
    Eleanor T. Schacht, on Behalf of Herself and All Others Similarly Situated, Appellant, v City of New York et al., Respondents.
    Argued January 8, 1976;
    decided February 19, 1976
    
      
      Seymour L. Colin, P. C., for appellant.
    I. Appellant’s sick leave and terminal leave earned under the Career and Salary Plan represent deferred compensation actually earned and are vested rights of which she cannot be constitutionally divested and for which she cannot be denied payment. (Saltser & Weinsier v McGoldrick, 295 NY 499; Gleason v Gleason, 26 NY2d 28; Pearsall v Great Northern Ry. Co., 161 US 646; People v Miller, 304 NY 105; Matter of Teachers Assn., Cent. High School Dist. No. 3 [Board of Educ., Cent. High School Dist. No. 3, Nassau County], 34 AD2d 351; Kranker v Levitt, 30 NY2d 574; Clift v City of Syracuse, 45 AD2d 596.) II. Apart from the constitutional protection available to all citizens under section 7 of article V of the New York State Constitution, appellant’s right to her leave credits and her right to be compensated according to the administrative practice of permitting an employee to remain on payroll after the final day of actual work until the leave credits are exhausted must be considered a contractual obligation of which appellant cannot be deprived because such deprivation impairs and diminishes her pension benefits. (Birnbaum v New York State Teachers Retirement System, 5 NY2d 1; Cashman v Teachers’ Retirement Bd., 193 Misc 57, 275 App Div 908, 301 NY 501; Matter of Day v Mruk, 307 NY 349; Matter of Ayman v Teachers’ Retirement Bd. of City of N. Y., 19 Misc 2d 355, 10 AD2d 835, 9 NY2d 119; Kleinfeldt v New York City Employees’ Retirement System, 36 NY2d 95; Matter of Donner v New York City Employees’ Retirement System, 33 NY2d 413; Brooks v City of New York, 68 Misc 2d 866; Humbeutel v City of New York, 308 NY 904; Hoar v City of Yonkers, 295 NY 274.) III. The finding at Special Term that appellant and those similarly situated waived any constitutionally protected vested rights which they possessed, is without basis. (People v Koenig, 34 Misc 2d 711; Johnson v Zerbst, 304 US 458; Matter of Union Free School Dist. No. 6 v New York State Div. of Human Rights, 43 AD2d 31; Matter of Carroll v Grumet, 281 App Div 35; White v Hussey, 275 App Div 714; Rosen v New York City Teachers’ Retirement Bd., 282 App Div 216, 306 NY 625; Matter of Shelofsky v Helsby, 32 NY2d 54; Matter of Antonopoulou v Beame, 32 NY2d 126; Matter of Fiore v Board of Educ. Retirement System of City of N. Y., 75 Misc 2d 341.)
    
      
      W. Bernard Richland, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for respondents.
    I. No constitutional issue is presented here since plaintiffs claimed loss was off set by her gains. Though the number of days of plaintiff’s terminal leave under the Managerial Leave Regulations is less than she would have received under the Career Leave Regulations, she accepted alternate leave benefits under the Managerial Leave Regulations that she would not have had otherwise. Furthermore, plaintiff came under the Managerial Managerial Regulations only by virtue of coming under the Managerial Pay Plan, and she accepted considerable benefits from that pay plan. Finally, in no event could there have been any loss of "allowance service” (and hence no loss of retirement allowance) since plaintiff was on the payroll right up until the date of her mandatory retirement, and had no "legal right” to remain on the payroll beyond that date. (Matter of Hessel v New York City Employees’ Retirement System, 33 NY2d 381; Matter of Dollard v Civil Serv. Comm, of City of N. Y., 34 AD2d 1058, 29 NY2d 542; Matter of Baker v Lindsay, 34 AD2d 1059; Hess v Board of Educ. of Cent. School Dist. No. 1, 41 AD2d 151.) II. Even if, arguendo, there were an overall loss of benefits and retirement rights, it was waived. Plaintiff’s union, for consideration, by contract, agreed to join in a petition to have plaintiffs title declared "managerial”, and thus to be subject, with respect to all terms and conditions of employment, to mayoral executive orders such as the Managerial Leave Regulations. Plaintiff accepted the benefits of that contract and thereafter the benefits of managerial status. (Matter of Coressman v Moran & Sons, 4 AD2d 712; Syracuse Teachers Assn, v Board of Educ., Syracuse City School Dist, 42 AD2d 73; Matter of New York Times Co. [Newspaper Guild of N. Y.], 2 AD2d 31; Matter of Carroll v Grumet, 281 App Div 35; Rosen v New York City Teachers’ Retirement Bd., 282 App Div 216, 306 NY 625; White v Hussey, 275 App Div 714.) III. Assuming, arguendo, that the days of terminal leave which plaintiff lost by coming under managerial status are not off set by the benefits that she received, and that there was no waiver, nevertheless plaintiff does not establish a claim for additional terminal leave under the due process clause or upon any concept of implied obligation. Even if she establishes a claim for additional terminal leave, she does not establish a claim for additional retirement allowance. (Matter of Teachers Assn., Cent. High School Dist. 
      
