More on the Scheinman Recommendations

Conversation today has focused on what role Martin Scheinman was playing when he produced the unusual document we received yesterday.

Mulgrew called it a “ruling,” DC37 called it an “award,” the UFT Press Office called it a “decision,” the NY Daily News called it a “ruling,” Unity Caucus said Scheinman “ordered” the City to conclude a deal with Aetna, and Crains says he “ruled.”

Who thinks this was not a “ruling”? Just me and Scheinman

I don’t think it was a ruling. But I don’t count.

Scheinman doesn’t think it was a ruling. Scheinman knows it is not a ruling. Scheinman counts.

Scheinman doesn’t call this a ruling or a decision

Where we expect Scheinman to describe the positions of the parties, he says nothing. When we expect Scheinman to write “this is my award” he instead writes “this is my opinion” (p. 31)

Compare that to what Scheinman writes when he is writing a real arbitration decision (from the Spring Break arbitration):

And of course, those positions:

Me, I don’t think this is a ruling or a decision

Short version – the June 28, 2018 letter Robert Linn, then Commissioner of the Office of Labor Relations (OLR) to Harry Nespoli for the Municipal Labor Committee (MLC) has 7 points.

Points 1 – 4 are about 2018 – 2021 “savings” (those are cuts and increases for regular people – savings for Mulgrew, the Commissioners, and Insurance Executives). Those savings were met – as reported by new OLR Commissioner Renee Campion in this memo.

Point 5 calls for a “Tripartite Committee” to look at longterm “savings.” The committee is charged with – wait for this – making a recommendation. Scheinman is not arbitrating. He has not made a mistake. He is making a recommendation – as he is supposed to do – under Point 5.

What about his role as the arbitrator? The last point is point 7 – and it makes Scheinman the arbitrator – but only under specific circumstances: “In the event of any dispute under sections 1 – 4 of this Agreement…” It is quite clear. His role as arbitrator is NOT for Point 5. And Points 1 – 4 have already been satisfied.

And this means?

There are two elements to this.

First: Why tell the world that a recommendation is an arbitration decision? Mulgrew, Scheinman, Nespoli, OLR, the insurance people, the whole cabal – all they seem to want is for the City Council to amend 12-126. In fact, in Scheinman’s recommendation he suggests changing the code. A recommendation would not intimidate members and retirees and City Council members. But an arbitration decision would.

Second: If this is a recommendation, not an award, then it is up to the “parties” what to do with it. But know this – if they follow Scheinman’s suggestions – it will be because the parties agreed to them. If we get Aetna, if we get premiums, if retirees lose Senior Care – it will mean that Mulgrew has agreed to do those things to you.

Back to Scheinman

If Scheinman knows that he issued a recommendation, but he sees that the other members of the committee (they are not parties) and the press are reporting it is a “ruling” or a “decision” does he have an ethical obligation to clarify? Or can the Tripartite Committee choose to withhold information from the public, in the interest of misleading union members, retirees, to better lobby the City Council? And as part of the Tripartite Committee, could Scheinman be obliged not to reveal the deceptive tactic? I can read the ethical guidelines for arbitrators, but if he wasn’t acting as an arbitrator, would those guidelines hold?

And maybe Mulgrew does know?

This is from the Mulgrew email:

“As we expected, an independent arbitrator today ruled that the city and the Municipal Labor Committee should create a new Medicare Advantage plan for Medicare-eligible city retirees.”

Why do they say that the MLC SHOULD create a MA plan, and not that “the MLC is ordered to…” or “the MLC MUST create…”? Maybe this is not such a big discovery. Do you think Mulgrew knows this was a recommendation and not a decision?