It's Back to the Arbitration Board for PBA, City; PERB Official Rejects Union's Claim of Panelists' Bias

By REUVEN BLAU and RICHARD STEIER

RICHARD CURRERI: Raps PBA for delay.

The Public Employment Relations Board's Director of Conciliation May 22 rejected the Patrolmen's Benevolent Association complaint concerning the list of potential arbitrators and ordered the union and the Bloomberg administration to begin the process of choosing one to help settle their contract dispute.

Richard Curreri dismissed the union's claims that two of the nine arbitrators on the list he compiled in December are biased against cops. He also ruled, however, that the PBA did not fail to participate in the selection process, as the city had contended.

'Extraordinary Case'

The PBA had questioned Mr. Curreri's authority to act in the absence of a functioning board, which had been completely vacant for the first time in its history not long after Governor Spitzer was elected last November.

"There is little question that, by raising this objection, the PBA, as a practical matter, has frustrated the relatively speedy processing contemplated by the Legislature and PERB," Mr. Curreri's seven page decision concluded. "While this is to be lamented, and in ordinary circumstances, would not be condoned, the circumstances presented in this case were extraordinary."

Mayor Bloomberg hailed the ruling, even though the city had actually been seeking to have Mr. Curreri appoint Arnold M. Zack to chair the panel handling the PBA contract.

PATRICK J. LYNCH: Not ruling out appeal.

"I am pleased that the state's Public Employment Relations Board has ruled that the binding arbitration process should go forward with the panel selection list that was issued last December," he said in a statement. "Being that the city filed for arbitration almost a year ago, we hope that this decision exhausts the PBA's stall
 
tactics so we can give Police Officers the same well deserved raises we have negotiated with other public safety unions."

PBA's Caveat

PBA officials also expressed a willingness to move forward quickly, but with a significant caveat. Union President Patrick J. Lynch issued a statement saying he would not appeal Mr. Curreri's ruling on two conditions: that the Bloomberg administration drop its appeal of an earlier ruling by PERB rejecting its contention that the PBA had defaulted and so the city's choice for arbitration chairman should be confirmed, and that it agree to the striking from the list of the two arbitrators who were at issue here.

Acceding to that demand would in essence increase the PBA's latitude in challenging those remaining on the list. Under PERB's rules, each side is permitted to knock out candidates until there is one remaining who meets the approval of both sides.

MAYOR BLOOMBERG: You talkin' to me, Ray?

City Labor Relations Commissioner James F. Hanley declined to state definitively that he would refuse that request, but he made clear his leanings. Speaking of the two arbitrators, Mr. Zack and Stanley Aiges, to whom the union objected, he said, "These are the same people who were on two prior lists [for the 2002 and 2005 PBA contract arbitrations] and they didn't take that position. Rather, they exercised their striking ability. I would suggest they could do that here."

Disputed Pledge

Mr. Lynch's chief spokesman, Al O'Leary, responded that there was a crucial difference. "In this case, our expectation was there would be nobody with prior PBA arbitrations on the list," he said.

The PBA has alleged that Mr. Curreri assured them prior to issuing the list that he would not include any arbitrators involved in previous cases; he has denied making such a guarantee.

Mr. Lynch's statement threatened a further delay in the process if the city did not agree to his requests, saying that a refusal would leave the PBA with "no choice but to appeal the decision [by Mr. Curreri] to the complete [PERB] board in order to receive a fair list of unbiased arbitrators who have the wisdom and experience to resolve these important issues. While such an appeal will lengthen the process
 
and further delay the arbitration, it is in the best interest of New York's grossly underpaid police officers."

No End in Sight

If the PBA ultimately chose not to appeal, the decision would likely jump start the arbitration process, but the procedure still would be far from a resolution anytime soon, despite the city's move to expedite the matter.

It can take several months just to schedule the selected arbitrator, as most veteran mediators have busy calendars. In addition, there are still several legal issues that could further delay the situation.

Aware of that reality, Police Commissioner Raymond W. Kelly May 21 publicly questioned the city's longstanding reliance on pattern bargaining, the system where the first union to negotiate a contract with the city sets the wage and benefit model for other labor organizations.

At a City Council hearing, Mr. Kelly said that method is "not working very well" for the NYPD. "The whole issue of pattern bargaining has to be re examined," he added. "There's no end in sight or resolution of this problem."

Mayor Disagrees

But later that same day Mayor Bloomberg made it clear Commissioner Kelly wasn't speaking for the administration. "Pattern bargaining has been a standard in this city for probably 100 years," he told reporters. "It is well established and, yes, it does make it more difficult when you have a union that is not willing to sit down."

The following day, Mr. Hanley also pointed out that pattern bargaining is the "industry standard" in other sectors as well, including the maritime and airline industries.

PBA President Lynch, however, has argued that there is no mention of pattern bargaining in the Taylor Law. He has contended that wages for city cops should be based on what other officers in nearby surrounding jurisdictions earn.

The latest dispute in the arbitration process arose when the PBA questioned PERB's authority to act in the absence of a functioning board. That issue is now
 
"moot" because the State Senate April 16 confirmed Jerome Lefkowitz as Chairman of PERB and Robert S. Hite as a board member, Mr. Curreri ruled.

Defends Arbitrators

As for the list of mediators, Mr. Curreri pointed out that the two arbitrators at issue, Mr. Zack and Mr. Aegis, were part of a panel operating under the jurisdiction of the city Board of Collective Bargaining, not PERB, when they issued an arbitration award in 1997 that began with a two year wage freeze for cops. The PBA subsequently succeeded in getting legislation approved that permitted it to take contract disputes to the state panel.

Mr. Curreri also noted that Mr. Zack is the former president of the National Academy of Arbitrators. "The two individuals of concern to the PBA are nationally reputed arbitrators who have served on PERB's neutral panels for over thirty years," he added. "There can be no question as to their qualifications or expertise as arbitrators."

Mr. Curreri dismissed the contention that the list was tainted, concluding that the union was merely dissatisfied with Mr. Zack but did not make a credible argument to disqualify him.

"The PBA did not like an award rendered by these arbitrators on a set of facts that existed 10 years ago," Mr. Curreri noted. "It is entirely possible that the city has received awards in the past from these or others on the nine person list that it, too, at the time, found disagreeable."

He added, "It is commonly known that arbitrators often come into and go out of favor with a given party -- and then back again -- with the frequency that George Steinbrenner once hired, fired and rehired managers."