Labor Relations Section of Northern New York Builders Exchange, Inc. v. Gordon

• Decision Date: 23 February 1973
• Docket Number: I,No. 545,545
• Citation: 41 A.D.2d 25,341 N.Y.S.2d 714
• Parties: , 83 L.R.R.M. (BNA) 2017, 71 Lab.Cas. P 53,040 In the Matter of LABOR RELATIONS SECTION OF the NORTHERN NEW YORK BUILDERS EXCHANGE, INC. and Edward L. Nezelek, Inc., Respondents, v. Robert GORDON, as President of Localnternational Union of Operating Engineers, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 714

341 N.Y.S.2d 714

41 A.D.2d 25, 83 L.R.R.M. (BNA) 2017,

71 Lab.Cas. P 53,040

In the Matter of LABOR RELATIONS SECTION OF the NORTHERN NEW

YORK BUILDERS EXCHANGE, INC. and Edward L.

Nezelek, Inc., Respondents, v. Robert GORDON, as President of Local No. 545, International

Union of Operating Engineers, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 23, 1973.

Blitman & King, Syracuse, for appellant (Charles E. Blitman, Syracuse, Nathan H. Blitman and Thomas J. Maroney, Syracuse, of counsel).

Bryant, O'Dell & Basso, Syracuse, for respondents (Robert H. Basso, Syracuse, of counsel).

Ruth Kessler Toch, Sol. Gen., Louis J. Lefkowitz, Atty. Gen., Albany, amicus curiae on behalf of New York State Mediation Bd. (Lawrence L. Doolittle, Albany, of counsel).

Before GOLDMAN, P.J., and DEL VECCHIO, WITMER, SIMONS and HENRY, JJ.

OPINION

WITMER, Justice.

This is an appeal from a judgment (denominated 'order') granting the motion of Labor Relations Section of the Northern New York Builders Exchange, Inc. and Edward L. Nezelek, Inc. (Nezelek) to vacate an arbitrator's award and directing a new hearing before a new arbitrator.

The collective bargaining agreement between the parties hereto, Nezelek on the one hand and International Union of Operating Engineers (Union) on the other, provided that 'Where five (5) or more Engineers are employed on any one shift for any one contractor a Master Mechanic competent for the work shall be employed to supervise the operators * * *.' In work 'on the Music Hall project at the State Teachers College, Potsdam, New York' a dispute arose as to the meaning of the above clause of the contract, and it was submitted to arbitration to determine whether Nezelek violated that clause. An arbitrator, James P. McCabe, was duly appointed, conducted hearings and made an award in favor of the Union. During the early course of the hearings McCabe stated that he was a member of the Civil Service Employees Association (CSEA), joining primarily in order to gain advantage of the low group insurance premium rates which are available to members of that Association. Before the next hearing Nezelek sent a letter to McCabe objecting to his continuing as arbitrator not by reason of personal bias but solely because of his membership in CSEA. McCabe declined to retire as arbitrator, and the arbitration continued as above stated.

In his award McCabe stated that Nezelek had violated the agreement and 'shall pay the Master Mechanic rates of pay in accordance with the contract agreement on all occasions where 5 or more operating engineers were at work on the Music Hall project on or after April 29, 1971.'

Nezelek then moved to have McCabe modify his award 'by clarifying his intent, but not to re-examine the grounds of the award or to alter the decision, upon the ground that there is a mistake in the description of the category 'operating engineers' referred to in the said award, which can be corrected without affecting the merits of the decision'. The Union opposed the motion; and McCabe wrote an opinion in which he declined to modify the award and stated that the parties 'are fully aware of their respective positions' in the matter.

Nezelek then moved to vacate the award because of partiality of the arbitrator by reason of his membership in CSEA, because of the indefiniteness of the award and because of incidental procedural rulings, and asked for a new hearing before a new arbitrator. From Special Term's judgment granting the motion, 71 Misc.2d 130, 335 N.Y.S.2d 624, the Union appeals.

On the question of partiality of the arbitrator the record shows that no claim is made of misconduct or actual bias on his part, and that the motion to vacate was made and granted on the ground of the arbitrator's membership in CSEA, a union completely unrelated to the Union in this case.

We recognize that an arbitrator, like a judge, must not only be impartial but must be beyond reasonable suspicion of partiality (Commonwealth Coating Corp. v. Continental Casualty Co., 393 U.S. 145, 148--150, 89 S.Ct. 337, 21 L.Ed.2d 301), and this is particularly so because an arbitrator is not subject to disqualification on all the grounds which might disqualify a judge (Matter of Milliken Woolens (Weber Knit), 11 A.D.2d 166, 168, 202 N.Y.S.2d 431, 433--434, affd. 9 N.Y.2d 878, 216 N.Y.S.2d 696, 175 N.E.2d 826) and because an arbitration award is not reviewable by a court for errors of law or fact (Matter of Colony Liquor Distributors, Inc. (Local 669, International Brotherhood of Teamsters), 34 A.D.2d 1060, 1061, 312 N.Y.S.2d 403, 404--405, affd. 28 N.Y.2d 596, 319 N.Y.S.2d 849, 268 N.E.2d 645; Matter of Colletti (Mesh), 23 A.D.2d 245, 248, 260 N.Y.S.2d 130, 133, affd. 17 N.Y.2d 460, 266 N.Y.S.2d 814, 213 N.E.2d 894). But '(t)he type of relationship which would appear to disqualify is one from which it may not be unreasonable to infer an absence of impartiality, the presence of bias or the existence of some interest on the part of the arbitrator in the welfare of one of the parties' (Matter of Cross Properties, Inc. (Gimbel Brothers, Inc), 15 A.D.2d 913, 914, 225 N.Y.S.2d 1014, 1016--1017, affd. 12 N.Y.2d 806, 236 N.Y.S.2d 61, 187 N.E.2d 129). The mere innocent association with others is insufficient to disqualify an arbitrator (Matter of Schine...