101 Misc. 2d 356 | N.Y. City Civ. Ct. | 1979
OPINION OF THE COURT
In 1975, the City of New York was faced with a serious economic and financial crisis. To create a climate which would justify sorely needed Federal aid, the city entered into written agreements with unions representing hundreds of thousands of employees to defer "for one year” various increases covering the period June 30, 1975 through June 30, 1976. In return, the city agreed not to lay off for economy reasons any full-time per-annum employees covered by the agreement for the period commencing September 1, 1975 and ending August 31, 1976. These wage deferral agreements modified existing collective bargaining agreements. One such wage deferral agreement was entered into between the city and plaintiff’s union, effective August 31, 1975. At that time, plaintiff was a court clerk employee of the city and would have been entitled to be paid the deferred wage increases but for the wage deferral agreement. On April 1, 1977, the date of the State take-over of the court system, plaintiff’s service with the city automatically terminated and he became, as he is today, a State employee performing the same court clerk duties he previously performed as a city employee. Under the wage deferral agree
Preliminarily, the city moves also to have this action "transferred out of Small Claims Part and into the Civil Court itself’ because "although plaintiff’s claim falls within the Small Claims Part jurisdictional limit, the complexity of the action” claims the city, "renders it inappropriate for the informal and simplified procedure employed by the Small Claims Part”. However, when the city filed a jury demand, the action was automatically transferred to the regular part of the civil court. The filing of the jury demand did not change the small claims character of the action. (De Nicola v Pallas, 82 Misc 2d 156.) And, this court’s ability to deal with the acknowledged complexities of this action (all issues of law) is to no extent hampered by the action continuing to retain its small claims character. Accordingly, this portion of the city’s motion is denied as unjustified and unnecessary. The action shall continue to retain its small claims character and remain in the regular part of the civil court.
The issue whether the deferral terminated or still exists is as vexing as it is complex. Section 3 of article I of the deferral agreement provides that "in case there is any uncertainty as to whether there is an actual conflict or inconsistency” with respect to provisions of the agreement "any determination with regard to the matter shall be based upon the spirit and purpose of this agreement.” That spirit and purpose was clearly to help the city out of its fiscal crisis.
In section 1 of article II, the agreement states that the wage increases "shall be deferred for a period of one year.” Then, in section 2 of article II, the agreement states that the deferred increases "shall be paid” at the time provided for in article III and in accordance with sections 4, 5 and 6 of that article. Section 1 of article III provides that "By June 30, 1978, the
It is thus clear that the city seeks to impose upon this court an interpretation that the wage deferral was intended to be long-range rather than short-range. Yet, everything about the wage deferral agreement is short-range in intent as well as
As to the third condition, Mr. Toia states first that "no savings have been identified with respect to the Employer Deferral Liability Account for the 1977-78 fiscal year”; and, then he concludes, saying: "as the conditions for repayment have never been satisfied, there was never an obligation to credit funds to this account.” The conditions for repayment are thus solely under the control of a city which publicly proclaims that it never had an obligation to satisfy them. This last condition was so unconscionable that the arbitration/ impasse panel eliminated it entirely from the reformation of the wage deferral agreement before it.
What the city has done is to create an appearance of ambiguity as to time of termination of the deferral by torturing and misrepresenting as long-range the true contract meaning of the conditions. On the other hand, construing the same conditions short-range would create no ambiguity and would clearly be within the spirit and purpose of the wage deferral agreement.
Must the conclusions of the arbitration/impasse panel be binding upon this court? Let us see. First of all, they were rendered in an entirely different matter, in which the panel functioned not only as an arbitration panel interpreting the original wage deferral agreement but also as an impasse panel with the right to fashion a new contract provision for inclusion in a new economic agreement. The panel’s conclusions were reached after the panel reformed the original wage deferral agreement. It then went on to fashion an award which continued the deferral but also provided an adequate consideration for such continuance in the new economic agreement. While the agreement it passed upon has been said by the city to be identical to the one before this court, it has not been produced and is not part of the record and this court cannot hold that it is identical. Finally, neither plaintiff nor his union were parties to the arbitration/impasse proceeding. Accordingly, plaintiff’s objection that the panel’s conclusions
Nor, did the wage deferral agreement between the city and plaintiffs union contain anything expressly or impliedly indicating an intent to forfeit the right to eventual payment of the deferred wage increases. Section 3 of article II of the agreement, for instance, included the amount of the deferred wage increases for the purpose of computing retirement allowances;. and, section 6 of article III protected the right of eventual payment for affected employees "whether or not such employees are in employer service at the time of payment.”
