Burke, J.
The appellant, pursuant to a collective bargaining agreement, demanded arbitration as to “ The Company’s unjust discharge of Mr. Joseph Klementowicz on September 12,1961 ”. A motion to stay arbitration was denied. The Appellate Division has reversed and stayed the arbitration on the ground that the claim was submitted to and ruled on by the National Labor Delations Board.
We find that, after an issue of the alleged discharge of employee Klementowicz has been submitted by the appellant and decided under a National Labor Delations Board decertification election proceeding, the claim of discharge is no longer an open one and the parties shall not thereafter have any rights to submit a grievance on that particular issue to arbitration. The board, we think, made a final determination of such dispute. It found: “ The Employer challenged the ballot of Joseph A. Klementowicz on the ground that the challenged voter had voluntarily quit his job on September 12, 1961, and accordingly is not eligible. On the day preceding the election, Petitioner filed a charge alleging that the Employer discharged said employee for Union activity. The said charge has been dismissed and consequently it must be concluded that Klementowicz was no longer an employee of the Employer when the election was held and hence was not an eligible voter. It follows that the challenge to the ballot of Klementowicz should be sustained.”
This finding makes it clear that no bona fide or undetermined dispute presently exists.
The evidence before the National Labor Eelations Board showed that Klementowicz was hired by the respondent on June 5,1961. On July 13 another employee filed a petition with the National Labor Eelations Board for the purpose of decertification of the appellant as collective bargaining representative. On September 7, 1961 Klementowicz received a telegram from Curtiss-Wright recalling* him to his job with that company. On Friday, September 8, he underwent a physical examination at Curtiss-Wright and agreed to report on September 18. The challenge by the respondent to the ballot of Klementowicz was [184]*184based on the fact that he notified the company of his resignation on Saturday, September 9, terminating his employment on Tuesday, September 12, two days before the election to be held on Thursday, September 14.
On September 13, the day immediately preceding the decertification election, the appellant by its business agent filed two grievances with the National Labor Relations Board. One dealt with an alleged discharge of Klementowicz. It read ‘ ‘ In violation of the contract Joseph Klementowicz has been discharged without cause. Immediate reinstatement with full back pay is requested ” (emphasis added). This is the same contract grievance which the appellant now seeks to arbitrate.
Appellant also filed an unfair labor practice charge covering the same grievance alleging he was discharged for union activity. In its reply to these charges the respondent advised the National Labor Relations Board that Klementowicz had voluntarily resigned his job with the respondent. After investigation, the unfair labor practice charge was dismissed. Appellant appealed to the General Counsel. This appeal was dismissed and the determination of the Regional Director affirmed.
Appellant also attempted to have Klementowicz vote in the election. His sealed ballot was held by the National Labor Relations Board pending investigation of the challenge filed by the employer. Letters were submitted by appellant and respondent. Respondent recited facts in support of the challenge which it alleged proved that Klementowicz had voluntarily quit his job. The letter of appellant, after noting that the unfair labor charge had been dismissed, closed with this statement:
1 ‘ Thus, whether or not the Company acted with discriminatory animus against Mr. Klementowicz in terminating him, Ms discharge was nevertheless patently ‘ without just cause ’, within the meaning of the contract and occurred at a time when there was ample work available for him. Indeed, Mr. Klementowicz had worked overtime the previous Saturday.
“ 4. It is my considered judgment on the basis of an extensive experience in labor arbitrations that the ultimate reinstatement of Mr. Klementowicz with full back pay through an arbitration award is virtually assured. Accordingly, it is respectfully requested that should the Regional Director not be inclined to subject the challenge to Mr. Klementowicz’ ballot on the basis [185]*185of the available evidence, the decision on this challenge be deferred until an award has been rendered in the pending arbitration case.”
When the challenge of the respondent was upheld with the finding of the National Labor Relations Board set forth above, the appellant sought a review. In that letter it said: “ We will not at this time attempt to indicate any grounds which we believe are sufficient for countering the company’s contention in the New York State Supreme Court. We are concerned in achieving justice and equity under the National Labor Relations Act. We were of the opinion that such was forthcoming, having had an informal assurance that the Regional Director’s determination of the challenge to Mr. Klementowicz’s ballot in the September 14,1961 election will be held pending the arbitration. The notice received by this office sustaining the objection and decertifying Local 463 as bargaining representative is an obvious repudiation of these assurances which we so strongly relied apon. * * * We submit that unless the Regional Director is required to withdraw his substantiation to the challenge of the aforementioned ballot and withdraw his finding that a majority of Federal Tool & Instrument employees have not chosen Local 463 to act as their bargaining representative, inequities and injustice then become the fruits of anti-union activity.”
