
    In the Matter of James B. Carey, as President of International Union of Electrical, Radio and Machine Workers, A. F. L.C. I. O., Appellant-Respondent, v. Westinghouse Electric Corporation, Respondent-Appellant.
    Argued May 9, 1962;
    decided July 6, 1962.
    
      
      Isadore Katz and Benjamin Sigal for appellant-respondent.
    I. National Appeal Grievance No. 2079-A is clearly arbitrable since it involves a claim by the union that the company violated a provision of the collective bargaining agreement. (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Carey [Westinghouse Elec. Corp.], 6 A D 2d 582, 6 N Y 2d 934; Matter of Acme Backing Corp. [Dist. 65, Distributive, Processing & Off. Workers of America], 2 N Y 2d 963; Bethlehem Co. v. State Bd., 330 U. S. 767; International Assn, of Machinists v. Hayes Corp., 296 F. 2d 238; International Union of Elec., Radio & Mach. Workers v. Westinghouse Elec. Corp., 268 F. 2d 352.)-II. National Appeal Grievance No. 2286-G is arbitrable. (Nepco Unit of Local 95 v. Nekoosa-Edwards Paper Co., 287 F. 2d 452; Employees v. Westinghouse Corp., 348 U. S. 437; Lodge No. 12, Dist. No. 37, Int. Assn, of Machinists v. Cameron Iron Works, 257 F. 2d 467; Matter of Klein [Styl-Rite Optics], 8 A D 2d 811; Longshoremen v. Juneau Spruce Corp., 342 U. S. 237; Labor Bd. v. Radio Engineers, 364 U. S. 573; United Textile Workers v. Textile Workers Union, 258 F. 2d 743; Freight Drivers & Helpers Local 557 v. Quinn Freight Lines, 195 F. Supp. 180; Matter of Fownes Bros, & Co. [Consolidated Glove Cutters & Shavers Union Local 1714], 14 A D 2d 235; Matter of Amperex Electronics Corp. [Rugen], 284 App. Div. 808; International Union of Doll & Toy Workers v. Metal Polishers, 180 F. Supp. 280; Local 33, Int. Hod Carriers v. Mason Tenders Dist. Council, 291 F. 2d 496; International Chem. Workers Union v. Olin Mathieson Chem. Corp., 202 F. Supp. 363; Local Lodge No. 1836 of Dist. 38 v. Raytheon Mfg. Co., 201 F. Supp. 334; Fur Workers Union No. 21238 v. Fur Workers Union, Local No. 72, 308 U. S. 522; Textile Workers v. Lincoln Mills, 353 U. S. 448.) III. National Appeal Grievance No. 1971-C is clearly arbitrable since it involves a discharge without just cause. All questions involving the equities or the merits are for the arbitrator. (Matter of Bohlinger [National Cash Register Co.], 305 N. Y. 539; Maryland Tel. Union v. Chesapeake & Potomac Tel. Co., 187 F. Supp. 101.)
    
      
      John F. Hunt, Jr., and John D. Calhoun for respondent-appellant.
    I. The court below properly held the Baltimore grievance nonarbitrable. The Baltimore grievance does not involve any issue as to the interpretation, application or claimed violation of the agreement. (National Licorice Co. v. Labor Bd., 309 U. S. 350; National Labor Relations Bd. v. Deutsch Co., 265 F. 2d 473.) II. The Baltimore grievance is nonarbitrable as a matter of Federal law. (Matter of Carey [Westinghouse Elec. Corp.], 6 A D 2d 582, 6 N Y 2d 934; Matter of Klein [Styl-Rite Optics], 8 A D 2d 811; Lodge No. 12, Dist. No. 37, Int. Assn, of Machinists v. Cameron Iron Works, 257 F. 2d 467; Freight Drivers & Helpers Local Union 557 v. Quinn Freight Lines, 195 F. Supp. 180; Pittsburgh Glass Co. v. Board, 313 U. S. 146; Matter of Amperex Electronic Corp. [Rugen], 284 App Div. 808; Local Lodge No. 1836 of Dist. 38 v. Raytheon Mfg. Co., 201 F. Supp. 334; Local 33, Int. Hod Carriers v. Mason Tenders Dist. Council, 291 F. 2d 496.) III. The union’s proper remedy is a National Labor Relations Board proceeding. IV. A fair construction of the agreement shows that the company has not consented to arbitration of the East Pittsburgh grievance. (Steelworkers v. American Mfg. Co., 363 U. S. 564; Steelworkers v. Warrior & Gulf Co., 363 U. S. 574; Steelworkers v. Enterprise Corp., 363 U. S. 593; Underwood Corp. v. Local 267, Int. Union of Electrical, Radio & Mach. Workers, 183 F. Supp. 205; Sunnyvale Westinghouse Salaried Employees Assn. v. Westinghouse Elec. Corp., 175 F. Supp. 685; International Union of Elec., Radio & Mach. Workers v. Westinghouse Elec. Corp., 268 F. 2d 352.) V. The company has not consented to arbitration of the Mansfield grievance. VI. The union is not entitled to specific performance of any agreement which may exist to arbitrate the Mansfield grievance because of its inexcusable and prejudicial delay in instituting the present proceedings. (International Assn. of Machinists v. Hayes Corp., 296 F. 2d 238; Boston Mut. Life Ins. Co. v. Insurance Agents’ Int. Union, 258 F. 2d 516, 171 F. Supp. 125.)
   Per Curiam.

