National Marble Co. v. Bricklayers & Allied Craftsmen

• Decision Date: 26 August 1986
• Citation: 184 Cal.App.3d 1057,229 Cal.Rptr. 653
• Court: California Court of Appeals Court of Appeals
• Parties: , 107 Lab.Cas. P 10,085 NATIONAL MARBLE COMPANY OF CALIFORNIA, INC., Plaintiff and Appellant, v. BRICKLAYERS AND ALLIED CRAFTSMEN, LOCAL NO. 2, et al., Defendants and Respondents. B009597.

Page 653

229 Cal.Rptr. 653

184 Cal.App.3d 1057, 107 Lab.Cas. P 10,085

NATIONAL MARBLE COMPANY OF CALIFORNIA, INC., Plaintiff and Appellant, v. BRICKLAYERS AND ALLIED CRAFTSMEN, LOCAL NO. 2, et al., Defendants and Respondents.

B009597.

Court of Appeal, Second District, Division 7, California.

Aug. 26, 1986.

Andrade & Hargan and Mark C. Hargan, Newport Beach, for plaintiff and appellant.

Karp & Mooney, Gregory Mooney and Shelley Kaufman, Los Angeles, for defendants and respondents.

LILLIE, Presiding Justice.

National Marble Company of California, Inc. (National) appeals from an order denying its petition to vacate an arbitration award and granting a request for confirmation of the award. ¹

FACTUAL AND PROCEDURAL BACKGROUND

At all times herein mentioned, National was engaged in the manufacture of synthetic marble products, fiberglass molds and tooling. Occasionally National was called upon to install a product it manufactures; on those occasions the product was installed for National's customer by Anthony Chiechi, who was employed by National as an installer. In 1972 Chiechi became a member of Bricklayers and Allied Craftsmen Local No. 2 (Union) and remained a member at all times thereafter. Prior to 1976 National operated as a nonunion company, not having entered into a collective bargaining agreement with any union. On September 20, 1976, at the urging of a business manager of the Union, National's president signed, and thereby bound National to, a collective bargaining agreement between the Executive Council of the California Conference of Mason Contractor Associations, Inc. (CCMCA) and the Union.

The agreement was for the term July 2, 1976--April 30, 1978, and continued for the terms of any subsequent agreements between the CCMCA and the Union. It was further provided that the agreement could be terminated by either the Union or National by the giving of written notice of intention to terminate "given to the other party at least sixty (60) days prior to the termination date of this Agreement or sixty (60) days prior to the termination date of any subsequent Agreements entered into between the aforesaid CCMCA and the Union." Subsequent to the agreement signed by National, the CCMCA and the Union entered into three consecutive agreements for the following terms, respectively: May 1, 1978 to April 30, 1980; June 4, 1980 to April 30, 1982; and May 7, 1982 to April 30, 1984.

Both the agreement executed by National and the latest agreement contained a provision (art. X) obligating National to pay contributions each month to the Brick Masons Trust Funds (health and welfare trust fund, pension trust fund, apprenticeship and training trust fund, and vacation trust fund) based on the number of hours worked by its union employee. Also included in both agreements was a provision (art. III) whereby a board, consisting of members designated by the CCMCA and the Union, is given authority to enforce the agreement; after the board has given an accused contract violator the opportunity to appear before it, the board may find a violation and assess damages against the violator.

By letter dated February 23, 1983, National advised the Union of its intention to terminate the agreement "in accordance with the termination provisions of said agreement, which by its terms terminates on April 30, 1983." Thereafter, as required by the agreement, National continued to make contributions to the trust funds, on behalf of its union employee Chiechi, for each month to and including August 1983. On November 28, 1983, the board cited National to appear before it on December 6 to answer charges based on National's failure to pay contributions to the trust funds after August 1983. On December 6, 1983, National wrote to the board informing it that "[b]y way of this letter" National was making a special appearance to contest the board's jurisdiction to hear the matter on National petitioned the superior court for an order vacating the award (Code Civ.Proc., § 1285 et seq.) on the ground the board's authority, derived from the collective bargaining agreement, expired with the termination of the agreement on April 30, 1983, almost eight months before the date of the board's determination and award. The petition further alleged that National's agreement with the Union was a prehire agreement under section 8(f) of the Labor Management Relations Act (LMRA) (29 U.S.C. § 158(f)); accordingly, regardless of its termination provisions, National was entitled to repudiate the agreement at any time because the Union never obtained majority status among National's employees. In their respective responses to the petition, the Union and the Brick Masons Trust Funds requested that the award be confirmed. (Code Civ.Proc., § 1285.2.) All parties requested an award of attorney fees pursuant to section 301 of the LMRA (29 U.S.C. § 185).

the ground that the agreement had terminated April 30, 1983. On December 6, 1983, the board determined that National was in violation of article X of the agreement and ordered that it pay contributions and liquidated damages to the trust funds for the months of September and October 1983.

