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In the Matter of the Arbitration Between Johnson City Professional Firefighters Local 921 et al.

November 17, 2011

IN THE MATTER OF THE ARBITRATION BETWEEN JOHNSON CITY PROFESSIONAL FIREFIGHTERS LOCAL 921 ET AL., RESPONDENTS, AND VILLAGE OF JOHNSON CITY, APPELLANT. (PROCEEDING NO. 1.)
IN THE MATTER OF THE ARBITRATION BETWEEN VILLAGE OF JOHNSON CITY, APPELLANT, AND JOHNSON CITY FIREFIGHTERS ASSOCIATION, LOCAL 921 IAFF, RESPONDENT. (PROCEEDING NO. 2.)



The opinion of the court was delivered by: Pigott, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO; New York State Professional Fire Fighters Association, I.A.F.F., AFL-CIO, amici curiae.

The issue on appeal is whether the parties are required to arbitrate the meaning of a "no-layoff" clause in their collective bargaining agreement. Given the particular contract in this case, we conclude that they are not.

I.

On May 22, 2008, the Village of Johnson City and Johnson City Professional Fire Fighters, Local 921 IAFF executed a collective bargaining agreement (CBA) for a term running from June 1, 2006 through May 31, 2011. The CBA contains a no-layoff clause that states, in full: "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 agreed that disputes concerning the interpretation of this clause, and any other provision of the CBA, should be resolved pursuant to a series of steps, culminating in arbitration before the Public Employment Relations Board (PERB) if the parties were to reach a stalemate.

On May 13, 2009, the Village voted to abolish various positions within the government, including six firefighter positions, citing budgetary necessity. Pointing to the no-layoff clause, the Union filed a grievance with the Village, which was denied. The Union then served the Village with a notice of its intent to arbitrate. Both parties then sought relief in Supreme Court, the Union pursuant to a CPLR article 75 proceeding to enjoin the Village from terminating the six firefighters pending a determination through arbitration. Simultaneously, the Village brought a proceeding to stay any arbitration.

Supreme Court denied the Village's application, and granted the Union's cross application to compel arbitration. The Appellate Division affirmed in both cases, holding 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 (72 AD3d 1235, 1237-1238 [3d Dept 2010]). We granted the Village leave to appeal and now reverse.

II.

The Village contends that the termination of the six fire fighters does not fall within the no-layoff clause and therefore is not arbitrable under the contract. We agree. Not all job security clauses are valid and enforceable, nor are they "valid and enforceable under all circumstances" (Matter of Board of Educ. of Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 275 [1976]). This Court has long held 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" (Matter of Burke, 40 NY2d at 267 [upholding as valid and enforceable a "job security" clause that provided for a minimum number of firefighters for the CBA's term and "that in no event shall the presently agreed upon minimum be readjusted downward"]). A purported "job security" clause that is not explicit in its terms is violative of public policy, rendering it invalid and unenforceable.

In Yonkers Fedn. of Teachers, this Court found arbitrable a "job security" clause that stated 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," holding that the "[m]ost important" thing about the clause's language was that it was "explicit in its protection of the [workers] from abolition of their positions due to budgetary stringencies" (40 NY2d at 275-276 [emphasis supplied]).

In contrast, in Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers [Crossing Guard Union] (39 NY2d 964 [1976]), we concluded that the CBA language "Present members may be removed for cause but will not be removed as a result of Post elimination" did not constitute a "job security" clause in the manner of the clauses we examined in Burke and Yonkers Fedn. of Teachers, holding that the clauses in the latter two cases "were explicit, unambiguous and comprehensive," while the one in Crossing Guard Union was ambiguous.

Contrary to the Union's contention, the no-layoff clause in this CBA is not arbitrable because it is not explicit, unambiguous and comprehensive. From a public policy standpoint, our requirement that "job security" clauses meet this stringent test derives from the notion that before 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. Absent compliance with these requirements, 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 pertinent portion of the no-layoff clause here states that the "Village shall not lay--off any member of the bargaining unit during the term of this contract" but this language, in and of itself, does not explicitly prohibit the Village from abolishing firefighter positions out of budgetary necessity (cf. Yonkers Fedn. of Teachers, 40 NY2d at 275-276). Unlike the clause in Yonkers Fedn. of Teachers, the clause here does not explicitly protect the firefighters from the abolition of their positions due to economic and budgetary stringencies. That is not to say that the parties could not have bargained for such a broad clause, only that it is unclear on its face whether they did so at all, which means that the clause is hardly unambiguous (see Crossing Guard Union, 39 NY2d at 965).

The term "layoff" is undefined in the CBA, and is open to different and reasonable interpretations. Indeed, the parties' disagreement over whether the term "layoff" constitutes a permanent or non-permanent job loss, and whether the Village's abolition of the firefighter positions constituted a layoff, underscores its ambiguity. Moreover, the clause does not comprehensively prohibit the Village from abolishing firefighter positions, and, given its narrow and limited language, it cannot be construed as such. Had the ...


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