Opinion
November 8, 1996.
Judgment unanimously reversed on the law without costs, petition dismissed, cross petition granted and award vacated.
Before: Present — Denman, P.J., Lawton, Fallon, Doerr and Balio, JJ.
Supreme Court erred in granting the petition to confirm the arbitration award. Because there was only one unit employee employed on a permanent basis by respondent, it was free to terminate petitioner and was not bound by the collective bargaining agreement to arbitrate the grievance ( see, Stack Elec., 290 NLRB 575).
There is no merit to the contention that respondent waived its right to challenge the arbitration. Respondent did not participate in the selection of an arbitrator or in any of the arbitration proceedings, and the demand for arbitration did not fulfill the requirements of CPLR 7503 (c) ( see, Matter of Calvin Klein Co. [Minnetonka, Inc.], 88 AD2d 503, 504). (Appeal from Judgment of Supreme Court, Erie County, Whelan, J. — Arbitration.)