Per Curiam.
This is an appeal from an order of the Supreme Court, Special Term, New York County (Tyler, J.), which was entered on June 27, 1975, granting a preliminary injunction enjoining and restraining the defendants from: (1) dismissing or separating from employment in any way any person who was, on July 1, 1974, employed and who, at the time of the commencement of this action, June 17, 1975, continued to be employed in the title of sanitationman, except for good cause, and, in accordance with law; and (2) violating or breaching in any way the terms and conditions of the agreement entered into as of July 1, 1974, between the City of New York and the Uniformed Sanitationmens’ Association, Local 831, I.B.T. The order further provided that plaintiffs’ undertaking be fixed in the sum of $1,000,000, on the condition that the plaintiffs, if it is finally determined that they were not entitled to injunctive relief, pay to the defendants all damages and costs which may be sustained because of the injunction.
Prior to the argument of this appeal, this court, by a majority vote, had denied a motion by the plaintiffs-respondents to vacate the statutory stay (CPLR 5519, subd [a], par 1) of the temporary injunction issued below (DeLury v City of New York, 48 AD2d 405). An examination of the court’s opinion, rendered on that motion, discloses that much of it applies to the resolution of the questions presented on this appeal.
In any situation where an application is made for a temporary injunction, it is clearly established law that the applicant must demonstrate a clear legal right to the relief sought and, further, that the denying of the relief sought would result in irreparable injury to the applicant. As was stated in De Candido v Young Stars (10 AD2d 922): "A temporary injunction should not be granted unless the plaintiff shows a clear legal right thereto and, in addition, shows that he would be irreparably damaged if an injunction were not granted before trial”. (Also, see: Barricini v Barricini Shoes, 1 AD2d 905; Park Terrace Caterers v McDonough, 9 AD2d 113.)
In this last-cited case this court, in reversing so much of an order of Special Term as granted a temporary injunction restraining a union from picketing the premises of plaintiffs, said (p 114): "The drastic remedy of temporary injunction is not to be granted unless a clear right to the relief demanded is established upon the moving papers. The burden of estab[597]*597lishing such an undisputed right is upon plaintiff [citing cases].”
Again, in Cohen v Department of Social Servs. of State of N Y. (37 AD2d 626, affd 30 NY2d 571), an order enjoining the defendants from, amongst other things, laying off employees, was reversed, the Appellate Division stating: "It is our view that the motion for a preliminary injunction must be denied, as plaintiffs have not made out a clear right to the relief demanded * * * Further, plaintiffs have not demonstrated that they will be irreparably harmed in the event the preliminary injunction is not granted * * * The State, in its brief, has conceded that plaintiffs will be entitled to reinstatement and back pay in the event they ultimately prevail.”
Bearing in mind the rules above discussed, we come now to the issues between these parties. The plaintiffs argue, amongst other things, that, because this case involves a collective bargaining agreement, it stands in a different position before the law than would a case which deals with nonlabor agreements and that the courts have "historically and consistently” applied a different standard. In support of this proposition the plaintiffs have cited five cases, all of which have been examined and will be taken up seriatim.
We start with Schlesinger v Quinto (201 App Div 487), and we note that the case involved a violation of a collective bargaining agreement in that the employers therein attempted to change the payment of wages, to the members of the union, from the week-work system to the piece-work system. Under the circumstances the court properly approved the granting of an injunction pendente lite to the union. The court specifically found that the excuse offered by the employer was no justification for breaching its contract, saying (p 499): "Is [sic] is urged that, by reason of changes in the expense of living and the condition of unemployment, the terms have become onerous, and the expense of production makes the business unprofitable to the manufacturer. This excuse for the non-performance of a contract has within the last few years been frequently presented to the courts, but has never been accepted. Unless the parties have stipulated, in terms, for relief because of changed conditions, they must perform their contract as it is written.” It must be remembered that this was a collective bargaining agreement between the International Ladies’ Garment Workers’ Union, which, at that time (1922), had a membership of about 150,000 in all [598]*598parts of the United States, and the Cloak, Suit and Skirt Manufacturers’ Protective Association, an association of employers. Surely the case at bar is in no way comparable to this last-cited case. It would be a fine state of affairs if a party to a collective bargaining agreement could breach it at will, simply because its profits were insufficient.
