A collective bargaining agreement between the union and the company provides for arbitration of disputes over the application or interpretation of any of its provisions. The contract also contains the usual prohibition of company discrimination against an employee because of union activity. Under another collective agreement the company pays each employee who serves as a union representative in adjusting grievances or negotiating with management for a maximum of eight hours per week. For all time spent upon union activity *Page 264 beyond that maximum the union pays the employee at his normal rate. In 1946, the company voluntarily established an employee's pension plan whereby each employee receives pension credits based upon the time for which he is paid by the company. The collective agreement is silent on the subject of pensions, and the union has failed by negotiation to induce the company to make any commitment in that respect. The union now asserts that it is entitled to arbitrate its claim that the company is violating the antidiscrimination provision of the collective bargaining agreement by failure to afford pension credits for time spent in union activities beyond those hours for which the company has agreed to pay.
If, under the unambiguous terms of an agreement calling for arbitration, there has been no default, the court may not make an order compelling a party to proceed to arbitration (Matter ofInternational Assn. of Machinists [Cutler-Hammer, Inc.],271 App. Div. 917, affd. 297 N.Y. 519). Whether or not a bona fide dispute exists is a question of law (Matter of Wenger Co. v.Propper Silk Hosiery Mills, 239 N.Y. 199, 202-203). If there is no real ground of claim, the court may refuse to allow arbitration, although the alleged dispute may fall within the literal language of the arbitration agreement. Such is the situation here. The antidiscrimination clause of the collective bargaining agreement cannot be invoked, in the circumstances of this case, to compel a change in the second collective agreement. Neither compensation nor pension credits are given by the company for time spent in union activity beyond the maximum number of hours per week for which the company has agreed to pay. To do so would be to discriminate in favor of the union representatives. The company has no such obligation. The pension plan is administered on the basis of compensation paid to all of its employees. There is no possible basis for a charge of discrimination, and by that token, no possible ground for arbitration.
The order of the Appellate Division should be affirmed, with costs.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and BROMLEY, JJ., concur.
Order affirmed. *Page 265