Opinion
February 19, 1981
Appeal from a judgment of the Supreme Court at Special Term, entered April 3, 1980 in Albany County, which granted an application to stay a demand for arbitration. The judgment of Special Term should be affirmed. The collective bargaining agreement of the parties, with certain exceptions, requires arbitration of "any question relating to its interpretation, or its violation" (art 13). However, section 3 of article 13 provides that "The following express provisions of this contract are not subject to this article: (a) Wage rates, (b) Welfare contributions and fringe benefits contributions, (c) Jurisdictional questions." It is clear that the issue in dispute between the principal parties involves the question of which Union Local No. 1456 or No. 78 has jurisdiction to perform certain work for respondent Higgins Erectors and Haulers, Inc. The Court of Appeals, in construing arbitration clauses in collective bargaining agreements, has held that "`only where the parties have employed language which clearly rebuts the presumption of arbitrability,' e.g., explicitly excluding a certain matter from arbitration, may the matter be held nonarbitrable and thus subject, in the final analysis, to judicial determination" (citation omitted) (Matter of Howard Co. v. Daley, 27 N.Y.2d 285, 289-290). The instant controversy presents such a situation (Central Steel Erecting Co. v. Mohawk Val. Dist. Counsel of United Brotherhood of Carpenters Joiners of Amer., Local No. 125, 33 A.D.2d 876, affd 28 N.Y.2d 796). Judgment affirmed, without costs. Sweeney, J.P., Main, Casey, Mikoll and Herlihy, JJ., concur.