In re the Arbitration between New York Mirror & Potoker

5 A.D.2d 423, 171 N.Y.S.2d 748, 1958 N.Y. App. Div. LEXIS 6509

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1958
• Status: Published

Opinions

McNally, J.

Respondent-appellant has served upon the petitioner-respondent a demand for arbitration of the claim that the collective bargaining agreement between the parties applies to seven named photographers. The collective bargaining contract is for the period from November 1, 1956 to October 31, 1958. Petitioner-respondent opposes arbitration on the grounds that the alleged grievance or dispute is not an arbitrable issue, and is not within the scope of the arbitration clause of the agreement.

Respondent-appellant, the bargaining representative of certain employees of the petitioner-respondent, was so certified by the National Labor Relations Board in 1938. Although petitioner-respondent has employed independent photographers since June, 1924, the respondent-appellant did not assert the right of representation as to them until July 2, 1957. The collective bargaining agreement provides, in part, as follows:

SbctiON 3. The term ‘employee’ as used in this contract, does not include contributors on a free lance basis whose products, such as news stories, feature stories, cartoons, art work and photographs are purchased by the Publisher.

The contract provisions relating to grievances and arbitration are as follows:

SECTION 14 —Adjustment op Disputes

A Grievance Committee designated by the Guild shall be established to settle amicably with the Publisher or his authorized representatives all grievances arising from the application of this agreement.

The parties agree to meet within five (5) days after notification by either side that it has a grievance open for discussion. The moving party shall state the nature of the grievance in writing in advance of the meeting.

If the parties fail to adjust the dispute within thirty (30) days after the initiation of the grievance procedure, it shall, upon motion of either party, he referred to arbitration under the voluntary labor arbitration rules then obtaining of the American Arbitration Association. Such arbitration shall he by an arbitration board consisting of two members appointed by the Guild and two members appointed by the employer and an impartial chairman selected by the American Arbitration Association according to its rules. The Arbitration Board’s award shall be final and binding.

The petition alleges and the respondent-appellant does not dispute the following facts: The content of section 3 has been in all collective bargaining contracts between the parties since 1938. The photographers involved furnish photographs to the petitioner which it may or may not purchase. The photographers purchase their own cameras and supplies for which they are not reimbursed; they are not covered by workmen’s compensation, unemployment insurance or withholding income tax; they submit to petitioner their own bills for the photographs; they own, operate, insure and maintain the automobiles used by them in obtaining photographs; they have no definite hours of work for the pétitioner and are not required to report for work at any time; and they receive no hourly, daily, weekly or any guaranteed compensation and their names are not on the petitioner’s payroll. Petitioner-respondent is not concerned with the means whereby the photographs are taken but concerns itself solely with the end product, that is, the photographs taken and submitted to it.

The respondent-appellant, on the other hand, asserting that the seven photographers are not free lance photographers, adverts to the following:

“ (a) The Employer makes direct assignments to some, or all of these individuals from the desk, often over a two-way radio.

“ (b) During the month of August one of these individuals had more pictures printed in the New York Mirror than did any admitted employee photographer.

“ (c) Some, or all of these individuals have two-way radios in their cars for which they are required to have Police Department permits. These permits will not be issued unless the persons seeking them hold press cards and present certification from the editor that they represent the newspaper.

“ (d) Some, or all of these individuals also hold highly cherished special parking cards issued by the Police Department to those persons whose names appear on a select list furnished by the Employer.

“ (e) Some, or all of these individuals have New York Press Registration Licenses which they obtained from the Motor Vehicle Bureau after the Employer had put in a request for them.

“ (f) On certain hours of the day or night some, or all of these individuals furnish the only photographic coverage the Employer has for given boroughs of the city.

“ (g) Some, or all of these individuals appear to work exclusively for the Employer.”