We next consider Goldman v Cohen (222 App Div 631). The situation before the court in this cited case involved a threatened lockout and the opening of a nonunion shop, in violation of a contract between the parties whereby the defendants had agreed to hire union labor, to be supplied by the plaintiff, and not to order a lockout pending the determination of any grievances. Of course, an injunction pendente lite was quite proper. It is interesting to note the language of the court, at page 634 of its opinion: "It is not every breach of a contract which a court of equity will enjoin. Only in so far as it is shown that the particular breach has been threatened and that the remedy at law is inadequate and the damages irreparable, will a court of equity intervene.”
In Murphy v Ralph (165 Misc 335), the court dealt with a situation where the defendants repudiated the agreement by employing nonunion men, in violation of the contract. Again, a different situation than that presented in the case at bar.
In Ribner v Racso Butter & Egg Co. (135 Misc 616), again the court dealt with a situation involving a contract between the parties under which the defendant had agreed to exclusively employ union men, in good standing, and to immediately discharge any person who had ceased to be a member of the union. The defendant, in violation of the agreement, did not deny that he employed persons not members of the plaintiff union and the court properly held that an injunction pendente lite was the only adequate remedy in the case, because plaintiff’s injury was a continuous one and irreparable. Surely not the situation presented in the case at bar.
Finally, the defendants cite Suttin v Unity Button Works (144 Misc 784). In that case the situation presented was that of an employer discharging members of the union and hiring others who were not union members, in violation of the contract. The court said (p 785): "When the harm resulting from illegal conduct is continuous and involves more than loss of money, equity may step in and restrain the continuing perpetration of wrong.” The court then properly granted an injunction pendente lite.
Free access — add to your briefcase to read the full text and ask questions with AI
Per Curiam.
This is an appeal from an order of the Supreme Court, Special Term, New York County (Tyler, J.), which was entered on June 27, 1975, granting a preliminary injunction enjoining and restraining the defendants from: (1) dismissing or separating from employment in any way any person who was, on July 1, 1974, employed and who, at the time of the commencement of this action, June 17, 1975, continued to be employed in the title of sanitationman, except for good cause, and, in accordance with law; and (2) violating or breaching in any way the terms and conditions of the agreement entered into as of July 1, 1974, between the City of New York and the Uniformed Sanitationmens’ Association, Local 831, I.B.T. The order further provided that plaintiffs’ undertaking be fixed in the sum of $1,000,000, on the condition that the plaintiffs, if it is finally determined that they were not entitled to injunctive relief, pay to the defendants all damages and costs which may be sustained because of the injunction.
Prior to the argument of this appeal, this court, by a majority vote, had denied a motion by the plaintiffs-respondents to vacate the statutory stay (CPLR 5519, subd [a], par 1) of the temporary injunction issued below (DeLury v City of New York, 48 AD2d 405). An examination of the court’s opinion, rendered on that motion, discloses that much of it applies to the resolution of the questions presented on this appeal.
In any situation where an application is made for a temporary injunction, it is clearly established law that the applicant must demonstrate a clear legal right to the relief sought and, further, that the denying of the relief sought would result in irreparable injury to the applicant. As was stated in De Candido v Young Stars (10 AD2d 922): "A temporary injunction should not be granted unless the plaintiff shows a clear legal right thereto and, in addition, shows that he would be irreparably damaged if an injunction were not granted before trial”. (Also, see: Barricini v Barricini Shoes, 1 AD2d 905; Park Terrace Caterers v McDonough, 9 AD2d 113.)
In this last-cited case this court, in reversing so much of an order of Special Term as granted a temporary injunction restraining a union from picketing the premises of plaintiffs, said (p 114): "The drastic remedy of temporary injunction is not to be granted unless a clear right to the relief demanded is established upon the moving papers. The burden of estab[597]*597lishing such an undisputed right is upon plaintiff [citing cases].”
