Opinion
December 16, 1958
Moses M. Cohen for plaintiff.
Dublirer Haydon ( Harold Dublirer of counsel), for defendant.
This is an action under the Fair Labor Standards Act of 1938 (U.S. Code, tit. 29, § 201 et seq.), in which the defendant alleges an agreement (a collective bargaining agreement) to arbitrate as a bar. The defendant moves to stay the action pending the outcome of arbitration proceedings (Civ. Prac. Act, § 1451); to which the plaintiff replies that an action of this kind cannot even by agreement be submitted to arbitration.
The question whether such an action can be submitted to arbitration has not been decided by the United States Supreme Court. The United States Court of Appeals, Third Circuit, in a decision which the Supreme Court declined to review ( Watkins v. Hudson Coal Co., 151 F.2d 311, cert. denied 327 U.S. 777) held that the act does not prohibit arbitration. It had earlier decided the matter in the same way in Donahue v. Susquehanna Collieries Co. ( 138 F.2d 3, 6). There it had answered in the affirmative the question which it put to itself, "Is there anything about the Fair Labor Standards Act which removes claims under its terms from the arbitration clause?"
Our courts have held otherwise ( Garrity v. Bagold Corp., 180 Misc. 120, mod. 267 App. Div. 353; Matter of City Service Cleaning Contrs. v. Vanzo, 179 Misc. 368, affd. 266 App. Div. 660; cf. Friedman Hat Co. v. Safrin, 82 N.Y.S.2d 873).
The motion is denied. Settle order.