Opinion
March 4, 1991
Appeal from the Supreme Court, Queens County (Leviss, J.).
Ordered that the order is reversed, on the law, with costs, the defendant's motion is granted, and the complaint is dismissed.
The plaintiff, a pilot hired by the defendant carrier subject to the provisions of the Railway Labor Act ( 45 U.S.C. § 151 et seq.; see, 45 U.S.C. § 181, 182), contends he was discharged in violation of grievance procedures set forth in the "Cockpit Flight Crew Policy Manual". The plaintiff, who conceded that the manual is applicable only to employees who have successfully served a probationary term of employment, contends that the manual is in fact a collective bargaining agreement. The defendant, which contends that the plaintiff was at the time of his discharge a probationary employee and therefore dischargeable without cause, sought summary judgment dismissing the complaint. The Supreme Court denied the motion, ruling, inter alia, that questions of fact existed as to the plaintiff's status.
Apart from the fact that the plaintiff failed to seek redress through the grievance procedures set forth in the manual on which he relies, we note that, if he is a probationary employee, he possesses no cognizable cause of action (cf., Sabetay v Sterling Drugs, 69 N.Y.2d 329; Murphy v American Home Prods. Corp., 58 N.Y.2d 293; Weiner v McGraw-Hill, Inc., 57 N.Y.2d 458). If, as he contends, he successfully completed his probationary period, the dispute between the parties concerns the interpretation of an alleged collective bargaining agreement, over which the Supreme Court had no subject matter jurisdiction (see, 45 U.S.C. § 153; Andrews v Louisville Nashville R.R. Co., 406 U.S. 320, overruling Transcontinental W. Air v Koppal, 345 U.S. 653; see also, Atchison Topeka Santa Fe Ry. v Buell, 480 U.S. 557; Anselmo v Bush Universal, 58 A.D.2d 635). Kooper, J.P., Lawrence, Harwood and Miller, JJ., concur.