Transfer Of Ambulance Services To Contractor Is Negotiable

Local 963 of the International Association of Fire Fighters represents the members of the Lockport, New York Fire Department. Other than the Fire Chief, Local 963 represents all firefighters employed by the City. The firefighters are cross-trained in firefighting and emergency medical services, and prior to September 15, 2014, each firefighter was dual-assigned to both an ambulance and a fire vehicle. Since 1979, firefighters had exclusively provided EMS and ambulance services in the City, and had generally responded with an ambulance to every fire, car accident, and EMS call.

The parties entered into negotiations for a successor to the 2008-2012 agreement in late 2011. One of Local 963’s goals was to restore minimum manning from nine to ten, with work schedule changes and modifications in health care benefits. Near the end of 2013, union representatives met with the Mayor at the time, Michael Tucker, and he proposed a retirement incentive in exchange for withdrawal of all union grievances and the elimination of any minimum manning standard. Local 963 rejected the proposal.

In January 2014, Tucker ended negotiations and the City abolished eight firefighter positions, resulting in seven firefighter layoffs. Local 963 demanded that the City engage in “impact bargaining” over the increased workload and increased safety risk to firefighters as a result of those layoffs.

However, Tucker resigned shortly thereafter, with City Common Council President Anne McCaffrey assuming responsibility as mayor. Initially, McCaffrey advised Local 963 officers that she would need time to assess the City’s financial situation before they could continue contract negotiations. Eventually, the City surrendered its ambulance operating certificate and took both the Department’s ambulances out of service, effective September 15, 2014. On that same date, ambulance service in the City was assumed by Twin City Ambulance Corporation, pursuant to an agreement with the City.

Firefighter staffing was cut shortly thereafter from 38 to 33 firefighters, with five layoffs, and minimum manning was reduced to six. Local 963 responded by filing an unfair labor practice complaint, alleging that the City’s failure to engage in impact bargaining over the layoffs and its subsequent contract with TCA violated its obligation to bargain in good faith.

An administrative law judge (ALJ) for New York’s Public Employment Relations Commission agreed with Local 963. The ALJ reasoned that “although the City is correct that it has no duty to negotiate the managerial decision to reduce staffing, it does have an obligation to negotiate the impact of that decision on terms and conditions of employment of the affected employees. The City’s defense that McCaffrey was unaware of the demand and had no obligation to respond because it was not made during her tenure is rejected. The City’s Mayor at the time was served with the demand, as was the City’s Deputy Corporation Counsel; thus, the City was on notice of the demand and obligated to respond. Additionally, the fact that the union did not insist on the immediate scheduling of negotiations due to the abrupt change in the Mayor’s office and the City’s dire financial position at the time, does not relieve the City of that obligation.

“The second allegation in the charge, that the City violated the collective bargaining law by failing to negotiate the transfer of ambulance services, also has merit. Although the City clearly has the managerial right to decide to discontinue the provision of a service altogether, it may not unilaterally transfer work which has been exclusively performed by City firefighters to another entity to perform the same service on its behalf.

“By virtue of the terms of the agreement, the City has retained significant control over the services provided by TCA. The terms set forth requirements as to the staffing requirements on ambulances, and response time requirements which in turn set the standard for the number of units which are to be available to receive calls. Where agreed-to response times are not met, TCA is obligated to provide additional units to enable it to meet that standard. A written explanation of any failure to meet such response times and a corrective action plan, required to be submitted to the City within 10 days, further evidences the City’s oversight of TCA’s operations.

“The terms of the agreement specifically require TCA to maintain its equipment and conduct its operations to the reasonable satisfaction of the City; require TCA to provide detailed information on an annual basis as to the vehicles used and the certification levels of its supervisory personnel; provide for specific communications equipment to be carried in TCA vehicles; and allow the City to inspect the vehicles and equipment and object to their condition. The City also has oversight of TCA’ s operations at the scene of all incidents, where TCA functions as part of the fire department’s unified command system, and its personnel are under the direction of the City’s incident commander and work in conjunction with firefighters in delivering services.

“Although there is no transfer of funds between the City and TCA, that fact is not controlling. TCA receives payment for its services from Medicare, Medicaid, other third-party insurers, or patients, in the same manner in which the City received compensation from those parties for ambulance services. By assigning the exclusive right to TCA to provide ambulance services for City residents and to bill for that service, it has transferred the work at issue to a private entity in breach of its bargaining obligation.”

By way of remedy, the ALJ ordered the City to restore to employees in Local 963 the work of providing ambulance services to City residents, and to make them whole for any wages and benefits lost as a result of the transfer, with interest at the currently prevailing maximum legal rate.

Lockport Professional Firefighters, 49 PERB ¶ 4578 (N.Y. PERB ALJ 2016).