Waiting on Spitzer
Lack of PERB Head Stalls PBA Process

By REUVEN BLAU

Governor Spitzer's delay in appointing a new Public Employment Relations Board Chairperson will likely further slow the contract arbitration proceedings between the Patrolmen's Benevolent Association and the Bloomberg administration.

GOVERNOR SPITZER: Mediation board vacant.

PERB's Chairman Michael R. Cuevas left in December after heading the agency for the past eight years. The board's two other per-diem members, John T. Mitchell and Mark Abbott, have also departed, with no replacements named. "I don't know what's going on," one source familiar with the board said last week.

It is unclear why Mr. Spitzer hasn't already named a new Chairman. Several calls to his press office were not returned. "He's a brand-new Governor," a source said. "I believe he'll get to it."

Not Exactly Expediting

The vacant board has complicated matters for the city's Office of Labor Relations, which is seeking to expedite the arbitration process to help boost the NYPD's struggling recruitment efforts.

"We were the ones that filed for impasse," noted Labor Commissioner James F. Hanley. "We've been trying to settle this contract and resolve the salaries for quite some time, but so far it's been one hand clapping."

JAMES F. HANLEY: 'One hand clapping.'

PBA President Patrick J. Lynch has rejected the city's two offers to raise new officers' starting pay, partly because of the givebacks both would have required of future hires in other areas. The union has also argued that the maximum salary for cops needs to be increased in order to help recruit and retain new officers.

Two weeks ago, the union questioned PERB's authority to act in the absence of a functioning board. "That's being reviewed here by me and in counsel's office," said Richard A. Curreri, PERB's Director of Conciliation, during a Jan. 11 phone interview.

The PBA has argued that PERB officials promised the union that the list of arbitrators would not include any mediators who were involved in prior PBA decisions.

But Mr. Curreri, who's in charge of compiling the list, asserted that he had made no such promise. "There was no automatic rejection of panel members' names," he remarked. "There was nothing like that."

PATRICK J. LYNCH: Seems in no hurry.

In response to the PBA's latest objections, Mr. Hanley has argued that the city's selection to chair the arbitration panel should be automatically chosen because the union has "defaulted."

That argument, however, appears to have taken a back seat to the larger question of PERB's authority in the absence of a board. "At this point, that's really not immediately before us," Mr. Curreri said, referring to the city's petition.

The selection of the arbitration panel chair may not be legally finalized until a new PERB Chairman is named by Governor Spitzer and appointed by the State Senate. According to the PERB Web site, the chairman is the chief executive officer for the agency, who sets policy standards and issues final rulings on appeals.

PBA's Panel Beef

Mr. Lynch has also rejected the list of nine arbitrators that Mr. Curreri submitted to both parties, objecting to two mediators who a decade ago froze cops' pay for two years, conforming to a pattern set by other uniformed unions.

Mr. Hanley, however, has noted that the two arbitrators, Arnold Zack and Stanley Aegis, were on the lists PERB presented to the two sides for the PBA arbitrations that were decided in 2002 and 2005. In neither case, he pointed out, did the union reject the lists based on their inclusion. He said he believed the union did so this time as a delaying tactic.

One veteran mediator not involved in the case has also questioned the PBA's stance. "You wouldn't be on the panel if you weren't acceptable," the official said, noting that Mr. Zack is the former president of the National Academy of Arbitrators. The source also noted that each side has "an opportunity to strike four people."

But the PBA has argued that including "biased" arbitrators on the list places the union at a distinct disadvantage.

Who Signs Off?

It is unclear if the PERB board must approve the list of names compiled by Mr. Curreri and the Chairman. "I don't think there is any doubt that at the time the list was drawn, there was a board," a source said. "The next question would be, if they made their picks, do you need the board to appoint him or can Richard Curreri make that decision?"

But according to the insider, both sides could "strike and rank" arbitrators and get the "official appointment letter" from the board chairperson once that individual is appointed. "If you are going to wait to start picking, you are just losing time," the source said. "What's the benefit of not participating?"

The arbitration process has traditionally taken months, as respected arbiters are in high demand and difficult to line up. "Arbitrators most seasoned are often most sought after," an insider said. "People want to put their hands in the most seasoned arbitrator." In addition, PBA arbitration hearings typically involve days of testimony, and arbitrators generally prefer to find a week or more of time when all parties are available rather than spreading out the hearing dates.

Delay Hurts NYPD

The NYPD has concerns about such a delay because it has had a difficult time attracting new officers under the sharply-reduced pay structure. At a Jan. 10 swearing-in ceremony for 1,148 new cops, the department revealed that it is 1,000 officers short of its targeted headcount.

As for the board, Mr. Curreri pointed out that it handles all appeals concerning Administrative Law Judge decisions. "The absence of a board is a major impediment to the quasi-judicial side of this agency," he said. "The longer it goes, the more the backlog grows and the more difficult it becomes, that's just the nature of things."