Thursday, April 04, 2013

The Triborough Doctrine yields to an amendment to a law applicable to a provision in an expired collective bargaining agreement if the Legislature did not specifically direct otherwise

The Triborough Doctrine yields to an amendment to a law applicable to a provision in an expired collective bargaining agreement if the Legislature did not specifically direct otherwise
City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2013 NY Slip Op 02162, Court of Appeals*

Was the phrase "in effect" as used in Article 22, §8 of the Retirement and Social Security Law sufficient to trigger the Triborough Doctrine preserve a provision set out a collective bargaining agreement [CBA] that had expired and not been replaced by a successor agreement.

The City of Yonkers and the Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, had periodically extended a CBA dated July 1, 2002 by “stipulation.”. The last such stipulation extended the agreement through June 30, 2009. The genesis of this litigation was a provision in the CBA whereby the City agreed to offer its firefighters the option of enrolling in one of two retirement plans, and agreed that it would bear "the complete cost" of contributions, "pursuant to State law."

In 2009, however, Legislature amended the Retirement and Social Security Law, effective in January 2010, requiring new members of the New York State and Local Police and Fire Retirement System to enroll in a new Retirement Tier, Tier VI. Tier VI required its members to contribute 3% of their salaries toward their retirement allowance.

The amendment set out a “narrow exception” to this 3% contribution requirement.

"Notwithstanding any provision of law to the contrary, nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan open to him or her pursuant to a collectively negotiated agreement with any state or local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however, that any such eligibility shall not apply upon termination of such agreement for employees otherwise subject to the provisions of article twenty-two of the retirement and social security law" [emphasis in the opinion]..

The City, citing the June 30, 2009 termination date of the CBA, required firefighters who were hired after that date to enroll in Tier VI and to contribute 3% of their wages towards their retirement benefits. In response, the Union filed an improper practice charge with the New York State Public Employment Relations Board (PERB), alleging that the City had erred in failing to apply the CBA to firefighters hired by the City after the CBA's termination date.

The Union, relying on the exception contained in Article 22, §8 of the Retirement and Social Security Law, as well as New York Civil Service Law §209-a (1) (e), which codified the Public Employment Relations Board’s (PERB) so-called Triborough Doctrine,** filed an improper practice charge with PERB contending that the City had failed to apply the retirement provision in the now expired CAB as required by §209-a (1) (e) of the Civil Service Law.

When PERB referred the matter to arbitration, the City commenced a CPLR Article 75 proceeding seeking a permanent stay of arbitration on the ground that arbitration is barred by Civil Service Law §201(4) and Retirement and Social Security Law §470.

Although Supreme Court rejected this argument and dismissed the City’s petition, the Appellate Division reversed the lower courts ruling, holding that the statutes cited by the City “are a bar to arbitration.” The Court explained that "the CBA, which terminated by its own terms in June 2009, was no longer 'in effect' at the time of the effective date of Article 22 of the Retirement and Social Security Law," with the result that "the exception set forth in §8 of that Article is inapplicable."

The Court of Appeals affirmed the Appellate Division’s ruling.

The court said that the Triborough Doctrine, upon which the Union relies, had as its purpose "to preserve the status quo in situations where a CBA between a public employer and its employees has expired and a new one has yet to be agreed upon."

As no successor CBA was negotiated between the parties in the present case, the Triborough Law would apply and the CBA's terms would be continued, unless contradicted by statute. Significantly that part of the CBA that required non-contributory plans is rendered unlawful by Article 22 of the Retirement and Social Security Law, which prohibits such plans, unless the §8 exception is applicable in this instance.

The Court of Appeals rejected the Union’s argument that the §8 exception applies because the Triborough Law extends the terms and conditions set out in CBAs that have expired, holding that “This was not the Legislature's intent. If the Legislature had intended to invoke the Triborough doctrine, it would certainly have made that explicit.”

Rather, said the court, “the Legislature, having set forth the §8 exception for CBAs that are "in effect," expressly states that eligibility to join a CBA's retirement plan "shall not apply upon termination of such agreement." This language, the Court of Appeals concluded, “makes clear that the Legislature did not intend to apply the exception to agreements that had expired and could only be deemed to continue through the Triborough Law.”

* See, also, City of Oswego v Oswego City Firefighters Assn., Local 2707; 2013 NY Slip Op 02163; Court of Appeals, posted on the Internet at:

** See 5 PERB 3037; 5 PERB  4505.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

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Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

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