Petition for Writ of Certiorari — Brooklyn Eagle, Inc. v. Potoker (No. 498)

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“ ' ae ; | Wwe, Ye

oe eee Oe TY

| ren : . SEP 23 1957

IN THE.

_ ene Gout of the Mnited States —o

| October — 1967

Tia gaa ese me

y ? - No | : AED

s - - “A “4 9 S - a a . Ae sos.

BROOKLYN EAGLE, IN C, |

Pe | i, , Petitioner,

% ‘V8. / ,

M: MICHAEL POTOKER, as ay Se of

New spaper Guild ae: New York; Local 3, ANG, CIO, °

* : i _ Respondent.

TES fan :

= Gi a -— a 80

PETITION FOR A WRIT OF CERTIORARI To

THE NEW YORK COURT OF: APPEALS AND

THE SUPREME COURT OF THE STATE OF

— haar, COUNTY OF NEW YORK

- Henry Ht. ancient

N ORDLINGER, RIgcELMgN, BEngTsR

pec em @ CHARNEY,

S ° Attorneys for Petitioner,

| fos 420 Lexington Avenue,

ite ein New York 17,-New York.

~* Oscar A. Lewss, Beis Ae

- Davo L. Benetar,

> H. H. Norpuiivcer, ©

_.. Ropert C.. Isaacs,

Junius L. Rassner,

A. F. Scuarrrner, .

of Counsel.

Reports.of Opinions Below ..... :. Ae 2. seas sw : ey a &

_ Jurisdiction ‘of this Meee Uae URC rae.

Questions Presented for Rexiew ....: RES eee

; Statutes Involved aah EM h pA eanins eum nest gee

Statement of the Case...) 2. 0...0000...- wae vt | 3) a

Federal Questions Raised .. ah pS ta pe see ae oe ae ik

Reasons for ‘Granting Writ’. g rye oes hee a res :

| APPENDIX: ; | |

: amt A—Statutes Larnaca mee NT ea Ee ce oe

B—Opinioas. °j = oe year. Tae aS banc se ere as 18.

C—Record Showi ing First Federal Question, Raed 37.

: D—Orders and Judgments Below: case tseaptevesa’. Mae

i Cases Cited. Reoaea S

_ Amalgamated Meat Cutters & Butcher Workmen of

North America, Local No. 427, AFL, et al. v. Fair--

awn Meats, Ine. (1957), 353 U.S. 20, 77-S. Ct. 604. 11°

» Ass’ n.of Employees ¥. W estinghouse Corp. (3d Cir. -

1954), 210 LF. 2d 623, aff'd 348 U. §. 487, 75 S.Ct. - é

489 00... Guskns keeles lees etch shea Seaveun wee

& Boeing Air pline Co. -v. National Labor: Relations

Board (1. C. Cir. 1949), 174 F. 2d 988° or ene vee >

Fay v. “Ameriean Cystoscope Makers, is s "ot al. o Chen

oo D. N. Y. 1951), 98 F. Supp. | ee _ ae

Cains al: Electric Co.-v. Local : ) United Biectrical

. Workers (1957), 353 U.S. 547.7 S; Ct. OSE: i... ra “749

Goodall- Sanford, Ine. v. United Textile Workers, of “,

America (1957), 353 U.S. 550, 77 S. Ct. es 7, $9

ae Guss Vv. ey Labor. Relations Board. (1957), 353. ,

ULS.1, 7 77 S. Ch 598 . .- Caen Cpe vegecakaeeen oo ae

* a as: ee

ie ae jl. .

Siaetis Plastics Cor v. National Labor Relations |

‘Board (1956), 350 350-U. S. 270, 76 S. Ct. ‘349 . i eae Daas

: National Labor Relations Board v. Columbian E. aS. -

~° Co. (7th Cir. 1938), 96 F..2d 948, se 306 U. 8.

292,°59 S. Ct. SOL... ees i od ean cael ne ala i y

~ National Labor Relations Board v. ion Artware,

‘“ Ine. (6th Cir. 1952), 198 F. 2d 645, cert. denied 345 @

ee | S. 906, 73 S.Ct. RR Seg hed cae uti .

a National ‘Labor Relations eand v. “National ‘pied?

&- Casting Co. (7th Cir. 1953), 207 F. 2d 344... on ee

. . National Labor Relations Board v. Sands Mtg. Co. Be

& ° (1939), 306 U. S. 332, 59S. Ct. 508.2... |

San: Diego | Building Trades Council v. - Garmon

(1957), 353 U:8. 26, 77.8. Gt: 607. ..,... kenya:

Shea v. Export. Steamship Corp. — 253 N. Y. 17,

\ 1T0 N. Bi 407 oo. eee eee ieee eee en)

‘Textile Workers Union of atte v. Lincohh Mills

) of Sjapeme: (1957); 353 U. 8. 448, 7 S. Ct. 9Ig...| --G9

ee ee

- - As i -%

? s 3

a4 aoe sins Cited

’ Constitutional Provisions: ee he ah ie -

Article I, Section 8, Clause 3 isaac 3 be es Se eS ’ . T. cy

Article vi, Section 2 Sok sans Se error Bail FS.

‘Labor Managenient Relations 4 Act, 1947, Set seq

} "29 U.S. C. § 141 et’seq. ... iMei aes Pere ey Ce 2,3, 6,12

Labor Management: Relations Act, 1947, « $203); ae —

give Mea et eee Pee USE AEs Poe Wee Rae 3.° 5

3 Labor Management Relations Aet 1947, § 301; 29.

CS Ao) eet RS Wiser rreore * 10

d ae

IN THE

“Supreme Court of the Auited Bates. |

| October Term, 1967 a

AS se prctinwnicenss

oe eee \ Brookiyn Kaciz,Inc.,, © 22 OS

Eat Sere _ Petitioner,

°.

M. Micuaén Pi OTOKER, as Seerctary-Treasurer of News- 4

paper Guild: of New York, Local 3; ANG, Gia, °

= wi wepepne! |

%q PETITION FOR A er OF CERTIORARI TO

THE NEW YORK.COURT OF APPEALS AND

THE SUPREME COURT OF THE. STATE. OF

NEW YORK, COUNTY OF NEW YORK _ See

ten

Petitioner prays that a writef artnet issue to reyiew

@ the order and judgment of thé Court of Appeals of the

en State of New York entered in the above- entitled case and

that said writ of certiorari issue to said Court of Appeals

and. to. the Supreme Court of ‘the State of New York,

etre of New York, which possesses th@recor«! herein.

pe Sh Sore

mrensetiene Gie cae ae

Reports of Opitions Below -

. The opinion of the Supreme Conor the State of ier

=» York, County of New York, is reported i in 141 N. Y. ba 2d .

= 719. (not offelatly reported). :

The opinion of the Appellate Division of the Supreme

Court of the State of New York, First J udicial Department,

is reported in 286 App. Div. 733 » 146 N., /Y. S. 2d_ 616.

we 9

The. opinions and decisions of-the Court of Appeals of.

~.the State of New York are reported in 2 N. Y. 2d 553, 141 -f

N. E. 2d 841, and 3.N. Y. 24 —, —N. B. 2d —. » i

— ‘

- Jurisdiction of This Court — :

Jan The order: and judgment of the Court of Appeals. of

the State of New York, which affirmed the order of modi- .

fication of the Appellate Division. of the Supreme Court ff

of the State of New York, First Judicial Department, was —

.dated and entered in the Office of the Clerk of the Court of © |

_ Appeals on April 4, 1957.. The order making the.order and ~ ;

_ judgment of the Court’of. Appeals the order of the Supreme “f}

Court‘ of the ‘State of New York, County of New York, 4

was dated and entered in the Office of the Clerk of the

Supreme Court of the State of New York, County of New §£

_ York, on April 30,1957. Petitioner mowed before the Court ff

of Appeals for reargument or, in the alternative, to amend |

“the remittitur on May 15, 1957. The Court of Appeals

. denied the motion by. order dated and entered July 3, 1957.

> This order was made thé order of the Supreme Court of_-—

- the State of ‘New York, County’ of New York, by order -

dated and entered in.the Office of the Clerk of the Supreme - .

Court ‘of the= State of New York, County of’ New York,

a Aeoeet ONS RES

Jurisdiction is conferred upon this Court by. Section

1957 of the U, 8. Cdde, Title 28, authorizing certiorari to the

highest court of a state where any title, right, privilege .or

immunity is specially set up or Claimed under the Consti-—

tution or Statutes of the United States. Phe petitioner

claims rights under the Labor Management Relations Act,

1947, Sections 141 et seq. of the U. S. Code, Title 29, and

, under Article I°Section 8, Clause 3, and Article VI, Sec- |

- tion 2, of-the Constitution...

~ gilions Presented for Review a a aes

F a) Uinler a. sthentlive bargaifiing agreement covering |

f, + employees in an industry affecting commerce, do the courts —

). of the State of New York have jurisdiction to enforce an

arbitration provision or-is jurisdiction exclusively in the, ’.-

district courts of the United States by virtue of Séction 301, ‘

of the Labor Management Relations Act, 1947 (Section 185.

of the U. 8. Code, Title 29) and Article I, Seetion 8, Claw use-/

3, and Article VI, Section 2. of the Constitution? | ae i

. (2). ‘Does a violation of an agreement not: to trike: in.

a-collective bar rgaining < contract covering employees in an i

- industry affecting cammeyce result under. federal-law in —

such employees voluntarily —— employment with -

the presents Sa res a

-_ Statutes, Involved Se! = | a :

- = Co.

- The soiatitetionnl provisions evaived: are e Grticle ee

Section 8; Clause 3, and <n pun’ 2. “They are |

set forth in Appendix A. \

The statutes ‘inv olv. ed neta ose contained. in Title -29,

._ U.S. Code, Sections 141 ef seq. and more particularly Title -

29, U. S. Code, Sgetion 185 (Section 301 of the Labor Man-

agement Relations Act, 1947), ang Section 152; subd. 3

[Section 2(3) of the Labor Management Relations Act, —

(1947). ‘They are set forth i in Appendix A. 7

Volume and page. of - the official edition ‘appear in

Appendix me. ; Pos

$23

_ Statement of the Case’ $26 ee

if-«° 9»? 2°

-* On: ostinbes 30, 1952, patente, the ‘nbligher of a

newspaper known as: THe BrooKiyN Bacie (Ree. fols. 24,

- 97), entered into. a collective bargaifiing agreement with - -

_ the Newspaper Guild of N@y York, Local 3, ANG, CIO, —

the respondent — governing the. terms and conditions

ae els Be aor ee

of its editorial. anid commercial department employ ees.”

