In re the Arbitration between States Marine Lines, Inc. & Crooks , 19 A.D.2d 1 ( 1963 )

Bergan, J.

A collective bargaining agreement between petitioner States Marine Lines, Inc., and the International Organization of Masters, Mates and Pilots, entered into July 5, 1961, provided that when vessels of a new type of power plant be put in operation “ the issue of the wages to be paid ” licensed deck officers should be submitted to arbitration upon a failure to negotiate successfully.

States Marine Lines, in pursuance of an agreement with the United States, undertook to operate the N/S Savannah, the first merchant ship using nuclear power. The ship had been built by the Government as part of the United States Program for Peaceful Uses of Atomic Energy.

Since this obviously was a vessel possessed of a new type of power plant within the labor contract, the union raised the “issue of wages to be paid ”, which was referred to a board in pursuance of the contract. The board failed to resolve it; and, accordingly, the issue was submitted to arbitration. The Secretary of Labor of the United States designated Walter Gellhorn, professor of law at Columbia University, as arbitrator in pursuance of a provision of the contract.

Extensive hearings were had before the arbitrator, who decided the amounts to be paid by the ship company monthly to each grade of licensed deck officers on the ship. The award' also provided, and this has become the controverted issue in the case, that the monthly wage should in any event be at least a specified amount higher than the wage of certain licensed engineer officers on the ship of corresponding grades.

It would simplify this to take one example which in principle typifies the rest. The award provided that the commodore (or master) was to receive $1,500 a month, “ or $200 more than the Chief Engineer’s basic monthly wage (whichever is greater) ”.

The employer argues that the arbitrator exceeded his powers and that the award is invalid because it is not mutual, final and definite (Civ. Prac. Act, § 1462, subd. 4). The court at Special Term has denied the employer’s motion to vacate the award on these grounds.

The arbitrator did not exceed his powers. It would not be easy to conceive of a broader cast of language than that employed in the arbitration clause in this labor contract. The “ issue of the wages to be paid ” upon the vessel with a new type of power plant being put in operation is literally without limit and places every aspect of the wage controversy within the power of the arbitrator.

It is argued also by the employer, because the amount payable pursuant to the award may depend on wages to be fixed for licensed engineers who are represented by another union, that the arbitrator exceeded his powers in attempting to bind the other union. But the award does not affect or bind anyone but the employer and the respondent union, who were before the arbitrator; nor has it been made apparent that the engineers ’ union has any legal interest or right to complain about an award between the employer and this group of employees based upon an actual labor controversy between them.

The award is final and definite enough to meet the statutory requirement. It is not a valid objection to an award to say that the amount payable may depend on a computation the base of which may change from time to time, if it be certain that at the time the computation must be made the base will be definite and ascertainable.

A good illustration of this principle is Matter of Hunter v. Proser (274 App. Div. 311, affd. 298 N. Y. 828). The decision in Matter of Overseas Distrs. Exch. (Benedict Bros. & Co.) (5 A D 2d 498) recognizes this general rule.

In the case before us these essential conditions are met. The salary of the commodore under the award will be at least $1,500 a month. If the chief engineer on the same vessel and on the same payroll of the same employer gets $1,400 a month, the commodore must get $1,600; and this progression will be followed upward.

The employer need merely look at another place on its own payroll record to compute the amount that it will pay the commodore in any month. We see nothing indefinite or incomplete about this. Many bases of computation which fluctuate, but which are definite and ascertainable readily suggest themselves — e.g., the cost of living index on a particular date, or the number of busses of an employer which operate on any given day from a terminal point.

Here all the employer need do to determine the wage it must pay the commodore in any month is to take note of an entry in its own books; and if it is in excess of $1,300 to make an appropriate exercise of addition.

Even if there were more doubt about this than the demon-stated capability of the employer to ascertain what it must pay the deck officers would suggest, it would- be resolved favorably to the award in this case because of the general practice in the marine industry and the particular practice of this employer. An award in a labor controversy must be evaluated in the setting of relevant labor practice and custom.

The proof in the record before the arbitrator established quite clearly that there is a general interrelationship in wage scale between the licensed deck officers and licensed engineers. The history of the industry suggests that the wages of the two groups have been approximately equal with a tendency to pay somewhat higher wages to the deck officers who had over-all command of the ship. Atomic power created new technical problems for engineers dealing directly with it and required special training; but its special dangers created new general navigational and safety problems for deck officers who also needed special training.

Besides this, the petitioner-employer itself recognized both the interrelationship between wages of the two groups of officers and the policy of keeping the deck officers ’ wage somewhat higher than the engineers’ wage and fluctuating with the latter wage, by a significant general provision of the same collective bargaining agreement now before us for construction.

Dealing with diesel-driven vessels, the agreement provides that the minimum monthly wage rate for masters 1 ‘ shall always be ” an amount $25 “ higher than the rate for Chief Engineers ” on similar vessels. The employer would have no more trouble following the award here in dispute than it would complying with this provision of its own contract.

The order should be affirmed, with costs.