Martinez Typographical Union No. 597, AFL-CIO v. Silversun Corp.

• Decision Date: 22 November 1967
• Docket Number: AFL-CIO
• Citation: Martinez Typographical Union No. 597, AFL-CIO v. Silversun Corp., 63 Cal.Rptr. 760, 256 Cal.App.2d 255 (Cal. App. 1967)
• Parties: , 57 Lab.Cas. P 51,802 MARTINEZ TYPOGRAPHICAL UNION NO. 597,, a labor organization, Plaintiff, Cross-Defendant and Appellant, v. SILVERSUN CORP., a corporation, and Herman Silverman, Defendants, Cross-Complainants and Respondents. Civ. 23989.
• Court: California Court of Appeals

Page 760

63 Cal.Rptr. 760

256 Cal.App.2d 255, 57 Lab.Cas. P 51,802

MARTINEZ TYPOGRAPHICAL UNION NO. 597, AFL-CIO, a labor organization, Plaintiff, Cross-Defendant and Appellant, v.SILVERSUN CORP., a corporation, and Herman Silverman, Defendants, Cross-Complainants and Respondents.

Civ. 23989.

Court of Appeal, First District, Division 2, California.

Nov. 22, 1967.

Hearing Denied Jan. 17, 1968.

Neyhart & Grodin, Duane B. Beeson, San Francisco, for appellant.

Bernheim, Sugarman, Gilbert & Straughn, Richmond, for respondents.

SHOEMAKER, Presiding Justice.

This is an appeal by plaintiffMartinez Typographical UnionNo. 597 from a judgment denying its petition to compel arbitration of an alleged dispute with defendants and cross-complainantsSilversun Corporation and Herman Silverman.

Responsive to the pleadings of the parties, the trial court found that the parties' written collective bargaining agreement expired on February 28, 1963, and was not renewed by the parties; that no substantial amount of 'reproduction work' had accumulated before the date upon which the agreement terminated, although the contrary was true between the time of termination and the sale of the business; that plaintiff had not requested, from time to time, that defendants comply with its obligation to reproduce such copy; that sometime prior to November 28, 1963, plaintiff was notified that defendantSilversun Corporation and the other two printing corporations owned by defendant Silverman would collectively sell their business assets and cease operations on or about November 28, 1963; that on said date the corporations in question did in fact sell their respective business assets and ceased operations in the publishing business and that by reason of such cessation of operations, their employees lost their employment; that on December 3, 1963, plaintiff wrote defendants and demanded that they comply with their alleged contractual obligation to complete outstanding 'reproduction work,' but that at such time defendants had already gone out of business and had no facilities or employees able to do any 'reproduction work' whatever; that on January 29, 1964, plaintiff wrote defendants and requested that the reproduction question be submitted to the joint standing committee provided for in the collective bargaining agreement, but that plaintiff at no time submitted the question to that committee; that plaintiff had neglected to avail itself of any rights which it might have had under the written agreement for an undue and unreasonable length of time and had been guilty of such laches as to bar it from the relief prayed for in its petition; that plaintiff waived any rights which it might have had under the agreement by failing to make any complaint or any demand for arbitration until after defendants had disposed of their facilities and employees, although plaintiff was well aware of its right to do so and of any grievance it may have had long before November 28, 1963; that plaintiff had failed to make available to defendants, during the time when they were still in business, employees who were able and willing to do 'reproduction work' and had thus prevented performance of such work and waived any right which it might have had to seek arbitration.

The court entered judgment denying plaintiff's petition for arbitration and adjudging, on the cross-complaint, that plaintiff's right to arbitrate had been waived and that defendants and cross-complainants were not obligated to arbitrate any dispute relating to 'reproduction work.'

This action is governed by section 1281.2 of the Code of Civil Procedure, which provides in pertinent part as follows: 'On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.If the court determines that a written agreement to arbitrate a controversy exists, an order to arbitrate such controversy may not be refused on the ground that the petitioner's contentions lack substantive merit.'(Emphasis added.)

In the instant case, the trial court obviously did not base its judgment upon a finding that the alleged dispute over 'reproduction work' was not one which was subject to arbitration under the 1961 collective bargaining agreement.Said agreement expressly provides for the performance of 'reproduction work' by defendants' composing room employees with respect to copy which is received under specified circumstances from other printing establishments.The agreement also provides that 'all disputes which may arise as to the construction to be placed upon any clause of the agreement * * * or alleged violations thereof, which cannot be settled otherwise' shall be referred to a joint standing committee composed of representatives of plaintiff and of defendants.We agree that an alleged violation of the provision pertaining to 'reproduction work' or a dispute pertaining thereto was an arbitrable one under the agreement.

The judgment similarly cannot be upheld upon the theory that plaintiff was, of necessity, precluded from seeking arbitration because no demand for same was made during the life of the 1961 agreement or its alleged oral extension.The question of whether the parties intended an arbitration clause to be applicable to disputes for which no demand was made during the term of an...