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January 2002 Dear Member: This is the latest in the series of informational pieces designed to update you on the status of our contract negotiations and efforts by the union to secure a favorable contract for our members. This information is designed to supplement information being provided to PBA board members and delegates on a regular basis as developments occur, in an effort to keep each of you well informed. Before embarking on this round of contract negotiations, we heard the overwhelming voice of our membership: "If we do not receive an offer at the table that begins addressing the below market compensation being paid, then the PBA should seek to vindicate our rights through an impasse arbitration at PERB." At the table, the City offered police officers paltry 2.5% and 3% raises over two years. For that reason, we have pressed ahead at PERB over tremendous resistance put up by the City, which has fought the PBA every step of the way. Since we last wrote, the PBA won its fight to have its impasse arbitration proceedings held at PERB, rather than OCB. On December 20, 2001, in a twenty (20) page decision, the Court of Appeals unanimously held that the 1998 amendments to the Taylor Law (known as the PERB Bill) are constitutional and once PERB has declared that an impasse exists between the City and the PBA, it is within PERB's jurisdiction to decide which issues will ultimately reach the arbitrator for decision. The PBA's historic victory at the Court of Appeals ends our long battle to secure our right to have our impasse arbitrations heard at PERB and also cements this right for all police unions throughout the state. The PBA will now be entitled to invoke PERB's impasse resolution procedures in all future rounds of bargaining with the City, tipping the balance from what was a decidedly one-sided system favoring the City to a process that will afford fair treatment to police officers during negotiations. Although we have accomplished a great deal, our struggle is far from over. We still have a challenging arbitration proceeding ahead of us, in which we must convince an arbitration panel that New York City police officers should receive increases in excess of agreements reached between the City and its other uniformed and civilian unions. Despite the challenges that we face, we will continue to fight the fight in order to secure the most favorable financial package for the membership. VICTORY AT THE COURT OF APPEALS On December 20, 2001, the New York State Court of Appeals - the highest court in New York State - unanimously upheld the constitutionality of Chapter 641, the 1998 amendments to the Taylor Law. The Court held that "chapter 641 is constitutionally valid as a special law because it serves a substantial state concern." The Court found that the express purpose set forth in Section 1 of the statute, "orderly resolution of collective bargaining disputes involving police and fire bargaining units *** to enhance public safety and prevent the loss or interruption of vital public services" to be the substantial state concern necessary to obviate the need for a home rule message, under the home rule provisions of the state constitution. According to the Court: "[c]hapter 641 corrects the infirmities of its predecessor statute by not targeting one locality and uniformly applying to all local governments, by expressly stating the substantial state concern sought to be addressed and by ensuring that the legislation is rationally related to that concern." In addition to deciding the issue of whether Chapter 641 is constitutional, the Court had to decide which administrative agency, PERB or BCB, has scope of bargaining jurisdiction. The Court held that "under the present statutory scheme, once a police or fire union pursues impasse resolution assistance from PERB and PERB declares impasse, it has jurisdiction over scope of bargaining issues between PBA and the City, to the extent necessary for PERB to exercise its exclusive jurisdiction to resolve impasses." The Court stated that "until [PERB declares an impasse], BCB retains jurisdiction to determine scope of bargaining outside the impasse context." The decision regarding the statutory interpretation is very favorable to the PBA because under PERB law all provisions of an expired collective bargaining agreement, whether mandatory or non-mandatory subjects of bargaining, convert to mandatory subjects and are proper subjects for submission to an arbitration panel. Unlike PERB, BCB law does not convert non-mandatory subjects contained in collective bargaining agreements into mandatory subjects, thus under BCB law the City can refuse to bargain over such issues. The application of PERB law will prevent the City from doing what it tried to do in this round - punish the PBA for pursuing its rights at PERB by unilaterally removing non-mandatory provisions contained in our expired 1995-2000 collective bargaining agreement. The City had anticipated that it would be able to accomplish this at BCB. However, because PERB has declared that the PBA and the City are at impasse, PERB has exclusive scope of bargaining jurisdiction in the current round of bargaining. Accordingly, we believe that under PERB law non-mandatory provisions of our expired contract are mandatory subjects of bargaining and are properly before the PERB arbitration panel for resolution. NEW
