Negotiating job security in the course of collective bargaining
Johnson City Professional Firefighters Local 921, 18 NY3d 32
Frequently an employee organization will attempt to include a “job security provision in the collective bargaining agreement by having a “no layoff” clause in the agreement. The impact of such a provision was considered by the Court of Appeals in the Johnson City Professional Firefighters Local 921 case.
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 due to “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 Appellate Division both 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 of Appeals agreed with the Village’s contention that the termination of the six fire fighters did not fall within the no-layoff clause and therefore was 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 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 of Appeal held that a "job security clause that provided 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, was ”explicitin 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, the Court of Appeals concluded that the CBA’s clauses providing that "Present members may be removed for cause but will not be removed as a result of Post elimination" did not constitute a "job security" provision similar to those used Yonkers Fedn. of Teachers, and held the language in Crossing Guard Union was ambiguous.
Similarly, in the Local 921 case the Court of Appeals concluded that the no-layoff clause in its CBA was not arbitrable because it was not “explicit, unambiguous and comprehensive.”
The Court of Appeals explained that as a matter of public policy, "job security clauses must meet a stringent test. In the event 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.
The Court of Appeals set out the following three prongs test that must be met in order to demonstrate that the job security provision in a collective bargaining agreement does not violate public policy.
- The provision is "explicit;"
- The CBA extends for a "reasonable period of time;" and
3. The CBA was "negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power."
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.
In the words of the Court of Appeals, “Simply put, because the clause [was] 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.”