Chalachan v. City of Binghamton ( 1981 )

Mikoll and Yesawich, Jr., JJ.,

dissent and vote to reverse in the following memorandum by Yesawich, Jr., J. Yesawich, Jr., J. (dissenting). We recognize that disabled firemen, within the meaning of section 207-a of the General Municipal Law, have no statutory right to fringe benefits (Phaneuf v City of Plattsburgh, 84 Misc 2d 70, affd 50 AD2d 614, mot for lv to app dsmd 38 NY2d 1004). However, we perceive fringe benefits, such as vacation and holiday pay, to be contractual in nature and, as such, they may be negotiated as part of a collective bargaining agreement. Nothing in section 207-a inhibits municipalities from entering into such an agreement. As the majority notes, petitioners, until their retirement, remain employees of the city. More importantly, they continue as members of the firefightersLbargaining unit (Matter of City of Binghamton v Newman, 13 PERB, par 7005; Matter of City of Binghamton, 12 PERB, par 3089). Consequently, unless the bargaining agreement provides otherwise, they, even though they be disabled, are beneficiaries thereof. Examination of the agreement discloses that the parties mutually agreed that the term “firefighter” was to include all members of the bureau of fire except the fire chief. Being as comprehensive as it is, that phrase alone is sufficient to sustain petitioners’ entitlement to the vacation benefits they seek. That the parties intended this to be the case is underscored by article 9 of the bargaining agreement which provides each member of the fire bureau “except those permanently classified as 207-a” with a $315 uniform allowance for 1979. Had the parties intended to exclude disabled firemen from receiving vacation pay benefits, similar exclusive language surely would have been employed. It is the absence in the collective bargaining agreement of like language distinguishing between disabled and able-bodied firemen which makes Phaneuf v City of Plattsburgh (supra) inapplicable here. The suggestion that it is somehow unfair to active firemen to hold that disabled firemen continue to receive the same vacation benefits simply loses sight of the fact that firemen who are active today may be disabled tomorrow and, therefore, have an intense interest in the benefits provided disabled firemen. It also overlooks the observation, made during oral argument, that the city’s past efforts to have section 207-a firemen treated differently from able-bodied firemen have been successfully resisted by the union at the bargaining table. Accordingly, we would reverse and grant the petition.