        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

525
CA 15-01717
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


IN THE MATTER OF ARBITRATION BETWEEN CITY
OF LOCKPORT, PETITIONER-APPELLANT,

                    AND                           MEMORANDUM AND ORDER

LOCKPORT PROFESSIONAL FIREFIGHTERS
ASSOCIATION, INC., RESPONDENT-RESPONDENT.


GOLDBERGER AND KREMER, ALBANY (BRIAN S. KREMER OF COUNSEL), FOR
PETITIONER-APPELLANT.

THE SAMMARCO LAW FIRM, LLP, BUFFALO (ANDREA L. SAMMARCO OF COUNSEL),
FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County (Frank
Caruso, J.), entered December 22, 2014 in a proceeding pursuant to
CPLR article 75. The order denied the petition for a stay of
arbitration and granted the cross motion of respondent to compel
arbitration.

     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.”
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                                                         CA 15-01717

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 of Alden Cent. Sch. Dist. [Alden
Cent. Schs. Administrators’ Assn.], 115 AD3d 1340, 1340; see CPLR
7501; Matter of Board of Educ. of Watertown City Sch. Dist. [Watertown
Educ. Assn.], 93 NY2d 132, 142-143). In making that determination,
the court must conduct a two-part analysis. First, the court must
determine whether “there is any statutory, constitutional or public
policy prohibition against arbitration of the grievance” (Matter of
City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273,
278). Second, “[i]f no prohibition exists, [the court then
determines] whether the parties in fact agreed to arbitrate the
particular dispute by examining their collective bargaining agreement”
(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; see Matter of Mariano v Town of
Orchard Park, 92 AD3d 1232, 1233).

     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, rearg denied 18 NY3d 937). 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, quoting Matter of New York City Tr. Auth. v
Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 6-7;
see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board
of Educ. of City Sch. Dist. of City of N.Y., 1 NY3d 72, 80).
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; see State of New York v
Philip Morris Inc., 30 AD3d 26, 31, affd 8 NY3d 574). Here, contrary
to petitioner’s contention, we conclude that the court did not err in
                                 -3-                           525
                                                         CA 15-01717

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 not fear being put out of
a job” (Matter of Board of Educ. of Yonkers City Sch. Dist. v Yonkers
Fedn. of Teachers, 40 NY2d 268, 275). Unlike a job security provision
containing a “no-layoff clause,” the staffing provision here does not
purport to guarantee a firefighter his or her employment while the CBA
is in effect (cf. Johnson City Professional Firefighters Local 921, 18
NY3d at 36-38; Board of Educ. of Yonkers City Sch. Dist., 40 NY2d at
272). Further, contrary to petitioner’s contention, the staffing
provision does not operate to mandate a total number of firefighters
that must be employed, nor does its stated intent relate to job
protection; rather, the staffing provision relates solely to the
minimum number of firefighters required to be present for each shift
(cf. Matter of Burke v Bowen, 40 NY2d 264, 266-267). The record
establishes that in drafting and agreeing to the staffing provision,
the parties expressly sought to ensure firefighter and public safety
associated with the transfer of dispatch communication duties that
allowed for the reduction in the minimum per shift staffing level. We
thus conclude that the court properly determined that the staffing
provision is not a job security provision, and therefore not subject
to analysis under the narrow public policy exception to arbitration.

     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, lv denied 19 NY3d 899).




Entered:   July 1, 2016                         Frances E. Cafarell
                                                Clerk of the Court
