In re Berger , 274 A.D. 789 ( 1948 )

Order, denying petitioner’s motion to compel respondent to proceed to arbitration concerning a dispute with respect to a wage reopening clause in the collective bargaining agreement made between the parties, affirmed, with $10 costs and disbursements to the respondent. No opinion. Present — Peck, P. J., Glennon, Dore, Van Voorhis and Shientag, JJ.; Shientag, J., dissents and votes to reverse and grant the motion to compel respondent to proceed to arbitration, in the following memorandum: Under subdivisions A and B of section XXI of the collective bargaining agreement, either party on thirty days written notice to the other party was given the right to “reopen,this contract once, on January 6, 1948, for the sole purpose of adjusting salary rates upward or downward.” The notice was to “ set forth the adjustments desired and the basis therefor.” Instinct in this collective bargaining agreement is the obligation to arbitrate any dispute with respect to such revision of wages. This is unlike the provision in Matter of Int. Assn. of Machinists (Cutler-Hammer, Inc.) (271 App. Div. 917, affd. 297 N. Y. 519) where the collective bargaining agreement merely provided that the company would “ discuss ” a bonus payment. [191 Misc. 870.]