MAYERS v. LOEW (1950)

Plaintiffs filed action for accounting and breach of contract based on a written collective of contract based on a written collective Loew's Incorporated. Three of the plaintiffs were members of Local 399, Studio Transportation Drivers affiliated with the Teamsters Union of the American Federation of Labor, and judgment having been in favor of defendant as to these three plaintiffs, their claims are not involved in this appeal. The remaining plaintiffs are members of Local 728, International Alliance of Theatrical Stage Employees (referred to hereinafter as ‘the Union’). The trial court found that the plaintiff members of Local 728 were entitled to retroactive compensation from July 1, 1941 to August 30, 1942, and this appeal was taken from the judgment rendered in their favor, the amount of retroactive compensation, if found due, having been stipulated to by the parties.

The latter part of January, 1942, a conference was held in New York attended by representatives of various producers, including the defendant studio, and the Union, at which conference there was entered into a tentative collective bargaining agreement. Subsequent to the tentative collective bargaining agreement, the Union and the producers discussed charges therein and the changes and additional made from time to time were evidenced by bulletins issued by the producers' representative.

Before all the bulletins were issued, the business agent of the Union delivered a draft of the tentative collective bargaining agreement to a printer and as the bulletins setting forth the changes in the tentative agreement were issued, the Union would make changes in the printer's copy or proofs in compliance with the bulletins. The latter part of January or early part of February, 1943, the printer delivered printed copies of the agreement, incorporating the changes made by the Union, to the latter, and these printed copies were in turn distributed to the various producers, including the defendant, for their signatures. The producers, including defendant, delivered the signed copies to their representative, who was to deliver the same to the Union representative and obtain duplicate originals signed by the Union.

Testimony at the trial revealed that the producers' representative prepared a letter that was signed by the Union representative at the same time he signed the printed agreement with defendant, and upon which occasion delivery of the printed agreement was made to the Union on February 12, 1943. It is this letter that defendant contends is a part of the printed agreement and abrogates the claims of the plaintiffs to retroactive compensation. The letter document in question reads as follows:

‘Hollywood, California

February 1, 1943

‘Mr. Pat Casey, Chairman

Producers' Committee

5504 Hollywood Boulevard

Hollywood, California

‘Dear Mr. Casey:

‘Notwithstanding the provisions of Section 3 of the wage agreements dated February 15, 1942,* between the various Motion Picture Producers whom you represent, and the undersigned, the effective dates of the ‘working conditions' in such wage agreements shall be subject to the following bulletins issued by your office:

‘Yours very truly,

Studio Electrical Technicians Local 728 of the I.A.T.S.E.

By A. J. Moran________'

The provisions of Section 3 of the wage agreements referred to in the letter document are as follows:

‘3. Wage scales, hours and working conditions for Local 728 shall be set forth in the ‘Wage Scales and Working Conditions' attached hereto and shall be effective as of February 15, 1942, subject to the retroactive adjustments specified in said ‘Wage Scales and Working Conditions'.’

The phrase ‘subject to the retroactive adjustments' contained in the above Section 3 apparently referred to Section 57 of ‘Wage Scales and Working Conditions,’ which reads as follows:

‘57. Retroactive pay to be based on this schedule as of July 1, 1941. Time not worked which is now guaranteed shall not be included in the retroactive computation. Adjustment to be made on Sunday Rate and on Golden Hours worked.’

The bulletin pertinent to this litigation referred to in the letter document as the one dated August 24, 1942, reads as follows:

‘Notice To All Studios

‘Subject: Standard Starting Time of ‘Graveyard’ Shift.

‘Re: Wage Scales and working Conditions for the following I.A.T.S.E. Unions.

‘Q—Local No. 80—Grips

‘R—Local No. 728—Lamp Operators

‘T—Local No. 44—Property Craftsmen

‘V—Local No. 727—Laborers

‘X—Local No. 165—Projectionists

‘Y—Local No. 695—Sound Technicians

‘Effective August 30, 1942, the first paragraph of Section 6 in the above references will be replaced and superseded by the following:

‘6. Shifts—The Work Day shall be divided into four shifts of six hours each. First shift may start between six a.m. and eight a.m. Nen called to start work at nine p.m. or later shall be considered as performing work on the fourth (graveyard) shift.’

