Schmertz Still in Limbo
PERB Confirmations To Move PBA Case

By REUVEN BLAU

The State Senate April 17 confirmed Jerome Lefkowitz as Chairman of the Public Employment Relations Board and Robert S. Hite as a board member, which will likely move along the Patrolmen's Benevolent Association's stalled arbitration process.

JEROME LEFKOWITZ: Set to take reins.

The previously vacant three-member board had complicated matters for the city's Office of Labor Relations, which is seeking to expedite the arbitration procedure to help the NYPD's struggling recruitment efforts.

Will Rule on Appeal

The problems arose after the PBA began to question PERB's authority to act in the absence of a functioning board. The two confirmed members, however, represent a quorum and can now adjudicate the PBA's protest concerning the selection of an arbitration chair to decide the union's contract. In March, an Albany County Supreme Court Justice ruled that only the state board can arbitrate the PBA's appeal.

The Bloomberg administration has appealed that decision, seeking to force PERB's Director of Conciliation, Richard A. Curreri, to name the city's choice, Arnold M. Zack, to chair the mediation panel.

But the PBA has called Mr. Zack - the former president of the National Academy of Arbitrators - biased against the union because he served on a panel that a decade ago froze cops' pay for two years. That decision was based on a wage pattern set by other uniformed unions.

ERIC SCHMERTZ: Appointment on hold.

'Return to Normal'

Mr. Lefkowitz has said that the city's appeal would be rendered "moot" once the board was confirmed. "With the confirmation of Mr. Lefkowitz and Mr. Hite, all matters requiring PERB attention will return to normal operation," PERB's Web site stated.

Mayor Bloomberg has also indicated that he hoped the matter would be resolved once the board was confirmed.

For the past several months the board had been completely vacant for the first time in its history, following PERB Chairman Michael R. Cuevas's departure in December after heading the agency for eight years. The board's two other per diem members, John T. Mitchell and Mark Abbott, left earlier.

On Feb. 13, Governor Spitzer nominated Mr. Lefkowitz - one of the crafters of the state's Taylor Law 40 years ago - to chair PERB.

Mr. Lefkowitz, 76, served as the first head of the three-member board for 19 years prior to retiring in 1987. Since then he had worked as general counsel for the Civil Service Employees' Association.

Law Misinterpreted?

Shortly after his nomination, he said that he decided to return to chair PERB because he wanted a change and believed the prior board was misinterpreting the guidelines set out in the Taylor Law.

Mr. Spitzer also selected Mr. Hite and Eric J. Schmertz to fill the other two board positions. Mr. Schmertz's nomination, however, has been bottled up by opposition from the unions representing Police Detectives, Lieutenants and Captains. The veteran mediator was the chair of the 2005 PBA arbitration panel, which created much controversy by sharply reducing the starting pay for new cops.

By contrast, the Lefkowitz and Hite nominations had broad union support. Mr. Hite also has prior legal experience as well as labor knowledge. He previously worked as the managing principal of Hite, O'Donnell and Beaumont. From 1995 to 2000, he was the general counsel to Council 82 of the American Federation of State, County and Municipal Employees.

As for the PBA arbitration process, the city has steadfastly asserted that Mr. Zack should be automatically selected because the union "defaulted." As proof, the Bloomberg administration has cited a memo attached to the list of nine arbitrators presented by Mr. Curreri to both sides in December stating that the city and union had to begin to make their choices within five days.

"The parties shall immediately notify the Board of the designated public member," the document stated. "Upon the failure of one party to participate in the selection process, all names on the list shall be deemed acceptable to it."

'Beyond His Discretion'

On that basis, the city contends that Mr. Curreri must immediately designate Mr. Zack as the chairperson. "Respondent Curreri is, thus, required by the PERB rules to perform the ministerial and nondiscretionary act of immediately designating [the] public arbitration panel," the city's appeal argued.

But the PBA has maintained that Mr. Curreri promised the union and the city that the list of arbitrators would not include any mediators who were involved in prior PBA decisions.

The two arbitrators at issue, however, were part of a panel operating under the jurisdiction of the city Board of Collective Bargaining, not PERB. Following their 1997 award, the PBA succeeded in getting legislation approved that permitted it to take contract disputes to the state panel.