N.L.R.B. v. Electra-Food Machinery, Inc.
| Decision Date | 16 June 1980 |
| Docket Number | ELECTRA-FOOD,No. 79-7316,79-7316 |
| Citation | 621 F.2d 956 |
| Parties | 104 L.R.R.M. (BNA) 2806, 89 Lab.Cas. P 12,122 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.MACHINERY, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph Ferrara, N.L.R.B., Washington, D. C., argued for petitioner; Carol A. De Deo, N.L.R.B., Washington, D. C., on brief.
Kenneth M. Simon, Los Angeles, Cal., for respondent.
Appeal from the National Labor Relations Board.
Before CHAMBERS, PECK *, and ANDERSON, Circuit Judges.
In this action we are asked to enforce an order issued by the National Labor Relations Board on May 2, 1979, against Electra-Food Machinery, Inc. ("the Company"). The Board's decision and Order is reported at 241 NLRB No. 194 and jurisdiction is based upon Section 10(e) of the National Labor Relations Act, as amended (29 U.S.C. §§ 151, et seq.); the unfair labor practice found by the Board occurred within the State of California.
The Company, a California corporation, manufactures food processing equipment at El Monte, California, and on October 27, 1977, Sheet Metal Workers' International Association, Local No. 75, AFL-CIO ("the Union") filed a representation petition requesting certification as the bargaining representatives of the employees at the El Monte plant. In due course, an election was held which was won by the Union and on January 4, 1978, the Regional Director certified the Union as the employees' bargaining representative.
Following the certification, negotiations for a collective-bargaining agreement were entered into and on September 6, 1978, the Company made a final offer of a complete bargaining agreement which covered wages, hours, and working conditions, and provided for an open shop. This offer was accepted by the Union which thereupon requested that the Company execute a written contract which embodied the terms agreed upon. The Company refused to execute a contract, and as the Company frankly states in its brief, "(t)he sole basis of the Company's refusal was its allegation that the Union's Constitution prohibited the Union from entering into a collective-bargaining agreement providing for an open shop. . . . " The Union thereupon filed an unfair labor practice charge alleging that the Company had refused to bargain in good faith in violation of Section 8(a)(5) of the Act by "failing to execute a contract upon which there was oral agreement." On May 2, 1979, the Board granted the General Counsel's motion for summary judgment and issued the Decision and Order hereinabove referred to.
The Company's basic contention is that the summary judgment was legally and factually barred because (1) substantial and material issues of fact were outstanding which required determination as a condition to any finding that it is guilty of the unfair labor practice alleged, and because (2) the agreement which the Board order compels the Company to sign is not valid and cannot therefore properly be enforced by the Board or this Court. We disagree.
As we have stated, the Company unequivocally sets forth in its brief that "the sole " basis for its refusal to sign the agreement was the inclusion therein of the open shop clause. In view of this concession, the Company will not now be heard to contend that no agreement had been finally reached as to a miscellany of contractual provisions, and that the absence of such agreement prevented the case from being in proper posture for summary judgment. In determining whether an underlying oral agreement has been reached, the Board is not strictly bound by the technical rules of contract law but is free to use general contract principles adapted to the collective bargaining context. Lozano Enterprises v. N.L.R.B., 327 F.2d 814, 818-819 (9th Cir. 1964); N. L. R. B. v. Donkins' Inn, Inc., 532 F.2d 138, 141-142 (9th Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 257, 50 L.Ed.2d 179 (1976). Thus, acceptance of a final offer of a complete bargaining agreement manifests mutual assent, creating a binding bargaining agreement, and therefore triggers the duty to execute a written contract on request embodying that agreement. N.L.R.B. v. H. Koch & Sons, 578 F.2d 1287, 1288-1291 (9th Cir. 1978). And it is well settled that the obligation to bargain in good faith, as defined by Section 8(d) of the Act, includes the obligation to execute a written contract on request embodying an oral collective-bargaining agreement reached between an employer and its employees' bargaining representative and that the failure to execute such a contract violates Sections 8(a)(5) and (1). N. L. R. B. v. Strong, 393 U.S. 357, 361, 89 S.Ct. 541, 544, 21 L.Ed.2d 546 (1969); H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 523-526, 61...
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