Papers Submitted:

Upon the foregoing papers, the Petition brought pursuant to CPLR § 7503, by the Petitioner, THE CITY OF LONG BEACH (hereafter "Petitioner" or "City"), seeking an order [*2]permanently staying the Respondent, LONG BEACH PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 287's (hereafter "LBPFFA") demand to arbitrate the Petitioner, City's hiring of paramedics and laying off of Firefighters, and the Respondent's Cross-Motion seeking to compel the Petitioner to proceed with the demanded arbitration, are determined as provided herein.

In response to the Petitioner, City's hiring of eight paramedics in or about March 2015, and the concomitant layoff of four firefighters in or about February 2015, the Respondent, LBPFFA, filed a grievance, dated May 25, 2015, alleging the violation of multiple provisions of the collective bargaining agreement between the International Association of Fire Fighters AFL-CIO, Uniformed Fire Fighters Association Local 287 and the City of Long Beach, covering the period July 1, 2004 — June 30, 2010. (hereafter "CBA")^[FN1]

By way of remedy arising from the City's alleged violation of various provisions of the CBA, respondent LBPFFA filed a grievance dated May 25, 2015 seeking

"to be made whole or having all employees receive appropriate wages, fringe benefits, and conditions of work as set forth in the CBA, followed by removal of all inappropriately hired employees, for all laid off employees to be retroactively reinstated forthwith with back pay, interests and all solatiums of employment due to them. To have the City Cease and Desist until an agreement has been signed off on as per the Collective Bargaining Agreement."

Predicated on the grounds that the Petitioner, City, disregarded the grievance as filed, and the City Manager failed to render a determination or finding as required by the CBA, the Respondent, LBPFFA, filed an Improper Practice Charge with the New York Public Employment Relations Board (PERB)^[FN2] on or about June 11, 2015 based on allegations that the Petitioner, City, violated various provisions of the CBA when it hired paramedics:

"without providing them with the wages, fringe benefits and conditions of employment set forth in the CBA also, when it improperly hired paramedics and laid off Firefighters, and when it failed to adhere to the conditions of employment set forth in the CBA after hiring paramedics."

The Respondent, LBPFFA, requested that PERB:

"find the City in violation of the Act and to be made whole for the violations including reinstatement of laid off Firefighters with full back pay, benefits and all other emoluments of employment with interest thereon, pay the Union the full amount of all subcontracts entered into with outside agencies, compensate the Union for the attorneys' fees it has had to pay to correct these violations and for such [*3]other and further relief as PERB may find appropriate."

With respect to the Improper Practice Charge, the Respondent, LBPFFA, asserts that, although the facts asserted therein may be similar to the facts of the grievance, the allegations asserted to be Improper Practice Charges because they violate the Taylor Law are separate and distinct from the allegations asserted in the grievance, i.e., that irrespective of whether the actions were taken in bad faith, irrespective of whether there was direct dealing by the City with the paramedics and the firefighters prior to the layoffs, irrespective of whether the City's actions violate the Taylor Law, the City's actions were in violation of the terms and conditions of the parties' CBA. As such, the claims are separate and distinct claims.

In response to the Improper Practice Charge, the Respondent, LBPFFA, received a partial determination from PERB dated June 12, 2015, wherein PERB found that the § 209-a (1) (a) and (d) claims as to direct dealing, and the unilateral transfer of exclusive unit work, could be processed. PERB found the remainder of the charge deficient, noting the following:

— the initial employer setting of salary and benefits for new

positions is nonmandatory.

— assignment, training, qualifications, hiring and the decision to

lay off employees are nonmandatory subjects of bargaining.

— the claim that the employer refused to set an earlier

negotiation date than January 2015 is untimely.

— the claims as to improper motive are unsubstantiated by the

facts alleged.

— the cited provision of the collective bargaining agreement

does not support the claim made.

On or about June 25, 2015, the Respondent, LBPFFA, filed an amendment to correct the named deficiencies.

In accordance with Step III of the grievance process, the Respondent, LBPFFA, filed a demand for arbitration, which the Petitioner now seeks to stay, on June 30, 2015.

The primary argument advanced by the Petitioner, City, in support of its application to stay the arbitration is that the subject dispute is precluded by statute, i.e., the Taylor Law (Civil Service Law §§ 205 [5] [d], 209-a [1] [d], 209-a [1] [e]), pursuant to which PERB has exclusive non-delegable jurisdiction to determine the allegations contained in the grievance submitted by the Respondent, LBPFFA. In this regard, the Court notes that the Taylor Law governs employment relations in the public sector. It deals with such issues in public employment as organizing, collective bargaining and the creation of the Public Employment Relations Board.

While the newly created paramedic positions fall within the general coverage of the expired CBA, under the Taylor Law, the City maintains it was entitled, as held by PERB, to set salary and benefits for the newly created paramedic position without negotiation and without regard [*4]to the terms and conditions contained in the expired CBA. Because the salary, benefits, assignment, training and qualifications of paramedics are not terms contained in the expired, but continued CBA, the Respondent, City, contends there is no agreement to arbitrate a dispute over those terms and conditions. The Petitioner further argues that the demand at issue was not filed within 30 days after the dispute arose.

Even assuming that the terms of the expired CBA can be applied to the paramedic position, which did not exist when the CBA was negotiated or when it expired, the cited provisions, on which the Respondent, LBFFPA, relies, are, according to the Petitioner, City, restricted to firefighters and do not give rise to arbitration of a dispute involving paramedics. Moreover, because the CBA is silent on the issue of layoffs, and because arbitration is limited to disputes arising over an express provision of the CBA, it is the Petitioner, City's position that the agreement cannot be extended to include disputes over layoffs. Further, according to the Petitioner, City, PERB's determination was final to the extent that it found some of the Respondent, LBPFFA's claims deficient, and disposed of their claim that the Petitioner, City, improperly failed to apply the CBA's terms to paramedics and improperly refused to negotiate those terms. The Respondent's remedy, therefore, in the view of the Petitioner, City, must be had through Article 78 review.

