City of Newburgh v. Newman

• Decision Date: 17 February 1987
• Citation: 69 N.Y.2d 166,505 N.E.2d 590,513 N.Y.S.2d 79
• Parties: , 505 N.E.2d 590, 125 L.R.R.M. (BNA) 2427 In the Matter of the CITY OF NEWBURGH, Appellant, v. Harold NEWMAN et al., Constituting the Public Employment Relations Board of the State of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 79

513 N.Y.S.2d 79

69 N.Y.2d 166, 505 N.E.2d 590, 125

L.R.R.M. (BNA) 2427

In the Matter of the CITY OF NEWBURGH, Appellant, v. Harold NEWMAN et al., Constituting the Public Employment Relations Board of the State of New York, et al Respondents.

Court of Appeals of New York.

Feb. 17, 1987.

William M. Kavanaugh, Corp. Counsel, Newburgh, for appellant.

Anthony Cagliostro and Martin L. Barr, Albany, for Public Employment Relations Bd., respondent.

Richard P. Walsh, Jr., and Michael T. McGarry, Albany, for Local 589, Intern. Ass'n of Firefighters, AFL-CIO, respondent.

OPINION OF THE COURT

SIMONS, Judge.

The narrow issue presented by this appeal is whether the statutory requirement of compulsory arbitration found in Civil Service Law § 209(4) applies to "interest" disputes arising during the term of a collective bargaining agreement. We hold that it does.

In 1981, at a time when petitioner City of Newburgh and respondent International Association of Firefighters, AFL-CIO, had in force between them a collective bargaining agreement, the city twice reduced the number of firefighters working each shift. The union acknowledged that the existing agreement authorized the city's unilateral action but it demanded negotiation of the impact of the reductions, contending that the action created a greater workload for the remaining firefighters and increased the danger to them in the performance of their duties. When the city refused to negotiate, the union filed an improper practice charge with respondent Public Employment Relations Board (PERB). It subsequently withdrew the charge when the city signed a stipulation to negotiate the matter. The parties were unable to resolve the dispute, however, and the union petitioned PERB for relief under Civil Service Law § 209. ^* The city filed a cross petition charging the union with an improper practice, alleging that the reduction in staffing levels was expressly permitted by the existing agreement and that any dispute over the resulting impact had to be settled under the grievance and arbitration procedures of the agreement. PERB dismissed the city's charge and has now ordered compulsory arbitration pursuant to section 209(4). The city then commenced this article 78 proceeding challenging PERB's ruling and after transfer to the Appellate Division that court dismissed the petition. The matter is before us by our leave.

The city's position is twofold. First, it contends that this is no more than a grievance dispute and, since it has an agreement with the union which provides an arbitrati procedure to resolve grievances, section 209(4) does not apply and the matter must be submitted to arbitration pursuant to the agreement. Second, it contends that even if the statute does apply, the union may not obtain compulsory arbitration of the dispute during the term of the agreement. The union maintains that the present dispute involves a subject not covered by the existing agreement and that it must be settled by collective negotiations. Inasmuch as there is an impasse in the negotiations, it contends that the statutory remedies are available notwithstanding the existing agreement.

Preliminarily, the distinction should be noted between private arbitration which may be compelled because the parties have agreed to arbitrate the subject matter and public arbitration which may be compelled because the Legislature has mandated it under certain circumstances. Because most arbitration agreements limit the powers of arbitrators and prohibit them from adding to, subtracting from or modifying the agreement's terms, private arbitration generally involves only the settlement of grievances concerning rights recognized by the agreement. The arbitrator is required to interpret and enforce its terms. Interest disputes, however, involve new matters to be settled by the parties through negotiations. Because the subject of the dispute is not governed by an existing agreement, the parties must negotiate to establish future rights, either by execution of a new agreement or by modification of the existing one (see, Elgin, Joliet & E. Ry. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1289, 89 L.Ed. 1886 and see generally, Elkouri & Elkouri, How Arbitration Works, at 98-117 [4th ed] ). Characterized broadly, grievance or rights arbitration seeks adjudicati while collective negotiation of interest disputes is more akin to legislation; it settles basic terms and conditions of employment not previously agreed upon. Notwithstanding that interest disputes are normally settled by negotiations between the parties, the Legislature has provided that if an impasse occurs in collective negotiations involving public employees, the remedies of Civil Service Law § 209, including compulsory arbitration in the case of police and firemen, may be invoked.

The agreement in this case expressly authorized the city to reduce manpower but it was silent on the parties' rights with respect to the impact from such reductions. That being so, there was nothing the union could grieve nor any provision under the agreement an arbitrator could interpret or apply to sustain either the city's or the union's position on impact (cf. Matter of Board of Educ. v. Yonkers Fedn. of Teachers, 40 N.Y.2d 268, 386 N.Y.S.2d 657, 353 N.E.2d 569). The dispute involved matters not covered by the contract, matters which by statute are subject to collective negotiations, i.e., "wages, hours, and other terms and conditions of employment, or the negotiation of an agreement" (Civil Service Law § 204[3]; see also, § 201[4] ).

Section 209 provides that an impasse in collective negotiations exists when the parties fail to reach agreement at least 120 days prior to the end of the employer's fiscal year (Civil Service Law § 209[1] ). The statute addresses the means of resolving the impasse in subdivisions (2), (3) and (4). Subdivision (2) provides that municipalities may enter into agreements with certified employee organizations providing procedures to be...