- . This oan by es expired on November.

29, 1954. | ‘ |

. This agreement further pr ovided j in "part (Seetion 27): e

= “Not more than 90 days and not,less than 60 days

prior to the expiration of this agreement, either

. party may give to the other Perty notice ofdesire /

. to change the terms thereof. In_ vent of such — |’

‘notice, negotiations shall be-i lately entered into §

and: proceed with all-due, diligence. If an agree- 7

ment. has. een reached by the.date upon which |

rig agreement expires, status quo conditions shal |

. be’ maintained ' during negotiations unless and until - |

~ such. ‘negotiations are terminated by either ‘party. 34

- On September 1, 1954; ‘the Guild gave the S-wkis ;

-Kagle notice in writing that it desired:to modify the col-

lective: bargaining agreement. between the parties ‘‘pur-

‘suant,to.the provisions of the Labor-Management Relations

* Act, 194777 (Ree. fols. 37-39). In accordance with this

_ notice, meetings were held thereafter re: the repre-

cure of the respective parties. *

No new agreement was reached between the LG by: %

OF Mand 29, 1954, the: expiration datetof ‘the agreement,- §

_~ and on that date it came to an end (Rec. fol. 63). Its terms, §

. however, were to continue in effect. during negotiations, as 2

'- part. of the status quo which both parties had agreed to |

‘maintain’ For a time the terms of the contract and the. @

“status quo were continued while the parties’ were negg,

- tiating. - But on January 28, 1955, the Guild abruptly ter

minated the status quo. by calling ‘a strike (Rec. fols. 26, . #

57,64). It thereby «pso facto ended the effective period.

of the contract terms. |

ae The collective taigsiniog: agreement. Pxhibit as annexed to f

the Guild’s original petition in the Sypreme Court. of the State of &

New York is ‘not printed, but by a stipulation. approved by a Justice |

of that Court’s Appellate ‘Division — fols, nner may be referred a

5 apap eg cae

ROR HEU

1d ete RAs F

SiS

Toe

Ae end ea eee nS

} ; : = eee

, The Breokiyn Eagle: continued” to ‘at and negotiate

with the Guild — the-strike (Ree. fols. 27, 57). On or

about March 8, 1s , the Guild’s negotiating committee re-

ie to_ meet. in joint session with the - Brooklyn Eagle’s | _ “s

‘isting committee (Rec. fol. 65). On March 16, 1955,

— ‘ie Brookive Eagle became fitally cOnvigeed of the futility’

of further efforts toward a peaceful solution of its contract

dispute with the Guild. On that date, therefore, it wrote the |

Guild: summarizing the preceding events (including the ~

Guild’ s terminating actions on January 28th and March Sth) *

“and formally, for itself, putting an‘end to negotiations (Rec. .

fols. 40-44). The concluding sentence of its letter stated:

“The consequences of the strike have destroyed the Brook- .

By Eagleaand we do ‘not intend ever t r&sume publication |

fhe newspaper.’’ Thereafter, the Guild by an ultimatum

the form of a telegram’ demanded agsurance of ‘payment |

of ‘severance, accrued vacation, unpaid. overtime, holiday,

ee notice of dismissal and Sick leave pay within, 24 hours’’,

- (Ree. fols. 67-69).

On March 28, 1955, the Guild dating a demnitad ‘for. arbi-.

_ Geation upon the Brooklyn Eagle (Ree. fols’ 46-51, 30). -

en the Brooklyn Eagle, through its attorneys, fejacted’

; thé demand and stated its intention to apply to court for

a stay of arbitration (Rec. fols. 52-54) the Guild arin

.. a proceeding in the Supreme Court of’ the State of ;

_ York, County of New York; for an order Pith hited arbi-

tration. /°-;.: of os. :

<a ustice Hécur of the hapaling Conse of the State —

* of New York, County of. New York, held that the strike

by the Guild terminated the continued existence of<the |

- contract terms_arjd that claims based on acts or omissions -’

an to termination of the contract are-not |

arbitrable undér the contract. The-claims for severance —

- and notice. of dismissal pay were held not arbitrable while

7 arbitration was directed. for the claims for overtime, holi-

arising subsequen

0 So

. Ke,

day and accrued vacation” pay. .The Appellate Division of

the Supreme Court, First Judicial Department, reversed -

so much of the Supreme Court's order as had refused to—

direct arbitration on the claims of severance and notice | [

of dismissal pay. The Court. of Appeals of the State of | —

_ New York ‘affirmed: the order of the Appellate Division of _ :

_-the Supreme C ourt and denied a motion for réargument*

_ or to amend the remittitur. big oe ees a5

a Federal Questions Raised

It is not. disputed that in the instant’ iantinns, the Guild

is‘ a ‘‘labor organization representing employees. in: an

; industry affecting commerce”’ and as such is subject’ to the —

-- provisions of the Laber Management Relations Act, 1947

- (Ree. fols: 30, 37-38, 121-122):

The original petition: for an order compelling arbitra- —-

_ tion refers to and annexes as Exhibit, B a letter- dated

_ September 1, 1954, which notifies the Brooklyn Eagle ‘‘pur-

_ suant to the provisions of the Labor -Management Relations

’ Act, 1947”, of the Guild’s ‘‘intention to modify’’ the col-:

«8

lective bargaining agreement between the parties ( Ree. |

fols. 25-26, 37-39). oe

The. opinion of the Aeeailbite Division of ‘the. State of

New York, County of New York, refers to Prose bivare fols.

- 121-122) : S

“On September, re 1954, the ‘Guild gave notice

- of its des ‘Ao modify the contract ‘pursuant to the

' provisionsof the Labor-Management Relations Act,

1947’ ”’ (Ree. fols. A2i- 122). ‘x Fi

: Par agraph 14 of. the original petition for an order com-

_pelling arbitration sets forth the arbitration clause [Sec-

tion 21(b) of the collective’ bargaining agreement between .

the parties] which states in part: ‘‘The parties agree to

- abide iy the award. subject to such Tules and. regulations :

Aoi 4 ee

| 1

as any Federal agency having jurisdiction may. impose’’.

(Ree. fol.'30). EEN a AIRED ed SS 7

ea: LQ The first question presented for review herein was

' “raised in the Court of Appeals of the State of New York —

_ by, mhotion for reargument or, in the alternative, to. amend _

- | the remittitur. The motion and accompanying affidavit is ie

; - set forth i in Appendix C. Since this motion raised aques-

7 tion of jurisdiction over the subject-matter, it may, under .

2 ~New York State practice, be raised: at’ any ‘stage of the

| proceeding. ‘As stated by the Court of; Appeals of: the

' State of New York in. oerted Vv. Export ‘Steamship Corp.,

253 N. ‘Y. 17 at 21:

**The question of jurisdiction over the side ¥

matter, when Congress imposes a. prohibition against

- ,- .daetion in the State ‘courts and makes thé status of.

- “the defendant a jurisdictional fact, cannot be dis- ~

pensed with by litigants. In such a case the court”

to proceed further and dismiss the action when the

lack of jurisdictional facts comes to its attention.

(Robinson v. Oceanic Steam eonrenen Co., Lid., tba

i N.Y. 315.)” Ar. ee

] : \After ‘the submission of this’ a motion to the Court of

. Appeals the Deputy Clerk of that Court wrote to counsel

Goodall-Sanford, Ine. v. United Textile Workers of Amer-

ica; General Electric Co..v. Local 205, U nited Electrical

Workers; Teatile Workers Union- of America v. Leacele

—_ of Alabama and stated:

ceee

“Tn view of the fact that thie’ papers on ree motion :

for reargument of, or to amend the remittitur on, the |

~ above-entitled appeal refer -to these cases the Court

. .has requested us to write counsel, advising that they

may comment on the effect of these recent decisions.

“on the pending motion. by letter within the next few »

Pei if they SO > desire.” [

- miiy at any stage of the action ex mero- motu eaten Pe

on both sides referring to the decisions of this Court in © .

a itis ey j . =. \ \ -

Both. entuaiit responded to this letter by submitting <atiten. |

discussions of their respective positions. on the effect of

~ these decisions on the claim of preemption. The Court of _

Appeals thereafter denigd the motion, and an order to. that

éffeet was entered by that Court (Appendix D).

It. shéuld be- noted that the Goodall-Sanford, Tac. case;

and other eases cited in the last previdtis paragraph of |

this: petition, in which this Court for the first time held- - |}

that 301(a) of the Labor Management Relations . =

Aet, 1947, gave jurisdiction to the Federal courts to en- _

~foree ‘arbitration provisions in collective bargaining agrée-.

ments,.were not decided-by this Court until June 3, 1957,

after petitioner's motion for reargument inthe Court of

Appeals had beet made but, before it was decidgs. oe,

_ + (2) The second’ dunsetiin presented for review wale a

expressly mentioned in the opinionof the Court of Appeals. @-

Petitioner contended in. that.Court that no valjd claims for __

severance indemnity, woticecof dismissal pay.and vacation ©. =

" pay could arise under the contract between the parties as to ~

employees who voluntarily. ‘severed their employment and |

that participation Wa strike which violated that contract ~

- eonstituted such voluntary severance. The Court of Ap-~ ©

.. ~peals rejected - this contention in its opinion. of Seavey e: :

_ 1967, in the following language : we

. oF ore, it hag long beén the ‘fale. that

iking employees do not lose their status as em-

ployées; this was.so at common law (Jeffery-De Witt

oe ulator Co. v. National Labor Relations Bd.; 91 ¥..

"Sd. 134, cert. Genied 302 U. S. 731), a Grineiple: now

7 embedded in°our State statute (Labor Law, $701,

- gubd. 3; cf. Degnan.v. Metropolitan Life Ins. Co.,

. 178 Mise. a). and Federal statutes regulating libor |

_ vélations (U. S. Code, tit. 29, .§ 152, subd. [3]: cf.

Labor Bd. v. Mackay ai 304 'U. Ss. eee e (Italics .

