Deneen v. City of New York

• Decision Date: 06 April 1982
• Citation: 453 N.Y.S.2d 140,113 Misc.2d 523
• Parties: Edwin J. DENEEN, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 140

453 N.Y.S.2d 140

113 Misc.2d 523

Edwin J. DENEEN, Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant.

Supreme Court, Appellate Term,

First Department.

April 6, 1982.

Allen G. Schwartz, Corp. Counsel, New York City (Leonard Koerner and Alfred Weinstein, New York City, of counsel), for appellant.

Edwin J. Deneen, respondent pro se.

Before HUGHES, J. P., and TIERNEY and RICCOBONO, JJ.

PER CURIAM:

Order entered November 13, 1980 reversed, with $10 costs, motion granted, and complaint dismissed.

As justification for sustaining this direct action by a union member against his employer, The City of New York, to recover the amount of a general salary increase deferred for a period of one year pursuant to a wage deferral agreement executed by plaintiff's union in 1975, the Small Claims Court found "misconduct" on the part of the union "... in entering into an ambiguous wage deferral agreement, by ... refusing to process plaintiff's claim when he asked the union to do so, and by ... collaborating with the city to keep the wage deferral suspended indefinitely" (Deneen v. City of New York, 106 Misc.2d 785, 791, 435 N.Y.S.2d 434). We have previously considered in detail many of the issues raised in this appeal (see Albert v. City of New York, 103 Misc.2d 962, 431 N.Y.S.2d 240). An employee may not bring a proceeding directly against his employer alleging that his union breached its duty of fair representation where the employee himself had the right to process the grievance through the initial steps of the grievance procedure available to him yet failed to do so (Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913, 17 L.Ed.2d 842; Matter of Lewis v. Klepak, 65 A.D.2d 637, 409 N.Y.S.2d 268). Plaintiff's mere allegation that he made "overtures" to his union with respect to reclaiming his deferred wages hardly satisfies that requirement. Furthermore, a labor organization does not ipso facto breach its duty of fair representation toward a member of the collective bargaining unit simply because it will not take a given grievance to arbitration; its conduct toward the individual employee must be "arbitrary, discriminatory, or in bad faith" (Vaca v. Sipes, supra, 386 U.S. at, p. 190-191, 87 S.Ct. at p. 916-917). Virtually all municipal employee unions consented to the wage deferral agreement at issue, and we question whether it is the function of the courts to sit in judgment on the strategy adopted by sophisticated labor groups in their...