If the union believed that the issue in the arbitration proceedings was different from the issue before the Regional Director it would not have sought to have the decision deferred. The issue of resignation involved in the decision on the employee’s challenged ballot was squarely presented to the Regional Director. The employer stated that its challenge was based upon the fact that the employee had voluntarily resigned before the election. The union, on the other hand, alleged that he had not resigned at that time, and he did not intend to resign until after the election, since he had agreed to return to his old job at Curtiss-Wright after the election had been held. Thus the Regional Director could not have decided whether Klementowicz’ ballot should be counted unless he first decided whether Klementowicz resigned voluntarily or was discharged by the employer in violation of rights derived under the collective bargaining contract.
[186]*186Here the issue is the same, i.e., whether or not the employee was properly dismissed (which would include his voluntary resignation) according to the provisions of his employment rights under the collective bargaining contract. This is so because originally, as we said, the union not only assorted that the dismissal amounted to an unfair labor practice, but also charged that the employee’s contract rights had been violated by the allegedly wrongful dismissal. The unfair labor practice charges were dismissed but this eoncededly does not resolve all the questions raised by the alleged wrongful dismissal.
Free access — add to your briefcase to read the full text and ask questions with AI
Burke, J.
The appellant, pursuant to a collective bargaining agreement, demanded arbitration as to “ The Company’s unjust discharge of Mr. Joseph Klementowicz on September 12,1961 ”. A motion to stay arbitration was denied. The Appellate Division has reversed and stayed the arbitration on the ground that the claim was submitted to and ruled on by the National Labor Delations Board.
We find that, after an issue of the alleged discharge of employee Klementowicz has been submitted by the appellant and decided under a National Labor Delations Board decertification election proceeding, the claim of discharge is no longer an open one and the parties shall not thereafter have any rights to submit a grievance on that particular issue to arbitration. The board, we think, made a final determination of such dispute. It found: “ The Employer challenged the ballot of Joseph A. Klementowicz on the ground that the challenged voter had voluntarily quit his job on September 12, 1961, and accordingly is not eligible. On the day preceding the election, Petitioner filed a charge alleging that the Employer discharged said employee for Union activity. The said charge has been dismissed and consequently it must be concluded that Klementowicz was no longer an employee of the Employer when the election was held and hence was not an eligible voter. It follows that the challenge to the ballot of Klementowicz should be sustained.”
This finding makes it clear that no bona fide or undetermined dispute presently exists.
The evidence before the National Labor Eelations Board showed that Klementowicz was hired by the respondent on June 5,1961. On July 13 another employee filed a petition with the National Labor Eelations Board for the purpose of decertification of the appellant as collective bargaining representative. On September 7, 1961 Klementowicz received a telegram from Curtiss-Wright recalling* him to his job with that company. On Friday, September 8, he underwent a physical examination at Curtiss-Wright and agreed to report on September 18. The challenge by the respondent to the ballot of Klementowicz was [184]*184based on the fact that he notified the company of his resignation on Saturday, September 9, terminating his employment on Tuesday, September 12, two days before the election to be held on Thursday, September 14.
On September 13, the day immediately preceding the decertification election, the appellant by its business agent filed two grievances with the National Labor Relations Board. One dealt with an alleged discharge of Klementowicz. It read ‘ ‘ In violation of the contract Joseph Klementowicz has been discharged without cause. Immediate reinstatement with full back pay is requested ” (emphasis added). This is the same contract grievance which the appellant now seeks to arbitrate.
Appellant also filed an unfair labor practice charge covering the same grievance alleging he was discharged for union activity. In its reply to these charges the respondent advised the National Labor Relations Board that Klementowicz had voluntarily resigned his job with the respondent. After investigation, the unfair labor practice charge was dismissed. Appellant appealed to the General Counsel. This appeal was dismissed and the determination of the Regional Director affirmed.
