City of Ogdensburg v Ogdensburg Firefighters Assn., Local 1799

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[*1] City of Ogdensburg v Ogdensburg Firefighters Assn., Local 1799 2021 NY Slip Op 21071 Decided on March 26, 2021 Supreme Court, St. Lawrence County Farley, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on March 26, 2021
Supreme Court, St. Lawrence County

The City of Ogdensburg, Petitioner,

against

Ogdensburg Firefighters Association, Local 1799, A.F.L., C.I.O., I.A.F.F., Respondent.



EFCV-21-159086



Appearances: Coughlin & Gerhart, LLP (Paul J. Sweeney, Esq., of counsel), attorneys for Petitioner; and Blitman & King, LLP (Nathaniel G. Lambright, Esq., of counsel), attorneys for Respondent.
Mary M. Farley, J.

Petitioner City of Ogdensburg ("Petitioner" or "City") brings this special proceeding (hereinafter, "2021 Proceeding") under New York Civil Practice Law and Rules ("NY C.P.L.R.") § 7503 (b) against Respondent Ogdensburg Professional Firefighters Association, Local 1799 ("Respondent" or "Union") for a permanent stay of arbitration demanded by the Union's December 28, 2020 Demand for Arbitration ("Demand"). The City's Petition avers that public policy bars the Union from grieving certain provisions in the parties' 2020-2025 Collective Bargaining Agreement ("Agreement") (NYSCEF Doc. 2) since those provisions, taken together, comprise a "job security" clause which is barred by public policy. In response, the Union asserts that those provisions solely concern arbitrable safety issues, and not job security. For the reasons which follow, the Court determines the provisions now at issue comprise an unenforceable "job security" clause, and grants the City's Petition to stay arbitration.



SUMMARY OF FACTS

The parties' dispute concerning the meaning and arbitrability of the pertinent provisions of the Agreement is not new to this Court. In Ogdensburg Professional Firefighters Association, Local 1799 v. City of Ogdensburg, New York, St. Lawrence County Index No. EFCV-20-158986 ("2020 Proceeding"), this Court denied the Union's December 2020 request for a preliminary injunction based on the Agreement. The Court briefly addresses the 2020 Proceeding and then turns its attention to the City's instant application seeking a stay of arbitration.

1. 2020 Proceeding

The Union commenced the 2020 Proceeding by Order to Show Cause to preliminarily [*2]enjoin the City from reducing the number of fire department bargaining unit members below 24 pending arbitration, and for other relief. In support of its application, the Union's Petition (Doc. 33) argued the Agreement established "minimum shift staffing within the Fire Department." Id. at ¶ 19 (emphasis added). In opposition, the City argued the Union did not meet either NY C.P.L.R. § 7502 (c) or the well-established test for preliminary injunctions.

Equally pertinent to the instant proceeding, the Court also considered the following provisions from the Agreement in connection with the earlier 2020 Proceeding. Article 18 (Compensation and Staffing) paragraphs (c), (d) and (e) provide:

c) Hazard Pay - Any bargaining unit employee assigned to a shift with less than 6 assigned members shall receive $3 per hour in addition to their regular salary, with an additional $3 per hour added for each subsequent reduction to the number of assigned shift members [ ]. This section 18 c) Hazard Pay shall apply for the period of this contract only or until a successor agreement is reached.d) There shall be 4 shifts of bargaining unit employees and each shift must have an officer structure of one Assistant Chief, one Captain, with the remaining shift members being Firefighters.e) A minimum of 5 bargaining unit employees (4 firefighters plus 1 officer, or 3 firefighters plus 2 officers) shall be on-duty at all times unless otherwise mutually agreed to in writing for the period of this contract.

Id. (emphases added).

Article 20 (Vacancies) provides, in pertinent part:

When a vacancy occurs in any competitive class of Firefighter within the Fire Department, such that the full-time staffing falls below 24, such vacancy will be filled as soon as practical [sic] from a Civil Service eligibility list.

Id. (emphases added).

By January 11, 2021, Decision and Order ("Decision and Order")[FN1] , this Court declined the Union's request for a preliminary injunction, and dismissed the 2020 Proceeding.

