13 A.D.2d 752 | N.Y. App. Div. | 1961
Order entered on January 6, 1961 denying petitioner’s motion to stay arbitration under a collective bargaining agreement, reversed, on the law, without costs to either party, and the motion granted. The issue in this ease is not whether petitioner is bound by the arbitration clause in the collective bargaining agreement but whether the issue tendered for arbitration falls within the scope of the agreement and the arbitration clause contained in it. Concededly, and as confirmed by the stipulation of facts, petitioner ceased to be a member of the partnership in March, 1959, and has since operated his own separate business. The collective agreement, by its terms, involves all disputes between members of the trade association and the union. Although the partnership was, and for the purpose of obligations predating dissolution is, a member of the association, petitioner as an individual is not a member, and his individual business is not represented by the association. Consequently, any disputes arising- in connection with the business formed by petitioner since the dissolution of the partnership are not referable to the arbitration agreement, in the absence of any claim or accusation by the union that his business was created to circumvent the collective agreement. At the same time, it is true that petitioner, individually and as a partner, is still subject to an obligation to arbitrate any disputes that might arise between the union and the partnership of which he was a member, as distinguished from the partnership that succeeded it. This is the effect of section 28 of the collective agreement. In seeking arbitration not only must one establish that there is an agreement to arbitrate and a refusal to arbitrate thereunder (Civ. Prac. Act, § 1450) but that the issue concerning which arbitration is demanded is referable to the agreement in question (Matter of Belding Heminway Co., 295 N. Y. 541; Matter of Bullard