Myers v. Richfield Oil Corp.

• Citation: 220 P.2d 973,98 Cal.App.2d 667
• Court: California Court of Appeals
• Decision Date: 28 July 1950
• Parties: MYERS et al. v. RICHFIELD OIL CORPORATION. Civ. 17764.

Page 973

220 P.2d 973

98 Cal.App.2d 667

MYERS et al. v. RICHFIELD OIL CORPORATION.

Civ. 17764.

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

July 28, 1950.

Rehearing Denied Aug. 16, 1950.

Hearing Denied Sept. 21, 1950.

Wirin, Rissman & Okrand, Los Angeles, for appellants.

William H. Powell, Los Angeles, for respondent.

WILSON, Justice.

Appeal from order and judgment denying petition under section 1282 ¹ of the Code of Civil Procedure for an order directing arbitration.

The facts, about which there is no dispute, are as follows:

Jack F. Frazier, hereinafter called appellant, began to work for respondent in November, 1945. In September, 1948, the Oil Workers International Union, C.I.O., of which appellant is a member, called a strike against respondent and in response to the union's call appellant went on strike. Prior to the termination of the strike respondent filled the position previously held by appellant. On November 9, 1948, the union and respondent entered into a strike settlement agreement and on November 11, 1948, they executed 'Articles of Agreement.' On November 12, 1948, appellant was offered a new job in another district, which he declined in writing. On January 10, 1949, he was again offered a job which he accepted. When he went back to work on February 10, 1949, he was classified as a new employee with seniority dating from that date.

Appellant's classification as a new employee and the loss of seniority resulting therefrom is the basis of his grievance and the refusal of respondent to arbitrate either the grievance or the question whether or not the grievance is subject to the arbitration clause of the agreement of November 11, 1948, is the basis of the instant action.

Appellant contends that the grievance comes within the provisions of Article XXII of the Articles of Agreement; that an agreement to arbitrate having been shown and respondent's refusal to arbitrate being clear, an order directing arbitration should have been made.

Respondent admits the execution of the Articles of Agreement and its refusal to arbitrate. It also admits the sole question for determination by the court is whether a contract is in existence under which arbitration may be ordered. It contends, however, that appellant's grievance does not come within the provisions of the Articles of Agreement of November 11, 1948, but is governed by the strike settlement agreement of November 9, 1948, which contains the rules and procedure for the return of the strikers to work; that appellant was not an employee when his grievance arose.

So much of paragraph 12 of the strike settlement agreement, containing the provisions with respect to the return of employees to work, as is pertinent to the issues herein reads as follows: '(b) The Employer will schedule the assignment of employees who return to work and who are reinstated, in accordance with an orderly plan to be worked out by the Employer to meet work schedules. If any employee has a grievance arising from his assignment, he shall file such grievance arising from his assignment with Local Management within ten (10) days after the signing of the new Articles of Agreement. Such grievance shall not be processed through the grievance procedure provided for in the new Articles of Agreement, but shall be referred to and heard by the same committee provided for in (a) above. Such committee will conduct a hearing on such grievance, and a representative of the Union may be present at such hearing and assist the employee in the presentation of his grievance. All such cases shall be completed and disposed of within forty (40) days from the date of the signing of the new Articles of Agreement. After the expiration of such period of forty (40) days, the provisions of the new Articles of Agreement in reference to seniority will be given full force and effect, except that no grievance disposed of during such forty (40) day period shall be revived or be used as the basis for a new grievance or shall be made the basis of any claim or right by an employee affected by such grievance under the new Articles of Agreement or any provision thereof; provided, however, that nothing herein shall be construed to constitute or operate as a waiver of any right any employee may have under the Labor-Management Relations Act, 1947 [29 U.S.C.A. § 141 et seq.].'

Contrary to respondent's contention, appellant's grievance did not arise until February 10, 1949, when he went back to work and was classified as a new employee and thereby lost his seniority. It therefore arose after the expiration of the 40-day period during which his grievance could be processed under section 12(b) of the strike settlement agreement.

Section 1450 of the New York Civil Practice Act is substantially the same as section 1282 of our Code of Civil Procedure. The courts of that state have repeatedly held that on motions to stay or to compel arbitration the only issues which may be raised are whether an agreement to arbitrate was made and whether one of the parties has refused arbitration; that every other issue, whether legal or factual, must be left exclusively for determination by the arbitrators. Lipman v. Haeuser Shellac Co., 289 N.Y. 76, 43 N.E.2d 817, 819, 142 A.L.R. 1088; Building Service Emp. Intern. Union v. Westchester Country Club, ---- Misc. ----, 94 N.Y.S.2d 642, 643; Application of Swift & Co., Sup., 76 N.Y.S.2d 881, 883; Mencher v. B. & S. Abeles & Kahn, 274 App.Div. 585, 84 N.Y.S.2d 718, 723.

In the Lipman case, supra, the contract contained a clause that 'Any and all controversies in connection with, and/or arising out of, this contract shall be exclusively settled by arbitration * * *.' [289 N.Y. 76, 43 N.E.2d 818, 142 A.L.R. 1088.] The court stated that while it had no power to grant a motion to compel arbitration unless the subject matter is comprised within the agreement to arbitrate, the agreement must be considered in the light of the broad language used in the arbitration statute which seems to imply that all the acts of the parties subsequent to the making of the contract which raise issues of fact or law lie exclusively within the jurisdiction of...