26 N.Y.2d 493 | NY | 1970
Lead Opinion
At issue is the constitutionality of section 716 of the Labor Law, providing among other things for the compulsory arbitration of disputes in labor contract negotiations with private voluntary or nonprofitmaking hospitals. Mount St. Mary’s Hospital, such a hospital in dispute with a labor union, brought this action for a declaratory judgment to invalidate the compulsory arbitration features of the statute. It appeals as of right on constitutional grounds from adverse decisions sustaining the statute (CPLR 5601, subd. [b]).
Section 716 (L. 1963, ch. 515, § 5, as amd. by L. 1969, ch. 526, §§ 1-3) provides that every collective bargaining contract
After protracted negotiations, initiated in 1965, the hospital failed to reach a collective bargaining agreement with the employees’ bargaining representative (Buffalo and Western New York Hospital and Nursing Home Council, AFL-CIO). Following unsuccessful mediation, the Industrial Commissioner directed that the dispute be submitted to compulsory arbitration pursuant to section 716. One William A. Hazell was originally appointed arbitrator, but his designation was withdrawn during the pendency of the proceeding in Special Term and the State Mediation Board was designated as arbitrator in his stead.
Thus far the hospital has not submitted to arbitration. It urges that review of the arbitrator’s decision under CPLR article 75, the only mode of review expressly provided by section 716, is inadequate to provide the hospital due process of law under Federal and State constitutional limitations (H. S. Const., 14th Arndt., § 1; N. Y. Const., art. I, § 6). Because article 75, if given a broad rather than a narrow interpretation, encompasses a standard of review sufficient to afford the parties due process in the context of compulsory arbitration as mandated
Although two cases involving section 716 have been before the court, neither necessarily involved the statute’s constitutionality or the narrower question of scope of judicial review of awards in compulsory arbitration. Thus, Long Is. Coll. Hosp. v. Catherwood (23 N Y 2d 20) held that questions of certification of bargaining representatives were not subject to arbitration as “ disputes ”. In Park Ave. Clinical Hosp. v. Kramer (19 N Y 2d 958, affg. 26 A D 2d 613) the court sustained a determination that a constitutional challenge was premature, as the union there had only filed a petition for certification as bargaining agent, and there had been no employee vote, no certification or negotiation, and most important, no bargaining impasse ór order to arbitrate. The particular issue of the constitutionality of judicial review afforded arbitration awards under section 716 was not at issue or considered.
Compulsory arbitration to resolve labor disputes, and to resolve or avoid work stoppages, particularly in industries affected with a large and direct public interest, such as the service utilities and railroads, has been discussed through most of the decades of this century, especially between the two world wars. The notion has been said to be abhorrent both to labor and management, suggestive of excessive government control of labor relations and loss of freedom to determine one’s own economic fate. As a result compulsory arbitration has been used hardly at all and there is a dearth of legal analysis and precedent in the courts to illuminate the principles to be applied to this drastic remedy.
Initial delays and litigation have attended upon this State’s legislative efforts to avert labor stoppages and strife in the voluntary hospital field (see, e.g., Long Is. Coll. Hosp. v. Catherwood, 23 N Y 2d 20, supra; Park Ave. Clinical Hosp. v. Kramer, 19 N Y 2d 958, supra). The reason is plain. The problems are new and especially troublesome because they involve the illegalization of the right to strike by private workers in hospitals and, therefore, the necessity of substitute provision to safeguard their economic rights and to offset the curtailment of their bargaining power.
At the inception it should be observed that the essence of arbitration, as traditionally used and understood, is that it be voluntary and on consent. The introduction of compulsion to submit to this informal tribunal is to change its essence. (Domke, Commercial Arbitration, p. 5.) It is very easy to transfer, quite fallaciously, notions and principles applicable to voluntary arbitration to “ compulsory” arbitration, because, by doubtful logic but irresistible usage, both systems carry the descriptive noun ‘ ‘ arbitration ’ ’ in their names. The simple and ineradicable fact is that voluntary arbitration and compulsory arbitration are fundamentally different if only because one may, under our system, consent to almost any restriction upon or deprivation of right, but similar restrictions or deprivations, if compelled by government, must accord with procedural and substantive due process.
For the reasons indicated, provisions for compulsory arbitration of labor disputes have not been widely used in the United States (see, generally, Jones, Compulsion and the Consensual in Labor Arbitration, 51 Va. L. Bev. 369, esp. at pp. 372, 388-392). An early compulsory arbitration statute, enacted in the State of Kansas, was declared unconstitutional by the United States Supreme Court insofar as it applied to businesses preparing food for human consumption (Wolff Co. v. Industrial Ct., 262 U. S. 522) and coal mining (Dorchy v. Kansas, 264 U. S. 286). The underpinnings for the view concerning industries affected with a public interest have, of course, since then been severely, if not fatally, weakened (see Lincoln Union v. Northwestern Co., 335 U. S. 525, 535-537).
