Rule NYPD Can Boost Number Of Cops' Tours; Thwart PBA Bid For More Days Off; All Ranks Affected

By REUVEN BLAU

In a major blow to the city's police unions, an Administrative Law Judge has ruled that extending officers' tours beyond eight hours is a prohibited subject of collective bargaining and violates state law, a decision that could require cops to work more tours.

JAMES F. HANLEY: Gains added leverage.

ALJ Philip L. Maier's decision was rendered after the Patrolmen's Benevolent Association sought a declaratory ruling to determine what contract issues are considered outside the scope of bargaining and precluded from the upcoming arbitration hearing.

'Devastating' Impact

Union attorneys last week were scrambling to assess the May 3 ruling, with one labor insider calling it "the most devastating decision" he has seen in more than 30 years.

The NYPD has gained the right to move its approximately 35,000 officers back to standard eight-hour tours, which would eliminate the accumulated multiple days off known as chart days cops presently accrue under the current system, lawyers familiar with the case said.

PATRICK J. LYNCH: Denounces ruling.

But such a drastic move appears impractical and highly unlikely, since it would require the NYPD to radically change how officers are scheduled.

"We are not going to do anything precipitously," said Labor Commissioner James F. Hanley, noting that the city was still reviewing its options. "We are going to take a reasonable and reasoned approach on all labor issues."

PBA President Patrick J. Lynch questioned the logic of the ruling, which was drafted by the chief city mediator of the Public Employment Relations Board. "The decision is contrary to the law and decades of labor practice," he said in a statement. The PBA is working on an appeal.

Sought Longer Tours

Presently, cops work 8-hour and 35-minute tours and must be scheduled to make 243 appearances to reach the mandated 2,088 hours of work each year. The PBA was seeking to negotiate either 10- or 12-hour tours, which would enable its members to be scheduled for fewer appearances. (The actual number of days worked is reduced because of vacation days and sick leave time.) As an example, if tours were extended to 10 hours, officers would only have to be scheduled for 209 appearances.

ANTHONY GARVEY: 'Impact is devastating.'

The PBA has been seeking to negotiate lengthened tours for years, to no avail. "It's a heavy issue for them," said a labor source. "It's right under wages."

But Mr. Maier concluded that any demand relating to the length of tours is a prohibited subject of bargaining because the statute in the Unconsolidated Laws states that cops must not exceed eight hours except in emergency situations such as riots or strikes. "The statute evidences a clear legislative intent to preclude bargaining over the subject," his 22-page decision stated.

Affects All Ranks

Pensions and disciplinary matters are also prohibited subjects of collective bargaining. Over the years, unions have negotiated with the city to agree to support legislation to enhance retirement benefits in cases where any additional costs were borne by the union or its members.

But those deals, city negotiators pointed out, have always been funded by some type of union concession or giveback. There have not been any recently recorded negotiated changes to support legislation to amend disciplinary practices.

MICHAEL J. PALLADINO: Illogical decision.

The ruling may force the city to go back to 8-hour tours, meaning Police Officers would have to make 261 appearances and would lose 18 chart days a year. The other NYPD officer titles would be similarly affected. For instance, Sergeants, who work 8-hour, 57-minute tours, would lose 28 chart days. "The practical impact is devastating," said Anthony Garvey, the president of the Lieutenants' Benevolent Association.

"This is one of the worst decisions that I've ever seen," said another veteran labor insider.

Other Cop Unions Hurt

The ruling will likely freeze current and pending police contract negotiations until PERB makes a final ruling on the PBA's appeal, which could drag on for months. "It's going to take substantial time before a decision is rendered," Mr. Garvey said.

The decision also gives the Office of Labor Relations powerful leverage in future contract talks with those groups.

Mr. Lynch, however, argued that the ruling contradicted a previous finding by Mr. Maier in April 2002, which concluded that work schedules are a mandatory subject of bargaining. The PBA contended that officers should be paid on an overtime scale for the added 35 minutes beyond the 8 hours detailed in the statute.

"If this ruling is left standing, it will likely result in tens, if not hundreds of millions of dollars in overtime costs for the city," Mr. Lynch asserted.

PBA: Our Plan's Better

Mr. Hanley countered, "There is no merit to that claim." But the PBA's stance may actually push the city to move officers back into shorter tours in order to avoid violating the statute and having to pay officers overtime for the added minutes.

Mr. Garvey argued that such a switch would be bad public policy. "It's a double-edged sword," one labor lawyer added. "It's so convoluted, and I don't know where everybody is going. This could be a big deal."

Mr. Lynch argued that changing tour schedules would make the job even less appealing. "The PBA proposal at issue, a schedule requiring longer tours and fewer appearances, would ultimately make the department a more attractive job at a time when the NYPD cannot recruit or retain qualified candidates," he said. "Why does the city continue to push a labor policy that is destroying the job of New York City Police Officers?"

Michael Axelrod, an attorney who represents several local uniformed unions, downplayed the decision. "It's not the worst thing that happened in the history of mankind," he remarked during a phone interview. "It's very statute-oriented. It's a nonsensical ruling, which flies in the face of the industry."

Case for Longer Tours

He noted that other local police departments have already moved to 10- or 12-hour tours, because the extended shifts reduce sick leave and save on personnel costs. "It's more of a consistent work schedule," he said.

The PBA also contended that extending tours would save the city money. "We think the proposal is one of many issues that should be corrected at the bargaining table," said its primary attorney, Michael Murray. "The world is moving to modern charts. This department is back in the '70s, while the world is marching forward."

City negotiators, however, contend the extended tours actually add costs, because the NYPD is required to pay personnel overtime for officers who miss tours.

The LBA is particularly concerned by Mr. Maier's decision, as the union recently negotiated a pilot voluntary 12-hour tour for platoon commanders in eight specified precincts. The LBA had been trying for years to negotiate longer tours, which could enable Lieutenants to make more than 60 fewer appearances each year.

But that program, which was scheduled to start soon, may be in jeopardy and certainly cannot be expanded during the current round of bargaining because of the decision. "I was looking to renegotiate a new contract," Mr. Garvey said. "As long as this is lingering, I can't do that."

PBA Loses 4, Wins 2

Mr. Maier's decision also concluded that four other issues that the PBA was seeking to have addressed by the arbitration panel are non-mandatory subjects of collective bargaining. Those topics are: specific staffing levels for security purposes, bulletproof vests, a line of duty sick-leave program, and requiring the city to notify the union each time changes are made to the Patrol Guide.

But two issues that the PBA was looking to include can be dealt with in the arbitration proceeding, Mr. Maier said. They are: creating health and safety guidelines similar to those used for private-sector employees, and increasing maximum pay "for lack of negotiable disciplinary procedural protections."

Mr. Garvey said that the ruling proved why it was always better to negotiate with the city directly, as opposed to seeking arbitration. "You pick up the dice when you have a scoping process," he argued. "I've always heard how great PERB is. All of that is nonsense. This is a perfect example of what happens when you don't craft your own destiny."