PERB Arbiter Pauses Hearings For Local 100

By GINGER ADAMS OTIS

The chair of the public arbitration panel currently hearing arguments from the Metropolitan Transportation Authority and Transport Workers' Union Local 100 on their stalled contract agreement declared a recess Aug. 11. Veteran arbiter George Nicolau, who represents the state on the Public Employment Relations' Board panel, issued a statement saying that because of "the volume of matters before the panel," Local 100 hadn't been able to conclude its case in the time allotted.

GEORGE NICOLAU: Waiting on PERB.

Nicolau Not Rushed

PERB had ordered the panel to conclude its preliminary arbitration hearings by Aug. 25 at the request of the MTA, which wanted expedited proceedings. Local 100 President Roger Toussaint, who has fought the idea of arbitration, accused the board of caving in to political pressure from Governor Pataki.

Mr. Nicolau said the panel is considering the subject of cross-petitions submitted by both parties asserting that some issues shouldn't be included in the arbitration hearings because they exceed the scope of PERB.

Those issues won't be resolved by PERB until later in the year, Mr. Nicolau wrote in a statement released to the press, and the panel can't "finalize its statutory responsibilities consistent with the interest of the public and the improvement of the labor-management relationships until that determination is made." He directed both parties to reflect on ways they could narrow the breadth of their disputes.

His decision gave a welcome reprieve to Local 100, which Aug. 10 suffered a blow when Brooklyn State Supreme Court Justice Theodore T. Jones ruled that the ongoing contract dispute between the MTA and Local 100 must be resolved outside the court.

Local 100 leaders had sought a declaratory statement from Judge Jones that the contract the MTA initially offered to workers was still valid.

Violates Taylor Law?

Local 100 members rejected that deal by seven votes in January and MTA Chairman Peter S. Kalikow withdrew the terms. He refused to bring the contract to the MTA board for ratification even after transit workers overwhelmingly approved the deal in an April re-vote.

The union interpreted Mr. Kalikow's position as a violation of the Taylor Law, the labor-relations statute barring public employees from striking and establishing bargaining procedures. Local 100 leaders filed an improper practice charge with PERB that's currently overseeing arbitration proceedings between the two groups, as well as its claim with Judge Jones.

According to union sources, the first days of arbitration - which began Aug. 4 - were given over to the MTA. The agency reportedly reverted back to its pre-strike demands, which included broad-banding titles, expanding One-Person-TrainOperation on multiple lines, and extending the retirement age. None of the sweeteners from the rejected contract deal - a maternity leave stipend, better assault pay for some employees, a one-time pension refund for nearly two-thirds of employees - are included.

PERB Can Impose

A union spokesman said Local 100 leaders plan to appeal Justice Jones's ruling. The union will also pursue its improper practice charge, which hinges on Local 100's assertion that Mr. Kalikow acted in bad faith by refusing to ratify the deal.

PERB in the past has imposed a contract upon a union when it felt that its leaders weren't acting in good faith. One example involved the Nassau County village of Lynbrook, where a negotiator bargaining on behalf of Police Officers came back with a deal that raised the retirement threshold for officers from 20 to 25 years.

The union lawyer ordered him to renege on the agreement and negotiate anew. The city balked, and the deal was headed toward arbitration when union leaders were prevailed upon to put the contract to a ratification vote. But, at a membership meeting before a vote was held, negotiators failed to say that they recommended the contract be ratified. The membership shot it down, 35 to 3.

PERB, however, ruled that negotiators had failed to bargain in good faith, specifically by not recommending the deal be ratified, imposed the contract on the union anyway.

PERB Not Talking

PERB has also in numerous instances imposed contracts on employers, most notably school boards that got tied up in difficult negotiations with school unions.

The board refused to comment on its past history of imposing contracts. In an Aug. 11 e-mail, a board spokesperson said it would be "inappropriate" to answer questions about that element of the Taylor Law while it had an improper practice charge pending "[that] seeks a determination that the MTA be deemed to have waived ratification of the MOU reached by the parties in December 2005."

Michael Axelrod, a labor lawyer who represents several public-employee unions, said the Taylor Law was clear in establishing an "affirmative duty" on both sides of the bargaining table once a Memorandum of Understanding was signed.

"What's interesting in the transit deal is that Local 100 first rejected it, and we'll have to see if that took the MTA off the hook as far as ratifying it," he commented.