In re the Arbitration between Auto Mechanics Lodge No. 1053, International Ass'n of Machinists & Houdaille Construction Materials, Inc.

Appeal from an order of the Supreme Court at Special Term, entered October 8, 1964, in Erie County, which granted a motion by petitioner for an order to compel respondent to proceed to arbitrate. Order modified in accordance with memorandum and, as modified, affirmed, without costs of this appeal to either party. Memorandum : In October, 1963 the parties executed a collective bargaining agreement which included a provision for arbitration of grievances, including employee discharge, arising under the meaning or application of the agreement. A dispute subsequently arose as to whether a closing of a temporary garage by the employer, resulting in the discharge of two employees, was a temporary or a permanent closing. In the latter case, discharge was permitted by the agreement upon payment of designated allowances, which terminated any grievance arising from the agreement. When the internal grievance procedure set forth in article 16 of the agreement failed to resolve the dispute, the union sought a panel of arbitrators from the Mediation Board named in the contract. The dispute was described in the communication as “ involving the discontinuance of employment of two employees”. In its petition to compel arbitration, however, the union sought not only reinstatement of the employees but in addition, that the employer “ be compelled to abide by the terms of [the agreement] for its duration”. The order of Special Term implemented both requests. Appellant contends that the submission is too broad and in substance would authorize an award that it could not close the garage during the life of the contract in spite of the contrary contract provision. The union argues that, if it succeeds in this proceeding, it is fearful that some other effort may be made to dismiss the employees necessitating another demand for arbitration. We recognize that a court may not “ consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute” (CPLR 7501). (See, also, Matter of Plein [Charchat], 17 A D 2d 25, 28, affd. 12 N Y 2d 736; Matter of Dairymen’s League Cooperative Assn. [Conrad], 18 A D 2d 321, 325.) But upon the facts here presented the fears and contentions of both parties are groundless. Neither the court nor the parties should anticipate that the arbitrator will not fashion in a proper manner appropriate relief if it is found that petitioner is entitled thereto. “ Court action, having a tendency to interfere with the prerogatives of the arbitrators or to delay their proceedings, is not justified except where shown to be absolutely necessary for the protection of the rights of a party.” (Matter of MVAIC [McCabe], 19 A D 2d 349, 353.) Moreover, the record is barren of any facts to establish that a bona fide dispute presently exists as to any future breach of the contract by the employer. (Cf. Matter of Buchholz [Local 463], 15 N Y 2d 181, 183.) The fears of the union are not a substitute for facts. Furthermore, an arbitrator should not be mandated by a court to pass upon a framed issue that a party in futuro shall comply with the terms of a contract. Absent some reason therefor that may occur to the arbitrator, it is a transparent device (if implemented) to remove future disputes from arbitration and place them in courts by use of a contempt [954] proceeding for failure to comply with the mandatory injunction in the award of the arbitrator. We emphasize that we are not circumscribing the power of the arbitrator. We conclude that he should not be mandated by the court to pass thereon. The second ordering paragraph of the order appealed from should be modified by striking therefrom the words “and that respondent be compelled to comply with the terms of the said contract, Exhibit 1 to the petition, for its duration ”.