The foregoing does much to expose the insincerity of the city’s position. This court takes judicial notice of current wage increases just voted for the highest level officials of the city administration without any preconditions to payment. (New York City Council Intro No. 713, eff July 1, 1979); and, of the following joint public statement of the City’s Mayor and Comptroller (New York City Daily News, Aug. 15, 1979): "The city finished fiscal 1979 with $200 million more than expected * * * The bulk of the extra cash flow resulted from a surplus of $117 million in the city’s contingency reserve which was never used.” Plaintiffs claim in this action is less than $1,000. The belated payment of this deferred wage increase for June 30, 1975 to June 30, 1976, can be paid out of whatever funds are available to pay the newly voted wage increases, or from newly found funds, whatever their origin, and through whatever accounting gimmickry they are derived. The city has not contended that it is now financially unable to pay plaintiffs deferred wage increase claims. If, therefore, it has the funds to pay plaintiffs claim, then the insistence upon compliance with the conditions is both pernicious and reprehensible.
If the deferral was intended to continue indefinitely beyond June 30, 1978 because the deferral agreement was ambiguous, as the arbitration/impasse found and as the city now asks this court to adopt, then the union did not adequately protect the rights of plaintiff and his coemployees. Admitting this as a probability, the city now cavalierly suggests that plaintiff has no standing to sue it directly under collective bargaining concepts, but, if plaintiff is aggrieved, that his sole remedy is a suit against the union for breach of
The anomaly of this situation was expressed most poignantly, albeit crudely, by plaintiff when he exclaimed of his motion hearing that he is "getting a hosing”. Here is an employee who is entitled to a wage increase, but his employer, the City of New York, being in deep financial trouble, asks plaintiff’s union to promise on behalf of plaintiff and many thousands of his fellow employees to forbear the employees’ claims to the wage increases to help it out of its fiscal emergency. Plaintiff does not like his union, but, like it or not, he is required by the mystique of collective bargaining to abide by their representation of his rights in the matter. In doing this, the union does not consult him individually but enters into an agreement under which his wage increase is deferred. The agreement calls for a deferral for one year but then provides for payment of the wages at a time longer than the one year, namely "by June 30, 1978”. June 30, 1978 comes and goes. The city does nothing. His union does nothing. He therefore brings this action against the city. Now, the city, lifting up the veil of innocence, charges that, he either forfeited his right to the wage increases or that if he did not, his right is suspended indefinitely until the city (which clearly does not want to pay the obligation) complies with conditions which are completely within its own control. The reason for this the city tells him is that his own union entered into an ambiguous wage deferral agreement on his behalf, and he is therefore helpless to do anything about it unless he chooses to sue his union for breach of a fiduciary relationship. This, says plaintiff is a "hosing” — and who can disagree with him?
However, subsequent to Parker v Borock (supra) the Supreme Court of the United States, in Vaca v Sipes (386 US 171) opened the door to direct suit by an employee beneficiary against the employer where the union breached the fiduciary relationship through conduct amounting to bad faith, arbitrariness or the processing of employee rights in a perfunctory manner. (See, also, Hines v Anchor Motor Frgt., 424 US 554; Jackson v Regional Tr. Serv., 54 AD2d 305, 308; Wingenbach v Mushroom Transp. Co., 51 AD2d 855; Matter of Union Free School Dist. No. 6 v New York State Div. of Human Rights, 43 AD2d 31, 35.) If, under the foregoing concepts, the union has entered into an ambiguous agreement which leaves this em
A promise to defer a claim has been reflected in statutory and case law either as a promise to forbear or as an executory accord. To make forbearance a valid consideration requires a binding agreement to forbear for a definite time, or if the promise to forbear is to continue until the occurrence of a certain act, to forbear for a time reasonably long enough for the act to be done. (Strong v Sheffield, 144 NY2d 392; Trader’s Nat. Bank v Parker, 130 NY 415; Perkins v Proud, 62 Barb 420; Jamaica Tobacco & Sales Corp. v Siegel, 40 AD2d 686.) If the promisor prevents the occurrence of the condition he is
This court concludes that the deferral agreement no longer bars this claim, having run its course, and since more than a reasonable time has elapsed since it ran its course, this claim is now unconditional.
The duty of this court in a small claims action, as defined in section 1804 of the New York City Civil Court Act, is "to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence”, except as to statutes and communications not pertinent here. Responsive to that duty, this court concludes that to grant the city’s motion to dismiss on grounds that the complaint fails to state a cause of action would be to dispense substantial