Interest by the States in compulsory labor arbitration surged, however, after World War II, when several enacted compulsory arbitration statutes, and barred strikes in public utilities (see Note, Compulsory Arbitration of Labor Disputes in Public Utilities: A Beview of Becent Decisions, 23 Temple L. Q. 221
Litigation in the State courts arising from compulsory arbitration statutes has concentrated on the question of delegation of legislative power, and the necessity for legislated standards to guide the arbitrators (see Ann.— Constitutionality of Arbitration Statutes, 55 ALR 2d 432, 445-449). The question of a constitutionally mandated judicial substantive review of an award in compulsory arbitration has rarely arisen because the statutes have generally made provision for such review. Thus, the New Jersey statute provides for a judicial determination of whether the facts found by the arbitrator were supported by “ any evidence ” which has been construed to require substantial evidence (N. J. Stat. Ann. 34:13B-23; New Jersey Bell Tel. Co. v. Communication Workers, 5 N. J. 354, 377-378). Other States provide for judicial review to determine whether the award is unreasonable as not supported by the evidence (Fla. Stat. Ann., § 453.10'
The model for section 716, a Minnesota statute providing for mandatory arbitration of disputes and grievances in nonprofit-making hospitals, was upheld against the challenge of the
Turning from the States to the national scene, the Federal Railway Labor Act provides for the compulsory arbitration of “ minor ” disputes (grievances as defined in § 716) growing out of existing contractual agreements (IT. S. Code, tit. 45, § 153). The limited review afforded is strikingly similar to that under CPLR article 75 as applied to voluntary arbitrations, and the reviewing court does not determine the substantiality of the evidence (see IT. S. Code, tit. 45, § 153, subd. First, par. [p]). The issue of scope of review has been litigated, but only, however, as a matter of statutory construction (see, e.g., Gunther v. San Diego & A. E. Ry. Co., 382 U. S. 257, 261, 263-264; Trainmen v. Chicago R. & I. R. R. Co., 353 U. S. 30, 33-39). Significantly, however, “ major ” disputes, involving the negotiation of new contracts, are not subject to compulsory arbitration (U. S. Code, tit. 45, §§ 155, 157; 51A C. J. S., Labor Relations, § 410).
The only other discoverable instance of Federal compulsory arbitration also involved the railroad industry. A special act was adopted in 1963 providing for the compulsory arbitration of a dispute involving the reduction of train crews in response to technological advances (Public Law 88-108, 77 U. S. Stat. 132 [Aug. 28, 1963]). The decision of the arbitrators, binding for two years, was upheld upon constitutional attack (Brotherhood of Loc. Fire. & Eng. v. Chicago, B. & Q. R. R. Co., 225 F. Supp. 11, 18, affd. 331 F. 2d 1020, cert. den. 377 U. S. 918). Although, significantly, the court noted that it was not empowered to review the award for substantiality of the evidence, there was no dis
The resolution of the issue of adequacy of judicial review, then, must be made, largely, without aid of indicative judicial precedent.
Whether the role of the arbitrator established by section 716 be characterized or treated as administrative, as quasi-legislative, as quasi-judicial, or simply sui generis, the arbitrator’s power to write new contracts for the parties would appear to work a substantial interference with property rights, under almost any traditional criterion, in the sense of impinging on the ‘ ‘ freedom of contract ’ ’ and because of the consequential effect on the employer’s resources. The hospital, however, does not argue that the State lacks the power to so regulate hospital affairs. It argues, rather, that by empowering the Industrial Commissioner to mandate arbitration, and the arbitrator, in effect, to write collective bargaining agreements for the parties, due process of law requires that the awards of the arbitrator be judicially reviewable for errors of law, competency and substantiality of evidence, as well as arbitrary and capricious conduct.
