Bilinski v. Delco Appliance Division, General Motors Corp.

23 A.D.2d 805, 258 N.Y.S.2d 61, 59 L.R.R.M. (BNA) 2125, 1965 N.Y. App. Div. LEXIS 4559

Opinion

Order unanimously affirmed, without costs of this appeal to either party. Memorandum: In this action by an employee against his employer for damages for wrongful discharge in violation of a collective bargaining agreement, Special Term dismissed the complaint upon the authority of Parker v. Borock (5 N Y 2d 156) and Matter of Soto (Goldman) (7 N Y 2d 397) holding that the employee has no individual rights under ¡the contract which he can enforce against the employer, save through the contractual bargaining agent, the union. We affirm the dismissal upon the ground that when a grievance procedure is set up in the collective bargaining contract, and the grievance asserted by the employee is within the scope of that procedure, he cannot maintain an action at law against his employer without alleging that he has attempted to use the contractual method of settlement. (Republic Steel v. Maddox, 379 U. S. 650.) Plaintiff’s complaint lacks any such allegation and is therefore insufficient. We recognize however that there may be instances in which an action by an individual employee could be maintained. (See Humphrey v. Moore, 375 U. S. 335.) (Appeal from an order of Monroe Special Term granting defendants’ motion to dismiss the complaint.) Present —Bastow, J. P., Goldman, Henry, Noonan and Del Veeehio, JJ.