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WILLO PACKING CO. v. BUTCHERS UNION

May 5, 1978

WILLO PACKING CO., INC., Plaintiff,
v.
BUTCHERS, FOOD HANDLERS AND ALLIED WORKERS UNION OF GREATER NEW YORK AND NEW JERSEY, LOCAL 174, Defendant



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

 Plaintiff ("Employer") commenced this action against the defendant ("Union") to recover damages for breach of a "no-strike" provision contained in their collective bargaining agreement. *fn1" The Union moves *fn2" to stay this action and for a direction that the parties proceed to arbitration upon the ground that the issue presented under plaintiff's complaint in this action is referable to arbitration under the terms of their collective bargaining agreement. The Employer resists the motion and contends that the arbitral procedure is limited to employee grievance claims.

 The law on the subject is clear. Whether or not arbitration is required is a matter of contract of the parties. *fn3" The issue is to be decided within the framework of their collective bargaining agreement. Arbitration "should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." *fn4" Whatever doubts exist as to whether the controversy is within the ambit of the arbitral process are to be resolved in favor of coverage. *fn5" The contract here in question is hardly a model of labor contract draftsmanship, but the issue must be decided upon what the parties themselves have wrought.

 The controversy had its origin when the Employer gave notice to the Union, pursuant to a provision of the collective bargaining agreement, of a contemplated layoff of a number of employees. The layoff was followed by what plaintiff alleges was a strike, which lasted from January 5 to January 16, 1976.

 Only two provisions of the agreement touch upon the issue to be decided, Articles 34 and 36, which provide:

 
Article 34 Grievances
 
(a) All grievances arising between the employees and the employer shall be reported to the Union. The employer and the Shop Steward shall try to settle such grievances immediately in the plant. If no Shop Steward has been elected by the employees, or if the Shop Steward is unavailable, the grievance shall be referred directly to the Union. Should they not succeed in settling the dispute the employer and/or the Shop Steward shall notify the Union of the pending grievance. The Union shall immediately try to reach an adjustment within two (2) working days. If no settlement of the grievance has been reached within ten (10) working days thereafter, the matter shall be referred to the New York State Mediation Board for arbitration, no matter where the employer's plant is located.
 
(b) Any employee who shall be required to testify before hearings with regard to arbitration, mediation or the settlement of a dispute, and whose testimony is necessary and material, shall not suffer any loss in wages by reason thereof.
 
(c) Hearings, whenever possible, shall be held in the afternoon.
 
(d) Records of the employer, kept in the normal course of business, are to be made available to the Union, if necessary for the settlement of a grievance.
 
(e) No claim shall be made with respect to any grievance unless such claim shall be presented to the employer within ninety (90) days after the employee becomes aware of his rights to make a claim. Illness of the employee will 'toll' the ninety (90) day period.
 
* * *
 
Article 36 Real Party in Interest
 
(a) It is mutually agreed that the Union is the real party in interest under the terms of this Agreement with respect to the proper enforcement of any of its provisions, and no individual member of the Union may take any action with reference to any subject matter covered by this Agreement without the consent of the Union. No member of the Union shall have the right to institute any legal proceedings in any court or before any administrative tribunal against an employer, on account of any matter ...

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