NY Appeals Court Upholds Staffing as Bargainable for Firefighters

The Appellate Division of the New York Supreme Court has ruled that minimum staffing is a bargainable subject that relates to the safety of firefighting personnel, and is not an illegal job-security clause. The case involves an effort by the City of Ogdensburg to block the grievance arbitration of the city’s unilateral reduction in shift staffing for the Ogdensburg Fire Department.

Ogdensburg Firefighters Association IAFF Local 1799 and the city had a collective bargaining agreement that provided for minimum shift staffing of five members. In December, 2020 the acting fire chief notified the union that starting January 1, 2021 the city would not adhere to the staffing provision, and may operate with as few as three firefighters per shift. The union filed a grievance, and upon its being denied sought binding arbitration.

That prompted the city to file suit seeking a court order staying the grievance arbitration because the minimum staffing provision was an illegal “job security clause.” The Supreme Court agreed concluding the provision was illegal as being against public policy. Local 1799 filed an appeal contending that minimum staffing is a legitimate, bargainable subject for firefighters.

The Appellate Division agreed with Local 1799, holding:

  • When deciding whether to stay or compel arbitration under CPLR 7503, courts are concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim.
  • Judicial restraint under the public policy exception is particularly appropriate in arbitrations pursuant to public employment [CBAs].
  • [Local 1799] contends that Supreme Court erred in concluding that its grievance concerned nonarbitrable job security clauses as the clauses relate only to minimum shift staffing requirements and do not guarantee employment to bargaining unit members during the life of the CBA, a hallmark of a no-layoff job security clause.
  • [Local 1799] further asserts that minimum staffing requirements set forth in article 18 (d) and (e) of the CBA pertain to health and safety concerns and are properly the subject of arbitration.
  • Although the provisions at issue here do not expressly mention safety as a reason for the minimum staffing requirements, the safety considerations are self-evident from the nature of the work to be performed; the quintessentially dangerous task of addressing conflagrations that, from time to time, beset the community.
  • It goes without saying that, in such situations, having adequate personnel on hand would be essential to ensure firefighter safety as well as success in fighting the fires. In addition, the parties plainly agreed to arbitrate matters such as this as article 22 of the CBA clearly contemplates arbitration of grievances.
  • Supreme Court therefore erred in staying arbitration here.
  • [Internal quotation marks and citations omitted].

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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