Labor & Employment Law

No Layoff Provision In Public Sector CBA Does Not Violate Public Policy

Professor Rubinstein writes: I bring Johnson City Professional Firefighters v. Village of Johnson City, ____A.D.3d ___(3d. Dept. April 8, 2010), because it contains an excellent primer on stays of arbitration on the basis of public policy. In a nutshell, the court held that a no-layoff clause in a public sector CBA did not offend public policy. Therefore, the grievance was arbitrable. As the court explained:

Applying the first prong of this test, we find that the CBA's no-layoff clause is not subject to any prohibition against arbitration. A public employer does not violate public policy by voluntarily including a reasonable job security provision in a CBA (see Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 274-276 [1976]; Matter of Burke v Bowen, 40 NY2d 264, 267 [1976])[FN2].

The clause at issue here was not shown to be unreasonable, as the CBA's three-year duration was relatively brief [FN3] (see Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d at 275), and the agreement was not negotiated by parties of unequal bargaining power during a financial emergency (see id.; Matter of Burke v Bowen, 40 NY2d at 267). Further, public policy limitations on arbitrability are rare and "almost invariably" involve a nondelegable constitutional or statutory duty (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 668 [1990] [internal quotation marks omitted]; accord Matter of City of Schenectady [City Fire Fighters Union, Local 28, I.A.F.F., AFL-CIO], 85 AD2d 116, 118 [1982]). Civil Service Law § 80 sets forth no such nondelegable duty pertinent to the provision at issue.

Among other things, Civil Service Law § 80 establishes the manner in which suspensions and demotions must be implemented upon the abolition of positions (see 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, 520 [2007]).

In Chautauqua, the Court of Appeals found that the statute imposed a nondelegable duty upon municipalities to determine which job titles were essential in delivering public services and then to protect employees in such titles according to their seniority (id. at 521).

Thus, a CBA provision that set out a conflicting manner of implementing suspensions "represent[ed] an impermissible intrusion on [the] statutory scheme" (id. at 520), and a grievance arising from such a provision was not arbitrable. In contrast, Civil Service Law §80 neither creates a public employer's power to abolish positions nor requires it to exercise such a power.

Thus, we find no conflict between the no-layoff clause under examination and any "'plain and clear prohibition in statute or controlling decision[al] law, or restrictive public policy'" that would bar arbitration of the grievance (id. at 518-519, quoting Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d at 273 [internal quotation marks omitted]; see Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d at 278).

Under the second prong of the test, the grievance is arbitrable if the parties have agreed to do so (see Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d at 278). "Where a CBA contains a broad arbitration clause, our analysis in resolving whether the parties have so agreed is limited to 'determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA'" (Matter of City of Elmira [Elmira Professional Firefighters' Assn., AFL-CIO, I.A.F.F.-Local 709], 34 AD3d 1075, 1076 [2006], quoting Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d at 279; see Matter of City of Binghamton [Binghamton Firefighters, Local 729, AFL-CIO], 20 AD3d 859, 860 [2005]).

Under the CBA's broad grievance and arbitration provision, disputes "involving the interpretation or application of any provisions of [the CBA]" are subject to arbitration. Resolution of the current dispute depends on the interpretation of the CBA's no-layoff clause to determine whether that provision is applicable to the Village's action in abolishing six firefighters' positions. As this dispute is reasonably related to the CBA, we find that the parties agreed to arbitrate it (see Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 143 [1999]).

Therefore, Supreme Court properly determined that the parties' substantive disagreement as to the meaning and application of the no-layoff clause is to be resolved by arbitration, and we do not reach the parties' arguments on that subject.

Mitchell H. Rubinstein

Harvey Randall comments: However, not every provision in a collective bargaining agreement addressing layoff may be controlling or, indeed, its alleged violation arbitrable.

For example, seniority for the purposes of layoff pursuant to Civil Service Law §§80 and 80-a may not be diminished nor impaired by the terms of collective bargaining agreement was demonstrated by the decision in City of Plattsburgh v Local 788, 108 AD2d 1045.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff pursuant to §§80 and 80-a, i.e., the individual's date of initial permanent appointment in public service.

This was the problem in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first.

Plattsburgh won an order prohibiting arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals said in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, ?Once ... an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees."

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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Full post as published by New York Public Personnel Law on June 08, 2010 (boomark / email).