In re the Arbitration between Fitzgerald & General Electric Co.

23 A.D.2d 288, 260 N.Y.S.2d 470, 59 L.R.R.M. (BNA) 2500, 1965 N.Y. App. Div. LEXIS 3958

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1965
• Status: Published

Opinions

McNally, J.

In this proceeding to compel arbitration in accordance with provision therefor in a collective bargaining agreement, the question presented is whether the grievances involve arbitrable disputes.

The collective bargaining agreement between petitioner and respondent dated October 27, 1960 provides for grievance procedure as to any dispute or grievance, and for arbitration thereof if it remains unsettled and involves ‘ ‘ the interpretation or application of a provision of this Agreement ’ ’, with the provision that if either party advises the American Arbitration Association that the grievance does not raise an arbitrable issue then it shall not have the authority to process the request for arbitration until a court has adjudicated the issue of arbitrability. Pending any grievance or dispute, the union covenants not to cause any strike or related action.

Respondent’s janitors, porters and charwomen, within bargaining units of respondent’s Baltimore and Fort Edward plants, are represented by petitioner’s Locals 120 and 332. On or about January 10,1961 and March 2,1961, Local 120 initiated grievances charging respondent with violations of articles I and XII of the agreement in that it subcontracted the work theretofore performed by members of Local 120. The relevant portion of article I is respondent’s recognition of the petitioner and its certified locals as the exclusive bargaining representatives of its employees within the certified units. The pertinent portion of article XII requires the application of certain factors in respect of layoffs or transfers, the major one being seniority.

The grievance procedures were exhausted. Petitioner requested arbitration on March 8, 1961 as to the grievance initiated in January, 1961, and on March 29, 1961 as to the one initiated in March, 1961. In each case the respondent advised the arbitration forum it was of the opinion the grievance did not raise an arbitrable issue. Petitioner on September 19, 1961 instituted this proceeding to compel arbitration. The order appealed from entered July 2, 1962 dismisses the petition on the ground that the disputes do ‘ ‘ not involve interpretation or application of any provision of the collective bargaining agreement ’ ’. By stipulation of the parties argument of this appeal was deferred pending the application for certiorari before the United States Supreme Court in International Union of Elec., Radio & Mach. Workers, AFL-CIO v. General Elec. Co. (infra).

The agreement provides its interpretation and application shall be governed by the law of the State of New York. Federal and New York State law are alike in respect of arbitration pursuant to collective bargaining agreements. (Matter of Long Is. Lbr. Co. [Martin], 15 N Y 2d 380.)

“ It is only where the parties have employed language which clearly rebuts the presumption of arbitrability, e.g., by stating that an issue either as to procedure or as to substance is not to be determined by arbitration, that the matter may be determined by the courts. In the absence of such unmistakably clear language, as here, the matter is sent to the arbitrator for his determination on the merits. (See Steelworkers v. Enterprise Corp., 363 U. S. 593 [1960]).” (Matter of Long Is. Lbr. Co. [Martin], supra, p. 385.)

The agreement here provides for arbitration of “ any dispute ”. The reservation of exclusive management authority in the respondent contained in article XXVII thereof does not serve to exclude from the all-inclusive provision for arbitration the grievances here involved. (Steelworkers v. Warrior & Gulf Co., 363 U. S. 574, 583.) The petitioner’s precontract demand for a limitation of the respondent’s subcontracting practice is irrelevant. (See dissenting opinion of Whittaker, J., in Steelworkers v. Warrior & Gulf Co., supra, p. 588.) (International Union of Elec., Radio Mach. Workers, AFL-CIO v. General Elec. Co., 332 F. 2d 485, 488-490, cert. den. 379 U. S. 928.)

On this record arbitration may not be denied because the disputes in issue are within the scope of the broad provision for arbitration and no provision of the contract serves to exclude them from arbitration. Moreover, if there were doubt, it would be “ resolved in favor of coverage ”. (Steelworkers v. Warrior & Gulf. Co., supra, p. 583; Matter of Long Is. Lbr. Co. [Martin], supra.)

The order should be reversed, on the law, with costs and disbursements to petitioner-appellant, and the motion to direct arbitration granted.