I am unable to agree with the opinion for reversal. It is quite clear, and the opinion is not to the contrary, that the respondent salesmen and drivers were bound by the negative covenants in the individual employment contracts and had deposited with the appellant laundry company $200 with authorization to the company "to deduct from the moneys so paid over such sum or sums as shall be necessary to fully reimburse said `Company' for any damage or loss sustained by it occasioned by the `Employee'." (Emphasis supplied.) That was to be the total of the damage possible, for the damage was to bededucted from that sum. That was to permit the employer to catch up with the derelictions of the employee and, if the employer then saw fit, to apply to the court for an injunction. That was the alternative remedy provided in the contract. It was specifically provided that the deduction was not to be an exclusive remedy, but that there was to be an additional independent remedy by way of injunction and that neither of those two alternative remedies was to be exclusive. The individual employment contracts did not provide for arbitration.
Then in November, 1945, a collective bargaining representative of the drivers entered into an agreement with the appellant company covering the employment of respondents. It was specifically provided that all the individual employee contracts were to remain in "full force * * * except as to such provisions thereof as are inconsistent with the specific provisions *Page 261 of this agreement". Then followed the provision for the appointment of an "Impartial Chairman" and for arbitration before him of any disputed matters arising out of the collective bargaining agreement.
Then there is the provision of which we must construe the meaning. Insofar as material it reads: "The Impartial Chairman shall have jurisdiction to hear and determine * * * (2) complaints by the Employer of breaches by drivers of the negative covenants of their individual agreements with the Employer. Suchindividual agreements shall be deemed modified accordingly." (Emphasis supplied.)
What that provision was intended to accomplish was to insert in the individual employment contracts the right of the employer to submit to the impartial chairman "breaches by drivers of the negative covenants of the individual agreements with the Employer." It must be remembered that the individual contracts were to remain in "full force" except insofar as their provisions were inconsistent with "the specific provisions of this agreement". The provision quoted was a specific provision and to that degree only were the individual agreements modified. It was never intended, and the language is not capable of such construction, that by that provision employees who had deposited $200 each to "fully reimburse" their employer for breach of their agreements should find themselves obligated to pay damages, as in this case, of $2,700. The amount of damages recoverable under the individual contracts was not enlarged because under the collective agreement the dispute over such damages might be submitted to an impartial chairman rather than to a court. No one will argue that the employer could have obtained more than the $200 deposit under each individual contract. Where there was modification of the individual contracts by a provision as to an additional forum to which the employer might turn, the measureof damages specifically provided by the parties was not thereby altered or increased.
The order should be affirmed, with costs.
LOUGHRAN, Ch. J., LEWIS, DESMOND, DYE and FULD, JJ., concur with BROMLEY, J.; CONWAY, J., dissents in opinion.
Judgment accordingly. *Page 262