10 A.D.2d 881 | N.Y. App. Div. | 1960
In an action by a former employee of the defendant to recover damages for breach of the terms of employment, the defendant appeals from an order of the County Court, Orange County, dated April 20, 1959, denying its motion for summary judgment dismissing the complaint. Order affirmed, with $10 costs and disbursements. In our opinion, pursuant to the vacation plan for wage-roll employees, respondent, upon his discharge, was entitled to the remaining week of vacation pay, unless prior to the time he was scheduled to receive such pay he had been discharged “for cause”. There is an issue of fact, among others, as to whether the discharge was for cause within the meaning of the vacation plan and the collective bargaining agreement made between the appellant and the labor union. In our opinion, the respondent has a right to sue his employer upon this claim and he was not relegated to an arbitration proceeding as contended by the appellant. The collective bargaining agreement did not, expressly or impliedly, incorporate by reference the vacation plan; nor did said agreement subject the vacation plan to the terms and provisions of the agreement. In addition, said agreement did not restrict the respondent to an arbitration proceeding in the enforcement of his claim based upon the vacation plan. Ughetta, Kleinfeld, Pette and Brennan, JJ., concur; Nolan, P. J., concurs in result.