7 "Reasons for Granting Writ

a 5

~ - both questions raised nee ein the Court

“of Appeal of e State of New York has decided: federal

Bg questions. of ‘s bstance which haxe n not yet been determined .

‘ty this Court, : PSC ee oe By

. \ |

1. ‘This Court’S, recent deidaiona: in Textile Workers |

Union of America v. ‘Lincoln Mills of Alabama. 1957), 353...

em 448,. 77S. Ct. 912; General Electric-Co. v. Local 205, -

United Electricat. Workers (1957), 353 U.S. 547, 77-8. Ct.-

. “921, and Goodall-Sanford, Inc, v. United Textile Workers of.

* » America (1957), 353 U.S. 550; 77 S. Ct. 920, expressly hold

that Section 301 of the Labor Manhgement Relations Act,

1947, not only gives the federal district courts the power to

decree specific performance of arbitration provisions in

‘ collective bargaining agreements covering employees ‘i in an

industry affecting commerce, but requires federal courts

to fashion and apply a body of federal sitibstantive law -

in enforcing such agreements. -

‘ Thé* opinion ‘of this Court in Textile Workers Union

ee of America v. Lincoln Mills of Alabama, supra, in holding |

"that the statute not, oily créates a federal remedy but.

requires the creation and_ nforcement of a body of federal

’ substantive law subject to o ‘‘federal interpretation”? impels _

to the conclusion that theSnuniform federal. substantive

rights thus created result in a federal preemption of the

field. The opinion . states in part {353 U. - 456-457) :

= “The question: then is, what ‘ist the substantive

w to be applied i in suits under §301(a)? We con-

elude that<the substantive law to apply -in. suits

under § 301(a) is federablaw, which thé courts. must

fashion from thexpolicy of our national labor laws.

See Mendelsohn, Enforceability of’ Arbitration

i Under Teft-Hartley Section 301, 66 Yale

See:

%. 1-

ee eS

167.. The Labor Mahagement Relations Act . |

. bs - ” pe at

expressly furnishes some substantive law. It points — .

out what the parties may or may not do in certain

situations.” Other problems will lie in the penumbra-

of express statutory mandates. Some will lack

express. statutory sanction but will be solved by |

looking at the policy of the legislation and fashioning

a remedy that will effectuate that policy. ‘The range

of judicial inventiveness willbe determined by the .

- nature of the problem. See Board of Commissioners

v. United States, 308 U. S. 343, 351. Federal .nter-

pretation of the federal.law will govern, not state ‘=

law. Cf. Jerome v.. United States, 318 U. 8. 101, °. 4

- 104. But state law, if compatible with the purpose. g

of § 301, may be resorted to in.order to find the rule. 3

- that will best effeetugte the federal policy. See ~—

Board of Commissioners v. United States, supra, at

| 351-352. .Any ‘state.law applied, however, will be .~

absorbed ‘as federal taw-and will not be an inde- — —

‘ pendent source of ‘private: rights.”’ ‘(Italics ours.)

Lower federal courts have expressly held that jurisdic-

‘ tion of the federal courts under Section 301 of the Labor —

Management Relations Act, 1947, is “exclusive. Judge

_ Ryan stated in Fay v. American Cystoscope Makers, Inc., —

et al. (S. DN. Y., 1951), 98 F.. Supp. 278, with respect .

to Section 301 of the Act (at p. 281): ; ci hi

. ‘However, in light of the determination that the

. section creates a new, federal, substtntive right, &

_® ® ® it seems clear. that Congress preempted the > |

field in this area. eee as

~ «The suggestion that plaintiff shéuld be per-

mitted to compel defendant to- litigate a federal |

claim in a state court when Congress has explicitly —

made available a federal forum is indefensible.”’.

This holding was cited with approval by the U nited States —

‘Court-of Appeals for the Third Circuit in. Ass’n. of Em- -

. ployees v. Westinghouse Corp.\ 210 F. 2d 623, 629-630 .

i954), aff'd on other grounds 348°U. S. 437, 75. s. Ct. 499,

the Court stating in a footnote: ae &

paste . a (e).

‘“‘On the tapdlicin whether Seetion 301 has ma a p

the federal courts the exclusive forum to deter “4

cases involving collective bargaining contracts be-.

tween employers and labor organizations represent- |

ing: employees i in an industry affecting commerce, it

is significant that in the tort .section of the. Labor

_ Management Relations’ Act, Section 303, in the juris-

_dictional grant, Congress said that the party injured

: by the proscribed conduct ‘ray sue therefor i in any-

“. - . district court of the United States *.* * or in any -

(Emphasis, added.} §303(b). There is no ‘such.

- choice ah, = under Section 301, seemingly indi- ~

cating that Congress intended to preempt to the

_ federal courts litigation on collective: -bargaining con- fp...

2 tracts. Gant ia ropa Mowe 3 i

The fair implication of the Gusto cited, and sapebialty

those. of this. Court, is, it seems to us, that the federal

courts. have exclusive jurisdittion over the enforcement of |

arbitration provisions in collective bargaining agreements

_ ,affecting commerce. In any event, -we submit that an

“ ; .authoritative pronouncement on this question by this Court.

is urgently called for. . In every -state, the question must

sooner or later arise, whether the courts of that»state may”

entertain proceedings to enforce arbitration provisions ‘in

~ such’ agreements, and if so, whether they. may apply their.

own law to such proceedings, or whether the federal courts

‘alone may act in the pronouncement and enforcement of -

_a governing uniform federal.law. *This Court hhas alread¥

(Guss v.. Utah Labor Relations Board [1957], 353 U. S. 1,

"77S. Ct. 598; Amalgamated Meat Cutters & Butcher

Workmen of North: America, Local No. 427, AFL, et.al. v.

Fairlawn Meats, Inc. [1957], 353 U. S. 20, 77 S..Ct. 604;

San , Diego Building Trades Cowiell v. Revunine [1957], 353

-_U. 8.26, 77 S. Ct. 607) settled the exclusivity of other por-

-stions-of the same Act (Labor Management Relations Act,

1947). The question should, we submit, be aanyered with

respect to this portion of. the Act as well. -

es ‘As to the question initial (2) above (p. 3 pent

it is our contention: that the decision of the Court of Ap- .

peals of the State of New York is. contrary to controlling

federal precedents. A substantial number of federal cases”

‘indicate that an employee in an industry “‘affecting com-

merce’’ who participates in a strike i in violation of a con- —

tractual obligation not to strike severs: his employment

relationship (National Labor Relations Board v. Columbian

E. & 8. Co. (7th Cir. 1938], 96 F. 2d 948, 953, aff’d 306 |

-U. S. 292, 59 S. Ct. 501, National Labor Relations Board v.

_ Deena Artware,. Inc. (6th Cir. 1952], 198 F. 2d_645, 651,

- gert. denied 345 U. 8.906, 73 S. Ct. 644, National’Labor Re-.

‘lations Board v. National Die Casting'Co. [7th Cir. 1953],

207 F.. 2d'344, 348, Boeing Airplane Co. v. National Labor

Relations Board [D. C..Cir. 1949], 174 F. 2d 988, 999; see .

also National Labor Relations Board v. Sands Mfg. Co.

[1939], 306 U. S: 382; 59 S..Ct. 508; Mastro Plastics Corp. 7 |

v. National Labor Relations Board (1986), 350 U: S. 270,

76 S. Ct. 349).

- We submit that this quéstion, also, oaght t to is ¢ authori-

| tatively settled by this Court. a

Wherefore, petitioner prays that this. Court jssue a ait:

of certiorari to the Court of Appeals of the State of. New -

York and to the ‘Supreme Court, of the State of New York,

County. of New York, which is the ‘Court which possesses

the record herein airecting a transoript of the record be |

3 B.

transmitted to this Court for‘a review of the decision and”.

final.order of the Court of ‘Appeals of the State of New | .

- York. ow, .

Aes

Dated: September 16, 1957.

» Respectfully submitted,

& ‘ -

Henry H. Norp.incer,

NorDLINGER, RreGELMAN, BENETAR >

& CHARNEY, _

ee eee Attorneys for Petitioner,

a Rae. ies 420 Lexington Avenue,

: Peak : - New York 17, New York.

“Oscar A. Lew, ae,

Davp L. Benerar, \

,H. H. Nonpuincrr,

Rosert C. Isaacs, .

Junius L. RassNeER,

‘A, F. ScHARFFNER, ;

of Counsel. 7%

mi °

ek |

- **9

~ |.

Qin

P y “

(a3 Fy

~ APPENDIX A e

(Constitution of the United States. of | pa, Article I,

-. Section 8, Clause 3; United States Code, page shad

Section 8. ‘The Congress shall have Power.

e «@ * ;

“To regulate Cc Commerce with foreign N tied and among

| the several States,. and with the Indian Tribes ; m.

(Constitution of the. United States of America, Article VI,

_ Section. 2; United States Code, page XLII)

- This Constitution, and the laws of the United States

-. which shall-be made in Pursuance thereof; ‘and all Tteaties |

made, or which shall be made, under the: "Authority of the .

United States, shall be the supreme Law of the Land; and

the Judges in every State shall be bound thereby, any: Thing

- in-the Constitution or Laye of any mre to the Cauipery

notwithstanding.

(Title 29, U. S. Code, Sesilin 185, pase 4471; Seti S00 x.

of the Labor Management Relations Act, 1947; 0

_ Ch. 120, Title III, § 301, 61 Stat. 156)— 0

oe oe

. $185. Suits by | nd against labor er a) Venue,

- amount, and citizenship. . - :

Bed

Suits for violation of contracts between .an employer a

and a labor organization representing employees i in an in-.

dustry affecting commerce as defined in this chapter, or

between any such labor organizations, may be brought in.

‘any district court of the United States having jurisdiction

of the parties, without respect to the amount in contro-.

versy or without nee to the citizenship. of the parties.

(b) Responsibility. for acts of “agent; entity i purposes

of sust; enforcement of money Aires

Any labor organization which represéfits employees in.