Again, in Cohen v Department of Social Servs. of State of N Y. (37 AD2d 626, affd 30 NY2d 571), an order enjoining the defendants from, amongst other things, laying off employees, was reversed, the Appellate Division stating: "It is our view that the motion for a preliminary injunction must be denied, as plaintiffs have not made out a clear right to the relief demanded * * * Further, plaintiffs have not demonstrated that they will be irreparably harmed in the event the preliminary injunction is not granted * * * The State, in its brief, has conceded that plaintiffs will be entitled to reinstatement and back pay in the event they ultimately prevail.”
Bearing in mind the rules above discussed, we come now to the issues between these parties. The plaintiffs argue, amongst other things, that, because this case involves a collective bargaining agreement, it stands in a different position before the law than would a case which deals with nonlabor agreements and that the courts have "historically and consistently” applied a different standard. In support of this proposition the plaintiffs have cited five cases, all of which have been examined and will be taken up seriatim.
We start with Schlesinger v Quinto (201 App Div 487), and we note that the case involved a violation of a collective bargaining agreement in that the employers therein attempted to change the payment of wages, to the members of the union, from the week-work system to the piece-work system. Under the circumstances the court properly approved the granting of an injunction pendente lite to the union. The court specifically found that the excuse offered by the employer was no justification for breaching its contract, saying (p 499): "Is [sic] is urged that, by reason of changes in the expense of living and the condition of unemployment, the terms have become onerous, and the expense of production makes the business unprofitable to the manufacturer. This excuse for the non-performance of a contract has within the last few years been frequently presented to the courts, but has never been accepted. Unless the parties have stipulated, in terms, for relief because of changed conditions, they must perform their contract as it is written.” It must be remembered that this was a collective bargaining agreement between the International Ladies’ Garment Workers’ Union, which, at that time (1922), had a membership of about 150,000 in all [598]*598parts of the United States, and the Cloak, Suit and Skirt Manufacturers’ Protective Association, an association of employers. Surely the case at bar is in no way comparable to this last-cited case. It would be a fine state of affairs if a party to a collective bargaining agreement could breach it at will, simply because its profits were insufficient.
We next consider Goldman v Cohen (222 App Div 631). The situation before the court in this cited case involved a threatened lockout and the opening of a nonunion shop, in violation of a contract between the parties whereby the defendants had agreed to hire union labor, to be supplied by the plaintiff, and not to order a lockout pending the determination of any grievances. Of course, an injunction pendente lite was quite proper. It is interesting to note the language of the court, at page 634 of its opinion: "It is not every breach of a contract which a court of equity will enjoin. Only in so far as it is shown that the particular breach has been threatened and that the remedy at law is inadequate and the damages irreparable, will a court of equity intervene.”
In Murphy v Ralph (165 Misc 335), the court dealt with a situation where the defendants repudiated the agreement by employing nonunion men, in violation of the contract. Again, a different situation than that presented in the case at bar.
In Ribner v Racso Butter & Egg Co. (135 Misc 616), again the court dealt with a situation involving a contract between the parties under which the defendant had agreed to exclusively employ union men, in good standing, and to immediately discharge any person who had ceased to be a member of the union. The defendant, in violation of the agreement, did not deny that he employed persons not members of the plaintiff union and the court properly held that an injunction pendente lite was the only adequate remedy in the case, because plaintiff’s injury was a continuous one and irreparable. Surely not the situation presented in the case at bar.
Finally, the defendants cite Suttin v Unity Button Works (144 Misc 784). In that case the situation presented was that of an employer discharging members of the union and hiring others who were not union members, in violation of the contract. The court said (p 785): "When the harm resulting from illegal conduct is continuous and involves more than loss of money, equity may step in and restrain the continuing perpetration of wrong.” The court then properly granted an injunction pendente lite.
[599]*599We believe it is fair to conclude, after an examination of the authorities cited by the plaintiffs, that the cases relied upon by them present completely different factual situations than that presented in the instant case and they cannot be relied upon as providing legal authority to justify the continuance of the temporary injunction granted at Special Term. The fact is that the plaintiffs have failed to call to this court’s attention any precedent which presents a factual situation similar to the facts presented in the case at bar, or anywhere near it. However, this is understandable, because our own independent research has failed to come up with any such case.