The constitutionally required breadth of review for an administrative, quasi-legislative, or quasi-judicial determination as distinguished from a particular requirement mandated by statute, has never been set with a comprehensiveness that would provide an unequivocal guide for this case. As noted by Professor Davis, the Supreme Court’s “ technique for leaving the constitutional question open is simply to review to the extent that the Constitution might require review, no matter how clear the statute may be in cutting off review ’ ’ (4 Davis, op. cit., supra, § 28.18, p. 93). Review by the Supreme Court has varied markedly. The court has declined to review an order of the National Mediation Board certifying a union as bargaining representative (Switchmen’s Union v. Board, 320 U. S. 297). Yet, it has also held in rate-fixing cases that the Constitution mandates de novo determination of facts underlying the rate (see Ohio Val. Co. v. Ben Avon Borough, 253 U. S. 287). Although never overruled, this requirement of de novo review has evidently ebbed in the Federal courts, leaving as a residuum
In this State, the Ben Avon doctrine was once accepted and applied in a utility rate case (Staten Is. Edison Corp. v. Maltbie, 296 N. Y. 374; see, also Benjamin, Review of Administrative Adjudication, 48 Col. L. Rev. 1, 19-36). In cases reviewing minimum wage orders under section 657 of the Labor Law, however, the substantial evidence test has been applied in response to legislative direction for judicial review of issues of law without any reference to constitutional requirements (see Matter of Wells Plaza Corp. [Industrial Comr.] 10 A D 2d 209, 217, affd. 8 N Y 2d 975; cf. Matter of Kiamesha Concord v. Catherwood, 28 A D 2d 275). Judicial review has been denied,
There is no doubt that a legislature may establish a tribunal, other than a court, to hear and determine disputes even where substantial property rights are involved, but there must be due process of law, both substantive and procedural. Nor, as has been said, is due process of law necessarily judicial process, but it must be a due process of law. In the case of arbitration, by definition applicable to voluntary arbitration, and therefore transferable to compulsory arbitration, if done unthinkingly, the arbitrators are not bound by rules of law or the rules of evidence. Hence, if the creation of a compulsory arbitration tribunal is governed by no more than the rules applicable to consensual arbitration, the relevancy of due process limitations in their literal sense is quite eliminated. Section 716 certainly makes clear that consensual arbitration was the mode to which its draftsmen’s attention was directed. This, at least, is demonstrated by the statutory directive to review awards under CPLR article 75. That article, as had its predecessors, applied to arbitration a traditionally limited scope of review, appropriate to consensual arbitration, confined largely to specified kinds of misconduct by the arbitrators (CPLR 7511), and, of course, without review of determinations of law or fact (8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7511.11).
But, if, indeed, the Legislature purported to provide ad hoc arbitration tribunals to resolve contract negotiation disputes without limitation to rules of law, it would have acted unconstitutionally. Nor is the matter made the simpler by characterizing the power placed in the charge of the arbitrators as quasi-legislative rather than quasi-judicial. For, in that event, npt only must there be standards to guide the delegate body, but there must be judicial oversight, under rules of law, to assure that there is a reasonable basis for the action by the delegate body in compliance with the legislative standards.
This court said as much in Matter of Guardian Life Ins. Co. v. Bohlinger [supra, at p. 183): “ That is not to say, however,
Of course, the arbitrator’s power to create and impose a contract for the parties necessarily involves control over substantial property rights. Although policy and evidentiary reference points are set for the arbitrator in arriving at this award under the instant statute (Labor Law, § 716, subd. 7, as amd. by L. 1969, ch. 526, § 3), there is no explicit requirement of an evidentiary minimum or, for that matter, of support in the record. Nor is there express provision for review of the award under these standards by any tribunal, whether administrative or judicial, of the substantiality of the evidence or of support in the record, as distinguished from matters which go to the purity
Due process of law requires, however, that the contract imposed by the arbitrator under the power conferred by statute have a basis not only in his good faith, but in law and the record before him (see Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187, 194; Matter of Small v. Moss, 277 N. Y. 501, 507; Matter of Elite Dairy Prods. v. Ten Eyck, 271 N. Y. 488, 498; cf. Long Is. Coll. Hosp. v. Catherwood, 23 N Y 2d 20, 36, n. 3, supra). The arbitration article of CPLB has never been construed to include such a review, but, of course, there was never occasion for such review, with respect to consensual arbitration. Indeed, none was necessary or would be appropriate for the minimal review of awards to which the parties voluntarily subject themselves. Parties in voluntary agreement are not limited, except for rare matters contrary to public policy, from agreeing to anything they wish.
Accepting the fact that article 75 was drafted and applied to consensual arbitration as a matter of legislative history, it is still appropriate to examine its language to determine whether the Legislature had the power by its enactment of section 716, to adapt it, in effect, to the special uses and needs of compulsory arbitration. If the language is, indeed, broad enough to permit such adaptation, section 716 is not only implemented rationally but is saved from constitutional invalidity.
CPLB 7511 (subd. [b]) provides in part: “ 1. The award shall be vacated on the application of a party * * * if the court finds that the rights of that party were prejudiced by: * * * (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made ; or”.