— ween S attesting commerce as 5 ean in this ie

ter ant 3 any employer whose sctivitics “Geet commerce >

as defined in this chapter shall be bound by the acts of

its agents. Any such labor organization may sue or be .

sued ‘as an entity and in behalf of the employees whom.

it. represents in the courts of the, ‘United States. Any. -

money judgment against a labor organization in a dis. —

- trict court of the United: States shall be enforceable only

against the organization as an entity and ¢ inst its assets,

and ‘shall not be enforceable aaginet's any individual mem- ©

. ber or his assets. ;

For the purposes of actions and proceedings by or.

‘against labor organizations in the. district courts, of the:

United: States; district courts shall be. deemed to “have

oe jurisdiction of a labor organization (1) in the district in

_which such organization . maintains its principal office, or -

(2) in any district in which its duly authorized officers

-or agents are engaged in aaa acting -for “for em.

~(d) ‘hnite is process. -_ 2

The service of summons, subpoena, or other legal

process of an¥ court of the-United States upon an officer

or agent of a labor organization, in his capacity as such, —

shall constitute service upon the’ labor erguniention, :

(e) Determination of question of agency.

“For the _ purposes of: this section,’ in ge ye re |

whether any person is acting as.an “agent” of another .

- person so as to make such other person responsible for .

his acts, the “question: of whether the specific acts per- —

» formed were actually authorized or sapreqeenty ratified ,

: shall not be —. ~ ;

. { . : =v é

< i ny

: 2 [ > ‘

— gas SA An. 0: estacaate bea aban S peweaets,

: _ . Section 2, Subdivision 3 of the Labor Management 5a

“Ralgtiohe Act, 2807s Ce. S78, § 5, 39 Sat, 200. é

Ch. .120, Title I, —— 61. Stat. Seancell

: ba Definitions. :

_ When used in this subchapter—

& 2 ® +9

oo (3). The term nadie shall teiteihe apy ananiatel

and shall not. be limited to the employees: of a particular

employer, unless this: subchapter explicitly states other. —

ceased as a consequence of, or in. connection with, any.

‘ current labor dispute or. because of any. unfair labor prac-

- _ tiee, and. who has not obtained any other regular and’

_ substantially equivalent employment, but shall not —

oe any. individual employed as an agricultural laborer, .

- in the domestic service of any family or person at his h

or any individual employed by his parent or spouse, or

tractor, or ‘any individual employed as @ supervisor, or

any individual employed by an employer subject to chap-

ter 8 of Title 45 and’ sections 1291, 1292, 1293 and 1

_ "of Ritle 28, or by any other person who i is not an entploye!

gs herein defined. © ; 7

wise, and shall includeany individual. whose’.work has .

any individual having the status of an independent aaa % ae

APPENDIX B-1_

COintatan of the Supegin Cems of the State of Nev York, |

ee Boed y h $.24719 :

2S ee ee . | oe

- Howé, J.:

This is a motion by Local: 3. of ee hidisieien Guild of |

_ New York to compel The Brooklyn \ Eaaie ;toarbitrate .

petitioner’s claims | ‘on behalf of members, former em- |

t, to “severance pay, overtime

y pay, no eS I He nee Sonn va-

A collective bieniailink spreciniet between peiitinane ‘

-and respondent expired November 29, 1954. It contained

the following provision:

“ata since tins So dag oped net int, th @0 day .

prior to the expiration of this agreement, either .

Ps party may give to the other party notice of desire

to change the terms thereof. In the event of such _

notice, negotiation shall be immediately entered into

and proceed with all due diligence. If an agreement

has not been reached by the date upon which this .

aera rere status quo conditions shall. be’ -

2 during negotiations ‘unless and until such

Bee negotiations | are terminated by. either party.”

On September 1, 1954, petitioner gave respondent no-

‘tice of its desire to modify the terms of the existing agree-

ment. . Negotiations between the parties for a new agree- ee

ae scope nmennnehl aadian Geman ih ME, patlaea ”

called a strike and. its members ceased to perform services’

' .. for respondent. The Stee. datie Piet Se ahem. tore:

__ ‘nated the extension of “the- ;

= dete. — between the parties continued

wntil, on ‘March 8, 1955, petitioner’ * negotiating counmittee :

\refused to meet in joint session with respondent’s com-

mittee.» On March 16, 1955, respondent wrote a letter to

_ petitioner which stated: (1) that the strike on January 28

had terminated the “s atus quo” term referred to in § 27

. of the. collective bargaining agreement; (2): that the oc-

-eurrence. on March 8, 1955 constituted a termination of ne-

gotiations by: petitioner; {3) that respondent accordingly

also terminated negotiations; and (4) that “the conse-

quences - ‘of the strike have destroyed The Brooklyn Eagle .

“. -and we om intend ever to resume publication: of the

newspaper.” pete

“This letter of March 16, 1955, in effect; digapissed the

-employees. If, ‘as@etitioner claims, the terms. of the col-

lective bargainipg contract were’ in full force and effect.

up to the time Of the letter, by: virtue of the “Status quo”

- provision previously referred to, petitioner is entitled to

have the claim of severance pay submitted to~arbitration,

. pursuant to the arbitration clause of ‘the &greement. | «

-Qn-the other hand, if the “status quo” had ended at the

time of the strike (or, in any event, on March 8), thie claim

_ .of severance pay does not represent an arbitrable issue,

for the right to severance pay under tlie contract depended 3

upon a dismissal during -the period the contract is in force.

_- Although the expiration of an agreement containing an ar- -

_ bitration clause does not destroy the wight to arbitrate

' claims which arose prior to the expiration date, based on.

acts: or omissions aecruing before the agreement came to.

, an end, Application of Selly, 178 Mise. 1076, 37 N. Y. S. 2d

, affirmed 265 App. Div. 846, 38 N. Y.S. 2d 362; In re .

Coramercial Telegraphers Union, Sup., 123°N. Y. S. 2d

_ 259, the arbitration clause’ may not be availed of as to

elaims based upon acts or oiissions taking place subse-

“quent to the eal Re of the agreement, Lane v. Endi-

: " 2. 4 S. 2d 639,

Re | )

affirmed 299 N. Y. 7125, 87 N. E: 2d 450; Matter of Eisen, :

"191 Mise: 662, 77 N. Y. S. 2d 676. | ee ‘

. The arbitrability of the claim for “otice of dismissal

pay” also depends on whether the “status quo” was termi-

. nated prior to March 16, 1955. RS Be poe

Petitioner contends that the negotiations were net ter- |

minated until March 16 and’that, therefore, the contractual |

“status quo” continued until that time. Althouglf the con-

tract does provide for continuation of the.“status quo * * er

| unless and -until *-* * negotiations (for a new contract)

/ are terminated, by-either party,” it seems obvious that this. —

provision. contemplated that the employees. would mean- >

_ while continue to perform the extended contract and that .

the contract, as extended for the period of negotiations,

would continue to bind the — and not merely* the |

employer.

-” Even where ‘arbitration ‘of a dispute between employees

-. and -employer is pending, the employees. expressly. agree ie

“that there shall be no suspension of work? (4 21: of\con-

- tract).. The commencement of the strike clearly constituted .

ea repudiation by the employees of the continued‘existence .

of the contract. ‘The strike was utterly inconsistent with

_ the..continued. mairitenance of the contractual “status quo”

and effectively terminated the “status quo”. A “status quo” —

binding only on the employer was manifestly not what was

intended by the contractual provision. for. continuation of

the “status quo” pending negotiations. Negotiations which

? respondent had with petitioner i in an endeavor to end the.

_ strike did not have the effect of continuing a “status quo”

which no longer existed in fact or in law. \Only if the em- _

' ployees had continued to perform services after the ex-_

__ piration date of the contract would the contract term have: — -

been extended until one of the parties terminated negotia- _

—tions-or-a-new contract signed: Té construe otherwise’ the :

provision for the maintenance of the “status quo” d

negotiations, would lead to the absurd result at at the the | .

: ie :20> \

end of the expiration date of the. contract the employees _

could strike /Jand thus fail to, perform their obligations :

- under. the. contract. and yet keep the contract provisions _

= alive by continuing to negotiate with the employer until

the latter had no alternative but to¢terminate the negotia-

tions. That could not reasonably have been the intent fe

the provision referred to. ‘2.

_,.. In view of the court’s conclusion that the eontractual

“status quo” terminated on January 28, 1955, it is unfiec-

"essary. to determine whether, in any event,. the “status —

quo” terminated on. March 8, 1959, which was also prior ae

-dismissal of the employees. . eX:

- The court accordingly holds that the issues of severance |

pay and notice of dismissalare not arbitrable. :

_ “The claims to overtime pay, holiday pay, and accrued

~ vacation ’ pay must, however, be submitted to arbitration _

to the extent-that they are based on services rerenree prior.

to. the termination of the “status quo”. :

Overtime and holiday work prior to. ‘January 8 is -

compensable undex the contract. It is for the arbitrator |

to determine ‘the merits of the claims. for ‘pay for such

work and for vacation pay. The contentions that the pro-

* cedure prescribed by section 21 has not.been followed and

~ that, therefore, the application. to .compel arbitration of

ae these claims is premature, is overruled: It is*claimed that

- a “reasonable effort to settle” the existing differences —

would be futile, not to mention-the fact that’ the- respond. -

ent has permanently shut down its business. ' .

_. The motion is granted to the extent of directing | arbi-

tration to, proceed as to claims for’ overtime, holiday and

- vacation pay, and otherwise denied. Settle order.

ase _ APPENDIX B-2 _

- (Opiniea of the Appillete Division of the Supreme Court

of the -State:of New “York, First Judicial Department, |

eae

" SUPREME COURT .

APPELLATE Dison Fimst Depantaent.

, ~. October, 1955.

"Davin W. Peck, P. J.,

* Karte C. Bastow,

. Beanarp Boreix, yf oe - | %

JosepH A. Cox,- — 3, San pe ieee

- Franots Baraan, oi eae Pek

‘In the Matter

of ee

M. ioc, PoToKER, as, Sscicaaett Aeatiter of -

Newspaper Guid or NewYork, Locan Ree

ANG, CIO,

ae Pettioner-Appeliant-Respondent,

Ra and

Brooxxs Eaaty, eo. Se

| Rexpondent- Cros Applian

fh. ~ <

. Appeals from order of Supreme’ Court at Special ines: ;

County Clerk’s office. Petitioner appeals in so.far as the ~

order denies motion to compel arbitration of claims for --

severance pay and notice of dismissal pay. — a

- ; - = % ° . >

: 23 a ' a, ? ae =a

. . : .

