In re the Arbitration between American Federation of Television & Radio Artists & General Electric Co.
This text of 38 Misc. 2d 763 (In re the Arbitration between American Federation of Television & Radio Artists & General Electric Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The petitioner, a labor union, moves for arbitration of an asserted dispute under a collective bargaining agreement entered into between said union and the respondent company on December 1,1960.
The company has interposed an answer and by cross- motion asks for a dismissal of the petition on the ground that it appears on the face of same to be insufficient in law to warrant the relief requested or, in the alternative, for an order granting respondent summary judgment and dismissal of the petition. Inasmuch as all the facts are before the court and the controversy presents questions of law, they will be decided together and disposed of on the merits.
The issue between the union and the company is whether the dispute which has arisen is arbitrable under the collective bargaining agreement. [See footnote at end of this opinion.] * The controversy arises out of the dismissal of Joseph Roulier on August 31, 1962 by the respondent. Mr. Roulier was one of its employees and a member of the union. He was a Staff Radio Specialist and conducted a music program known as “ Joe’s Show ” on Station W G Y.
In my opinion, the management responsibility clause is merely a reaffirmation of the common-law rule that the right to manage the business belongs exclusively to management. The union here has failed to point out how the controversy it seeks to arbitrate involves an express limitation on management rights. It has the burden of doing so. If such were not so, it would, in effect make any controversy arbitrable at the option of the union since any action taken by the company might be said to affect its employees in some way (Matter of Carborundum Co. [Swisher], 17 Misc 2d 231).
It is now well settled that unless the particular dispute is arbitrable under the agreement calling for arbitration, there is no duty to arbitrate, and that the arbitrability of the dispute is a question of law for the determination of the court (Matter of New York Mirror [Potoker], 5 A D 2d 423; Matter of Miller Art Co. [Firestone], 4 A D 2d 1032). Nor does the mere assertion of a dispute, unsupported by facts, establish the existence of a genuine arbitrable issue (Matter of Essenson [Upper Queens Med. Group], 307 N. Y. 68).
The intent of the parties must be ascertained from the agreement and my belief is that, under the circumstances that Mr. Roulier’s employment was terminated, it was not the intention of the union and the company that the subject dispute should be submitted to arbitration.
[765]*765It is to be noted that the arbitration clause of the agreement is not all-embracing, but is rather restrictive. It permits arbitration of “ any grievance which involves the interpretation or application of this Agreement ’ ’ and also denies the arbitrator the power to alter, amend, change, modify, add to or subtract from any of the provisions of this agreement. It is apparent then, that the parties to this agreement have confined themselves in the area of arbitration. That is — not every and any dispute or grievance relating to or in connection with the agreement shall be submitted to arbitration, but only those grievances involving interpretation or application of the agreement. Does the claim of the union give rise to a dispute involving the interpretation or application of this agreement? I think not.
An examination of clause 11 of schedule 1 discloses and is interpreted by this court to mean that provided the company does not terminate employment in violation of the National Labor Relations Act, it has the unfettered right to terminate employment for insubordination, incompetence or misconduct, and further, when discharge is for any cause but misconduct, the power of the company to discharge is unrestricted and its only obligation is to give the employee four weeks’ notice in writing of such termination or two weeks’ pay in lieu thereof. There is no claim that the company has not fully performed its obligation under said clause.
Further indication that the union and the company did not intend that all unresolved disputes should be submitted to compulsory arbitration is found in the “ no-strike ” provision (clause 14) of the agreement where the union has the alternative of either submitting the issue to arbitration or calling a strike or other work stoppage to enforce its demands, provided that the grievance has been processed in accordance with clause 12.
From the above I conclude and decide that the dispute in question does not involve interpretation or application of any provision of the collective bargaining agreement and that the petition of the union should be dismissed.
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Cite This Page — Counsel Stack
38 Misc. 2d 763, 238 N.Y.S.2d 743, 1963 N.Y. Misc. LEXIS 2191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-american-federation-of-television-radio-nysupct-1963.