The General Counsel’s office manages on-going litigations and other legal matters for the PBA and its members. Among the areas we address are contract negotiations; labor and collective bargaining law violations; collective bargaining agreement/contract violations (i.e., grievances); violations of statutory laws by the City, the NYPD and any other agency that affects the PBA or its members, and other cases where the PBA is plaintiff or defendant. One of this column’s aims is to keep you updated on the status and resolutions of these and other legal matters and issues that affect the PBA and police officers.

Some time ago, the PBA posted on the General Counsel’s page of its website a health-and-safety-violation complaint form designed to assist the commands in reporting health and safety issues. Here’s how it works: After a command representative completes the form, our office files a complaint with the State Public Employee Safety and Health Bureau of the Department of Labor (“PESH”). Then PESH will generally send an inspector to the command involved. Since posting the forms, we have received many complaints from commands all over the city. PESH has sustained those complaints in many cases and ordered that the cited conditions be corrected. So far, complaints were founded or a notice of violation issued at the 6th, 40, 70, 77, 78, 79, 90, 105, 106 and 111 Pcts. and at One Police Plaza, the Bronx and Brooklyn South Task Forces and Randall’s Island. Among the founded complaints were: unsafe electrical conditions, water accumulations on floors, unsanitary bathrooms, dirty air vents, rodent infestation, exit blockages, rusted bathroom stalls, waste contamination in bathrooms, no soap or hand towels in bathrooms, dirty bathrooms, waste and litter and mold growth throughout facilities. We encourage commands with health and safety issues to continue to prepare complaint forms documenting them and send them to the General Counsel’s Office for further processing.

Earlier this year the PBA won an arbitration involving personnel working at Headquarters security. These officers had their tours changed improperly from late 2001 through 2003.  Assistant General Counsel David Nicholson, assisted by David Morris, also of the General Counsel’s office, presented the arbitration. As a result, some of the affected officers recovered between $40,000 and $50,000. After the PBA’s win, the city dragged its heels for months in paying the award. So the PBA filed suit in State Supreme Court seeking to confirm the award with interest. Only then did the city/NYPD pay the principal amount owed to officers. We continue to press the suit seeking interest for each of the officers on the amounts wrongfully withheld.

In collective bargaining in the early 1990s, the PBA gave up the right to recoup from the city the cost of drugs associated with LOD injuries in cases where the member put those costs through the union’s welfare fund. The union received a minimal .04% credit for surrendering that right.

But the Administrative Code obligates the city to pay medical costs associated with LOD injuries. When we studied the issue, we concluded that, while the PBA may have negotiated away its right to recoup those monies in certain circumstances, individual police officers did not waive their rights. The issue has significant ramifications for PBA members and the PBA’s health & welfare funds, particularly in light of the significant prescription drug expenses incurred as a result of 9/11 exposures. Putting those costs through the PBA’s welfare fund not only diminishes welfare funds for non-line-of-duty-related illnesses and injuries but also works against the members’ individual drug cap.

Consequently, the PBA looked for the right opportunity to challenge the department’s policy of directing police officers to put their LOD drug expenses through the PBA prescription drug program. An officer who was denied reimbursement sought directly from the city stepped up and became the plaintiff in an arbitration bought by the General Counsel’s Office. The case, with significant monetary ramifications for the union, will be heard early next year.

We have received the following report from the outside attorneys handling that case. Much time has been spent on the preliminary issues because of the case’s complexity and the number of plaintiffs involved (15,000+). Phone surveys are being conducted that should serve to limit the amount of discovery needed from police officer-plaintiffs. At the same time, depositions of senior police officials are set to go forward in December and January. The attorneys expect the case, now in the discovery phase, to move more quickly to resolution.

The city has reached a settlement with the IRS concerning FICA (Social Security & Medicare) tax refunds to both the city and eligible uniformed members of the Police, Fire, Correction and Sanitation Departments.According to the Office of Payroll Administration, the years covered by the settlement are 1989-2005. Eligible NYPD members are those who were on authorized line-of-duty-injury leave at some point during the years 1989 through 2005 for a period of six months or less. Each affected officer may receive a refund of the FICA taxes paid on line-of-duty-injury payments received during that period.

We are informed that the city is gathering the information it needs to reach out to every affected employee and plans to send a letter to them by year’s end explaining the settlement process. The letter will include a consent form that must be filled out and returned within 60 days. That deadline date will be included in the letter. The settlement may entitle some of our members to substantial sums in back FICA taxes. We urge ALL members who believe they may be covered  by the settlement, to log on to LoDI Refund Claim to learn more about the settlement and about updating their mailing addresses. 

Pursuant to long standing agreements, the city must make periodic payments to the PBA’s health & welfare fund to provide certain benefits to our members.  One of these funds, the Civil Legal Fund, was established to provide legal benefits to members, and the city is required to make payment to it every 28 days. The amount due is a calculation based on the number of officers on full-pay status during the 28-day period.  A provision in the agreement expressly states that the PBA does not have to return any overpayments made by the city except in limited circumstances. A corresponding provision protects the city in the case of underpayment in certain circumstances. In July 2003, the NYPD informed the PBA that the city allegedly overpaid the union $524,087.71. The PBA responded by advising the department that any attempt to recoup the overpayment would be in violation of the agreement that prevents the city from doing just that. In July 2004, the department informed the PBA that it would begin withholding portions of payments to the Civil Legal Fund to recoup the alleged overpayment. Over the PBA’s objections, the city then began withholding payments — to the ultimate tune of $524,087.71.

In October 2004, the General Counsel’s Office sued the city for breach of contract and sought payment of the amount withheld plus interest. This August, the State Supreme Court ruled in the PBA’s favor, deciding that the city had indeed violated the terms of the agreement and awarded the PBA the full amount withheld — $524,087.71 plus interest.

Faced with city demands for significant givebacks in health benefits during a previous collective bargaining round, the PBA joined all police and fire groups to study certain aspects of health benefits for city workers, particularly whether uniformed police and fire personnel were fairly treated in health bargaining. The group retained its own consultant and sought information to analyze several issues, including the usage of certain health benefits.

The city refused to furnish the information, saying the data could only be funneled through the Municipal Labor Committee (MLC), the entity that the city (and, remarkably, certain unions) claims bargains for all city workers on health issues. The police and fire groups filed an improper practice claim based on the city’s refusal to provide us the information. We took the position that only the PBA (and other unions) can negotiate terms and conditions of employment for its members. The proceeding was filed with the Office of Collective Bargaining (OCB), which dismissed the case on a procedural point. Most of the other police and fire groups dropped the matter, leaving only the PBA and SBA to take this important issue through the courts.  The state courts ultimately sided with the PBA and SBA and ordered OCB to render a final decision.  The issues have now been fully briefed and we await a decision from OCB.  Should OCB rule against us, we will take the issue back through the courts. 

Why is the issue so important?  Only the PBA holds the right to bargain for its members.  The Bloomberg administration is again seeking changes in health benefits that will likely include premiums for basic health benefits. In other rounds, we have disagreed with other unions who had sought to sacrifice health benefits in the hope of attaining benefits in other areas. The PBA, not the MLC, needs to make the decision about what works best for its members.