G. E. Howard & Co. v. Daley

Decision Date09 December 1970
Docket NumberNo. 445,I,445
Citation317 N.Y.S.2d 326,265 N.E.2d 747,27 N.Y.2d 285
Parties, 265 N.E.2d 747, 76 L.R.R.M. (BNA) 2281, 64 Lab.Cas. P 52,481 In the Matter of G. E. HOWARD & CO., Respondent, v. Theodore G. DALEY, as Treasurer of Local Unionnternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Appellant.
CourtNew York Court of Appeals Court of Appeals

Edward Cherney, Joseph S. Rosenthal and Marshall M. Kolba, New York City, for appellant.

Isadore Shapiro and William A. Shapiro, Newburgh, for respondent.

SCILEPPI, Judge.

Petitioner-respondent (G. E. Howard & Co.), a partnership operating a wholesale grocery business, entered into a collective bargaining agreement with respondent-appellant (the Union), as representative of certain of its employees. That contract provided under the caption Grievance and arbitration:

'Should any dispute arise between the Employer and an Employee, or the Employer and the Union concerning the application or interpretation of any provision of this Agreement or concerning any term or condition of employment, or otherwise, a representative of the Employer and a representative of the Union shall attempt to adjust the controversy between themselves.

'In the event that they are unable to adjust same, the dispute shall, within two (2) days after the request of either party, be submitted to arbitration as hereinafter provided in Section II.'

In September, 1968 John A. Riley, the 71-year-old surviving active partner, decided to retire, terminate the partnership and liquidate the business. The employees were notified of their employer's intention to liquidate and in the course of ensuing negotiations demanded severance pay. Petitioner-respondent, contending that the bargaining agreement made no provision for severance pay, 1 refused to accede to the Union's demands, whereupon the latter filed charges of unfair labor practices with the National Labor Relations Board. Upon investigation of the alleged violation under section 8 of the National Labor Relations Act (U.S.Code, tit. 29, § 158 (1935)) the board, concluding that the evidence adduced failed to support the allegations of the charge, refused to issue a complaint.

By notice and demand dated November 26, 1968, respondent-appellant sought arbitration of the alleged 'dispute concerning the refusal of the company to grant severance pay to employees upon the discontinuance of its business operations.' Thereupon, petitioner-respondent instituted a proceeding in the Supreme Court, Orange County, pursuant to CPLR 7503, for a stay of arbitration. The trial court, noting that the contract on its face makes no provision for severance pay, concluded that the agreement itself could not serve as a predicate for such claims, and granted a permanent stay. On appeal, the Appellate Division affirmed, two Justices dissenting, and it is from that order which respondent-appellant prosecutes the instant appeal.

We have before us the question of whether the Appellate Division was correct in affirming the order of Special Term granting a permanent stay of arbitration, despite the presence of a broad arbitration clause. While the question has generally been attended by considerable difficulty, particularly in cases involving commercial matters (see, e.g., Matter of ITT Avis v. Tuttle, 27 N.Y.2d 571, 313 N.Y.S.2d 394, 261 N.E.2d 395; Matter of Riverdale Fabrics Corp. (Tillinghast-Stiles Co.), 306 N.Y. 288, 118 N.E.2d 104; Matter of Uddo (Taormina), 21 A.D.2d 402, 250 N.Y.S.2d 645), which mandate an unequivocal expression of intent to submit such matters to arbitration (Matter of ITT Avis v. Tuttle, Supra; Matter of Riverdale (Tillinghast-Stiles Co.), Supra), we have encountered substantially less difficulty when confronted by arbitration clauses in collective bargaining agreements, where the party seeking arbitration is aided by the presumption of arbitrability under Federal law (United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582--583, 80 S.Ct. 1347, 4 L.Ed.2d 1409; see Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 102, 82 S.Ct. 571, 7 L.Ed.2d 593; U.S.Code, tit. 29, § 185, subd. (a); Matter of Long Is Lbr. Co. (Martin), 15 N.Y.2d 380, 385, 259 N.Y.S.2d 142, 146, 207 N.E.2d 190, 192).

