The opinion of the court was delivered by: Pigott, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
At issue in this case is the meaning of the words "in effect" as contained in article 22, section 8 of the Retirement and Social Security Law, specifically whether expired collective bargaining agreements are "in effect" for purposes of that statute because of the so-called Triborough Law.
Petitioner, the City of Yonkers, and respondent, Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, entered into a Collective Bargaining Agreement (CBA), dated July 1, 2002, which, by stipulation, was extended to June 30, 2009. In the CBA, 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, in response to the fiscal crisis, Governor Paterson and the Legislature ended the right of newly hired firefighters to join such non-contributory pension plans. The Legislature enacted article 22 of the Retirement and Social Security Law, effective in January 2010, which placed new members of the New York state and local police and fire retirement system in a new tier of pension benefits -- Tier V -- requiring members to contribute 3% of their salaries toward their pensions (see Retirement and Social Security Law § 1204).
The focus of this appeal is a narrow exception provided in section 8 of article 22.
"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" (L 2009, ch 504, Pt A, § 8 [emphasis added]).
Following the 2009 legislation, no agreement on a new CBA was reached in Yonkers. The City, noting the June 30, 2009 termination date of the CBA, required firefighters who were hired after that date to pay 3% of their wages towards 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 relied on the exception contained in article 22, section 8 of the Retirement and Social Security Law, as well as New York Civil Service Law § 209-a (1) (e), often referred to as the Triborough Law.*fn1
After PERB referred the matter to arbitration, the City commenced this proceeding for 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. Supreme Court rejected this argument, and dismissed the proceeding; but the Appellate Division reversed, and granted the petition, holding that the statutes cited are a bar to arbitration. "[T]he 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 section 8 of that article is inapplicable"
(90 AD3d 1043, 1044-1045 [2d Dept 2011]). We granted the Union leave to appeal, and now affirm.
A grievance may be submitted to arbitration only if (1) it is lawful for the parties to arbitrate the dispute and (2) the parties agreed to arbitrate that kind of dispute (see e.g. City of Johnstown v Johnstown Police Benevolent Ass'n, 99 NY2d 273, 278 ). The City argues that the first condition is not met, because arbitration of the present dispute is prohibited by statute.
Public employers executing a CBA are prohibited from negotiating and granting retirement benefits that are not already expressly provided under state law. (A CBA may provide for retirement benefits as authorized by law, which is why the CBA here was valid until article 22 was enacted.) Civil Service Law § 201 (4) prohibits the negotiation of "benefits provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees, or payment to retirees or their beneficiaries." Retirement and Social Security Law § 470 similarly proscribes "[c]hanges negotiated between any public employer and public employee . . . with respect to any benefit provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees or payment to retirees or their beneficiaries."
As the parties frame their dispute, whether the arbitration sought by the Union would amount to negotiation prohibited by these statutes depends on whether the CBA was "in effect" pursuant to article 22, section 8 of the Retirement and Security Law when article 22 became effective, or had terminated within the meaning of that statute. If it was not "in effect," then arbitration would be an attempt at negotiation of the 3% now imposed on new firefighters and is barred.
The Triborough doctrine, upon which the Union relies, was codified by the enactment of Civil Service Law § 209-a (see L 1982, ch 868). With an exception not applicable here, that section provides that is "an improper practice for a public employer or its agents deliberately . . . to refuse to continue all the terms of an expired agreement until a new agreement is negotiated" (Civil Service Law § 209-a  [e] [emphasis added]). The ...