Fitzgerald v. General Elec. Co.

• Decision Date: 10 June 1965
• Docket Number: Docket No. 61-20,Docket No. 61-13 and N
• Citation: 260 N.Y.S.2d 470,23 A.D.2d 288
• Parties: , 59 L.R.R.M. (BNA) 2500, 51 Lab.Cas. P 51,337 Petition of Albert J. FITZGERALD, as President of United Electrical, Radio and Machine Workers of America (UE), Petitioner-Appellant, v. GENERAL ELECTRIC COMPANY, Respondent, for an order compelling General Electric Company, Respondent, to arbitrate two grievances, Nationalationalpursuant to Section 7502 of the Civil Practice Law and Rules.
• Court: New York Supreme Court — Appellate Division

Page 470

260 N.Y.S.2d 470

23 A.D.2d 288, 59 L.R.R.M. (BNA) 2500,

51 Lab.Cas. P 51,337

Petition of Albert J. FITZGERALD, as President of United

Electrical, Radio and Machine Workers of America

(UE), Petitioner-Appellant, v. GENERAL ELECTRIC COMPANY, Respondent, for an order

compelling General Electric Company, Respondent, to

arbitrate two grievances, National Docket No. 61-13 and

National Docket No. 61-20 pursuant to Section 7502 of the

Civil Practice Law and Rules.

Supreme Court, Appellate Division, First Department.

June 10, 1965.

Frank J. Donner, New York City, of counsel (Robert Z. Lewis, New York City, with him on the brief), for petitioner-appellant.

David L. Benetar, New York City, of counsel (Thomas F. Hilbert, Jr., Robert C. Isaacs and Michael I. Bernstein, New York City, with him on the brief, Nordlinger, Riegelman, Benetar & Charney, New York City), for respondent.

Before BREITEL, J. P., and RABIN, VALENTE, McNALLY and STEVENS, JJ.

McNALLY, Justice.

In this proceeding to compel arbitration in accordance with provision therefor in a collective bargaining agreement, the question presented is whether the grievances involve arbitrable disputes.

The collective bargaining agreement between petitioner and respondent dated October 27, 1960 provides for grievance procedure as to any dispute or grievance, and for arbitration thereof if it remains unsettled and involves 'the interpretation or application of a provision of this Agreement', with the provision that if either party advises the American Arbitration Association that the grievance does not raise an arbitrable issue then it shall not have the authority to process the request for arbitration until a court has adjudicated the issue of arbitrability. Pending any grievance or dispute, the union covenants not to cause any strike or related action.

Respondent's janitors, porters and charwomen, within bargaining units of respondent's Baltimore and Fort Edward plants, are represented by petitioner's Locals 120 and 332. On or about January 10, 1961 and March 2, 1961, Local 120 initiated grievances charging respondent with violations of Articles I and XII of the agreement in that it subcontracted the work theretofore performed by members of Local 120. The relevant portion of Article I is respondent's recognition of the petitioner and its certified locals as the exclusive bargaining representatives of its employees within the certified units. The pertinent portion of Article XII requires the application of certain factors in respect of layoffs or transfers, the major one being seniority.

The grievance procedures were exhausted. Petitioner requested arbitration on March 8, 1961 as to the grievance initiated in January, 1961, and on March 29, 1961 as to the one initiated in March, 1961. In each case the respondent advised the arbitration forum it was of the opinion the grievance did not raise an arbitrable issue. Petitioner of September 19, 1961 instituted this proceeding to compel arbitration. The order appealed from entered July 2, 1962 dismisses the petition on the ground that the disputes do 'not involve interpretation or application of any provision of the collective bargaining agreement'. By stipulation of the parties argument of this appeal was deferred pending the application for certiorari before the United States Supreme Court in International Union of Electrical, Radio & Machine Workers, AFL-CIO v. General Electric Co. (infra).

The agreement provides its interpretation and application shall be governed by the law of the State of New York. Federal and New York State law are alike in respect of arbitration pursuant to collective bargaining agreements. (Matter of Long Island Lumber Co. v. Martin, 15 N.Y.2d 380, 259 N.Y.S.2d 142, 207 N.E.2d 190 [decided April 15, 1965].)

'It is only where the parties have employed language which clearly rebuts the presumption of arbitrability, e. g., by stating that an issue either as to procedure or as to substance is not to be determined by arbitration, that the matter may be determined by the courts. In the absence of such unmistakably clear language, as here, the matter is sent to the arbitrator for his determination on the merits. (See United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, [80 S.Ct. 1358, 4 L.Ed.2d 1424] [1960]).' (Matter of Long Island Lumber Co. v. Martin, p. 385, 259 N.Y.S.2d p. 146, 207 N.E.2d p. 193, supra.)

