University of San Francisco Faculty Assn. v. University of San Francisco

• Decision Date: 13 April 1983
• Docket Number: No. A017092,A017092
• Court: California Court of Appeals Court of Appeals
• Parties: , 115 L.R.R.M. (BNA) 2228 UNIVERSITY OF SAN FRANCISCO FACULTY ASSOCIATION, Plaintiff and Appellant, v. UNIVERSITY OF SAN FRANCISCO, Defendant and Respondent.

Page 346

191 Cal.Rptr. 346

142 Cal.App.3d 942, 115 L.R.R.M. (BNA) 2228

UNIVERSITY OF SAN FRANCISCO FACULTY ASSOCIATION, Plaintiff and Appellant, v. UNIVERSITY OF SAN FRANCISCO, Defendant and Respondent.

No. A017092.

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

April 13, 1983.

Victor J. Van Bourg, Vincent A. Harrington, Jr., Van Bourg, Allen, Weinberg & Roger, San Francisco, for plaintiff and appellant.

Littler, Mendelson, Fastiff & Tichy, Garry G. Mathiason, William F. Terheyden, San Francisco, for defendant and respondent.

SIMS, ^* Associate Justice.

Petitioner, a faculty association, has appealed from that part of a judgment, entered in proceedings in which it sought confirmation of an arbitration award, denying it relief in respect to one of five points set forth in the award. It contends that the trial court erred in upholding the respondent University's claim that the arbitrator exceeded his authority in making an award relating to the "Supplemental Pension Plan," as he did in the fifth point of his award.

Admittedly the Association is a labor organization within the meaning of the National Labor Relations Act of 1947 as amended, and has been certified by the National Labor Relations Board as the exclusive bargaining representative of non-law faculty members of the University, and the University is an employer within the meaning of that act. ¹ It is also admitted that the collective bargaining agreement, a copy of which is attached to the petition, was entered into on August 30, 1977 by the Association and the University, and that on or about June 7, 1979, the parties entered into an additional agreement, a copy of which is also attached to the petition. The University admitted that the award, a copy of which is attached to the petition and which is the subject of this action, was set forth by the arbitrator on November 20, 1981, in advance of a full opinion. It denied, however, the Association's allegations concerning its conclusions concerning the legal effect of the earlier agreements, the manner in which the arbitration was submitted, and the ability and the willingness of the University to comply with the award.

The University affirmatively alleged that it was in the process of implementing the first four points of the arbitrator's award; that the arbitrator had no authority to make an award concerning the "Supplemental Pension Plan" as that matter was merely a permissive subject of bargaining under the National Labor Relations Act; that the arbitrator exceeded his authority in that point of his award; and that the petition failed to state facts sufficient to constitute a cause of action. The University prayed that the court vacate the award, or at least the fifth point contained therein.

The matter was submitted to the superior court on the pleadings and declarations, setting forth what the parties apparently believed were salient portions of the record before the arbitrator as they related to his authority, and points and authorities submitted by each party. The court gave partial judgment as prayed for by the University and this appeal ensued.

We hold that the failure of the Association to request findings of facts and conclusions of law does not preclude review of that judgment of the trial court; that the question of whether the University's refusal to bargain with respect to the Supplemental Pension Plan benefits would be an unfair labor practice is not relevant to the decision of this case; that the parties agreed to negotiate, and arbitrate, if necessary, with respect to those benefits; and that the trial court erred in vacating that portion of the award modifying those benefits.

The judgment must be reversed.

I

Preliminarily we reject the University's contention that, in the absence of findings of fact, the judgment must be affirmed because it must be presumed that the trial court found in favor of the respondent on every material issue. Code of Civil Procedure section 1291 requires the court to make findings of fact and conclusions of law whenever a judgment is made under the provisions of the code governing arbitration. (Code Civ.Proc. § 1280 et seq.) That section is interpreted in the light of Code of Civil Procedure section 632 and rule 232 of California rules of Court. The Association failed to request such findings of fact and conclusions of law within 10 days after the trial court's notice of intended decision. It, therefore, is deemed to have waived any right to the same. (Arrieta v. Paine, Webber, Jackson & Curtis, Inc. (1976) 59 Cal.App.3d 322, 330-331, 130 Cal.Rptr. 534; see also Painters Dist. Council No. 33 v. Moen (1982) 128 Cal.App.3d 1032, 1042, 181 Cal.Rptr. 17; Golde v. Fox (1979) 98 Cal.App.3d 167, 173-174, 159 Cal.Rptr. 864; Homestead Supplies, Inc. v. Executive Life Ins. Co. (1978) 81 Cal.App.3d 978, 984, 147 Cal.Rptr. 22; Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 861, 137 Cal.Rptr. 528; Hall v. Bureau of Employment Agencies (1976) 64 Cal.App.3d 482, 496, 138 Cal.Rptr. 725, cert. den. 431 U.S. 920, 97 S.Ct. 2187, 53 L.Ed.2d 231; Philbrick v. Huff (1976) 60 Cal.App.3d 633, 650, 131 Cal.Rptr. 733; Small v. Smith (1971) 16 Cal.App.3d 450, 455, 94 Cal.Rptr. 136.)

