Razzle Dazzle: PBA Squeezes, Kelly Hollers

Razzle Dazzle
PBA Squeezes, Kelly Hollers


There was a certain sour irony that at virtually the same time on May 21 that Police Commissioner Ray Kelly was venting his frustration over both the low starting salaries for cops and the delay in rectifying the problem, the state's chief mediator issued a ruling that meant the Bloomberg administration and the Patrolmen's Benevolent Association had wasted the last five months.

In decrying the impact that he said pattern bargaining has had on his ability to recruit new officers, Mr. Kelly was distancing himself from his boss in what could be called "Good Cop, Bad Mayor" mode.

In contrast, Richard Curreri, the Director of Conciliation for the Public Employment Relations Board, faulted the PBA for dragging out the arbitration process in what he indicated included a specious attempt to tar the reputations of two candidates to chair the contract panel.

Uncharacteristic Public Discord

It is unusual for a mediator to use language as cutting as that employed by Mr. Curreri. But it is downright rare for a Police Commissioner to so openly question the policies of the Mayor at whose pleasure he serves. Rudy Giuliani may have believed Bill Bratton stepped on his blue suede shoes by making the cover of Time Magazine, but his exiled Police Commissioner never publicly questioned his judgment, at least not until after he'd been sent packing.

AN UNHAPPY HOSTAGE: Police Commissioner Ray Kelly (left) last week made clear his frustration that a bargaining impasse will continue to hurt NYPD recruitment until the starting salary for Police Officers is significantly raised. Patrolmen's Benevolent Association attorney Mike Murray (right) has joined with union President Pat Lynch in raising objections to the arbitration process that will likely delay a contract award until sometime next year. In the past Mr. Kelly had blistered the June 2005 arbitration ruling that reduced cops' starting salary to $25,100, seeming to focus on the panel's chairman, Eric Schmertz, even though Mr. Bloomberg signed off on the award.

But what could have been read as an implicit criticism of the Mayor - since Mr. Schmertz cut the pay scale so sharply only because the city insisted - veered quite close to explicit when Commissioner Kelly told a City Council hearing last week, "The whole issue of pattern bargaining has to be re-examined, because it's not working very well [for] the Police Department."

Mr. Bloomberg's initial reaction was spare, but there was no misinterpreting his feeling when he was asked whether he was re-evaluating his bargaining approach: "No. Do you have any other questions?"

The following day, pressed again by reporters, he said, "There's nothing to discuss. We are not going to break pattern bargaining in this city; it would devastate this city. It's not fair to other unions."

Beyond that, he alluded to the re-opener clause he gave to the Uniformed Firefighters' Association in March because it was apprehensive about signing off on a deal without knowing whether the PBA might do better in arbitration. The re-opener offers protection to both parties, not the least of it being the stiffening of the city's resolve and the strengthening of its arguments in arbitration because it would be liable for tens of millions of dollars in ripple-effect costs if the PBA succeeded in breaking the pattern and ending more than a century of salary parity between Police Officers and Firefighters.

"At some point in time here the police are going to wake up to the fact that unless their union is willing to sit down face-to-face, you'll have some other arbitrator do something else which may hurt the city," Mr. Bloomberg said.

Kelly Gives PBA a Pass

Mr. Kelly, in contrast to the Mayor, did not question the PBA's bargaining strategy. Doing so would have muffled that portion of his message that was aimed at his troops; it's tricky to make the case that you're on the side of the cop in the street if you're criticizing a union for negotiating tactics that the cop more than likely is supporting.

But then, this is a battle that can't be reduced to easy answers, or easy solutions. The clout Mr. Kelly enjoys with the Mayor was sufficient to earn the Police Department the primary response role in most emergency situations even though on the merits it seemed to make more sense to give the Fire Department that designation. Doing so enraged the fire unions and emphasized the fact that Fire Commissioner Nick Scoppetta is second among equals, but it did not disrupt city operations the way an abandonment of pattern bargaining in the middle of a negotiating round would. And the PBA has conducted a scorched-earth policy over the past couple of years that, while it may play well with union members frustrated by salaries that pale in comparison to what is paid to police in the suburbs, has needlessly and often unjustifiably antagonized almost everyone who has crossed the path of PBA President Pat Lynch and his bargaining counsel, Mike Murray.

Over the past 18 months, the two of them have questioned the integrity, independence or intestinal fortitude of other uniformed union leaders, the city Board of Collective Bargaining, Mr. Curreri, and two of the arbitrators he had named as potential panelists.

Even a May 24 press release from the union following Mr. Curreri's ruling that sought to portray it as taking the high road to move the process forward included a quote from Mr. Lynch deriding the city's attempt to "install an arbitrator with an anti-police history to sit in judgment of our expired contract."

