Opinion
May 25, 1967
Order entered June 10, 1966 denying defendant's motion to dismiss the complaint unanimously reversed, on the law, with $50 costs and disbursements to the defendant-appellant, and the motion is granted and the complaint dismissed. We are constrained to dismiss the complaint on the authority of Matter of Columbia Univ. v. Herzog ( 269 App. Div. 24, affd. 295 N.Y. 605). The relief which the plaintiffs seek, and the acts of defendant which are complained of, would ordinarily fall within the ambit of the New York State Labor Relations Act (Labor Law, art. 20, e.g., § 704). Section 703 Lab. of the Labor Law provides, in part, that "Employees shall have the right of self-organization * * * to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining free from interference, restraint, or coercion of employers". However, section 715 states that the provisions of article 20 shall not apply to "employees of any such charitable, educational or religious association or corporation". The plaintiffs are such employees and, therefore, are excluded from the provisions and the protection of the labor act. The contention of the plaintiffs that they are entitled to relief by virtue of article I of the Constitution of the State of New York, section 17, which provides that "Employees shall have the right to organize and to bargain collectively through representatives of their own choosing", is foreclosed by the decision in Matter of Columbia Univ. v. Herzog ( supra). In the Herzog case, this court, in discussing the relationship between the constitutional provision in section 17 of article I and section 715 of the Labor Relations Act, stated as follows: "The suggestion is made that our conclusion might render doubtful the constitutionality of section 715 as in derrogation of article I, section 17, of the State Constitution. * * * We think the doubt is without substance. The constitutional provision enacted by amendment in 1938 accords recognition to the right of labor to organize and bargain collectively which, in 1935, had found expression in the Labor Relations Act. That constitutional amendment was not intended to invalidate existing legislation which imposed a duty on employers to bargain collectively with employees even though that obligation by reason of certain exemptions or exceptions was not in all respects coextensive with the rights of labor." ( 269 App. Div. 24, 30.) By virtue of the exclusion of these employees from the protection of the provisions of the Labor Law, the acts of the defendant, which the plaintiffs here complain of, do not form any basis for any cause of action and, therefore, the complaint must be dismissed.
Concur — Steuer, J.P., Capozzoli, Tilzer, Rabin and McGivern, JJ. [ 50 Misc.2d 629.]