Barker v. Southern Pac. Co.
| Decision Date | 10 August 1954 |
| Docket Number | No. 13609.,13609. |
| Parties | BARKER v. SOUTHERN PAC. CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gladstein, Andersen & Leonard, Rubin Tepper, Allan Brotsky, San Francisco, Cal., for appellant.
Burton Mason, W. A. Gregory, Jr., San Francisco, Cal., for appellee.
Before HEALY, BONE and FEE, Circuit Judges.
Appellant appeals from an order of the lower court granting appellee's motion for summary judgment pursuant to Rule 56, F.R.C.P., 28 U.S.C.A. The suit is for damages for an alleged wrongful discharge of appellant, a dining car waiter employed by appellee under a collective bargaining agreement between appellee and certain Locals of the Dining Car, Cooks and Waiters Union.
The aforesaid agreement provides, in part:
It is undisputed that appellant failed to file the "written request" required by the above quoted rule within ten days of his notice of dismissal. The issues involved in this appeal concern the necessity of so filing, and of exhausting all remedies under the contract, and administrative remedies thereunder prior to bringing suit. The reasonableness of a period as short as ten days is also questioned, but in this case appellant was not required to prepare a complaint, but merely to file a request for a hearing. That would be an ordinarily probable act which would normally occur quite promptly after the notice of discharge even without any time limitation. We see no circumstances which make the ten day period unreasonable in this case.
The failure to give notice in ten days did not cut off or destroy any existing right of action because the company had the right to discharge appellant for any cause satisfactory to itself. The conditions required to be performed by appellant before he could claim breach by the other party were not fulfilled. Only if the company failed to accord to appellant the hearings provided after notice or by...
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