He was referring to Arnold Zack, whom the Bloomberg administration sought to have declared chairman of the panel after the PBA refused to participate in the selection process because it objected to Mr. Zack and Stanley Aiges being on the list of nine arbitrators presented by Mr. Curreri.

The knock on the two arbiters is that in 1997, while serving on a BCB arbitration panel, they approved a contract award that froze cops' salaries for the first two years of a 62-month deal, consistent with other city contracts that had already been agreed to in that bargaining round.

Overheated Charge

Looked at fairly, the worst that could be said about the two arbitrators' decision was that they acted conventionally in signing off on a package that conformed to an existing bargaining pattern. Does that warrant accusing Mr. Zack of "an anti-police history"? Not in a reasonable world.

And that is where mediators and arbitrators reside. The great majority of them are not looking to blaze trails; they are brought in to resolve disputes, and they tend to pay careful attention to precedents in doing so.

The 2005 arbitration award issued by panel chairman Eric Schmertz was a deviation from that usual devotion to craft. While Mr. Lynch has touted that award, with its two 5-percent raises for incumbent officers, as among his key achievements as PBA president, the union's representative on the panel, Jay Waks, devoted much of a 39-page brief to ripping it apart and faulting Mr. Schmertz's logic (the city's representative, Carol O'Blenes, was similarly caustic but needed only 10 pages to voice her objections).

Mr. Schmertz's first calculation was to decide on those raises, then to figure out how to satisfy the city's demand for savings to offset part of their cost. Mr. Waks made a valid observation that the givebacks Mr. Schmertz decided on "are inconsistent with his own key substantive holdings."

The DC 37 Factor

The 1997 award signed off on by Mr. Zack and Mr. Aiges was heavily influenced by an earlier deal with District Council 37 that subsequently produced partial wage freezes for unions representing Teachers and various uniformed workers.

Mr. Schmertz quickly made the decision that a 2004 DC 37 contract that was ridiculously one-sided in the city's favor should not be a binding pattern in considering the terms for the PBA. But while his wage award significantly exceeded the DC 37 deal, even when concessions were figured in, he imposed far greater damage on the pay scale for future cops than DC 37 Executive Director Lillian Roberts agreed to for her new members. The end result was a nice raise for veteran cops, substantial future savings for the city because of the slashed pay scale, and an absolute behemoth of a recruiting problem.

One veteran of the bargaining table last week summed up the result this way: "That was truly a lose-lose."

It could be argued that the city would have been better off if Mr. Schmertz had stuck to his convictions and not carved so big a chunk out of the pay scale. The 1988 PBA contract that this deal most resembled offered the Koch administration nearly as much in savings as the 2005 award without reducing starting pay: it merely froze entry-level salaries and stretched out the progression to maximum salary from three years to five. If that had been done two years ago, rookies would still be starting at $36,878, enough that neither Mr. Kelly nor newspaper editorials would be wailing that the salary was an insult. If Mr. Schmertz had given cops two 4-percent raises to smooth out the costs a bit, it still would have given PBA members 5 percent more in pay hikes than had been negotiated for DC 37 for the same two-year period.

Everyone Unhappy

Instead, Mr. Schmertz produced an award that left both sides unhappy and compounded both the pay problem for the job and the animosity between the PBA and the Bloomberg administration. Governor Spitzer has nominated him to be a member of PERB; our bargaining table vet said this was fortunate for Mr. Schmertz because the 2005 PBA contract was "the last major arbitration he'll get to handle."

In rendering his decision last week, Mr. Curreri took exception to the PBA's attacks on the fairness and professionalism of Mr. Zack and Mr. Aiges.

"The two individuals of concern to the PBA are nationally-reputed arbitrators who have served on PERB's neutral panels for over thirty years; both are members of the National Academy of Arbitrators and one, Mr. Zack, is a former President of that highly respected professional association," Mr. Curreri wrote. "There can be no question as to their qualifications or expertise as arbitrators."

He stated that if the union was unhappy with the two of them, it should use its right to strike them from the list, noting, "A decision a party deemed unfavorable in 1997 is certainly not a basis for disqualification of an arbitrator in 2007 ..."

Mr. Curreri also questioned why the PBA waited until 12 days after it received the list of arbitrators to object that Mr. Zack and Mr. Aiges were on it.

PBA Didn't Default

Even as he lamented the way in which the union had delayed the process, however, Mr. Curreri rejected the city's claim that Mr. Zack should be appointed as the arbitration chairman because the PBA effectively defaulted from the selection process.

