American Broadcasting Companies, Inc. v. Roberts

93 A.D.2d 296, 461 N.Y.S.2d 816, 1983 N.Y. App. Div. LEXIS 17119

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1983
• Status: Published

Opinions

OPINION OF THE COURT

Kupferman, J.

The Commissioner of Labor and the Industrial Board of Appeals (IBA) appeal from a judgment rendered in a CPLR article 78 proceeding which annulled a notice of Labor Law violation and order to comply with subdivision 3 of section 162 of the Labor Law,¹ as modified by the IBA, which the Commissioner had issued to petitioner-respondent, American Broadcasting Companies, Inc. (ABC). We affirm.

Respondent ABC employs members of the National Association of Broadcasting Employees and Technicians (NA-BET) as editors, engineers, and couriers, pursuant to the terms of a collective bargaining agreement entered into with NABET which is the exclusive bargaining agent of such employees nationwide.

Under the terms of that agreement, detailed provisions, tailored to meet the exigencies of the telecommunications industry, insure that ABC’s employees are afforded adequate rest periods and meal breaks. (See NABET-ABC master agreement 1977-1981 [still in effect], art A-VIII, § A8.3.;² art A-IX, § A9.1;³ art VIII, § 8.10 [b].)⁴

There is no contention that these contractual provisions have not been complied with. In the event that an employee is required to forego the contractual rest period, overtime and penalty payments are provided for in the contract.

The Commissioner ordered ABC to provide an additional meal period of at least 20 minutes between the hours of 5:00 and 7:00 p.m. to all employees working a shift that started before noon and continued past 7:00 p.m. The IBA modified the Commissioner’s order to apply only to employees scheduled to work a shift beginning before noon and continuing past 7:00 p.m.

In annulling the notice and order, Special Term held that the employees had waived their rights under the statute by entering into the collective bargaining agreement negotiated by NABET on their behalf. For the proposition that the statute was susceptible of waiver, Special Term relied on Matter of Cruz (Amsterdam Nursing Home Corp. — Ross) (79 AD2d 1081, affd 55 NY2d 918). In that case, the Court of Appeals, in construing subdivision 4 of section 162 of the Labor Law, stated that there was nothing in the statute which precluded a waiver of its benefit by an employee (supra, at p 920). As Special Term stated, if an individual employee can waive the statutory benefit, then surely a group of employees also may waive the benefit through their exclusive bargaining agent.

The waiver of the specific meal period provided for in the statute does not contravene the public policy expressed in subdivision 3 of section 162 of the Labor Law. The provisions of the collective bargaining agreement noted above amply safeguard the health and well-being of ABC’s technical employees. Nothing in the legislative history indicates that the specific period between 5:00 and 7:00 p.m. was of any concern. This is a peak period in the operations of the ABC network as it prepares for the evening’s news broadcast. The waiver here effected is not a relinquishment of the statutorily required rest periods, but merely a readjustment of the scheduling of such periods to meet the operational needs of the industry.

The provision of law involved was originally enacted in 1909⁵ at a time when the industrial revolution made protective measures for working people a necessity. One does not today monitor a trip to the moon with a 5:00 to 7:00 p.m. meal period. The provisions which the parties themselves have evolved by contract are reasonable and more than satisfy the needs of the employees consistent with good business practices. Superimposing an outmoded schedule serves no Labor Law purpose.

Accordingly, the judgment of the Supreme Court, New York County (McQuillan, J.), entered November 10, 1982, which annulled a decision of appellant Industrial Board of Appeals dated January 28, 1982, should be affirmed, without costs.

1 . Ҥ 162. Time allowed for meals * * *

“3. Every person employed for a period or shift starting before noon and continuing later than seven o’clock in the evening shall be allowed an additional meal period of at least twenty minutes between five and seven o’clock in the evening.”

2 . That section provides: “In the event an employee remains on duty for a period longer than ten (10) hours a second meal period of thirty (30) minutes shall be scheduled not earlier than four (4) elapsed hours after the end of the first meal period [section 9.1 of article IX provides that a meal period not to exceed one hour shall be taken as near the middle of the shift as possible] and not later than his twelfth (12th) hour of tour and the Company shall pay to such employee his rate of pay at time and one half for such time taken off for the second meal period. An additional period of thirty (30) minutes shall be scheduled after each four (4) hours of work beyond the twelfth (12th) hour and shall be paid at time and one half.”

3 . “article a-ix

“Rest Periods

“Section A9.1

“It is the intention of the Company to continue the practice of granting a reasonable rest period during television program rehearsals or a reasonable relief period for each job function during an extended television broadcast such as a football game whenever possible to do so.”

4 . “Section 8.10 — Excessive Assignments * * *

“(b) The Company shall refrain from assigning employees for continuous excessive hours of work resulting in excessive mental and physical strain. In the event the Company does so assign employees, it is agreed that the matter shall be subject to the grievance procedure, and the Company shall give such grievance its immediate attention.”

5 . See historical note to section 162 of the Labor Law (McKinney’s Cons Laws of NY, Book 30, pp 91-92).