Because the power of exclusive and final determination by the arbitrator covers all issues of law and fact, the question of an arbitrator’s acting in excess of power is determined solely by the terms of the submission to him of present disputes or the conformity of the demand for arbitration with the arbitration
But because of due process limitations affecting compulsory arbitration, the arbitrator is necessarily circumscribed by the data or evidence to support the award made by him. His power derives not from any formal submission or demand for arbitration, voluntarily effected by the parties, but from the statute which mandates upon the parties the arbitration or the agreement for arbitration. Consequently, the arbitrator must be limited by the same constitutional requirements which limit the statute conferring power on him. Otherwise an arbitrator would have a power greater than the Constitution permits the Legislature to delegate to an administrative or regulatory agency, namely, to resolve a dispute or make regulations on less than substantial evidence or without reasonable basis or in disregard of applicable rules of law. True, a legislature could adopt directly regulatory standards for an industry affected by a public interest, and a reasonable basis or equally rational standard, however defined, would suffice, but still there must be such a basis and a basis generally reviewable in a court of law. Notably, the scheme of section 716 is not to establish, directly, minima of conditions for the industry, but to provide for the resolution of contract negotiation disputes about conditions in the industry on the basis of evidence, hearings, and a record made. In short, the device for arbitration is a substitute for a determination of the dispute by an administrative or regulatory agency. As a substitute device, however, its objective may not be accomplished under lower constitutional standards than would be required of an administrative or regulatory agency.
On this view, CPLB 7511 (subd. [b]), in authorizing review of whether the arbitrator has exceeded his power, by necessary logical extension and without distortion of its literal terms includes review in the case of compulsory arbitration (but only in such case) of whether the award is supported by evidence or other basis in reason, as may be appropriate, and appearing in the record. Such a review is all that the hospital is entitled to obtain; an article 78 (CPLB) review would have no greater scope and there is no basis for extension of the doctrine of the Ben Avon and Staten Island cases (supra) allowing de novo
Such limited review in the article 75 proceeding is saving of time, a desideratum to achieve the peaceable and prompt resolution of labor disputes. If, for the limited review available to it, the hospital would have to institute another proceeding under CPLB article 78, there would be a needless duplication of summary proceedings. And there would then have to be a disregarding of the statutory directive that the mode of review be under article 75. If perchance, as argued by respondents alternatively, it is true, that on any review based on constitutional limitations affecting an award there must be a plenary action and a de novo hearing, then the delays, the proliferation of litigation procedure, and the expenses, approach the intoleraable. Moreover, this alternative suggestion by respondents rests on reasoning associated with the. now dubious rule in the Ben Avon and Staten Island cases, (supra).
Both in analysis and in such precedents as are available the discussion has ranged over tests that have been categorized as based in reason, based on an evidentiary record, as not being arbitrary, or as being supported by substantial evidence. Whether one test or another has been suggested or discussed turned on the issue involved or because an explicit statute controlled. If the questioned administrative action was determinative of a dispute in the classic sense then one test was appropriate. If the administrative action involved regulatory or quasi-legislative powers then other tests were applicable. The question, then, is in what category fall the matters to be resolved by compulsory arbitration under section 716.
It is immediately evident that there may be a difference whether the controversy is one arising under an existing collective bargaining agreement, or with respect to the writing of a new agreement. Section 716 defines separately grievances and disputes as described earlier. A grievance under an existing agreement is an issue under a limiting arbitration clause to which a substantial evidence test might be appropriate. On the other hand, a dispute arising from a failure to reach a collective bargaining agreement is quite another matter. Such a dispute is not referable to an agreement, an arbitration clause, or
On this interpretation, constitutional limitations are satisfied by the statute for the arbitrators may do no more than the Legislature could, and the review power is limited to the same power that exists to review legislative or quasi-legislative acts. This conjunction of judicial review in what is denominated an arbitrational process is not surprising, if one recognizes that section 716 has devised a unique procedure for the admixture of administrative, regulatory, and quasi-judicial functions. In that sense, the procedure is sui generis and the fact that article 75 is by itself appropriate only to consensual arbitration should neither require the statute to be condemned as invalid nor, on the other hand, require translation of the concepts of consensual arbitration to compulsory arbitration as if there were no difference between the two. There is a difference, but the Legislature had the power to weld the two to the extent that they are compatible and the language of the statutes and the constitutional limitations permit. Giving the ‘ ‘ excess of power ” clause in section 7511 of CPLR its ordinary meaning, it is sufficiently broad to cover the constitutional limitations. Moreover, so interpreted, section 716 is unquestionably valid.
