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District Court of Appeal, Second District, Division 3, California.

REYNOLDS ELECTRICAL & ENGINEERING COMPANY, Inc., a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and James F. Egan, Respondents.

Civ. 29778.

Decided: March 25, 1966

Herlihy & Herlihy and E. H. Herlihy, Los Angeles, for petitioner. Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent Commission.

Petitioner, Reynolds Electrical & Engineering Company, Inc., hereinafter referred to as Reynolds, is a corporation organized and existing under the laws of the State of Texas. It had qualified to do business in the State of California and had designated C. T. Corporation System as its agent in California upon whom service of process could be made.

Reynolds, at the time of the accident to its employee, James F. Egan, was engaged at Mercury, Nevada, for the Atomic Energy Commission in work requiring the services of structural iron workers. Egan, a structural iron worker, was a resident of Santa Maria, California, and was a member of Local Union 433 of the International Association of Bridge, Structural and Ornamental Iron Workers.

Reynolds, through its collective bargaining representative, was signatory to a contract with the union to which Egan belonged, wherein Reynolds was obligated to give preference to the members of the union who were parties to the agreement, including Local 433, when filling job openings for structural iron workers. The pertinent provisions of this contract are set forth below.1

The evidence before the commission is in substance as follows: The applicant, before December 16, 1961 was living in Santa Maria, California, and had contacted the business agent of Local 433 for the purpose of seeking employment. Applicant was told by the business agent that there was an opening in Las Vegas with Reynolds. The applicant went to Las Vegas by means of his personal transportation and reported to the office of the personnel manager of Reynolds on Saturday, December 16, 1961. The applicant was given a three page form to complete which took him six hours, and in addition he filled out a W–2 form, a Searching of Vehicles form and a form relating to the releasing of information about the job. He understood that the three page document was an application made for the purpose of his obtaining clearance by the Atomic Energy Commission. This document included his name, address, union affiliation, his occupation, all of the places he had lived or worked for the past 15 years, and any information concerning arrests or matters of that character. When he completed this information and turned it in he was told to report to the rigger's loft on the following Monday, December 18, 1961.

The applicant stayed in a motel of his own choosing on the nights of December 16 and 17 and was paid at the subsistence rate for December 16 but was not paid for his subsistence for December 17. He reported for work on Monday, December 18, 1961 and thereafter received checks totalling $116.32 for subsistence pay and travel allowance.

On January 23, 1962, while in the course and scope of his employment at Mercury, Nevada, the applicant sustained the injury which is the subject of the within claim.

On hearing before the referee, an order dismissing the application was entered upon the grounds that the commission had no jurisdiction over the proceeding for the reason that the contract of employment was consummated in the State of Nevada. The applicant filed a petition for reconsideration which was granted. Upon reconsideration, the commission annulled the order of dismissal and an award for workmen's compensation benefits followed.

The petitioner claims, amongst other things, that there is no evidence to sustain the finding of the commission, made upon reconsideration, that the contract of employment between Reynolds and the applicant was consummated in the State of California. An examination of the contract (Exh. 2 before the commission) between the applicant's union and the bargaining representative of Reynolds fails to disclose any provision therein whereby the union is authorized to enter into a contract of employment on behalf of Reynolds and between Reynolds and a member of the union. The contract construed as a whole, and as it relates to the rights of the employer in selecting employees to fill job openings, simply requires the employer to give preference to the hiring of members of the union who are qualified and who fulfill certain other conditions set forth in the contract, when employment is available. Except for the provisions of the contract requiring preference, the union occupies the same position with respect to its member and the employer as an employment agency would occupy in referring one of its applicants to a prospective employer where there is a job opportunity for which the applicant may be qualified. (See California Highway Comm. v. Industrial Acc. Comm., 40 Cal.App. 465, 467, 181 P. 112.)

Under the contract between the union and the employer, the employer is not obligated to hire the applicant referred from the union if (1) the applicant fails to report for duty, (2) if the applicant fails to accept employment on reporting and (3) the employer may refuse the employee upon application, (a) if the employee reports while under the influence of intoxicating liquor, (b) if the applicant fails to pass the clearance required by the Atomic Energy Commission, (c) if the applicant reports without his tools, or (d) if the applicant referred by the union is not qualified to perform the work. In addition to the foregoing, the employer has the right to reject any applicant referred by the union.

