BOOCHEVER, Chief Justice.
Appellee Dale Kelsey was a truck driver employed by appellant Harold's Trucking. Kelsey was a member of Local 959 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which had entered into a collective bargaining agreement with Harold's. Kelsey was injured in an on-the-job accident on or about December 4, 1974.
Kelsey filed a complaint alleging that he was able to return to work on March 18, 1975, and that Harold's refused to give him work until May 27, 1975. Kelsey requested relief under paragraph 11 of article XVII of the Line Drivers' Agreement with Harold's, which provides:
Kelsey asked for compensation from Harold's for the amounts earned by Harold's employees with less seniority than Kelsey, who had worked in Kelsey's place for the ten-week period of March 18, 1975, to May 27, 1975.
On October 4, 1976, Kelsey moved for partial summary judgment as to Harold's liability. Harold's filed a cross-motion for summary judgment on the grounds of Kelsey's failure to exhaust his administrative remedies and failure to seek arbitration. On January 28, 1977, Judge Moody denied both motions.
Trial began June 30, 1977, before Judge Kalamarides. At the close of the morning session of the first day of trial, after Kelsey had called two witnesses, the parties stipulated in open court to continue the trial and submit the matter to arbitration pursuant to Harold's union contract.
Arbitration resulted in a unanimous award to Kelsey of ten weeks' back pay at $388.53 per week for ten weeks, for a total award of $3,885.30. On stipulation of the parties, the arbitrators' award of $3,885.30 was confirmed by the court on September 7, 1977, except for the questions of prejudgment interest and attorney's fees.
Subsequently, on September 8, 1977, Judge Kalamarides entered an order awarding Kelsey, as the prevailing party, $600.00 attorney's fees. The court did not award prejudgment interest.
Harold's contends on appeal that the superior court erred by denying Harold's motion for summary judgment and by finding that Kelsey was the prevailing party and thus entitled to attorney's fees.
Neither of Harold's contentions has merit. We will not entertain the argument that the superior court erred by denying Harold's motion for summary judgment since the right to appeal from this interlocutory order was waived by stipulating to
With respect to the attorney's fees award, we note that ordinarily attorney's fees are not awarded where matters are submitted to arbitration.
This is not the situation presented here. The testimony of Roger Harris, business agent for the Teamsters, discloses that Kelsey made frequent inquiries of Harris concerning his back wages. Harris testified that Harold's dispatcher denied that Harold's was doing any hauling during the period for which Kelsey claimed back wages. The business agent further testified that he was denied access to payroll records; that a letter of grievance, a letter of arbitration and a notice of economic action mailed to Harold's were returned unopened; and that, ultimately, pickets were placed outside Harold's place of business. Harris' efforts were terminated when Kelsey hired his own attorney. Thus, it appears that Harold's denied the union representative the very information necessary to determine the legitimacy of Kelsey's claim. The attempt by the union to secure arbitration was frustrated when the demand was returned unopened.
On the facts of this case, we hold that Kelsey was justified in filing his complaint in superior court and that the appeal from the award of $600.00 in attorney's fees is without merit.
We find it unnecessary to decide whether the Uniform Arbitration Act, AS 09.43.010-.180, is applicable to the labor-management contract at issue in this case. See AS 09.43.010. The provisions of the Act cited in this opinion are referred to by analogy only.