Razzle Dazzle

Unions Better Off At Table

By RICHARD STEIER

In several respects, Pat Lynch and Roger Toussaint appear to be in the same bargaining boat: high-profile leaders of unions with demanding memberships and contract problems that could affect their upcoming elections. They both have tense relations with management negotiators who are pressing for the wage deals to be decided in arbitration rather than at the negotiating table.

While both Mr. Toussaint, the president of Transport Workers' Union Local 100, and Mr. Lynch, a transit worker's son who is head of the Patrolmen's Benevolent Association, are publicly resisting arbitration, however, there is reason to believe that only Mr. Toussaint really means it. That is because he has a model for a contract deal he likes, in contrast to the most likely model for Mr. Lynch.

Can't Always Get What You Want

The deal Mr. Toussaint wants is the one he negotiated last December following a three-day strike but which the Metropolitan Transportation Authority declined to honor after Local 100 members initially rejected it a month later. The union president is now suing in Brooklyn Supreme Court in the hope that the same judge who sentenced him to prison and imposed heavy monetary penalties against Local 100 will compel the MTA to enact the contract terms, which were handily approved by union members when Mr. Toussaint held a re-vote in April.

SLOUCHING TOWARD ARBITRATION: Transport Workers' Union Local 100 President Roger Toussaint (left) and Patrolmen's Benevolent Association leader Patrick J. Lynch both insist they're being pulled reluctantly toward arbitration of their contracts, although Mr. Lynch has used that avenue to produce both wage accords reached during his seven years in office.

Mr. Lynch doesn't want any part of the deal that would seem to be his union's destiny, based on the historic parity relationship between the PBA and the Uniformed Firefighters' Association. The UFA last fall got the same two 5-percent wage hikes that the PBA was awarded by an arbitrator 13 months ago under a two-year contract, then extended its deal by 26 months to get additional raises of 3 and 3.15 percent.

Mr. Lynch doesn't believe those hikes are nearly good enough to keep his members happy, and he's probably right. He won office seven years ago by capitalizing on member displeasure with a 1997 contract arbitration award, running as the only one of four presidential candidates who was not part of the PBA board when that award was issued. He clearly does not want to have the discontent over wages that brought him to power fuel the engine that drives him out.

He and Mr. Toussaint both have an interest in stalling the arbitration process, but for different reasons.

The obvious hope for the Local 100 leader is that his arbitration, which begins Aug. 4, is prolonged into the new year, by which time it seems certain that Eliot Spitzer will be the Governor of New York. Mr. Spitzer is on record as saying that if he already held that post, he would have signed off on the Local 100 deal.

The State Attorney General's comments might be viewed as the sort of sweet nothings uttered by political candidates looking for an endorsement, except for the fact that this position is shared by Mayor Bloomberg. The only elected official of note who is on record questioning whether the Local 100 contract terms were good for management is Governor Pataki; unfortunately for Mr. Toussaint, he was the official with the greatest influence over MTA Chairman Peter Kalikow.

Governing By Editorial

In the run-up to the transit strike, a series of anti-union editorials in the New York Post, Daily News and Wall Street Journal demanded that Mr. Pataki and Mr. Kalikow stand firm against Mr. Toussaint and his marauding members, with the Journal stating that the Governor's behavior would determine whether he could be taken seriously as a candidate for President in 2008.

Those same papers later railed against the MTA's failure to get the union to accept a reduced retirement benefit for future members, even as it agreed to provide a refund of up to $14,000 of extra pension contributions that transit workers made to the New York City Employees' Retirement System between 1995 and the beginning of 2001.

People who negotiate contracts for a living believe the MTA won something more valuable than the reduced pension plans it tendered prior to the strike: Local 100's agreement to have its members pay 1.5 percent of their earnings toward their health benefits. It was this gain that left Mayor Bloomberg - who hopes to get a similar concession from municipal unions - with no qualms about the transit pact.

The editorial writers continued to work themselves into a froth, however. The Journal accused the Governor of having "caved on pension reform;" the News - which earlier had suggested Mr. Toussaint was leading his members off a cliff by striking - railed that those employees had "made out like bandits," and the Post accused the MTA of rewarding the strike with a pension giveaway.

Mr. Pataki apparently decided that the facts weren't of much use to him if editorial writers believed he and his MTA Chairman had been bamboozled, and so he made loud noises against the deal. Mr. Toussaint charged that the Governor's remarks led some of his members to question whether he would not honor the contract, although it seemed more likely that the Pataki tirades would have convinced them they'd gotten a good deal.

But when the union's rank-and-file, which was clearly unhappy about the proposed health-premium payouts, rejected the terms by seven votes, it gave Mr. Kalikow the opportunity to serve Mr. Pataki by insisting the deal was dead beyond resurrection.

