Local 63, Textile Workers Union of America v. Cheney Bros.

Inglis, C. J.

The judicial phase of the controversy between the parties to this appeal began on January 15, 1953, when the plaintiff, acting under § 8161 (d) of the General Statutes, applied to the Superior Court to vacate an arbitration award rendered against it and in favor of the defendant. The latter filed an answer and a cross application in which correction and confirmation of the award, as corrected, were sought. The court decided that the award ought to be vacated. From the judgment entered thereon the defendant has appealed.

*609The finding, which is not subject to correction, recites the following facts: For many years, the defendant, hereinafter called the company, has operated a textile plant in Manchester and, since 1937, has recognized the plaintiff, hereinafter called the union, as the bargaining representative of its production and maintenance employees. Long-term agreements affecting the labor relations of the parties were successively concluded by them as of March 30, 1942, August 1, 1947, and August 1, 1952. All three agreements contained a provision permitting either party at any time to reopen the question of wages and to seek a revision of the previously established rates. It was further provided that, if the union objected to any request by the company for a reduction in wages, the differences between the parties were to be resolved by proceedings culminating, when necessary, in arbitration under the industrial arbitration rules of the American Arbitration Association.

On March 26, 1951, as a result of negotiations between the parties, the company gave a general wage increase to about 1600 employees. The increase did not affect about twenty engravers. The hourly rate employees, that is, those compensated on the basis of a definite amount of money for each hour worked, were now to receive a flat 9.75 cents an hour more. The rates of pay for all other employees except engravers were then computed so as to give them an increase comparable to the 9.75 cents per hour. Since the wages of pieceworkers were determined, not by the number of hours worked, but by the number of units produced during a given unit of time, the fixing of the many thousands of piece rates prevailing in the plant to conform to the increase of 9.75 cents in the hourly rate had to be done by intricate mathe*610matical computation. The upshot of the wage increase of March 26,1951, was as follows: (1) Hourly rate employees, totaling 850, were to receive 9.75 cents an hour more; (2) 20 engravers were to get no additional pay; (3) “base rates” for pieceworkers, totaling 750, were fixed at an amount which would produce an average increase of 8.1 cents an hour; (4) the “hiring rate”1 was increased 6 cents an hour and affected 10 employees; (5) the “minimum rate”1 was increased 5 cents an hour and affected 40 employees. The increases thus granted represented an estimated average of 9.75 cents per hour for all the employees affected. In actuality, many received more and many less than this average. As a result of the various computations, however, the over-all increase described as 9.75 cents per hour was considered to be approximated for all employees involved.

As of the date the wage increase became effective, the parties incorporated into their bargaining agreement a cost-of-living “escalator” clause. A 1 cent quarterly wage adjustment, up or down, was automatically to follow every change of 1.153 points in the consumer price index of the United States bureau of labor statistics, but no adjustment which would reduce the rates of pay below those which were effective on March 26,1951, was to be made through this process.

On September 17,1952, the company proposed (1) a wage reduction to offset the increase granted on March 26, 1951, and (2) a revision of the escalator *611clause. Both proposals were rejected. The company then asked the union to join in submitting the dispute to arbitration under the agreement, but the union refused to do so. On October 10, 1952, the company forwarded a written request for arbitration to the American Arbitration Association and sent a copy thereof to the union. The request was for the arbitration of two matters, expressed by the company in the following language:

“1. A direct wage decrease of 9 % cents per hour for all employees covered by the current agreement, to offset the wage increase which became effective on March 26, 1951.

“2. Revision of our cost of living formula (Section 9 of the current agreement) by providing for adjustment upon each change of 1.32 points in the applicable index instead of 1.153 points.”

In conformity with its rules, the American Arbitration Association selected an arbitrator who, on November 25 and 26, 1952, held hearings in which both the company and the union participated. At these hearings the arbitrator was not advised of the meaning of “hourly rates,” “base rates,” “piece rates,” “plant minimum rates” and “hiring minimum rates,” as those expressions were used by the company in its wage structure, nor was he told of the method by which the wage increase of March 26,1951, was computed and fixed for the various types of wage earners.

On December 28, 1952, the arbitrator made the following award:

“1. Beginning with the first payroll period which commences after December 31,1952, all hourly rates and base rates shall be reduced by 9.75 cents. Piece rates and plant hiring minimum rates shall be adjusted accordingly.

