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May 11, 2007 Razzle DazzleUFA Re-Opener Burns PBAWhen the Patrolmen's Benevolent Association decided to challenge as illegal a re-opener clause in the Uniformed Firefighters' Association contract just before ratification ballots were mailed out, suspicious minds wondered whether it was an attempt to torpedo the deal. Those cynical souls - and we know who we are - figured it was no coincidence that, while the contract's details had been revealed in early March, the PBA waited until the end of April to bring a complaint at the Public Employment Relations Board. It couldn't be mere coincidence that the union notified this newspaper's Reuven Blau just in time to make it into an issue published May 1, the day after the UFA contract ballots were mailed, could it? Cassidy: Lynch Getting Heat UFA President Steve Cassidy, however, dismissed the suggestion that his PBA counterpart, Pat Lynch, hoped to cause a bit of mischief by leading Firefighters to wonder whether the clause that protects them against Police Officers getting a better deal in arbitration might be overturned. What was driving the PBA's action, he speculated in a May 2 phone interview, was far more likely a need for Mr. Lynch to calm his own members rather than shake up Mr. Cassidy's. "We believe," Mr. Cassidy said of the improper labor practice charge that the PBA made, "it's a reaction to how strong our re-opener language is, and political pressure they are receiving internally as their elections come forward. It has no merit, and we're not worried at all." At present, no one has emerged to oppose Mr. Lynch's bid for a third-four-year term, and it's not even clear whether there will be challenges for other PBA offices when nominations are held later this month. A spokesman for Mr. Lynch said the timing of the improper practice filing was accounted for by "a lull in the arbitration process in which to prepare the legal challenge." Mr. Lynch added in a statement that the union took that step "with the sole purpose of protecting the arbitration process on behalf of our members. It is clear to us that the city intends to use the 're-opener' clause to inflate the cost of a PBA arbitration award in an effort to deter an arbitrator from awarding police officers the significant raises called for by the Taylor Law. It is our belief that such an action is in violation of the Taylor Law and that the city should be prevented from using such a strategy." The PBA president has succeeded in keeping rank-and-file anger trained on Mayor Bloomberg, even as he has faced criticism in several newspapers - including this one - for stretching out the contract process with a most leisurely stroll toward arbitration for the third consecutive contract. He has vowed that he will convince arbitrators to end the century-plus parity relationship between cop and firefighter salaries, citing the NYPD's problems in recruiting and retaining officers while the FDNY faces no such personnel crisis, and the growing gap between his members' salaries and those paid to officers in neighboring jurisdictions. Arbitration Tab More Than $7M To do so, however, the union will have to spend - based on the cost of its two prior arbitrations since Mr. Lynch took office - in excess of $7 million on its case, and an award is unlikely to be issued before next year. Those two realities undoubtedly account for the "internal pressure" Mr. Cassidy said he believed spurred the PBA's case against his contract: if the UFA deal went through as is (ballots will be tallied May 10), Police Officers might wonder whether it was worth spending all that money and waiting all that time when they are working under a contract that expired more than 33 months ago. When the PBA did slightly better than a coalition of uniformed unions in its 2002 arbitration case - getting the same raises but over a period of just 24 months, compared to the 30-month duration of the coalition's wage deal - the UFA had not yet ratified a contract. (It wound up negotiating the same terms with the Bloomberg administration that the arbitrators gave the PBA.) The long history of salary parity between cops and firefighters would figure to make it extremely difficult for the PBA to win an arbitration award that exceeded the terms won by the UFA for the same period. The issue is further complicated by the fact that virtually the entire UFA contract covers a period that is beyond what the arbitrators will consider for the PBA. Unless both Mr. Lynch and the Bloomberg administration consented to a longer award, the arbitrators must limit their decision to a two-year period that would end Aug. 1, 2006. The pending UFA contract would begin on that same day. The re-opener clause, however, would be applicable for the 26-month period that would largely overlap the next PBA deal, as well as the duration of the new UFA contract, which would expire July 31, 2008. A side letter to Mr. Cassidy from Labor Relations Commissioner Jim Hanley states that if any uniformed union - meaning the PBA - were to get "an adjustment made to their salary schedule through the collective bargaining or arbitration process" between August 2004 and next July that led to greater wage increases than the UFA had gotten, "this agreement will be reopened for the purposes of negotiating the effect of that adjustment - through the final steps of the bargaining process." Insurance for UFA During the 1990s, two different Mayors authorized Mr. Hanley to issue letters - one to the Uniformed Fire Officers' Association, the other to the UFA - affirming their "commitment to the concept of parity" between police and fire as it pertained to maximum salaries to convince them to agree to contract terms before deals had been struck with the PBA. Those deals did not cover differences that exist in other aspects of the contracts, such as longevity payments or - as is currently the case - in the disparity between when rookie cops (after six months) and firefighters (after 13 weeks) move