The Third Department, reversing Supreme Court, over a two-justice concurrence which argued an additional ground for reversal, determined that the municipality had not bargained away (in the collective bargaining agreement [CBA]) its right to eliminate positions or lay off workers for economic reasons. Therefore the municipality’s refusal to fill a vacant firefighter position was not arbitrable (against public policy):
The clause [in the CBA] at issue requires petitioner to fill vacancies as soon as possible to maintain “agreed upon” staffing levels, which, at the effective date of the contract, was 36 firefighters. However, the operative clause does not contain the explicit term precluding downward readjustment of that agreed-upon minimum level that was present in Matter of Burke v Bowen [40 NY2d 264]. Rather, the clause at issue authorizes petitioner to unilaterally eliminate equipment or close a station on 30 days’ notice and requires that the parties bargain the impact of any such change. We conclude that this clause, considered in its entirety, does not meet the “stringent test” necessary to establish that petitioner “bargain[ed] away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons” … . Accordingly, the dispute is not arbitrable for reasons of public policy. Matter of City of Plattsburgh (Plattsburgh Permanent Firemen’s Assn.), 2019 NY Slip Op 05367, Third Dept 7-3-19