A Lesson for Both Sides

The reactions of Transport Workers' Union Local 100 and the Metropolitan Transportation Authority to last week's contract arbitration award seemed designed to prove Yogi Berra wrong: It ain't over even when it's over.

Following the release of the award by arbitration panel chairman George Nicolau, the two sides issued dueling statements basically blaming each other for letting it come to this.

Noting that the award provided the same terms that the MTA refused to sign off on last April when Local 100 members ratified a deal they had narrowly rejected three months earlier, union President Roger Toussaint asserted that MTA Chairman Peter Kalikow "paid a white-shoe law firm nearly $2 million in a pig-headed attempt to embarrass transit workers in arbitration."

MTA chief negotiator Gary Dellaverson - who represented it on the three-member arbitration panel - countered that "this award reinforces the fairness of the Taylor Law's peaceful dispute resolution process and proves that last year's illegal transit strike was utterly unnecessary."

There is some truth to both statements. But the lingering bitterness makes it obvious that neither point is as clear-cut as it might seem.

Mr. Dellaverson is right that the arbitration process worked the way it is supposed to, thanks to the skillful move by panel chairman George Nicolau in reconstituting a couple of key provisions of the deal - concerning a pension refund and extended health coverage for retirees - so they could be dealt with under the legal provisions that limit the powers of arbitrators.

His contention that the strike could have been avoided if Mr. Toussaint - who resisted giving the matter to a third party both before and after the walkout - had utilized this option rests on a couple of large assumptions, however.

Arbitrators never work from a blank slate in sorting out the demands of the two sides. They consider heavily the final bargaining positions of the parties; in this case Mr. Nicolau had the added guidance provided by the contract that was negotiated to bring an end to the three-day strike.

It was not until transit workers had walked off the job, however, and mediators were called in that the MTA moved off its demand that a new pension tier be created for future employees, in favor of having all employees pay a share of their health-benefit costs. The earlier position was disingenuous and unnecessarily provocative if management was sincere about wanting arbitration, since pension matters are prohibited subjects of that process unless both sides want them included.

Mr. Toussaint surely knew that, but the MTA's hard-line position may have also led him to conclude that it would not be flexible enough in arbitration to discuss the pension refund - which affects about 20,000 of his members - and the extended health coverage for retirees.

What Mr. Toussaint calls Mr. Kalikow's pig-headedness in not signing off on the re-voted contract gives the MTA Chairman blame that properly rests with Governor Pataki. Mr. Pataki both before and after the strike barked at the sound of the bells rung by editorial writers in the Wall Street Journal, the Post and the Daily News, fearful that it would compromise his faint hopes to be President if they viewed him as insufficiently tough on the union. That was a contributing factor in the strike; it also led him to try to undercut the contract after editorial writers slammed the pension refund.

As we've noted before, most public officials with a lick of financial sense would gladly exchange a one-time refund for a recurring reduction in costs, particularly when it involves health benefits. That's why Mayor Bloomberg, who looked at the deal's bottom line rather than being suckered into faking outrage by editorial knee-jerkers, had no problems with the TWU contract.

Transit workers are no doubt glad that the deal is finally in place and they will soon be getting their raises and back pay. Those gains are not without cost: besides the delay in receiving the money, they took a financial hit under the Taylor Law employee penalty of two days' pay for each day on strike.

That provision was not in place during the 1966 transit strike, which ended successfully for Local 100 members in part because the sharpest sanction that existed then for a walkout - mass firing - was too impractical to have any teeth.

The financial bite for both transit workers and the union is very real, however, and there's more trouble down the road for Local 100, which faces the loss of dues checkoff rights once it has finished paying off $2.5 million in fines.

That is why, under normal circumstances, it should be preferable for the union to take advantage of the right to binding arbitration that is another key component of the Taylor Law. One of Mr. Toussaint's stated objections to arbitration was that it removed from his members the right to decide their own contract. In this case, however, they wound up losing that right anyway. Does anyone really imagine that more than a handful of them, given a choice between what they went through and the promise of the dispute being resolved five or six months earlier, would not have opted to give up their vote in advance?

Last week's award, rather than being something for either side to crow about, should be a reminder of the need for Mr. Toussaint, who sweated out a tough reelection battle, and Lee Sander, Governor-elect Eliot Spitzer's choice to run the MTA, to cleanse the bad blood that produced the strike and continuing anger in its aftermath.

Please click here for our Copyright Notice.