*612“2. Beginning with, the first payroll period which commences after December 31,1952, Section 9 of the collective bargaining agreement between the parties dated August 1, 1952 shall be modified so as to provide for a 1 cent cost-of-living adjustment for every 1.32 index points’ change in the U. S. Bureau of Labor Statistics Consumers’ Price Index for Moderate Income Families in Large Cities, Old Series. The February 1951 Index of 184.2 shall continue to be used as the starting point in calculating changes in the cost of living. The effect of this will be to reduce the Cost-Of-Living Allowance payable for the current quarter from 7 cents to 6 cents per hour.”

Although the rules of the arbitration permitted but did not require it, the arbitrator delivered with the award, and stapled to it, a twenty-two page opinion. As directed in the first paragraph of the award, a reduction of 9.75 cents an hour in all “base rates,” as that expression is used and applied in the company’s wage system, would result in an average decrease of substantially 11.7 cents per hour in the actual earnings of pieceworkers. This decrease would affect 750 employees. Certain other facts found by the court will be mentioned when the legal claims advanced by the parties are discussed.

The problems presented by this appeal readily group themselves into two main divisions, of which one deals exclusively with the first, and the other with the second, paragraph of the award. The court concluded that the former was void because it went beyond the submission and, in any event, because it was not a final and definite answer to the question to which it purported to respond.

Early in our judicial history we expressed the view that, since arbitration is designed to prevent litigation, it commands much favor from the law. *613Parmelee v. Allen, 32 Conn. 115, 116; see Mallory v. Town of Huntington, 64 Conn. 88, 95, 29 A. 245. Especially is it to be encouraged as a means of promoting tranquility and the prompt and equitable settlement of disputes in the field of labor relations. Colt’s Industrial Union v. Colt’s Mfg. Co., 137 Conn. 305, 309, 77 A.2d 301. It is true, however, that the submission should set forth the questions to be resolved in such a manner as to show clearly what disputes are to be arbitrated. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345. Clarity is important because the source of the arbitrator’s authority is found in the agreement of submission. “The charter of an arbitrator is the submission and no matter outside the submission may be included in the award. Palmer v. Green, 6 Conn. 14, 18; Hamlin v. Norwich, 40 Conn. 13, 23; Schoolnick v. Finman, 108 Conn. 478, 481, 144 A. 41; Sturges, Commercial Arbitrations & Awards, pp. 144, 229; Russell, Arbitration & Award (13th Ed.) pp. 201, 210, 211.” Pratt, Read & Co. v. United Furniture Workers, 136 Conn. 205, 208, 7 A.2d 120.

It necessarily follows that an award must conform to the submission. Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, 139 Conn. 591, 594, 96 A.2d 209; Continental Milling & Feed Co. v. Doughnut Corporation, 186 Md. 669, 677, 48 A.2d 447; Baldwin v. Moses, 319 Mass. 401, 402, 66 N.E.2d 24; 6 Williston, Contracts (Rev. Ed.) $1929. Ordinarily, an award which does not respond to the submission cannot be upheld. Blackstone Valley Gas & Electric Co. v. Rhode Island Power Transmission Co., 64 R.I. 204, 223, 12 A.2d 739; Pumphrey v. Pumphrey, 172 Md. 323, 325, 191 A. 235. It is void to the extent to which it is outside the submission. Matter of Marchant v. Mead-Morrison Mfg. Co., *614252 N.Y. 284, 301, 169 N.E. 386. To that extent the award must be vacated by the Superior Court upon proper application. General Statutes § 8161 (d).

On the other hand, if part of an award is within the submission and part of it is not, the former may be sustained and the latter rejected if the two can be separated without doing an injustice. Parmelee v. Allen, 32 Conn. 115, 116; Moore v. Luckess’ Next of Kin, 64 Va. 160, 171; Moyer v. Van-Dye-Way Corporation, 126 F.2d 339, 341; 6 Williston, Contracts (Rev. Ed.) p. 5395; Sturges, Commercial Arbitrations & Awards, § 226; 3 Am. Jur. 957; 6 C.J.S. 234; see Dutton v. Gillet, 5 Conn. 172, 175 n. In accord with this principle, § 8162 of the General Statutes provides that the Superior Court may modify or correct an award “(b) if the arbitrators shall have awarded upon a matter not submitted to them unless it be a matter not affecting the merits of the decision upon the matters submitted,” and that “[t]he order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.” The use of the word “unless” in this portion of the statute is confusing, but obviously the intendment of the enactment is that the court may strike out such portion of an award as is not responsive to the submission if, by so doing, the merits of the portion of the award which is within the submission are not affected.

