BOARD OF COLLECTIVE BARGAINING

UFA v. City, 47 OCB 6 (BCB 1991) [Decision No. B-6-91 (IP)] OFFICE OF COLLECTIVE BARGAINING BOARD OF COLLECTIVE BARGAINING -----------------------------------X In the Matter of DECISION NO. B-6-91 UNIFORMED FIREFIGHTERS ASSOCIATION OF GREATER NEW YORK, DOCKET NO. BCB-1346-90 Petitioner,

-and- CITY OF NEW YORK, Respondent.

-----------------------------------X In the Matter of

UNIFORMED FIREFIGHTERS ASSOCIATION DOCKET NO. BCB-1347-90 OF GREATER NEW YORK, Petitioner,

-and- CITY OF NEW YORK, Respondent.

-----------------------------------X INTERIM DECISION AND ORDER On December 12, 1990, the Uniformed Firefighters Association of Greater New York ( "the UFA" or "petitioner") filed a verified improper practice petition against the City of New York ("the "City" or "respondent"), docketed as BCB-1346-90, in which it alleged that the New York City Fire Department violated Section 12-306 of the New York City Collective Bargaining Law ("NYCCBL") 1 by unilaterally announcing a change in personnel policy without 1 Section 12-306 of the NYCCBL provides, in relevant part, as follows: a. Improper public employer practices. It shall be an improper practice for a public employer or its agents: (1) to interfere with, restrain or coerce public (continued...)

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providing the Union with an opportunity to bargain regarding that change. On December 24, 1990, the City, represented by its Office of Labor Relations, filed a motion to dismiss the improper practice petition and an affidavit in support thereof. The UFA filed an answer to the City's motion on January 4, 1991 and, on January 17, 1991, the City filed a reply. 2 On December 12, 1990, the UFA filed a scope of bargaining petition, docketed as BCB-1347-90, in which it alleged that the assignment of "light duty" firefighters to the position of Division Aides will have a direct, immediate and specific adverse impact on the safety of both "light duty" firefighters assigned as Division Aides and full duty firefighters. On December 24, 1990, the City filed a motion to dismiss the scope of bargaining petition and an affidavit in support thereof. The UFA filed an answer to the City's motion on January 4, 1991 and, on January 17, 1991, the City filed a

1 (...continued) employee in the exercise of their rights granted in section 12-305 of this chapter; (2) to dominate or interfere with the formation or administration of any public employee organization; (3) to discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any public employee organization; (4) to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees. 2 We note that Section 13.11 of the Revised Consolidated Rules of the Office of Collective Bargaining does not provide for the submission of a reply by the moving party to "answering affidavits" filed by the petitioner. In the present case, however, no objection was raised by the UFA and the contents of the reply do not prejudice any rights of the petitioner. Accordingly, we have accepted the additional pleading.

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reply. By letter dated January 17, 1991, the City requested consolidation of four separate petitions filed by the UFA and the Uniformed Fire Officers Association ("UFOA"). The City noted that the UFA and the UFOA have each filed an improper practice petition and a scope of bargaining petition concerning issuance by the Fire Department of Department Order 168. In addition, both the UFA and the UFOA have sought, thus far unsuccessfully, preliminary judicial relief in New York State Supreme Court, New York County and Kings County, respectively. The City alleged that it has filed motions to dismiss each of the petitions. It argued that its two motions to dismiss the improper practice petitions raise the same legal question, i.e., whether the petitions are premature without a prior determination of a pre-existing duty to bargain over the assignment of light duty Division Aides, as do its two motions to dismiss the scope of bargaining petitions, i.e, the failure to plead a prima facie case of safety practical impact. Moreover, the City claimed, examination of both sets of union and City papers indicate reliance on the same circumstances and chronology of events. Therefore, "to avoid unnecessary waste of the Board's, Unions' and City's resources and to avoid the possibility of inconsistent and untimely rulings" the City requested that the Board order consolidation of the four petitions "solely for the purpose of proceeding with the rulings on the four pending motions [to dismiss]." On January 22, 1991, the UFA filed an objection to the City's request for consolidation noting that, while both the UFA and the UFOA recognize that an ultimate consolidation of these petitions might be eventual and necessary

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for reasons of administrative economy in the event of hearings, etc., it is the UFA's position that consolidation at this juncture would serve only to delay adjudication by the Board in the pending UFA cases (which adjudication may be dispositive in all cases).

