Triboro Coach Corp.v. New York State Labor Relations Board , 261 A.D. 636 ( 1941 )

Taylor, J.

The review at Special Term was had under section 707 of the New York State Labor Relations Act (Labor Law, art. 20) (hereinafter called “ act ”). In the last analysis the question presented, the answer to which is decisive, is whether a collective-bargaining contract between an employer (Triboro) and an American Federation of Labor local, called Amalgamated, had been terminated before an election by employees of Triboro was held at which a Congress of Industrial Organizations local asserts that it was chosen as bargaining representative of such employees. It was provided in the Amalgamated contract, effective October 20, 1936, that its term should be for three years, that it should continue automatically for successive like terms “ unless either party shall notify the other party, in writing by registered mail, at least ninety days before the expiration of the then current term, that the notifying party elects to terminate the contract at the expiration of the then current term.” No such letter couched in those or equivalent terms was ever sent by either party to the other. On July 17, 1939, however, the secretary of Amalgamated sent a letter to the employer stating, “ I am enclosing a copy of the new contract which L. Wickers [President of Local Division 1104] has asked me to send you * * and also that a conference of all parties would be arranged. The writing sent with the letter was in fact merely a proposed contract which after prolonged negotiations was duly executed November 14, 1939. Although, upon plain principles, no statement of his views as to the meaning of that letter is, or can be, controlling, Wickers, thus president of the local, testified at a hearing before the Board that the letter and proposed contract were not sent pursuant to paragraph 11 of the old contract (relating to termination), and that “ We did not terminate the contract.” He testified also that it was not the ' intention to continue the old contract “ for another three years.” As matter of law, there was no termination of the (old) 1936 contract in the manner therein provided. The record discloses no substantial, or, indeed, any evidence of such termination. The parties in fact continued to operate under the old contract until the execution of the new one in which it was agreed that its provisions should supersede those of the old contract, and that “ upon the execution of this present agreement the provisions of said Memorandum of Collective Agreement [1936 contract] shall be inoperative and of no force and effect.” On the application of the C. I. 0. local, the Board, on October 30, 1939, issued a direction of election to determine by which local the employees here involved desired to be represented. After postponement, the election was held ten days after the new contract with Amalgamated was executed. The unfair labor practice (act, § 704) charged against the employer is that it executed the new contract in the face of the Board’s direction of election. That action in law was not an unfair labor practice. Indeed, in vacating an earlier direction of an election in this matter, the Board correctly conceded that it had no power to direct an election if a collective-bargaining agreement conforming to the act is in existence. The new contract here involved does so conform.

Clearly it was not the intention of either party to the old contract to terminate it on October 20, 1939, and the intention of both sides was to continue it for so much of a renewed term, provided for in that contract, as might be devoted to negotiating and executing a new one. Even if it had been the intention in July, 1939, to effect the earlier termination, and there is no evidence thereof, that intention would have been of no effect, since the parties, by their conduct and their declarations in the new contract, would be deemed to have abandoned it. Mere intent means nothing. It may be changed, revoked or abandoned at any time before it is carried into effect. This is illustrated by the failure of a testator to carry out in his will a testamentary intent previously expressed. (Frankenberger v. Schneller, 258 N. Y. 270.) “ ‘ Assent in the sense of the law is a matter of overt acts, not of inward unanimity in motives, design or the interpretation of words.’ ” (Sokoloff v. National City Bank, 239 N. Y. 158, 170.) When one signs a writing creating an obligation on his part, what he might have intended at the time of signing is immaterial; the overt act expresses his intent in a legal sense. (Brown v. Champlin, 66 N. Y. 214, 221.)

In our opinion it follows, as the learned court at Special Term held (22 N. Y. Supp. [2d] 1013), that the finding of the Board that the old contract was terminated on October 20, 1939, is without any support in the proofs before it. Hence the order appealed from is right in its several phases and should be affirmed, with fifty dollars costs and disbursements.

Lazansky, P. J., Hagarty and Johnston, JJ., concur; Close, J., dissents and votes to reverse the order, to deny the application of respondents and to grant the cross-application of appellants, with opinion.