In re Arbitration between City of Lockport & Lockport Professional Firefighters Ass'n

Appeal from an order of the Supreme Court, Niagara County

It is hereby ordered that the order so appealed from is. unanimously affirmed without costs.

Memorandum: Respondent is the exclusive bargaining representative for all firefighters employed by petitioner, except for the fire chief. Pursuant to the parties’ collective bargaining agreement (CBA), petitioner agreed, among other things, that it would “staff all equipment with adequate firefighters to assure that any evolutions [that] the firefighters are called upon to perform can be conducted with enough firefighters to assure the safety of the staff performing the evolution.” Another provision of the CBA provided that petitioner was permitted to transfer dispatch communication duties out of the fire department and, in exchange, the parties agreed that petitioner would thereafter be entitled to maintain a minimum staffing level of nine firefighters per shift, which was one less than the minimum level set forth in a prior arbitration award (hereafter, staffing provision). The staffing provision further provided that “nothing contained herein shall prohibit [petitioner], subject to the terms of the parties’ agreements and applicable law, from adjusting staffing levels to account for changes in population, technology, apparatus, or other relevant circumstances,” and that the parties would “meet cooperatively for the purpose of discussing issues relating to firefighter and public safety issues],] and logistical issues],] associated with the transfer of dispatch duties.” Petitioner’s Board of Fire Commissioners subsequently voted to remove an ambulance from service and to reduce the minimum staffing level to seven firefighters per shift, and such operational changes were then implemented by the fire chief. Respondent filed a grievance pursuant to the procedures set forth in the CBA and thereafter demanded arbitration seeking a determination that petitioner violated the CBA and restoration of the minimum staffing level to nine firefighters per shift. Petitioner commenced this proceeding pursuant to CPLR article 75 seeking a permanent stay of arbitration. Supreme Court denied the petition, and granted the “cross-motion” of respondent to dismiss the petition and compel arbitration. We affirm.

“It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim” (.Matter ofAlden Cent.

With respect to the first part of the analysis, petitioner contends that the staffing provision of the CBA constitutes a job security provision that is not arbitrable on public policy grounds because it is not explicit, unambiguous, and comprehensive (see Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d 32 , 37 [2011], rearg denied 18 NY3d 937 [2012]). We reject that contention. “This State has a strong public policy favoring arbitration of public sector labor disputes . . . , and ‘judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships’ ” (Matter of City of Lockport [Lockport Professional Firefighters Assn., Inc.], 133 AD3d 1358 , 1359-1360 [2015], quoting Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1 , 6-7 [2002]; see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72 , 80 [2003]). Consistent with those principles is the general approach employed in arbitration cases, namely, that “any doubts as to whether [an] issue is arbitrable will be resolved in favor of arbitration” (Matter of BRG Sports, LLC v Zimmerman, 127 AD3d 499 , 499 [2015]; see State of New York v Philip Morris Inc., 30 AD3d 26 , 31 [2006], affd 8 NY3d 574 [2007]). Here, contrary to petitioner’s contention, we conclude that the court did not err in determining that the staffing provision constituted a safety provision, i.e., a condition of employment, rather than a job security provision that could be subject to the public policy exception to arbitration. “A job security provision insures that, at least for the duration of the agreement, the employee need

With respect to the second part of the analysis, it is undisputed that the parties agreed to arbitrate all grievances arising from the CBA. Whether the reduction of the minimum staffing level to seven firefighters per shift based on the removal of an ambulance from service constitutes a violation of the CBA goes to the merits of the grievance itself, not to its arbitrability, and it is therefore a matter for the arbitrator to resolve (see Matter of Village of Horseheads [Horseheads Police Benevolent Assn., Inc.], 94 AD3d 1191 , 1192-1193 [2012], lv denied 19 NY3d 899 [2012]).

Present — Centra, J.P., Peradotto, Lindley, DeJoseph and NeMoyer, JJ.