Opinion
March 23, 1944.
Abraham Mann for petitioner.
Buitenkant Cohen for respondent.
Motion to stay arbitration is granted. I see no need to order the preliminary trial mentioned in section 1458 of the Civil Practice Act for I see no factual issue involved. It is the claim of the union that there is involved a dispute with the employer concerning the question of sick leave with pay for any employee of the company.
The final agreement of the parties provides for arbitration of any dispute arising by virtue of the provisions of the contract. It is conceded in the opposing affidavit that there is no clause in the contract providing for sick leave, but it is claimed that the employer has recognized on occasion other matters not in the contract, i.e., privileges enjoyed by the employees previous to the signing of the collective bargaining agreement.
Be that as it may, the willingness of the employer to do so in a particular instance does not constitute an agreement on his part that anything not in the agreement may at all times be made the subject of arbitration. He has the right to stand on the terms of the agreement and to insist that its terms shall be respected and adhered to by the union. The undisputed fact is that sick leave is not a matter or subject covered by any of the provisions of the final contract and any dispute claimed by the union with reference to that feature is not and does not constitute a dispute relating to any matter in or arising out of the contract.
There is no tenable claim of opposition to the application and in my opinion the applicant, as employer, is clearly entitled to a permanent stay upon the ground that there is no arbitrable dispute involved. A permanent stay of the proposed arbitration is granted (Civ. Prac. Act, § 1458, subd. 2). Settle order.