Matter of Village of Endicott (Village of Endicott Police Benevolent Assn., Inc.)
527843 528359
Appellate Division, Third Department
April 9, 2020
2020 NY Slip Op 02218
Before: Garry, P.J., Clark, Devine, Pritzker and Colangelo, JJ.
Published by New York State Law Reporting Bureau pursuant to
Decided and Entered: April 9, 2020
In the Matter of the Arbitration between Village of Endicott, Appellant, and Village of Endicott Police Benevolent Association, Inc., Respondent.
Calendar Date: February 19, 2020
Coughlin & Gerhart, LLP, Binghamton (Paul J. Sweeney of counsel), for appellant.
The Tuttle Law Firm, Clifton Park (James B. Tuttle of counsel), for respondent.
Garry, P.J.
Appeals (1) from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered October 10, 2018 in Broome County, which denied petitioner‘s application pursuant to
Petitioner and respondent entered into a collective bargaining agreement (hereinafter CBA), effective from June 2014 through May 2018. In April 2018, the police chief of the Endicott Police Department (hereinafter the police department) issued a memorandum providing, as pertinent here, that overtime was not to be used in staffing a fourth officer on certain shifts. Respondent filed a grievance, claiming that this directive violated article VIII, subsection D of the CBA and the
Initially, we agree with Supreme Court that the prior determination in 2013 did not preclude this litigation under the doctrines of res judicata, collateral estoppel or law of the case. “The underlying purpose of the doctrines of res judicata and collateral estoppel is to prevent repetitious litigation of disputes which are essentially the same” (State of New York v Jeda Capital-Lenox, LLC, 176 AD3d 1443, 1446-1447 [2019] [internal quotation marks, brackets and citations omitted]; see D‘Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 665-666 [1990]). As the court noted, the prior decision did similarly arise as a challenge to certain provisions set forth within article VIII of the parties’ prior CBA. In 2013, respondent argued that the police department‘s employment of only 30 officers violated subsection A of that CBA, which mandated a staffing of 35 officers. The court held that arbitration must be stayed, as the provision was a job security provision that did not meet the established requirements for arbitrability (see Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d 32, 37-38 [2011]). Although the present litigation also deals with article VIII, the challenge is to subsection D alone. Upon review, we agree that the distinction between the two subsections is important, and that subsections A and D are neither the same nor essentially the same (compare Yoonessi v State of New York, 289 AD2d 998, 999 [2001], lv denied 98 NY2d 609 [2002], cert denied 537 US 1047 [2002]). Similarly, “[w]e need not consider the doctrine of law of the case since it applies to various stages of the same litigation and not to different litigations” (Matter of McGrath v Gold, 36 NY2d 406, 413 [1975]).
In determining whether a grievance is arbitrable, the court must undertake a two-prong analysis. The first prong — the “may-they-arbitrate” prong — “ask[s] whether there is any statutory, constitutional or public policy prohibition[] against arbitration” (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278 [2002]). The second prong — the “did-they-agree-to-arbitrate” prong — is only reached “[i]f there is no prohibition” as described in prong one and asks whether “the parties have agreed to dispute the issue” (id.).
Petitioner asserts that arbitration is barred as the underlying subsection is a job security provision, such that arbitration would violate public policy. There are some exceptions to this prohibition; a job security provision “does not violate public policy, and therefore is valid and enforceable, only if the provision is ‘explicit,’ the CBA extends for a ‘reasonable period of time,’ and the ‘CBA was not negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power‘” (Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d at 37, quoting Matter of Burke v Bowen, 40 NY2d 264, 267 [1976]). The “requirement that ‘job security’ clauses meet this stringent test derives from the notion that before a municipality bargains away its right to eliminate positions . . ., the parties must explicitly agree that the municipality is doing so” (Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d at 37). “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 School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 275 [1976]; accord Matter of City of Lockport [Lockport Professional Firefighters Assn., Inc.], 141 AD3d 1085, 1087-1088 [2016]).
Article VIII of the CBA is titled “Staffing and Supervision.” Subsection A states that the police department will be staffed with 33 officers, one chief and one captain, for a total of 35 employees. As above, this was previously held to constitute a job security provision. Subsection D provides that “[f]or purposes of this section a ‘[s]hort [s]hift’ would be any shift involving less than a two-zone [complement]. A two-zone [complement] would mean four officers on duty, one of whom would be serving in a supervisory capacity.” The police department memorandum that respondent seeks to challenge in arbitration
We agree with Supreme Court that this subsection is not a job security provision, and the stringent test in Matter of Johnson City Professional Firefighters Local 921 (Village of Johnson City) (18 NY3d at 37) does not apply (see Matter of City of Watertown [Watertown Professional Firefighters Assn., Local 191], 169 AD3d 1396, 1397 [2019], lv denied 33 NY3d 904 [2019]; Matter of City of Lockport [Lockport Professional Firefighters Assn., Inc.], 141 AD3d at 1088; compare Matter of Burke v Bowen, 40 NY2d at 267). Although subsection D does not expressly mention safety, we find that it is nonetheless more akin to a condition of employment, such as the safety of officers, than to a job security provision (see Matter of City of Lockport [Lockport Professional Firefighters Assn., Inc.], 141 AD3d at 1087; compare Matter of City of Plattsburgh [Plattsburgh Permanent Firemen‘s Assn.], 174 AD3d at 1019).2
In the absence of any statutory, constitutional or public policy prohibition against arbitration, the analysis then shifts to whether the parties agreed to arbitrate this matter. Article XIV of the CBA provides a grievance procedure culminating in arbitration. Accordingly, as “the parties have [not] used
Clark, Devine, Pritzker and Colangelo, JJ., concur.
ORDERED that the order entered October 10, 2018 is affirmed, without costs.
ORDERED that the appeal from the order entered January 15, 2019 is dismissed, without costs.