2. 2021 Proceeding

According to the Union, on December 3, 2020, Ogdensburg City Manager Stephen Jellie ("Jellie") informed its membership that, beginning in 2021, the City intended to operate the City Fire Department with less than five (5) on-duty members on each shift, and "would operate with as few as three." Affidavit of Union Vice-President Scott McCormick ("McCormick") (Doc. 25) at ¶ 6. On December 28, 2020, the Union, pursuant to the Taylor Law, submitted its Demand (Doc. 5) to the New York State Public Employment Relations Board asserting the City violated the following sections of the Agreement: Article 7 (Vacation); Article 18 (Compensation and Staffing), Sections (c), (d), (e), and (f); Article 20 (Vacancies); and, Article 24 (General Provisions). In pertinent part, the Union's Attachment to Demand for Arbitration (Doc. 5 at pg. [*3]3) alleged the City breached Articles 18 (c)-(f) on the ground that, "effective January 1, 2021, [the City] would no longer maintain 'manpower' levels as defined and/or referenced by the Agreement, including a minimum of five bargaining unit members on duty at all times [ ]." Id. (emphases added). The Demand did not mention safety issues or concerns.

"As a remedy", the Union's Demand called for the arbitrator to "restore manpower' levels as defined and/or referenced [in the Agreement] to the same number [24] that existed as of the date of this grievance." Id. (emphases added). Further, for each shift staffed below this level, the Union "demand[ed] that the remaining members on that shift shall receive the amount equivalent to the entire cost of employing a full-time assistant at the top step for that shift [and] that the members that would have been scheduled to be called in per the [ ] Agreement receive full pay at his overtime rate for the duration of that shift." "Effective January 18, 2021, [the City] reduced the daily minimum staffing requirement from five personnel to four." McCormick aff. at ¶ 16.

In support of its Petition, the City asserts that Articles 18 (c)-(f), upon which the Union based its Demand, comprise a "purported job security provision [which] is not enforceable or arbitrable as arbitration of the clause would violate public policy." Petition at ¶ 15. The City argues that, taken together, the Article 18 (d) specification of four (4) shifts and the Article 18 (e) requirement that a minimum of five (5) bargaining unit employees "be on-duty at all times" in effect provide job security for at least twenty (20) bargaining unit members. According to the City, these provisions "purport to require a minimum total staffing level of at least 20 firefighters, that is five firefighters per shift working on four total shifts." Petition at ¶ 26. The City asserts that this de facto "job security" clause was not an "explicit, unambiguous and comprehensive" waiver of its right to reduce staffing for budgetary or economic reasons, thereby making it unenforceable. Id. at ¶ 18.

The parties agree that the duration of the Agreement is a full six (6) years—from January 1, 2020, through December 31, 2025. The proof before the Court establishes that late 2019—when the Agreement was negotiated—was a time of "severe financial distress" for the City. Jellie aff. at ¶¶ 8-9; see Petition at ¶¶ 35-37. To be sure, the City was placed on notice in June 2019—prior to the impact of the COVID-19 pandemic—by the New York State Financial Restructuring Board that it would most likely reach the Constitutional Tax Limit by 2023. Jellie aff. at ¶ 8; Petition at ¶ 35. Each year since 2018, the New York State Comptroller had placed the City on notice that it was considered a "high risk zone" for exceeding the Constitutional Tax Limit. Jellie aff. at ¶ 8 and Doc. 11 (correspondence from Comptroller) at pp. 1-12; see Petition at ¶ 35. As a result, the City "took decisive action with the 2021 budget to remedy this crisis by enacting a 10% cut to the property tax rate." Jellie aff. at ¶ 8.

Following the City's commencement of this 2021 Proceeding, the Union expressly limited the alleged violations of the Agreement which it sought to arbitrate. In this regard, the Union "affirmatively avers that it is only seeking to arbitrate violations of Article 18 (d) and Article 18 (e). All other claims of contract violations [Article 7, Article 18 (c) and (f), Article 20 and Article 24] have been dropped by the Union." Answer (Doc. 30) at ¶ 18; see McCormick aff. at ¶ 18. As a result, the Union takes the position that the only two pertinent provisions now before this Court are Articles 18 (d) and (e).

In opposing the City's Petition, the Union argues that Articles 18 (d) and (e) are: "clearly a safety clause (18 [d])"; and, "a safety clause, not a job security clause" (18 [e]). See McCormick aff. at ¶¶ 23, 25. As a result, the Union takes the position that they are enforceable [*4]in arbitration. Citing to a National Fire Protection Association standard and a policy of the United States Occupational and Health Administration (McCormick aff. at ¶ 23), the Union asserts that it and the City "did not come up with the five on-duty bargaining unit member minimum out of whole cloth." Union Memorandum of Law (Doc. 21) at 4. "It is inherently dangerous for the firefighters to respond to fires and enter a building with less than the five-person minimum." McCormick aff. at ¶ 23.

