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February 20, 2014

A "stand alone agreement” outside a collective bargaining contract containing a sunset provision is excluded from “maintenance of the status quo” within the meaning of Civil Service Law §209-a(1)(e)


A "stand alone agreement” outside a collective bargaining contract containing a sunset provision is excluded from “maintenance of the status quo” within the meaning of Civil Service Law §209-a(1)(e)
Matter of Uniformed Firefighters Assn. of Greater N.Y. v City of New York, 2014 NY Slip Op 01108, Appellate Division, First Department

The New York City Board of Collective Bargaining (BCB dismissed Uniformed Firefighters Association’s improper practice charges, holding that the City was not required to negotiate its decision to reduce fire engine staffing levels. Supreme Court dismissed the Association’s challenge to the BCB’s decision and the Appellate Division affirmed the lower court’s ruling.

The City had earlier implemented a roster staffing program and ultimately entered into a “Roster Staffing Agreement (RSA) setting of the staffing requirements. The RSA was to be effective for a 10-year term, expiring on January 31, 2006 and in October 2005, the Association and the City agreed to extend the term of the RSA by five years to January 31, 2011. The RSA included the following provision:

"ELEVENTH: By entering into this Stipulation of Settlement, the Union agrees to waive its right to file any litigation or grievance regarding the Department Roster Staffing program as set forth in the case docketed with the Office of Collective Bargaining as BCB-1265-90, or with regard to the practical impact of this RSA until January 31, 2006. Should a court of competent jurisdiction or any other administrative entity, except for enforcement purposes, grant the right to initiate any such litigation or grievance within that time, this RSA will be terminated immediately. Should litigation or a grievance commence, this RSA or any portion thereof shall not be admissible in any court proceeding or other administrative forum. After the expiration of this RSA, January 31, 2006, the City in view of factors including, but not limited to changes in technology, structural and non-structural fires, and response times, may wish to change staffing levels. In the event the City plans to make such changes, the parties will negotiate to the extent required by the New York City Collective Bargaining Law. Should differences between the parties arise, it is the intent of the parties to work expeditiously to resolve them."

In October 2010, the City notified petitioner that in consideration of the RSA's impending January 31, 2011 expiration date, it planned to the staff assigned to engines in certain companies with a minimum of four firefighters per engine at the beginning of each tour and others with five firefighter crews, effective February 1, 2011.

The City noted that, while it was not obligated to bargain with the union over the changes, it was "willing to meet with the UFA to discuss any concerns the union may have." The City gave petitioner a publication containing the FDNY's guidelines and procedures for implementing the new staffing policy.

On January 31, 2011, the Association, with the Uniformed Fire Officers Association** (UFOA), brought a combined Improper Practice and Scope of Bargaining petition to challenge the City's decision to reduce the engine staffing levels at certain companies from five firefighter crews to four commencing February 1, 2011, contending that the City's unilateral action was violative of both the RSA and the New York City Collective Bargaining Law (NYCCBL).

The BCB, by a four-to-two vote, dismissed all challenges except the allegations concerning the practical impact of the City's decision to reduce the engine staffing levels. BCB also directed a hearing before a trial examiner to determine whether the reduction would have a safety impact that would require negotiations between the parties concerning implementation of the changes.

In its decision, BCB found that the RSA contained a "sunset" provision because paragraph Eleventh and the subsequent extension indicated an expiration date. Thus, any provision in the RSA to maintain the engine staffing levels had "sunset" which had the practical effect of terminating a benefit at a specific time or on a specific condition. 

In so ruling BCB rejected a reading of paragraph Eleventh as requiring the parties to negotiate post-expiration should the City decide to reduce engine staffing levels. This construction, BCB held, would render the RSA's expiration meaningless and would impose an absolute obligation on the City to bargain, where the language indicated only that the parties would bargain "to the extent required by the NYCCBL."

In addition, BCB found that the RSA allowed the Association to file grievances after the expiration date, but that its proposed reading would not similarly permit the City to act; thus the Association’s reading of the RSA would evince a lack of mutuality that could not have been the parties' intent.

Significantly, BCB held that that, based on its determination that paragraph Eleventh "on its face, constitutes a sunset provision," and thus neither maintenance of the status quo under Civil Service Law §209-a(1)(e),* nor the conversion theory of negotiability, applied.

Based on its own precedent, BCB determined that the RSA was not incorporated into the parties' Collective Bargaining Agreement and, consistent with its previous decisions and NYCCBL 12-307, fire engine staffing levels are a nonmandatory bargaining subject. Accordingly, it ruled that the City was not required to bargain such staffing levels unless, following a hearing, BCB found a practical safety impact.

Supreme Court found no reason to disturb the board's determination and held that once BCB determined that the RSA expired on January 31, 2011, it rationally applied its own precedent to find that this "sunset provision" rendered inapplicable the theory that nonmandatory subjects could be converted into mandatory subjects by way of incorporation into a collective bargaining agreement. Accordingly, any provision in the RSA that required the Association and the City to negotiate the reduction of engine staffing levels expired with the RSA. Noting that there was no post-expiration obligation to negotiate the matter unless the reduction had an impact on safety, the court ruled that BCB had properly directed a hearing to establish a record concerning that issue.

The Appellate Division agreed, finding that Supreme Court properly denied the petition and dismissed the proceeding and that BCB’s determination was rational and did not render any provision in paragraph Eleventh meaningless. The Appellate Division then explained that if BCB’s determination has a rational basis, it must affirm, “even if this Court would have interpreted the provision differently.”

Finding that BCB rationally concluded that paragraph Eleventh's reference to the "expiration of this RSA, January 31, 2006" was a sunset provision, it properly concluded that, after the RSA's expiration, if the City intended to reduce engine staffing levels, it would negotiate "to the extent required by the New York City Collective Bargaining Law."

However, said the court, under the current Collective Bargaining Law, staffing levels are a nonmandatory subject of collective bargaining and “[c]ontrary to [the Association’s] contention, [BCB’s] decision does not render meaningless the last sentence of paragraph Eleventh—‘[s]hould differences between the parties arise, it is the intent of the parties to work expeditiously to resolve them’—because the safety impact of any staffing level reduction remains negotiable.”

* The so-called Triboro Amendment

** The UFOA is not a party to the RSA and, thus, is not a party to this appeal.

The decision is posted on the Internet at: 
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