YORK STATE Even before the final decision of the state's highest court, the PBA began to move forward at PERB. On July 12, 2001, after ruling in the PBA's favor on the merits of our case, the Appellate Division, Third Department lifted the preliminary injunction that it had previously imposed and freed PERB to move forward with processing the PBA's declaration of impasse and its petition seeking a determination on the scope of bargaining issues. In response, PERB immediately began to process both petitions. Not surprisingly, given the City's behavior from the inception of this round of bargaining, the City in addition to appealing the Appellate Court's decision sought a stay from the Court of Appeals to halt all proceedings at PERB, pending the Court of Appeal's final determination. The Court of Appeals rejected their request for a stay and the proceedings at PERB went forward. In another attempt to block the PBA from going forward at PERB, in a letter dated July 27, 2001, the City raised with PERB's Director of Conciliation its objections to the PBA's declaration of impasse. In that letter, the City argued that PERB should grant an administrative stay and take no steps to appoint a mediator. The City also asserted that the parties were not at impasse, but rather were prevented from reaching an agreement because of the PBA's insistence that it would not resume negotiations, even though the City had recently reached agreement with the other uniformed unions. PERB's Director of Conciliation flatly rejected the City's attempt to stop mediation from going forward and on August 15, 2001, he declared that the parties were at impasse and appointed Alan R. Viani to act as mediator. This was the first time in our history that the PBA had been before PERB for impasse proceedings. MEDIATION SESSIONS Immediately after being appointed as mediator, Mr.Viani scheduled the first mediation session, which took place on August 28, 2001. At the first session, the parties met briefly to schedule future sessions and then met separately with the mediator briefly to explain the merits of their cases and the background of negotiations. The following five dates were scheduled:
The tragic events of September 11, 2001, necessitated the postponement of the September 12 and 24 mediation sessions. The parties met on October 1, 2001, and again on October 29. In addition, the mediator held numerous telephone conferences with the parties. While movement was made by both parties, the City refused to give the PBA membership any offer in excess of the settlement reached between the City and its other uniformed union employees. PBA'S PETITION FOR INTEREST ARBITRATION On November 2, 2001, the PBA filed its petition with PERB for the designation of an arbitration panel. Attached to the PBA's petition for the appointment of an arbitration panel were the PBA's final proposals for modification of the 1995-2000 Agreement. On December 5, 2001, consistant with its strategy to delay the resolution of its contract dispute with the PBA, the City filed its response with PERB, in which it once again asked PERB to stay all proceedings and contended that the PBA's request for arbitration was premature. PERB denied the City's request, allowing the process to go forward unimpeded. In accordance with the Taylor Law, the impasse arbitration panel is to consist of three members, one appointed by each party and the neutral arbitrator jointly selected by the parties. Upon receipt of a petition seeking the designation of an arbitration panel, PERB is required to issue a list to the parties of nine (9) PERB approved arbitrators for the selection of the neutral chairperson of the arbitration panel. If the parties are unable mutually to agree on an arbitrator, the arbitrator is selected by the parties through a striking process. On December 19, 2001, the PBA selected Ronald G. Dunn to act as its party arbitrator. Ron Dunn is a partner in the Albany law firm of Gleason, Dunn, Walsh & O'Shea and has practiced labor law in New York State for more than twenty-years. He is considered to be one of the leading labor-side attorneys practicing before PERB. In addition to representing numerous law enforcement unions during his career, he serves as General Counsel to the New York State Troopers PBA. Mr. Dunn has served as the PBA's local counsel in Albany throughout the PERB litigation and has been an invaluable resource to us on all PERB related issues. For the City's part, it has appointed Gary J. Dellaverson to act as its interested arbitrator. Mr. Dellaverson is a former OLR staffer and New York City Deputy Fire Commissioner. He is currently the Director of Labor Relations and Chief Negotiator for the Metropolitan Transportation Authority ("MTA"), a position he has held for several years. On January 3, 2002, Dana E. Eischen was selected to serve as the neutral chairperson and final member of the arbitration panel. Mr. Eischen, of Spencer, New York (Tioga County), is an attorney and full-time arbitrator with over 25 years of public and private sector experience. He chairs the National Academy of Arbitrator's Committee on Professional Responsibility and Grievances, and has served as its Vice