Apparently recognizing that Articles 18 (d) and (e) do not contain the word "safety" or a single reference to firefighter (or public) safety, the Union asserts in its Memorandum of Law (Doc. 21 at 4), without evidentiary support, that the parties "agreed verbally across the table in negotiations that the minimum on-duty staffing of five bargaining unit members was necessary to protect and preserve the health, safety and wellbeing of bargaining unit members." The Union acknowledges that Article 18 (c), which the Union expressly abandoned as a basis for its arbitration demand, expressly provides for "hazard pay [ ] if [members are] required to work with less than five members on a shift." Id. at 5; see McCormick aff. at ¶ 27. McCormick nonetheless asserts the Union's "number one priority [in negotiating Article 18 (d) and Article 18 (e) into the Agreement] was to maintain a safe working environment." Id. at ¶ 28.

DISCUSSION

In assessing whether the Union showed a substantial likelihood of success on the merits, the Court's January 11, 2021 Decision and Order considered, but did not decide, whether provisions of the Agreement at issue in the 2020 Proceeding comprised a "job security" clause which may not be enforced in arbitration. While concluding the Union had not shown a likelihood of success, the Decision and Order specifically stated that it "d[id] not express an opinion as to whether [this] language [ ] comprises either 'job security provision(s)' [and], if so, whether public policy bars submission to arbitration." Decision and Order at 8. The Court is now called upon to answer those questions.

"The threshold determination of whether a dispute is arbitrable is well settled." 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 513, 519 (2007). In making this determination, the Court must apply a two-part analysis. First, the Court asks "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." Matter of Board of Educ. of the Catskill Cent. Sch. Dist. (Catskill Teachers Assn.), 130 AD3d 1287, 1288 (3d Dep't 2015), lv denied, 26 NY3d 912 (2015). "This is the 'may-they-arbitrate' prong." Matter of City of Johnstown (Johnstown Police Benevolent Assn.), 99 NY2d 273, 278 (2002). If the Court determines under the first step there is such a prohibition, its "inquiry ends and an arbitrator cannot act." County of Chautauqua, 8 NY3d at 519. "Arbitration must be stayed where the granting of any relief would violate public policy." Matter of City of Plattsburgh (Plattsburgh Permanent Firemen's Assn.), 174 AD3d 1017, 1018 (3d Dep't 2019) (cleaned up)[FN2] .

Second, if no prohibition exists, the Court must examine the agreement to determine whether the parties in fact agreed to arbitrate the particular dispute at issue. This is the "did-they-agree-to-arbitrate" prong. Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 NY2d 509, 513 (1977). In this special proceeding, the City and Union address only the first, "may they arbitrate" prong, and do not seriously dispute whether the parties' broad arbitration clause otherwise covers the dispute at hand.

1. Do Articles 18 (d) and (e), Taken Together, Comprise a "Job Security" Clause?

The first question before the Court is whether Articles 18 (d) and (e) comprise a "job security" clause. As defined by the Court of Appeals, "[a] job security provision insures that, at least for the duration of the agreement, the employee need not fear being put out of a job." Bd. of Ed. of Yonkers City Sch. Dist. v. Yonkers Fed'n of Tchrs. (hereinafter Yonkers Fedn. of Teachers), 40 NY2d 268, 275 (1976). The Union acknowledges that "'[a] "job security" clause will only be enforceable and subject to arbitration if it meets the "stringent test of [1] being explicit, [2] not negotiated in a time of legislatively declared emergency between parties of unequal bargaining power and [3] is relatively brief in duration." Union Memorandum of Law (Doc. 21) at 16 (quoting Matter of Johnson City Professional Firefighters Local 921 (Village of Johnson City), 18 NY3d 32, 37 [2011] [emphasis added]). The public policy underlying this "stringent test" is as follows:

"[T]his 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.

Id.

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." Id. at 37-38.

