British Overseas Airways Corp. v. International Ass'n of Machinists and Aerospace Workers, AFL-CIO ('I AM')

• Decision Date: 29 June 1972
• Docket Number: AFL-CIO
• Citation: 39 A.D.2d 900,334 N.Y.S.2d 261
• Parties: , 80 L.R.R.M. (BNA) 3468, 69 Lab.Cas. P 52,944 In the Matter of BRITISH OVERSEAS AIRWAYS CORPORATION, Petitioner-Respondent, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,('IAM'), et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 261

334 N.Y.S.2d 261

39 A.D.2d 900, 80 L.R.R.M. (BNA) 3468,

69 Lab.Cas. P 52,944

In the Matter of BRITISH OVERSEAS AIRWAYS CORPORATION Petitioner-Respondent, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO ('IAM'), et al., Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

June 29, 1972.

M. Gartner, New York City, for petitioner-respondent.

S. C. Vladeck, New York City, for respondents-appellants.

Before McGIVERN, J.P., and KUPFERMAN, MURPHY, McNALLY and EAGER, JJ.

PER CURIAM.

Order and Judgment (one paper), Supreme Court, New York County, entered January 4, 1972, vacating part of an arbitration award affirmed. Respondent shall recover of appellants $50 costs and disbursements of this appeal.

In directing the promotion of the employee, the arbitrator exceeded his powers, and gave to Flowers, regardless of his qualifications, a preference over fellow employees who may be equally or even more qualified. And the matter of actual qualification should be left with the employer, particularly in the aviation area, where public safety is very much involved. The only issue intended to be submitted, based on the agreement, and the only arbitral issue to be determined was whether petitioner could fill the vacancy by a hiring from outside the company. That part of the award directing the employee's promotion to operations assistant, deleted by Special Term, was not within the ambit of the submission and consequently was in excess of the authority conferred on the arbitrator. Thus, we affirm on the basic principle that a party may not unwittingly be dragged into an arbitration in the absence of his consent. In the Matter of ITT Avis, Inc., v. Tuttle, 27 N.Y.2d 571, 313 N.Y.S.2d 394, 261 N.E.2d 395. A mere peripheral discussion of a matter does not bring it within the range of arbitration. General Electric Co. v. United Electrical, Radio & Machine Wkrs., 4 Misc.2d 480, 80 N.Y.S.2d 689, aff'd 274 App.Div. 767, 80 N.Y.S.2d 736 (1st Dept.).

All concur except McNALLY and EAGER, JJ., who dissent in the following memorandum by EAGER, J.:

The arbitrator by his award determined that the 'grievance of Roy Flowers (the employee) is sustained. He shall be promoted to Operations Assistant effective on the date the position was filled by a new hire, and he shall be made whole for any loss due to the Company's failure to promote him.'

The petitioner-employer contended that, in making the award, the arbitrator exceeded his powers, and Special Term modified the award, holding that '* * * the sole issue to be determined by the arbitrator related to whether or not the petitioner could fill the vacancy in question from the outside. * * * In directing the appointment of the employee without regard to whether or not he was qualified, the arbitrator has in effect changed the agreement of the parties.'

We conclude, however, that the arbitrator, on a determination of all submitted issues, was fully empowered to include in his award the equitable relief that the employee be promoted to the position of Operations Assistant.

The grievance, as framed by the parties for submission to arbitration, was very broadly worded. The parties expressly agreed that the arbitrator should determine: 'Was I, Roy Flowers, unjustly dealt with, and if so what is the remedy?' Specifically, under the wording of the arbitrable issue, the questions submitted were whether or not the particular employee had been 'unfairly dealt with' and what was the 'remedy' that should be awarded to him. The issue was not merely one, as contended by the employer, limited to a determination of the question whether, generally, the Operations Assistant position was in the nature of a supervisory job requiring the employer to offer the job first to the present employees before hiring 'from outside'. The parties were concerned with the rights of a particular employee, Roy Flowers, and the question submitted was framed to determine his rights and the remedy to be awarded to him.

The authority expressly conferred upon the arbitrator to fix a remedy conferred upon him the power to award such relief as he deemed appropriate and just under the circumstances, including the incidental right to determine whether, under all the circumstances and with due regard to the employee's qualifications, he should be given the advantages of the particular position. Particularly, in the arbitration of labor grievances, it is well settled that, unless limited by the plain terms of the submission, the arbitrator is empowered to grant any relief reasonably fitting and necessary to the final determination of the matter submitted to him; and this includes the granting of equitable relief for the direction of the reinstatement, hiring, or classification of a particular employee in a particular position. (See, e.g., United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424; Matter of Feuer Transportation Inc. (Local No. 445), 295 N.Y. 87, 92, 65 N.E.2d 178, 180; Matter of Staklinski (Pyramid Elec. Co.), 6 A.D.2d 565, 569 570, 180 N.Y.S.2d 20, 25--27, affd. 6 N.Y.2d 159, 188 N.Y.S.2d 541, 160 N.E.2d 78.)

Furthermore, if there were any ambiguity about the scope of the arbitral issues, we would construe the agreement of the parties broadly to the end that the arbitrable proceedings shall completely dispose of the issues between the parties. As very recently stated: 'The very broad limits of arbitrability envisioned in CPLR 7501, as reflected in Matter of Exercycle Corp. v. Maratta, 9 N.Y.2d 329, 214 N.Y.S.2d 353, 174 N.E.2d 463, forbid any judicial interference with disputes logically connected with the agreement. To say that such disputes must arise literally and directly out of the agreement in order to be...