Palidoro v. Feuer Transp., Inc.

• Decision Date: 25 May 1962
• Citation: 229 N.Y.S.2d 820,35 Misc.2d 385
• Parties: William PALIDORO and Sidney Bernstein, Plaintiffs, v. FEUER TRANSPORTATION, INC., Defendant.
• Court: New York City Municipal Court

Page 820

229 N.Y.S.2d 820

35 Misc.2d 385

William PALIDORO and Sidney Bernstein, Plaintiffs, v. FEUER TRANSPORTATION, INC., Defendant.

Municipal Court of City of New York, Borough of Bronx,

Second District.

May 25, 1962.

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 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 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 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 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 recently affirmed by the Court of Appeals in Parker v. Borock, 5 N.Y.2d 156, 182 N.Y.S.2d 577, 156 N.E.2d 297 (1959). Assuming, that the plaintiffs were the direct beneficiaries of the holiday, vacation and seniority provisions of the agreement to enforce their rights by way of arbitration. At no time, did plaintiffs seek arbitration.

Plaintiffs, in their answering affidavits, contend that Local 445 failed to take up their claims as grievances with Feuer. If this is the fact, that plaintiffs may have an action against Local 445 but not against the defendant. The Court of Appeals in Parker v . Borock, supra, stated:

'A reading of the existing agreement indicates that plaintiff has entrusted his rights to his union representative. It may be that the union failed to preserve them. As was said in Donato v. American Locomotive Co. (283 App.Div. 410, 417, 127 N.Y.S.2d 709, 716, affirmed 306 N.Y. 966, 120 N.E.2d 227): 'the only conclusion which logically follows is that the employee is without any remedy, except as against his own union, if he claims that the union mishandled the arbitration proceeding or improperly failed to move to vacate the award. If this conclusion is reached upon the premise here set forth, this is not an exaltation of procedure over substance; it rests rather upon a proposition of substantive law limiting the right of the individual employee under a collective bargaining agreement.''

It is manifest that plaintiffs cannot maintain this independent action but were required to proceed by way of arbitration as required by the provisions of the collective bargaining agreement.

If the plaintiffs are seeking to enforce the award of the Joint Local (Grievance) Committee dated November, 1957, which is annexed to the complaint as Exhibit 'A', then the Court similarly does not have any jurisdiction over the subject matter of this action. The Municipal Court does not have jurisdiction to enforce the award of an arbitrator. With respect to arbitration, the power of the Municipal Court is limited to granting a stay of proceedings in a pending action where there is an agreement between the parties to arbitrate and pursuant to Section 6 of the New York City Municipal Court Code to enforce the award of an arbitrator where the arbitration has been conducted in accordance with a system of conciliation and arbitration established by the Court. The award of the Joint Local (Grievance) Committee was not rendered pursuant to a system of conciliation and arbitration of this Court and accordingly, the Court does not have jurisdiction to enforce the award.

The complaint must be dismissed as a matter of law because this Court does not have jurisdiction of this action. Plaintiffs' contention that this objection has been waived because of its appearance in this action is without merit. Pursuant to Rule 107 of the Rules of Civil Procedure, a motion to dismiss because of lack of jurisdiction over the subject matter of an action may be made at any time prior to trial.

Assuming once again, that plaintiffs are seeking to recover benefits accruing to them under the terms of the collective bargaining agreements between the defendant and Local 445, then the action is barred by the failure of plaintiff to assert them in time....