City of New Rochelle v. Crowley

• Decision Date: 20 March 1978
• Citation: 61 A.D.2d 1031,403 N.Y.S.2d 100
• Parties: , 98 L.R.R.M. (BNA) 2744 In the Matter of CITY OF NEW ROCHELLE, Petitioner, v. Joseph R. CROWLEY et al., together constituting the Public Employment Relations Board, Respondents, Uniformed Fire Fighters Association, Inc., Local 273, I.A.F.F., Intervenor-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 100

403 N.Y.S.2d 100

61 A.D.2d 1031, 98 L.R.R.M. (BNA) 2744

In the Matter of CITY OF NEW ROCHELLE, Petitioner, v. Joseph R. CROWLEY et al., together constituting the Public Employment Relations Board, Respondents Uniformed Fire Fighters Association, Inc., Local 273 I.A.F.F., Intervenor-Respondent.

Supreme Court, Appellate Division, Second Department.

March 20, 1978.

Rains, Pogrebin & Scher, Mineola (Bertrand B. Pogrebin, Joel H. Golovensky and Paul J. Schreiber, Mineola, of counsel), for petitioner.

Martin L. Barr, Albany (Jerome Thier, Albany, of counsel), for Public Employment Relations Bd.

Lombardi, Reinhard & Walsh, P. C., Schenectady (Richard P. Walsh, Jr., Schenectady, of counsel), for intervenor-respondent.

Before HOPKINS, J. P., and SHAPIRO, HAWKINS and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review a determination of the Public Employment Relations Board (PERB), dated September 15, 1977, which dismissed petitioner's proper practice charge against the intervenor-respondent union.

Determination confirmed and proceeding dismissed on the merits, without costs or disbursements.

The sole issue raised in this proceeding is whether it was improper for the union to insist that petitioner negotiate a proposal by it as a mandatory item of negotiation. The disputed item provides:

"A general Health and Safety Committee should be created consisting of two representatives appointed by the City and two representatives appointed by the Union. The Committee's jurisdiction shall cover all matters of safety to the members of the Fire Department, including but not limited to, the total number of employees reporting to a fire and the minimum number of employees to be assigned to each piece of fire fighting apparatus. The foregoing is intended to be illustrative and not inclusive. Decisions of the Committee shall be made by a majority vote, provided, however, that an equal number of representatives appear at such Committee meetings, which shall be held at least quarterly or on special call of any two of the representatives. In the event of a deadlock between the Union and City representatives, the issue in dispute shall be submitted to binding arbitration."

Petitioner contends that to require the negotiation of this proposal would impinge upon its unquestioned power to unilaterally determine the quality and extent of services to be delivered to its constituents. Questions concerning the number of employees reporting to a fire or the minimum number of employees to be assigned to a piece of equipment involve primarily issues of manpower deployment and, as such, rest solely within the unfettered discretion of the public employer. The union urges that its proposal is concerned with protecting the safety of its members and thus involves a term and condition of employment. PERB determined that the proposal was a proper one and that the union could insist that the matter be negotiated.

We find that PERB's determination was neither arbitrary nor capricious, and is supported by substantial evidence in the record. As has been previously noted, "the line of demarcation between the issue of safety and manpower and its deployment is razor thin" (Matter of International Assn. of Firefighters v....