We know that he did this at the Governor's bidding because, back in February, Mr. Kalikow reacted to the voting down of the contract by saying, "I wish they would accept it."

Plays Independence Card

This change of heart puts a particularly strange light on Mr. Kalikow's insistence last month that it was essential for him to serve the full six-year term that he recently received to preserve the MTA's independence, even though Mr. Spitzer has made clear that he wants him gone if and when he becomes Governor. As Gene Russianoff of the Straphangers' Campaign noted in response, "Anyone who has a shred of independence would have thumbed his nose at the Governor and signed the contract" after it was approved in the Local 100 re-vote.

Mr. Toussaint believes the hard line dictated by Mr. Pataki's faint national hopes is continuing to loom over the pending arbitration proceedings, questioning why the Public Employment Relations Board is holding the hearings on the contract prior to decisions being made as to what issues are outside the scope of bargaining. He also was exercised that PERB had placed a deadline on the Chief Mediator for its city office, Phil Maier, of Aug. 25 for concluding scope of bargaining hearings.

Mr. Maier declined comment.

Not the Only Case

It is unusual but not unprecedented to have the arbitration case argued prior to the scope of bargaining proceedings - another MTA subsidiary, the Triborough Bridge and Tunnel Authority, had it done in that order not long ago. And the expedited nature of the arbitration proceedings, which was ordered by PERB at the MTA's request over Local 100's objection, is also not the norm but occurred with another union of comparable size: the PBA, two arbitrations ago in 2002.

Mr. Toussaint is convinced, nonetheless, that pressure from the Governor's Office is driving the proceedings and could lead to rulings, in scope and in the wage arbitration, that are unfavorable to him and his members.

"The level of interference is disturbing, to say the least," the Local 100 president said during a July 25 interview. He made clear that he would prefer that the process extend into next year, regardless of whether the end result is an arbitration award rather than a contract deal being approved by the new Governor.

Unmentioned during the conversation was that by that time Mr. Toussaint might no longer be in office, since he is up for re-election in November. He seemed confident that he would be given a third term, pointing to the strong vote in favor of the deal union members originally rejected as evidence that they regained whatever confidence they had lost in his judgment following the strike.

No Use for Arbitration

One of the major provisions of the Taylor Law since its enactment 39 years ago guarantees the right to arbitration. This was meant to assure public-employee unions that they had a viable alternative to striking in a case where management was being intransigent.

The Taylor Law was in no small measure a response to the 1966 transit strike. Mr. Toussaint said the union since that time had generally avoided placing its contract in the hands of a third party, and he is convinced that unions have lost more than they gained from getting the arbitration safeguard.

"We are comfortable maintaining control over the outcome [of the bargaining process], and if there's bad news taking it to the members rather than hiding behind third parties," he said.

he trend nationally over the past decade, he remarked, has been to change the concept of a job so that it "no longer includes a decent pension and health benefits." Against that backdrop, he contended, last December's three-day walkout should be viewed in the context of "somebody somewhere putting the flag of resistance up a flagpole. I genuinely believe we were not wrong and we're not sorry, and we would do it again."

PBA's Differing View

The PBA, on the other hand, has refrained from dropping labor's equivalent of The Bomb, instead making a habit of bringing its contract disputes with the city into arbitration. Four of the union's last five contracts have been settled that way, and the bad feelings between the union and the Bloomberg administration have intensified during the last two arbitrations.

From the time he took office, Mr. Lynch has contended that a bill passed in the late 1990s that gave the PBA the right to go to arbitration before PERB rather than the city Board of Collective Bargaining offered union members a prime opportunity to make up some of the ground lost in the past three decades to officers in Nassau and Suffolk in the area of salaries. He has contended, without much convincing evidence, that the BCB is biased in favor of city administrations, and that PERB offered the added advantage of allowing arbitrators to compare cops to cops in other jurisdictions, rather than forcing them to focus on pay relationships with other city employees.

A False Perception?

There are good reasons to wonder whether being under PERB provides much benefit to the PBA. The two largest unions of city workers that can go before PERB, TWU Local 100 and the United Federation of Teachers, have used its services sparingly. There has long been a suspicion that the magic imputed to switching to PERB's jurisdiction was a figment of the imaginations of the union consultants who pioneered the PBA's efforts to secure the legislation: former attorneys Jim Lysaght and Peter Kramer and ex-attorney and negotiator Richie Hartman.

All three men were paid by the union for their lobbying work on the issue, and all stood to benefit from increased fees for any arbitration proceeding. Any claims that they merely pushed the PERB bill because it was right for the union became suspect after their 1998 convictions in a racketeering conspiracy that featured payoffs they made to officials of the old Transit Police Benevolent Association in return for sizable fees for services that were not actually needed.