‘s peals from so much-of the-order as grants motion to com-

-- pel arbitration of claims me vacation ‘Pay, overtime > pay

and -holiday, pay. | j

— HERMAN E. Cooper of counsel (H. Howanp Ousais Lirpuan:

. \Bonorr and Eucene N. Sosnorr with him o :

- Cooper, Ostrin & De “Varco, attornaya) f for t petitioner.

<— appellant-respondent. ee | aaa

Davw L. Benetar of: counsel (Oscdr A. Lewis, i. H. Nor>-

- LINGER, Roserr C. Isaacs, JUtius L. Rassner and A.

'F. Scuarrrner with him on the : brief; Norpiincer,..

RieceELMan, Benetar & CHARNEY, attorneys) for” re.

: ee : .

Cox, J.: “

“ Newspape? Guild of. How. York, “Local 3, “ANG, ‘ClO

(hereinafter referred to as “@uild”) nioved to compel 3 ar-

bitration of controversies jt claimed existed under a col-

lective bargaining agreement with Brooklyn Eagle, Ine..

(hereinafter referred-to as Employer”), dated November —

- — 30,°1952 affeeting Employer’ s editorial and commercial de- . --

| partment employees. The learned. Special. Term J ustige -

has held that (1) the commencement of a strike by the Guild

constituted a repudiation by the employees of, the con- -

- tinued existence of the contract ; (2) all claims based on

acts or omissions’ arising subsequent to termination of the ~

contract are not arbitrable under the contract and, accord-

ingly, (3) the claims for severance and notice of dismissal __

pay may not be arbitrated, while claims for overtime, hol- |

iday and accrued vacation pay should be submitted to ar-

_ *hitration. Each party appeals from so ath oP he obder ——

—entered as is adverse to it, though the Employer has since- —

ah abandoned so much ‘of. the appeal as relates to holiday and_

overtime pay and argues for a reversal only in oy of

. vacation pay. : o. hey Dae :

The cavaninalt between the parties. atipaletis a! ion

‘year term ending November. 29, 1p54, and. provides that

t within the period of 60 to 90 days prior to the fix id ter-

“‘winal date, either party may give notice of .a ‘desire to

: change the: terms of the contract, Jn which event the parties

were to. promptly open and carry on. with~due diligence. 3

negotiations: until terminated by either party and mean-

while maintain’ the status quo; and that» “any dispute, .

claim, grievance or difference arising out of-or. relating to

"this agreement: shall be arbitrated.” — |

On Septenider 1, 1954, the Guild gave notice of its és:

'. sire to: modify ‘the contract “pursuant to. the. provisions

of the Labor-Management Relations Act, 1947.” ‘The par-

ee ereafter negotiated but, failed to reach any agree- -

On January 28, 1955, the Guild called a strike and f

: the eaeres quit work. Up to that time the status quo,

' had been maintained. Negotiations continued until March

8, 1955, when they terminated. On March 16, 1955, the

Employer by letter addressed to the Guild formally termi-

nated - the negotiations -and informed the Guild that ‘it’

__ would. never resume publication of the penta Eagle.

On the same day, the Guild demanded severance, accrued .

vacation, unpaid. overtiiue, holiday, notice of dismissal and

_ Siek leave pay. and any other moneys due to the employees. -

. Ten days + later, the Guild. served a demand for arbitration”

on those issues Which the Empidyer rejected oh the ground :

_ that no contract for arbitration existed. . |

. The Employer: claims that the: Guild breathed and ter- -

minated- the contract (1) by calling a strike on J anuary 28,. .

, 1955, theteby violating . the ‘status quo. provisions of the |

contract, ang (2) by terminating negotiations on March 8,

-1955, in that it refused to meet with the Employer in joint

' gession, as,p-consequence ‘of which there was no agreement

oo roanigcack in existence. The Guild contends ‘that the

Employer terminated ‘the negotiations and in effect dis-

a « ettployéen: on March 16, 1955, when it wrote to

es:

Me eS :

as ov. 3 “ | a

the Guild that .because of the Guild's strike and fefusal

to.meet in joint session with the, Employer on: -March 8th

an ‘insoluble impasse”’ had been. reached and stated fur-

ther “We agree that further negotiations. will be ‘futile,

and: we elect to, and hereby do, terminate them forthwith”’

and “We do not intend ever to resume pgiticntion of the 7

= newspaper.” e::

_. The issues on this ae -are, therefore; limitéed®to

— the. propris y of ‘the refusal to direct arbitration of the

laims vacation, severance and notice of dismissal pay.

The al hints of the parties expressly provides for

overtime, vacation, holiday, severance, and notice of dis--.

- missal pay. Claims referable’ to such provisions certainly

7 “arise out of or relate to” the contract, which specifically

: prescribes arbitration as the: method for determination: of

.ff . all disputes. (Matter of Lipman v. Haeuser Shellac Co.,_

289 N. Y.-76; Application of Teschner, 285. App. Div. .435.)

The arbitration clause ‘of the contract ‘is phrased in

_-the broadest and most comprehensive language, embracing™

“any dispnie, claim; ‘grievance or difference arising out of,

or relating to,’’ the agreement. The intention of the par-

ties, manifest therein, to dispose of all of their disputes

_ “by arbitration should be enforéed. (Riverbrand Rice Mills

TW Latrobe Brewing Co., 305 N. Y. 36.) usted

- . Whether the contract has been terminated by acts = £Q

the. employer or of the Guild is in dispute, and is, there. ~~

fore, an- issue determinable by the arbitrators. “Before

compelling arbitration it was not necessary for the court

. to determine that the contract was either performed by.

one party oF breached by the other.” (Matter of Lipman.

v..Haeuser Shellac Co., supra; p. 80.) The mere circum-. *— |

stances, however, that « contract has been terminated does

not foreclose. the arbitration. of issues which arise out of |

.. and relate to it. (Matter of Lane v. Endieott Johnson -- ;

-Corp., 274 App. Div. 833, ‘aff'd 209 N. ¥. 72%.).. - > ae

]

ae y

The.fact that the Guild’s right to arbitrate overtime

| “and holiday. pay claims is no longer contested would, per-

haps, indicate that the continued operating existence of -

the contract’ is not a _prerequisite to the enforcement of | |

arbitration of, issues arising ‘under said contract. Of.

course, that concession, in and of itself does not necessar-

ily imply that the issue of severance pay is arbitrable.

However, the Guild contends that severance pay as con-

~ “templated .in the contract was earned and accrued con-.

temporaneously with the rendition of services over the

years during which the contract provision for severance

' pay was operative and that the time for payment of suck.

benefits was deferred; consequently, it contends that this

- issue survives. the termination of the contract. The ar-- |

ent thus advanced is a tenable. one and the pattern and -

course of the parties” conduct might be infinential in de-

termining the issue. If the Guild.can sustain its conten-

tion in this regard, the accrued benefits under the sever-

ance pay provisions do not perish with the agreement, sur-

vive its termination,.and severance pay becomes payable

on. expiration of employment’ regardless of the date of

termination of the contract.

_ Any inquiry, however, to determine whether or not

such claim, or any clain, arises after the termination of —

the contract goes to the merits.- It is a matter embraced ©

: ‘within the. general principle, to which reference is made

in Matter of Lipman v. Haeuser Shellac Co., supra, at p.

_» 80, that “all issues subsequent to the making of the con-

tract are not for the court but for the arbitrators,” and

is therefore properly within their province. .—

The Guild here applied for an order, directing that wach

claims ‘be heard and. determined by arbitrators.. On such.

application, the‘court could not decide whether or not any ~

~ such ‘claim was valid. It. was limited to a ‘determination :

as to whether or not (1) a contract requiring arbitration

exists between the ‘parties; (2) a dispute exists within the’

Rat

seope of the arbitration clause; and (3) one party to the .

dispute refuses to proceed to arbitration. (Matter of —

, Spectrum Fabrics Corp., 285 App. Div. 710, aff’d 309 N. Y..

709; Matter of Lane’v: Endicott Johnson Corp., 274 App. °:

. Div 833,. aff'd 289 N. Y. 725; Application: of Tescliner,

supra; Crossett v. Mt. Vernon Housing Authority, 275 —

App. Div. 10513 Matter of. Lipman v. Haéuser, supra.) .

Even if the Guild violated the contract by éalling | a

strike, that doés not prevent it. from invoking the arbitra-

= tion called for in'the contract (Application of ‘Stewart, 285

‘App. Div. 953), and it is quite immaterial to a determina-:

tion as to whether or not it is required that a specific claim .

be arbitrated that the ‘provision for arbitration is found |

in a contract: which has been terminated. (Matter. of Lane.

v. Endicott Johnson Corp., supra; Mattere of Selly, .178

Mise. 1076; In re CommerciatTelegraphers’ Union, 123 —

N.Y. S. 2d 259). Whether the employer ‘has incurred any

_ liability for severance pay is to be determined by the arbi-

- trators who are the judges-of:the law as well as the facts

‘(Matter of Lipman v..Haeuser Shellac Co., supra; pre

of Spectrum Fabrics Corp., 485 App. Div. 710, 714).. It.

was not the province of Special Term to attempt to pais

on the merits of the application. __ :

The order appealed. from, in so far as it refused to

direct arbitration on the ¢laimis for severance and notice. |

of dismissal. pay, should be reversed and arbitration di-

‘rected on those claims; ahd in so far-as said order directed.

arbitration on claims for overtime, holiday and accrued _

_ vacation pay, it should be affirmed. —

All concur except Pxox, P. Bu who dissents and votes,

to ee a%

APPENDIX B3

(Opinion of the Court of Appeals of the State of iat York,

- 2N. Y. eee E. 2d 841)

Dye, J.:

The petitioner-respondent, Dicssaine Guild of New: “i

York, Lécal 3, ANG, CIO, hereinafter called ‘‘Guild’’ and

the respondent- appellant, Brooklyn Eagle,.Inc., hereinafter

called the ‘‘Publisher’’, under date of Nove} ber 30, 1952, .

entered into‘a collective bargaining agreement affecting the

employees. in the Publisher’s editorial and commercial de-

partments. The agreement was for a period of two years

unless changed by mutual consent. If either party desired

to change the terms, it could give notice of-its desire to the

_ other “‘Not*more: than 90'days and not less than 60 days is

prior to the expiration * * * thereof’’, in which event, nego-

tiations were to commence immediately and ‘‘proceed with

all due diligenée.’’ It further provided that:- i} an agree-

‘ment. has not been reached by the~date/ upo)

1 “This Nqremmenk shall, unless changed. by antad consent, bein ff

effect from its date for'a period of two years. ‘e

“Section 5—Minimum Wages, Section 6—General Wage Increase, |

Section 10—Severance Indemnity, and Section 11—Vacations, may

be reopened as of December 1, 1953, upon written notice of either

party to the otlier given not more .than 90 days and not less than

. 60 days prior to December 1, 1953. If agreement upon any reopened _ :-

-matters:shall not be reached hy December 1, 1953, such matters shall

be submitted to arbitration under the rules provided. by Settion 21,

Grievance Committee.

