City of New York v. Uniformed Firefighters Ass'n ( 1982 )

OPINION OF THE COURT

Bloom, J.

This controversy flows from an award made by an arbitrator which determined that the assignment of civilians to the performance of inspectional and fire prevention duties would violate the collective agreement subsisting between the Fire Department and the United Firefighters Association, Local 94, IAFF, AFL-CIO (the Union). Special Term granted the city’s motion to vacate the arbitrator’s award on the ground that it has the responsibility to allocate its resources in the manner it deems most appropriate. We agree with Special Term’s conclusion. Accordingly, we affirm.

The issue before us finds origin in the stalemated collective bargaining negotiations of 1968. When the impasse was declared the city’s Office of Collective Bargaining took over and designated an arbitrator to investigate and make findings on specific matters in dispute. Among the questions presented was that of “Job Description”. The arbitrator ruled that job descriptions were required. However, he also ruled that the formulation of the specific descriptions was within the exclusive purview of the city.

As a result of the arbitrator’s award the city provided the job descriptions. They were incorporated into the 1968 collective agreement, and every subsequent agreement, as schedule A of article V. So far as is here pertinent, that schedule provides:

“Job Description — Full Duty Fireman * * *

“2. Fire Prevention Operations.

“Under normal supervision of company officers a Fireman individually or collectively with other firemen, performs inspectional, investigational, educational and regulative duties in the area of fire prevention operations. These activities involve separate procedures and the making of decisions requiring individual judgment but in accordance with prescribed methods and procedures and/or direction of immediate superiors. This shall include but is not limited to —

“a) Inspection of buildings, structures, tunnels, enclosures, vessels, piers, terminals, bridges, carriers, containers — places or premises including fire protective equipment contained therein.

“b) Dissemination of information and education to the public.

“c) Investigation of perilous or fire breeding conditions.

“d) Issuance of summonses, violation orders or referrals to other city agencies as required by law.

“e) Recording and clerical procedures in connection with all of the above items.

“This shall exclude but is not limited to —

“a) Electrical inspections, except for those which create fire breeding potentials.

“b) Alarm Box inspections, except in cases of emergencies affecting fire alarm circuits.

“c) Clerical, other than those specifically related to required duties * * *

“6. Limiting Clause.

“Nothing herein contained is intended to, nor shall it, contravene any law of the State and/or the City of New York or the rules and regulations of the Fire Department of the City of New York.”

So long as the fire department has engaged in fire prevention operations these activities have been performed by a mixture of civilian and firefighting personnel. In 1955 the two were divided into separate units. Uniformed firefighters were assigned to district offices. The civilians were assigned to headquarters. Both performed the same duties and frequently worked together on technical operations.

In 1979 the city, confronted with serious financial problems, decided to “eivilianize” its fire prevention services. The purpose was twofold: first, it was a cost-efficient method for handling the service; secondly, it would maximize the use of a depleted firefighting force for its primary mission, fighting fires. In June, 1979 the Department of Personnel announced that it would accept applications for the position of Fire Prevention Inspector. This set in motion the train of circumstances which led to the award which is the subject of this proceeding. On January 22, 1980 the Union requested leave of, and was granted leave by, the arbitrator to file an expedited grievance pursuant to the procedure outlined in the collective agreement. The Union filed its request for arbitration on January 25,1980. The city and the Union stipulated to the issue to be arbitrated. Hearings were held on February 20 and 21, 1980 and on February 25, the arbitrator rendered his award. He held that the assignment of civilians to perform inspectional and fire prevention duties previously performed by firemen would be “in violation of Article V, Schedule A of the collective bargaining agreement and in derogation of the Union’s certification and recognition.” He enjoined the fire department and the city from making such assignments.

Thereupon, the city and the fire department moved to set aside and vacate the award. In response the Union sought denial of the city’s application and confirmation of the award. Although no formal cross motion to confirm the award was made Special Term treated the Union’s papers as a cross motion and denied it. It granted the city’s motion to vacate.

The New York City Charter (§ 487, subd a) expressly vests in the Fire Commissioner the sole and exclusive power to govern, discipline, manage, maintain and direct the fire department and the premises and property in its custody. Section 490 (subd a, par [1]) empowers him to inspect or cause inspections to be made for fire hazards “by any officer or employee of the department designated for such purpose” (emphasis supplied). The New York City Collective Bargaining Law (Administrative Code of City of New York, ch 54, § 1173-1.0 et seq.) provides in pertinent part (§ 1173-4.3, subd b): “It is the right of the city, or. any other public employer, acting through its agencies, to determine the standards of services to be offered by its agencies; determine the standards of selection for employment; direct its employees; take disciplinary action; relieve its employees from duty because of lack of work or for other legitimate reasons; maintain the efficiency of governmental operations; determine the methods, means and personnel by which government operations are to be conducted; determine the content of job classifications; take all necessary actions to carry out its mission in emergencies; and exercise complete control and discretion over its organization and the technology of performing its work. Decisions of the city or any other public employer on those matters are not within the scope of collective bargaining” (emphasis added).

It is apparent, therefore that the determination by the Fire Commissioner of the personnel by whom inspections for fire hazards are to be made is a managerial function “not within the scope of collective bargaining” (Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 49 NY2d 732; Board of Educ. v Areman, 41 NY2d 527). This was expressly recognized in the arbitrator’s 1968 award which, while it directed the city to provide a job description of the duties of a fireman, expressly noted that such job description lay within the exclusive power of the city.

Were this the only issue before us solution would not be so overly complex. The problem is compounded by the fact that when the city announced its intention to “civilianize” the fire prevention service, the Union filed a grievance under the grievance procedure outlined in the collective agreement. The matter was submitted to arbitration. Instead of questioning the jurisdiction of the arbitrator or moving to stay arbitration, the city joined with the Union in formulating the issue to be arbitrated and participated in the arbitration. By consequence, the power of the court to vacate the award is limited to the grounds specified in CPLR 7511 (subd [b]). The only ground here applicable is that contained in CPLR 7511 (subd [b], par 1, cl [iii]) to the effect that the arbitrator, in making the award, exceeded its powers.

The Administrative Code (§ 1173-4.3, subd b) expressly reposes in the city the duty of determining “methods, means and personnel by which government operations are to be conducted” (emphasis supplied) and imposes upon it the determination of all job classifications. By adding that these are not matters within the scope of collective bargaining, the statute declares the public policy. And if an award, such as the award in this case, contravenes the statutory mandate it violates public policy and the court is required to set it aside (Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 49 NY2d 732, supra; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Exercyle Corp. [Maratta], 9 NY2d 329). Cases like Matter of Associated Teachers of Huntington v Board of Educ. (33 NY2d 220), and Board of Educ. v Associated Teachers of Huntington (30 NY2d 122) are not to the contrary. In the former the statute relied upon to demonstrate that the sabbatical leave provision of the collective agreement violated public policy was enacted after the collective agreement had been entered into, while, in the latter, there was no applicable statute claimed to have been violated by the award. In the case at bar both the Charter and the Administrative Code provisions long antedated the collective agreement. They were an intrinsic part of the submission to the arbitrator and limited his power. By transgressing into an area forbidden by statute, the award made by him contravened public policy, thus exceeding his powers. Hence, the cases referred to by the Union on the question of waiver have no application.

Accordingly, the judgment of the Supreme Court, New York County (Shainswit, J.), entered January 21, 1981 is affirmed without costs.