The petition to vacate the award was denied, the request to confirm the award was granted, and Union and the Trust Funds were awarded the sum of $125, in the aggregate, as attorney fees. Judgment was entered confirming the award. National appeals from the judgment. (See fn. 1.)

DISCUSSION

I JURISDICTION OF BOARD

Relying on the rule that the existence of an underlying agreement to arbitrate is to be decided by a court rather than an arbitrator (John Wiley & Sons, Inc. v. Livingston (1964) 376 U.S. 543, 546-547, 84 S.Ct. 909, 912-913, 11 L.Ed.2d 898, 902-903; Northern Cal. Dist. Council of Hod Carriers v. Pennsylvania Pipeline, Inc. (1980) 103 Cal.App.3d 163, 170, 162 Cal.Rptr. 851), appellant argues, as it did below, that the award must be vacated because respondents failed to bring a court action to compel arbitration which necessarily would have decided the issue of arbitrability. The contention lacks merit.

The statutory remedy to compel arbitration embodied in Code of Civil Procedure section 1281.2 ² was designed to afford a remedy where the parties did not provide for the contingency of refusal to comply with a request to arbitrate. (Brink v. Allegro Builders, Inc. (1962) 58 Cal.2d 577, 579-580, 25 Cal.Rptr. 556, 375 P.2d 436; King v. Larsen Realty, Inc. (1981) 121 Cal.App.3d 349, 354, 175 Cal.Rptr. 226.) "A written agreement to submit a controversy to arbitration is valid and enforceable (Code Civ.Proc., § 1281) and, if the arbitration clause is self-executing, a prior court order to arbitrate under section 1281.2 is not necessary. [Citation.]" (Mit i Jones & Templeton, Inc. v. Chronis (1977) 72 Cal.App.3d 596, 600, 140 Cal.Rptr. 160.) An arbitration agreement is self-executing where it "permits and provides for arbitration under rules therein incorporated." (Id., at p. 601, 140 Cal.Rptr. 160.) Article III of the collective bargaining agreement in the present case provides in pertinent part: "In order to correctly enforce this Agreement an Area Wide Board shall be established for said purpose.... [p] The Local Unions or the CCMCA may present to this Area Wide Board in writing, all facts concerning a possible violation of this Agreement.... After the Area Wide Board has heard testimony of the accused violator or has provided Where an arbitration proceeds under a self-executing agreement without a preliminary court order, the objecting party is required to participate in the proceeding and then raise his objections by petition to vacate the award (Code Civ.Proc., § 1286.2) or by opposition to a petition to confirm. (See Mitchum, Jones & Templeton, Inc. v. Chronis, supra, 72 Cal.App.3d 596, 600-601, 140 Cal.Rptr. 160; Titan Enterprises, Inc. v. Armo Construction, Inc. (1973) 32 Cal.App.3d 828, 831-832, 108 Cal.Rptr. 456.) In its petition to vacate the award, appellant alleged that the board lacked jurisdiction to render the award because the agreement, which gave the board the power to act, was terminated before appellant's violations thereof occurred and the award was rendered. By its judgment confirming the award, the trial court resolved that issue against appellant.

an opportunity for the accused violator to appear before the Area Wide Board or answer the alleged charges in writing, [and] the Area Wide Board has agreed that the accused violator has violated this Agreement, the Area Wide Board may assess damages against the accused violator...." It is further provided that any action or decision of the board is final and binding on all parties covered by the agreement. While article III does not incorporate rules setting forth a scheme for arbitration (compare, e.g., King v. Larsen Realty, Inc., supra, 121 Cal.App.3d 349, 355, 175 Cal.Rptr. 226; Kustom Kraft Homes v. Leivenstein (1971) 14 Cal.App.3d 805, 811, 92 Cal.Rptr. 650), its provisions are self-executing in the more fundamental sense that they set forth, without the necessity of resort to extrinsic material, the procedure to be followed by the board in deciding contractual disputes. (See Brink v. Allegro Builders, Inc., supra, 58 Cal.2d 577, 578-579, 25 Cal.Rptr. 556, 375 P.2d 436.)

II CONFIRMATION OF AWARD

The basis of the trial court's ruling, set forth in a minute order, was as follows: "(1) Petitioner's own papers show that there was only one employee to be covered by the agreement. It is shown that he was a member of the union. Accordingly, there appears to be 100% membership in the only conceivable unit and it is doubtful if this is a pre-hire agreement, terminable for that reason upon repudiation. [p] (2) The February 1983 termination letter was not effective until April 30, 1984, in light of the showing concerning Mason's Conference agreements with the union." The court made a formal finding that the agreement did not expire until April 30, 1984, and ...