The University relies on the authorities last cited for the proposition that the appellate court, in the absence of findings, will not weigh the evidence to determine what is true and what is not, but will assume that the trial court found every fact essential to support the judgment. It will search the record for the purpose only of determining whether there is substantial evidence supporting the judgment, and will resolve all doubts in favor of the judgment. With the exception of one inference that the University requests we draw, as is discussed below (Part III-A) there is no conflict in the facts in this case. The evidence consists of the August 30, 1977 collective bargaining agreement, the June 30, 1979 settlement agreement, and the salient portions of the record before the arbitrator.

It is well settled that findings are only required in arbitration matters upon a trial of questions of fact. Where the issue is one of law only, findings of fact are not required. (Painters Dist. Council No. 33 v. Moen, supra, 128 Cal.App.3d 1032, 1042, 181 Cal.Rptr. 17; Homestead Supplies, Inc. v. Executive Life Ins. Co., supra, 81 Cal.App.3d 978, 984, 147 Cal.Rptr. 22; Johnston v. Security Ins. Co. (1970) 6 Cal.App.3d 839, 844, 86 Cal.Rptr. 133; Allstate Ins. Co. v Orlando (1968) 262 Cal.App.2d 858, 867, 69 Cal.Rptr. 702; and see Charlton Co. v. Aerfab Corp. (1976) 56 Cal.App.3d 808, 813, 128 Cal.Rptr. 878.)

Here the principal issue is whether the parties agreed to arbitrate, among other issues, the provisions of the original agreement covering the Supplemental Pension Plan benefits. As has been stated, "In resolving this issue, we are guided by the rule that, contractual arbitration being a favored method of resolving disputes, every intendment will be indulged to give effect to such proceedings. [Citations.] And, since the matter is one of contract, the parties to an arbitration agreement are free to delineate the governing procedure; judicial review is thus strictly limited to a determination of whether the party resisting arbitration in fact agreed to arbitrate. [Citations.]" (Painters Dist. Council No. 33 v. Moen, supra, 128 Cal.App.3d 1032, 1037, 181 Cal.Rptr. 17.)

In reviewing the trial court's interpretation of the written instruments and the uncontradicted statements by the parties at the arbitration hearing, this court is not bound by the trial court's ruling but must give the contract its own interpretation. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839; Davies Machinery Co. v. Pine Mountain Club, Inc. (1974) 39 Cal.App.3d 18, 23, 113 Cal.Rptr. 784; and see 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, §§ 257-260, pp. 4248-4251.)

II

Respondent before the arbitrator, before the trial court, and now before this court, urges that the matter is controlled by "the landmark case" of Allied Chemical v. Pittsburgh Glass Co. (1971) 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341. There the United States Supreme Court held that retired workers are not "employees" whose ongoing benefits are embraced by the bargaining obligations of section 8(a)(5) of the National Labor Relations Act. The court concluded that an employer's unilateral modification of the retirement benefits, without bargaining with the union, representing working employees, which previously had secured those benefits, was not an unfair labor practice. (Id., at pp. 159-160, 92 S.Ct. at pp. 387-88.) The court distinguished between mandatory and permissive terms of bargaining and stated, "By once bargaining and agreeing on a permissive subject, the parties, naturally, do not make the subject a mandatory topic of future bargaining. When a proposed modification is to a permissive term, therefore, the purpose of facilitating accord on the proposal is not at all in point, since the parties are not required under the statute to bargain with respect to it." (Id., at pp. 187-188, 92 S.Ct. at pp. 401-02; see also Westinghouse Electric Corp. (1972) 195 N.L.R.B. 934; and Union Carbide Corp. (1972) 196 N.L.R.B. 22.)

We fail to see the relevancy of that holding to this case. The Association does not claim that the University was required by the National Labor Relations Act to bargain with respect to the rights under the Supplemental Pension Plan. It claims that under the 1979 agreement, the University agreed to reopen and negotiate on an annual basis the economic matters embraced in article 20 which includes that plan; and, further, that the University expressly agreed that the mediator-arbitrator should determine whether or not changes, durations and modifications in that plan were within the scope of the arbitration submitted to him.

There is nothing in the Allied...