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June 22, 2007 Solidarity for PBA Appeal on Tours
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Previously, Mr. Garvey, who has clashed on bargaining strategy in the past with PBA President Patrick J. Lynch, had questioned his decision to seek the arbitration process that produced the ruling.
PBA: Overstepped
The amicus briefs filed in support of the PBA's appeal marked one of the first times such documents were submitted in a Public Employment Relations Board case, veteran labor attorneys said.Earlier this month, the PBA filed its own appeal, arguing that ALJ Philip L. Maier's decision directly contradicts prior case law on the issue. The PBA's appeal also pointed out that the city itself hadn't sought to have the issue declared a prohibited subject of collective bargaining.
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The Office of Labor Relations initially hailed the ruling, which some labor attorneys believe allows city negotiators to require cops to work more tours. "It's a heavy decision and hopefully the PERB board will recognize the practical impact of it," Mr. Garvey remarked.
The unions representing NYPD Captains and Suffolk County Police Officers have also filed amicus briefs on behalf of the PBA's appeal, contending that the decision should be reversed.
Stalls Police Talks
Mr. Maier's ruling has frozen practically all pending police contract negotiations until PERB makes a final ruling on the PBA's appeal, which is expected to drag on for months.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 at least 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 should the decision be upheld.
Mr. Maier's finding was rendered after the PBA sought a declaratory ruling to determine what contract issues are considered outside the scope of bargaining and precluded from the upcoming arbitration hearing.
City Not Taking Option
The ruling gave the NYPD 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" that cops accrue under the current system. The city, however, has so far refrained from taking that step, since it would require the NYPD to radically change how officers are scheduled.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.
The PBA and some of the other supervisory police unions have been seeking to negotiate lengthened tours for years, to no avail.
Mr. Maier, however, 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.
Precedents for Dodging
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.
Mr. Garvey argued that the work schedule issue was the "meat-and-potatoes" of what unions have been traditionally allowed to negotiate with management, along with wages and other key benefits. "We think Phil Maier erred in his decision, certainly as it relates to work rules," he argued. "So we actually joined with the PBA."
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