Afflito v. Estee Frocks, Inc.

Petitioner, a member of the union, moves to set aside an arbitrator’s award made in a proceeding instituted at his behest against his employer by the union with respect to certain purported grievances suffered by him. The application is opposed by the employer and the union. While the petitioner is not a party to the contract he urges that the instant application is available to him as a third-party beneficiary under the contract.

The court may not go into the merits of the matter predicated on the alleged misconduct of the arbitrator. In Matter of Soto (Goldman), (7 N Y 2d 397, 399) the court stated: “ The award, having been rendered in a controversy between the parties to a valid collective agreement, could be vacated only at the initiation of a party to the arbitration in the manner and for the reasons provided by section 1462 of the Civil Practice Act. The misconduct of an arbitrator, contemplated by the statute, and warranting the setting aside of an award, is that ‘ by which the rights of any party have been prejudiced’ (§ 1462, subd. 2; emphasis supplied). The petitioners, not being parties to an agreement, may not avail themselves of rights which under the Civil Practice Act are limited to parties ”. ¡

*1067In Parker v. Borock (5 N Y 2d 156, 159) a union refused to initiate arbitration proceedings under a collective bargaining agreement on behalf of plaintiff who brought an action at law against the employer. Summary judgment in favor of defendant was granted, the court holding that plaintiff was bound by the terms of the collective bargaining agreement and that his sole remedy was arbitration under said agreement. The court in dictum added that the employee has available to him a right to proceed against the union for failure to institute arbitration proceedings or for negligence in the manner of prosecuting such a proceeding. It would therefore appear that this is the only remedy available to petitioner if his grievance were meritorious. He has no remedy against the employer. Accordingly, the application is denied and the petition dismissed.