Palidoro v. Feuer Transp., Inc.

CourtNew York City Municipal Court
Writing for the CourtSIDNEY H. ASCH
Citation229 N.Y.S.2d 820,35 Misc.2d 385
PartiesWilliam PALIDORO and Sidney Bernstein, Plaintiffs, v. FEUER TRANSPORTATION, INC., Defendant.
Decision Date25 May 1962

Page 820

229 N.Y.S.2d 820
35 Misc.2d 385
William PALIDORO and Sidney Bernstein, Plaintiffs,
Municipal Court of City of New York, Borough of Bronx,
Second District.
May 25, 1962.

Page 821

[35 Misc.2d 386] Samuel S. Ress, New York City, for plaintiffs.

Zelby & Burnstein, New York City, for defendants.

SIDNEY H. ASCH, Justice.

Motion To Dismiss complaint, etc., is granted.

A review of the complaint discloses that the plaintiffs allege the following material facts:

Plaintiffs were employed by the defendant corporation, Feuer Transportation, Inc. At that time, they were members of Local 445 of the International Brotherhood of Teamsters. Local 445 had a collective bargaining agreement with Feuer which set forth the terms and conditions of employment for defendant's employees.

In 1957, a dispute arose between Feuer and Local 445 as to whether certain individuals were owner-operators or employees of Feuer. If the

Page 822

individuals were found to be employees, then they would be entitled to certain benefits under the collective bargaining agreement which they could not receive if they were deemed to be owner-operators or independent contractors. This dispute was submitted to arbitration before a Joint Local (Grievance) Committee as required by the collective bargaining agreement between the parties. In November, 1957, the Joint Local (Grievance) Committee found that the individuals were employees and accordingly, were entitled to certain benefits which they previously had not received under the collective bargaining agreement. A copy of the award and decision of the [35 Misc.2d 387] Joint Local (Grievance) Committee is annexed as Exhibit 'A' to the complaint.

The plaintiffs now contend that they are entitled to certain holiday pay, vacation pay and for time not worked, because the employees who were below them on the seniority list were given work when the plaintiffs were available to work.

The defendant then moved to dismiss the complaint upon the ground that the Court did not have jurisdiction of the action and that the claims asserted by the plaintiffs were barred by the failure of plaintiff to assert them in time. A review of the affidavits submitted in support of the motion to dismiss the complaint and the answering affidavits thereto, clearly establishes that the complaint must be dismissed.

The plaintiffs appear to be seeking to recover benefits which allegedly accrued to them under collective bargaining agreements which were in effect between the defendant and Local 445 of which the plaintiffs were members. If this is the theory upon which the plaintiffs proceed, then this Court does not have jurisdiction of this action.

The collective bargaining agreements between Feuer and Local 445 not only set forth wages, holidays, vacations and other economic benefits to which the employees were entitled during the term of the collective bargaining agreement, but the agreements among other things, specifically provided for a definitive way in which all disputes which might arise under the collective bargaining agreements were to be resolved. Accordingly, the collective bargaining agreement must be construed as a single and entire document and provisions providing for economic benefits cannot be divorced from the provisions which set forth the procedure to be followed for the resolution of disputes arising thereunder.

In Spilkewitz v. Pepper, City Ct., 159 N.Y.S.2d 53 (1957), the employees brought an action to recover for alleged overtime wages which were due to them under an agreement between the employer and the union of which the employees were members. The Court held:

'It is obvious that the right of the respondent to relief in the action as an individual employee is based upon divers provisions of the agreement between the Union and the petitioner and that

Page 823

he, the respondent, relies wholly upon the agreement, from which is derived his alleged cause of action. * * *

'Moreover, as was stated in Johnson v. Kings County Lighting Co., Sup., 141 N.Y.S.2d 411, 414: '* * * The dominant purpose of the contracting parties was to avoid, if possible, industrial strife by requiring that disputes arising out of working conditions and the [35 Misc.2d 388] construction to be placed upon the terms of the contract be resolved by means of the grievance procedure set forth in the contract and by arbitration. Since plaintiff is relying upon the terms of the contract for the relief he seeks in this action, he may not invoke part of the contract and disregard its other provisions requiring arbitration.' The above language of the opinion in the Johnson case, supra, applies with equal force here. See also Ott. v. Metropolitan Jockey Club, 282 App.Div. 946, 125 N.Y.S.2d 163, affirmed 307 N.Y. 696, 120 N.E.2d 862; Sperling v. Newtown Laundry Service Inc., 264 App.Div. 878, 35 N.Y.S.2d 588; cf. Di Rienzo v. Farrand Optical Co., Mun.Ct., 148 N.Y.S.2d 587. Thus, the agreement here for arbitration, if fairly construed, is broad enough to include a claim for overtime wages as alleged here. Cf. Berens v. Robineau, 278 App.Div. 710, 103 N.Y.S.2d 168. And the agreement for arbitration is binding not only on the Union but upon all individual members thereof, including the respondent as a member of the Union involved. See Mencher v. B. & S. Abeles & Kahn, 274 App.Div. 585, 84 N.Y.S.2d 718. * * *'

That the plaintiffs in this case are bound by the arbitration provisions of the collective bargaining agreement between defendant and Local 445 has been...

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