In summary, on this issue, since the nonprofitmaking hospital is so affected with a profound public interest directly related to the health and lives in the community, and is so dependent on governmental subsidies, reimbursements, and exemptions, there is no doubt that the extraordinary provision for compulsory arbitration is constitutionally justified. On the same rea
The hospital, by way of added argument, attacks the statute as a violation of equal protection of the laws because it applies only to nonprofitmaking facilities.
The hospital, however, fails to demonstrate that there is no difference in the history of labor disputes concerning nonprofit-making hospitals as compared to proprietary ones, or that the threat or disruption in the proprietary hospitals is equally severe. The Legislature, moreover, may have felt that different treatment was necessary, or justified, because of the special tax incentives afforded nonprofitmaking hospitals, or the absence of a profit motive in their continued operations. In any event, there is no evidence that the distinction was entirely arbitrary or invidious (cf. Matter of Engelsher v. Jacobs, 5 N Y 2d 370, cert. den. 360 U. S. 902). On the other hand, one may take judicial notice from the current scene, the long-standing difference in statutory treatment long before the present statute, and the incidence and kind of litigation involving nonprofitmaking and proprietary hospitals, that the' classification is reasonable.
Accordingly, the order should be affirmed without costs.
. Held invalid as to interstate commerce (Henderson v. State, 65 So. 2d 22).
. The Pennsylvania statute covering publicly employed policemen and firemen and the related case are irrelevant (43 Pa. Stat., § 217.7, subd. [a]; Washington Arbitration Case, 436 Pa. 168). Obviously, there are no due process constitutional limitations on a State legislating restrictions on itself or its creature subdivisions. Pennsylvania evidently recognized the difference in private employment by providing for judicial review in public utility labor arbitrations as in the statute cited above.
. Held invalid in Bus Employees v. Wisconsin Bd., 340 U. S. 383 (supra).
. Davis, who regards the Ben Avon doctrine as dead, at the same time that he regards the substantial evidence requirement as a saving substitute, has said in this connection: “But if the Constitution may sometimes require a limited judicial review and may sometimes permit a denial of all review, what is the governing principle? One answer to this question is that the cases do not answer this question. Indeed, the opinions of the Supreme Court in recent decades are completely devoid of any formulation of principle concerning the constitutional minimum of review.” (id., § 28.19, at p. 102). Then, in attempting his own formulation he suggests: “In trying to see in perspective the entire body of Supreme Court holdings on unreviewability, an examination of the impact of governmental programs is helpful. Just as one may readily subscribe to the idea that review may be denied of the award of government gratuities or bounties, perhaps a court can more easily deny review of a withholding of administrative assistance from those who are beneficiaries of government programs than it can deny review of administrative enforcement of obligations upon those who are subjected to the disadvantage of government programs. The distinction is quite different from that between gratuities and obligations, or that between privileges and rights; the distinction is partly between legal rights of one kind and legal rights of another kind. Applying the distinction to a rate case could mean that a ratepayer who is disappointed that the government does not help him more by prescribing a lower rate may be denied review, but that the utility which is aggrieved by an order imposing an obligation to charge a low rate may not be denied review of questions of law, procedure, and substantial evidence. Similarly, an employee who is refused an award of workmen’s compensation could be denied review, but the employer could not be denied a limited review of an award. In the context of the Switchmen’s Union case [320 U. S. 297], the union that was disappointed in its hope to get the benefit of enforced collective bargaining could be denied review of an order certifying another union, but an employer could not be compelled to bargain with the certified union unless he is allowed a limited judicial review of the certification order.” (id., § 28.19, p. 103).
Concurrence Opinion
I, too, am for affirmance but I cannot agree that, in order to sustain the constitutionality of section 716 of the Labor Law, it is necessary to accord to CPLB 7511 the strained and artificial construction given it by the majority and to ascribe to the language of that provision one meaning when the court deals with an award in a consensual arbitration proceeding and separate and different meanings when the award is made in the compulsory arbitration proceeding provided for by section 716. In other words, it is my view that that section meets due process requirements if 7511 is read, as the Legislature intended it to be understood, to afford the same measure of judicial review in both instances.