_ ° “Not more than 90 days sat 4 not less than 60 days prior to the.

aR expiration of this agreement, either party may give to the other party

notice ‘of desire to change the terms thereof. In the event of such

notice, negotiations shali be immediately entered <into and - proceed

with all due diligénce. If. an agreement has not been reached by the _ ;

date upon which this agreement expires, status quo condition’ shall

_ be maintained daring. negotiations.unless and until such ———

are terminated by either party.’ “a

1 which this. —

agreement expires, status quo conditions shall be*main-. ~

tained during negotiations unless and until such nego- © fy

tiations are terminated by: either, party” (§ ores ; a letter =f

PR LOMA IA PRONG PANO NS OCA A DR 7 Hee iy

fone OP AMEN Sond Waa

29 ,

dated September 1, 1954, which was within the time limita-

tion provided therefor, the Guild notified the employer. of

its desire to modify the collective bargaining agreement and

‘requested a joint conference at a mutually convenient date.

* Thereafter the partiés negotiated in joint session both prior

_ toand subsequent to November 30, 1954, the expiration date

of the contract, but-without es a mutually. satisfactory

agreement. .

“On January 28, 1955 the Guild, acting upon the instruc-

_ tions of the affected employees, called a strike. Nonetheless,

~ negotiations continued earnestly and in good faith in an

effort'to reach a new agreement until broken off on‘or about

March 8, 1955. Thereafter, by letter dated March 16; 1955,

the Publisher notified the: Guild that ‘‘an insoluble impasse’’ -

-had been reached and that since further negotiations would

7 : “be futile’’, ‘“we elect to, and hereby do, terminate them

forthwith.” The Publisher also advised the Guild: that:

. ‘The consequences of the strike have destroyed the Brook-

} lyn Eagle and we do not intend ever to resume publication.

) of the newspaper.’ ’? On the same day, the’ Guild notified

+. the. Publisher via Western Union ‘that, because of its

~ announced intention to suispend publication of its newspaper,

~ the employee benefit provisions of the collective bargaining

agreement wére deemed operative and demanded. that

Publisher. immediately : ‘remit all severance pay, accrued

. Vacation pay, unpaid overtime and holidays, notice of dis-

_ missal pay, sigk leave pay and,any and all other benefits -

earned by your employees * * * up to January 29,.1955’’. -

_. . When the Publisher rejected these demands, the Guild

‘ moved at Special Term, pursuant to- section” 1450 of the.

Ciyil Practice Act, to compel the Publisher to proceed t8

arbitration in ecordance with. ‘its collective bargaining.

. 30 .

| agreement. ‘The Special Term granted petitioner’s motion —

+ im all respects except insofar as it sought arbitration of .

- geverance and notice of dismissal pay. = = = © - -

Upon appeal, the Appellate Division, First Department, _

_reversed so much of.the Special Term order as had refused

to direct arbitration on the claims of severance and notice «

of dismissal pay, made new findings and conclusions of law

in respect thereto, diretted that arbitration proceed as to

those claims and, ag so modified, affirmed: .

In this appeal, taken as of right, the appellant Publisher

challenges only so much-of the order as granted. petitioner-

_ respondent’s motion to compel arbitration of claims for

severance, notice of dismissal and vacation pay. The appel- —

‘iant argues that since the status quo ended on either (as

- found by Special Term).J anuary 28, 1955, \the date,of the -

strike, or (as found by the Appellate Division) oa March”

8, 4955, the date joint. sessions. erided, there-was,no agree-_

- ment in existendée on March 16, 1955, the date the Publisher

elected:to terfinate negotiations; in other words, that the |

alleged claifns. for employee benefits did not accrue until

after the agfeement -had terminated, thus raising an issue

as to. whether the claims have any basis.in, the collective

bargaining agreement which the court and.not the arbitra-

tors should decide. The. appellant cites Alpert v. Admira-:

tion Knitwear Co. (304 N. Y. 1) and Matter of General

Elec. Co. (United Elec, Workers) (300 coon to sup-

2 Arbitration Agreement dated ‘November 30, 1952. provides :

“Section 21 * *.* (b) Any dispute, claim, grievance or difference

- arising out of or relating to this agreement which-the Guild and the

Publisher: have not been able after reasonable effort to settle, shall be

submitted to arbitration upon notice of either, party to''the other,

under the labor arbitration rules then obtaining of the American

~ Arbitration -Association. The ‘parties agree to abide by the award

subject to such rules and regulations as any Federal agency having”

jurisdiction may impose. The parties further agree that there. shali ~

be no suspension of work over an issue which is in dispute and is in

process of arbitration. The expenses of an arbitration shall be borne

equally by the parties.” _ < : :

< * “

es)

he nti Ge

port its position. Both Alpert. and General 1 Electric are ~

distinguishable. In Alpert, purchasers of woolen goods

had failed to establish financial responsibility, as required

_ by the contract which the seller elected to cancel; conse-

_ Be ‘quently, no question remained which could properly be .

‘— . submitted to arbitration: In General Electric, we held

_ that an antidiscrimination clause in one contract could not —

_be invoked to compel arbitration of a dispute. arising out

of another. Thus, both Alpert and General Electric stand

only for the proposition that if, under“the clear terms:of -_

an agreement calling for arbitration, there has been no ——

default, the court may not make an ooh soneng 2

party accused’ of défault to arbitrate. ile it is true that

‘whether or'not a bona-fide dispute exists is for the court

_ (Matter of Wenger € Co. v. Propper Silk Hosiery Mills,

239 N. Y. 199), it is equally true that in a proceeding to

. compel arbitration the question for the court to pass upon _

_ is whether the written contract provides for arbitration

.. ‘and, if so, whether there was a failure. to proceed with

: the obligation to arbitrate (Matter of Kahn [National City Pee

Bank], 284 N..Y: 515). The question of performance goes

to the merits and is a matter for the arbitrators whenever

it appears that .the parties have s0@gnsented (Matter of

[| Lipman [2aeuser Shellac Co.], 289-N. Y. 76, motion for -

|”. reargument”denied-289 N. Y. 647) ;.and when such consent

is given, the courts of New York will give it effect (Matter

=. of River Brand : Rice Mills” v. Latrobe Brewing Co., 305.

-. N. ¥. 36). Whether the “‘status quo’’ ended: on January

28 or March’8, 1955—due to the conduct of the Guild—as

-eontended by the appellants, or on March’ 16—due to the

_acts of the Publisher—as claimed by the respondents, does

“not prevent the latter ‘from invoking arbitration as called

for in the agreement, since the issue is not whether peti- —

~ tioner is right, but whether it is entitled te have the issues

determined in. the forum designated in the agreement —

‘(Matter of Lane [Endicott Johnson Corp.], 274 App. Div. =

p «833, affd. 299 N. Y...725; cf. Matter of Selly [French .

'. certain named conditions. Whether these conditions. have —

| Tel. Cable Co.j, 178 Mise. 1076). When. these parties

- executed the within collective bargaining agreement con-

taining the broad and comprehensive language ‘‘ Any. dis- —

pute “* * arising out of or relating to’’ (n. 2, supra), they

must be, deemed to have intended the enforcement of its -

terms by arbitration. Accordingly, whether. or not the —

Guild called the strike in breach of the “no. strike’? -clause~ >

- constitutes no defense to this motion to compel arbitration -

' (Matter of Kahn {National City Bank], supra). Further-

—~ more, it has long been the rule that striking employees do |

not lose their status as employees; this was so at common _

law (Jeffery-De Witt Insulator’ Co. v. National Labor Rela-

tions Bd., 91 F. 2d 134, cert. denied 302 U. S. 731), a

principle now embedded in our State statute (Labor Law,

§.701, subd. 3; ef. Degnan v. _ Metropolitan Life Ins, Co:,

178 Misc. 312) and Federal statutes regulating labor rela-

tions (U. S. Code, tit: 29, § 152, subd. (3); ef. Labor Ba.

v. - Hockay Co., 304 U. S. 333).

‘The obliective bargaining agreement sia ‘ebnsilie pro- |

visions for severance, dismissal and vacation. pay under

been satisfied is a matter of sharp dispute and one which

~ necessarily arises out of and relates to the contract.. While

the employees could. have brought suit fer—the amount, ,

allegedly due them, absent any other remedy, the Guild as

the chosen burgaining representative -and the Publisher

consented to a settlement of ‘any dispute arising out-of -—

and relating to the agreement—and this-imeludes the .con-

-troverted items of pay—by arbitration, a remedy which. .

they primarily and exclusively placed within the jurisdic-

“tion of the arbitral tribunal (cf. Matter of Teschner

_ [Livingston] 285 App. Div. 435, affd. 308 N. ¥. 972; Matter

of Compagnie Francaise des: Petroles | Pantepec Oil.Co-),

279 App. Div. 851 [1st dept.], affd. 305 N. Y. 588; Matter -

_ of Lane [Endicott Johnson Corp.}, supra). On this record

we. are satisfied that the motion to compel arbitration was.

prepetly granted. We pass on no other question. . |

_ The order — from should be oa, with costs.

& Rat

Vax Vooamm, J. ‘(dissenting) :

| Brooklyn Eagle, lne., has snquale’ from an order of the’.