      No. 3 [Board of Educ., Cent. High School Dist. No. 3, Nassau County], 34 AD2d 351; Matter of Murray v Levitt, 47 AD2d 267; Seif v City of Long Beach, 286 NY 382; Konnoson v City of New York, 254 App Div 378, 281 NY 716; Hess v Board of Educ. of Cent. School Dist. No. 1, 41 AD2d 151; Crane v City of New York, 185 Misc 456, 270 App Div 930, 296 NY 717; Lombardi v City of New York, 78 Misc 2d 1057, 46 AD2d 750; Matter of Steinberg v Lewisohn, 43 AD2d 1019; Clift v City of Syracuse, 45 AD2d 596.) IV. Assuming, arguendo, that plaintiff has a legal right to be "on the payroll” beyond the mandatory retirement age in order to use whatever leaves she is entitled to, the fact that she would have a greater retirement allowance if she retained her right to leave pursuant to the Career Leave Regulations would not render the application of the Managerial Leave Regulation an unconstitutional diminution of retirement benefits. The Constitution is not violated where there has been no change in the retirement statute or regulations but only in the amount of compensation (i.e., leave), and the effect upon retirement allowance is only an "incidental” effect of the otherwise proper application of a leave regulation. (Hoar v City of Yonkers, 295 NY 274; Doyle v Wright, 201 Misc 884; Humbeutel v City of New York, 283 App Div 1011, 308 NY 904; Geary v Phillips, 53 Misc 2d 337; Gorman v City of New York, 280 App Div 39, 304 NY 865; Matter of Donner v New York City Employees’ Retirement System, 33 NY2d 413; Birnbaum v New .York State Teachers Retirement System, 5 NY2d 1; Matter of Ayman v Teachers’ Retirement Bd. of City of N. Y., 9 NY2d 119; Kranker v Levitt, 30 NY2d 574; Kleinfeldt v New York City Employees’ Retirement System, 36 NY2d 95.)
   Memorandum. Prior to her retirement on March 1, 1975, plaintiff held the position of Assistant Director, Child Welfare, in the Department of Social Services of the City of New York. Until January 1, 1971, her potential retirement and pension benefits were governed by certain regulations known as the "Career and Salary Plan”. Although her title and responsibilities apparently remained unchanged, on July 1, 1971, made retroactively effective to January 1, 1971, the retirement and pension benefits for persons with her title were removed from the "Career and Salary Plan” and became governed by the "Managerial Pay Plan” which had been established in 1969. Plaintiff, contending that she had vested rights in the "Career and Salary Plan” and that through this plan she would have been entitled to greater pension and retirement benefits, brought this action to recover such additional benefits which she alleged would have been available to her under that plan.