The truth is that there are so many issues of fact in the case which must be determined before the final rights and obligations under the contract in question can be determined, that it is difficult to understand the contention of the plaintiffs that they have demonstrated a clear legal right to the relief sought. Nor have they demonstrated that they will be irreparably harmed if such relief is denied them. We agree with the position of the defendants that, in the event that plaintiffs succeed at the trial, then, of course, they will recover back pay and reinstatement to their positions, with all the rights and privileges restored to them. Hence, where is the irreparable damage?
At the very outset the meaning of section 1 of article III of the contract involved, which is entitled "salaries”, must be determined^ The language is as follows: "The City agrees to employ each of the employees for the period between July 1, 1974 and June 30, 1976 for 261 (8 hour) working days per annum at the respective annual compensation set forth in Schedule "A” of this Article III.”
The plaintiffs contend that this language is in the nature of a guarantee of job security for the time expressed. As against this contention the affidavit of William W. Hediger, the Deputy Director of the Office of Labor Relations of the City of New York, discloses that he, with others, represented the City of New York in its negotiations with the plaintiff union, which resulted in the execution of the collective bargaining agreement upon which this lawsuit is based. Mr. Hediger asserts that at no time was the topic of job security ever discussed during these negotiations and it is important to note that there is no denial of this statement by the plaintiffs.
The plaintiffs contend that they gave up their rights under section 220 of the Labor Law in the belief that they had been [600]*600given guaranteed employment. This is emphatically denied by the defendants and they indicate that the only reason why this particular provision of the agreement was agreed upon is because, trying to determine the prevailing wage rate under section 220 was often a difficult undertaking and, by acceding to this clause in the agreement, the employees represented by plaintiffs were assured of a fixed salary during their employment. Of course, we cannot determine where the truth lies. This is one of the issues which must be determined after a trial.
Also to be considered is the effect, if any, of subdivision b of section 1173-4.3 of the Administrative Code of the City of New York, on the respective positions assumed by the parties to this litigation. That section reads, in part, as follows: "Scope of collective bargaining; management rights * * * (b) It is the right of the city * * * to determine the standards of services to be offered by its agencies * * * relieve its employees from duty because of lack of work or for other legitimate reasons * * * determine the methods, means and personnel by which government operations are to be conducted * * * take all necessary actions to carry out its mission in emergencies * * * Decisions of the city or any other public employer on those matters are not within the scope of collective bargaining”.
The defendants emphasize the language concerning the city’s right to "relieve its employees from duty because of lack of work or for other legitimate reasons(Emphasis added.) They argue that, if the agreement is read, as is urged by the plaintiffs, as one guaranteeing a definite period of employment, then it would be violative of the quoted portion of the Administrative Code, and, further, that it would deprive the city of its right to take positive action when faced with a budget crisis. Again, we merely point out that this presents another open question on which we make no judgment, as it should be left for the trial court, to be determined on the basis of all the facts developed at the trial.
In the face of the above-quoted portion of the Administrative Code, the defendants urge a further argument to the effect that, if it were determined that the parties had entered into an agreement whereby the plaintiffs were assured of employment for a period of two years, irrespective of the financial reverses which the city might suffer, that such an agreement would violate public policy. Of course, we do not pass judgment at this time on this issue, except to note that [601]*601no definite determination can be reached until the facts are clearly established. However, we must call attention to some of the cases which have considered this subject and which again point to the fact that one cannot say, on the record before the court, that the plaintiffs have established a clear legal right to the relief which they seek.
In Matter of Schwab v Bowen (80 Misc 2d 763), the court held that the petitioners, whose positions were being abolished by respondent city solely for economic reasons, had been lawfully discharged. The court said (pp 765, 766):
"It is axiomatic that an appointing official has the power to abolish a civil service position when acting in good faith [citing case]. Consequently, the public employer cannot surrender the power to abolish positions in good faith through the vehicle of a collective bargaining agreement * * *
"Indeed, the court is of the view that it would be highly improper to permit municipal officers to commit a municipality to the continuance of a particular number of employees for a multiyear period despite the economic condition of said municipality.”
