Dispute Over Filling Firefighter Vacancies Belongs In Arbitration, Not Court

The City of Kingston, New York, and Local 461 of the International Association of Fire Fighters (IAFF) entered into a collective bargaining agreement (CBA) that runs for four years from the beginning of 2008 to the end of 2011. The CBA includes provisions for no layoffs during its term, minimum on-duty staffing levels, and an obligation that the City fill certain vacancies within 60 days.

In May 2009, three firefighters retired and when the positions remained unfilled for over 60 days, Local 461 filed a grievance. The City responded that it would not fill the three positions because of its “dire financial condition,” and began a lawsuit seeking to permanently stay the arbitration.

An appeals court refused to stay the arbitration. The Court started with the general standards for determining whether a grievance is arbitrable: “The well-settled two-prong test for arbitrability considers first whether the parties may arbitrate the dispute and, if so, whether they in fact agreed to do so.” The City argued that the first of these tests was not met – that it did not have the authority to agree to arbitrate the issue of filling vacancies.

The Court then reviewed the law on the issue: “The diverse approach in various jurisdictions to issues such as abolishing positions for fiscal reasons reflects the close and contentious nature of the scope of the public policy ground. The Court of Appeals has recently held that it is inescapably implicit from a plain reading of the law that a public employer has a non-delegable discretion to determine – for reasons of economy, among others – what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public. The Court of Appeals has also noted, in a case involving staffing levels in the face of a looming budgetary crisis, that ‘a collective bargaining agreement may not become a suicide pact.’”

Nonetheless, the Court found Local 461’s grievance arbitrable, reasoning that “it is not clear whether these three unfilled positions actually have been or will, in fact, be abolished. There was some indication that the City was simply extending the time to fill them beyond that set forth in the CBA. The disputed provision of the CBA does not clearly conflict with a statute, decisional law or public policy.

“In his affidavit, the City’s mayor describes the difficult financial conditions facing the City, including possible layoffs and leaving unfilled up to a total of as many as 50 City jobs. However, the extent to which these cuts actually occurred is not established by the record and, in any event, the financial condition of the City is an appropriate consideration at arbitration.”

In re Arbitration between City of Kingston and Local 461, IAFF, 2011 WL 1406402 (N.Y. A.D. 3 Dept. 2011).

This article appears in the June 2011 Issue