Ulene v. Murray Millman of Cal., Inc.

• Decision Date: 30 November 1959
• Citation: 346 P.2d 494,175 Cal.App.2d 655
• Court: California Court of Appeals Court of Appeals
• Parties: John ULENE, Individually, and as Manager member and representative of the Los Angeles Dress and Sportswear Joint Board, affiliated with the International Ladies Garment Workers' Union, a voluntary, unincorporated association, and for and on behalf of each and all of the members and officers thereof, Petitioner and Respondent, v. MURRAY MILLMAN OF CALIFORNIA, INC., a California corporation, Defendant and Appellant. Civ. 24073.

Page 494

346 P.2d 494

175 Cal.App.2d 655

John ULENE, Individually, and as Manager member and representative of the Los Angeles Dress and Sportswear Joint Board, affiliated with the International Ladies Garment Workers' Union, a voluntary, unincorporated association, and for and on behalf of each and all of the members and officers thereof, Petitioner and Respondent, v. MURRAY MILLMAN OF CALIFORNIA, INC., a California corporation, Defendant and Appellant.

Civ. 24073.

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

Nov. 30, 1959.

Jerome A. Reiner, Los Angeles, for appellant.

Basil Feinberg, Los Angeles, for respondent.

HERNDON, Justice.

This is an appeal from an order confirming an arbitrator's award. The question presented is whether the award should be vacated because (1) it was beyond the scope of the arbitrator's authority, (2) it was imperfectly executed so as not to be mutual, final and definite, or (3) it was the product of the arbitrator's misconduct and personal interest.

The facts are as follows: Appellant, hereinafter referred to as the 'Company', is a manufacturer of ladies' dresses. On February 15, 1957, it entered into a collective bargaining agreement with respondent, the Los Angeles Dress and Sportswear Joint Board of the International Ladies Garment Workers' Union, hereinafter referred to as the 'Union'. This agreement will be in force until December 31, 1959.

There is in existence in Los Angeles an association of manufacturers of ladies' sportswear called the California Dress & Sportswear Association, Inc., hereinafter referred to as the 'Association'. The Association is a non-profit corporation which bargains on behalf of its member employers with the Union. The Association and the Union had a collective bargaining agreement which was to run until December 31, 1959. In or about the fall of 1958, the Association and the Union entered into an agreement to extend this bargaining agreement for two years (until December 31, 1961). The extension agreement provided for an 18-cent an hour wage increase to the Association's employees, payable 6 cents per hour on January 1, 1959, January 1, 1960, and January 1, 1961. It also provided for a severance pay fund financed by the employers and various other changes. The Company was not, and is not, a member of the Association, carries on independent collective bargaining with the Union and apparently was unwilling to enter into an extension agreement similar to the one negotiated between the Union and the Association.

Among the provisions of the agreement between the Company and the Union is Article XL, which provides as follows:

'Should the Revised Cost of Living Index for Los Angeles as maintained by the United States Department of Labor, Bureau of Labor Statistics, rise three (3) points or more above the Index for June 30, 1956, the Union may ask to readjust the minimum wage scales herein and for a cost-of-living wage increase. A similar request may be made whenever there is a subsequent rise of three (3) points. In no event shall any request be made before September 24, 1957.

'A failure of the parties to agree on any such request within fifteen (15) days of its being made shall be an arbitrable dispute hereunder and shall be referred to arbitration in the manner herein provided.'

Article XXXIX sets forth the arbitration procedures to be followed. It provides, inter alia, for an 'Impartial Chairman' whose identity and tenure shall be the same as that agreed upon by the Union and the Association; that he shall hear all 'disputes' which cannot be otherwise disposed of; that he 'may interpret this Agreement, but shall have no authority to pass any rules, regulations, policies, or bylaws of the Union, nor authority to alter or modify this Agreement or any provision hereof'; that he 'shall have the power to make and enter any order, ruling, or decree which in his discretion appears to be just and reasonable; such order, ruling or decree shall not, however, be in conflict with the express provisions of this Agreement'; that his 'decision shall be deemed and accepted as final and binding upon all parties affected by such decisions'; that his powers 'be deemed to include * * * such other and additional powers as may be granted to Arbiters, pursuant to the provisions of Section 1280 through 1292, inclusive, of the Code of Civil Procedure of the State of California'; and that a judgment of the Superior Court of Los Angeles County might be rendered upon any of the arbitrator's decisions or awards.

Pursuant to Article XL, the Union requested that the minimum wage scales be readjusted and that the Company grant its employees a cost of living wage increase. The Union and the Company were unable to agree on this request, an arbitrable dispute thereby arose and the Union invoked the arbitration machinery of the agreement. The issues as to whether or not the wage scales should be readjusted and a cost of living wage increase should be granted and the amounts of such adjustment and increase, if any, were submitted to the arbitrator in the manner provided for by the agreement. On December 8, 1958, the arbitrator made the following award:

'(1) Effective January 1, 1959, the wages of all employees covered by the present collective bargaining agreement shall be increased by 10 cents per hour;

'(2) Effective January 1, 1959, the minimum wage rates set forth in the collective bargaining agreement shall each be increased by 10 cents per hour;

'(3) The Union is hereby directed to permit the firm of Murray Millman of California, Inc., at any time prior to December 31, 1958, by written declaration and agreement, to become a party to the extension agreement [between the Union and the Association] in lieu of the foregoing award.'

