ast PBA PERB arbitration outcomes and those of other public-sector arbitrations, particularly in the suburbs, have caused some to question whether the Taylor Law’s impasse provisions work effectively. At the same time, government groups are seeking to change the law’s impasse standards to make them more favorable to employers.

In her May 19 opinion resolving the PBA arbitration, chairwoman Susan T. Mackenzie seemed to echo the view that there are problems with the statute, saying that “the limitation on awarding a contract term in excess of two years, the fact the contract term at issue expired almost two years ago and the requirement of concurrence by another Panel Member further restricts the flexibility of this panel to render an award that may better incorporate the parties’ respective interests. These restrictions are matters of public policy to be addressed in political and legislative forums.”

Similarly, the 2002-2004 PBA arbitration chairperson, Eric Schmertz, complained of the two-year restriction on the award as “illogical and counterproductive.” Are criticisms of the law in this area valid, or does the blame for perceived shortcomings in awards lie elsewhere?

(As PBA First Vice-President John Puglissi points out in his column, despite the law’s imperfections and that of the system crafted to implement it, the PERB vehicle has worked better for New York City police officers than the impasse procedures and associated mechanisms under New York City’s Collective Bargaining Law. Both arbitrators McKenzie and Schmertz have confirmed that the Taylor Law’s standards of comparability are different from those of the city’s Collective Bargaining law, and, as Puglissi’s column shows, the results in each of the PERB arbitrations clearly exceeded the “pattern” — something that never happened in the 1990’s PBA arbitrations under the city’s Collective Bargaining Law.)

In this space I will focus on the Taylor Law’s impasse provisions and leave a discussion of what the PBA believes are the law’s other shortcomings — those that allow the employer not to bargain in good faith and avoid any meaningful penalty for that failure — for a future column.

To quote the relevant section of the Taylor Law:

(v) the arbitration panel shall make a just and reasonable determination of the matters in dispute. In arriving at such determination, the Panel shall specify the basis for its findings, taking into consideration, in addition to any other relevant factors, the following:

comparison of the wages, hours and conditions of employment of employees involved in the arbitration proceeding with the wages, hours, and conditions of the employment of other employees performing similar skills under similar working conditions and with other employees generally in public and private employment in comparable communities;

the interests and welfare of the public and the financial ability of the public employer to pay;

comparison of peculiarities in regards to other trades or profession, including specifically, (1) hazards of employment; (2) physical qualifications; (3) educational qualifications; (4) mental qualifications; (5) job training and skills;

the terms of collective bargaining agreement negotiated between the parties in the past providing for compensation and fringe benefits, including, but not limited to, the provisions for salary, insurance and retirement benefits, medical and hospitalization benefits, paid time off and job security.

How do those provisions work in practice? Comments by seasoned labor professionals at a recent 40th-anniversary seminar on the Taylor Law provided some insight. Some interpreted those provisions to allow the arbitrator to conduct a super mediation or to simply bless a deal privately negotiated by the parties, and to mask it under the cloak of an arbitrator’s award to prevent scrutiny and criticism by the taxpayers. A management attorney-negotiator complained from the point of view of the taxpayer that the law was being used in such a way as to put one over on the taxpayers, but he stated that he was acting at the direction of elected officials. This use of the impasse provisions may explain some of the suburban arbitration results. What is clear, however, is that such outcomes do not result from the fair application of the law’s statutory impasse criteria.

Of course — at least with respect to New York City police officers — there is very little common ground between the city’s pattern-bargaining system — which often seeks to impose zero wage increases or draconian givebacks or raises patterned after those awarded to bargaining units having little in common with police officer — and the compensation situation that has left New York City police officers more than 30% behind the relevant comparables. Management and labor colluding under the protection of the Taylor Law’s impasse provisions to escape criticism has not been an issue with police officers' negotiations in New York City. The problems with PERB arbitration results in the city clearly lie elsewhere.

Let’s look at the results of New York City interest arbitrations. In all the PBA PERB arbitrations, the panel purported to have applied the statutory criteria. In each of the arbitrations, arbitrators have been confronted with overwhelming evidence of the pay disparity between New York City police officers and those performing police services elsewhere. The last two arbitrations included considerable evidence of the employer’s ample ability to pay. The job of police officer has continued to evolve and change in terms of hazards, education and other requirements, suggesting the next factor also cut in the favor of New York City police officers. While this is a simplistic analysis of the various factors, was there anything in evidence in the last two rounds that supported an arbitrator’s imposition of givebacks? In the PBA’s view, there was no such evidence, and the PBA prevailed decidedly in presenting evidence supporting the statutory criteria. On the other hand, from the city’s standpoint, there was no justification for the arbitrators to break pattern and parity.

Theories suggested to explain these results generally fall into one or more of the following categories: (1) arbitrators want to inflict pain on both parties to encourage future negotiated settlements; (2) arbitrators do what the parties would have done had they been able to negotiate a contract; (3) arbitrators are concerned about their careers and future ability to get work and, should they run afoul of a party with power in the industry (like the City of New York), their future earning-power or reputation will be diminished. An adjunct of this final theory is that other unions who have voluntarily accepted patterns have no interest in seeing a better award for the PBA. So, whether explicitly or implicitly, additional pressure may be brought to bear on the arbitrator (and their careers) from these other labor groups.

While we will never know definitively what motivated the arbitrators to render the awards they did, it seems fairly clear that some of the PERB results that have been the subject of criticism, both in the city and elsewhere, are not the products of a faithful application of the Taylor Law impasse criteria, but are more the products of arbitrators resorting to some consideration beyond those set forth in the statute.

For its part, the PBA has made clear its opinion of such practices. When questioned in the most recent arbitration, the PBA President said:

Lynch: If the PBA or myself as president can get it done at the table, I would get it done at the table. But to do that, there has to be flexibility. We haven’t had that. My members believe and my belief is (when) we’re in arbitration, it needs to be done based on the criteria of PERB, based on the Taylor Law, compare police officer to police officer.

… Those criteria need to be met. The ability to pay, I understand that ... All we ask for is fairness and rule on the evidence. That’s why we fought so hard to get the PERB arbitration. That’s why it’s necessary for my members. They understand (the) criteria, and [applying the criteria is] necessary … to solve the problem for the city and for the New York City PBA, my members.

The PBA believes that at least in this one respect, the drafters of the statute had it at least close to right. A fair application of the statutory criteria should produce a just and reasonable result. Arbitrators should hear the evidence and apply the evidence to the criteria.