APPEAL from an order of the Supreme Court at Special Term (BEST, J.), entered August 10, 1953, in Schenectady County, which denied a motion by defendant-appellant for an order dismissing the complaint for insufficiency as to it, under subdivision 5 of rule 106 of the Rules of Civil Practice.
Laurence V. Benedict for appellant.
Stephen Della-Rocca for respondent.
This case is before this court for a second time. The plaintiff had originally sued his former employer, American Locomotive Company, and his labor union, United Steel Workers Union, C.I.O., Local Union No. 2054, for damages and for reinstatement in employment.
The original complaint alleged that the plaintiff had been discharged on April 14, 1948, for reasons which the plaintiff claimed did not constitute 'proper cause' within the meaning of the collective bargaining agreement between the employer and the union. As appears from the complaint and the exhibit annexed thereto, the plaintiff protested against the discharge and, in accordance with the collective bargaining agreement, intramural hearings were held and the so-called second and third steps in the grievance procedure were completed on October 15, 1948. Thereafter, the union demanded arbitration of the controversy pursuant to the provisions of the collective bargaining agreement. The company agreed to arbitration and designated its representative on January 24, 1949. On February 2, 1949, the representative so designated wrote the representative designated by the union suggesting a candidate for the third impartial member of the arbitration panel. Apparently
nothing further was done by the union until January 11, 1950, when the union requested that the plaintiff's grievance be arbitrated by a panel which had been originally appointed to hear another case. The company promptly agreed to this and accordingly a hearing on the plaintiff's case was held by the arbitration panel on February 8, 1950. The arbitration panel handed down its award on March 31, 1950, upholding the plaintiff's discharge by a vote of two to one.
The full text of the arbitrators' award was annexed to the complaint and made a part thereof. The impartial member of the panel who cast the deciding vote expressed the view 'that Donato's discharge was not originally justified by the behavior alleged by the Company but that by permitting this grievance to languish as long as it has, the Union had in effect acquiesced to the Company's judgment as to the discipline warranted in Donato's case'. Further, 'The fact that the case was not pressed to timely arbitration, plus the fact that there is no evidence that failure to accomplish this can be charged to the Company's action, nor other possible extenuating circumstances, can only mean, in the opinion of the impartial member of the Panel, that by its lack of diligence in pressing this case to arbitration the Union effectively relieved the Company of the necessity of producing factual evidence of prior reprimands and effectively sustained the Company's judgment as to the extent of discipline warranted'. The arbitration panel concluded that the plaintiff 'has suffered injury as a result of this incident, but it is not within the power of this Panel to award damages nor to evaluate formally the acts which were responsible for the injury suffered by the individual'.
The original complaint alleged that the defendant union had wrongfully, negligently and maliciously 'refused and neglected to arrange a timely arbitration hearing for the plaintiff, although the plaintiff repeatedly requested and demanded of them to arrange for said hearing.' Furthermore, the complaint alleged that the defendant union had wrongfully, negligently and maliciously 'refused and neglected to appeal the Arbitration Panel's Decision of the 8th day of February, 1950, within the 3 months' period as prescribed by Section 1462 [sic], of the Civil Practice Act.' The complaint concluded with a prayer for reinstatement of the plaintiff in his former position and for a money judgment for damages for the wages lost and for injury to the plaintiff's health, and to his standing and credit.
Upon motion, this complaint was dismissed as to both defendants for insufficiency on its face. Upon appeal to this court
the dismissal was affirmed (279 A.D. 545), but the court granted the plaintiff leave to amend the complaint. The court suggested that an action in equity would lie to vacate the award on the ground that the arbitrators had in the language of subdivision 4 of section 1462 'so imperfectly executed' their powers that 'a mutual, final and definite award upon the subject-matter submitted was not made', the court indicating that, in its opinion, the arbitrators should not have taken into account in determining whether the discharge should be annulled and the plaintiff reinstated, the long period of delay on the part of the union in pressing the case for arbitration.
The amended complaint now before the court was drawn in accordance with the suggestion made by the court in its opinion upon the former appeal. The arbitrators' award is also annexed to this complaint and the complaint seeks a judgment setting aside the arbitrators' award. The Special Term denied a motion by the defendant American Locomotive Company to dismiss the complaint and from that denial the company appealed. Upon this appeal, the question of the sufficiency of the amended complaint is open for de novo consideration. All that was decided upon the former appeal was that the complaint then before the court did not state a cause of action; the granting of leave to serve an amended complaint cannot be regarded as an adjudication in advance of the sufficiency of an amended complaint drafted in accordance with the court's suggestion.
Upon examination of the amended complaint, a majority of the court is of the opinion that the amended complaint does not state a cause of action. Without going into the question of whether the award would in fact have been vulnerable upon direct attack, upon the ground that the arbitrators had given weight to the long period of delay and acquiescence on the part of the union in the discipline administered by the employer, we think it clear that an action in equity will not lie to vacate the arbitration award.
The arbitration proceeding was conducted under the Civil Practice Act pursuant to the arbitration provisions of the collective bargaining agreement. The recent decisions of the Court of Appeals have settled beyond doubt, if there ever was any ground for doubt, that the statutory remedy for an attack upon a statutory arbitration award is exclusive and that a plenary suit in equity will not lie for that purpose (Civ. Prac. Act, § 1462; Raven ...