Fortune, Alsweet and Eldridge, Inc. v. Daniel

• Decision Date: 28 December 1983
• Docket Number: No. 82-6033,82-6033
• Citation: 724 F.2d 1355
• Parties: 115 L.R.R.M. (BNA) 2411, 99 Lab.Cas. P 10,687 FORTUNE, ALSWEET AND ELDRIDGE, INCORPORATED, etc., Plaintiff-Appellee, v. Richard A. DANIEL, dba Richard A. Daniel Construction Company, Defendants- Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1355

724 F.2d 1355

115 L.R.R.M. (BNA) 2411, 99 Lab.Cas. P 10,687

FORTUNE, ALSWEET AND ELDRIDGE, INCORPORATED, etc., Plaintiff-Appellee, v. Richard A. DANIEL, dba Richard A. Daniel Construction Company, Defendants- Appellants.

No. 82-6033.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 1983.

Decided Dec. 28, 1983.

Richard D. Binder, Pasadena, Cal., for defendants-appellants.

Stuart H. Young, Jr., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, and WALLACE and NORRIS, Circuit Judges.

PER CURIAM:

Daniel appeals from a district court order confirming an arbitration award in favor of Fortune, Alsweet & Eldridge, Inc. (Fortune), trustee of the Independent Contractors Grievance and Arbitration Trust. The district court held that Daniel's failure to make a motion to vacate the arbitration award within the appropriate statutory period barred Daniel from asserting defenses to Fortune's petition for confirmation of the award. The district court also found that by his conduct, Daniel had agreed to arbitrate the dispute. We affirm.

State statutes of limitation apply to motions to vacate arbitration awards in labor cases. San Diego District Council of Carpenters v. Cory, 685 F.2d 1137, 1139, 1142 (9th Cir.1983). In California, the relevant statutory period is the 100-day period contained in section 1288 of the California Civil Procedure Code. Id. at 1139, 1142. In the case before us, Daniel failed to make a motion to vacate within 100 days after the entry of the arbitration award. Therefore, the only issue for the district court to decide was "whether the parties agreed to arbitrate the subject in dispute." Sheet Metal Workers' International Association Local 252 v. Standard Sheet Metal, Inc., 699 F.2d 481, 483 (9th Cir.1983).

Fortune asserts that Daniel agreed to arbitrate under the terms of a Memorandum Agreement, which supplemented an earlier Master Labor Agreement signed by Daniel. Daniel, on the other hand, contends that he terminated all agreements with the Carpenters Union prior to the grievances that are the subject of this case. Fortune disputes the efficacy of Daniel's attempted termination. We do not decide whether Daniel's termination notice effectively ended any duty he may have had to arbitrate under the Master Labor Agreement and its successor agreements. The district court found that Daniel's continued payments to the Grievance and Arbitration Trust Fund for almost a year following his termination notice demonstrated an implicit acceptance of the arbitration clause contained in the Memorandum Agreement. This determination may be questionable in light of O'Connor Co. v. Carpenters Local Union No. 1408, 702 F.2d 824, 825-26 (9th Cir.1983), and Seymour v. Coughlin Co., 609 F.2d 346, 351-52 (9th Cir.1979). We need not decide the issue, however, since there is additional conduct which more directly sustains the district court finding that Daniel implicitly agreed to arbitration.

Arbitration is undeniably a matter of contract and parties are bound by arbitration awards only if they agreed to arbitrate the matter. See, e.g., International Brotherhood of Teamsters v. Washington Employers, Inc., 557 F.2d 1345, 1349 (9th Cir.1977). An agreement to arbitrate an issue need not be express; however, it may be implied from the conduct of the parties. Ficek v. Southern Pacific Co., 338 F.2d 655 (9th Cir.1964), cert. denied, 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280 (1965). Daniel's conduct in the case before us amply demonstrates an intent to arbitrate his dispute with the Carpenters Union.

In response to a notice that an arbitration hearing would be held, Daniel's representative sent a letter to the Arbitration Board stating that it would represent Daniel before the Arbitration Board, under "Section 5(d) of the Independent...