The Wage Scales and Working Conditions referred to in the bulletin of August 24, 1942, Section 6 of which was to be replaced and superseded by the last paragraph of said bulletin, are the tentative wage scales and working conditions that served as the basic copy for the printer and in which changes were made from time to time to conform to the bulletins. The last paragraph of the bulletin of August 24, 1942, as above quoted appears verbatim in the final printed agreement executed on or about February 12, 1943, referred to in the letter document as the wage agreements dated February 15, 1942. No mention is made in Section 6 of the final printed agreement of the date August 30, 1942.

Though the tentative agreement was stricken from the evidence in the trial court, by stipulation of both parties it was included in the record on appeal. Section 57 of the printed agreement appears as Section 53 in the tentative agreement, the difference in numbering apparently being due to additions made from time to time as evidenced by the bulletins. The first paragraph of Section 6 of the tentative agreement at the time the bulletin of August 24, 1942, was issued read:

‘6. Shifts—The Work Day shall be divided into four shifts of six hours each. First shift may start between six a. m. and eight a. m. Men called to start work two or more hours after the start of the third regular shift shall be considered as performing work on the fourth (graveyard) shift.’

In other words, under the tentative agreement, the first starting time for the graveyard shift was 10 p. m. and a bonus of one-half time was to be paid therefor. Under the change effected by the bulletin of August 24, 1942, the first starting time was nine p. m.

The essence of the plaintiffs' cause of action is that under Sections 6 and 57 of the printed agreement, plaintiffs are entitled to retroactive compensation of a one-half time bonus for the work days commenced at nine p. m. from July 1, 1941, to August 30, 1942. Defendant contended that from July 1, 1941, to August 30, 1942, the graveyard shift could not start before 10 p. m. and that the starting time of nine p. m. was not effective until August 30, 1942, according to the letter document and the bulletin of August 24, 1942; in other words, that the letter document and the bulletins referred to therein are a part of the final agreement and as such the retroactive pay date of July 1, 1941, is inoperative as to the graveyard shift beginning at nine p. m.

The trial court concluded as a matter of law that the letter document was collateral and extrinsic to the printed agreement; that the printed agreement embraced the entire subject matter of the collective bargaining agreement; and that the plaintiff members of Local 728 are entitled to recover retroactive compensation from July 1, 1941, to August 30, 1942. From this judgment defendant appeals.

Appellant urges reversal of the judgment on six main grounds:

(1) The finding of the trial court that the letter document was not a part of and purported to modify or alter the collective bargaining agreement is not supported by the evidence and is contrary to law inasmuch as when instruments relating to the same transaction are delivered together, they must be construed together; (2) The finding of the trial court that the letter document purported to change, contradict, modify, vary and alter the provisions of the printed instrument is not supported by the evidence and is contrary to other findings and to the law;

(3) The finding that the parties had previously dealt and agreed upon the subject of retroactive compensation is not supported by the evidence, is at variance with the pleadings and is uncertain and indefinite;

(4) The findings are uncertain, unintelligible, ambiguous and inconsistent in that it cannot be ascertained therefrom whether the letter document was executed prior to, contemporaneously with, or after the execution of the printed agreement, and that the use of blanket findings as to defendant's answer and affirmative defenses was improper;

(5) Defendant was entitled to a finding in its favor on the issue of the Statute of Limitations;

(6) The trial court erred in excluding evidence of the circumstances under which the contract was made.

Respondents' main argument in support of affirmance of the judgment is based upon the parol evidence rule.

Appellant's contentions numbered (1), (2), (4), and (6) all seek to establish that the letter document was not collateral and extrinsic to the printed agreement as found by the trial court but constituted a part of the final agreement. There is no conflict in the evidence to the effect that the printed instrument and the letter document were executed and delivered simultaneously and that the letter document refers to and incorporates the bulletins, particularly the bulletin of August 24, 1942. An appellate court is not bound by a construction placed upon a contract by the trial court when it is based solely upon the terms of the written instrument without the aid of evidence, where there is no conflict in the evidence, or a determination has been made upon incompetent evidence. In re Estate of Platt, 21 Cal.2d 343, 131 P.2d 825; MacDonald v. Rosenfeld, 83 Cal.App.2d 221, 188 P.2d 519.

It is apparent from the testimony that the letter document was an integral part of the printed contract, for the printed document was not delivered to the Union until the letter document was signed. A written contract does not become effective until its delivery to the party in whose favor it is made or to his agent, Civ.Code, § 1626; Ivey v. Kern County Land Co., 115 Cal. 196, 46 P. 926; McKinney v. Sargent, 216 Cal. 18, 13 P.2d 373; Rockefeller v. Smith, 104 Cal.App. 544, 286 P. 487. Several papers relating to the same transaction are to be construed as a single contract. Lynch v. Bank of America Nat. Trust & Savings Ass'n, 2 Cal.App.2d 214, 37 P.2d 716; Torrey v. Shea, 29 Cal.App. 313, 155 P. 820.