-. Appellate Division incofar as it granted a motion.by News- —

" paper Guild of New York, Local’ 3, to compel arbitration

of claims for severance pay, notice of dismissal pay and

|. Vasation-pay.--On March-16;, 1955-the-Brovklyn-Bagle went

out of business permanently and notified its employees to .

expired, except for a clause providing that if negotiations -

_ were begun for its renewal prior to expiration (as they -

were), ‘‘status quo conditions shall be maintained during

negotiations unless and until such negotiations are termi-

' .. nated by either party.’’ Such ‘negotiations continued until

the Guild members struck on January 28, 1955 in violation <

ofa no strike clause. This effectively terminated the status

quo conditions. As Justice Hucut said at Spedial Term:

*A ‘status quo’ binding only on the employer was manifestly

not what was intended by the contractual provision for

\_continuation of the ‘status quo’. ane negotiations”

(italics from original). — =

ary 28, 1955, the Guild called a strike and the employees

- quit work. -Up-to that time the status quo had been main- _

_ tained. Negotiations continued until March 8, 1955, when

they terminated.’’ ”

is committee of the Guild refused ‘to meet

in joint session with the. Brooklyn Eagle’s negotiating

* negotiators ‘of the other party constituted, as matter of .

~ law, termination of such negotiatiins ‘‘by either party”’,

__ which’ ended the life of the labor-contract according to its °

-.own terms* not later, in any event, than March 8, 1955. :

The employees were discharged one week later upon the s

that effect. It has béen ordered to submit to arbitration — : ;

under a collective bargaining agreement that had previously Shs

committee on March 8, 1955. ‘Refusal to meet with the

34 : om

announcement of the decision of the newspaper to retire

frem business. ;

| Upon the same day, the Guild demanded, among glnes

et matté?s, severance pay, notice of dismissal pay and vaca- _

_ tion pay. When payment:was refused, the Geil demanded

that ‘the controversy be debitrated. a |

“~~~ — Subdivision (b) ‘6f seetion 21 of the agreement scttpline

_ a general arbitration clause of: ‘‘ Any dispute, claim, gtiev-

" amee or difference ' arising out of or relating to this agree- °~

ment which the Guild and the- Publisher have not been

able after reasonable effort to settle”. —.

' Beth Special Term and the Appellate Division held that

_none of these claims is required to be arbitrated unless it . |

‘ acerued while the contract was in force. It is, of course, .

the law that the cireumstance that'a contraet is ended does,

not, prevent the arbitration of issues which arose before its

_. termination (Matter of Lane gy Johnson Corp.], 274 °

_ App. Div. 833, affd. 299 N. Y. 725), In order. to ‘render

that rule ; howdver, the assérted rights ponst.

"have grown out of the contract while it was in effect.

, ithe sonteast, ended Senmary 3. ot at the latest March 6, |

1965. ;

A aclladtine bargaining agresunat i is 5 oie, different fren

other contracts in these regards (System Federation No..

' 59 of Ry. Employees v. Louisiana & Ark. Ry. Co.,'119 F.

2d 509; Paterson Parchment ‘Paper. Co. _v. International

_ Brotherhood. of Paper Makers, 191 F. 2@ 252, cert. denied.

342 U..8. 933; Cardenas v. Wilson & Co., 180 F. 2d 828, .

- gert. denied 304 U.S. 812), and arbitration clauses in labor

" contracts are specifieally held to be’ binding with- respect

only to controversies which had their origin during the.

. life of the.contract (Matter of Lane [Endicott Johnson

Corp.], 274 App. Div. 833; affd. 299 N. Y. 725, .supra,

_eert.. denied 338 0. 8. 892; Alpert v v. Admiration Knitwear si

Co., otal N. Y. 1). ft °

i ay eS

Be y yo ae

‘The decisive factor ‘is whether the. Brooklyn Eagle’ 8

: employees became legally entitled to these fringe. benefits

before the contract terminated on January 28 or at the

latest March 8; 1955. If liability for these items attached.

_ after the agreement ended, there is no arbitrable dispyte e

- and the application to compel arbitration should be denied

(Matter of Generali Elec. Co. [United Elec. Workers], 300

N. Y. 262; Matter of Essensan [Upper Queens Med. Group), |

307 N. ¥. 68; Matter- of International Assn. of Machinists-

(Cuierommner, Ine}, 271 ai Div. 917, afd. 297 N.Y. .

: eee

Special Term allowed arbitration for overtime, holiday

and vacation pay. ‘To these the. Appellate Division added »

- severance and notice of dismissal pay. Appellant. Brooklyn

wen

Eagle asks for. modification to eliminate arbitration of. -

severance, notice of dismissal and vacation pay..

- These items, it seems to me, to whatever extent they

may be payable, had their origin after the labor contract

ended. These employees were dismissed when the Brooklyn

Eagle went out of business March 16, 1955.. ‘Although.

severance and dismissal pay are computed by the length

of time during which the” employees had worked for the

company, these charges i in no sense become a liability until

: dismissal. The law in this State is settled that such pay

is liquidated damages for a dismissal (Wanhope.v. Press —

Co., 256 App. Div. 433, affd. 281 N. Y. 607; Barth v. Addie

~ Co., 271 N.Y. 31). It is-so-held in other jurisdictions (Mat-

ter of Port Pub. Co., 231 N. C. 395; McCloskey v. Division of —

Labor Law Enforcement, 200 F. 2d 402; Talberth v. Guy |

Gannett Pub. Co., 149 Me. 286 ; Ackerson v. “Western Union

Tel. Co., 234 Minn: 271).

All of these dvitilene” were guided ve the contingent

nature of severance or dismissal pay.. Until an @mplayee

~ is dismissed, it cannot be legally ascertained whether he .

will be scare and the obligation has no “existence wl :

©.

_ 36

dieiniiceal oceurs. Consequently it seems to me that under -

no theory could any obligation of this’ nature have arisen

prior to March .16, 1955, which was after this labor contract —

had ended. : .

A similar principle applies. to vacation pay (Wanhope “a

_ y. Press Co., 281 N. Y. 607; supra). It wag held in that

case that upon dismissal prior to vacation period, no rights

to vacation pay had.acerued. To the same effect. is Bondio -

_v. Joseph Binder, Inc.; 24 So. 2d 398 [La. Ct of Appeals]}). .

. The order appealed from should be modified so as to 2

eliminate the direction compelling arbitration of severance, -

notice. of dismissal and vacation pay, and, as 80 lacuna.

- affirmed, with costs to appellant. —

Desmonp, Fup, FRoEssEL and BuRKE, 7. concur - with ;

- Dvz, J.; Van Voornts, J., dissents in an opinion i in which

| Coxwar, Ch. J., concurs. - _ ~ a o oe

Order affirmed.

‘tipeniecanstihin Chaat, tenerh Sete %: 1987, PO ee

Appeals of the State of ‘New York Denying Motion for —

Reargument or, in the Alternative, to‘Amend the Remittitur

a oN. Y. ait a Naticarrails 7

“Motion for reargument or, in the ination. to wend :

the remittitur denied with ten dollars costs and necessary

. — disbursements.” ioe

Sale

\ ied

ea ‘APPENDIX .

Record Showing First Federal Question Raised

. (As to \the Second Federal Question Raised,

| \ oa one-page 6, supra) SRS ae

NG |

3 (Notice of Motion and Afidavit for Reargument, or in the

| = NS 7 :

| COURT OF APPEALS <a

| - OF THE ‘Shere é or New York

. = , oe whee ae Re ; ae eS

\ \ :

a Micuaz’ = ‘as Seeretary-Treasurer of News-

PAPER GuiLp oF New Spc Locat 3, .ANG, CIO,

: Petitioner- Respondent,

and : N

“Baooxuyx ‘EAGLE, lic. * 3 3

Respondent.Applian.

| me pn th

"day for reargument o or, in the. alternative, to’ amend ‘the

remittitur to certify that this Court, ‘mnaiorst. the follow-

ing question imate Federal shins vais as a matter

-of law exclusive jurisdiction ‘of this matter is in the Fed- —

eral district courts by virtue of Section 301(a) of the Labor.

- Management Relations Act, 1947, and other. related and

. relevant statutes of: the United States, and for such other

and further relief as to the Court may seem Jet and |

proper; 3 ;

be Date: ‘New York, York,

May: 13, 1957 -

‘Yours, ete,

NoRDLINGER Siiciaies Benetar & CHARN EY

_ Attorneys for Respondent- Appellant,

__Brooklyn Eagle, Inc. .

re Office & P. O. Address,

‘s . 420 Lexington Avenue

NL be Nt ~ Borough of Manhattan .

4 City of New: York .

To: EG a Soh ee se

- Coneuiy, Olean & De: Canad | cae i"

. Attorneys for Petiti r Respondent : :

Office & P. Qa. A

655 Madison Avenue . wy taut

Borough of Manhattan | °

| City of New: York

* COURT OF APPEALS

: OF THE Stare oF New Yorx

/ In the Matter Se

| / of page :

M. OHAEL PoToKER, as ‘Secretary-Preasurer. of Spe

ae Gut or New York; Loca. 3, ANG, CIO,

ie Eaves Se sae Petitioner- Respondent. Re

Samick | Baooxiyn oo ind: ER

Tae See 8 cee "Respondent Appeian Ca.

oie on Naw Yn

| E- 25-4 ae mee |

i: Dam L. Baxean, ring duly worn, deposes and says |

Se aes ecniaies tl Ge tee of Reciiani, *

- 4 Benetar & Charney, acre fn Ba a Pe

sas ‘Tae above catitied matter Wed srgued vei November

4, 1006 andthe dosiion ane opinion of thix Court wat

2 etre ad for ventgament or, in the

alternative, to amend. the remittitur. to certify that this.

_ Court considéred the following question involving Fed-

as a

. eral law—whether Ce ey eee seta

oe ae os

/ .

a ie

oe a Ste ta

a. 4

dee of this maitet is in the ‘Federal district courts by

virtue of Section 301(a) of the Labor Management Re-

’ jations Act, 1947, and other tees and relevant statutes. -

_of the United States. |

The grounds on which both ‘soeitiih “of this motion

are made are set forth in our aécompanying” brief 1 to which

reference is. — made. a tere 4

/s/-Daviy L. BENETAR

wor to before me this eS noe pe

/- day of May, 1957. ? : a

a :

"Heaacan. D. ScHu.tTz

Bases Public, State of New York.