Whether an arbitrable dispute is present is a matter of law to be determined by the court. In that determination the inquiry is whether there is any basis for the claim underlying the asserted dispute. A frivolous claim will not move the court to compel arbitration. (Matter of Wenger & Co. v. Propper Silk Hosiery Mills, 239 N. Y. 199, 202.) A dispute is not arbitrable if it is grounded on an asserted interpretation of the agreement contrary to unambiguous provisions thereof. (Matter of General Elec. Co. [United Elec. Radio & Mach. Workers], 300 N. Y. 262.)

Under well-established legal principles, the photographers, around whom this alleged dispute revolves, are independent contractors and not employees. (Hexamer v. Webb, 101 N. Y. 377; Matter of Beach v. Velzy, 238 N. Y. 100; Matter of Boardway v. Kellas, 258 N. Y. 545; People ex rel. Feinberg v. Chapman, 274 App. Div. 715.) Nevertheless, the parties were at liberty to include them within their definition of “ employee ”. (Matter of Wenger & Co. v. Propper Silk Hosiery Mills, supra.) We are required to decide whether that was done.

Section 3 of the collective bargaining agreement excludes from the ambit of “ employee ” those whose “ photographs .are purchased by the Publisher ”. The photographers here involved do not meet the objective test formulated by the parties. The factors adverted to by the respondent as probative on the issue involved do not serve to alter the fact that the photographs of the said photographers were purchased by and they received no other remuneration from the petitioner. That the making of the photographs may have been preceded by direct assignments from the petitioner, possibly over a two-way radio; or that the two-way radios in the cars owned by the photographers required police permits based upon certification from the petitioner’s editor that they represented the petitioner’s newspaper; or that these individuals held special parking cards issued by the Police Department because their names were on a select list furnished by tbe petitioner; or that they possessed registration licenses obtained from tbe Motor Vehicle Bureau denominated press registration licenses and resulting from a request by tbe petitioner are all irrelevant on whether in tbe light of the objective test therein provided the said photographers are free lance photographers within the meaning of section 3 of the collective bargaining agreement. ' None of the said factors is relevant on whether in the light of section 3 these photographers are employees within the scope of the collective bargaining agreement, the ultimate issue herein. The other factors relied on by the appellant are equally irrelevant. The mere assertion of a dispute, unsupported by facts, does not establish the existence of a bona fide arbitrable issue. (Matter of Essenson [Upper Queens Med. Group], 307 N. Y. 68.) Moreover, if the dispute involves the interpretation of the agreement wherein is found the arbitration clause, then, even though the scope of the latter enables the arbitrator to resolve a disputed construction, if the language of the agreement permits of only one tenable construction, there is no arbitrable dispute as a matter of law. (Matter of General Elec. Co. [United Elec. Radio & Mach. Workers of America], supra; Alpert v. Admiration Knitwear Co., 304 N. Y. 1; Matter of International Assn. of Machinists [Cutler-Hammer, Inc.], 271 App. Div. 917, affd. 297 N. Y. 519; Matter of Sarle [Sperry Gyroscope Co.], 4 A D 2d 638.)

Respondent-appellant concedes that the determination of the question here involved turns on the interpretation of the collective bargaining agreement. The opposing affidavit, sworn to October 1, 1957, states:

“ 15. The issue of whether a person who furnishes labor to the Employer is an employee or a free-lance contributor, or something else, is an issue which can be decided only by interpretation of the agreement. In short, the issue in this proceeding is: are óne or more or all of the seven photographers employees or are they ‘ contributors on a free-lance basis,’ as that term appears in Section 3 of the agreement?”