We are in accord with the disposition of the Appellate Division in modifying the order of Special Term.

This appeal, the facts of which have been sufficiently set forth in the opinions below, results from a motion to compel the arbitration of three grievances. Arbitration has been ordered as to one, and denied as to the others.

Whether the grievance at the Mansfield, Ohio, plant actually concerns rehiring or discharge is properly a matter to be decided by the arbitrator. Furthermore, the company is not prejudiced by the inartful manner in which the complaint was originally drawn, since it clearly understood the thrust of the problem.

As to the delay in seeking a court order for arbitration, allegedly amounting to an abandonment of the claim in this case involving a collective bargaining agreement, that question should be argued in the forum which the parties have voluntarily chosen—arbitration (see Matter of Straight Line Foundry & Mach. Corp. [Wojcik], 9 N Y 2d 867; Matter of Novelty Fabrics Corp. [Lawrence J. Fink, Inc.], 2 N Y 2d 894; Steelworkers v. American Mfg. Co., 363 U. S. 564; Steelworkers v. Warrior & Gulf Co., 363 U. S. 574; Steelworkers v. Enterprise Corp., 363 U. S. 593). Nothing herein, however, is to be construed as changing decisions in the usual arbitration cases, such as Matter of Zimmerman v. Cohen (236 N. Y. 15).

We think that the grievance arising at the East Pittsburgh plant, involving the 11 time value allowance ’ ’, was not covered by the provisions of the collective bargaining agreement which provided for arbitration. “ [Sjince arbitration is a creature of contract, a court must always inquire, when a party seeks to invoke its aid to force a reluctant party to the arbitration table, whether the parties have agreed to arbitrate the particular dispute ” (Steelworkers v. American Mfg. Co., supra, pp. 570-571). The parties here having agreed that no arbitrator should have authorization to “ Establish or modify ” time values, it is clear that such problems had, by agreement, been taken out of the arbitration process outlined in the contract. To submit such a grievance to arbitration now would be an idle gesture, as no valid award could be made. Nowhere in the collective bargaining agreement is there a statement which could be construed to mean that there has been an agreement for “ therapeutic ” arbitration, incapable of enforcement.

Not only is the character of the time values which may have been set in the original agreement to be determined here (see Radio Corp. of America v. Association of Professional Eng. Personnel, 291 F. 2d 105; International Union of Elec., Radio & Mach. Workers v. Westinghouse Elec. Corp., 268 F. 2d 352), but in addition how much, if at all, pre-existing changes in procedures could be incorporated into management’s change of the time values. This must, necessarily, encompass an equitable modification of existing values, which is beyond the range of the authority granted to the arbitrator by the parties (see Underwood Corp. v. Local 267, Int. Union of Elec., Radio & Mach. Workers, 183 F. Supp. 205; Sunnyvale Westinghouse Salaried Employees Assn. v. Westinghouse Elec. Corp., 175 F. Supp. 685).

