Opinion
Argued January 8, 1976
Decided February 19, 1976
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, EDWARD J. GREENFIELD, J.
Seymour L. Colin, P.C., for appellant. W. Bernard Richland, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for respondents.
MEMORANDUM. Prior to her retirement on March 1, 1975, plaintiff held the position of Assistant Director, Child Welfare, in the Department of Social Services of the City of New York. Until January 1, 1971, her potential retirement and pension benefits were governed by certain regulations known as the "Career and Salary Plan". Although her title and responsibilities apparently remained unchanged, on July 1, 1971, made retroactively effective to January 1, 1971, the retirement and pension benefits for persons with her title were removed from the "Career and Salary Plan" and became governed by the "Managerial Pay Plan" which had been established in 1969. Plaintiff, contending that she had vested rights in the "Career and Salary Plan" and that through this plan she would have been entitled to greater pension and retirement benefits, brought this action to recover such additional benefits which she alleged would have been available to her under that plan.
Without otherwise passing on the merits of plaintiff's action, we hold that any claim that she may have had for the benefits under the "Career and Salary Plan" had been effectively waived by an agreement made by her collective bargaining representative and by her own actions. At all relevant times she was represented by the Senior Social Service Administrators Association, which in 1969 entered into a collective bargaining agreement with the city and the Department of Social Services. This agreement, inter alia, provided that "[t]he Union * * * agrees, that it will not object or intervene in any way, and further, will join with the City in any petition requesting the Board of Certification of the Office of Collective Bargaining to declare the titles covered by this agreement as managerial in nature and not subject to further collective bargaining, effective as of the termination of this contract." This agreement terminated December 31, 1970. Thereafter, as contemplated by this agreement, plaintiff's title was transferred to the "Managerial Pay Plan", effective January 1, 1971.
Plaintiff, having designated the union to be her agent for collective bargaining purposes, is bound by agreements made by that union on her behalf. She may not reject certain acts of her bargaining representative and accept others. (Matter of New York Times Co. [Newspaper Guild of N.Y.], 2 A.D.2d 31, 33.) Since this waiver is not against public policy, there is no bar to plaintiff's or the union's waiver of the allegedly greater retirement and pension benefits available under the "Career and Salary Plan". (See Rosen v New York City Teachers' Retirement Bd., 282 App. Div. 216, affd 306 N.Y. 625.) We also note that from January 1, 1971, until her retirement, plaintiff apparently accepted and enjoyed at least one increased benefit, a higher salary, available to her under the "Managerial Pay Plan".
Accordingly, the order of the Appellate Division should be affirmed.
I do not believe the record before us justifies a summary finding of waiver by the petitioner or those similarly situated. Accordingly, I would vote to reverse and order a hearing.
The waiver here would encompass the surrender by a civil servant, after a lifetime of service and attainment of eligibility for retirement, of what appears to have been earned, vested rights valued at an amount exceeding $16,000. The waiver of such constitutionally protected rights should be clear and certain (cf. Johnson v Zerbst, 304 U.S. 458).
The collective bargaining agreement, as is evident from its quotation in the majority's memorandum, speaks of no such waiver. The Managerial Pay Plan's Leave Regulations, relied upon for the divesting, were not adopted until nearly two years later. As the situation presented itself at the time of the making of the agreement, it might have been reasonable to infer that it was intended that fringe benefits to be earned in futuro were subject to change by later regulations, but it seems to me that the burden of persuading a court that the bargaining agent, and much more so the employees affected, knew or should have known that the waiver of rights already earned and vested were intended to become subject to unilateral divestiture by the employer should, in all fairness, have been shouldered by the city.
That view appears to be all the more compelling since the agreement's contemplation of the employees' shift to managerial status meant that the bargaining agent was thereby also reading itself out of existence so that once the managerial shift took place, it would no longer be in a position to intervene in any dispute arising out of the future application of the agreement. Significantly, there was thereby introduced into the negotiations an element, if not of conflict of interest, certainly of disinterest on the part of the agent with whom the city dealt. Moreover, the very small salary increase, which the majority notes accompanied the recognition of managerial status, was entirely too unremarkable an item for it to support a claim that its acceptance constituted consent to the forfeitures which the city now seeks to impose. Indeed, appellant's letter of February 22, 1971 to the General Counsel of the Civil Service Commission indicates quite the contrary.
Rosen v New York City Teachers' Retirement Bd. ( 282 App. Div. 216, affd 306 N.Y. 625), cited by the majority, is distinguishable. It was one of a triad, the others being Carroll v Grumet ( 281 App. Div. 35, app dismd 305 N.Y. 692) and White v Hussey ( 275 App. Div. 714). Involved there was a clear and unequivocal understanding that a cost-of-living bonus was not to be considered salary in calculating an employee's pension. Absent unequivocal agreement or waiver, however, "the increments would have been a proper component of base salary" (Matter of Hessel v New York City Employees' Retirement System, 33 N.Y.2d 381, 386 [GABRIELLI, J.]).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and COOKE concur; Judge FUCHSBERG dissents and votes to reverse in a separate opinion.
Order affirmed, with costs, in a memorandum.