It is well settled that under the Taylor Law, a public employer is obligated to negotiate in good faith with the bargaining representative of its current employees regarding the terms and conditions of employment (Civil Service Law § 204 [2]). The failure to do so constitutes an improper practice (Civil Service Law § 209-a [1] [d]). PERB has exclusive jurisdiction to resolve disputes involving an alleged improper practice (Civil Service Law § 205 [5] [d]. Certain decisions of an employer may not be deemed mandatorily negotiable terms and conditions of employment because they are inherently and fundamentally policy decisions relating to the primary mission of the public employer (Matter of Board of Educ. of City School Dist. of City of NY v. New York State Public Employment Relations Board, 75 NY2d 660, 669 [1990] [internal quotation marks omitted]).

Here, the Court is confronted with a situation in which there is both an improper practice charge, which was partially decided by PERB, as well as a grievance^[FN3] wherein the Respondent, LBPFFA, alleges violations of the terms and conditions of the CBA.

While it is undisputed that Petitioner, City, as employer has the right to unilaterally establish the initial compensation, duties, benefits and other terms and conditions of employment for a newly created position, here, the newly created position of paramedic falls under a collective bargaining agreement's recognition clause^[FN4] (Article II [A]). The issues of the benefits employees [*5]covered by the CBA are entitled to receive, the parameters of their work schedule and the layoff of firefighters as a consequence of the hiring of paramedics come within the parameters of Article XXV § 1 [A] of the CBA which provides for arbitration of grievances involving:

"A claimed violation, misinterpretation or misapplication of the express provision of this Agreement, except that grievance' shall not be construed to include any claim which is otherwise excluded from the grievance procedure by the terms of this Agreement."

The term grievant is defined in Article XXV § 1 [A] to mean:

"an affected employee, group of employees or the Association, or both, as the context requires."

The Court of Appeals has consistently held that where the parties have agreed "generally to submit to arbitration all disputes arising out of the contract, or any dispute relating to the meaning and interpretation of the underlying contract, they have adopted a broad arbitration clause (Nationwide Gen. Ins. Co. v. Investors Ins. Co. of America, 37 NY2d 91, 96 [1975]). The merits of a grievance are not the court's concern and an apparent weakness of the claimed grievance is not a factor in the court's threshold determination. Rather, it is the arbitrator who weighs the claim. An analysis of the scope of the substantive provisions of the CBA between the parties is not the function of the court (In re Board of Educ. of Watertown City School Dist. [Watertown Educ. Ass'n], 93 NY2d 132, 142-143 [1999] [quotation marks and citations omitted]).

Where, as here, there has been no determination by PERB as to whether the Petitioner, City, violated the terms of the CBA, arbitration of the issues presented in the demand for arbitration is not precluded given that there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

The court's role in reviewing an application to stay arbitration is limited. It is not for the court to interpret substantive conditions of the parties' contract or to determine the merits of the dispute (South Country Cent. School Dist. v. Bellport Teachers Ass'n, 184 AD2d 771, 772 [2d Dept. 1992] [internal quotation marks omitted]). The determination of whether a dispute between a public sector employer and employee is arbitrable is subject to a two pronged test (County of Rockland v Correction Officers Benevolent Ass'n. of Rockland County, Inc., 126 AD3d 694, 695 [2d Dept. 2015]). Initially, the court must determine whether there is any statutory, constitutional or public policy prohibition against arbitrating the grievance (County of Rockland v Civil Service Employee [*6]Ass'n, Inc., 93 AD3d 721, 722 [2d Dept. 2012], lv to appeal denied 19 NY3d 808 [2012]). If no prohibition exists, the next inquiry is whether the parties, in fact, agreed to arbitrate the particular dispute by examining the CBA itself (County of Chautauqua v. Civil Service Employees Ass'n, 8 NY3d 513, 519 [2007]). If there is a prohibition, the court's inquiry ends and the matter is not arbitrable (Matter of Blackburne [Governor's Office of Employee Relations], 87 NY2d 660, 665 [1996]). A court will stay arbitration only where it can conclude, upon examining the CBA and the implicated statute on their fact "that the granting of any relief would violate public policy" (Matter of City of New York v. Uniformed Fire Officers Assn, Local 854, IAFF, AFL-CIO, 95 NY2d 273, 284 [2000]). No such prohibition exists under the facts at bar.

Accordingly, it is hereby

ORDERED; that the Petitioner's application pursuant to CPLR § 7503, seeking an order permanently staying the Arbitration with the Respondent, is DENIED; and it is further

ORDERED; that the Respondent's Cross-Motion pursuant to CPLR § 7503, seeking an order directing the Respondent to proceed to arbitration is GRANTED.

This constitutes the decision and order of this court.

(A) The City recognizes the Association as the exclusive bargaining agent of all City employees in the following unit: paid professional members of the fire fighting force in the ranks of Fire Fighter, Lieutenant (including all specializations) and any full-time professional personnel assigned to the Fire Department as the City may deem necessary, and excluding all Volunteer members of the Fire Department.

(B) The City recognizes the obligation of those members who are or who may become members of the Association to pay their Association dues, and the City agrees to deduct Association dues from the wages of all Association members who appear on the City payroll, and forward such dues, together with a list of employees for whom dues deductions are made, to the Association. Dues deductions are to be made each pay period.

(C) The City shall recognize the members of the Association (paid employees) as the primary emergency response unit, including EMS, EMS transportation, fire suppression, and hazardous materials incident.