President and Executive Secretary-Treasurer. In 1996, he received a Distinguished Service Award in Labor/Management Arbitration from the American Arbitration Association. CITY'S DECLARATORY RULING PETITION Meanwhile, on November 20, 2001, in response to the PBA's petition for the appointment of an arbitration panel, the City filed a Declaratory Ruling Petition with PERB requesting PERB to declare that several provisions of the expired contract and certain of the PBA's proposals are non-mandatory subjects of bargaining. On November 21, 2001, PERB found the City's petition to be deficient and instructed the City to resubmit it. On December 5, 2001, the City submitted its amended petition to PERB, which PERB accepted. The PBA filed its response to the City's amended petition on January 4, 2002. The City and the PBA will both have an opportunity in the future to submit briefs prior to a hearing before an Administrative Law Judge. At issue are certain demands, some of which were previously contained in our expired collective bargaining agreement, which the City believes are non-mandatory subjects of bargaining. CITY'S SETTLEMENTS WITH OTHER CITY UNIONS Since our last newsletter, the City has reached agreements with several municipal labor unions, including some of the unions comprising the Uniformed Coalition. The Uniformed Coalition consists of the following unions: Uniformed Sanitation Association ("USA"), Lieutenant's Benevolent Association ("LBA"), Correction Officers' Benevolent Association ("COBA"), Uniformed Fire Officers Association ("UFOA"), Detective's Endowment Association ("DEA"), Sergeant's Benevolent Association ("SBA"), Captain's Endowment Association ("CEA"), and the Uniformed Firefighters Association ("UFA"). As you may recall, the PBA chose not to bargain as a member of the Uniformed Forces Coalition in this round of bargaining. On July 26, 2001, the City and the Uniformed Forces Coalition reached a tentative settlement. The thirty (30) month contract consists of a 5% increase in the first year and another 5% on the first day of the 13th month of the contract. The contract is actually a two-year deal consisting of 5% in the first year and 4% in the second year with an additional 1% added in exchange for union's agreement to extend the contract. The LBA, CEA, COBA, and the UFOA have all ratified their contracts. However, in August, the SBA delegates rejected the contract without sending it out to the membership. Following the September 11 attacks, the UFA has changed its position and has announced that it plans to reject the tentative deal without sending it out to the membership. The DEA has not sent the contract out to be ratified. UNITED FEDERATION OF TEACHERS ("UFT") FACTFINDING PROCEEDING In November 2001, the UFT began a fact finding proceeding, which has just ended. Fact finding is similar to Arbitration; however, unlike the arbitration available to the PBA which is binding, factfinding panels issue non-binding recommendations. We are monitoring closely the UFT case because we expect the City to make similar arguments in our arbitration, especially with regard to the City's ability to pay and pattern bargaining. In the City's pre-hearing brief, the City contended that in light of the events of September 11, 2001, it simply does not have the resources to pay for the UFT's demand for a 22% increase. Moreover, the City relied on the concept of pattern bargaining to argue that the UFT should not receive anything in excess of the deal already agreed to by the majority of the other civilian unions. Not unexpectedly, in support of its argument for maintaining pattern bargaining, the City claims that any deviation from the pattern would invariably affect the PBA's pending arbitration. We expect a decision from the panel sometime in early 2002. PROCESS GOING FORWARD We anticipate that the PBA's fully constituted panel will meet shortly for an organizational meeting, resolving such issues as the mechanics of the process, discovery and scheduling. Thereafter, we expect that a number of dates will be scheduled for the hearing of the case. There will be many significant issues in play based on the statutory factors relied upon by PERB. The Taylor Law sets forth criteria that arbitrators in public sector interest arbitrations in New York must consider in fashioning awards, and provides in pertinent part: [T]he panel shall specify the basis for its findings, taking into consideration, in addition to any other relevant factors, the following:
In light of the seriousness of the issues involved, we anticipate no fewer than 15 full days of hearings, and possibly more. Taking into account the various schedules that must be coordinated, we suspect that the hearing process may take two or three months to conclude, with additional time needed for a decision to be written. These are the concluding steps in what we knew would be a long and bitterly contested process of receiving our final compensation award. We appreciate your support and will continue the struggle you asked us to undertake, utilizing the highest caliber professionals, the greatest investment of the Board's time and energy and the painstaking attention to detail that has made us successful thus far. See also archives. |
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