Appellant also attempted to have Klementowicz vote in the election. His sealed ballot was held by the National Labor Relations Board pending investigation of the challenge filed by the employer. Letters were submitted by appellant and respondent. Respondent recited facts in support of the challenge which it alleged proved that Klementowicz had voluntarily quit his job. The letter of appellant, after noting that the unfair labor charge had been dismissed, closed with this statement:
1 ‘ Thus, whether or not the Company acted with discriminatory animus against Mr. Klementowicz in terminating him, Ms discharge was nevertheless patently ‘ without just cause ’, within the meaning of the contract and occurred at a time when there was ample work available for him. Indeed, Mr. Klementowicz had worked overtime the previous Saturday.
“ 4. It is my considered judgment on the basis of an extensive experience in labor arbitrations that the ultimate reinstatement of Mr. Klementowicz with full back pay through an arbitration award is virtually assured. Accordingly, it is respectfully requested that should the Regional Director not be inclined to subject the challenge to Mr. Klementowicz’ ballot on the basis [185]*185of the available evidence, the decision on this challenge be deferred until an award has been rendered in the pending arbitration case.”
When the challenge of the respondent was upheld with the finding of the National Labor Relations Board set forth above, the appellant sought a review. In that letter it said: “ We will not at this time attempt to indicate any grounds which we believe are sufficient for countering the company’s contention in the New York State Supreme Court. We are concerned in achieving justice and equity under the National Labor Relations Act. We were of the opinion that such was forthcoming, having had an informal assurance that the Regional Director’s determination of the challenge to Mr. Klementowicz’s ballot in the September 14,1961 election will be held pending the arbitration. The notice received by this office sustaining the objection and decertifying Local 463 as bargaining representative is an obvious repudiation of these assurances which we so strongly relied apon. * * * We submit that unless the Regional Director is required to withdraw his substantiation to the challenge of the aforementioned ballot and withdraw his finding that a majority of Federal Tool & Instrument employees have not chosen Local 463 to act as their bargaining representative, inequities and injustice then become the fruits of anti-union activity.”
If the union believed that the issue in the arbitration proceedings was different from the issue before the Regional Director it would not have sought to have the decision deferred. The issue of resignation involved in the decision on the employee’s challenged ballot was squarely presented to the Regional Director. The employer stated that its challenge was based upon the fact that the employee had voluntarily resigned before the election. The union, on the other hand, alleged that he had not resigned at that time, and he did not intend to resign until after the election, since he had agreed to return to his old job at Curtiss-Wright after the election had been held. Thus the Regional Director could not have decided whether Klementowicz’ ballot should be counted unless he first decided whether Klementowicz resigned voluntarily or was discharged by the employer in violation of rights derived under the collective bargaining contract.
[186]*186Here the issue is the same, i.e., whether or not the employee was properly dismissed (which would include his voluntary resignation) according to the provisions of his employment rights under the collective bargaining contract. This is so because originally, as we said, the union not only assorted that the dismissal amounted to an unfair labor practice, but also charged that the employee’s contract rights had been violated by the allegedly wrongful dismissal. The unfair labor practice charges were dismissed but this eoncededly does not resolve all the questions raised by the alleged wrongful dismissal. We agree that it is possible that a discharge could be in violation of the employee’s contract rights and not amount to unlawful discrimination for union activity as would be prohibited by the National Labor Relations Act. Had the investigation and dismissal of the unfair labor practice charge been the only question resolved by the National Labor Relations Board procedure in this case, the arbitration of the contractual aspects of the alleged dismissal would necessarily be viewed by us in a much different light. It would appear that in such a case the contract violation issue would not be decided by the National Labor Relations Board and could properly be the subject of arbitration or court action under the collective bargaining contract. However, such is not the situation before us.
Decisions of the National Labor Relations Board and the Federal courts are here not apposite, as we are not here deciding whether or not the Federal labor legislation prohibits a court or arbitrator from considering the issue of Klementowicz ’ alleged discharge. We are not here concerned with pre-emption, but rather with the question of whether or not we will hold open our tribunals, our courts and our arbitration rooms for the adjudication of an issue which has been considered and resolved by this competent National labor tribunal. Both parties in this arbitration proceeding were before the Regional Director in the decertification proceedings, both sides were heard and the issue raised in the present proceedings was examined and decided by the Regional Director when he sustained the employer’s challenge to Klementowicz’ ballot. Under these circumstances the grievance alleging an unjust discharge is no longer an open question and may not now be submitted to the arbitrators.
[187]*187The order of the Appellate Division should be affirmed, with costs.