In re Uniformed Firefighters Association of Greater New York, etc., Petitioner-Appellant, The
City of New York, et al., Respondents-Respondents.
Certilman Balin Adler & Hyman, LLP, East Meadow (Paul S. Linzer of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for The City of New York, respondent.
John F. Wirenius, New York, for The New York City Board of Collective Bargaining, respondent.
Mazzarelli, J.P., Acosta, Saxe, Moskowitz, JJ.
Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered December 6, 2012, denying the petition brought under CPLR article 78 to annul a portion of the interim decision and order of respondent the New York City Board of Collective Bargaining (the board or the BCB), dated June 29, 2011, which dismissed petitioner's charges of an improper practice upon determining that respondent the City of New York (the City) was not required to negotiate its decision to reduce fire engine staffing levels, and dismissing the proceeding, unanimously affirmed, without costs.
Petitioner Uniformed Firefighters Association (UFA) serves as the collective bargaining representative for FDNY firefighters. Since the 1980s, there has been a dispute between the City and the firefighters' unions concerning the City's attempts to reduce the number of firefighters assigned to each engine.
On January 31, 1990, the City implemented a roster staffing program that reduced fire engine crews in certain companies from five to four firefighters per engine. Petitioner subsequently challenged this action as creating a safety threat to firefighters. In considering the challenge, the BCB directed a hearing to establish a record and determine whether a practical safety impact would result from the City's action. The parties conducted safety impact hearings before a special trial examiner, but he died before issuing a decision for the board's consideration. On January 30, 1996, the parties settled the matter by executing the Roster Staffing Agreement (the agreement); the agreement was to be effective for a 10-year term, expiring on January 31, 2006.
The agreement provided that "the [FDNY] will initially designate sixty (60) Engine Companies to be staffed with a fifth firefighter at the outset of each tour.... All other engine company staffing not so designated will remain at the maximum of five firefighters at the start of each tour." During the term of the agreement, FDNY had the right to reduce the engine staffing levels in companies with five firefighters per engine if the level of firefighter medical leave exceeded a certain percentage.
The agreement contained the following provision in the eleventh paragraph:
"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 agreement 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 agreement will be terminated immediately. Should litigation or a grievance commence, this agreement or any portion thereof shall not be admissible in any court proceeding or other administrative forum. After the expiration of this Agreement, 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 2005, petitioner and the City agreed to extend the term of the agreement by five years to January 31, 2011.
In October 2010, the City notified petitioner that, following the agreement's impending January 31, 2011 expiration date, the City planned to staff 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, petitioner, with the Uniformed Fire Officers Association (the 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, beginning February 1, 2011. The petition challenged the City's unilateral action as violative of both the agreement and the New York City Collective Bargaining Law (NYCCBL).
In an interim decision and order dated June 29, 2011, 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. The board also directed a hearing before a trial examiner to determine whether the reduction would have a safety impact ...