Several Court of Appeals and Third Department decisions have addressed whether specific provisions contained in a collective bargaining agreement ("CBA") for public employees constitute "job security" clauses and, if so, whether the particular clause at issue nonetheless meets the stringent, three-part test to be enforceable and subject to arbitration. The Court first addresses three Court of Appeals decisions issued July 1, 1976 — Yonkers Fedn. of Teachers; Matter of Burke v. Bowen, 40 NY2d 264 (1976) (hereinafter Matter of Burke); and, Yonkers School Crossing Guard Union of Westchester Ch., CSEA v. City of Yonkers (hereinafter Yonkers School Crossing Guards), 39 NY2d 964 (1976). Taken together, these cases establish the framework for analysis.

In Yonkers Fedn. of Teachers, the Court of Appeals defined a "job security" clause as set [*5]forth above. Next, it determined the specific CBA language at issue — "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 as provided for under the Tenure Law" — was such a clause. 40 NY2d at 272. Although Yonkers Fedn. of Teachers found this to be a "job security" clause, it nonetheless concluded it was arbitrable because the CBA itself was relatively brief in duration (2-3 years), and it was not negotiated during a period of financial emergency. Id. at 275. "Most important, the job security clause in the instant case is explicit in its protection of the teachers from abolition of their positions due to budgetary stringencies [ ]." Id. (emphases added). Yonkers Fedn. of Teachers specifically invited comparison of the contract language found arbitrable there and in Matter of Burke with the language found not arbitrable in Yonkers School Crossing Guards. Id. at 275-76.

In Matter of Burke, the CBA specified both a minimum number of workers per shift and a minimum number of active firefighters. In this regard, the contract stated:

"All tours shall consist of a minimum of six (6) Fire Fighters (one Officer and five Fire Fighters). *** It is agreed by and between the parties that the best interests of public safety as regards fire protection with a minimum complement of thirty-four (34) active Fire Fighters, shall be acceptable for the term of this agreement. *** Notwithstanding any provision herein, it is agreed that upon a re-evaluation as to minimum complement, that in no event shall the presently agreed upon minimum be readjusted downward. The specific intent of this provision is to assure public safety standards as well as minimum job protection for the Fire Fighters."

40 NY2d at 266 (emphases added). Finding this language to be a "job security provision," Matter of Burke nonetheless found it enforceable in arbitration because it: (1) was "explicit" in its meaning; (2) "extended for a reasonable period of time, three years and seven months"; and, (3) was not negotiated during a period of financial emergency between parties of unequal bargaining power. Id. at 267.

In contrast, the Court of Appeals found unenforceable the specific contract language at issue in Yonkers School Crossing Guards. First, the court found that the contract language — which stated only that "[p]resent members may be removed for cause but will not be removed as a result of [p]ost elimination" — to be a "job security" clause. 39 NY2d at 965. Next, the Court of Appeals specifically contrasted this language with the CBA clauses upheld in the two other cases decided that day. The Court of Appeals stated: "the job security clauses [in Yonkers Fedn. of Teachers and Matter of Burke] were explicit, unambiguous and comprehensive. In contrast, the instant clause is ambiguous and most likely was included to protect individual employees from manipulated termination of services due to the elimination of a particular post." Id.

In its 2011 decision, Village of Johnson City, the Court of Appeals specifically cited to its three July 1976 decisions in determining the CBA clause at issue was not enforceable as a matter of public policy. The CBA language in Village of Johnson City stated, in its entirety:

"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."

18 NY3d at 36. In finding this language to be a "job security" clause not meeting the three-part test for arbitrability, the Court of Appeals expressly distinguished Yonkers Fedn. of Teachers on the ground that the clause upheld in that case explicitly protected workers from abolition of their [*6]position "due to budgetary stringencies." Id. at 37. It likewise distinguished Matter of Burke on the ground that the language there was "explicit, unambiguous and comprehensive." Id. Like the clause which it found unenforceable in Yonkers School Crossing Guards, the Court of Appeals in Village of Johnson City concluded the CBA provision before it was ambiguous, and did not explicitly protect firefighters from abolition of their positions due to economic and budgetary stringencies.

