Mayor appeared on a Friday morning WABC News Radio Show talking as if the draft award was a done deal. According to the New York Times, he stated essentially that we were going to get the terms of the draft award including the ten extra tours. What did he know that we didn't, and why did he know it? Final DeliberationsThe arbitration panel met again on September 3 and 4. Any consideration of a 30-month deal and the possibility of a productivity raise for our members was dead. If the City couldn't draw more of our blood by imposing its 10 extra tours, it would not agree to any award which provided additional increases to our members without the infliction of additional pain. The City continued to look to hurt us — even pushing for a below pattern award. While the neutral arbitrator had been embarrassed by what had happened after the issuance of the draft award, he did not grow courage. While the City pushed for a 5% and 4% award over two years and our arbitrator continued to press for an award that would substantially break the pattern, the neutral arbitrator indicated he would only go to 5%, 5% and 1.5% over 24 months. When confronted with the alternative of 5% and 4% proposed by the City, the PBA arbitrator reluctantly agreed to the award proposed by the neutral. Faced with an arbitration award that would break the pattern for the first time, the City arbitrator stormed out of the room and did not return. WRAPPING UP THIS ROUNDTwo of the most important questions outstanding in this round of bargaining are (i) when are the raises effective and when will we receive the retroactive checks; and (ii) how will the additional 1.5% be spent. First, with respect to retroactive monies, after pressing for a speedy payment of retroactive monies, we were informed by Jim Hanley, the City's Commissioner of Labor Relations, that the compounded 10.25% (excluding corresponding increases in night differential) in raises will hit our paychecks on October 11, and that turned out to be the case. The retroactive monies, excluding possibly the additional amounts owed for night shift differential, will be in our checks on November 22. The remaining monies will come some time thereafter. On or about October 25, we will also receive the benefit of the ITHP. This was a benefit that was previously negotiated by the PBA and then legislated at the state level. It was scheduled to coincide with the completion of the contract in this round. It will effectively increase your take home pay by 2.5% by decreasing your pension contribution. Second, how will the additional 1.5% be used? We believe that each and every officer should benefit from the 1.5%. In initial discussions, the City has taken the position that only the first five steps should get that increase. We continue in discussions with the City with the goal of spreading that increase more fairly across our bargaining unit. We will advise you when the issue is resolved. Should the issue not be resolved through negotiations, the Award provides that the issue be resolved by arbitration. RECAP OF THE 2000-2002 ROUNDIf you recall, when we started this round of bargaining in May 2000, no one believed that the uniformed unions would do any better than 3% a year in this contract. In a meeting with Mayor Guiliani very early on, he expressed his belief that our membership should accept 2 or 3% a year, which, when added to ITHP, would equal 4.5% to 5.5% - an amount that was clearly unacceptable. We knew at that time the road to a contract would be a difficult one. After we began waging our successful battle to get to PERB, the City was forced to raise the ante, knowing that other unions would follow on our coattails. The City needed to keep them in the tent. As we won each additional fight on our road to PERB, the ante was raised more - to a point where the uniformed forces ultimately received a 5% and 4% deal and extras for extending the contracts — a settlement that could not have been reached without the PBA's fight. Still, that was clearly not enough for our membership. We pressed on because we all believed that we deserved more and that PERB was a vehicle to get it. We could not have envisioned that the most terrible attack to ever hit this country would occur while we stood on the doorstep of PERB. But it did occur and it had a dramatic impact on the City's budget. More importantly, to an arbitrator with little courage, it provided a convenient excuse to not deal with the gross pay disparity experienced by our members in comparison with other police departments, locally and nationally. A disparity that was clearly proven in arbitration. Nevertheless, without our fight at PERB, we would have been looking at increases of 3%-4% yearly, rather than the almost 6% yearly increases we obtained at PERB. The PERB vehicle, though flawed, served to raise all of the unions' contract increases in this round, including our own. We will need to consider the pluses and minuses of a PERB arbitration in the future, but on balance, PERB allowed us to achieve a result that we never could have gotten at the table. Our last offer from the Guiliani administration at the table was for two years of 2.5% and 3%. WHAT WE CAN EXPECT IN THE NEXT ROUNDGiven the continued financial distress in the City, the next round will likely prove to be one of the most difficult faced by the union. According to press accounts, 0% has been budgeted for the labor reserve in the next round of bargaining. The Mayor is looking for productivity givebacks and exploring the possibility of layoffs. Deficits of upwards of $5-$6 billion have been projected for next fiscal year. For our part, we have already forwarded our letter demanding bargaining in this round. Consistent with our efforts in the last round, we will discharge our duty to bargain in good faith with the City. As I have said repeatedly, the best way to get a contract is through bargaining at the table. We have some difficult choices to make should the City not bargain in good faith with us. We have now seen the imperfections of the PERB arbitration process. While still better, in my view, than what we experienced at OCB, the consideration of another arbitration, should we fail to reach agreement at the table, carries with it potential risks. As in the just completed round, this Board and I will fight every fight to get the best deal for us in this round and advise you of the progress at every step of the process. One thing we learned from this highly contentious round — we must stand shoulder to shoulder in our fight for fair compensation. The City is a formidable adversary under ordinary circumstances. In this past round, the stakes were higher. We introduced into this City a new spirit of unionism, flamed by the mistreatment of our membership over the past decade. For this reason, we stood alone from the beginning of this fight. No union stood with us. The City threw all of its considerable financial, legal and media resources at us. Yet, we took them all the way to the highest court and prevailed in our PERB fight and according to one observer who has witnessed police arbitrations of the past, we put on the finest arbitration the City has ever seen, completely eclipsing their own presentation. With our backs to the wall, you turned out in record numbers participating in perhaps the largest union demonstration that this City has seen in recent memory, helping tremendously to beat back the injustice being proposed in the draft award. While not receiving what we deserved, we were awarded the largest yearly increases (without productivity givebacks or extensions) of any city union in this round of bargaining. ONLY WITH YOUR SUPPORT WAS THIS POSSIBLE. We need to carry this unity into the next round of bargaining. IN UNITY — STRENGTH.
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