Section 716 of the Labor Law was enacted, and is primarily designed, to prevent strikes and bring about peaceful settlement of labor disputes arid grievances between the employees of nohprofitmaking hospitals and their employers. In order to render the statute effective, the Legislature determined that it was not enough merely to outlaw such strikes. It was its con
Compulsory arbitration was selected as the best means for attaining this result because an arbitration panel—chosen from among persons with experience and expertise in the field of labor relations—would not be hampered by the usual rules of evidence or the need to prepare a formal record. Its proceedings may be conducted in an informal and expeditious manner and, a consideration of the greatest importance, its award, once rendered, will be made effective with a minimum opportunity afforded the employer to engage in delaying tactics, in consequence of which the workers would be forced to remain on the job without a contract. Recognizing that a provision for more extensive judicial review would dilute, if not negate, these advantages, the Legislature provided, as an integral part of the compulsory arbitration statute, that all proceedings to
The pertinent section of “ article seventy-five ” is CPLR 7511. The grounds there specified for vacating an award, as they have always been applied to consensual arbitrations, are by no means as narrow or restricted as the court’s opinion might lead one to believe and are fully adequate to meet all constitutional demands. For instance, an award may be set aside, under CPLR 7511, if the arbitrator exceeds his power (subd. [b], par. 1, cl. [iii]); if the award is the result of corruption, fraud or misconduct (subd. [b], par. 1, cl. [i]); if the award is attributable to partiality on the part of the arbitrator (subd. [b], par. 1, cl. [ii]); if the award contravenes public policy (see, e.g., Matter of Western Union Tel. Co. [ACA], 299 N. Y. 177, 188; Matter of Publishers’ Assn. [Newspaper Union], 280 App. Div. 500, per Bergan, J.); if the arbitrator refuses to hear relevant evidence (see Gervant v. New England Fire Ins. Co., 306 N. Y.
In short, by merely giving the language of CPLB 7511 the meaning always accorded it in cases involving consensual arbitrations, without in any way changing that meaning, our courts now have the right to review fundamental questions, such as whether the arbitrator exceeded his authority or whether he violated basic due process requirements in the conduct of the proceedings. It follows, therefore, that the measure of review thus provided by section 7511, “ limited ” though it may be, satisfies every due process demand.
However, despite this and despite the Legislature’s clear intent, unambiguously expressed in section 716 of the Labor Law, to apply to compulsory arbitration proceedings the very same measure of judicial review as governs arbitrations voluntarily undertaken, the majority has chosen to disregard that intent and have the scope of such review turn on the nature of the arbitration. It accomplishes this by taking the provision declaring that an award is to be set aside when the arbitrator “ exceeded his power” (CPLB 7511, subd. [b], par. 1, cl. [iii]) and giving the quoted words three significantly different meanings. More specifically, the majority is according to those words one meaning in the case of consensual arbitrations (opn., p. 507), a second meaning in the case of compulsory arbitrations involving the interpretation or application of an existing collective bargaining agreement (opn., p. 509Y and still another and third meaning in the case of compulsory arbitrations involving the terms of a new agreement (opn., p. 509).
I recognize that, in certain instances, a court may read additional meanings into a statute in order to preserve its constitutionality but this case neither calls for nor permits application of that principle. As I have stated, there is no constitutional
No court has ever held that due process requires more than the limited review allowed by CPLR 7511, as it has been consistently applied over the years. In point of fact, a number of courts, including the United States Supreme Court, have enforced compulsory arbitration statutes with no broader judicial review than that provided by that section.
The Pennsylvania statute (Pa. Act of June 24, 1968, Act No. Ill, § 7, subd. [a], 43 Pa. Stat., § 217.7, subd. [a]) provided for compulsory arbitration for the resolution of disputes between political subdivisions of the Commonwealth and the employees of their police and fire departments. It expressly recited that “ [t]he determination of the majority of the board of arbitration * * * shall be final on the issue or issues in dispute and shall be binding upon the public employer and the policemen or firemen involved * * * [and that] [n]o appeal therefrom shall be allowed to any court.” In the Washington Arbitration
“ However, the city’s rights under the United States and Pennsylvania Constitutions, and specifically its right to due process, are not harmed thereby. Neither constitution requires that there be a right of appeal from an arbitration award. Every decision making tribunal is required to conduct its affairs in accordance with the mandates of due process, and we will not indulge in the presumption that the likelihood of a due process or other constitutional violation is significantly greater in a tribunal such as an arbitration panel than it is in an appellate court.”
In reaching this conclusion, the court took pains to point out that the arbitration panel’s “ resolution of the dispute must be sure and swift, and [that] much of its effectiveness would be lost if the mandate of its decision, could be delayed indefinitely through protracted litigation” (p. 173). This did not, however, mean that there was to be no judicial review whatever. Just as our Legislature recognized, in enacting CPLB 7511, that there should be a limited judicial inquiry to assure compliance with constitutional demands, so the Pennslyvania court declared—quoting from an opinion in an earlier .case (Keystone Raceway Corp. v. State Harness Racing Comm., 405 Pa. 1, 5-6)—that there would be review, but “ ‘ only [of] (1) the question of jurisdiction; (2) the regularity of the proceedings before the agency; (3) questions of excess in exercise of powers; and (4) constitutional questions ’” (p. 174).
