Continental Bank Supply Co. v. International Broth. of Bookbinders, Local No. 243, Mexico, Mo.

• Decision Date: 03 March 1947
• Citation: 201 S.W.2d 531,239 Mo.App. 1247
• Parties: Continental Bank Supply Company, Appellant, v. International Brotherhood of Bookbinders, Local No. 243, Mexico, Missouri, and Irene Angert, Lilly Piltoski and Clara Harshbarger, Respondents
• Court: Kansas Court of Appeals

201 S.W.2d 531

239 Mo.App. 1247

Continental Bank Supply Company, Appellant, v. International Brotherhood of Bookbinders, Local No. 243, Mexico, Missouri, and Irene Angert, Lilly Piltoski and Clara Harshbarger, Respondents

Court of Appeals of Missouri, Kansas City

March 3, 1947

Delivered

Appeal from the Circuit Court of Calloway County; Hon. W. M Dinwiddie, Judge.

Reversed and remanded.

J W. Buffington and Clay C. Rogers for appellant.

(1) The purported award and decision was not the award of the members of the board. The undisputed evidence shows that one of the members, Mr. W. S. Eller, was not consulted in respect to the award and was never afforded an opportunity to join in consultation or decision. The purported award as rendered is thereby invalid. 6 C. J. S. 206; Beirne v. North Texas Gas Co. (Tex.), 221 S.W. 301; Doherty v Doherty, 148 Mass. 367, 19 N.E. 352; Kent v. French, 76 Iowa 187, 40 N.W. 713. (a) The award was signed by only one member of the board and is therefore invalid under the Missouri Statute. Sec. 15239, R. S. Mo. 1939. (b) The evidence offered and the admissions made by defendants through their counsel conclusively proves that one of the arbitrators, H. R. Flegal, acted as the representative of the defendants and therefore in contemplation of law, as well as in fact, was not an impartial and disinterested arbitrator and for that reason the award should be vacated and set aside. Schwartzman v. Ins. Co., 318 Mo. 1089, 2 S.W.2d 593; Hyeronimus v. Allison, 52 Mo. 102, l. c. 105; Sholz v. Mills, 176 Mo.App. 352, 158 S.W. 696. (c) The award is invalid because: It undertakes to rule on and decide matters in addition to the three points submitted to the board, and which other matters were still in the process of negotiation and had not become matters of dispute at the time of the hearing. Hinckle v. Harris, 34 Mo.App. 223, l. c. 232; (d) The award in decreeing and ordering the contract shown therein to be entered into and executed by the parties was in excess of the jurisdiction of the board. National Labor Relations Board v. Jones & Laughlin Corp., 301 U.S. 1, 57 S.Ct. 615, l. c. 628. (2) The court erred in holding in effect that the arbitration was not a statutory arbitration under the laws of Missouri. The agreement to arbitrate was in writing and constituted a statutory arbitration. Thatcher Imple. & Merc. Co. v. Brubaker, 193 Mo.App. 627, 187 S.W. 117; Bridgeman v. Bridgeman, 23 Mo. 272; Wolfe v. Hyatt, 76 Mo. 156; Bunnell v. Reynolds (Mo. App.), 226 S.W. 614. (a) This is true although there is no clause in the agreement to arbitrate authorizing a Circuit Court judgment upon the award made pursuant to submission. Thatcher Imple. & Merc. Co. v. Brubaker, supra ; Hamlin v. Duke, 28 Mo. 166. (b) Since the agreement to arbitrate was entered into in Missouri, it becomes a Missouri contract and subject to the laws of this state. Thatcher Imple. & Merc. Co. v. Brubaker, 193 Mo.App. 627, 187 S.W. 117. (3) The court of equity is empowered to set aside an award of arbitrators for invalidity or irregularities, and the trial court erred in failing to exercise that power. Sec. 15256, R. S. Mo. 1939; Pacific Lime & Gypsum Co. v. Mo. Bridge & Iron Co., 286 Mo. 112, 226 S.W. 853. (4) The testimony of W. S. Eller, one of the arbitrators, that he was not consulted with respect to the award and that he was not asked to nor did he make any decision on any question, is uncontradicted and undisputed. Therefore, no valid award was made. An arbitrator is a competent witness to testify in a proceeding to set aside an award. Hinckle v. Harris, 34 Mo.App. 223, l. c. 234; 6 C. J. S. 665.

Don C. Carter for respondents.