But even assuming, as appellant asserts, that the letter document is to be construed as part of the printed agreement, we can find no change in the retroactive pay provision of the printed agreement effected by the letter document. No proper construction can be made of the printed agreement in conjunction with the letter document without taking into consideration the provisions of the bulletin of August 24, 1942, and the tentative agreement inasmuch as the letter document refers to the bulletin and the bulletin in turn refers to the tentative agreement. Striking the tentative agreement from the evidence was therefore erroneous. When the printed agreement, the letter document, the bulletin, and the tentative agreement are considered together, the conclusion is inevitable that what was contemplated was that the letter by its very terms merely refers to the bulletin of August 24, 1942, and said bulletin made no change in any provisions of retroactive pay but merely redefined the start of the graveyard shift. The retroactive pay date of July 1, 1941, remained unchanged in Section 57 of the printed agreement (Section 53 in the tentative agreement). If the parties had intended to change the retroactive pay provision, they would have encountered no more difficulty in so stating than they did in redefining the shifts in Section 6.

That the only purpose of the bulletin was to redefine the start of the graveyard shift is further borne out by the testimony of the Union business agent:

‘So we got together with Casey and Pelton and some of the labor relations managers and we worked—and I said, ‘Let's make a standard starting time for the graveyard shift.’ They said, ‘all right, what do you want?’ I said, ‘Well, we want eight o'clock’; and the producers said, ‘Well, we want ten.’ So we said, ‘We will compromise and split the difference and make it nine o'clock.’

‘Then that bulletin was sent out.’

Furthermore, the letter document merely makes the effective dates of the ‘working conditions' subject to the various bulletins notwithstanding the provisions of Section 3 of the printed agreement. Appellant contends that the phrase ‘effective August 30, 1942’ in the bulletin is meaningless unless it refers to retroactive pay—yet the effective date of the working conditions in Section 3 is February 15, 1942, and that is still subject to the retroactive adjustments. If the parties meant to change the retroactive pay date, they should have said so in the bulletin of August 24, 1942. Nourse v. Kovacevich, 42 Cal.App.2d 769, 109 P.2d 999.

The third contention of appellant has reference to the finding of the trial court that reads in part ‘said letter and the bulletin to which it referred purported to change, contradict, modify, vary and alter the provisions of the formal collective bargaining agreement * * * with respect to retroactive pay * * * the latter collective bargaining agreement being full and complete on its face and embracing the entire subject matter, including retroactive pay, on which the parties had theretofore dealt and agreed * * *’ While criticism of this finding may have some merit, yet in view of the foregoing discussion relative to a proper construction of a contract involving all the documents, as desired by the appellant, and further, in view of the rule that findings should be accorded a liberal construction, with a view of supporting, rather than defeating a judgment (24 Cal.Jur., 1007, 1008), any deficiency therein furnishes no ground for a reversal on this appeal.

Appellant's fifth contention as to the defense of the Statute of Limitations is based on a computation of time beginning prior to the execution of the printed agreement. The printed agreement was executed February 12, 1943, and the complaint of respondents was filed September 28, 1946. The action was predicated upon the contract of February 12, 1943, and is well within the statute. Preliminary negotiations can not be made the basis for computing the Statute of Limitations. The provision as to retroactive pay could not become final until the execution of the printed agreement and no rights could accrue thereunder until February 12, 1943. Appellant's contention to the contrary is mainly based upon the wording of the finding set forth in the preceding paragraph, but it seems manifest that the trial court could not have a meant that there was a prior final and binding agreement as to retroactive pay in view of its other findings but rather meant that prior to the execution of the final agreement an accord had been reached between the parties concerning the retroactive pay provision that was to be contained in said final agreement when it was executed.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  The date ‘February 15, 1942’, refers to the date on the first page of the printed agreement found by the trial court to have been executed on February 12, 1943.c1Datec2Subject”May 22, 1942Meal Periods”Aug. 24, 1942Standard Starting Time of Graveyard Shift”Aug. 25, 1942Golden Hours”Aug. 27, 1942‘On Call’ Employees, Split Week between Studio and Distant Location”Aug. 28, 1942Distant Location definitions and Working Conditions.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.