Without otherwise passing on the merits of plaintiffs action, we hold that any claim that she may have had for the benefits under the "Career and Salary Plan” had been effectively waived by an agreement made by her collective bargaining representative and by her own actions. At all relevant times she was represented by the Senior Social Service Administrators Association, which in 1969 entered into a collective bargaining agreement with the city and the Department of Social Services. This agreement, inter alia, provided that "[t]he Union * * * agrees, that it will not object or intervene in any way, and further, will join with the City in any petition requesting the Board of Certification of the Office of Collective Bargaining to declare the titles covered by this agreement as managerial in nature and not subject to further collective bargaining, effective as of the termination of this contract.” This agreement terminated December 31, 1970. Thereafter, as contemplated by this agreement, plaintiff’s title was transferred to the "Managerial Pay Plan”, effective January 1, 1971.

Plaintiff, having designated the union to be her agent for collective bargaining purposes, is bound by agreements made by that union on her behalf. She may not reject certain acts of her bargaining representative and accept others. (Matter of New York Times Co. [Newspaper Guild of N. Y.], 2 AD2d 31, 33.) Since this waiver is not against public policy, there is no bar to plaintiff’s or the union’s waiver of the allegedly greater retirement and pension benefits' available under the "Career and Salary Plan”. (See Rosen v New York City Teachers’ Retirement Bd., 282 App Div 216, affd 306 NY 625.) We also note that from January 1, 1971, until her retirement, plaintiff apparently accepted and enjoyed at least one increased benefit, a higher salary, available to her under the "Managerial Pay Plan”.

Accordingly, the order of the Appellate Division should be affirmed.

Fuchsberg, J. (dissenting).

I do not believe the record before us justifies a summary finding of waiver by the petitioner or those similarly situated. Accordingly, I would vote to reverse and order a hearing.

The waiver here would encompass the surrender by a civil servant, after a lifetime of service and attainment of eligibility for retirement, of what appears to have been earned, vested rights valued at an amount exceeding $16,000. The waiver of such constitutionally protected rights should be clear and certain (cf. Johnson v Zerbst, 304 US 458).

The collective bargaining agreement, as is evident from its quotation in the majority’s memorandum, speaks of no such waiver. The Managerial Pay Plan’s Leave Regulations, relied upon for the divesting, were not adopted until nearly two years later. As the situation presented itself at the time of the making of the agreement, it might have been reasonable to infer that it was intended that fringe benefits to be earned in futuro were subject to change by later regulations, but it seems to me that the burden of persuading a court that the bargaining agent, and much more so the employees affected, knew or should have known that the waiver of rights already earned and vested were intended to become subject to unilateral divestiture by the employer should, in all fairness, have been shouldered by the city.

That view appears to be all the more compelling since the agreement’s contemplation of the employees’ shift to managerial status meant that the bargaining agent was thereby also reading itself out of existence so that once the managerial shift took place, it would no longer be in a position to intervene in any dispute arising out of the future application of the agreement. Significantly, there was thereby introduced into the negotiations an element, if not of conflict of interest, certainly of disinterest on the part of the agent with whom the city dealt. Moreover, the very small salary increase, which the majority notes accompanied the recognition of managerial status, was entirely too unremarkable an item for it to support a claim that its acceptance constituted consent to the forfeitures which the city now seeks to impose. Indeed, appellant’s letter of February 22, 1971 to the General Counsel of the Civil Service Commission indicates quite the contrary.

Rosen v New York City Teachers’ Retirement Bd. (282 App Div 216, affd 306 NY 625), cited by the majority, is distinguishable. It was one of a triad, the others being Carroll v Grumet (281 App Div 35, app dismd 305 NY 692) and White v Hussey (275 App Div 714). Involved there was a clear and unequivocal understanding that a cost-of-living bonus was not to be considered salary in calculating an employee’s pension. Absent unequivocal agreement or waiver, however, "the increments would have been a proper component of base salary” (Matter of Hessel v New York City Employees’ Retirement System, 33 NY2d 381, 386 [Gabrielli, J.]).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur; Judge Fuchsberg dissents and votes to reverse in a separate opinion.

Order affirmed, with costs, in a memorandum.  