Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
As part of the settlement of a strike, the appellant Local No. 274 and the respondent entered into a written agreement which provided that the propriety of the discharge of appellant, Francis C. Juillet, be "submitted to Arbitration in accordance with the rules of Arbitration of the N.J. State Board of Mediation." Pursuant thereto, arbitrators were appointed, a submission agreement was executed, hearings were held on March 16 and 19, 1954, and on May 4, 1954 the last brief was filed. On May 19, 1954, the arbitrators met to consider the briefs and the evidence. Two members of the board comprising a majority found for the plaintiff; one signed the award on June 8, 1954 and the other on June 11, 1954, while the dissenting member filed his dissent on June 18, 1954.
The defendant filed an action in the Law Division of this court to vacate the award for several reasons, among them that it was not made within 30 days after the close of the hearing as required by the rules of the State Mediation Board.
Rule V-(11) provides that
"If * * * briefs or other evidence are to be supplied, the hearings shall be declared closed as of the final date for receiving such material, and in the absence of other agreement by the parties, the time limit within which the Arbitrator is required to make his award shall start as of that date."
"The award shall be made promptly within the time set in the agreement between the parties or a mutually-agreed upon extension, but in no case more than 30 days after the closing of hearings."
The trial court sustained the defendant's contention and set aside the award under N.J.S. 2 A:24-8(d) because the
arbitrators having filed their award 38 days after the close of the hearing, exceeded their authority. Thereupon the plaintiff wrote to the Mediation Board and the defendant requesting resubmission of the dispute, but the Board notified the plaintiff that the defendant refused to proceed with arbitration on the ground of res judicata. The plaintiffs thereupon filed a complaint and obtained an order to show cause why the defendant should not be directed to submit to arbitration the question of the propriety of the discharge of Francis C. Juillet, in accordance with the labor agreement between the parties. The defendant filed an answer, and after argument on the order to show cause the court entered judgment dismissing the complaint and discharging the order for the reason that the judgment in the former suit was res judicata. This appeal is from that judgment.
The defendant in support of its argument of res judicata contends that the plaintiff should have filed a counterclaim for rehearing in the former action or should have appealed from the former judgment. It also urges that having submitted to arbitration it is not obliged to again arbitrate the same issue in the absence of an agreement to do so. The plaintiffs contend that the former judgment is not res judicata and that they are entitled to an order for arbitration under the agreement.
In the first proceeding, the defendant maintained and the trial court sustained its contention that the award was ineffective because it had been filed more than 30 days after the close of the hearings and, therefore, beyond the time required by the rules which the parties agreed should govern the arbitration.
Generally, whenever the agreement, applicable rules or statute fixes a time within which the award is to be made, an award made by the arbitrators after such time is a nullity and void. Goerke Kirch Co. v. Goerke Kirch Holding Co. , 118 N.J. Eq. 1 (E. & A. 1935); 3 Am. ...