Mauldin v. Weinstock, A91A1691

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: BIRDSONG
• Citation: 201 Ga.App. 514,411 S.E.2d 370
• Parties: MAULDIN v. WEINSTOCK.
• Docket Number: No. A91A1691,A91A1691
• Decision Date: 15 October 1991

Page 370

411 S.E.2d 370 201 Ga.App. 514 MAULDIN
v.
WEINSTOCK. No. A91A1691. Court of Appeals of Georgia. Oct. 15, 1991.

[201 Ga.App. 521] Frank L. Derrickson, Atlanta, for appellant.

Mayer, Nations & Yates, J. Comer Yates, Weinstock & Scavo, Hillard J. Quint, Atlanta, for appellee.

Michael Weinstock, pro se.

[201 Ga.App. 514] BIRDSONG, Presiding Judge.

Appellant Stephen Mauldin filed suit against appellee Michael Weinstock for legal malpractice. The trial court granted appellee/defendant's motion for summary judgment and appellant is appealing [201 Ga.App. 515] from this order.

Appellant's employment, as a ramp serviceman, with Eastern Air Lines (Eastern) was terminated after certain bags were not delivered to an aircraft on December 25, 1985. Appellant received a mailgram from Eastern, dated December 27, 1985, during the late evening of December 28, 1985, which purported to discharge him and to

Page 371

terminate his employment immediately; on December 31, 1985, he received another discharge notification, by certified mail and dated December 27, 1985, restating the fact of his termination of employment. This second correspondence virtually mirrored the contents of the original mailgram, and also purported to discharge appellant and terminate his employment immediately. The copy of the mailgram contained in the trial record does not reflect on its face that a copy was delivered to the union; the certified mail correspondence in this record does reflect receipt of a copy by the union on January 6, 1986. Agreement provisions require that "this notice shall be presented to such employee, with copy" of the written notice of discharge to a stated union official within five working days of the incident. (Emphasis supplied.)

Under applicable agreement provisions, a discharge becomes final, unless a timely appeal is taken therefrom; and such an appeal is postmarked within seven days of the date of receipt by the employee of the discharge notice. However, once timely appeal is taken a union member, such as appellant, enjoys the right of a de novo arbitration hearing of his discharge.

In the early evening of Friday, January 3, 1986, after the post office was closed, appellant signed the necessary appeal document at the office of appellee, and apparently reminded appellee that the appeal must be mailed before the deadline date. The envelope in which appellee's agents mailed the document bears an official postmark of January 7, 1986, and a partially obliterated postage meter stamp date of perhaps January 3, 5, or 6.

Pursuant to the labor agreement, the administrative board, the System Board of Adjustment, was vested with "jurisdiction over disputes between any employee covered by this agreement and the company growing out of grievances or out of interpretation or application of any of the terms of this agreement." (Emphasis supplied.) Article 19 D, Agreement Between Eastern Air Lines, Inc. and The International Association of Machinists and Aerospace Workers. However, Eastern concluded that the appeal for investigation was not timely and refused to participate in the subsequent administrative board proceeding to adjust and decide disputes under the agreement. Consequently, the board adjourned without making an adjudication of either the merits of the appeal or the issue of timeliness of the "appeal for investigation."

Following the appeal, appellee advised appellant to initiate suit [201 Ga.App. 516] to compel Eastern to arbitrate the discharge action. Although the reason for refusal to bring suit against Eastern is contested (appellant claiming that refusal was motivated by his inability to pay appellee's fee; appellee claiming that refusal was motivated by appellant's then working in construction for more money and not desiring to become reemployed with Eastern), it is uncontested that in fact appellant did not authorize appellee to initiate such a suit. Neither does the record reveal that appellant retained anyone else prior to this proceeding to sue Eastern to compel arbitration of the discharge decision. Held:

1. Appellee's brief reflects a notation that three unopened depositions, including that of appellant Mauldin, have been transmitted for this court's consideration. Contrary to this assertion, we find the deposition of appellant Mauldin was opened before it was transmitted to this court, and the order of the trial court granting summary judgment to appellee, upon reconsideration, reflects on its face the trial court considered certain testimony in this deposition. Further, the original order of the trial court in which appellee's motion for summary judgment was denied commences "upon full consideration of the record...." Thus, this court can consider the depositions in question, particularly that of appellant, "to determine whether there remains an issue of material fact for determination below." Bishop v. Mangal Bhai Enterprises, 194 Ga.App. 874(1), 392 S.E.2d 535; compare Dunlap v. First Rock Credit Corp., 194 Ga.App. 563, 564(1), 390 S.E.2d 919.

2. Appellant's assertion that the trial court failed to make the factual distinction between the contractual grievance

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procedures and a separate federal lawsuit to compel arbitration is without merit. Review of the record fails to support this assertion. Appellant attempts to show the court's alleged factual confusion by highlighting the court's reference to the failure to file an appeal, and arguing that there is no evidence or contention that appellant prevented appellee in any way from timely filing his "appeal for investigation" to the administrative board. The order of the trial court granting summary judgment when reviewed in its entirety reveals the court correctly identified and distinguished the alleged untimely administrative "appeal" procedure from that of any independent court action that would have had to be initiated subsequently to compel Eastern to arbitrate the discharge issue. In fact, the references to "appeal" on the second page of the court's order unequivocally refer to what the court loosely labeled as "an appeal to the court in order to compel Eastern to arbitrate the matter," that is, an independent court action to compel Eastern to arbitrate the issue before the administrative board. " ' "The burden is upon the party alleging error to show it affirmatively by the record." ' " Armech Svc. Co. v. Rose Elec. Co., 192 Ga.App.[201 Ga.App. 517] 829, 830(1), 386 S.E.2d 709. While we do not condone the relatively undisciplined usage of the term...