In re the Arbitration between Saks & Co. & Saks Fifth Avenue Women's Shoe Salespeople Committee

Breitel, J. P. The union appeals from an order of Special Term granting the motion of Saks & Company, the employer, to stay arbitration pursuant to a demand made under a collective bargaining agreement. The underlying dispute relates to whether one Harry Share, a member of the union and an employee of Saks, is entitled both to severance pay and to pension benefits. Because the employer’s pension plan is, by its terms, one administered and interpreted exclusively by the pension committee set up under the plan, Special Term held that the dispute was not subject to arbitration. An opposite result must be reached, because there is a dispute under the collective bargaining agreement and the general arbitration clause contained in it. The collective bargaining agreement was entered into on May 26, 1958. It is provided therein that, upon severance, union employees who have been employed for five years or more shall be paid a lump sum equal to one week’s pay for each year of employment, the sum in no event to exceed eight weeks’ earnings. The agreement also provides, in paragraph 17, that: ‘ ‘ Any pension plan, additional vacation or additional holiday [327] granted to salespeople in the Hew York Store generally shall also be extended automatically to employees covered by this contract. When available, the details of the Pension Plan now in effect and subject to ratification by the stockholders shall be communicated to the shoe salespeople of Departments 23 and 723.” The agreement also contains a general arbitration clause providing that: u Any dispute, claim, grievance or difference arising out of or relating to this Agreement which the Union and the Employer have not been able, after reasonable effort, to settle, shall be submitted to arbitration upon notice by either party to the other party in writing, stating the nature of the matter to be arbitrated.” The dispute tendered is whether the employer has in fact fully extended its pension plan to union employees, such as Mr. Share, and if it has, whether it is breaching its obligation under that extension to provide him with a pension in addition to severance pay. The pension plan became effective on January 1, 1958, and was ratified at an annual stockholders’ meeting thereafter. The plan, a unilateral noncontributory one established by the employer, is subject to termination or modification by the board of directors of the employer at any time. A pension committee appointed by the board of directors is to make all rules governing the administration and interpretation of the plan. Subdivision (b) of section 2.1 of the plan provides that, in order to be eligible, an employee “ shall not be a participant or be eligible for participation in any plan providing retirement or similar benefits adopted before or after the effective date of this Plan, the cost of which is borne, directly or indirectly, in whole or in part by the Company and which plan is established or maintained by or in conjunction with any labor organization”. In about April, 1959 Harry Share, who was retiring, requested severance pay. The employer requested a ruling from the pension committee as to the effect upon eligibility under the plan if severance pay were granted to the union member. The committee ruled, and Mr. Share was advised, that if he received severance pay under the collective bargaining agreement, he would not be entitled to pension benefits. In effect, the pension committee ruled that severance pay upon retirement fell within the category of “ retirement or similar benefits ” within the meaning of those words as used in subdivision (b) of section 2.1 of the pension plan. Concededly, disputes involving the administration and interpretation of the pension plan as such are not arbitrable. What [328] is arbitrable, however, is whether the employer has extended the plan to the union employees, such as Mr. Share, in accordance with the obligation assumed by it under paragraph 17 of the collective bargaining agreement. Even if the employer had purported to extend the pension plan to union employees, such as Mr. Share, there is still a question as to whether the extension, as interpreted by the pension committee, is fully in accord with the obligation the employer had assumed. To this limited extent, an arbitrable dispute is present, namely, whether the pension plan, as interpreted by the pension committee, satisfies the collective bargaining agreement in extending to Harry Share rights to which he is entitled within the meaning of paragraph 17 of such agreement. Should the arbitrators find that the employer stands in breach of the collective bargaining agreement, they may make appropriate award, but may not direct the pension committee in the performance of its functions. If the arbitrators should usurp the functions of the pension committee, there may be remedy under section 1462 of the Civil Practice Act. The province of the arbitrators is then to decide only whether paragraph 17 of the collective bargaining agreement has been satisfied by an extension of the pension plan. If there has been such an extension, there is nothing more to arbitrate. The application or interpretation of the plan is exclusively the province