In this action, the plaintiff, a discharged employee sues his employers and representatives for alleged defamatory remarks made at a conference held pursuant to the collective bargaining agreement between the employers and his union. The defendants move for summary judgment under CPLR 3212.
The plaintiff was a member of International Union of Operating Engineers. The agreement between said union and the Meadow Gold Corp. provides in paragraph 13 as follows:
"That any employee having a grievance shall have certain privileges -- among these are:
"If a satisfactory agreement cannot be reached between the parties either party may have the privilege of requesting arbitration before an arbitrator to be selected from a panel to be submitted by the New York Board of Mediation.
"However, before any arbitration is requested, the union and employer shall first try to adjust the matters between themselves."
The only parties present at the conference were the plaintiff, his union representative, the president of Meadow Gold, who is also an officer of Beatrice Foods; two other officers of Meadow Gold; and the attorney for the employer. All were there in the common interest of considering and, if possible, adjusting the labor dispute or grievance.
At said conference, the plaintiff claims that the defendant, Holmes, stated "Bird has been stealing from the Meadow Gold Company and we have positive proof." He also states that the defendant, Reier, falsely and maliciously slandered him in the following words: "I will turn over the information I have about the B & R ice cream sale to the District Attorney and have Bird arrested this afternoon for larceny. However, if Bird makes full restitution and hands in his resignation immediately, my clients would drop the whole matter."
The matter was not settled at the conference.
The plaintiff having been denied reinstatement, the matter was referred to Herman A. Gray, designated as arbitrator by the New York State Board of Mediation, as provided in the contract.
A hearing was held before the arbitrator on July 29, 1966. The employer submitted written and oral proof as to the discharge and of a misappropriation by the employee. The employee gave testimony as to the discharge but remained silent with respect to the alleged misappropriation.
The arbitrator, after hearing the testimony, made the following award on August 8, 1966: "1) That the employer had good cause for discharging Donald Bird and that such discharge should be and it is sustained.
"2) Donald Bird having misappropriated money belonging to the employer became active in actions thereto which can only be explained reasonably as being devious and improper in purpose, the application made to reduce the penalty of discharge and to order his reinstatement should be and the same is denied."
No motion was made by plaintiff to set aside the arbitration award on any of the many grounds provided therefor in CPLR 7511, in general, and paragraph 2 of subdivision (c) thereof in particular: "The arbitrators have awarded upon a matter not submitted to them and the award may be ...