In support of its position, the UFA noted that the UFA cases are "ripe" for determination by the Board because it has responded to the City's motions to dismiss. In contrast, the motions to dismiss addressed to the UFOA's petition have only recently been made. We note that contrary to the City's assertion, as of this date it has not filed a motion to dismiss the UFOA's scope of bargaining petition, filed on January 16, 1991. Whether the City files a motion to dismiss or an answer to the UFOA's scope of bargaining petition, the UFOA must be given an opportunity to respond. Thus, as the UFA argues, were we to grant the City's request for consolidation, consideration of the City's motions to dismiss the UFA's petitions would be delayed. While we recognize that some duplication of effort will be incurred by the Board in its consideration of the petitions filed by the UFA and the UFOA in separate determinations, due to the circumstances presented herein, including the delay which would be occasioned by consolidation, and the claimed threat to the safety of firefighters which continues during the pendency of these proceedings, we shall deny the City's request for consolidation without prejudice to consideration of consolidation of the petitions at a later stage in these proceedings. With regard to the improper practice and scope of bargaining petitions filed by the UFA, we shall consolidate those proceedings for the purpose of deciding the City's motions to dismiss since they are ripe for adjudication, and concern related issues which involve the same parties, facts and chronology of events.

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BACKGROUND On November 26, 1990, the Fire Department issued Department Order 168, 3 3 Department Order 168 states, in relevant part, as follows: 2.3 LIGHT DUTY DIVISION AIDES Effective January 1, 1991, the position of Division Aide will no longer be classified as a full duty position. All full duty firefighters presently assigned or detailed as Division Aides SHALL be replaced by light duty firefighters. This reduction in full duty headcount is one of the budget reduction measures mandated for this Department. All light duty firefighters who anticipate remaining on light duty for at least one year are encouraged to apply for assignment as a Division Aide. The Department intends to fill these positions, to the greatest extent possible, with long term light duty personnel. These positions will be considered priority light duty assignments. Interested members shall forward a report no later than December 10, 1990 to Deputy Chief Edmund P. Cunningham, Bureau of Personnel requesting consideration for such assignment. Report shall include member's name, badge number, assigned unit and present light duty assignment. The Bureau of Personnel in conjunction with the Bureau of Operation and the Bureau of Health Services shall review all applications and select those long term light duty firefighters most qualified to serve as Division Aides. Selected members shall be assigned, whenever possible, to the Division of their choice. Work schedule shall be in accordance with the established firefighter group chart. 2.4 TRANSFER REQUESTS, DIVISION AIDES Effective January 1, 1991, the position of Division Aide will no longer be a full duty position. Only light duty firefighters will be assigned and/or detailed as Division Aides from that date forward. All presently assigned and/or detailed full duty Division Aides shall be re-assigned effective January 1, 1991. Full duty Aides assigned to Divisions shall forward a Transfer request to the Deputy Chief of Personnel Edmund P. Cunningham before December 19, 1990. Full duty aides who are detailed to Division shall, unless they request a transfer to another unit, return to their assigned unit, effective 0900 (continued...)

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wherein it announced its intention to staff the position of Division Aide with light duty firefighters. Firefighters are placed on light duty when, for any reason, they are unable to perform the physically demanding duties of a firefighter. Fire Department procedures provide that in the event of a fire scene operation, Battalion Chiefs and their Aides (referred to as Battalion Chief Aides) are the first level of Command to report to the scene. In the case of an expanding firefighting operation, Deputy Chiefs and their Aides (referred to as Division Aides) are dispatched to the scene. If a multiple alarm is called, Deputy Assistant Chiefs and their Aides and Assistant Chiefs and their Aides (referred to as Staff Chief Aides) are dispatched to the scene. Finally, in the event that a fourth alarm is called, the Chief of Department and his Aide would be dispatched to the scene. At the time Department Order 168 was announced, 305 individuals were serving as Aides to the various Chiefs. Of these, 55 were serving as Division Aides and would be affected by Department Order 168. The remaining 250 Chief's Aide positions will not be affected by Department Order 168, and will continue to be filled by full duty firefighters. In general, the role of Chief's Aides in fire and emergency operations includes emergency vehicle operation, reconnaissance, intelligence gathering and communication of this information to the Command Chief at the scene.

3 (...continued) hours, January 1, 1991. Every effort shall be made, to the greatest extent possible, to assure that effected members are transferred to a unit of their choice.