of the pension committee. True, the arbitrators may have to consider whether the interpretation of the pension plan by the pension committee resulted in the employer’s failure to extend the plan, but no more. More concretely, the only question for the arbitrators is whether union members, such as Mr. Share, are being treated the same as others in the denial of severance pay, if they seek the retirement benefits under the plan — not whether under the plan a retired employee may be deprived of Ms benefits if he demands severance pay provided in some other context. The situation, of course, is due to the provisions of the collective bargaining agreement. So long as the employer agreed to arbitrate disputes under it, including paragraph 17, the arbitration must follow. Thus, there is no incorporation by reference of the pension plan, as argued by the union, but there is, nevertheless, an arbitrable dispute whether the collective bargaining agreement was breached. It often happens that an issue submitted for arbitration may present double phases, one of which is arbitrable and another which is not. So, it has been held that where an employer has done an act, bona fide, the dispute arising from it would be out [329] side the scope of the collective bargaining agreement. But if, on the other hand, the act was not bona fide or involved some other obligation in the collective bargaining agreement, there might nevertheless be, to that extent, an arbitrable dispute. Thus, in Matter of Otis Elevator Co. (Carney) (6 N Y 2d 358) the employer discharged union employees on the ground that their work was henceforth to be performed by an independent contractor. It was held that no arbitrable dispute existed under the collective bargaining agreement as to whether the employer had the right to do this. But the union also claimed that the independent contract was merely a subterfuge and that, in actuality, the nonunion men performing the work were really in the employment of the employer. The court held that, as to this phase of the dispute, it was for the arbitrators to determine whether there was a bona fide independent contract, but if there were, that was the end of the matter. (See, also-, to the same effect, Matter of Teschner [Livingston], 285 App. Div. 435, affd. 309 N. Y. 972.) The authorities relied upon by the employer are distinguishable. In Matter of General Elec. Co. (United Elec., etc., Workers) (300 N. Y. 262) the collective bargaining agreement was silent on the subject of pension and there was no possible basis for a claim of discrimination. Matter of Lloyd (Hollander & Son) (17 Misc 2d 180, affd. 8 A D 2d 801) involved a collective bargaining agreement which provided for the establishment of a pension fund, but there was no contention that the employer had not met fully its commitments under the pension plan which took the form of a separate agreement executed by the union and the employer. So, to hold that it is rational and logical to require a union employee to surrender severance pay as provided in the collective agreement if he is to receive retirement benefits is to state a conclusion that is within the province of the arbitrators. A retirement benefit, an arbitrator could find, is a kind of annuity, measured to some degree by length of prior service, but determined largely by the attained age at retirement. It involves some actuarial computation relative to life expectancy. Its purpose is security for superannuated employees. Severance pay, an arbitrator could also find, is a lump sum or installment payment, generally, measured by length of service, and is rarely, if ever, affected by the attained age of the employee whose service is terminating. Its purpose is to reward loyal employees for time served and to provide an economic bridge between changed employments. [330] Even in the pension plan itself there is language which, the union argues, suggests a distinction between retirement benefits and severance pay. Thus, in section 5.1 of article V of the pension plan it is provided: ‘ ‘ This Plan shall not be construed as preventing the Company from paying additional disability, severance, or retirement allowances, or death benefits, or from ma,king other provision in any case where in the opinion of the Board of Directors special circumstances exist.” But even were this court to conclude that for the purposes of the collective agreement in suit there is a controlling difference between retirement benefits and severance pay, this too would be a usurpation of the function of the arbitrators, or worse, that of the pension committee. Thus, whatever is said in this opinion is not intended to indicate any view as to how the collective agreement is to be construed by the arbitrators. The foregoing is significant only to show that there is a genuine dispute as to the identity or similarity between retirement benefits and severance pay. From that dispute, in turn, it appears that there is a genuine issue whether the employer has extended its pension plan — or has extended it fully — as it contracted under paragraph 17 of the collective agreement. That issue is the arbitrable one. Accordingly, the order of Special Term should be reversed, on the law, with costs to respondent-appellant, and the motion to stay arbitration should be denied.