William Scott v. Anchor Motor Freight, Inc., William Scott v. Anchor Motor Freight, Inc., William Scott v. Teamsters Local Union 377

McCREE, Circuit Judge

(dissenting).

I respectfully dissent. The unambiguous terms of the collective bargaining agreement that governed appellee’s employment required him to give notice of his grievance to his employer within ten days of discharge, and failure to comply with this requirement defeats the action in this case. Article 32 of the agreement provides: “Appeal from discharge . must be taken within ten (10) days by written notice. ... If the employee involved is not within the home terminal area when the action of discharge ... is taken, the ten (10) day period will start from the date of his return to the home terminal.” Article 7 of the agreement, concerning grievance procedures, provides, in relevant part, “Disputes and grievances shall be put in writing and presented to the company within one (1) week whenever possible, but in no case later than thirty (30) days after the grievance arises.” (emphasis added).

If these two provisions are considered together, it is apparent that wrongful discharge is a particular type of grievance about which the employee must complain within ten days, a shorter period of time than that allowed for presenting other grievances that may be less costly for the employer to remedy if the complaint proves to be meritorious. Yet, as Article 7 makes clear, all griev *283 anees must be put in writing and presented to the employer within a specified period of time after they arise. In the case of a discharge, the grievance arises at the moment the employee is discharged, not at the time written notice of discharge is received by both the employee and his union. Moreover, Article 32 refers to discharge and not to receipt of notice of discharge as the event that starts the ten day appeal period running. This interpretation is also supported by the special provision for an employee who is away from home at the time he is discharged. Although he and his union may receive notice of discharge and the employee may be actually discharged while he is on the road, the ten day appeal period does not begin to run until he is home and presumably able to press his appeal conveniently.

This interpretation of the contract, I believe, is the only one that can be made considering the instrument as a whole, and it follows that the running of appellee’s ten day appeal period commenced on July 23, the date of his discharge. It was not until the tenth day thereafter, on August 2, that appellee sent written notice of his grievance to his union. The union received this letter two days later. Appellee never notified his employer of his grievance within either the ten day period of time provided by the contract or within any reasonable period of time thereafter. Because of his failure to notify his employer of his grievance within the ten day period or even to request his union to act on his behalf at a time when it was still possible for the union to do so, he is precluded from recovering against either his employer or his union. Republic Steel Corp. v. Maddox, 379 U.S. 650 , 85 S.Ct. 614 , 13 L.Ed.2d 580 (1965), Durham v. Mason and Dixon Lines, Inc., 404 F.2d 864 (6th Cir. 1968).

I believe that ambiguity can be found in the agreement only by a strained reading. However, even if the instrument were ambiguous and a jury might be permitted to determine the meaning intended by the parties to be placed upon unclear terms, reversal would still be required because the district court failed to give correct and sufficiently specific instructions to the jury about the legal rights and duties created by the instrument it was asked to construe. Although I agree that the meaning of ambiguous contractual provisions may present a question of fact to be resolved by a jury in appropriate cases, a jury, after factual ambiguity has been resolved, does not have the power to determine the legal effect to be accorded the provisions of the contract. It is a matter of elementary contract law that “[t]he determination of the legal operation of a contract, after the meaning of its language has been adopted by process of interpretation, is always for the court, because ‘legal operation’ is the result of applying rules of law to the facts. . . . [Construction is always a matter of law for the court.” 3 A. Corbin, Contracts §§ 534, 554 (1960).

Nor do I believe that under the circumstances of this case, the union could waive the employer’s contractual right to receive notice of an employee grievance. The employer bargained for this right, and although it might waive it, the union, the opposite contracting party, could not. The district court erred when it instructed the jury that the union could waive notice for the employer, and the majority opinion, by not discussing the issue, approves this error by silence. Certainly the Supreme Court’s decision in Vaca v. Sipes, 386 U.S. 171 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967), does not authorize this instruction. The only question in that ease was whether an employee who charged his union with breaching its duty of fair representation, a matter cognizable by the NLRB as an unfair labor practice, was precluded by the preemption doctrine from pursuing directly his grievance in a judicial forum. Nothing the Supreme Court said in-that opinion supports the waiver instruction given by the district court because the conduct of the union in this case did not preclude or prevent *284 appellee from giving notice of his grievance to his employer. It may be appropriate to hold that an employer may not assert improper union conduct as a shield against an action brought by an employee when “the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if . the employee-plaintiff has been prevented from exhausting its contractual remedies by the union’s wrongful refusal to process the grievance.” Vaca v. Sipes, supra, at 185 . This is not such a case.

I agree with the court’s determination that the damage award cannot stand. Nevertheless, I would reverse because I believe that the bargaining agreement can be interpreted in only one way and that appellee failed to comply with its requirements for presenting his grievance. At a minimum, appellants are entitled to a new trial because the district court failed to give proper instructions to the jury on the issue of liability.