On September 21, 2015, in Village of Garden City v. Local 1588, Professional Firefighters Assn., 132 A.D.3d 887 (2d Dept. 2015), the Appellate Division, Second Department unanimously ruled that Local 1588, IAFF, AFL-CIO, the Professional Firefighters Association of Nassau County, could proceed with an arbitration challenging the Village of Garden City’s decision to layoff six Career Professional Firefighters, demote a paid Fire Lieutenant and transfer their work to non-bargaining unit Volunteer Fire Fighters. The Appellate Division, Second Department rejected the Village’s claim that it had the right to avoid arbitration based on an alleged right to layoff the Career Professional Fire Fighters under the New York State Civil Service Law. The Appellate Division, Second Department unanimously rejected the Village’s reliance on the New York State Court of Appeals decision in Matter of Johnson City Prof. Firefighters Local 921, 18 N.Y. 3d 32 (2011), a case public employers often cite to try to get around no layoff or other job security clauses in collective bargaining agreements (CBA). In Johnson City, the Court of Appeals found that “a purported job security provision does not violate public policy, and therefore is valid and enforceable, only if the provision is explicit, the CBA extends for a reasonable period of time, and the CBA was not negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power.” In distinguishing Johnson City, the Appellate Division, Second Department, unanimously ruled that Local 1588’s grievance does not concern a job security provision. In rejecting the Village’s reliance on Johnson City, the Appellate Division stated:
Here, the petitioner argued that arbitration of layoffs of union-member firefighters is prohibited by public policy. Regarding a violation of public policy, “a dispute is not arbitrable ‘if a court can conclude “without engaging in any extended factfinding or legal analysis” that a law “prohibit[s], in an absolute sense, [the] particular matters [to be] decided’ by arbitration”‘ (Matter of New York City Tr. Auth. v. Transport Workers Union of Am., Local 100, 88 AD3d at 887, 888 quoting Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 519, quoting Matter of New York City Tr. Auth. v. Transport Workers Union of Am., Local 100 AFL-CIO, 99 NY2d 1, 8- 9). The petitioner failed to point to any law or public policy that would prohibit arbitration of the grievance. Furthermore, because the respondent’s grievance is not predicated on a “job security” clause, the petitioner’s reliance on Matter of Johnson City Professional Firefighters Local 921 (Village of Johnson City) (18 NY3d 32, 32-37) is misplaced.
In addition, the Appellate Division, Second Department ruled that Local 1588’s grievance alleging that the Village of Garden City had improperly assigned bargaining unit work to nonunion Volunteer Fire Fighters, involved the same arbitrability issue that the court had previously addressed in Matter of Professional Firefighters Assn. of Nassau County, Local 1588, Intl. Assn. of Firefighters, AFL-CIO, 119 A.D.3d 803 (2014). In that case, the Appellate Division, Second Department unanimously confirmed an arbitration award of Arbitrator Barbara C. Deinhardt which recognized the exclusive jurisdiction of the Garden City Career Professional Fire Fighters over the operation of first line fire apparatus, such as fire engines and ladder trucks. The Appellate Division, Second Department’s decision upholding Local 1588’s right to proceed to arbitration is consistent with its prior decision in Matter of Rockville Centre Teachers Assoc. v. Board of Ed., 48 A.D. 2d 698 (2d Dept. 1975), in which the court held, under very similar facts, that “[t]o determine that, if a bargaining unit position is abolished but similar work continues to be performed, there is a violation of the agreement, is well within the terms of the agreement and is within the power of the arbitrator.”
The Village of Garden City is sparing no expense and doing everything it can to avoid arbitration of Local 1588’s grievance challenging the layoffs of its members. The Appellate Division, Second Department recently and unanimously denied the Villages’ motion to reargue its decision, unanimously denied the Village’s motion for permission to appeal to the Court of Appeals and awarded costs to Local 1588. The Village’s second motion for permission to appeal to the Court of Appeals is pending. The takeaway from the Appellate Division, Second Department’s decision in Village of Garden City v. Local 1588, Professional Firefighters Assn., 132 A.D.3d 887 (2d Dept. 2015), is not to allow public employers to disguise improper transfer of bargaining unit work with pretextual job abolishments. Employers should not be allowed to claim a lawful job abolishment when in reality they are improperly shifting the work to non-bargaining unit individuals, which may include nonunion volunteers.
Richard S. Corenthal is a Shareholder of Meyer, Suozzi, English & Klein, P.C. and a member of the Labor and Employment Law groups. Mr. Corenthal represents public-sector and private-sector labor unions in a wide range of labor and employment matters.