Opinion
June 15, 1967
Order entered February 17, 1967, referring the issue of the arbitrator's authority to Trial Term for a hearing unanimously modified, on the law and the facts and as a matter of discretion, by vacating the direction for a hearing and vacating the award, with $30 costs and disbursements to appellant. The parties entered into a collective bargaining agreement which contains two provisions for arbitration. Section 6 of the contract provides for the use of defendant's trucks and for possible loss of work to the drivers resulting from repairs to or sale of those trucks. Any dispute under this provision is to be arbitrated before a named impartial arbitrator. All other disputes are to be arbitrated by arbitrators named by specified agencies. Respondent union made a demand for arbitration pursuant to section 6. Petitioner requested a specification of the nature of the dispute, but none was forthcoming. Upon the arbitration it appeared that the union was contesting the assignment of drivers belonging to another union to certain trucks. As soon as this became apparent, respondent protested the jurisdiction of the impartial arbitrator, as the dispute was not a matter arising under section 6. The arbitrator reserved decision, and it was not until announcement of his decision that respondent learned that the impartial arbitrator had determined issues outside his jurisdiction. We agree with Special Term that petitioner was not precluded from raising the question of the arbitrator's jurisdiction by participating in the arbitration. It would be otherwise if the participation were had knowingly, that is, if petitioner was aware of the matters proposed to be arbitrated and failed to avail himself of the designated procedures ( Matter of National Cash Register Co. [ Wilson], 8 N.Y.2d 377) or agreed to submit to the arbitrator the question of his jurisdiction ( Matter of Kessler [ National Cas. Co.], 8 A.D.2d 105). While both of these matters may, in certain cases, present issues of fact, Special Term found no such issue presented in the papers on this application. Nor do we. The only other question, whether the dispute in issue arose under section 6 or under other sections of the agreement, in the absence of dispute as to the nature of the grievance complained of, presents an issue of law only, which the court should have decided. We find that the issue presented for arbitration was clearly outside the provisions of section 6, and no serious contention to the contrary could be made. The award should therefore be vacated.
Concur — Steuer, J.P., Capozzoli, Tilzer, Rabin and McGivern, JJ.