That claim cited a three-decade-old case in which PERB had appointed the Albany police union's choice to an arbitration panel after officials of that city refused to participate in the selection. In that case, Mr. Curreri said, Albany officials made it clear they were opting out; in contrast, the PBA, whatever its delaying tactics, had been involved, and had raised a legitimate objection: that with PERB's governing body vacant at the time, he lacked the authority to make a final determination.

The net result, however, is that the parties are back in the same place they were last Dec. 15, when they received Mr. Curreri's list of potential arbitration chairs. It could be argued that the PBA delayed its members from receiving raises that are already 34 months overdue by that period of more than five months, and by more than that if the union files a frivolous appeal of Mr. Curreri's decision not to eliminate Mr. Zack and Mr. Aiges from the panel.

Cops Backing Lynch

The fact that Mr. Lynch was just re-elected without opposition suggests that a majority of his rank and file does not fault him for the drawn-out contract process, and may actually be happy that it has driven a wedge between Mr. Bloomberg and Mr. Kelly - at least publicly. Cops may not care that the attack on the integrity of two arbitrators is unlikely to help their case with the person who is ultimately chosen to chair the panel.

But then, the frustration of both the union and its members is born largely from the problems they have encountered in their last three arbitrations - the 1997 one before the BCB panel prior to Mr. Lynch taking office, and the 2002 and 2005 ones under PERB.

Five years ago, the PBA put together a clever argument for giving Police Officers a raise that went beyond what other uniformed employees had already negotiated in that round. It relied not on the salary gap between the city and police forces on Long Island, but rather the disparity with what cops in Newark were making. The PBA's outside labor counsel at the time, Bob Linn, argued that when salaries and pay differentials were computed against hours actually worked, NYPD officers were making 27-percent less than their Newark colleagues.

Only Chipped At Chains

It sounded like a compelling argument for what Mr. Lynch calls a "market adjustment." But when the case was decided, arbitration panel chairman Dana Eischen's only bow to the union's demand that he break the chains of pattern bargaining was to give cops the same raises as other uniformed workers but over 24 months rather than the 30-month duration of those other contracts. And even that gain was reportedly not supposed to be part of his initial award; it came after some heated last-minute lobbying that may have involved the union reaching out to Governor Pataki for intervention.

Two years ago, despite Mr. Schmertz's inclination to give cops a significant raise and his conclusion that they had already demonstrated the kind of productivity the Mayor was demanding of all unions by continuing to reduce crime even as police headcount dropped by 4,000 officers, his generosity came at the expense of future hires. And because his reduction of the pay scale for new hires later had to be adopted by the unions representing Sergeants and Detectives in order to obtain the same raises, it also was guaranteed to hurt any PBA members who were promoted.

Mr. Schmertz cited bad timing as an excuse for letting slip the final chance presented to him to give the PBA the kind of breakthrough deal Mr. Lynch was hoping for. After both sides had concluded their cases but before the arbitrator's award was issued, an Albany panel gave State Troopers a differential of more than $2,500 a year for taking on anti-terrorism duties.

No Final Appeal

It offered a powerful precedent for granting the same type of bonus to city cops, who were doing such work to a greater degree. Mr. Schmertz declined to re-open the hearings to permit arguments on the subject, however odd it seemed that a man who lamented the low pay for cops would not deem it worthwhile to give the union an opportunity to make the case for an added benefit.

That case still exists. The problem now, however, is that - unlike the situation two years ago - there is a UFA contract in place for the period at issue that does not include such a bonus. That gives the Bloomberg administration the opportunity to argue that if such a differential is to be considered, it should be done in a round when it could be applied to both groups.

The Mayor could, of course, not press that issue, and give the bonus to the UFA at a subsequent time to maintain the parity relationship between cops and Firefighters. But the ill will between City Hall and the PBA may make him less inclined to do so. It is probable that the hard feelings figured into the city's successful challenge recently to a 32-year-old BCB ruling in order to deny the PBA the chance to have work schedules featuring longer tours but fewer shifts considered as part of the contract arbitration.

Beyond Kelly's Control

It is no wonder that Mr. Kelly feels like he's caught in the middle, reduced to a pawn in a battle that is virtually certain to hamper recruiting not only for the July police class but for the one next January as well.

And if the PBA is regarded by outsiders, from Mr. Curreri to tabloid editorial writers, as the roadblock to dealing with the problems caused by the substandard starting pay, that seems alright with Mr. Lynch. Caught in the vise of pattern bargaining, he and Mr. Murray are turning a handle of their own, as if to say, "Squeeze me? Squeeze you!"

It's hard to imagine the pressure swaying Mr. Bloomberg, and hard to imagine the arbitrator chairman, once one is finally chosen, disregarding the UFA contract in deciding on one for the PBA. That may matter less to the union than the small satisfaction to be derived from spreading the pain.

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