PERB: Day 5 – December 12, 2007
James Hanley, Commissioner Office of Labor Relations
The City next put on James Hanley, Commissioner of the Office of Labor Relations, who did his typical slanted re-creation of the City’s bargaining history and predicted “nuclear meltdown,” if we exceed the pattern, which we have heard countless times across the bargaining table and in every arbitration that we’ve been involved in. He also took gratuitous, though misinformed, shots at the PBA and some of our proposals.
Through the use of the City’s own documents and historical records, he was revealed to be lacking in credibility on many key points. First, Hanley’s underlying premise that “nuclear meltdown” would occur if the PBA was awarded more than the pattern because of events that happened almost four (4) decades ago was called into question. Simply put, he distorted the cause of the so-called parity wars of the 1970’s. It was shown through cross examination that the City voluntarily negotiated parity clauses and that fact, more than anything else, led to the situation of the early 1970’s. Even Commissioner Hanley made clear in his testimony that parity clauses have since been held to be illegal and that unlike the “me too” clauses in the past, no union in the City has a binding parity clause. Even Hanley’s testimony about the costs of the parity wars, which he testified cost the City $300 million dollars was shown to be dramatically inflated.
On cross examination, Hanley was forced to reiterate his testimony from the last arbitration that we should be paid at the Goldberg standard or among the highest paid in the country, and made the incredible assertion that we are being paid at that standard when you consider the Heart Bill and the VSF benefits received by police officers.
When asked hypothetically if the panel were to disagree with him and conclude that we are not being paid among the highest in the nation, would it be the City’s position that we should be moved to be among the highest, Hanley first pretended not to understand the question and then said “we will live with the decision when it is rendered.”
Hanley was next made to admit what the PBA has been saying for some time: once the pattern is established, the City will not deviate from the net cost of the pattern. In effect, he conceded before a labor arbitrator with a quarter century’s experience that the City is violating the labor laws in every round of bargaining.
Hanley was next made to admit that the City’s definition of pattern had changed over time. For example he admitted that the City has used parity of cost, parity of benefit, and in some rounds uniform differentials and differentials based on external funding sources to define pattern. So, despite the City and the Mayor’s claims, pattern in the form it was practiced in the 1990’s was not the norm and that practices has changed over time.
After testifying to the minimal differences that existed between the civilians and uniformed union’s settlements in certain rounds where there was a uniformed differential in the period before we had PERB, Hanley admitted that we have substantially exceeded the settlements of the civilian unions since 2000. In fact, he was forced to admit that in the 2000-2002 round, we received 40% more than civilians and in the next round and that we more than doubled the civilian settlement. This testimony was important because it indicated to the arbitrator that there has been a sea change in negotiations in the City since PERB, even if it sometimes is not recognized by some. If we had received increases of this nature above civilians in the 1990’s, we would clearly not be in the situation that we are in today. This testimony also demonstrated that there would be no “nuclear meltdown” from the civilians if the panel were to grant a pattern breaking award. In fact, despite our receiving historical differentials from the civilians in the last two rounds, Hanley admitted that the other unions did not catch up to the PBA. He conceded essentially that there has been no disruption in civilian labor relations at all and no “whipsawing and leapfrogging” as he has consistently testified would be the inevitable result of a non-pattern conforming award.
Although he was evasive, uncooperative, and combative at times during his testimony, he could not effectively dispute that the PBA received more than every uniformed group except Fire Fighters in the Eischen round. And that, even though the DEA and SBA were not ratified at the time of the PBA award in that round, they each took the lesser amount voluntarily and there was no “nuclear meltdown.” This ground work on cross examination also was laid to show that the re-opener clauses that supposedly affect this round are meaningless and that it was unlikely that any groups would invoke them. When confronted with the so-called re-opener clauses, Hanley had to admit that many of the City unions initially had no re-opener for this round or had a re-opener that provided that they would only do better if the PBA received more outside the collective bargaining process and arbitration. According to the actual language of the re-openers and confirmed Hanley’s testimony, the original re-openers appear to be shams that were agreed to in order to deceive their memberships that they would receive the same as the PBA. Hanley’s dissembling on this point, clearly undercut Bloomberg’s statements to the panel that everyone “needed to get serious” and that no union leader would survive if they didn’t have the right to come and reopen if the PBA did better. The undisputed fact, as demonstrated through the artful cross examination of Commissioner Hanley, showed that nearly every group in the City settled without having such a right.
When asked about the improved re-openers that were put in during subsequent rounds, but purported to apply retroactively for this round, Hanley expressly stated that it would be the position of the City that they would not give any group more if the PBA did better. This admission by Hanley undercut the City’s claim that there would be massive costs associated with a PBA arbitration award that exceeded the pattern because they would have to give the same to the other groups.
These are just some examples, but Hanley’s testimony and this type of effective cross examination of him goes on page after page. In our view, Hanley’s credibility was severely damaged by this cross examination.
Note: A portion of this testimony was presented on the following day, Thursday, December 13, 2007.