We will first apply the principles of law which we have just recognized to the question whether the award made upon the first paragraph of the submission should be corrected and, as corrected, sustained. The submission itself is inartificially drafted. It does not necessarily follow, however, that it is insufficient to form the basis of an award. Matter of Hub Industries (George Mfg. Corporation), 183 *615Misc. 767, 769, 54 N.YS.2d 106, modified, 269 App. Div. 177, 54 N.Y.S.2d 741, aff’d, 294 N.Y. 897, 63 N.E.2d 28. It sets forth with reasonable clarity that the gist of the question to be arbitrated is whether there should be such an adjustment in the wage scale of the defendant as would offset the wage increase of March 26, 1951. It is true that it indicates that such an adjustment may be accomplished by a direct decrease of 9.75 cents per hour for all employees. This latter portion of the submission, if taken literally, is inconsistent with the former. As has already been shown, if the pieceworkers, the employees on the hiring rate and those on the plant minimum rate were all reduced by 9.75 cents per hour, their wages would be less than they were prior to March 26, 1951. When, however, it is borne in mind that the raises granted in 1951 were all computed by starting with a raise of 9.75 cents per hour for the hourly employees, it becomes clear that there is no inconsistency between the two concepts expressed in the first paragraph of the submission. A reduction of 9.75 cents per hour in the hourly rates paid would come to the same end as a reversion to the wage structure as it was prior to March 26,1951, if the reduction in the hourly rates is taken as a base for the computation of the reduction in the pay of those workers not on an hourly basis, just as an increase of 9.75 cents an hour for the hourly workers was taken as a base for the increase in the pay of all other workers on March 26, 1951. We therefore repeat that the question submitted to the arbitrator was whether the wage increase of March 26, 1951, should be offset by a basic reduction of 9.75 cents per hour, from which basic reduction the actual reduction of the pay of each employee could be computed by adjustment.

*616The next question is whether the award is within the submission. In one particular it is not. The arbitrator decided that not only hourly rates but also “base rates” should be reduced by 9.75 cents. In the submission nothing was said concerning base rates. Indeed, it is found by the trial court that nothing was said about any such rates in the course of the hearings before the arbitrator. Just what the arbitrator meant by his reference to “base rates” is, therefore, uncertain. However that may be, the bald fact is that any award which the arbitrator attempted to make concerning base rates was entirely outside of the submission. Consequently, under § 8162 (b) and the authorities cited above, the award should be modified by striking therefrom all reference to “base rates” if that can be done without affecting the merits of the balance of the award or doing an injustice to the parties.

If the words “and base rates” are stricken from the award, there is left an adjudication that all hourly rates shall be reduced 9.75 cents, and piece rates and plant hiring minimum rates adjusted accordingly. This adjudication is a complete and reasonably definitive award. See Brown v. Wheeler, 17 Conn. 345, 352. The phrase “plant hiring minimum rates” in the award is clearly intended to embrace both hiring rates and plant minimum rates. When so interpreted, the award covers the pay of all classes of the defendant’s employees except engravers. The effect of it is to direct a reduction in the pay of hourly workers by 9.75 cents per hour and a corresponding reduction in the pay of pieceworkers, employees who are on the hiring pay basis and employees who are receiving the plant minimum wage. The reduction in the pay of the last three groups is not to be 9.75 cents per hour; it is to be a *617reduction computed so that it will be equivalent to a reduction of 9.75 cents per hour in the pay of hourly workers. In effect, therefore, the award is that the pay of each of these four classes of employees shall be reduced by an amount that will offset the increases they received as of March 26,1951.

So far as the engravers are concerned, there is nothing specifically said about them in the submission. Inasmuch as the crux of the submission was the question whether the increases in pay of March 26, 1951, should be offset and inasmuch as the engravers received no increase at that time, it cannot fairly be said that any question concerning their pay was involved in the submission. It follows that nothing in the award can be interpreted as an order for a reduction of their pay.

Thus it appears that the award without the words “and base rates” is a complete award answering the question submitted in the affirmative. It is also clear that inasmuch as no consideration of base rates, whatever they may be, was had on the hearing, the removal of all reference to them from the award cannot affect the merits of the decision of the arbitrator concerning the reduction in the pay of the four classes of employees covered by the award. The trial court was, therefore, in error in refusing to correct the award by removing from it the reference to base rates. When so corrected, the award would have been within the submission.

