DECISION & ORDER Petitioner City of Ogdensburg (“Petitioner” or “City”) brings this special proceeding (hereinafter, “2021 Proceeding”) under New York Civil Practice Law and Rules (“N.Y. C.P.L.R.”) §7503 (b) against Respondent Ogdensburg Professional Firefighters Association, Local 1799 (“Respondent” or “Union”) for a permanent stay of arbitration demanded by the Union’s December 28, 2020 Demand for Arbitration (“Demand”). The City’s Petition avers that public policy bars the Union from grieving certain provisions in the parties’ 2020-2025 Collective Bargaining Agreement (“Agreement”) (NYSCEF Doc. 2) since those provisions, taken together, comprise a “job security” clause which is barred by public policy. In response, the Union asserts that those provisions solely concern arbitrable safety issues, and not job security. For the reasons which follow, the Court determines the provisions now at issue comprise an unenforceable “job security” clause, and grants the City’s Petition to stay arbitration. SUMMARY OF FACTS The parties’ dispute concerning the meaning and arbitrability of the pertinent provisions of the Agreement is not new to this Court. In Ogdensburg St. Lawrence County Index No. EFCV-20-158986 (“2020 Proceeding”), this Court denied the Union’s December 2020 request for a preliminary injunction based on the Agreement. The Court briefly addresses the 2020 Proceeding and then turns its attention to the City’s instant application seeking a stay of arbitration. 1. 2020 Proceeding The Union commenced the 2020 Proceeding by Order to Show Cause to preliminarily enjoin the City from reducing the number of fire department bargaining unit members below 24 pending arbitration, and for other relief. In support of its application, the Union’s Petition (Doc. 33) argued the Agreement established “minimum shift staffing within the Fire Department.” Id. at 19 (emphasis added). In opposition, the City argued the Union did not meet either N.Y. C.P.L.R. §7502 (c) or the well-established test for preliminary injunctions. Equally pertinent to the instant proceeding, the Court also considered the following provisions from the Agreement in connection with the earlier 2020 Proceeding. Article 18 (Compensation and Staffing) paragraphs (c), (d) and (e) provide: c) Hazard Pay — Any bargaining unit employee assigned to a shift with less than 6 assigned members shall receive $3 per hour in addition to their regular salary, with an additional $3 per hour added for each subsequent reduction to the number of assigned shift members [ ]. This section 18 c) Hazard Pay shall apply for the period of this contract only or until a successor agreement is reached. d) There shall be 4 shifts of bargaining unit employees and each shift must have an officer structure of one Assistant Chief, one Captain, with the remaining shift members being Firefighters. e) A minimum of 5 bargaining unit employees (4 firefighters plus 1 officer, or 3 firefighters plus 2 officers) shall be on-duty at all times unless otherwise mutually agreed to in writing for the period of this contract. Id. (emphases added). Article 20 (Vacancies) provides, in pertinent part: When a vacancy occurs in any competitive class of Firefighter within the Fire Department, such that the full-time staffing falls below 24, such vacancy will be filled as soon as practical [sic] from a Civil Service eligibility list. Id. (emphases added). By January 11, 2021, Decision and Order (“Decision and Order”)1, this Court declined the Union’s request for a preliminary injunction, and dismissed the 2020 Proceeding. 2. 2021 Proceeding According to the Union, on December 3, 2020, Ogdensburg City Manager Stephen Jellie (“Jellie”) informed its membership that, beginning in 2021, the City intended to operate the City Fire Department with less than five (5) on-duty members on each shift, and “would operate with as few as three.” Affidavit of Union Vice-President Scott McCormick (“McCormick”) (Doc. 25) at 6. On December 28, 2020, the Union, pursuant to the Taylor Law, submitted its Demand (Doc. 5) to the New York State Public Employment Relations Board asserting the City violated the following sections of the Agreement: Article 7 (Vacation); Article 18 (Compensation and Staffing), Sections (c), (d), (e), and (f); Article 20 (Vacancies); and, Article 24 (General Provisions). In pertinent part, the Union’s Attachment to Demand for Arbitration (Doc. 5 at pg. 3) alleged the City breached Articles 18 (c)-(f) on the ground that, “effective January 1, 2021, [the City] would no longer maintain ‘manpower’ levels as defined and/or referenced by the Agreement, including a minimum of five bargaining unit members on duty at all times [ ].” Id. (emphases added). The Demand did not mention safety issues or concerns. “As a remedy”, the Union’s Demand called for the arbitrator to “restore manpower’ levels as defined and/or referenced [in the Agreement] to the same number [24] that existed as of the date of this grievance.” Id. (emphases added). Further, for each shift staffed below this level, the Union “demand[ed] that the remaining members on that shift shall receive the amount equivalent to the entire cost of employing a full-time assistant at the top step for that shift [and] that the members that would have been scheduled to be called in per the [ ] Agreement receive full pay at his overtime rate for the duration of that shift.” “Effective January 18, 2021, [the City] reduced the daily minimum staffing requirement from five personnel to four.” McCormick aff. at 16. In support of its Petition, the City asserts that Articles 18 (c)-(f), upon which the Union based its Demand, comprise a “purported job security provision [which] is not enforceable or arbitrable as arbitration of the clause would violate public policy.” Petition at 15. The City argues that, taken together, the Article 18 (d) specification of four (4) shifts and the Article 18 (e) requirement that a minimum of five (5) bargaining unit employees “be on-duty at all times” in effect provide job security for at least twenty (20) bargaining unit members. According to the City, these provisions “purport to require a minimum total staffing level of at least 20 firefighters, that is five firefighters per shift working on four total shifts.” Petition at 26. The City asserts that this de facto “job security” clause was not an “explicit, unambiguous and comprehensive” waiver of its right to reduce staffing for budgetary or economic reasons, thereby making it unenforceable. Id. at 18. The parties agree that the duration of the Agreement is a full six (6) years — from January 1, 2020, through December 31, 2025. The proof before the Court establishes that late 2019 — when the Agreement was negotiated — was a time of “severe financial distress” for the City. Jellie aff. at
8-9; see Petition at
