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OGDENSBURG — One week after the city fire union withdrew five articles from its grievance claim, city officials hit back with a strong argument about why they think the union’s remaining claims don’t stand a chance in arbitration.

Last week, the union withdrew five of seven claims from its grievance alleging the city violated the union’s collective bargaining agreement when five firefighters were laid off last month. The withdrawals were revealed in a detailed memorandum of law filed Feb. 12 in state Supreme Court in St. Lawrence County, and left just two claims in the union’s argument that its contract was violated.

The remaining claims reference the department’s minimum shift staffing and how each of these shifts is structured, which are in alignment with the union’s steadfast argument that five firefighters, rather than four, should be on duty at all times.

The city has reduced the minimum shift structure to four firefighters — one captain and three firefighters. The union would prefer to have no fewer than five firefighters on duty at all times.

“The reason that the five-man minimum exists is simply for safety,” union President Jason T. Bouchard said Friday, adding that the minimum shift staffing provision of the union’s contract with the city is to ensure the department has proper staffing to safely fight fires.

But in the city’s memorandum of law reply filed Thursday afternoon, Paul J. Sweeney, the city’s attorney, lays out three points for why the union’s argument is not arbitrable.

The city consistently maintains throughout its reply that the union’s safety claim is in fact a job security provision and is therefore not arbitrable under public policy set forth in cited case law.

The city filed suit against Ogdensburg Professional Firefighters, Local 1799, last month seeking a permanent stay of arbitration — an alternative form of dispute resolution used as a way to resolve issues outside the court system — and again asked the judge in its Thursday filing to permanently stay the city from the union’s arbitration demand.

The union’s demand for arbitration was filed with the city on Dec. 28 of last year after its grievance was denied on Christmas Eve. The grievance was filed Dec. 10, one day after City Council passed its 2021 budget that, among other things, reduced the fire department by seven positions — down to 20 firefighters from 27.

The union claimed in its grievance that the city’s staffing reduction violated its collective bargaining agreement, as section 18F of the contract states the department cannot dip below 24 firefighters due to budgetary reasons or the abolishment of positions. The section further states that the number of firefighters can only dip below 24 if the employee retires or is lawfully removed.

The demand for arbitration originally pointed out seven provisions in its six-year contract that city leadership allegedly violated when it laid off five firefighters Jan. 1. Five firefighters were laid off instead of seven due to an eligible firefighter’s retirement and another being out on leave.

Four firefighters have since opted for retirement and one was fired for misconduct earlier this month.

City Manager and Fire Chief Stephen P. Jellie had no further comment about the filing when contacted Friday, adding that the document speaks for itself.

The city argues in its reply that the union’s opposition “does nothing” to rebut the mathematical fact that a five-firefighter minimum shift staffing amounts to 20 firefighters, as the city must deploy four shifts of at least five firefighters.

Four shifts, plus five firefighters per shift, equals 20 firefighters, the reply reads.

“How is this clause any different than one specifying a force level of 20 firefighters? Of course, there is no difference in construction,” the reply reads, and the union now realizes this.

The minimum of four firefighters would make it impossible to have a union member take vacation time without someone having to fill their spot. With this shift structure, there wouldn’t be anyone to fill in without clocking overtime.

Mr. Jellie has said he would rather pay the overtime than grow the department back to 24 firefighters.

One of the five withdrawn grievance claims was a provision of the contract that references hazard pay. Section 18C of the union’s contract states that any union member assigned to a shift with fewer than six assigned members will receive an extra $3 an hour. They will receive another $3 an hour for each subsequent reduction to the number of assigned shift members.

This begs an important question, the city states in its reply.

If the five-firefighter per shift minimum is “as critical” to firefighter safety as the union claims, “why would it have expressly agreed to allow shifts of fewer than five firefighters in exchange for an additional monetary benefit for affected members?”

“Apparently,” the reply reads, “the Union traded a safety concern for more money for the members.”

Mr. Bouchard said Friday that the union has waived hazard pay “numerous” times, but union members are currently collecting the pay differential.

“Since (city officials) are not bringing anyone back, we’re operating unsafely,” Mr. Bouchard said Friday. “Period.”

Section D of the contract, one of two remaining articles in the union’s grievance claim, states there should be four shifts, and each shift must have an officer structure of one assistant fire chief, one captain and the remaining shift members being firefighters.

The city’s latest move goes against this provision of the contract as it was revealed earlier this month that the assistant fire chief positions will be abolished March 1 and all those holding the title will be demoted to the rank of captain.

A footnote in the reply further states that the same five-man shift would “make no sense,” in reference to section D of the contract.

“What would the two fire officers do? Does the Assistant Fire Chief supervise the Fire Captain who then supervises the three firefighters? How is this redundant leadership related to safety? This redundancy may explain why the Union bargained for only one fire officer per shift,” the footnote reads.

Section E of the contract, the second of two remaining articles in the union’s grievance, states a minimum of five bargaining unit employees — either four firefighters plus an officer, or three firefighters plus two officers — shall be on duty at all times “unless otherwise mutually agreed to in writing for the period of this contract.”

The city contends in its reply that section E of the contract was negotiated to allow for a shift that consists of only one fire officer, and not to require that both an assistant fire chief and captain be on the same shift.

“To the extent that the Union is still arguing that an Assistant Chief and a Fire Captain are needed on each shift for safety reasons, (section E) guts an assertion as there is no requirement that an Assistant Fire Chief be on any shift,” the reply reads.

A second footnote questions why the fire chief is excluded from the shift staffing count if the objective is to have as many “hands on deck” as is possible.

“Wouldn’t it be ‘safer’ to allow the Fire Chief to be included in the manning count if the purpose is to always ensure there are enough firefighters? Or is this exclusion really just a brazen and bald-faced effort to drive up overtime and hazard pay if the shift can only be filled by bargaining unit members?” the footnote reads.

The city further contends that the union’s grievance is not arbitrable because it extends for an “unreasonable period of time.”

The union’s contract with the city is for six years — beginning Jan. 1, 2020, and ending on Dec. 31, 2025.

“Thus, the current job security clauses would be in effect for six years,” the reply reads. “No court has held that six years is a ‘reasonable’ period of time for the duration of job security clauses ...”

The union’s current contract was “hastily” agreed upon, as Mr. Jellie has said, following the 2019 election.

It’s further stated in the reply that there’s evidence the contract at issue was negotiated during a time of “severe economic distress,” which has only been exacerbated by the ongoing COVID-19 pandemic, and that the parties did not possess equal bargaining positions.

“Binding the City to a ‘job security clause’ that was to be enforced for a term of six years ... is clearly unreasonable and, therefore, violates public policy,” the reply reads.

The city and fire union have been at odds for more than two months since the passing of the 2021 budget.

The union filed suit against the city in state Supreme Court at the end of last year because of the staffing cuts. The union was requesting a preliminary injunction to forestall the five layoffs. But state Supreme Court Judge Mary M. Farley quickly denied the request.

When oral arguments for the case were heard about two weeks later, the union was requesting the reinstatement of the five laid-off firefighters. The city prevailed when Judge Farley issued another swift denial of the union’s request to reinstate personnel.

The city quickly filed suit against the union requesting a permanent stay of arbitration.

The case remains pending in state Supreme Court as a judge has not yet issued a ruling.

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Johnson Newspapers 7.1

Assistant Managing Editor

In her role as assistant managing editor, Sydney manages the photo department, social media accounts and NNY360.com. She also covers the city of Ogdensburg, as well as the state and federal court systems.

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