# Petition for Writ of Certiorari — Brooklyn Eagle, Inc. v. Potoker (No. 498) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1547%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1957 ## Text “ ' 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. / , > 2 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. q 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 * a as: ee ie ae jl. . 3 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 12 & ° (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 QO 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). : i 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 ne — ‘ ry a - - 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... 3 ~ 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 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 | 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 . J 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 - - © other court having jurisdiction of the parties * **,? . ° (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; 12 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 | / A 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 | z - **9 . . | . ~ |. G . ad Qin P y “ vy (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. ; (c) Jurisdiction. 3 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 ‘ — 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 oo a Se 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> \ Se 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. ~ : 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. - - 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 : f v 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’ | 3 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% SB 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 - 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. a, LE & 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 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 : I : In the Matter of M> MicHarn -PoroxeR,.- as Secretary-Treasurer of. a. PAPER Gump oF New = Loca 3, ANG, CIO, ae "Petitioner, Se Brooxtyn Eacte, Ine., i >. oe 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 3 -. 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 , : In the Matter of © _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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1547%3A2. Public record. Not legal advice.