If the employer undertook to designate the union as its employment agent, such conduct would be in violation of the United States Labor-Management Act, more commonly known as the Taft-Hartley Act, Title 29 U.S.C., sections 152 and 158.2

There can be no contract unless there is mutual agreement by the parties to the proposal. There must be an offer or proposal and an acceptance of the terms of the offer. (Sackett v. Starr, 95 Cal.App.2d 128, 133, 212 P.2d 535.) This principle applies to a contract of employment. (Sumner v. Edmunds, 130 Cal.App. 770, 777–778, 21 P.2d 159.) In the case at bench the applicant knew when he left California that the only person who had the authority to employ him was a responsible agent of Reynolds at the job site in Nevada. He proceeded to the job site upon reference through his union. Upon arriving at the job site he offered himself for employment. Reynolds, upon finding that he was qualified to perform the work, accepted his offer. Under these circumstances the contract of employment was consummated in the State of Nevada. (California Highway Comm. v. Industrial Acc. Comm., supra.) The place where the contract is made is the place where the last act necessary to its completion is done. (Michelin Tire Co. v. Coleman & Bentel Co., 179 Cal. 598, 604, 178 P. 507; Ury v. Jewelers Acceptance Corp., 227 Cal.App.2d 11, 16, 38 Cal.Rptr. 376; Commercial Cas. Ins. Co. v. Industrial Acc. Comm., 110 Cal.App.2d 83, 88–89, 242 P.2d 13.) The fact that the applicant, after he was hired, was paid subsistence and mileage in accordance with the terms of the union contract does not establish the fact that the contract of employment was made in California. (California Highway Comm. v. Industrial Acc. Comm., supra, 40 Cal.App. 465, at 468, 181 P. 112.)

The case at bench is distinguishable on its facts from the holding in Chicago Bridge etc. Co. v. Industrial Acc. Comm., 226 Cal.App.2d 309, 38 Cal.Rptr. 57, where the evidence disclosed that the responsible agent of the employer while in California, upon the request of the business agent for the union to which the prospective employee belonged, agreed to hire such employee for work to be performed in Nevada. At the time this contract of employment was entered into the responsible representative of the employer, and the business agent for the union were both in California, and Coplin, the employee, accepted the offer of employment in California. The case at bench is also distinguishable form the holding in Reynolds Electrical & Engineering Company, Inc. v. Industrial Accident Commission, Cal.App., 50 Cal.Rptr. 327, decided Mar. 25, 1966, where the evidence disclosed that the offer of employment was made by telephone from Nevada to the employee in California and such offer was accepted in California.

The conclusion reached herein makes it unnecessary to pass upon other questions raised in the petition.

The award is annulled.



1.  ‘SECTION 4. Employment A—In order to maintain an efficient system of production in the industry, to provide for an orderly procedure for the referral of applicants for employment, and to preserve the legitimate interests of employees in their employment, the Employers and the Union agree that when an individual employer requires workmen to perform any work covered by this Agreement he shall hire applicants for employment to perform such work, in accordance with this Agreement. * * * D—The individual employer shall have the right to reject any applicant referred by the appropriate Local Union, subject to the provisions of Section 5–B and Section 11–J—‘Show Up Time.’ * * *‘SECTION 5. * * * B—Work Day—If a workman is put to work, he shall receive not less than four (4) hours pay at the straight time hourly rate. Hours worked beyond the first four (4) hours shall be figured on the basis of actual hours worked. When a workman is ordered by the individual employer or his representative to report for work and then through no fault of the workman is not put to work, the individual employer shall pay him for two hours' time, weather permitting work, provided the workman remains on the job the said two hours. On Saturdays, Sundays and holidays, show up time will be computed at the applicable overtime rate. * * *‘SECTION 11. Expenses Out of Town * * * J—Show-Up Time—On jobs located outside the free zones workmen who report for work and for whom no work is provided, shall be paid two (2) hours' pay at the applicable straight time rate in addition to subsistence. On Saturdays, Sundays and holidays, show-up pay will be computed at the applicable overtime rate; provided that, to qualify for show-up pay on any day the workman must remain at the job site available for work, unless released by the individual employer or his representative.‘NOTE: The intent of both parties is that show-up time shall not be paid when the workman appears for work in an unfit condition or without proper tools or qualifications.’

2.  ‘§ 152. Definitions‘When used in this subchapter——

FOOTNOTE.  ‘(2) The term ‘employer’ includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States * * * or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.‘§ 158. Unfair labor practices‘(a) It shall be an unfair labor practice for an employer * * * (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it * * *.’

FRAMPTON, Justice pro tem.* FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

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