Potoker, In re

• Decision Date: 13 December 1955
• Citation: 146 N.Y.S.2d 616,286 A.D. 733
• Parties: Matter of M. Michael POTOKER, as Secretary-Treasurer of Newspaper Guild of New York, Local 3, ANG, CIO, Petitioner-Appellant, and Brooklyn, Eagle, Inc., Respondent Cross-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 616

146 N.Y.S.2d 616

286 A.D. 733

Matter of M. Michael POTOKER, as Secretary-Treasurer of Newspaper Guild of New York, Local 3, ANG, CIO Petitioner-Appellant, and Brooklyn Eagle, Inc., Respondent Cross-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 13, 1955.

Herman E. Cooper, New York City, of counsel (H. Howard Ostrin, New York City, Lippman Bodoff, Brooklyn, and Eugene N. Sosnoff, New York City, on the brief; Cooper, Ostrin & De Varco, New York City, attorneys) for petitioner-appellant-respondent.

David L. Benetar, New York City, of counsel (Oscar A. Lewis, Brooklyn, H. H. Nordlinger, Robert C. Isaacs, New York City, Julius L. Rassner, Brooklyn, and A. F. Schaeffner, New York City, on the brief; Nordlinger, Riegelman, Benetar & Charney, New York City, attorneys) for respondent-cross-appellant.

Before PECK, P. J., and BASTOW, BOTEIN, COX, and BERGAN, JJ.

COX, Justice.

Newspaper Guild of New York, Local 3, ANG, CIO (hereinafter referred to as 'Guild') moved to compel arbitration of controversies it claimed existed under a collective bargaining agreement with Brooklyn Eagle, Inc. (hereinafter referred to as 'Employer'), dated November 30, 1952, affecting Employer's editorial and commercial department employees. The learned Special Term Justice has held that (1) the commencement of a strike by the Guild constituted a repudiation by the employees of the continued existence of the contract; (2) all claims based on acts or omissions arising subsequent to termination of the contract are not arbitrable under the contract and, accordingly, (3) the claims for severance and notice of dismissal pay may not be arbitrated, while claims for overtime, holiday and accrued vacation pay should be submitted to arbitration. Each party appeals from so much of the order entered as is adverse to it, though the Employer has since abandoned so much of the appeal as relates to holiday and overtime pay and argues for a reversal only in respect of vacation pay.

The agreement between the parties stipulates a two-year term ending November 29, 1954, and provides that within the period of 60 to 90 days prior to the fixed terminal date, either party may give notice of a desire to change the terms of the contract, in which event the parties were to promptly open and carry on with due diligence negotiations until terminated by either party and meanwhile maintain the status quo; and that 'any dispute, claim, grievance or difference arising out of or relating to this agreement shall be arbitrated.'

On September 1, 1954, the Guild gave notice of its desire to modify the contract 'Pursuant to the provisions of the Labor-Management Relations Act, 1947 [29 U.S.C.A. § 141 et seq.]'. The parties thereafter negotiated but failed to reach any agreement. On January 28, 1955, the Guild called a strike and the employees quit work. Up to that time the status quo had been maintained. Negotiations continued until March 8, 1955, when they terminated. On March 16, 1955, the Employer by letter addressed to the Guild formally terminated the negotiations and informed the Guild that it would never resume publication of the Brooklyn Eagle. On the same day, the Guild demanded severance, accrued vacation, unpaid overtime, holiday, notice of dismissal and sick leave pay and any other moneys due to the employees. Ten days later, the Guild served a demand for arbitration on those issues which the Employer rejected on the ground that no contract for arbitration existed.

The Employer claims that the Guild breached and terminated the contract (1) by calling a strike on January 28, 1955, thereby violating the status quo provisions of the contract, and (2) by terminating negotiations on March 8, 1955, in that it refused to meet with the Employer in joint session, as a consequence of which there was no agreement for arbitration in existence. The Guild contends that the Employer terminated the negotiations and in effect discharged all employees on March 16, 1955, when it wrote to the Guild that because of the Guild's strike and refusal to meet in joint session with the Employer on March 8th an 'insoluble impasse' had been reached and stated further 'We agree that further negotiations will be futile, and we elect to, and hereby do, terminate them forthwith' and 'we do not intend ever to resume publication of the newspaper.' The issues on this appeal are, therefore, limited to the propriety of the refusal to direct arbitration of the claims for vacations, severance and notice of dismissal pay.

The agreement of the parties expressly provides for overtime, vacation, holiday, severance, and notice of dismissal pay. Claims referable to such provisions certainly 'arise out of or relate to' the contract, which specifically prescribes arbitration as the method for determination of all disputes. Lipman v. Haeuser Shellac Co., 289 N.Y. 76, 43 N.E.2d 817, 142 A.L.R. 1088; Application of Teschner (Livington) 285 App.Div. 435, 137 N.Y.S.2d 901.

The arbitration clause of the contract is phrased in the broadest and most comprehensive language, embracing 'any dispute, claim, grievance or difference arising out of, or relating to,' the agreement. The intention of the parties, manifest therein, to dispose of all of their disputes by arbitration should be enforced. Riverbrand Rice Mills v. Latrobe Brewing Co., 305 N.Y. 36, 110 N.E.2d 545.

Whether the contract has been terminated by acts of the employer or of the Guild is in dispute, and is, therefore, an issue determinable by the arbitrators. 'Before compelling arbitration it was not necessary for the court to determine that the contract was either performed by one party or breached by the other.' Lipman...