Thriftimart, Inc. v. Superior Court

THE COURT.

This is a petition by Thriftimart, Inc., for writ of mandate to compel dismissal of a pending action, or in the alternative, a writ of prohibition to stay further proceedings therein pending an appeal.

Pursuant to a submission to arbitration of Thriftimart, Inc., (hereinafter referred to as Thriftimart) and Retail Clerks Union, Local 770 (hereinafter referred to as Union), the arbitrator, on August 7, 1961, determined the following question in the affirmative: “Does the Collective Bargaining Agreement between the Employer and the Union, by its terms, apply to and cover employees of Customers Finance Co., dba More, employed in the appropriate classifications covered by the said contract and within the territorial area of the Union, because of its acquisition by Thriftimart?”

On October 2, 1961, the superior court, in a proceeding entitled “In the Matter of Arbitration between Thriftimart, Inc., and Retail Clerks Union, Local 770, AFL-CIO” (case No. 778076), entered judgment upon the granting of an order confirming the award of the arbitrator.

On November 16, 1961, a complaint for specific performance and damages against Thriftimart was filed by Joseph T. DeSilva, individually and in a representative capacity for the Union (ease No. 784008). The complaint alleges the court confirmation of the arbitration award. It then alleges that Thriftimart “has failed and refused to perform the terms and conditions of said agreement, on its part to be performed, and has failed and refused to apply the said agreement to the employees of Customers Finance, Inc., d.b.a. More. ...” It is alleged in a second cause of action, as a basis for damages by reason of the violation of the agreement by Thriftimart as

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above set forth, that certain employees are being deprived of wages and other compensation in accordance with the terms of the agreement.

Thriftimart, in its answer, pleaded that the judgment in the arbitration matter is not final in that an appeal therefrom has been taken to the Supreme Court by it and by Customers Finance Co., intervener in the proceeding. Petitioner claims chat the specific performance action is premature and, if not dismissed, should be abated pending the determination of the appeal. Union, however, asserts that this is not an action upon the judgment and that, because the arbitration award was a declaration of existing contract rights only, and in seeking confirmation of the award the Union did not ask for specific performance, its present action is an entirely different cause of action.