The power of one…

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Unelected and unaccountable arbitrators
can wield more power than elected officials, police chiefs
mayors, or even the voters.

As the New Pittsburgh Courier noted last month, a combination of state law and state supreme court rulings have resulted in a situation where labor disputes—including disciplinary action—between government bodies and their public safety unions are settled via binding arbitration rulings that, except in extremely specific cases, cannot be appealed.

Thus, in police matters, unelected and unaccountable arbitrators can wield more power than chiefs or mayors, or even the voters—as evidenced by the March 13 arbitration ruling that Pittsburgh police officers can live up to 25 miles from the City-County Building. More than 80 percent of city residents had overwhelmingly voted against police living outside the city the previous November.

The arbitrator who decided that case—siding with FOP attorney Bryan Campbell and against Buchanan Ingersoll’s Joseph Quinn, who represented the city—was Norristown attorney John Skonier, a specialist in labor law and contract arbitration who was supplied by the American Arbitration Association.

In 1996, Skonier ruled that the City of Philadelphia could not fire an officer who was on cocaine when she wrecked a patrol car. He said she should only be disciplined because her sergeant and fellow officers said she was an excellent officer. In 2002 though, he ruled in favor of the Port Authority of Allegheny County in a contract disputed with the Amalgamate Transit Union.

Both rulings were appealed, both appeals failed. Pittsburgh’s appeal of the residency ruling has already failed in Common Pleas Court and is expected to fail in Commonwealth Court.

The AAA is a nonprofit that was formed in 1926 with the specific goal of helping to implement arbitration as an out-of-court solution to resolving disputes. It is based in New York City. It has more than 8,000 total members. Though most are attorneys, others are former union officials, retired industry managers or past public officials who all have extensive experience in contract negotiation.

Ken Egger, vice president for the organization’s labor, employment and elections division, said labor mediation accounts for only 25-30 percent of the AAA’s active caseload. About 900 of its members are labor arbitrators.

“Pennsylvania Act 111 is even less, about 50” he said. “It’s a very specialized field.”

Asked if the organization had gotten a blow-back from those saying AAA arbitrators, not chiefs and mayor, really control Pennsylvania police forces by not allowing bad or rogue officers to be terminated, he said he couldn’t comment.

“I will say that I don’t see a lot of criticism from the public about rulings. I usually just see it from the losing side,” he said. “But we have our internal criteria that applicants must meet, and we are confident in the impartiality and expertise of our members.”

Though other organizations such as the National Academy of Arbitrators also provide labor dispute mediation for private industry and the public sector, for arbitration of Pittsburgh police matters, the neutral third-party arbitrators are always affiliated with the AAA. Campbell, however, said the city and police do not always use arbitrators supplied by the AAA because of the expense.

“Every time you call them it’s $300, so for grievances on existing contract matters or discipline, we set up a permanent list we select from,” he said. “They are certified by the AAA, but we avoid paying a lot of fees. There are only a handful of people certified for all of Western Pa.”

For contract negotiation disputes, where the police and city are at an impasse, Campbell said Act 111 requires the third-party arbitrator be supplied by the AAA.

“Either party can declare an impasse after 30 days, and we did so,” he said. “We have until Sept. 10 to reach a deal, otherwise we’ll call the AAA, pay the $300 and they send us three names. We strike one, the city strikes one, and we go with the last name. If we don’t ask for arbitration by Sept. 10, we have to stick with the previous contract for another year.”

The arbitrators themselves, Campbell said, charge between $1,200 and $1,400 per day, including the time it takes to write up their conclusions and rulings. In grievance and disputes, the city and the FOP split the costs.

In Act 111 contract impasses, the city pays the full freight.

Campbell said the idea that arbitrators rather than police chiefs and mayors control discipline is overblown.

“There is a continuum of discipline that was developed by the city; verbal warning, written warning, one-day suspension, three-day suspension, then you’re fired. You can’t grieve ordered retraining or counseling,” he said. “If you fire a carpenter, he can get another job, not a policeman. So to be fired, this person must have no redeeming value.”

He added that arbitrators have to be impartial to remain employed.

“These guys are sitting around waiting for a job, and if they get the reputation for learning too far one way or the other—that’s all they’re going to be doing,” he said.

Requests for comment from the city law department were not returned by the New Pittsburgh Courier’s deadline.

(Send comments to cmorrow@newpittsburghcourier.com.)

 

 

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