Diamond v. Robert Hall Clothes, Inc.

• Citation: 164 N.Y.S.2d 112,6 Misc.2d 916
• Parties: William DIAMOND, Plaintiff, v. ROBERT HALL CLOTHES, Inc., Julius Frankel, as president of Retail Clothing Salesmen's Union Local 340, an unincorporated association, Julius Frankel and Abe Feder, Defendants.
• Decision Date: 23 May 1957
• Court: United States State Supreme Court (New York)

Page 112

164 N.Y.S.2d 112

6 Misc.2d 916

William DIAMOND, Plaintiff, v. ROBERT HALL CLOTHES, Inc., Julius Frankel, as president of Retail Clothing Salesmen's Union Local 340, an unincorporated association, Julius Frankel and Abe Feder, Defendants.

Supreme Court, Special Term, New York County, Part III.

May 23, 1957.

B. Ginsberg, New York City, for plaintiff.

Solomon & Rosenbaum, New York City, for defendant Robert Hall.

Hyman Nemser, New York City, for defendant Union, etc.

HOFSTADTER, Justice.

The plaintiff, a former employee of the defendant Robert Hall Clothes, Inc., has brought this action against his former employer, his labor union which had a collective bargaining agreement with an employers' association of which the employer was a member, and against two officers of the union in their individual capacity. The complaint contains two causes of action, the first asserted against the employer alone and the second against the employer and the remaining defendants. The employer moves to stay the first cause of action until arbitration has been had in accordance with an arbitration agreement and to dismiss the second cause of action for lack of jurisdiction of the subject matter, or in the alternative to stay that cause of action also pending arbitration. By separate motion the remaining defendants join in the employer's motion to dismiss the second cause of action for lack of jurisdiction or in the alternative to stay it until arbitration has been had. Since the two motions addressed to the second cause of action are thus in effect the same, both may conveniently be treated in a single opinion.

The first cause of action is to recover from the employer damages for wrongful discharge, based on the claim that the collective bargaining agreement entitled him to continuance of employment until termination of the collective agreement and that he was wrongfully discharged before the termination of the agreement. It is obvious that this cause of action is founded upon and arises entirely out of the collective bargaining agreement. The agreement provides for arbitration of 'any complaints, grievances or disputes' not alone between the employers' association and the union, but between 'the members of the Association and any employee' as well. It follows that the first cause of action must be arbitrated (Ott v. Metropolitan Jockey Club, 282 App.Div. 946, 125 N.Y.S.2d 163, affirmed 307 N.Y. 696, 120 N.E.2d 862, reargument denied 309 N.Y. 948, 132 N.E.2d 317; Johnson v. Kings County Lighting Co., Sup., 141 N.Y.S.2d 411). I find no merit in the plaintiff's contention that, because the arbitration clause appears in a 'stipulation' bearing the same date as the main collective bargaining agreement, which stipulation opens with a provision against lockouts and strikes, the arbitration clause is confined to lockouts and strikes. Not alone does the stipulation deal with additional matters and show by its context that it is to be read part of the basic agreement, but the arbitration clause itself states that pending the determination by the arbitrator 'the employee or employees who are the subject matter of such dispute or disputes shall be continued in their regular employment.' This language, if applicable at all to a lockout or strike, certainly is not aplicable to them exclusively. The affidavit of the union's attorney states that many discharge disputes between individual employees and employers have been arbitrated pursuant to the clause. The union, moreover, expresses its willingness to proceed to arbitration under the agreement in the plaintiff's behalf. In the circumstances, no good ground exists why the dispute...