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According to petitioner, the Chiefs (Command Chiefs) in charge of fire and emergency scene operations rely heavily on the Aides to communicate their observations of the fire structure and its surroundings, as well as the fire operation itself. They are the Command Chief's principal communication links to the firefighting unit. The Command Chief evaluates the information provided by the Aides and directs the firefighting operation accordingly. In order to make these observations, Aides are often dispatched to advanced positions within the fire structure and exposure buildings. 4 The Chief's Aides also may be called upon to give assistance at the fire scene if prior to the arrival of the Firefighter Assist Team or Rescue Company the Incident Commander determines that a firefighter is in need of assistance. This procedure was developed in response to a citation issued to the Fire Department, on or about July 16, 1989, by the New York State Department of Labor, Division of Public Employee Safety and Health (PESH) for the violation of Section 1910.134(e)(3)(i) of the Occupational Health and Safety Act ("OSHA"). 5 Section 1910.134(e)(3)(i) requires the presence of at least one other person in areas where the wearer of a respirator could be overcome by a toxic or oxygen deficient atmosphere. By letter dated December 3, 1990, PESH accepted the Fire Department's proposal to amend its procedures which provides, inter alia, that:

4 It is not disputed that prior to the issuance of Department Order 168, Division Aides performed the duties described above. Respondent notes, however, that the Fire Department has issued operating guidelines which, it contends, limit the duties of light duty firefighters assigned as Division Aides pursuant to Department Order 168. See infra p. 21, n. 14. 5 29 CFR Section 1910.134(e)(3)(i).

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6. If prior to the arrival of the Firefighter Assist Team or Rescue Company the Incident Commander determines that a member may become in need of assistance, the IC shall designate any of the following for assistance or rescue:

6.1 Companies held in reserve. 6.2 Companies available for immediate reassignment. 6.3 Members available for immediate reassignment. Example: -Ladder Company Chauffeur, Roofman, members of Rescue or Squad Companies, etc.

6.4 Uncommitted chauffeurs or chief's aides. 6.4.1 It is imperative that the IC reassign these members as early as possible in the operation.

6.4.2 These members shall be properly equipped per Department Regulations 11.3.1 and be placed in a stand-by position at the command post or other location designated by the IC. (Emphasis added)

Accordingly, the citation against the Fire Department was removed. On December 12, 1990, the UFA filed two petitions against the City. In its improper practice petition, the UFA requested that the City be ordered to bargain immediately with petitioner regarding the change in personnel policy set forth in Department Order 168, i.e., the assignment of "light duty" firefighters to the position of Division Aides, and to rescind Department Order 168 pending such negotiations. In its scope of bargaining petition, the UFA requested that the Board of Collective Bargaining ("the Board") find that the City's unilateral change in the assignment of light duty firefighters to the position of Division Aides, effective January 1, 1991, has a practical impact on firefighters and, therefore, is within the scope of bargaining. The UFA further requested that the Board issue an order: (1) directing the City to engage in collective bargaining with the UFA over the means to alleviate the

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practical impact caused by such change; (2) directing the City to rescind Department Order 168, paragraphs 2.3 and 2.4 pending the outcome of the ordered negotiations; and (3) granting the UFA such other and further relief as the Board deems just and proper. 6 On December 19, 1990, Tobias Bermant, Deputy Commissioner and General Counsel of the Office of Labor Relations, wrote to Steven C. DeCosta, Deputy

6 Thereafter, on December 13, 1990, the UFA filed a complaint against the City in Supreme Court, New York County, in an action for declaratory judgment and injunctive relief. (Supreme Court, New York County, Index No. 27472/90. (Judge Herman Cahn).) In that proceeding, the UFA sought to prevent the City from implementing Department Order 168 pending a final disposition of the underlying dispute by the OCB. To that end, the UFA requested an Order: a. granting a temporary restraining order enjoining and restraining the City from implementing Department Order 168, paragraphs 2.3 and 2.4, until such time as a hearing can be had on the UFA's request for a preliminary injunction; b. permanently enjoining and restraining the City from implementing and enforcing Department Order 168, paragraphs 2.3 and 2.4, pending a determination by the OCB of the merits of the UFA's Improper Practice and Scope of Bargaining petitions; and c. such other and further relief, including attorney's fees, as may be just and proper. The City cross-moved to dismiss the complaint pursuant to the Civil Practice Law and Rules, Section 3211(a)(2), (5) and (7). On December 24, 1990, Judge Cahn denied the UFA's motion for a preliminary injunction, finding that: No irreparable harm will come to plaintiff because if OCB rules in favor of plaintiff after a unilateral implementation of Order 168 by defendants, they will have to rescind the order and return to the status quo ante. The implementation of the order will not affect OCB's decision making process and, therefore, the jurisdiction of OCB need not be protected by a preliminary injunction.