Two recent Third Department cases have direct application to the CBA provisions now before the Court. The CBA at issue in Plattsburgh Permanent Firemen's Assn. (discussed extensively in this Court's January 11, 2021 Decision and Order), "prohibited layoffs, required minimum staffing levels of 36 firefighters and obligated [the City] to fill vacancies to maintain the agreed-upon minimum staffing levels." 174 AD3d at 1017 (2019). There, the firefighters' union asserted this language was not a "job security" clause, but, instead, was a safety provision that may be enforced through arbitration. The Third Department rejected this argument, and determined that because it "addressed the issue of job security by mandating a minimum staffing level and prohibiting layoffs", it constituted a "job security" clause. Id. at 1019. Plattsburgh Permanent Firemen's Assn. concluded the CBA language before it "most closely resembles the clause considered [ ] in Burke," also found to be a "job security" clause, because it both referenced public safety and required a minimum number of firefighters be employed. Id. at 1019. "Although these provisions [in Plattsburgh Permanent Firemen's Assn.] may relate to safety concerns, they also specifically address the issue of job security by mandating a minimum total staffing level and prohibiting layoffs." Id. Because the CBA did not explicitly state that the municipality was bargaining away its right to "eliminate positions or terminate or lay off workers for budgetary, economic or other reasons" (id. at 1018), the Third Department held that it did not satisfy the "stringent standard" for arbitrability.

The Union relies heavily upon the more recent Third Department case, Matter of Village of Endicott (Village of Endicott Police Benevolent Assn., Inc.), 182 AD3d 738 (3d Dep't 2020), to argue that the language of the Agreement is not a "job security" clause at all. The limited CBA provision at issue in Village of Endicott Police Benevolent Assn., Inc. stated that when a "short shift" results in less than three (3) police officers on the road, "overtime is not to be used to staff a fourth . . . patrol spot." 182 AD3d at 741. The provision in Village of Endicott Police Benevolent Assn. was not found to be a "job security" provision because it did not guaranty employment during the life of the CBA, and did not protect police officers "'from abolition of their positions due to budgetary stringencies.'" Id. (quoting Yonkers Fedn. of Teachers). Simply stated, the sole CBA provision at issue in Village of Endicott Police Benevolent Assn. neither required nor implied employment of a minimum number of police officers. Significantly, however, the Third Department did not expressly address another contract provision — one which required a "total of 35 employees" — because that provision had previously been held (in the trial court's 2013 court decision) to constitute a "job security provision that did not meet the established requirements for arbitrability." Id. at 739.

Contrary to the Union's argument, this Court finds the provisions of the Agreement now at issue more akin to those considered in Matter of Burke and Plattsburgh Permanent Firemen's Assn. than the limited CBA language at issue in Village of Endicott Police Benevolent Assn, thereby concluding it is a "job security" clause. The Court rejects as disingenuous the Union's assertion that Articles 18 (d) and (e) do not ensure a minimum number of employees during the Agreement's duration, but instead merely specify a minimum shift complement solely for safety [*7]purposes. Rather, the conclusion is inescapable that Articles 18 (d) and (e), read together, mandate minimum employment of at least twenty (20) firefighters. As stated by the City's Reply Memorandum of Law (Doc. 34), these provisions result in the "mathematical fact that the 5 firefighter minimum shift staffing level amounts to a de facto 20 firefighter minimum force staffing level, as the City must deploy four platoons or shifts of at least 5 firefighters each: 4 platoons x 5 firefighters per platoon/shift = 20 firefighters." Id. at 3-4.

For three reasons, the Court also rejects the Union's argument (see McCormick aff at ¶¶ 23, 25), based on Village of Endicott Police Benevolent Assn., Inc., that Articles 18 (d) and (e) are clearly "safety clause[s], not job security clause[s]", and therefore arbitrable. First, Plattsburgh Permanent Firemen's Assn. makes plain that "mixed" or "hybrid" contract language which "both reference[s] public safety and required a minimum number of firefighters be employed" constitutes a "job security" clause. Thus, even accepting the Union's assertion that Articles 18 (d) and (e) concern safety, because they also address job security, Plattsburgh Permanent Firemen's Assn. establishes the "stringent test", outlined above, must be met to be enforceable. 174 AD3d at 1019.

Second, the language of the Agreement, the Demand, and, its prior submissions to this Court all undercut the Union's argument that the Agreement includes

Articles 18 (d) and (e) solely for safety purposes. Neither the word "safety" nor language referencing worker or community safety appears anywhere therein. Further,