Invoking the well-settled rule that one can be compelled to arbitrate only those matters which he has by contract agreed to arbitrate, petitioner-respondent, as did the lower courts, relies heavily upon the fact that the agreement itself contains no provision for arbitration of disputes relating to severance pay. While we have consistently held that '(t)he intent must be clear to render arbitration the exclusive remedy', and have assiduously sought to insure that 'parties * * * not to be led into arbitration unwittingly through subtlety' (Matter of Riverdale Fabrics Corp. (Tillinghast-Stiles Co.), Supra, at 306 N.Y. p. 291, 118 N.E.2d p. 106), that policy, pursuant to the Supreme Court mandate, as expressed in Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co. (supra), has been judiciously relaxed by this court in matters relating to the construction of arbitration clauses found in collective bargaining agreements (Matter of Fitzgerald (General Elec. Co.), 19 N.Y.2d 325, 329, 280 N.Y.S.2d 104, 106, 227 N.E.2d 15, 16; Matter of Long Is. Lbr. Co. (Martin), Supra, at 15 N.Y.2d p. 385, 259 N.Y.S.2d p. 146, 207 N.E.2d 192). Inasmuch as we are presently concerned with an industry affecting interstate commerce as defined in title 29 (U.S.Code, tit. 29, § 142, subd. (1)), all questions arising under the collective bargaining agreement are to be determined under Federal law (Matter of Fitzgerald (General Elec. Co.), Supra, at p. 329, 280 N.Y.S.2d p. 106, 227 N.E.2d p. 16; Matter of Long Is. Lbr. Co. (Martin), Supra, at 15 N.Y.2d p. 385, 259 N.Y.S.2d p. 146, 207 N.E.2d p. 192).

As noted above, arbitration is essentially a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to so submit (see Matter of Riverdale Fabrics Corp. (Tillinghast-Stiles Co.), Supra, at 306 N.Y. p. 291, 118 N.E.2d p. 105; Matter of ITT Avis v. Tuttle, Supra, 27 N.Y.2d 571, 313 N.Y.S.2d 394, 261 N.E.2d 395). However, to be consistent with Federal policy favoring industrial self-regulation in labor disputes, and in deference to the Supreme Court mandate which demands that we accede to that policy (see United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; United Steelworkers of America v. Warrior & Gulf Nav. Co., Supra; United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; see, also, Matter of Fitzgerald (General Elec. Co.), Supra; Matter of Long Is. Lbr. Co. (Martin), Supra), this court has limited the judicial function to determining whether the recalcitrant party did agree to arbitrate the grievance (Matter of Fitzgerald (General Elec. Co.), Supra; Matter of Long Is. Lbr. Co. (Martin), Supra). Indeed, unlike those cases involving matters of a commercial nature, where we have required a clear expression of an intent to submit the matter to arbitration, this court in construing collective bargaining agreements has held that 'only where the parties have employed language which clearly rebuts the presumption of arbitrability,' e.g., explicitly excluding a certain matter from arbitration, may the matter be held nonarbitrable and thus subject, in the final analysis, to judicial determination (Matter of Long Is. Lbr. Co. (Martin), Supra, 15 N.Y.2d p. 385, 259 N.Y.S.2d p. 146, 207 N.E.2d p. 193).

Quite clearly, therefore, both the Federal cases and the decisions of this court have repeatedly distinguished between judicial determination of the merits of a particular controversy, which in the absence of an exclusionary provision has been universally proscribed, and judicial consideration of the threshold question of whether the dispute is within the terms of the agreement, which, of course, has been approved, if not actually encouraged (see e.g., United Steelworkers of America v. Warrior & Gulf Nav. Co., Supra; Matter of Uddo (Taormina), Supra, at 21 A.D.2d p. 405, 250 N.Y.S.2d p. 647). Significantly, where the court so finds, it is for the arbitrator and not for the court to determine the merits of the dispute itself (see Matter of Long Is. Lbr. Co. (Martin), Supra, at 15 N.Y.2d p. 385, 259 N.Y.S.2d p. 146, 207 N.E.2d p. 192).

Given the present Federal policy of promoting industrial stabilization through...

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