In Atlantic Beach Prop. Owners’ Assn. v Hempstead (3 NY2d 434, 438), we find the following language which is particularly pertinent to the case at bar: "Agreements by which the public powers of a municipality are surrendered without express permission of the Legislature are beyond the powers of tl „e municipality and void [citing cases].”
In Matter of Young v Board of Educ. of Cent. School Dist. No. 6, Town of Huntington (35 NY2d 31), it was held that the respondent Board of Education had the power to abolish the position of attendance teacher held by petitioner, who had tenure, and to divide the duties among principals and assistant principals in the district. In this cited case, Judge Jasen, writing for a unanimous court, said (p 34): "Faced with spiraling operating costs and ever increasing demands on their tax bases, school districts must have sufficient, latitude within the law to manage their affairs efficiently and effectively. This implies, where appropriate, the power to consolidate and abolish positions for economic reasons.”
In the Matter of Lippmann v Delaney (48 AD2d 913) a decision by the Appellate Division, Second Department, it was held that the petitioner, who had been notified that his position was abolished, was not entitled to reinstatement on the theory that his dismissal was in violation of an employment contract [602]*602entered into between the Westchester County Civil Service Employees Association, Inc., and Westchester County. In its memorandum decision the court said (p 914): "A person appointed in accordance with the provisions of the Civil Service Law does not have such permanency of tenure that his position must be continued and appropriation made for payment of the salary originally attached to the position [citing cases]. It is axiomatic that an appointing official has the power to abolish a civil service position when acting in good faith, and, in the absence of fraud or corruption * * * A public employer does not surrender the power to abolish positions in good faith, through the vehicle of a collective bargaining agreement, unless the subject of the abolition of position constitutes a term or condition of employment.”
We have taken note of the arguments advanced by the plaintiffs attacking the propriety of the city keeping provisionals on the payroll, to the detriment of these plaintiffs. The city calls attention to the fact that there are no provisionals working as sanitationmen and plaintiffs have not denied this statement. In any event, what effect, if any, the hiring of provisionals by the city, who are working in other departments, may have on the rights of these plaintiffs can only be explored at a trial. This is simply an issue of fact to be resolved.
The plaintiffs argue further that, in a prior case, Kunz v City of New York (286 App Div 252, affd 3 NY2d 834), the city stated in its brief that an analogous provision, relating to the wages to be paid during a specific period, was a guarantee of employment. This, however, is answered by the city calling attention to other portions of that brief where the city claims that there is an explanation of the alleged concession. In any event, we are not concerned with a statement made in a brief in some other case. It has no relevance insofar as our determination of the case at bar is concerned. We are duty bound to base our decision only upon the record now before us.
Our dissenting colleagues frankly concede that there are a number of issues of fact which must be determined and join the court in directing an early trial of the "colorable claims” of the plaintiffs.
We should like to note, too, the candid concession by the plaintiffs of "the obvious fact that the city is experiencing economic difficulties”.
[603]*603In conclusion, we find that the granting of the temporary injunction by Special Term was an improvident exercise of discretion. Because of the issues of fact presented by this record the plaintiffs have simply been unable to demonstrate that they have a clear legal right to such an extraordinary remedy. We also believe that they have failed to demonstrate irreparable damage to them by a denial of this remedy because we find that, if, at the trial of the issues, the plaintiffs shall have succeeded in holding the defendants liable for breach of the contract, they can be fully compensated by the payment of back salaries and a restoration of their old positions as of the date of the illegal discharge.
We also desire to make clear that we have not passed upon the merits of this litigation, as we believe all the questions presented are matters for the trial court to explore on the basis of the proofs offered and only when the facts are established can the law be applied,
Recognizing the exigencies of the situation in this litigation and the parties having indicated that they are ready to proceed to trial, it is directed that a trial of the issues proceed at the earliest possible time.
Accordingly, the order appealed from should be reversed on the law and on the facts, and the motion denied, without costs.