The agreement here provides for arbitration of 'any dispute'. The reservation of exclusive management authority in the respondent contained in Article XXVII thereof does not serve to exclude from the all-inclusive provision for arbitration the grievances here involved. (United Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 583, 80 S.Ct. 1347, 4 L.Ed.2d 1409.) The petitioner's precontract demand for a limitation of the respondent's subcontracting practice is irrelevant. (See dissenting opinion of Whittaker, J., in United Steelworkers v. Warrior & Gulf Co., supra, p. 588, 80 S.Ct. 1354.) (International Union of Electrical, Radio & Machine Workers, AFL-CIO v. General Electric Co., 2 Cir., 332 F.2d 485, 488-490, cert. denied 379 U.S. 928, 85 S.Ct. 324, 13 L.Ed.2d 341.)

On this record arbitration may not be denied because the disputes in issue are within the scope of the broad provision for arbitration and no provision of the contract serves to exclude them from arbitration. Moreover, if there were doubt, it would be 'resolved in favor of coverage'. (United Steelworkers v. Warrior & Gulf Co., supra, 363 U.S., p. 583, 80 S.Ct. 1347; Matter of Long Island Lumber Co. v. Martin, supra.)

The order should be reversed, on the law, with costs and disbursements to petitioner-appellant, and the motion to direct arbitration granted.

Order, entered on July 2, 1962, reversed on the law, with $30 costs and disbursements to appellant, and the motion to direct arbitration granted, with $10 costs.

All concur except BREITEL, J. P., who dissents in a dissenting opinion.

BREITEL, Justice Presiding (dissenting):

I dissent. The majority holding is predicated on the premise that the parties agreed to submit 'any dispute' to arbitration. That holding requires arbitration of an issue that the parties never agreed to submit to arbitration. Despite the parties' express stipulation in the arbitration clause in this collective bargaining agreement that a court must first pass on the arbitrability of a dispute, this Court now leaves that very issue of arbitrability to be determined by the arbitrators. The Court does so without so much as examining the scope of the agreement to arbitrate.

The Court concludes, despite earlier references to a limitation, that the agreement provides for arbitration of 'any dispute'. On the contrary, the agreement, so far as it is here applicable, requires arbitration only of 'any grievance * * * which involves * * * the interpretation or application of a provision of this Agreement.' ¹ Thus the right to arbitration was not extended broadly to any dispute or controversy that might arise between the parties, nor even to any dispute that might arise in the performance of the contract. It was explicitly limited to issues of construction of the agreement. Presumably all other issues were to be resolved through the normal processes of collective bargaining, or where legal rights would be involved, through litigation.

The agreement recognizes, moreover, that threshold issues of arbitrability may easily arise under this limited arbitration clause. The clause goes on to provide, therefore, that these threshold issues must first be resolved by the court in favor of arbitration before the arbitrators are vested with jurisdiction to decide the substantive dispute. The agreement accomplishes this by conferring jurisdiction on the arbitrators 'only after a final judgment of a Court has determined that the grievance upon which arbitration has been requested raises arbitrable issues and has directed arbitration of such issues.' ²

In view of the limited scope of the arbitration agreement now before the Court, decisions involving broad clauses are not in point. As this Court stated in Matter of Uddo [Taormina], 21 A.D.2d 402, 405, 250 N.Y.S.2d 645, 647:

'Confusion may arise from the holdings interpreting broad clauses in agreements which provide as arbitrable any question that may arise under or in connection with the making, meaning or performance of the particular contract.'

Patently, Mtr. of Long Island Lumber Co. v. Martin, 15 N.Y.2d 380, 259 N.Y.S.2d 142, 207 N.E.2d 190, is not in point, as there the agreement requiring arbitration of 'all grievances' without limitation was unquestionably broad enough to cover the substantive issue, namely, the applicability of a wage agreement to a particular individual. The arbitration clause covering, as it did, the substantive dispute, the Court held that compliance with procedural prerequisites was to be determined by the the arbitrator. The substantive scope of the arbitration clause was simply not an issue.

Thus, Judge Burke wrote in the Lumber case that 'In the light of these cases, questions of timeliness and compliance with step-by-step grievance procedures, prior to formal and final binding arbitration, are questions of 'procedural arbitrability'. Now it is clear that such questions must be left to the arbitrator' (p. 386, 259 N.Y.S.2d p. 147, 207 N.E.2d p. 193). And again: 'But, as we have indicated above, the rule which we have recognized and followed leaves all procedural questions for the arbitrator to consider along with the substantive issues involved in the arbitration claims' (p. 387, 259 N.Y.S.2d p. 147, 207 N.E.2d p. 193). Because the substantive clause in the case was broad and unlimited, none of this reasoning has pertinence for the instant case.

Where there is an arbitration clause as to interpretation, without any express stipulation for judicial finding of arbitrability, and any question of...