51 A.D.2d 288 | N.Y. App. Div. | 1976
Plaintiffs (hereinafter referred to as the Sanitationmen’s Association) brought the instant action to declare their rights under the collective bargaining agreement with the defendant City of New York (hereinafter referred to as the City) and for injunctive relief. The impetus to this lawsuit arose in the summer months of 1975, when the City an
A brief history of this litigation is now set forth: the Sanitationmen’s Association’s motion for a preliminary injunction was granted by Special Term (Tyler, J.) on June 27, 1975, and the City appealed, thereby securing an automatic stay of Special Term’s order (CPLR 5519, subd [a]). The motion by the Sanitationmen’s Association to vacate the automatic stay was denied by this court on June 30, 1975, two Justices (Kupferman and Murphy, JJ.) dissenting on the basis of maintenance of the status quo to avoid irreparable harm (DeLury v City of New York, 48 AD2d 405). It was recognized by the entire Bench, either explicitly or implicitly, that a trial was neces
Article III of the agreement is entitled "Salaries”. There is no provision listed in the collective bargaining contract as "Job Security”. It was found significant by the trial court (applying the rule of practical construction to the contract clause at issue) to contrast plaintiffs’ interpretation of section 1 of article III as giving a job guarantee with the failure of the union at any time since 1949 in publications or elsewhere to assert that it had secured guaranteed job security as a result of said section and its predecessors. The trial court found as a fact that there was no discussion of the union claim of guaranteed job security under section 1 during the 1974 negotiations which culminated in the agreement. He also concluded that said section and its predecessors back to 1949 were never intended to impose on the city a contractual guarantee of job security, but were merely adopted to eliminate the cumbersome procedures of section 220 of the Labor Law and to establish a formula for compensation on the basis of an annual wage. There is support in the record for these
Further, assuming that section 1 of article III is clear or unambiguous on its face, it is nevertheless subject to parol testimony explaining the intent of the parties when they drafted such provision because of the presence of the Administrative Code section cited above. This circumstance, observed in conjunction with the collective bargaining agreement, raises the issue of latent ambiguity. It is also noted that this litigation must pragmatically be viewed against the background of the well-publicized financial crises facing the City of New York. The time-honored contractual principles of frustration of contract and impossibility of performance raised by the spectre of a city unable to meet its contractual obligations imbue this entire area with broad policy considerations. Indeed, subdivision b of section 1173-4.3 of the Administrative Code may be construed as enunciating such public policy considerations. In Matter of Schwab v Bowen (80 Misc 2d 763, 765) it was noted that the Public Employment Relations Board has held on more than one occasion "that the reduction of a work force for economic reasons does not constitute a term or condition of employment and, so, is not a proper subject for collective bargaining between a public employer and an employee organization”. That court was of the opinion that it would be highly improper to permit a municipality to commit itself to a particular number of employees for a multiyear period despite the economic condition of said municipality.
The reliance by the Sanitationmen’s Association on Kunz v City of New York (286 App Div 252, affd 3 NY2d 834) is misplaced. Plaintiffs merely stress language in the City’s briefs in that case which corroborates their contention that the City in entering into section 1 of article III guaranteed employment. Scrutiny of this court’s opinion in Kunz shows that the determination was based on the conclusion that the City was wrong in 1945 in hiring provisionals to perform the work that would have been done by the plaintiffs (crane engineermen employed by the New York City Department of Sanitation). However, it was noted that the crane engineer-men had failed to take action for some time to correct the wrong and to that extent had acquiesced in the situation. It was thus held that there was no breach of contract by the City
Parenthetically it is noted that the rule "salus populi est suprema lex” (the welfare of the people is the highest law) involves a principle of police power that "amounts to a recognition that society has a right which corresponds to the right of self-preservation in the individual, and it rests upon necessity because there can be no effective government without it” (9 NY Jur, Constitutional Law, § 148). A municipality, in matters of local concern and premised on a proper delegation of police power, has no more power that the State to divest itself of the right to exercise that police power. As a corollary, it is recognized that rights of contract are "subject to the proper exercise of the police power of the state, and the constitutional protection afforded contracts does not bar a valid exercise of that power” (9 NY Jur, §§ 156, 172). The United States Supreme Court has declared that "[n]ot only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile,—a government which retains adequate authority to secure the peace and good order of society” (Home Bldg. & Loan Assn, v Blaisdell, 290 US 398, 435). On another occasion, the United States Supreme Court stated: "But into all contracts, whether made between States and individuals, or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the preexisting and higher authority of the laws of nature, of nations or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount, wherever a necessity for their execution shall occur” (Long Is. Water Supply Co. v Brooklyn, 166 US 685, 692).
Subdivision b of section 1173-4.3 of the Administrative Code of the City of New York is limned against the background of the police power. At this point note is taken that the Court of
Examination of the record and recognition of the impact of this court’s prior decisions warrant the conclusion that Trial Term’s determination must be upheld. Relevant to plaintiffs’ claim that the City must discharge all provisional, exempt and noncompetitive employees before laying off sanitationmen, Trial Term pertinently observed that in this unprecedented financial crisis, no authority, statutory or otherwise, was presented mandating the judiciary, to define the order of priority in layoffs. As a general proposition we agree with Justice Mertens’ declaration that the City’s chief executive has the power to determine the order of priorities in the discharge of municipal employees.
Finally, plaintiffs-appellants contend that they were granted leave to place in issue their claim for restoration of $1,600,000 placed by them with the City as a bond pursuant to a stipulation entered into after this court reversed Justice Tyler's grant of preliminary injunctive relief and directed an immediate trial. They assert that they have the right to have this court consider their claim because they were granted leave to amend their complaint at trial. Examination of the transcript of the proceedings discloses that the trial court never allowed this claim. It merely granted the plaintiffs’ motion to conform the pleadings to the proof to the limited extent of bringing the economic factors and lay-off factors up to date. It is patent that Trial Term was not charged with the duty of deciding issues with respect to the parties’ rights to the $1,600,000.
The judgment of the Supreme Court, New York County (Mertens, J.), entered August 1, 1975, should be affirmed, without costs and disbursements, and without prejudice to any
Kupferman J.P., Murphy, Birns and Lane, JJ., concur.
Judgment, Supreme Court, New York County, entered on August 1, 1975, unanimously affirmed, without costs and without disbursements, and without prejudice to any claims the union may be advised to assert under its agreement with the City of July 11, 1975, pertaining to the $1,600,000.