In re the Arbitration between Klein & Styl-Rite Optics, Inc.

Appeal by petitioner from an order of the Supreme Court at Special Term, entered May 6, 1959, in New York County, which -denied a motion by petitioner for an order directing arbitration. Memorandum by the Court. The purported collective bargaining agreement reveals, on its face, a substantial question as to its validity under the National Labor Management Relations Act (U. S. Code, tit. 29, § 151 et seq.). Moreover, the National Labor Relations Board has taken jurisdiction of the very issue. If the agreement is invalid the arbitration clause falls with it. Exclusive jurisdiction to determine the validity of the agreement resides in the board under the Federal statute. Hence, when the issue is raised substantially on the face of the agreement the State court should not make the initial determination of its validity, despite the fact that such validity is a condition precedent to directing arbitration under the agreement. In a recent case determined by this court (Matter of Duralite Co. [Local 222], 8 A D 2d 716), it was held, on similar principles, that an arbitration was properly stayed. There, a collective 'bargaining agreement had been similarly attacked as violative of the Federal statute, and there also the National Labor Relations Board had actually taken jurisdiction. In consequence, the doctrine of pre-emption, as developed in the Federal cases, precludes this court from determining the question raised as to the validity of the agreement. Matter of Carey (Westing [812] house Elec. Corp.) (6 A D 2d 582) did not involve invalidity in the agreement, but an asserted prospective violation of public policy in an award if reinstatement were ever granted. Similarly distinguishable is Lodge No. 12 v. Cameron Iron Works (257 F. 2d 467, cert, denied 358 U. S. 880), in which the breach of performance under the agreement might have also constituted an unfair labor practice under the Federal statute. There is no question but that there is no pre-emption of enforcement by arbitration or by action in a State court of voluntary agreements merely because a breach might also invoke a Federal remedy. An altogether different issue is raised when validity of the agreement is substantially in issue, as distinguished from breach in the performance under the agreement.