Southside Theatres v. Moving Picture Projectionists, Local 150--I.A.T.S.E.

• Decision Date: 25 March 1955
• Citation: 281 P.2d 31,131 Cal.App.2d 798
• Court: California Court of Appeals Court of Appeals
• Parties: , 27 Lab.Cas. P 69,084 Arbitration between SOUTHSIDE THEATRES, Inc. and MOVING PICTURE PROJECTIONISTS, LOCAL 150--I.A.T.S.E. SOUTHSIDE THEATRES, Inc., Applicant-Respondent, v. MOVING PICTURE PROJECTIONISTS, LOCAL 150, I.A.T.S.E., A. F. of L., an unincorporated association, Defendant-Appellant. Civ. 20480.

Page 31

281 P.2d 31

131 Cal.App.2d 798, 27 Lab.Cas. P 69,084

Arbitration between SOUTHSIDE THEATRES, Inc. and MOVING PICTURE PROJECTIONISTS, LOCAL 150--I.A.T.S.E SOUTHSIDE THEATRES, Inc., Applicant-Respondent, v. MOVING PICTURE PROJECTIONISTS, LOCAL 150, I.A.T.S.E., A. F. of L., an unincorporated association, Defendant-Appellant.

Civ. 20480.

District Court of Appeal, Second District, Division 3, California.

March 25, 1955.

Gilbert, Nissen & Irvin, Los Angeles, for appellant.

William R. Walsh, Los Angeles, for respondent.

SHINN, Presiding Justice.

This is an appeal by the Moving Picture Projectionists Local 150 I.A.T.S.E., A. F. of L. (hereinafter referred to as the Union) from a judgment vacating an award of arbitrators and from minute orders which denied appellant's motion for reconsideration of the judgment. The respondent is Southside Theatres, Inc. (hereinafter referred to as Southside) which owns and operates several motion picture theatres, the operation of three of which for the projection of three-dimensional pictures was and is the subject of the present controversy.

On or about October 1, 1952, contracts (hereinafter referred to in the singular) were entered into between Southside and the Union covering the wages, hours and working conditions of projectionists. By its terms the agreement was made retroactive to July 1, 1951. Prior to October 1, 1952, Southside was exhibiting only 'flat' pictures. It is stated by the Union and not questioned by Southside that three-dimensional or '3-D' pictures were first shown in the jurisdiction of the Local November 25, 1952. Southside commenced exhibiting 3-D pictures on or about June 2, 1953. A controversy arose whether Southside could be required to employ an extra projectionist. The Union's brief says: 'The dispute continued for some weeks. It was contended by the Union that the projection of 3-D pictures required the employment of an extra projectionist, while on the other hand Southside contended that the collective bargaining agreement between the parties did not so require when 3-D pictures were exhibited without the use of additional sound tracks, and that the only times the Union could demand an extra projectionist was under circumstances provided for in clauses 11 and 12 of the collective bargaining agreement.'

The contract provided in paragraph 38 for arbitration in accordance with the established procedure of the American Arbitration Association. ¹ On or about July 20, 1953, Southside made a demand upon the Union for arbitration in accordance with paragraph 38. A copy of the demand was filed with the American Arbitration Association. The demand stated that the Union had required Southside to employ an additional projectionist for 3-D pictures during June and July 1953 at a cost to Southside of $548.17 in additional wages. The relief sought through arbitration was: '(a) a declaration that the employer is not required under the terms of said contract to employ an extra projectionist when exhibiting a 3-dimension picture without additional sound tracks; (b) an order requiring Local #150 to cease and desist from requiring the employment of an extra projectionist * * *; (c) reimbursement to the employer from Local #150 for * * * sums required to be paid as wages * * *'. Each of the parties named an arbitrator and when those selected were unable to agree upon a third to act as chairman, the arbitration association, when appealed to, named a chairman.

At the commencement of the hearing before the panel December 12, 1953, the Union made a motion to dismiss the demand for arbitration upon the ground that the projection of 3-D pictures was not covered by the collective bargaining agreement of the parties nor within their contemplation at the time the agreement was entered into. From this premise the Union contended that the dispute was not one 'arising from the contract.' Southside resisted the motion, contending that it went to the merits of the controversy, the dispute being whether the contract covered all the operations of the theatres, including operations that might be undertaken thereafter, and therefore defined the respective rights and duties of the parties under the conditions created by the advent of 3-D pictures.

The Union's motion was based in part upon affidavits, one by the business manager of the projectionists union which averred that in the negotiations leading up to the contract no mention was made of 3-D pictures nor of anything but flat pictures. The other affidavit of the chairman of the negotiating committee of the Southern California Theatre Owners Association was to the effect that in the negotiation of identical contracts on behalf of many other theatres covering the period February 1952 to January 1954 no mention was made of 3-D pictures. Thus the Union submitted with its motion extrinsic evidence respecting the construction that should be given the contract.

By its motion the Union took the position, which it has since maintained, that as a matter of fact the contract did not cover projection of 3-D pictures, and hence there was no arbitrable question whether it covered 3-D pictures--an obvious non sequitur.

It is clear that the controversy arose out of the contract. The basic dispute was over the scope of the contract. If it covered the projection of 3-D pictures the provisions respecting the employment of additional projectionists were controlling. If it did not cover the exhibition of 3-D pictures that matter was subject to settlement through a new or supplemental agreement. The basic question was submitted to the arbitrators by means of the Union's motion to dismiss and Southside's opposition. The arbitrators were required to decide the question and by their award to determine the scope of the contract. That was the initial decision the...