Negotiating job security provisions in the course of collective bargaining
Matter of Johnson City Professional Firefighters Local 921 (Village of Johnson City), 2011 NY Slip Op 08226, Court of Appeals
Matter of Johnson City Professional Firefighters Local 921 (Village of Johnson City), 2011 NY Slip Op 08226, Court of Appeals
The Village of Johnson City and Johnson City Professional Fire Fighters, Local 921 IAFF executed a collective bargaining agreement (CBA) containing a “no-layoff clause” that provided as follows:
“A. The Village shall not lay-off any member of the bargaining unit during the term of this contract.
“B. The Village shall not be required to 'back fill' hire additional members to meet staffing level of expired agreement."
The parties further agreed that disputes concerning the interpretation of this clause, and any other provision of the CBA would ultimately be subject to arbitration before the Public Employment Relations Board (PERB).
When the Village abolished a number of positions, including six firefighter positions as a result of “budgetary necessity,” the union, pointing to the no-layoff clause, filed a grievance with the Village. The Village denied the grievance and Local 921 sent the Village a notice of its intent to arbitrate. Local 921 then filed a petition seeking a court order barring the Village from terminating the six firefighters pending a determination through arbitration. Simultaneously, the Village brought a proceeding to stay any arbitration.
Supreme Court and the he Appellate Division held that the no-layoff clause was not subject to any prohibition against arbitration and that, given the CBA's broad grievance and arbitration provision, the issue was arbitrable (see 72 AD3d 1235, 1237-1238 [3d Dept 2010]) the Court of Appeals reversed the lower courts’ rulings.
The court agreed with the Village’s contention that the termination of the six fire fighters did not fall within the no-layoff clause and therefore is not arbitrable under the contract.
Citing Matter of Board of Educ. of Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, the Court of Appeals explained that “Not all job security clauses are valid and enforceable, nor are they ‘valid and enforceable under all circumstances’"
In Yonkers Fedn. of Teachers, the court ruled that a "job security" clause that stated that "During the life of this contract no person in this bargaining unit shall be terminated due to budgetary reasons or abolition of programs but only for unsatisfactory job performance and provided for under the Tenure Law," provided” explicit in its protection of the [workers] from abolition of their positions due to budgetary stringencies."
In contrast, in Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers [Crossing Guard Union] (39 NY2d 964 [1976]), the Court of Appeals concluded that the CBA’s clauses stating "Present members may be removed for cause but will not be removed as a result of Post elimination" did not constitute a "job security" clause similar to those used Yonkers Fedn. of Teachers, and held the language in Crossing Guard Union was ambiguous.
Rejecting Local 921’s argument to the contrary, the court concluded that the no-layoff clause in this CBA is not arbitrable because it is not “explicit, unambiguous and comprehensive.”
The Court of Appeals explained that as a matter of public policy, "job security" clauses meet a stringent whereby before a municipality bargains away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons, the parties must explicitly agree that the municipality is doing so and the scope of the provision must evidence that intent. Otherwise, said the court, a municipality's budgetary decisions will be routinely challenged by employees, and its ability to abolish positions or terminate workers will be subject to the whim of arbitrators.*
As the clause relied upon by Local 921 did not explicitly protect the firefighters from the abolition of their positions due to economic and budgetary stringencies, the court ruled that it was ambiguous and thus did not constitute an “explicit” provision barring such layoffs.
The fact that the term "layoff" is undefined in the CBA, and is open to different and reasonable interpretations such as whether the term "layoff" constitutes a permanent or non-permanent job loss, and whether the Village's abolition of the firefighter positions constituted a layoff. This, said the court, underscores its ambiguity.
Further, the court held that the clause relied upon by the Local did not comprehensively prohibit the Village from abolishing firefighter positions and had the Local desired that its members be protected from the elimination of firefighter positions, it could have bargained for such protections.
In the words of the Court of Appeals, “Simply put, because the clause is not explicit, unambiguous and comprehensive, there is nothing for the Union to grieve or for an arbitrator to decide. Having concluded that this dispute is not arbitrable for reasons of public policy, we need not reach the issue of whether the parties agreed to arbitrate.”
* The three prongs of the test applied by the Court of Appeals in determining whether or not a job security provision in a collective bargaining agreement violates public policy are as follows:
1. Is the provision "explicit;"
2. Does the CBA extend for a "reasonable period of time;" and
3. Was or was not the CBA "negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power." 
