National Labor Relations Board v. H. Koch & Sons

578 F.2d 1287 98 L.R.R.M. (BNA) 2977 , 84 Lab.Cas. P 10,669 , 3 Fed. R. Evid. Serv. 568 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. H. KOCH & SONS, Respondent. No. 75-3837. United States Court of Appeals, Ninth Circuit. June 5, 1978. Rehearing and Rehearing En Banc Denied July 27, 1978. Anne Libbin (argued), Washington, D. C., for petitioner. John D. O'Brien (argued), of Jones, Day, Reavis & Pogue, Cleveland, Ohio, for respondent. Petition to Review a Decision of the National Labor Relations Board. Before DUNIWAY, WRIGHT and SNEED, Circuit Judges. DUNIWAY, Circuit Judge: 1 The National Labor Relations Board petitions for enforcement of its order issued against H. Koch & Sons (Koch) on October 6, 1975. In its decision, which is reported at 220 NLRB 1103 , the Board found that Koch violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158 (a)(1) and (5), by refusing to execute a written contract embodying the terms of a collective bargaining agreement which it had orally agreed to. We enforce the Board's order. I. FACTS 2 Until June, 1974, Koch operated a manufacturing plant in Corte Madera, in northern California, where its employees…

The National Labor Relations Board petitions for enforcement of its order issued against H. Koch & Sons (Koch) on October 6,1975. In its decision, which is reported at *1288 220 NLRB 1103 , the Board found that Koch violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158 (a)(1) and (5), by refusing to execute a written contract embodying the terms of a collective bargaining agreement which it had orally agreed to. We enforce the Board’s order.

I.

FACTS

Until June, 1974, Koch operated a manufacturing plant in Corte Madera, in northern California, where its employees were represented by two unions under separate collective bargaining agreements. The production employees were represented by the Leather, Plastic, & Novelty Workers Union, Local 31, International Leather Goods, Plastic and Novelty Workers Union, AFL-CIO (the Leatherworkers), while the machinists were represented by Marin County Lodge 238, International Association of Machinists (the Machinists). The two agreements contained identical severance pay clauses which provided:

In late 1973 or early 1974, Gulf & Western Industries, Inc., Koch’s parent, began to consider relocating the Corte…

(dissenting):

I dissent. The National Labor Relations Act does not abrogate the law of agency or the law of offer and acceptance. However Bruno’s role is denominated, he may not be treated like the post office, see Adams v. Lindsell, 1 B. & Aid. 681 (1818). His statements had operative significance only if Bruno was Kelleher’s agent to ascertain whether Young would accept Kelleher’s offer and Young’s agent for the transmission of his acceptance. The burden is upon the party asserting agency both to prove its existence and its extent. Sunset Line & Twine Co., 79 N.L.R.B. 1487 (1948). The two telephone conversations between Kelleher and Bruno (R.T. 28-29, 29-30) at best show authority in Bruno to convey information to Kelleher; but as soon as the need for negotiations arose, Young was called to attend a meeting personally (R.T. 30-33). I find sufficient evidence neither of Bruno’s actual authority to act as the agent of both Kelleher and Young, nor of his apparent authority to do so, see 29 U.S.C. §§ 152 (13), 185(e).

Even assuming such authority, it is unclear whether the parties intended to be bound by their oral agreement or rather intended to be bound only when the contract…