July 8, 2016

A staffing requirement for safety purposes and job security provisions set out in a collective bargaining agreement distinguished

A staffing requirement for safety purposes and job security provisions set out in a collective bargaining agreement distinguished
Matter of City of Lockport (Lockport Professional Firefighters Assn., Inc.), 2016 NY Slip Op 05254, Appellate Division, Fourth Department

The collective bargaining agreement [CBA] between the City of Lockport [City] and the Lockport Professional Firefighters Assn., Inc. [LPFA], the exclusive bargaining representative for all firefighters employed by the City except the fire chief, included the following:

1. The City agreed to "staff all equipment with adequate firefighters to assure that any evolutions the firefighters are called upon to perform can be conducted with enough firefighters to assure the safety of the staff performing the evolution;"

2. LPFA, in exchange for the City’s agreement to maintain a minimum staffing level of nine firefighters per shift,* agreed to the relocate dispatch communication duties out of the department;

3. The parties agreed that the City, subject to the terms of the CBA and applicable law, could adjust staffing levels "to account for changes in population, technology, apparatus, or other relevant circumstances;" and;

4. The parties agreed to "meet cooperatively for the purpose of discussing issues relating to firefighter and public safety issues[,] and logistical issues[,] associated with the transfer of dispatch duties."

The Board of Fire Commissioners subsequently voted to remove an ambulance from service and to reduce the minimum staffing level from nine firefighters per shift to seven firefighters per shift, which changes were then implemented by the fire chief.

LPFA filed a grievance contending that the City had violated the CBA by reducing the number of firefighters per shift from nine to seven and demanded the restoration of the minimum staffing level to nine firefighters per shift. The City denied the grievance and LPFA demanded that the matter be submitted to arbitration. 

The City objected to submitting the issue to arbitration and initiated a CPLR Article 75 proceeding seeking a permanent stay of arbitration. Supreme Court denied the City’s petition and granted LPFA’s "cross-motion" compel arbitration.  The City appealed the Supreme Court’s ruling.

Affirming the lower court’s determination, the Appellate Division, citing Matter of Alden Cent. Sch. Dist. [Alden Cent. Schs. Administrators' Assn.], 115 AD3d 1340, held that "It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim." In making that determination, the court conducts a two-part analysis: first it must determine if there is public policy prohibition against arbitration of the grievance. Second, if no such prohibition is found to exist, the court must determine if the parties did, in fact, agreed to arbitrate the particular dispute by examining the provisions of the relevant collective bargaining agreement.

The City had contended that the staffing provision in the CBA constituted a job security provision** and job security provisions are not arbitrable as a matter of public policy.

The Appellate Division, however, rejected the City’s public policy argument, explaining that New York State “has a strong public policy favoring arbitration of public sector labor disputes …, and judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships'."***As a general principal in determining the arbitrability of the issue, said the court, "any doubts as to whether [an] issue is arbitrable will be resolved in favor of arbitration."

Further, opined the Appellate Division, Supreme Court did not err in determining that the staffing provision at issue constituted a safety provision, i.e., a condition of employment, rather than a job security provision that could be subject to the public policy exception to arbitration.

In contrast to a job security provision in a CBA, which typically provides for “no layoff" during the life of the agreement, the Appellate Division said that the staffing provision relied upon by the City “does not operate to mandate a total number of firefighters that must be employed, nor does its stated intent relate to job protection; rather, the staffing provision relates solely to the minimum number of firefighters required to be present for each shift.”

Significantly, said the court, in drafting and agreeing to the staffing provision, “the parties expressly sought to ensure firefighter and public safety associated with the transfer of dispatch communication duties that allowed for the reduction in the minimum per shift staffing level” to nine firefighters per shift.

Accordingly, the Appellate Division concluded that Supreme Court properly determined that the staffing provision is not a job security provision, and therefore not subject to analysis under the narrow public policy exception to arbitration.

Turning to the second branch of the analysis, the arbitrability of the issue, the Appellate Division said that “it is undisputed that the parties agreed to arbitrate all grievances arising from the CBA.” Accordingly, the question “Does the reduction of the minimum staffing level from nine firefighters per shift to seven firefighters per shift based on the elimination of an ambulance from service constitutes a violation of the CBA?” goes to the merits of the grievance itself, not to its arbitrability and thus is a matter for the arbitrator to resolve.

* This minimum staffing level of nine firefighters per shift was less than the minimum level set in a prior arbitration award, which award had provided for a minimum staffing level of ten firefighters per shift.

** A job security provision essentially provides that, at least for the duration of the agreement, an employee need not fear losing his or her job except as otherwise permitted by law.

*** See Matter of City of Lockport [Lockport Professional Firefighters Assn., Inc.], 133 AD3d 1358

The decision is posted on the Internet at:


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