Finally, the grievance at the Baltimore plant, involving the definition of the bargaining units, seems to us under Federal law to be within the exclusive jurisdiction of the National Labor Relations Board, which has the expertise to make clear the precise nature of the bargaining units certified by it. This view has recently been reaffirmed by the United States Supreme Court in the following language (Marine Engineers v. Interlake Co., 370 U. S. 173,181,185):

“ A centralized adjudicatory process is also essential in working out a consistent approach to the status of the many separate unions which may represent interrelated occupations in a single industry. Moreover, as the national agency charged with the administration of federal labor law, the Board should be free in the first instance to consider the whole spectrum of possible approaches to the question, ranging from a broad definition of ‘ labor organization ’ in terms of an entire union to a narrow case-by-case consideration of the issue. Only the Board can knowledgeably weigh the effect of either choice upon the certainty and predictability of labor management relations, or assess the importance of simple administrative convenience in this area.
* * *
“ The need for protecting the exclusivity of NLRB jurisdiction is obviously greatest when the precise issue brought before a court is in the process of litigation through procedures originating in the Board. While the Board’s decision is not the last word, it must assuredly be the first. In addition, when the Board has actually undertaken to decide an issue, relitigation in a state court creates more than theoretical danger of actual conflict between state and federal regulation of the same controversy. ’ ’

The First Circuit appears to have reached the same conclusion, in reversing the District Court, in Local No. 1505, Int. Bro. Elec. Workers v. Local Lodge No. 1836 of Dist. 38,1 AM (304 F. 2d 365). (See, also, International Chem. Workers Union v. Olin Mathieson Chem. Corp., 202 F. Supp. 363.)

The order appealed from should be affirmed, without costs.

Fuld, J. (dissenting in part).

I would modify the order appealed from by reversing so much of it as denies arbitration of the Baltimore plant grievance.

The fact that the matter sought to be arbitrated, turning as it does on a bargaining unit description in the contract’s recognition clause, may also involve an unfair labor practice or a question concerning representation which may ultimately give rise to a proceeding before the National Labor Relations Board does not deprive the court of authority to order arbitration and enforce the agreement. The underlying objective of the national labor laws is to promote collective bargaining agreements and to help give substance to such agreements through the arbitration process. (See Textile Workers v. Lincoln Mills, 353 U. S. 448, 457; Steelworkers v. American Mfg. Co., 363 U. S. 564; Steelworkers v. Warrior & Gulf Co., 363 U. S. 574; Steelworkers v. Enterprise Co., 363 U. S. 593; Dowd Box Co. v. Courtney, 368 U. S. 502; Teamsters Local v. Lucas Flour Co., 369 U. S. 95.)

The controlling statute, section 301 of the National Labor-Management Relations Act, envisages parallel private and public proceedings in situations where a breach of an agreement also involves determinations under the act. Section 301 was designed to vindicate private rights under a contract, while section 8, relating to unfair labor practices, and section 9, relating to representation, were designed to vindicate public rights provided under the statute. The circumstance that there might be a claim before the National Board at some date in the future should not operate to deprive the parties of contract rights at the present time. (But cf. Local No. 1505, Int. Bro. Elec. Workers v. Local Lodge No. 1836 of Dist. 38, IAM, 304 F. 2d 365, revg. 201 F. Supp. 334, in which two unions had actually asserted conflicting claims as to representation.) The pre-emption postulates enunciated by the Supreme Court over the past several years (see, e.g., Garner v. Teamsters Union, 346 U. S. 485; San Diego Unions v. Garmon, 353 U. S. 26; Marine Engineers v. Interlake Co., 370 U. S. 173) concerned actions instituted in state courts to remedy torts which constituted, arguably, an unfair labor practice or, arguably, a protected activity under the Federal statute. The prohibitions spelled out in those cases against state court intrusion upon the exclusive jurisdiction of the National Labor Relations Board have no applicability to actions for breach of a collective bargaining agreement.

The collective bargaining agreement governing wages, hours and conditions of employment is the ultimate objective of. the labor relations laws. Arbitration is an integral part of the administration and enforcement of the collective bargaining agreement and Federal and State court sanction an essential aid to such process.

Chief Judge Desmond and Judges Dye, Feoessel, Van Vooehis, Bubke and Fosteb concur in Per Curiam opinion; Judge Ftjld dissents in part and votes to modify in a separate opinion.

Order affirmed. 
      
      . In any event, since there was here no claim that the union restrained or coerced the employees or engaged in or encouraged the employees to engage in a strike or resorted to any of the other activities defined in subdivision (b) of section 8 of the National Labor Relations Act, there is no basis for any charge that the union was guilty of unfair labor practice or prohibited conduct under that statute.
     