It is well settled law, that a person cannot become a party to an arbitration agreement, participate in the hearing before the arbitrators, having objections on any ground to one or more of the arbitrators, submit the matters to them, and later when the award is against them, object to any of the arbitrators who sat in the hearing. 6 C. J. S., sec. 46, p. 187, Arbitration and Award. Incompetency of an arbitrator is waived by a party who, with full knowledge of the facts, submits his case. Plaintiff was not satisfied with the arbitrators selected, but, notwithstanding this, she appeared before the Board and presented her case, and in such situation, in the absence of a showing of fraud or partiality on the part of the arbitrators, there is no ground for complaint. Dickens v. Luke, 2 S.W.2d 161; Citing Reily v. Russells, Admr., 34 Mo. 524. The courts have always held that one who resorts to arbitration, is present at the hearing and participates in everything that is done will not be heard to complain of any irregularity when the award goes against him. Fernandes v. Hunter, 217 Mo.App. 198.

OPINION

Bland, P. J.

This is a suit in equity, by which plaintiff seeks to set aside an award made by a board of arbitrators in a labor dispute. The judgment was for defendants and plaintiff has appealed.

Plaintiff is a corporation with its office and place of business located in Mexico, Missouri. Defendant, International Brotherhood of Bookbinders, No. 243, is a voluntary association of employees of plaintiff affiliated with the American Federation of Labor; and defendants, Angert, Piltoski and Harshbarger are members and officers of said association.

On or about August 10, 1942, the members of defendants association left plaintiff's plant on a strike, whereupon negotiations were begun by plaintiff and officers of the union, resulting in a written stipulation reciting that the employees would return to work and continue to work while negotiations were being carried on by the company and its employees seeking a satisfactory contract of employment; that if such a contract could not be entered into at the end of 10 days the parties would promptly submit any differences to a board of arbitrators, consisting of three arbitrators; that each party should select an arbitrator and the two a third one within three days and, in the event that the two arbitrators could not agree on a third the latter should be named by the United States Conciliation Service.

Following this stipulation negotiations were begun between the parties seeking an agreement on a contract covering working conditions, wage scale and other conditions of employment. These negotiations were carried on by the plaintiff through its general manager and its attorney, J. W. Buffington, and the employees were represented by Mr. D. T. Welch, a representative of the International Brotherhood of Bookbinders, with the assistance of some others. These negotiations were not concluded within the 10 day period, but later when it was found that no agreement could be reached with reference to wages, seniority and the closed shop, it was then determined that it was necessary to resort to arbitration.

Under the provisions of the submission the employees chose Mr. H. R. Flegal, and the plaintiff chose Mr. W. S. Eller. The two being unable to agree, Mr. Clarence M. Updegraff was named as an arbitrator by the United States Conciliation Service.

On September 24, 1942, Eller, Flegal and Updegraff went to the office of Mr. Buffington in Mexico and proceeded to hear the evidence. Immediately after the board of arbitrators convened an objection was made by Buffington challenging the rights of Mr. Flegal to serve as a member of the board, for the reason that he was a member of a kindred union. Flegal refused to disqualify and Mr. Updegraff proposed that in case of a disagreement between the other two members of the board authority be given him to make the decision and write the opinion. According to the testimony of Mr. Buffington, a witness for plaintiff, the witness replied that "would constitute only a one man board" but, having in mind what he thought about the disqualification of Mr. Flegal, the witness concluded that Updegraff's proposition was satisfactory but Mr. Welch objected. Buffington testified that there was no further agreement about the authority and the hearing proceeded. According to Mr. Welch, who testified for the defendants, when the disqualification of Mr. Flegal was raised, Mr. Buffington suggested that plaintiff "would be willing to submit the entire proceeding to arbitration with Mr. Updegraff sitting as an umpire or arbitrator", but the witness objected to this. Mr. Welch further testified that it was finally "agreed by both parties that where any question came up in the decision of the Board of Arbitration that could not be decided by a majority, Mr. Updegraff would be the sole arbiter on that part".

It is permissible, under facts like those in this case, to amend the submission by parol. [6 C. J. S., p. 173; 3 Am. Juris., p. 890.]

The proceedings lasted for three days and at the close of the evidence, Updegraff, Flegal and Ellers retired to a back room in Mr. Buffington's office to consider the case. They remained there for a short time and adjourned without having announced an award. However, in December 1942 a purported award, signed by Updegraff, alone, was sent out by him. The purported award was later approved by the National War Labor Board. Thereafter, plaintiff appeared before the Regional National War Labor Board, and opposed the approval of the purported award on various grounds, all of which were overruled.

The purported award recites the challenge of Flegal by the plaintiff and states: "The undersigned appointee of the U.S. Conciliation Service then proposed that in the case of dispute or disagreement between the other two members of the board authority be given to him to make the decision and to write the opinion. It was pointed out that the arbitrators appointed by the parties might each have some extreme convictions favoring their...