Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

C & A FLOOR COVERINGS v. FROEHLICH

April 12, 1990

COLLINS & AIKMAN FLOOR COVERINGS CORPORATION, F/K/A COLLINS & AIKMAN CORPORATION, PETITIONER,
v.
ROBERT FROEHLICH, RESPONDENT. ROBERT FROEHLICH, PETITIONER, V. COLLINS & AIKMAN CORPORATION, RESPONDENT.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

Collins & Aikman Floor Coverings Corporation, f/k/a Collins & Aikman Corporation ("C & A") seeks by petition pursuant to 9 U.S.C. § 10 to vacate an arbitration award directing it to pay Robert Froehlich ("Froehlich") the sum of $152,643.52 for the alleged breach of an employment agreement between C & A and Froehlich dated October 22, 1979 (the "Agreement") and to reimburse Froehlich for the administrative fees he advanced to the American Arbitration Association ("AAA") in the sum of $4,394.62. Froehlich has cross-moved for the confirmation of the Award. For the reasons set forth below, the Award is vacated and a rehearing is directed.

The Parties and the Agreement

C & A is a Delaware corporation with an office and its principal place of business in Dalton, Georgia. It is in the business of, among other things, manufacturing commercial flooring and carpeting. Froehlich is a New York resident who entered into an employment agreement with C & A dated October 22, 1979. The Agreement set out the parties "understanding" as to Froehlich's "engaging in commission sales activities on behalf of C & A" and provided in pertinent part:

  (a) Froehlich can sell the C & A products
  described in Schedule "A" of the Agreement to
  "customers" and in the "territory described in
  Schedule B" at a commission rate of "7 1/2%".
  (b) Changes in the schedules concerning C & A
  products, customers, territory and compensation
  could only be modified "either upon individual
  written notice to [Froehlich] or by promulgating
  such change in a publication generally
  distributed or made available to sales personnel
  carrying on sales efforts in [Froehlich's]
  general field." (¶ 4).
  (c) The Agreement was to continue indefinitely
  subject to termination: (i) by Froehlich
  immediately upon the giving of written notice to
  such effect to C & A; and (ii) by C & A by giving
  written notice of termination "to become
  effective at such time (not less than thirty days
  from the giving of such notice) as may be
  specified and noticed." (¶ 7).
  (d) In the event of termination of this
  agreement: unless otherwise specifically provided
  in Schedule C, commissions shall be due only with
  respect to C & A products which are shipped to
  the customer prior to the effective date of
  termination as provided in ¶ 7 of this agreement
  (and only if such C & A products are subsequently
  fully paid for by the customer). (¶ 5(b)).
  (e) This agreement constitutes the entire
  agreement of the parties with respect to your
  [Froehlich's] promotion of the sale

  of C & A products and may be changed only by an
  instrument in writing executed by both parties.
  (¶ 8(c)).

The Agreement provided for resolution of any "claim or controversy" by arbitration in accordance with the rules of the AAA and also provided in ¶ 8(d) that:

  The arbitrator sitting in any such controversy
  shall have no power to alter or modify any
  express provision of this agreement or to render
  any award which by its terms effects any such
  alteration or modification.

Finally, paragraph 8(f) of the Agreement specifically states:

  This agreement shall be governed by and construed
  in accordance with the laws of the State of New
  York.

On February 19, 1986, C & A notified Froehlich that his employment with C & A was terminated effective March 21, 1986 and paid him all the commissions due him for C & A products which were shipped to his accounts as determined by C & A prior to the termination date.

Prior Proceedings

In August 1986, Froehlich commenced an arbitration proceeding against C & A before the AAA in New York City pursuant to the arbitration clause in the Agreement. Diana Long Nicholson, Esq. (the "Arbitrator") was appointed.

The initial hearings in this matter took place on February 24, 1987. The record of sales (consisting of copies of invoices produced by C & A at the initial hearing and computerized statements) reflected the following:

  (a) Sales made prior to March 21, 1986,
    Froehlich's effective termination date.
    (i) Aetna — all commissions on sales made prior
    to termination were admittedly paid to Froehlich;
    (ii) GTE — all commissions on sales made prior
    to termination were admittedly paid to Froehlich;
    and
    (iii) Cigna — sales of $118,092.53, (if
    commissionable the amount would be $8,856.94).
  (b) Sales made from March 22, 1986 to August 15,
    1986, the date of the demand for arbitration.
    (i) Aetna — sales of $36,461,52 (if
    commissionable, the amount would be $2,734.61).
    (ii) GTE — sales of $26,520.84 (if
    commissionable, the amount would be $1,989.06).
    (iii) Cigna — sales of $203,720.21 (if
    commissionable, the amount would be $15,279.01).
  (c) Sales made from August 16, 1986 through
    February 24, 1987, the first date of the
    hearing.
    (i) Aetna — sales of $10,001.62 (if
    commissionable, the amount ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.