No. 03-3540635. =

in Bronx County .

@aetiente Filed i in New-York County _.

_ Term Expires March 30, ith |

~ Deputy Clerk

hordlinnse, eietinan, Benetar & Cifurney, Esqs.

‘ 41

(Letter Deted June 7,-198%, from the Deputy Clerk: 6f the

Court of Appeals. of the State of New York Addressed to-

the Attorneys for the ee

: STATE OF NEW YORK 2 eae

Pare COURT OF APPEALS» ee 2

“a e J. ‘CANNON oe ~ |

Clerk * .

Gearon Krmpaue c 3 | 2 #

ee ae ie: Albany. 7

: | June 7, 1957

Comnsellors at Law

420 Lexington. Avenue °

_ New York, N: Y....

Re: | ‘Matter of Potoker v. Brooklyn Eagle, Ine,;

_ Calendar No. 228

Dear Sirs: Ae ee 4 a owe

The Supreme - ‘Court of the United States, « on es

| . of this week; decided the following three cases: Goodall-

- Sanford, Inc. Vv. United: Textile Werkers of America;

_ General Electric Go. v. Local 205, United Electrical Work-

‘ers; Textile Workers Union of America v. Lincoln Mills

of Alabama.

‘ In view of the fact that the papers on the motion for

reargument of, or to amend thé remittitur on, the above- °

entitled appeal refer-to these cases the Court has requested

us to write counsel, advising that they may comment on the

' effect of these recent ‘decisions on the pending motion by °

bation within the next few days, if they so, desire.

| i Yours sti truly, _ |

eR osama ae ou Ganon Krai

GK :wb.

: Clerk’s. Office —

Deputy Clerk —

° =r

APPENDIX J De :

(Order and _Judgment of the Court of Appeals)

Sears or New ~~ County OF NEw You, $8. :

e | & ARCHIBALD R. Wiseos, County Clerk and Clerk of the

Supreme Court, New York County, do hereby certify that.

Ihave ‘compared the attached paper, consisting of 4 pages,

with the original thereof filed i in my -office and that same is _—

a correct transcript of the original. and of the whole Charset.

“In ‘Wrrnzss Wuerror I have hereunto set my hand and

affixed my official seal. - |

*®

Arcutpan R. Warson,, :

re “County Clerk’ and Clerk of the

or, Supreme Court, New York County. |

No. Seon 3 o

COURT OF APPEALS

Srare 0 OF N EW Yous, ae

Pugas in the een’. of Sabai held at ‘cient of de

peals Hall, in the City of Albany, on the 4th day

of April in the year of our Lord one thousand nine

hundred and fifty- fev en, before the Judges of said

Court.’ s

Witness,

‘The Hon, ALBERT Conway,

Chief Judge, Presiding.

_ Raymonpn J. Cannon, Clerk.

Remittitur April 4, 1957.

~ No. 228. |

ih the Matter of. . a

.. M, MicH an. Poroxer, as. Secretary-Treasurer. of “News-

- Paper oe of New York, Local 3, ANG, C10, .

Respondent,

er ie

re diss ° ‘ and

Baooxyy Eac.e, Inc., ; ee

Appellant.

~ Be It REME MBERED, That on the 28th day of J uly. i in the

_year of our Lord one thousand nine hundred and ‘fifty- six,

Brooklyn Eagle, Inc., the appellant in this cause, camé

here unto. the Court of Appeals, by. Nordlinger Riegelman

» Benetar & Charney, its attorneys, and filed in the said Court

-a Notice of Appeal and return thereto from the. order .of *

the Appellate Division of the Supreme Court in and. for

the First Judicial Department. And. M. Michael Potoker,

as Secretary-Preasurer of Newspaper Guild of New York,

e..:

Local 3, ANG, CIO, the respondent in said cause, after- ~

wards appeared in said Court of Appeals by Cooper, Ostrin 3

& DeVarco, his attorneys.: .

; “Which said Notice of Appeal and the. return thereto,

filed as aforesaid, are hereunto annexed. So

WHEREUPON, ‘The said Court. of “sade having heard’.

this cause argued by Mr. David L. Benetar, of: counsel for

the appellant, and by Mr. H. Howard Ostrin, of counsel

for the respondent, ; and after. due deliberation had thereon,

, did order and | adjudge that the order .of. the Appellate

- Division of the Supreme Court appealed from herein be

_ and the same hereby is affirmed, with costs. |

Tike

And it was aleo further ordered, that the recsind afore-

‘sdid, and the proceedings in this Court, be remitted to the .

said Supreme Geert, there to be preceeded | upon according

to law. | | :

Punnzrons, x1 is cqnsidered’ that the said dak be af- he

firmed, with costs as aforesaid. mers,

dod hereapon, as well the Notice of Appeal and return

‘thereto aforesaid as the judgment of the Court of Appeals

aforesaid, by it given in the premises, are by. the said

Court of Appeals remitted into “the Supreme Court of the -

State of New York before the Justices thereof, according —

to the form of the statute in such case made’ and provided,

o be enforced according to law, and which record now re- >

mains ‘in the said Supreme Conrt, before the Justices

thereof, &. ) :

ie 3 | ee Ss ; Bivisonp J. Cannon,

Res BO | ~* Clerk of ‘the Court of Appeals

jo x of the State of New York.

: Ge

Pi, DRS eta

Court .or App&ats, CLERK’s OFFICE -

; Albany,. April 4, 1997. , :

_T wesesy certiry, that. the preckding record contains

‘a correct transcript of the proceedings in said cause in the

| Court of Appeals, with the papers originally filed therein, .

attached a. :

- Baymoxp J=CaNnon,.

(Seal) pate ‘Clerk

ee ee ee eee

».

: S Present:

+ County of New Yerk)

. hi tacit iii

' At a Special Term, Part Ba of. the- Supreme

Court, New-York County, held in and for the

- County ef New York, at the Court House, in

_ the :City of New York; State of New York

on the 30th day of April, 1957.

°° Hon. Henry Ereram;

, Justice. . |

- 4999/55: i :

In the Matter of

M> MicHarn -PoroxeR,.- as Secretary-Treasurer of. a.

PAPER Gump oF New = Loca 3, ANG, CIO,

ae "Petitioner,

Brooxtyn Eacte, Ine.,

i >.

The above-named respondent, having ‘appealed to the

First Department, duly entered on the. 17th day of Janu-

ary 1956, in thesoffice of the Clerk of that Court, anid the

Court of Appeals having heard said ‘appeal and ordered |

Respondent. |

‘Court of Appeals from the order of the Appellate Division, —

: and. adjudged that.the order so appealed from be affirmed,

with costs to the petitioner, and the remittitur from the

Court of Appeals having been duly filed in the office of the

3 Clerk of ad York County, .

“46

Now, on nntion of ti Ostrin & DeVar co, sthenniy s

for petitioner, .

It 1s QRDERED that the said order of the Court of Ap-

peals be; and the same hereby are made the order of this

court; and that the order of the Appellate Division, First

Department entered in the office of the Clerk of that court

on the 17th day of January, 1956 be and the same hereby:

is. affirmed; and that costs be taxed against the _Tespond-

ent herein. - : rene &

Enter,

a. ’

(Chie 0 ep tisha tie

a for Reargument or, in the Alternative, to Amend

* the Remittitur)

State or New York

IN COURT OF APPEALS»

At a Court of ‘Appeals for the State. of New

York, held at Court of Appeals Hall in the

City of Albany on the third day of Jair ;

one weaker aa 1987.05:

| —— s ‘

‘Hor. ALBERT Conway,

» Chef Judge, presiding.

aan

Mo.No.40 ©

Inthe Matter a

M. ‘Westa Poroxer, Aas. Secretary-Treasures ‘of News-

PAPER GUILD OF a York, Loca 3, ANG, CIO, .-

| Respondent,

ae 8 ot

- Brooxiyn Eaatz, Inc; . Sree

te . ia

-. A motien for reargument or, in’ the alternative, to -

amend the remittitur in the above @ause having been here-

tofore;jnade upon the part of the appellant herein and

papers having been submitted thereon and due .delibera-

tion having been thereupon: had, it is

Orperep, that the said motion be cand the same hereby

is denied with ten deliave « costs and necessary —— dis-

' bursements.

', A copy ‘

he RayMonn. J. Cannon f

(Seal of es ve |

Court of: Appeals)

0. .

* Starz or ‘New Yous, County oF Naw Yonx, S80:

‘I, ‘Apomseana R. *Wareon, Gunmae Clerk ond Clerk of. rule: 4

Supreme Court, New York County, do thereby. certify that -

I have compared the attached paper; consisting of 3 pages, _ :

with the original. thereof filed in-my office ‘and. that same is

- correct transcript of the original and of the whole thereof.

In —— Wuenreof | have hereunto out 4 my hand and >

saat oy eal a = ‘

—

ArcumaLp R. Wareon,.

County Clerk and Clerk’ of the’

_ Sapreme Court, ‘New York County.

(Sma)

. fedry

ENS :em Pete ues a4 er

. _ At a Special Term, Part II of the Supreme

Court, New York County, held in ‘and for

the County of New York, at ‘the Court

House, in. the City of New York, State of

- New Mah on Oe SR tay: kage, 1957.

Present: =<

Hor. Haroun A. Sisteee, ie

Justice. “

4999/55

o A 6 , :

_M. Maomen. PoTOKER, as aeenstacry-‘Preneyrer of NeEws-—

PAPER GUILD OF y Bae Yorn, Loca 3, ANG, Cre, - *

. * Futitioner,

. °:Brooxtyn Eaeze, INc.;.

‘The enn | reepondent hovieg, in the Court of

Appeals, made’a motion for reargument or, in-the alterna-

tive, to amend the remittitur in this. cause, afd papers

having been submitted on said. motion, and after due de- _

liberation the Court of Appeals having denied the motion

with ten dollars costs and necessary printing disbursements

‘to the petitioner, and the order of the Court of -Appeals

having been duly filed in the office of the Clerk of New _

York County, it is, —

Onperep that the order of. the Court of ialastai' be and

ih same hereby is made the order of this. Court. ;

Enter , ae

: H. A. S.,

an teed aan 8. S.

Aug. 6 1957

New York ge If

Co. Clerk’s Office Ds pe

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