Moreover, the Federal courts have long been enforcing compulsory arbitration statutes which provide for review at least as limited as that provided by the CP'LR. In the Trainmen case (353 U. S. 30, supra), for instance, the Supreme Court held that a provision of the Railway Labor Act (U. S. Code, tit. 45, § 151 et seq.), prescribing compulsory arbitration of so-called “minor disputes”—i.e., disputes concerning the application or interpretation of existing collective bargaining agreements
Although the Trainmen and Gunther cases involved ‘ ‘ minor disputes,” the courts have reached a similar result where Congress has, by special legislation, extended the compulsory
If the majority were correct in its insistence that a broader measure of review is compelled than is accorded to consensual arbitrations (CPLR 7511), then, the Supreme Court, in deciding the Trainmen (353 U. S. 30, supra) and Gunther (382 U. S. 257, supra) cases and their progeny, has overlooked a vital constitutional precept, and the due process rights of parties who submitted their minor disputes to compulsory arbitration under the Railway Labor Act have been violated for more than twenty years.
I believe that the hypotheses which underlie the decision now being made — that a compulsory arbitration proceeding is governed by the rules applicable to administrative agencies and that due process requires that the courts review the reasonableness and sufficiency of the evidence supporting their determinations— are false. As the authorities demonstrate, there is no constitutional requirement that the determination in an administrative proceeding, or compulsory arbitration, fairly conducted in accordance with a valid statute, be subjected to re-examination by the courts.
Administrative determinations, it is true, are usually subject to review to ascertain whether they are reasonable or supported by sufficient evidence. However, the availability of such review turns not on any constitutional requirement but on legislative decision. There is no constitutional right to an appeal and, consequently, the Legislature is privileged to provide that an administrative determination is to be treated as final and unappealable.
Since this is so with respect to determinations by administrative bodies, it must follow that there is likewise no constitutional necessity for more than a limited review of an award in an arbitration proceeding. As long as the arbitrator acts within the limits of his statutory authority, CPLR 7511, as it has ever been construed and applied, is entirely adequate to insure compliance with due process requirements.
Not only, then, is there no constitutional requirement that the courts undertake an independent examination of the merits of the award in the compulsory arbitration proceeding under section 716 of the Labor Law but the imposition of such a requirement would necessitate a change in the nature of the arbitration proceeding so drastic as to substantially impair the purpose of the statute. The Legislature, in enacting section 716, must have determined that the task of formulating a complete labor contract — calling for specific wage rates, job classifications, vacation policies, pension plans, seniority provisions, allocation of employee functions, hours of labor, overtime rates, etc.— could and should only be performed by a body of arbitrators who have special expertise in the labor management field and that their experience, when brought to bear on the problems of nonprofitmaking hospitals, can best assist in the resolution of their labor controversies without judicial interference.
It was, I suggest, in reliance upon their expertise and with knowledge of the fact that labor disputes, if not promptly resolved, may lead to strikes and picket lines—even though
In conclusion, there is neither legislative prescription nor constitutional mandate to warrant reading into the statute grounds for vacating awards, not specified in CPLR 7511, which would be applicable only to cases involving compulsory arbitration. The courts below were eminently correct in upholding the Labor Law provision (716, subd. 6, par. [b]), even though it limits judicial review to the grounds expressly contained in article 75 of the CPLR.
. In such a ease, the court writes, the award would he governed by the substantial evidence rule (opn., p. 509).
. In this case, the court states that the award must not only pass the arbitrary and capricious test but “ must be justified by the public interest and reasonable conditions to effect that interest ” (opn., p. 510).
. See, e.g., Gunther v. San Diego & A. E. Ry. Co., 382 U. S. 257; Trainmen V. Chicago R. & I. R. R. Co., 353 U. S. 30; Switchmen’s Union v. Board, 320 U. S. 297, 301; Brotherhood of Railroad Trainmen v. Missouri Pac. R. R. Co., 230 F. Supp. 197; Brotherhood of Loc. Fire, & Eng. v. Chicago, B. & Q. R. R. Co., 225 F. Supp. 11, affd. 331 F. 2d 1020, cert. den. 377 U. S. 918; Washington Arbitration Case, 436 Pa. 168; Fairview Hosp. Assn. v. Public Bldg. Serv. Union, 241 Minn. 523.)
