Lozano Enterprises v. NLRB

• Decision Date: 24 March 1964
• Docket Number: No. 18856.,18856.
• Citation: 327 F.2d 814
• Parties: LOZANO ENTERPRISES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

327 F.2d 814 (1964)

LOZANO ENTERPRISES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18856.

United States Court of Appeals Ninth Circuit.

February 14, 1964.

Rehearing Denied March 24, 1964.

Sheppard, Mullin, Richter & Hampton, by Frank Simpson III, and Don T. Hibner, Jr., Los Angeles, Cal., for petitioner.

Arnold Ordman, General Counsel; Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Melvin J. Welles, and Peter M. Giesey, Attys., NLRB, Washington, D. C.

Before BARNES, HAMLEY and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

Petition to review an order of the National Labor Relations Board which held that the petitioning employer has violated section 8(a) (1) and (5) of the Labor-Management Relations Act as amended. (29 U.S.C. § 158(a) (1, 5)).¹ The order is reported at 143 NLRB 129. The Board has requested enforcement of its order. We conclude that the petition to set aside the order should be denied and that the order should be enforced.

Lozano Enterprises, the employer, is a corporation engaged in the publication, in Los Angeles, California, of "La Opinion", a daily Spanish language newspaper. On December 15, 1961, pursuant to a Board election, the union, Los Angeles Typographical Union No. 174, was certified as the exclusive bargaining representative of the employer's employees in the composing room, press room and stereotype room. Shortly thereafter there began a series of some 25 bargaining sessions, the last of which occurred on October 19, 1962. At these sessions the union was represented by one Hardin and the employer by its publisher and president, Lozano, and by Fenton, a labor consultant, who acted as a negotiator. Fenton had authority to recommend the adoption or rejection of various proposals, but final authority to make a contract resided in Lozano, not in Fenton. This the union knew.

On September 28, 1962, Lozano being present, the parties reached a tentative agreement, which was to be submitted to the international union for approval. The International returned the contract to the union with certain suggestions for revisions. On October 19, Hardin for the union, and Fenton, together with one Bravo, business manager of the employer, met to discuss changes in the agreement suggested by the International. Lozano was away.² The changes suggested by the International were discussed, some were embodied in the agreement, others were modified, and it was agreed that Hardin would put the proposed contract in a final form for review. Hardin also told Fenton and Bravo that he would submit the agreement to the union and advise them as to what action was taken by it. On October 30 Hardin sent such final form of agreement, signed by himself and Marsh, the union secretary, to Fenton, requesting that it be executed by the company and returned for final signature by the president of the International. Fenton received it on October 31 and sent it to Lozano. The latter returned it to Fenton, signed by himself and Bravo, on November 15, with instructions that Fenton could deliver it to Hardin in the event of a threatened shutdown by the union. He was empowered to use the contract in accordance with his own good judgment, if he felt that there were a real threat of a shutdown.

In the middle of November, not having heard from the employer, Hardin called Fenton to inquire why the signed contract had not been returned. Fenton said that Lozano was out of town, but would sign the contract on his return. Again, in early December, Hardin called Fenton and was told that Lozano's mother was visiting Los Angeles, had torn up the contract, and had relieved Lozano of his position in the company. Fenton then assured Hardin that if he would be patient, Fenton would get the contract signed and forward it to him. At no time did Fenton indicate to Hardin that any provision of the contract was not acceptable. Fenton did not communicate further with the union and on December 26, 1962, eleven days after the end of the year during which, following the December 15, 1961 certification, no further representation election could be held, the employer filed a petition with the Board for an election. It refused to bargain further with the union, claiming that it did not know whether the union still represented its employees.

The specific charge contained in the complaint before the Board in the case before us is set forth in paragraph 8 and reads as follows:

"8. Respondent has refused, and continues to refuse, to bargain collectively in good faith with the Union as the exclusive collective-bargaining representative of all employees in the unit described in paragraph 5 above in that:

"(a) On or about October 19, 1962, Respondent and the Union agreed upon all the terms of a collective-bargaining agreement and sometime during the month of November, 1962, and again between December 1, 1962, and December 15, 1962, and at all times thereafter, Respondent failed and refused to sign the above agreement as reduced to writing, though requested to do so by the Union.

"(b) On or about December 26, 1962, Respondent filed with the Board a petition for an election among the employees in the unit described in paragraph 5 above for the sole purposes of unnecessarily obstructing negotiations and of avoiding its legal obligation to sign the agreement as reduced to writing described in part (a) of this paragraph."

The trial examiner and the Board, which adopted his findings, found that these charges were sustained. The Board found that the employer and the union had reached agreement, that the employer was under an obligation to so inform the union, that its failure to do so and to deliver the signed agreement was in effect a refusal to sign and therefore a violation of section 8(a) (5). The Board's order directs that the employer cease and desist from the unfair labor practice found, execute the final draft of the agreement submitted to it by the union on or about October 30, 1962, and in all other respects, upon request, bargain collectively with the union. The order contains the customary requirement regarding the posting of appropriate notices.

The employer asserts that the finding that it entered into an agreement with the union is contrary to law and unsupported by the evidence, and that the Board's further finding that the employer broke off bargaining in order to avoid its obligations is not supported in law or in fact. It also contends that the Board's findings are at variance with and beyond the scope of the pleadings.

The employer's position is based primarily upon technical rules of contract law. It states that here the union knew that Fenton had no authority to make a contract, that while Lozano had authority to sign, and did sign, he had conditioned delivery of the contract upon an event which had not occurred, namely, the threat of a shutdown, that in fact, Fenton never delivered the contract and that consequently there was no acceptance by the employer communicated to the union, and therefore no contract, the proposed contract forwarded by Hardin on October 30 containing some provisions different from those tentatively agreed upon at the last bargaining session. The employer bolsters this argument by urging that there was no actual agreement arrived at at the last bargaining session and that even if there were, as between Fenton and Bravo on the one hand and Hardin on the other, this did not constitute an agreement that the employer was required to reduce to writing because it was known to both parties that neither Fenton nor Bravo had authority to arrive at a binding agreement.

The Board does not contest the technical correctness of these arguments. It does not contend that when Lozano and Bravo signed the agreement they thereby "accepted" the "offer" that it contained so as to make it a binding contract. The Board does say that the signing of the agreement by Lozano, who admittedly was the one authorized to make an agreement, is evidence that the terms proposed by the union were agreeable to him. It says further that, under the peculiar circumstances of the case, Fenton's stalling of the union and misrepresentation as to whether Lozano had in fact signed, coupled with assurance that he would sign, indicate a determination by the employer to keep matters in abeyance, rather than to deliver the contract which was in fact acceptable to the employer, in the hopes that, by calling for a new election immediately after December 15, the employer could escape...