Article 18 (c) of the Agreement provides for "hazard pay", specifying that every bargaining unit employee assigned to a shift with less than six (6) assigned members receive an additional $ 3 per hour, "with an additional $ 3 per hour added for each subsequent reduction to the number of assigned shift members." If Articles 18 (d) and (e) were solely a safety clause, it belies logic that Article 18 (c) would permit shift staffing of less than five (5) members under any circumstance. In addition, the Court notes that the Union's Demand sought, as a remedy for each shift staffed below five (5) members, that the remaining members on the shift "receive the amount equivalent to the entire cost of employing a full-time assistant at the top step," and that members who "would have been called in" but for the claimed short shift receive full pay at the overtime rate for the duration of the shift. Perforce, if Articles 18 (d) and (e) were solely concerned with safety, the Union's Demand would not consider greater pay for the affected members in any way to be an adequate remedy.[FN3]

The Union's prior submissions to this Court further show that its current assertion that Articles 18 (d) and (e) raise only safety issues is disingenuous and constitutes a post facto, make-weight, argument. In seeking a preliminary injunction in the 2020 Proceeding, the Union did not [*8]argue that "safety" was the sole justification for the provisions then at issue, and did not refer to any claimed bargaining history upon which it now seeks to rely. Instead, the Petition (Doc. 33) asserted Agreement "establishes minimum shift complements within the Fire Department" (id. at ¶ 19) and averred "[t]he two minimum staffing provisions [18 (d) & (e)] were negotiated and agreed together in order to insure safe, effective and expedient fire protection services" (id. at ¶ 25), with the "intent [that the City] maintain at least a minimum of 24 bargaining unit members for the life of the Agreement" (id.) (emphases added). The Union's Petition in the 2020 Proceeding expressly referenced the claimed "minimum staffing requirements [that] have existed for years within the CBA [ ]." Id. at ¶ 26 (emphasis added).

Third, the Union's claim that the parties intended that "there would be absolutely no way the City would be authorized to operate with less than the five-man minimum on each shift, including at least one officer" (McCormick aff. at ¶ 27) finds no support in either the language of the Agreement or under applicable law. Simply stated, the Union's assertion would require this Court to ignore and not give meaning to the Agreement's clear and unambiguous language, quoted above, of Article 18 (c). The Agreement is clear on its face that it expressly permits shifts of less than five firefighters — albeit with enhanced pay of $3/hour. Accordingly, the Court may not, and will not, consider the Union's extrinsic evidence of the parties' claimed intent. Matter of Warner v. Board of Educ., Cobleskill-Richmondville Cent. Sch. Dist., 108 AD3d 835, 836-37 (3d Dep't 2013), lv denied, 22 NY3d 859 (2014).

Finally, the Union's reliance on two recent Fourth Department decisions is unavailing. In Matter of City of Lockport (Lockport Professional Firefighters Assn., Inc.), 141 AD3d 1085 (4th Dep't 2016), the CBA provision called for a minimum staffing level of nine (9) firefighters per shift. 141 AD3d at 1086. When the City reduced shift staffing to seven (7) firefighters, the union sought arbitration, which the City of Lockport sought to stay. Although the Fourth Department found the language at issue not a "job security" clause, that contract language is clearly distinguishable. Most significantly, the provision at issue in Lockport Professional Firefighters Assn., Inc. did not specify both: the number of firefighters per shift; and, the number of shifts. As a result, the Fourth Department, in explicitly distinguishing Matter of Burke, concluded the clause at issue "d[id] not operate to mandate a total number of firefighters that must be employed", but instead "relates solely to the minimum number of firefighters required to be present for each shift." Id. at 1088 (emphasis added).

Matter of City of Watertown (Watertown Professional Firefighters Assn., Local 191), 169 AD3d 1396 (4th Dep't 2019), lv denied, 33 NY3d 904 (2019), is likewise distinguishable. In that case, as in Lockport Professional Firefighters Assn., Inc., the Fourth Department concluded the CBA provisions at issue "related[d] solely to the minimum number of firefighters required to be present during shifts and regular operations," and thus were not a "job security" clause. 169 AD3d at 1397 (emphases added). Unlike Articles 18 (d) and (e) here, the language in Lockport Professional Firefighters Assn., Inc. did not specify both: minimum shift size; and, the number of shifts. In any event, to the extent Lockport Professional Firefighters Assn., Inc. or Watertown Professional Firefighters Assn., Local 191 contradict the Third Department's clear decision in Plattsburgh Permanent Firemen's Assn., this Court is constrained to follow the latter.

2. As a "Job Security" Clause, is the Three-Part Test for Arbitrability Met?

Having found the language of the Agreement now at issue comprises a "job security" clause, the Court must next consider whether it meets the stringent, three-part test applied in Yonkers Fedn. of Teachers, Matter of Burke, Village of Johnson City, and Plattsburgh [*9]Permanent Firemen's Assn. Because the Agreement's language fails each part of the test, this question is easily answered.