. In addition, it is noteworthy that in every instance, cited in the majority (opn., p. 501), in which “substantive review” of a compulsory arbitration award has been made available, it has been the result of a statutory enactment. (See, e.g., Florida Stat. Ann., § 453.10; Ind. Stat. Ann., § 40-2412; Hew Jersey Stat. Ann., 34:13B-23; 43 Pa. Stat., § 213.13, subd. [h]; Wis. Stat. Ann., § 111.60, subd. [3].) Ho court has ever held that such judicial consideration is demanded by due process or any other constitutional provision.
. The court did, I note in passing, vacate a portion of the award on the ground that the arbitration panel had exceeded its power by going “ outside the boundaries of [its] authority” (436 Pa., at pp. 174 et seq.).
. The Railway Labor Act distinguishes between “ minor disputes ”— defined in the text—and “major disputes”; the latter are those relating to the terms of a new collective bargaining agreement.
. In the Brotherhood of Loc. Fire. & Eng. case (225 F. Supp. 11, affd. 331 F. 2d 1020, cert. den. 377 U. S. 918, supra), involving the same question, the court wrote that it “ may consider only whether the award conforms to the requirements of law or to the stipulations of the agreement to arbitrate. In this instance, the enabling Act supplants an agreement to arbitrate. The court may not review the question whether there is substantial evidence to sustain the findings of fact. It follows * * * that the scope of review in this instance is much narrower than that which generally prevails in connection with administrative decisions ” (p. 18; emphasis supplied).
. See, e.g., Goldberg v. Kelly, 397 U. S. 254, 266 et seq.; St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 76-82, per Brandeis, J., concurring; Douglas v. Noble, 261 U. S. 165, 170; Crane v. Hahlo, 258 U. S. 142, 147; Reetz v. Michigan, 188 U. S. 505, 507; Hurtado v. California, 110 U. S. 516, 537; Matter of Board of Transp. of N. Y., 272 N. Y. 52, 55; see, also, Matter of Guardian Life Ins. Co. v. Bohlinger, 308 N. Y. 174, 182—183; Matter of Jeanpierre v. Arbury, 4 N Y 2d 238, 240.
. See, also, National Union v. Arnold, 348 U. S. 37, 43; Luckenbach S. S. Co. v. United States, 272 U. S. 533, 536; Pittsburgh Ry. Co. v. Backus, 154 U. S. 421, 426-427; Reetz v. Michigan, 188 U. S. 505, 508, supra; but cf. Ohio Val. Co. v. Ben Avon Borough, 253 U. S. 287.
. See, e.g., Matter of Guardian Life Ins. Co. v. Bohlinger, 308 N. Y. 174, 182-183; Matter of Jeanpierre v. Arbury, 4 N Y 2d 238, 240; Matter of Board of Transp. of N. Y., 272 N. Y. 52, 55; see, also, 4 Davis, Administrative Law Treatise, §§ 28.18, 28.19.
And it is, I venture, for this reason that, as noted above (p. 514, n. 4), in every instance in which there has been “ substantive review ” of a compulsory arbitration award, the requirement was prescribed by the Legislature and not imposed by court directive as a matter of constitutional law. (See, e.g., Florida Stat. Ann., § 453.10; Ind. Stat. Ann., § 40-2412; New Jersey Stat. Ann., 34:13B-23; 43 Pa. Stat., § 213.13, subd. [h]; Wis. Stat. Ann., § 111.60, subd. [3].)
Concurrence Opinion
Although I agree that an affirmance is indicated, I am reluctant to accept the conclusion that the statute’s constitutionality depends upon an ad hoc reinterpretation of CPLR 7511 so as to provide not one, but two, new standards of review. CPLR 7511 and its predecessors have often been construed and its provisions have never been taken to include any concept of ‘ ‘ substantial evidence ” or ‘ ‘ arbitrary and capricious ” action. Furthermore, in the absence of clear-cut-authority indicating that such standards of review are constitutionally mandated when compulsory arbitration is involved, judicial restraint dictates that we defer to the opinion of the Legislature in denying such standards of review; the statute as written is, of course, presumptively constitutional and one who, as here would challenge its constitutionality bears a heavy burden of persuasion. (See Lincoln Bldg. Assoc. v. Barr, 1 N Y 2d 413, 415.) That burden has not been met by this plaintiff and there is, therefore, neither need nor warrant for disturbing the legislation as written.
There are strong reasons for according parties upon whom a forum has been thrust, against their will or at least without their initial consent, a broader scope of judicial review. Although the Legislature’s selection of the limited review provided for
Opinion by Judge Breitel. All concur. Chief Judge Fuld in result in an opinion in which Judge Gibsoe concurs and Judge Burke in result in a separate opinion.
Order affirmed.