We have assumed that the scope of the arbitration clause includes a dispute involving the interpretation of the provisions of the collective bargaining agreement. We find, however, that the grievance and arbitration clause is of limited scope. Section 14 of the collective bargaining agreement provides for the amicable settlement of “all grievances arising from the application of this agreement.” Failure of adjustment of grievances is to be followed by arbitration upon motion of either party. It will be noted that the grievances within section 14 are those “arising from the application of this agreement”. No provision is made for grievances relating to “interpretation”, nor does the grievance and arbitration machinery apply to any dispute arising from or relating to the collective bargaining agreement. We may not ignore the limitation adopted by the parties in defining the scope of the grievances subject to settlement and arbitration for it is well established that an express agreement to arbitrate clearly assented to is required and will not be implied. (Matter of Lehman v. Ostrovsky, 264 N. Y. 130; Matter of Kelley, 240 N. Y. 74; Matter of Eagar Constr. Corp. v. Ward Foundation Corp., 255 App. Div. 291.)

The“ application of this agreement ’’necessarily involves the comparison of the collective bargaining agreement with a complex of external facts. There are here present an external complex of facts and a collective bargaining agreement. The question is: Does the right to apply the agreement to the facts pertaining to the photographers involved include the right to interpret the provisions of the collective bargaining agreement1! We feel that the answer must be in the negative in the absence of express provision unambiguously subjecting the interpretation of the collective bargaining agreement to arbitration.

No case cited to us involved an arbitration clause similarly limited as section 14 of the agreement herein. The cases relied on by the appellant did not involve an arbitration clause such as is presently before us and are otherwise distinguishable. In Matter of Kraft Foods Co. (Coughtry) (204 Misc. 959, affd. 282 App. Div. 1090) the written contract provided for arbitration of “ any dispute or misunderstanding concerning the application or interpretation of the provisions of the collective bargaining agreement.” The court there did not find it necessary to distinguish between “ application ” and “ interpretation ” since they were both embraced within the provisions of the arbitration clause. Here, on the other hand, section 14 limits itself to grievances arising from the “application of” the collective bargaining agreement.

In Matter of Rugen (North Amer. Philips Co.) (20 Labor Arbitration Reports 878, affd. 282 App. Div. 931, motion for leave to appeal granted 306 N. Y. 688 [appeal withdrawn Jan. 18, 1955]) the agreement provided for the settlement of all differences, disputes and grievances that may arise between the union and the employer and for the submission to arbitration thereof in the event of failure of settlement. The provision for arbitration in Rugen was patently of greater scope than the one here involved and included therein a dispute with regard to the interpretation of the collective bargaining agreement.

Matter of Royal Typewriter Co. (Mechanical & Elec. Workers Union) (2 Misc 2d 159, affd. no opinion 277 App. Div. 982) involved an arbitration clause which provided, in part, as follows : ‘ ‘ The decision in arbitration shall be rendered in writing stating the reasons for the interpretation of the agreement and its application to the particular case ’ ’. The significance of this case is twofold. In expressly providing for the interpretation of the agreement on the part of the arbitrators, the Royal agreement distinguishes itself from the one here involved and, in providing* conjunctively for the right on the part of the arbitrators to determine the application of the collective bargaining agreement to “ the particular case ”, the Royal agreement recognizes the distinction between interpretation and application with which we are presently concerned. None of the other cases cited to us by the appellant supports the contention that an arbitration clause providing for the arbitration of grievances relating to the application of the agreement of which it is a part includes within its scope a dispute relating to the interpretation of the agreement.

If we assumed for the purpose of this decision that the arbitration clause herein reaches a dispute involving the interpretation of the collective bargaining agreement, we, nevertheless, would conclude there is no arguable basis for the appellant’s asserted interpretation of section 3. Were the facts adverted to by the appellant given effect in the interpretation of section 3, then we would acknowledge a possible basis for a determination in arbitration including the photographers here involved within the category of employees of the petitioner, which would serve to nullify the provisions of section 3 of the collective bargaining agreement. To enable such a result would do violence to the agreement of the parties.

We conclude, as a matter of law, that appellant has failed to establish an arbitrable dispute within the terms of the arbitration clause of this agreement.

The order staying arbitration and denying the cross motion to compel arbitration should, therefore, be affirmed, with costs.