In re the Arbitration between Gallagher & Esso Standard Oil Co.

Stevens, J.

(dissenting). I dissent, vote to reverse and grant the motion to compel arbitration.

The parties hereto, hereinafter referred to as the “ Union ” and the Company'”, entered an agreement effective May 15, *251956, which covered wages, hours and working conditions of the unlicensed personnel on respondent’s vessels. The agreement, which extended to June 30, 1957, was ratified by the members of the Union and was to remain effective thereafter from year to year unless changed by the parties.

July 2,1957, another agreement was negotiated by the parties which failed of ratification by the Union membership as required. Prior to such failure and on or about September 16, 1957, the parties negotiated an agreement effective August 23, 1957, entitled “Amendment to Agreement of July 2, 1957 ” which purported to cover unlicensed personnel on “tied-up” ships. This amendment was never submitted to the membership for ratification, and thereafter as heretofore indicated, the July 2, 1957 agreement was rejected.

In April or May, 1959, a dispute arose concerning the wages and working conditions of unlicensed personnel in the “ tied-up ” fleet of the Company. The Union contended such persons were not being paid the wages called for by the agreement of 1956, as later amended effective October, 1957, and October, 1958, and that this condition had existed since August 23, 1957.

The Company asserted the men were being paid wages, etc., in accordance with the provisions of the September 16, 1957 agreement, effective as of August 23, 1957, which it claims the parties recognized and which, when the July 2, 1957 agreement failed of ratification, they regarded and intended to be an amendment to the 1956 agreement. The Company says the 1956 agreement covered only personnel on active vessels, and the September 16, 1957 agreement was a supplement thereto. The Union rejects this view, says that the 1956 agreement covered all personnel, and terms the September 16, 1957 document ‘ ‘ an amendment to a non-existing agreement.”

The 1956 agreement contained an arbitration clause which provided: ‘ ‘ Any question as to the interpretation of this Agreement or any question of fact arising out of an alleged violation of the terms of this agreement, which is not otherwise settled, shall, at the request of either party, be submitted to a Board of Arbitration.”

Since the parties differ on the interpretation and application of the 1956 agreement this question under the language of that agreement is one for initial determination by the arbitrators. It is clear that any hiatus occurring because of the expiration of any collective bargaining agreement was to be controlled by the 1956 agreement, which provided that it was to remain effective until changed by the parties.

*26It is agreed that the July 2, 1957 agreement never became effective. The question is posed whether there can be an amendment to a noneffective agreement. Obviously not. An amendment to a document presupposes the existence of a basic document. An analogy may be drawn from the world of physical properties. If a frame or foundation collapse or be removed, that which is appended to it will not remain suspended in thin air, but by the pull of gravity will fall or by reason of its attachment follow the course pursued. This is not to say the parties did or did not intend the September 16,1957 agreement to amend or supplement the 1956 agreement. That is for the arbitrators to decide. There is a genuine dispute, regardless of the merits of either position, concerning wages and hours of the men involved, but the resolution of that dispute must first depend upon a determination as to whether the amendment is part of the 1956 agreement. That calls for an interpretation of that agreement and the parties agreed that is a question for the arbitrators.

“ On a motion to compel arbitration the court may only consider the existence of an agreement to arbitrate and whether there is a dispute arising thereunder ” (Matter of Carey [Westinghouse Elec. Corp.], 6 A D 2d 582, 583, affd. 6 N Y 2d 934). The parties here recognize the existence of the 1956 agreement, and there is a material question posed as to its interpretation, its application and whether or not there was any violation of its terms. The language of the documents is not so clear nor the acts of the parties so conclusive that we can say as a matter of law there is no bona fide dispute. (See Matter of General Elec. Co. [United Elec. Radio Mach. Workers of America], 300 N. Y. 262.) On the contrary, in the view I take the matter in dispute clearly appears to be within the scope of the bargaining agreement and properly arbitrable under the arbitration clause. ‘ ‘ The rule would now seem to be settled that subsequent acts or documents purporting or claimed to terminate an agreement containing a broad arbitration clause, if in dispute, raise issues for the arbitrators and not for the court (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Aqua Mfg. Co. [Warshow & Sons], 179 Misc. 949, affd. 266 App. Div. 718).” (Matter of Stein-Tex [Ide Mfg. Co.], 9 A D 2d 288, 289.)

At best the offer of the September 16, 1957 document, which is claimed to be an amendment, • — which, incidentally, the Union denies was ever properly executed, — is merely by way of defense to the claim made by the Union and which it seeks to arbitrate under the contract. Defenses to a claim, of course, must be decided by the arbitrator.

*27The order appealed from, should be reversed, and the motion to compel arbitration and designate and appoint an arbitrator granted.

M. M. Frank and McNally, JJ., concur with Valente, J.; Stevens, J., dissents and votes to reverse and grant arbitration, in opinion in which Babin, J. P., concurs.

Order denying the motion to compel arbitration modified to the extent of remanding the motion to Special Term for a trial on the issue of the existence and validity of the September 16, 1957 contract, and as so modified, affirmed, without costs. Disposition of the motion to compel arbitration is to be held in abeyance pending trial of that issue and then determined in accordance with the views expressed in the majority opinion. Settle order.