First, the Agreement does not explicitly protect jobs. To conclude Articles 18 (d) and (e) constitute a "job security" clause mandating minimum staffing of twenty (20) members requires the Court to read those provisions together. Because this minimum staffing requirement appears only through reading each section in the light of the other, the resulting "job security" requirement by definition is not explicit, unambiguous and comprehensive. Accordingly, the Court concludes that Articles 18 (d) and (e) are not "explicit in [ ] protection from [ ] from abolition of positions due to budgetary stringencies" (Yonkers Federation of Teachers); do not state a "specific intent [ ] to assure [ ] minimum job protection for the Fire Fighters" (Matter of Burke); and, do not "explicitly state that the [City] was bargaining away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons" (Plattsburgh Permanent Firemen's Assn.).

Second, it is important to note that the longest job security clause approved by the decisions discussed above was only three (3) years and seven (7) months (Village of Johnson City). In the instant matter, the Agreement's six (6) year term is not "relatively brief in duration" (Yonkers Fedn. of Teachers), and thus fails the second requirement permitting arbitrability. Finally, it is undisputed that the 2020 Agreement — including the "job security" clause now at issue — was negotiated during a period of severe financial distress for the City. Thus, Articles 18 (d) and (e) fail the third requirement.

3. Public Policy Exception to Broad Policy Favoring Arbitrability Requires Stay.

To be sure, this Court recognizes any determination that Articles 18 (d) and (e) are not arbitrable on public policy grounds must fall within the "narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships, and the correlative, expansive power of arbitrators to fashion fair determinations of the parties' rights and remedies." New York City Transit Auth. v. Transp. Workers Union of Am., Loc. 100, AFL-CIO, 99 NY2d 1, 7 (2002). This public policy exception necessarily applies "only in cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator." Matter of Arb. Between City of Troy & Troy Police Benevolent & Protective Ass'n, Inc., 191 AD3d 1203, __ (3d Dep't 2021) (cleaned up). Here, however, Articles 18 (d) and (e) plainly comprise a "job security" clause which does not satisfy the "stringent test" (Village of Johnson City) to be enforceable in arbitration. Accordingly, the City's petition for permanent stay of arbitration must be granted.



CONCLUSION

The City's Petition for permanent stay of arbitration pursuant to C.P.L.R. § 7503 (b) is granted in its entirety.

SO ORDERED.



DATED: March 26, 2021

Canton, New York.

MARY M. FARLEY, J.S.C. Footnotes

Footnote 1:Although, the parties have not included the Decision and Order in their submissions, the Court takes judicial notice thereof. "It is well settled that a court may take judicial notice of its own prior proceedings and orders." Matter of Shirley v. Shirley, 101 AD3d 1391, 1394 (3d Dep't 2012); Matter of Sabrina B. v. Jeffrey B, 179 AD3d 1339, 1441 (3d Dep't 2020) (quoting Matter of Shirley).

Footnote 2:In Brownback v. King, 141 S. Ct. 740, 748 (2021), U.S. Supreme Court Justice Clarence Thomas departed from 'Bluebook' form by using a single parenthetical — "cleaned up" — to signal extraneous material was removed from a quotation without changing the underlining text, and, thereby, convey what the court being quoted actually said. See Debra Cassens Weiss, Justice Thomas Goes Rogue on the Bluebook with 'Cleaned Up' Citation—to the Delight of Appellate Lawyers, ABAJ (March 15, 2021) [note: online edition]. The Second Circuit has employed this usage. E.g. Pharoahs CL, Inc. v. United States Small Business Administration, __ F.3d __, 2021 Westlaw 821457 at * 4 (2d Cir March 4, 2021). This Court adopts Justice Thomas' innovation.

Footnote 3:That the Union dropped its request to arbitrate the City's alleged violation of Article 18 (c) (see Answer at ¶ 30) does not render Article 18 (c) immaterial to the issues now before the Court. Individual parts of the Agreement may not be read in a vacuum. Instead, in determining whether public policy requires a permanent stay of arbitration here, this Court considers the entire Agreement to determine its language and effect. See Metropolitan Life Ins. Co. v. Noble Lowndes Intl., 84 NY2d 430, 438 (1994) ("cardinal principle governing the construction of contracts is that the entire contract must be considered").