City: Captains' OT Cap Not a Deal-Breaker

But Deadlock Remains
City: Capts. OT Cap Not a Deal-Breaker

By REUVEN BLAU

As the Captains' Endowment Association's contract moves to arbitration, city Labor Commissioner James F. Hanley said last week that the city was not "wedded" to creating a 40-hour overtime cap for NYPD Captains.

QUESTIONS MAYOR'S THINKING: Captains' Endowment Association President John F. Driscoll has accused the Bloomberg administration of hardball tactics in contract talks that he said could add to the growing reluctance of Lieutenants to seek promotion to the higher title. 'The shame of it is the Mayor is sitting there and allowing the Police Department to be destroyed,' he asserted. "We want the 4.24 percent of savings that everybody else generated," he said, referring to funds produced by the Patrolmen's Benevolent Associations pattern-setting arbitration award in June 2006. "We are not looking for a particular approach. We are just concerned with getting the numbers."

'Cheating Us on Value'

But CEA President John F. Driscoll charged that the city hasn't fairly valued the givebacks the union has offered to generate that savings. "The bottom line is they are still cheating us on values, so I can't reach a deal," he said.

The contract is headed to arbitration, a process that the CEA has steadfastly avoided since a bad experience in the early 1990s. Both sides will soon begin working to select the chairman of a tripartite panel from a list of arbitrators drawn up by the Public Employment Relations Board.

Mr. Driscoll called the city's prior offers "insulting" and "degrading," contending that the savings figures for the various concessions he has proposed haven't been assigned the values the city gave to the other police unions. "How can you say the value for a day for a Police Officer is worth more than the value for a Captain?" he asked.

Mr. Hanley responded, "Is he bargaining for the CEA or the PBA?" The Labor Commissioner maintained that all the unions have been treated the same. "It's the exact same methodology used for him as for everybody else," he argued.

Numbers Don't Add Up

But Mr. Driscoll pointed out that the last Detectives' Endowment Association contract generated 2.70 percent in savings for the city by agreeing to have most of the union's members work 15 or 18 minutes longer each tour. "For all Captains working 35 minutes extra, the value was .81 percent," he said. "Can you explain that to me?"

Mr. Hanley said that the "baseline" for each union is "entirely different." But he stressed that the city used the same costing methodology for every group.

Mr. Driscoll blasted that explanation. "Basically that's double-talk for cheating us on values," he asserted. "They make these numbers up and then they try to browbeat a union into accepting it. Well, this union is not going to accept it."

The CEA has been placed at a disadvantage by the PBA arbitration award issued under the aegis of the Public Employment Relations Board.

That deal, which provided cops with 10.25 percent in raises over two years, was partly financed by drastically slashing the starting salary and pay scale for future Police Officers, among other concessions. Because uniformed officers above the entry rank have a lower attrition rate than Police Officers, the city's savings from those unions' concessions would be less, prompting the Bloomberg administration to demand added givebacks from supervisory unions such as the CEA to even out the costs.

City's Demands

In the last proposal, which the CEA soundly rejected, the city sought to create a 40-hour overtime cap, have new promotees work an additional hour each tour, require Captains to use a vacation day to obtain their required firearms qualification, and to make the union capitulate to unlimited rescheduling.

Mr. Driscoll reiterated that he's open to making concessions, but contended that the city wasn't fairly valuing those suggested givebacks. "If I do what the city wants, then nobody will become a Captain," he asserted.

The NYPD has recently been struggling to attract Lieutenants to take the Captain promotion test, a problem Mr. Driscoll said is "destroying" the department. He said that when he was promoted in 1992, 99 percent of the eligible Lieutenants applied for the Captain test.

Only 473 Lieutenants out of 1,700 eligible supervisors took the most recent exam for Captain, Mr. Driscoll said. "And they don't see that as a problem?" he asked incredulously. "In the past, 99 percent of the eligible Lieutenants would take it; in the future you are going to be having nobody taking it."

COMPSTAT a Deterrent?

The drop-off has coincided with a series of police union contracts that have struggled to keep pace with inflation and left officers falling further behind what their counterparts in suburban police departments are paid. The added pressure placed on Captains over the past decade by the NYPD's COMPSTAT system, which judges Captains' performance based on computerized statistical models, has also made some Lieutenants reluctant to move up, Mr. Driscoll said.

"The shame of it is the Mayor is sitting there and allowing the Police Department to be destroyed," he contended. "He wants to be known as the Mayor who fixed education, but he's going to be known as the Mayor who single-handedly destroyed the Police Department."

The union president said that the proposed overtime cap, which the city said would generate 2.45 percent in savings, would further compound the problem, as it would have allowed the department to order his officers to work extended tours for no pay. "They'd only be compensated for the first 40 hours," he said.

The Captains' overtime issue has long been a matter of contention. In May 2005, the Board of Collective Bargaining ruled that the city violated the CEA's collective-bargaining agreement by failing to negotiate with the union before placing a 1,556-hour cap on the amount of comp time Captains can accumulate. The issue, the BCB concluded, is a mandatory subject of collective bargaining.

Claims NYPD Retaliated

Since that ruling, Mr. Driscoll charged, the NYPD has retaliated by auditing and subtracting comp time from his members that the department had previously signed off on. In response, the CEA brought another unfair labor practice charge against the NYPD. That complaint is still pending.

The NYPD has contended that it removed the cap on comp time in December 2001 as part of the aftermath of the exhaustive post-Sept. 11, 2001 search-and-rescue efforts. As a result of that activity, many officers in ranks from Captain to Deputy Chief accrued more than a year of comp time.

That situation has resulted in some individuals leaving the department and spending over a year on payroll as they exhaust their comp time, while continuing to hold civil service positions that cannot be filled, according to the NYPD. It also reduced the number of experienced supervisors and impinges on the department's ability to determine its staffing and scheduling needs, the department argued. To solve that problem, in April 2004 the NYPD moved to reinstate the cap. In addition, the city attempted to force Captains and other supervisors to use their comp time within 30 days.

Required to Negotiate

The BCB majority decision stated, however, that the department must negotiate with the union before implementing such a modification. "We find that the department must bargain with the CEA over any imposition of or changes in the limitation on the accrual and use of compensatory time and related procedures," the 4-2 decision stated.

The BCB ruling suggested that the city address the matter during the contract talks with the union. "To the extent the city alleges that the use of compensatory time earned for performing overtime work impinges on its staffing decisions, it may seek to address these concerns through negotiations," the panel majority stated.

Mr. Hanley noted that the last time the CEA contract went to arbitration the panel chairman, Maurice Benewitz, ruled in favor of the city on many key issues. "The last arbitrator bought into our model," Mr. Hanley recalled. "I believe this is the exact same case."

Mr. Driscoll noted that the last arbitration process was handled by the city's Office of Collective Bargaining. "And that was a different union president," Mr. Driscoll added. "This time it's in PERB, and we are going to be well-prepared."