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Chairman and General Counsel of the Office of Collective Bargaining ("OCB"), noting that concurrent with the filing of its improper practice petition, the UFA had filed a related scope of bargaining petition. Mr. Bermant stated that "[e]ssentially, the UFA is claiming that a new policy, effective 1/1/91, of assigning, light duty firefighters to the position of Deputy Chief Aides constitutes simultaneously an improper practice and a scope of bargaining violation for failure to bargain about the proposed policy." He argued that the provisions of the NYCCBL and the Revised Consolidated Rules of the Office of Collective Bargaining ("OCB Rules") do not permit the concurrent filing of a scope of bargaining petition and an improper practice petition based on the failure to bargain over the same disputed agency policy. According to Mr. Bermant, The reasons are self-evident. There cannot be a finding of an improper practice for failure to bargain unless there is a prior determination of a mandatory subject of bargaining. Moreover, such a finding of a mandatory bargaining issue would then trigger a reasonable period of time for the parties to bargain in good faith. Only after the exhaustion of that period would a petition alleging an improper practice for failure to bargain be appropriate.

Therefore, "in order to assure orderly administrative procedures consistent with the NYCCBL and [the OCB] Rules," Mr. Bermant requested that the Executive Secretary dismiss the improper practice petition as premature, untimely, and insufficient as a matter of law. In a letter dated December 21, 1990, 7 Mr. DeCosta responded to Mr. 7 The UFA contends that it was not served with a copy of the City's December 19, 1990 letter requesting dismissal of the improper practice petition and, therefore, did not know that such a request had been made until it received Mr. DeCosta's letter (continued...)

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Bermant's request on behalf of the City. Mr. DeCosta informed the City that prior to the date of Mr. Bermant's letter, the UFA's improper practice petition had been reviewed by the Executive Secretary, and had been found not to be so untimely or insufficient as to warrant summary dismissal under Section 7.4 of the OCB Rules. 8 Notice of the Executive Secretary's 7 (...continued) denying the request. 8 Section 7.4 of the OCB Rules provides as follows: Improper Practices. A petition alleging that a public employer or its agents or a public employee organization or its agents has engaged in or is engaging in an improper practice in violation of [Section 12-306] of the statute may be filed with the Board within four (4) months thereof by one (1) or more public employees or any public employee organization acting in their behalf or by a public employer together with a request to the Board for a final determination of the matter and for an appropriate remedial order. Within ten (10) days after a petition alleging improper practice is filed, the Executive Secretary shall review the allegations thereof to determine whether the facts as alleged may constitute an improper practice as set forth in [Section 12-306] of the statute. If it is determined that the petition, on its face, does not contain facts sufficient as a matter of law to constitute a violation, or that the alleged violation occurred more than four (4) months prior to the filing of the charge, it shall be dismissed by the Executive Secretary and copies of such determination shall be served upon the parties by certified mail. If, upon such review, the Executive Secretary shall determine that the petition is not, on its face, untimely or insufficient, notice of the determination shall be served on the parties by certified mail, provided, however, that such determination shall not constitute a bar to the assertion by respondent of defenses or challenges to the petition based upon allegations of untimeliness or insufficiency and supported by probative evidence available to the respondent. Within ten (10) days after receipt of a decision of the Executive Secretary dismissing an improper practice (continued...)

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determination was sent to the City on December 13, 1990. 9 Since determinations by the Executive Secretary are not subject to reconsideration based upon the submission of arguments by the respondent, Mr. DeCosta concluded that the City's request for dismissal by the Executive Secretary could not be entertained. Mr. DeCosta did, however, invite the City to submit its arguments in support of its request for dismissal in its answer to the improper practice petition and the related scope of bargaining proceeding.

Thereafter, on December 24, 1990, the City filed two motions to dismiss. In its motion to dismiss the UFA's improper practice petition, the City asserted that the petition fails to state a cause of action upon which relief may be granted under the NYCCBL because it is premature, inconsistent with and duplicative of the pending scope of bargaining petition. In its motion to dismiss the UFA's scope of bargaining petition, the City argued that that petition also fails to state a cause of action upon which relief may be

8 (...continued) petition as provided in this subdivision, the petitioner may file with the Board of Collective Bargaining an original and three (3) copies of a statement in writing setting forth an appeal from the decision together with proof of service thereof upon all parties. The statement shall set forth the reasons for the appeal. 9 In his letter dated December 13, 1990, Mr. DeCosta acknowledged receipt of the UFA's improper practice petition, and informed the UFA and the City that the petition had been reviewed by the Executive Secretary who determined that it was not, on its face, so untimely or insufficient as to warrant summary dismissal pursuant to Section 7.4 of the OCB Rules. Accordingly, the City was directed to serve and file its answer to the petition within ten days of its receipt of the letter.

