Garrison v. Bechtel Corp. , 66 O.B.A.J. 355 ( 1995 )

OP ALA, Justice,

dissenting in part.

I concur in the court’s view that a trial tribunal’s resolution of a disputed fact issue over the locus contractus¹ that determines jurisdiction of the claim is reviewable de novo²; I recede from today’s pronouncement insofar as it holds that Oklahoma is not the locus in quo for this claim.³

I would hold that all local union chapters involved in claimant’s recruitment were the employer’s agents, whose offer of employment was accepted in this State by the claimant’s act of proceeding to the job site in a neighboring state.⁴

1 . Locus contractus is where the event occurred which made the contract effective, not the place where the company intended for it to be performed, nor the locus where the company may avoid the contract for breach of a condition subsequent. See Lilienthal v. Suffolk Brewing Co., 154 Mass. 185, 28 N.E. 151 (1891); Brown & Sons v. Wieland, 116 Iowa 711, 89 N.W. 17 (1902); Benedict v. Dakin, 243 Ill. 384, 90 N.E. 712 (1910).

2 . Mahan v. NIC of America, Old., 832 P.2d 805, 807 (1992) (Opala, J., concurring).

3 . Company calls for union help in recruiting labor for a job site are governed by an understood course of dealing. They do not happen in a vacuum. Union job referral slips go to those known to have the needed skills. It is only these workers — already prescreened — who may respond by reporting to the job site. Their individual employment contract, which is forged by this "act-induced-by-promise” process, may be avoided if subsequent on-site screening should turn up an unacceptable worker, based on the company’s minimum hiring requirements. In the latter event, the resulting defeasance is not for failure of a condition precedent but rather of condition subsequent. See Bultman v. Frankart, 194 Wis. 296, 215 N.W. 432, 433 (1927); Lilienthal, supra note 1, 28 N.E. at 151.

The place of a union-initiated employment contract formation (locus contractus) need not be the same as the situs where company screening is to be conducted, unless hiring is clearly preconditioned on such prescreening. There is nothing in this record to indicate that the employer’s promise, transmitted by the union's local chapters, was understood by the claimant — in words, by custom or previous course of dealing— to be dependent on his passing some on-site inspection test or upon the company’s job site acceptance of the worker. See Southland Cotton Oil Co. v. Renshaw, 148 Okl 107, 299 P. 425, 429 (1931).

4 .See Dangott v. ASG Industries, Inc., Okl., 558 P.2d 379, 382 (1976).