We next consider the second ground upon which the trial court concluded that the first paragraph of the award should be vacated, i.e., that the award lacks finality and definiteness. It is true that an award must be final as to the matters submitted so that the rights and obligations of the parties may be definitely fixed. Carter v. Ross, 2 Root 507, 508; *618Parkhurst v. Powers, 2 Root 531; Mercury Oil Refining Co. v. Oil Workers International Union, 187 F.2d 980, 982; McInnish v. Lanier, 215 Ala. 87, 109 So. 377; LeBlanc v. Beard Paper Co., 320 Mich. 632, 641, 32 N.W.2d 73; Park Construction Co. v. Independent School District, 216 Minn. 27, 33, 11 N.W.2d 649; Matter of Pfeiffer, Inc., 222 App. Div. 62, 63, 225 N.Y.S. 294, aff’d, 251 N.Y. 508, 168 N.E. 407; Maw v. Kitzman, 55 N.D. 463, 467, 214 N.W. 273; 6 Williston, Contracts (Rev. Ed.) p. 5397; 3 Am. Jur. 947, § 125. As has been pointed out, however, the award in the present case is definitive. It does not in detail fix the pay of employees individually. It does, nevertheless, as we have interpreted it, establish the method by which each individual’s pay may be fixed. It determines the principle by which the pay of each of the four classes of employees is to be computed. That is, it decides that all employees shall take a reduction of pay which is the equivalent of a reduction of 9.75 cents per hour to hourly employees. When read in connection with the submission, it means nothing more nor less than that the pay of each class shall be reduced to what it was before March 26, 1951. Under the circumstances, an award could hardly be more definitive and enforceable than that. When confirmed, it will have an effect closely akin to that of a declaratory judgment.

There remains for consideration the award embraced in paragraph 2, namely, the change in the cost-of-living formula. In its complaint, the union alleged that this part of the award should be nullified not only because it went beyond the submission but also because the escalator clause was not subject to arbitration unless the parties expressly so agreed. The court refused to pass upon the latter claim but *619vacated the award on the ground of the former.

That the arbitrator went beyond the submission is clear. Instead of limiting himself to deciding whether the cost-of-living formula should provide for adjustment upon a change of 1.32 points in the index rather than 1.153 points, he undertook, after answering that question affirmatively, to apply the formula to the wage scale. This part of the award presented the ground upon which the court acted. As has been pointed out, when an arbitrator exceeds his authority, the award is void only to the extent that he« does so, if the part which is void can be separated from the rest without injustice and without affecting the merits of the part of the award which is within the submission. The award set forth in paragraph 2 is one in which the good can readily be separated from the bad with justice to both parties. The valid part of the award is that which raises the required change in index points to 1.32 beginning with the first pay-roll period which commences after December 31, 1952. The arbitrator’s notion of how the new formula should apply can readily be nullified without injustice to anyone. For this reason, the court was in error in vacating the entire award in paragraph 2. The award should have been corrected by striking therefrom all of the language except the following: “Beginning with the first payroll period which commences after December 31, 1952, Section 9 of the collective bargaining agreement between the parties dated August 1, 1952 shall be modified so as to provide for a 1 cent cost-of-living adjustment for every 1.32 index points’ change in the U. S. Bureau of Labor Statistics Consumers’ Price Index for Moderate Income Families in Large Cities, Old Series.” Judgment should enter confirming the award as thus corrected.

*620There is no merit to the union’s claim, alleged in its complaint, that the question of a modification of the escalator clause was not arbitrable. Section 12(B) of the bargaining agreement provides that differences arising between the company and the union as to the meaning and application of the provisions of their agreement, or “in regard to any other matters,” shall be settled by a procedure which leads, when necessary, to arbitration; and § 15 of the agreement expressly provides that either party may seek a modification of any provision at any time.

There is error, the judgment is set aside and the case is remanded with direction to render judgment modifying and correcting the award as indicated in this opinion and confirming the award as so modified.

In this opinion Wynne, Daly and Molloy, Js., concurred.

New and inexperienced employees were paid at an hourly rate called the “hiring minimum” for a beginning period of not more than six weeks, after which the lowest wage that any production or maintenance employee (whether on an hourly or piece rate) could receive was a somewhat higher hourly rate called the “plant minimum” rate.