The union last week declined comment on whether it might consider returning to the table to try to win a contract in bargaining. Mr. Lynch released a statement July 27 accusing the Bloomberg administration of failing to negotiate in good faith, saying that during the bargaining "the city did not make a single offer that represented a real increase to the compensation of those who risk their lives to keep New York safe."

Consents to Mediation

Nonetheless, in a comment that foreshadowed the union's subsequent response to the city's impasse petition, Mr. Lynch said that "the PBA supports the appointment of a mediator," the first step before an impasse can be declared by PERB.

Arbitration has been a costly proposition for the PBA: Mr. Lynch imposed a $7-per-paycheck dues increase last year to help cover the costs of the last proceeding. He has claimed that it has been worth it for the two arbitrations before PERB, citing contract gains that he said would not have been made at the bargaining table.

Last year's arbitration was a decidedly mixed blessing, however. While the PBA won raises in excess of the pattern set by District Council 37, part of the edge it had in that area was offset by a sharply reduced pay scale for future cops that was included in the arbitration award. Even incumbents, who reaped the full benefit of the raises, will have the award return to bite them if they are ever promoted, since the structure of that contract forced the unions representing Detectives and Sergeants to accept similarly reduced pay scales for future members.

Did Better in '02

The 2002 arbitration gave PBA members the same wage increases totaling 11.75 percent as most other uniformed employees, but with a key difference: their contract lasted only 24 months, compared to the 30-month deal agreed to by the Uniformed Forces Coalition. That gave PBA members an additional six-month period for a future raise those other unions would not get.

The problem, from Mr. Lynch's standpoint, is that the arbitration award four years ago did not allow the PBA to break free of the link to the UFA. Although the firefighters' union was originally part of the uniformed coalition that reached a deal with the Giuliani administration on July 31, 2001, it did not ratify the contract prior to Sept. 11 and subsequently put a vote on hold. When Steve Cassidy succeeded Kevin Gallagher as the union's president the following spring, he pronounced the coalition deal unacceptable and, after Mr. Lynch's arbitration award was issued, persuaded the Bloomberg administration to give him the same 24-month deal.

UFA Deal Likely to Bind

This time around, the UFA is under contract for the period covered by a potential new arbitration for the PBA. Mr. Lynch could undoubtedly make a compelling case for the same kind of anti-terrorism differential given to State Troopers last year and more recently to other state law-enforcement personnel. He would have a hard time convincing an arbitration panel, however, that he should get such a bonus in a contract round when it has not been provided to the UFA. The weight of bargaining history might not even be the strongest argument against such a breaking of parity, given the emotional argument lodged by the much higher death toll among firefighters than cops at the World Trade Center.

Those realities are the prime reasons that city officials believe Mr. Lynch would rather not have a contract - whether through bargaining or arbitration - by the time of his election next May. They believe he is counting on members accepting the argument that he can do better than the established pattern if they give him another term to get the job done in arbitration.

If cops don't buy the argument that a better deal than the UFA got is out there, and grow restless about continuing to work under a contract that expired July 31, 2004, Mr. Lynch could be vulnerable if a serious challenger emerges.

Case for Bargaining

He might be able to prevent that scenario from occurring if he went back to bargaining and sought an extended deal from the Bloomberg administration. That would force him to accept the same 3-percent and 3.15-percent raises that have been the norm for the uniformed unions like the UFA, but would also offer the opportunity to negotiate a longer deal that would provide better-looking wage increases in the years beyond.

Last month's District Council 37 deal, which included 6 percent in raises over its final 19 months, could be a sign that Mayor Bloomberg has slightly loosened the purse strings in his dealings with labor. It is not clear whether he would expect uniformed unions to strictly adhere to the pattern he claims was established by the DC 37 deal or might give them slightly more, as did Rudy Giuliani in his last contract or Ed Koch throughout his three terms as Mayor.

Longer Deal's Appeal

But if the PBA hopes to bring back an anti-terrorism bonus or extra compensation for the college requirement imposed by the NYPD for new cops 11 years ago, it figures to have to do so during a contract term that goes beyond the current UFA deal. It could not do that in an arbitration unless both sides agreed to have the duration of an award extend beyond the two-year limit mandated by PERB.

And if the administration and the union were inclined to agree on that, it would represent the kind of softening of battle lines that might indicate they could actually work something out without a third party's help.

It might not be what Mr. Lynch had in mind. For his rank and file, however, it could be the best shot of getting a worthwhile deal reasonably quickly, rather than enduring another long, costly arbitration that figures to ultimately yoke them to the UFA terms Mr. Lynch finds so untenable as he gears up for re-election.

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