On motion by the Union, the Superior Court confirmed the arbitrator's award and denied the Company's motion to vacate said award. Judgment was entered and the Company appeals.

The Company does not attack parts (1) and (2) of the arbitrator's award, granting the 10 cents per hour increases. Indeed, it clearly could not do so, since by the terms of the agreement the arbitrator's decision is 'final and binding'. In addition, it is well settled that the Superior Court, on motion to confirm, and this court on appeal, have no power to review the on appeal, have no power to review the sufficiency of the evidence to sustain the award. Crofoot v. Blair Holdings Corp. 119 Cal.App.2d 156, 184, 260 P.2d 156, passim; Flores v. Barman, 130 Cal.App.2d 282, 286, 279 P.2d 81; Pacific Vegetable Oil Corp. v. C. S. T. Ltd., 29 Cal.2d 228, 233, 174 P.2d 441; Lundblade v. Continental Insurance Co., D.C.N.D.Cal., 74 F.Supp. 795, 797; Griffith Co. v. San Diego College for Women, 45 Cal.2d 501, 510, 289 P.2d 476, 47 A.L.R.2d 1349; Los Angeles Local Joint Executive Board, etc. v. Stan's Drive-Ins, Inc., 136 Cal.App.2d 89, 93, 288 P.2d 286; Gerard v. Salter, 146 Cal.App.2d 840, 846, 304 P.2d 237; O'Malley v. Petroleum Maintenance Co., 48 Cal.2d 107, 111, 308 P.2d 9; Sampson Motors, Inc. v. Roland, 121 Cal.App.2d 491, 494, 263 P.2d 445; see also Feldman, Arbitration Law in California, 30 So.Cal.L.Rev. 375, 468, and cases collected in n. 406 therein; 5 Cal.Jur.2d 110-111, 116, 120, 121, Arbitration and Award §§ 39, 47, 52, 53, and cases cited therein.

The Company's contention is that the whole award must be vacated on the ground that in part (3) thereof the arbitrator acted in excess of his powers or so imperfectly exercised them that a mutual, final and definite award upon the subject matter submitted was not made, within the meaning of Code of Civil Procedure, section 1288 (d), or that in making the award in part (3) the arbitrator was guilty of prejudicial misconduct under section 1288(c). It is evident that the Company's contentions are unsound and that the confirmation of the arbitrator's award must be affirmed.

Although section 1280 of the Code of Civil Procedure provides that the provisions of the title on arbitration shall not apply to 'contracts pertaining to labor', it has been held that collective bargaining agreements are not 'contracts pertaining to labor' within the intendment of that statute. Levy v. Superior Court, 15 Cal.2d 692, 703-705, 104 P.2d 770, 129 A.L.R. 956; and see Feldman, op. cit. 400-405. Therefore, the provisions of Code of Civil Procedure, sections 1280 through 1293 are applicable in the instant case.

Every reasonable intendment will be indulged in by the courts to give effect to arbitration proceedings. Popcorn Equipment Co. v. Page, 92 Cal.App.2d 448, 451, 207 P.2d 647; Crofoot v. Blair Holdings Corp., supra, 119 Cal.App.2d 156, 185, 260 P.2d 156; Drake v. Stein, 116 Cal.App.2d 779, 785, 254 P.2d 613; Straus v. North Hollywood Hospital, Inc., 150 Cal.App.2d 306, 310, 312, 309 P.2d 541; Sampson Motors, Inc. v. Roland, supra, 121 Cal.App.2d 491, 494, 263 P.2d 445; Griffith Co. v. San Diego College for Women, supra, 45 Cal.2d 501, 516, 289 P.2d 476, 47 A.L.R.2d 1349; Downer Corp. v. Union Paving Co., 146 Cal.App.2d 708, 716, 304 P.2d 756; see also Feldman, op. cit. 462, 469-470; 5 Cal.Jur.2d 110, Arbitration and Award § 39. Thus, the burden is on the party attacking the award to affirmatively establish the existence of error and the fact that it was prjudicial. Popcorn Equipment Co. v. Page, supra; Crofoot v. Blair Holdings Corp., supra; Sampson Motors, Inc. v. Roland, supra; Griffith Co. v. San Diego College for Women, supra; Downer Corp. v. Union Paving Co., supra. Since, in general, the merits of the controversy are not subject to judicial review, (Crofoot v. Blair Holdings Corp., supra; Flores v. Barman, supra, 130 Cal.App.2d 282, 286, 174 P.2d 441; Pacific Vegetable Oil Corp. v. C. S. T. Ltd., supra, 29 Cal.2d 228, 233, 174 P.2d 441; Griffith Co. v. San Diego College for Women, supra); '* * * in the absence of some limiting clause in the arbitration agreement, the merits of the award, either on...