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granted under the NYCCBL because it is premature. In both proceedings respondent requested that, in the event its motions to dismiss are denied, it be given fourteen days from the date of receipt of such denial to file its answer to the UFA's petition, and such other and further relief as the Board deems just and proper. On January 4, 1991, the UFA filed its affirmations and brief in opposition to the City's motions to dismiss. 10 In its brief, the UFA argued that given the serious nature of the dispute, if the Board denies the motions to dismiss, the City should be ordered to file its answers to the petitions within five days of the Board's interim decision. Thereafter, on January 17, 1991, the City filed its replies to the UFA's affirmations in opposition to the motions to dismiss.

POSITIONS OF THE PARTIES IMPROPER PRACTICE PETITION Respondent's Position The City first contends that the UFA's improper practice petition is premature and, therefore, must be dismissed. In support of its position the City notes that in addition to its improper practice petition, the UFA filed a scope of bargaining petition alleging a per se practical impact on the safety

10 On December 27, 1990, petitioner wrote to Mr. DeCosta requesting, with the consent of the City, until January 4, 1991 to serve and file its answer to the City's motions to dismiss. By letter dated December 28, 1990, Mr. DeCosta granted the UFA's request.

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of firefighters resulting from the unilateral change in personnel policy set forth in Department Order 168. As a remedy, the UFA requested that the City be ordered to bargain over the implementation of Department Order 168, and that Department Order 168 be rescinded pending such negotiations. As of this date, no determination has been rendered by the Board in the scope of bargaining proceeding. The City maintains that an improper practice petition in which a refusal to bargain has been alleged necessarily assumes that there has been a prior determination of a duty to bargain over the subject matter. Where, as in the instant case, no such determination has been made, there can be no finding of improper practice based upon a refusal to bargain. In short, the City contends, "[t]here can be no determination that Respondent committed an improper practice for violating a duty to bargain if the same petitioner is simultaneously asking for a determination such a duty exists ... [A]n alleged violation of [a] non-existent duty is inconsistent [on] its face and insufficient as a matter of law." Moreover, the City contends, whether or not it would argue that an improper practice petition filed after a determination had been made in a scope of bargaining proceeding was untimely, as the UFA alleges, is purely speculative and insufficient to rebut its contention that the improper practice petition is premature. The City further argues that the improper practice petition must be dismissed as premature because the personnel change set forth in Department Order 168 is not yet in effect. The City submits that there can be no

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violation of a bargaining obligation if there has been no unilateral change. 11 In any event, the City notes that the UFA has not alleged that it requested bargaining over Department Order 168 or that such a request has been refused. "The failure to submit a bargaining demand, without more," the City claims, "is a complete defense to a failure to bargain charge." 12 Alternatively, the City argues that the UFA's improper practice petition must be dismissed because it seeks the same result as that sought by petitioner in the pending scope of bargaining petition, i.e., a determination of a duty to bargain over Department Order 168, and, therefore, is inconsistent with and duplicative of the pending scope of bargaining petition. The City contends that this result is consistent with prior decisions wherein the Board has declined to exercise jurisdiction over an improper practice petition to avoid unnecessary duplication of effort and the risk of an 11 In support of its position, the City cites Nassau CSEA v. PERB, 16 PERB Par. 7017 (2d Dept. 1983), wherein the New York Supreme Court, Appellate Division, upheld a determination of PERB, finding that the county did not violate its bargaining obligation when it announced that it intended to change from a noncontributory to a contributory health plan, effective six weeks after the announcement. PERB noted that the notice of the county's intent was merely an announcement of an anticipatory change and, when the employees' union requested that the county negotiate the change, it agreed. A negotiating session was held ten days after the notice was sent to the employees. Negotiations did not continue after that day because they were broken off by the unions. By so doing, PERB held, they waived their right to complain when the announced change took effect. 12 The City cites Heuvelton Central School District, 12 PERB Par. 3007 (1979) in support of its position. In that case, PERB held that the failure of the union to present its negotiating package to the School District on or before the date specified in the parties agreement constituted, under the terms of the agreement, consent to the continuation of the agreement for one year. Accordingly, the school District was under no obligation to negotiate with the union after that date.