Simon v. Stag Laundry, Inc.

259 A.D. 106, 18 N.Y.S.2d 197, 1940 N.Y. App. Div. LEXIS 6057

Opinions

Per Curiam.

One Gingold, who had been in the employ of the appellant as a routeman, was discharged. In his behalf respondent union claimed that the discharge was without cause. Appellant, on the other hand, asserted that Gingold was discharged because of certain irregularities in the performance of his duties constituting dishonesty.

The controversy was submitted for arbitration to the impartial chairman as provided in an agreement previously entered into between appellant and the union. After several hearings the impartial chairman made his award which directed that the employee be. reinstated on probation with loss of pay for four weeks; he coupled his decision with a warning to all routemen of the firm that they would be held strictly accountable for any act of irregularity and be subject to discharge therefor. The impartial chairman, however, failed to make any finding on the one issue which was before him, namely, as to whether Gingold’s discharge was wrongfully effected.

The pertinent portion of the agreement between respondent union and appellant reads as follows: “ In the event that a discharge is determined by the Impartial Chairman to have been wrongfully effected, such discharged employee shall be immediately re-instated.”

We are unable to agree with the respondent’s claim that the award made necessarily implies that the impartial chairman found that the discharge was unjustified. The fact that the arbitrator imposed a loss of four weeks’ pay leads to no other conclusion than that the discharge was not wrongfully effected.

The award should be vacated and the controversy should be remitted to the impartial chairman for disposition in accordance with the terms of the arbitration agreement.

The judgment and order accordingly should be reversed, with costs, and the motion to confirm the award of the arbitrator denied.

Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.; Dore, J., dissents and votes to affirm.