Newark Milk & Cream Co. v. Local 680 of Intern. Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, No. A--808

• Court: New Jersey Superior Court – Appellate Division
• Citation: 12 N.J.Super. 36,78 A.2d 839
• Decision Date: 15 February 1951
• Parties: NEWARK MILK & CREAM CO. v. LOCAL 680 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN& HELPERS OF AMERICA.
• Docket Number: No. A--808

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12 N.J.Super. 36 78 A.2d 839 NEWARK MILK & CREAM CO.
v.
LOCAL 680 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN& HELPERS OF AMERICA. No. A--808. Superior Court of New Jersey
Appellate Division. Argued Jan. 22, 1951.
Decided Feb. 15, 1951.

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Thomas L. Parsonnet, Newark, argued the cause for the defendant-appellant (Parsonnet, Weitzman & Oransky, Newark, attorneys).

Edward J. Gilhooly, Newark, argued the cause for the plaintiff-respondent (Gilhooly & Yauch, Newark, attorneys).

Before Judges FREUND, PROCTOR and ROGERS.

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The opinion of the court was delivered by

FREUND, S.J.A.D.

The plaintiff employer sought arbitration of the dispute in controversy, under the provisions of the collective bargaining agreement with the defendant union. The union filed an answer admitting the agreement, but denying that the alleged dispute raised an arbitrable issue, and demanded trial by jury pursuant to the provisions of R.S. 2:40--13, N.J.S.A. At the close of the case before the court and a jury, on motion of the plaintiff the court directed arbitration,[78 A.2d 840] and the defendant appeals. The questions are (1) was the case properly removed from the consideration of the jury and (2) is the dispute arbitrable.

A collective bargaining agreement was entered into between the parties on December 6, 1949, providing Inter alia, that 'Any and all disputes and controversies arising under or in connection with the terms or provisions of this agreement, or in connection with or relating to the application or interpretation of any of the terms or provisions hereof, or in respect to anything not herein expressly provided but germane to the subject matter of this agreement, which the representatives of the Union and the Employer have been unable to adjust, shall be submitted for arbitration to an arbitrator selected from a list of arbitrators to be furnished by the Federal Mediation and Conciliation Service in each case. * * *'

During the early months of 1950 the plaintiff notified the defendant that it planned to sell one of its milk routes in the City of Hoboken to a person not an employee of the plaintiff. The defendant contended that the plaintiff was prohibited from so doing by reason of Section 18 of the contract: 'No new crafts subject to Union jurisdiction are to be created except with the joint approval of the employer and the union.' The plaintiff thereupon sought to arbitrate the dispute, but the union refused to comply, contending that the issue was not arbitrable, that the sale of the route constituted the creation of a new craft which under the foregoing section required the joint approval of the union and the employer. The pleadings formulated the issues above set forth.

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I.

The pertinent statute, R.S. 2:40--13, N.J.S.A., is as follows:

'The justice or judge shall hear the parties and if satisfied that the making of the agreement or a failure to comply therewith is not in issue, shall make...