An important reason that the PBA challenged the nine-member list of potential PERB arbitrators presented in late December is that it violated the rules PERB applied in putting together the list. PERB officials had told us that they had instituted new selection criteria whereby no arbitrators who had participated in previous PBA arbitrations would be included this time.

But the list contained two names — Arnold Zack and Stanley Aegis — who had participated in the Office of Collective Bargaining (OCB) arbitrations that resulted in two years of zero increases in the 1990s. Meanwhile, two arbitrators who had awarded us a total 22% in increases in the two previous PERB arbitrations were excluded from consideration. Clearly, the inclusion of candidates who had ruled against the PBA in the past and the exclusion of those who didn’t just follow the city blindly demonstrated a lack of fairness.

Why should the PBA have to start the process two names behind? In a jury selection, would any attorney in his right mind give up two peremptory challenges when, because of bias, the prospective jurors should not have been in the pool to begin with? We would be doing a giant disservice to our members if we had allowed the selection to proceed while we were facing a stacked deck.

Another compelling reason that we challenged the list was because of the lack of PERB-board participation in its formulation. At his request, we wrote PERB conciliation director Richard Curreri Dec. 27 outlining the legal foundations of our claim and have continued to comply with all PERB requests to explain our positions on this matter in writing and motions.

Our basic argument is that, under the Taylor Law and PERB’s own rules, only the board itself is authorized to formulate and submit the list of potential public arbitrators in compulsory interest arbitration. But no members of that board had reviewed the list and there is no statutory authority for the director or anyone else to promulgate it under those circumstances.

After our challenge of the list, the city sued PERB in State Supreme Court in Albany in an attempt to force the agency to install Zack as chairman of the arbitration panel. Labor Commissioner James Hanley has called Zack “a really good arbitrator” — which we believe is a strong indication that he must be biased in favor of the city and to be avoided at all costs.

“...We are opposing the city’s position...saying that they are wrong on the law,  and on the procedure...”

— Acting PERB chairman Jerome Lefkowitz

In the meantime, Governor Eliot Spitzer nominated Jerome Lefkowitz to be chairman of the PERB board. Lefkowitz has not only served a previous 19-year term as PERB chairman before retiring 20 years ago, but also was co-author of the Taylor Law in 1967.

The governor filled the other two PERB seats with Eric Schmertz — who presided over the 2005 PERB arbitration panel that gave us a 10.25 percent raise over two years — and Robert Hite — who was general counsel to Council 82 of the American Federation of State, County and Municipal Employees from 1995 to 2000. Lefkowitz, who has been working as general counsel for the Civil Service Employees Association, is viewed favorably by union leaders across the state. The nominations must be approved by the State Senate.

On Feb. 23, Supreme Court Justice Eugene Devine heard arguments in the city’s suit to install its hand-picked choice, Zack, as chairman of the PBA arbitration panel. At that hearing, the judge accepted the PBA’s motion to intervene in the suit. Before that, acting PERB chairman Lefkowitz told the press:

“We are opposing the city’s position,” he said, “both on the merits, saying that they are wrong on the law, and on the procedure.” Former PERB director of conciliation Richard Curreri, who promulgated the list, “has no authority to act” in deciding appeals to selections for that list, Lefkowitz said. “And they (the city) have to exhaust their administrative remedies by appealing to the board.”

A decision on the case is pending. We will keep you informed. The important thing to remember is that we continue to believe that the best way to achieve an equitable settlement is at the bargaining table. The mayor keeps saying that we’re the ones who refuse to negotiate, but he knows better. The city, not the PBA, filed for this arbitration, and it did so because it was unwilling to bargain in good faith.