from the starting salary to the first step on the pay plan. Re-opener clauses when they were granted in the past were pegged to a rival union doing better at the bargaining table, not in arbitration. City officials have traditionally been reluctant to have such protections apply against arbitration awards because they are, to a certain extent, beyond their control. Mr. Cassidy insisted on that language, however. It supplies peace of mind that if arbitrators give the cops raises exceeding the 3 and 3.15 percent that he negotiated for the final part of the contract that expired last August, he could address the disparity at the bargaining table. Perhaps even more importantly, since arbitrators figure to be especially reluctant create a difference in the maximum salary between police and firefighter jobs - which is how the city has always defined parity - it gives him a guarantee of further negotiation if the panel raised the starting pay for new cops without requiring givebacks in other areas that were as stringent as those he agreed to for future Firefighters under his new deal. Serves City's Objective The PBA in the papers it prepared on the improper practice case characterized the side letter as a "parity clause" rather than a re-opener. This is an important distinction: where re-opener clauses are common, a parity clause, which is more colloquially known as a "me-too agreement," is illegal under the Taylor Law. The PBA charged that the Bloomberg administration agreed to the parity clause "to illegally interfere with the [union's] pending interest arbitration proceeding." At the time that he reached the deal in early March, Mr. Cassidy contended that Mr. Hanley had told him previously that he would never agree to a re-opener that covered a past contract, and implied that he relented to strengthen the city's position in dealing with the PBA. Two labor experts who are not involved in the dispute - both of whom spoke on condition that they not be identified - had slightly different reactions when asked if the UFA clause could be viewed as having the same effect as a "me-too agreement." 'Not Textbook Me-Too' One of them said, "It's not exactly a parity clause that gives them Most-Favored-Nation status. It doesn't guarantee them anything, except the right to renegotiate." But, he added, there was "a slim possibility" that PERB could conclude that it crossed the line into a Taylor Law violation by leaving the impression that it would "absolutely bind" the UFA's ultimate contract terms to whatever the PBA was able to achieve in arbitration, thus producing significant extra costs to the city if arbitrators disregarded the fire deal as a pattern. The other one said, however, that the language seemed to stop short of an improper practice. "It's not a 'me-too' like you would teach it in school," this practitioner said. "Sounds like a re-opener rather than a me-too clause." By any name, it's the equivalent of wearing suspenders and a belt if the object is to ensure that the city vigilantly protects the pattern it has created for uniformed employees with the UFA contract. The Bloomberg administration could be expected to do that even if there wasn't the raw dislike that has developed between City Hall and the PBA over the past five years. An Easy Assumption On May 2 - five days after this newspaper got the PBA's improper practice complaint - Mr. Hanley said he still hadn't received a copy of the papers and thus couldn't comment on the charges. "I suppose there's a provision in the Taylor Law that a union must serve the papers on a newspaper of its choice before notifying the employer," he remarked. Even the implication in the re-opener language that breaking the pattern for cops would wind up costing the city more for firefighters would have been assumed by virtually any arbitrator familiar with the salary relationship that has long bound the two groups. And so it might be argued that the efforts of both Mr. Cassidy in securing the re-opener and Mr. Lynch in trying to nullify it are rooted more in reassuring their members than in a substantive need. Mr. Cassidy brushed off a question about whether the PBA was intruding upon his ratification process, just as Mr. Lynch had insisted when the UFA deal was reached that it should not be relevant to the fate of his contract. PERB: Might Not Be Ours What is particularly intriguing is that it's not clear that PERB has the authority to rule on the case. Legislation that was enacted before Mr. Lynch took office in 1999 gives the PBA the right to seek arbitration before PERB, but its improper practice cases are handled by the city Office of Collective Bargaining. The PBA contends in its legal papers that the re-opener clause interferes with its rights in that arbitration, but the problem involves the contract of a union - the UFA - that falls under OCB's aegis. PERB's Chairman, Jerome Lefkowitz, said May 2 from Albany, "It may well be that we don't have jurisdiction." If that is true, then Mr. Lynch would have to go before the city Board of Collective Bargaining seeking relief, a body that he has assailed on numerous occasions as biased in favor of management, notwithstanding several key decisions it has rendered in the union's favor. Still Unchallenged It would be a fitting wind-up to the dispute - a union leader whose simmering tensions with the city have risen toward the boiling point potentially alienating his once-close ally at the UFA by challenging his contract in the home stretch of its adoption process, and then counting on an organization for which he has shown unremitting scorn to make the call in his favor. All that bad blood with outsiders, and yet Mr. Lynch seems likely to be unchallenged within his union. That, among everything percolating in this nasty little battle, may be the one aspect that definitely isn't a coincidence. What it says about the relationship between PBA members and their employer at City Hall ought to worry both sides a bit.
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