Peter Ottley, as President of Local 144, Hotel, Hospital, Nursing Home & Allied Services Union, Seiu, Afl-Cio v. Sheepshead Nursing Home

688 F.2d 883, 111 L.R.R.M. (BNA) 2153, 1982 U.S. App. LEXIS 16292

• Court: Court of Appeals for the Second Circuit
• Decided: August 26, 1982
• Docket: 766, Docket 81-7802
• Status: Published

Opinions

FEINBERG, Chief Judge:

Sheepshead Nursing Home (SNH) appeals from a judgment of the United States District Court for the Southern District of New York, John M. Cannella, J., confirming an arbitration award upon the motion of Peter Ottley, as President of Local 144, Hotel, Hospital, Nursing Home & Allied Services Union, SEIU, AFL-CIO (Local 144, the Union) pursuant to the Federal Arbitration Act, 9 U.S.C. § 9. The judgment, entered in October 1981, followed a June 1981 order of the same court denying appellant’s motion to stay arbitration. The arbitration award, which was rendered in July 1981, ordered SNH to reinstate Trevor Bennett as a cook and to pay him $3,500 for the monetary loss sustained by his improper dismissal. On appeal, SNH claims that the arbitrator was without power to entertain this grievance; that the arbitrator improperly looked beyond the bargaining agreement to determine SNH’s duties; and that the award on its merits conflicts with federal labor law. The Union in turn claims that this appeal is wholly without merit and frivolous, and demands that double costs and attorneys’ fees be awarded pursuant to 28 U.S.C. § 1912 and Fed.R.App.P. 38 and 39(a). Contrary to the Union’s assertions, we find the issues presented by this appeal substantial. While we affirm the judgment below, we deny appellee’s request for double costs and fees.

I.

Effective April 1, 1978, the Greater New York Health Care Facilities Association, Inc. (the Association), a multi-employer nursing home association to which appellant belonged, entered into a collective bargaining agreement with Local 144 covering various aspects of the employment of its members. The agreement had a three-year term until March 31, 1981. On October 30, 1980, SNH withdrew its membership from the nursing home association. On January 7, 1981, it discharged Trevor Bennett, an employee for nine years and a shop steward. Five weeks later, on February 12, 1981, Local 144 demanded arbitration concerning this discharge. SNH refused to arbitrate, claiming that under the terms of the collective bargaining agreement its withdrawal from the Association released it from all obligations under the contract, including the obligation to arbitrate.

In early March 1981, SNH moved for a stay of arbitration. Its motion came before Judge Cannella, who denied it in a memorandum opinion. He appeared to assume that the agreement had terminated prior to Bennett’s discharge, but held that under Nolde Brothers, Inc. v. Local 858, Bakery & Confectionery Workers, 430 U.S. 243, 255 n. 8, 97 S.Ct. 1067, 1074 n. 8, 51 L.Ed.2d 300 (1977) because of the broad arbitration clause in the labor contract, the duty to arbitrate employee grievances survived the termination of the contract, at least for a reasonable time. Three and one-half months (from October 30 to February 12) was held to be a reasonable time. SNH filed a timely notice of appeal, but withdrew it before the appeal was decided.¹

The dispute then proceeded to arbitration before Sidney A. Wolff, the arbitrator named in the contract. He found that contrary to the apparent assumption of the district court, the contract had not terminated. He appeared to reason that since the employer failed to give the 60-days notice of termination to the Union that is required by § 8(d)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(d)(1), or the 30-days notice to the Federal Mediation and Conciliation Services per § 8(d)(3), 29 U.S.C. § 158(d)(3), the contract continued “in full force and effect” under § 8(d)(4), 29 U.S.C. § 158(d)(4). Wolff also noted, and appeared to agree with, Judge Cannella’s broad construction of Nolde. On the merits of the grievance, Wolff found in favor of the Union, and directed that the discharged employee be reinstated and paid $3,500 “in full payment and settlement of his claim for monetary loss caused by his improper dismissal.” The Union returned to the district court to have the arbitration award confirmed, and by order dated October 7,1981, Judge Cannella did so.

II.

SNH claims that the award must be set aside under 9 U.S.C. § 10(d) because the arbitrator exceeded his powers in arbitrating this dispute. This is so, the employer argues, because the duty to arbitrate is purely a creature of contract, citing Procter & Gamble Independent Union v. Procter & Gamble Manufacturing Co., 312 F.2d 181, 184 (2d Cir. 1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963). The contract in issue here provided in section 32 that “[i]f the membership in the Association of any nursing home ... is terminated . . ., this agreement shall become null and void to such Employer.”² SNH claims that Judge Cannella had found in his decision to deny the stay that the contract terminated when SNH withdrew from the Association, and that this determination is dispositive of the Union’s rights. Citing International Union of Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 491, 92 S.Ct. 1710, 1712-1713, 32 L.Ed.2d 248 (1972), SNH argues that without a contract, it is under no obligation to settle grievances through the arbitral process.

We disagree with SNH’s mode of analysis. By focusing initially only on section 32 of the contract, SNH places the cart before the horse. As we have made clear in recent decisions, see McAllister Brothers, Inc. v. A & S Transportation Co., 621 F.2d 519, 521-23 (2d Cir. 1980); Rochdale Village, Inc. v. Public Service Employees Union, Local No. 80, 605 F.2d 1290,1294-97 (2d Cir. 1979), the arbitrability of any dispute turns in the first instance on the arbitration clause of the contract. This is so because our duty is to implement the intent of the parties. To determine their intent, we must first examine the terms of their contract. If its arbitration clause is broad, then we must find that the parties bargained to have any dispute that arguably falls within the scope of that clause settled through arbitration, absent compelling proof to the contrary. See United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 571, 80 S.Ct. 1343, 1364, 4 L.Ed.2d 1403 (1960) (Brennan, J., concurring) (“the parties may have provided that any dispute as to whether a particular claim is within the arbitration clause is itself for the arbitrator .... [T]he court, without more, must send [the] dispute to the arbitrator, for the parties have agreed that the construction of the arbitration promise itself is for the arbitrator ....”); Nolde, 430 U.S. at 252-55, 97 S.Ct. at 1072-1074 (broad arbitration clause creates a presumption of arbitrability). In Nolde, it was conceded that the contract had terminated when the dispute arose, yet the Court required arbitration. A fortiori, these principles apply if one of the key contract issues in dispute before the court is whether, as was the case in McAllister and in Rochdale, and as SNH contends here, the contract has terminated. See also United Steelworkers v. American Smelting and Refining Co., 648 F.2d 863, 866-67 (3d Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981); Goetz, Arbitration After Termination of a Collective Bargaining Agreement, 63 Va.L.Rev. 693 (1977); Note, The Scope of Arbitration Agreements — The Arbitrability of Collective Bargaining Agreement Terminations and Expirations: Rochdale Village, Inc. v. Public Service Employees Local 80, 9 N.Y.U.Rev.L. & Soc. Change 337 (1971-1980). This does not mean that, in the face of a claim that a contract with a broad arbitration clause has terminated, a court must always order arbitration simply because the other party to the contract requests it. In such a situation, there must at least be a colorable claim under the contract that the contract has not terminated. As will be seen below, such a claim exists here.

The arbitration clause in this case, section 8 of the contract, provides in part that:

8. GRIEVANCE PROCEDURE

A. All complaints, disputes, controversies or grievances arising between the parties hereto involving questions of interpretation or application of any clause of this agreement, or any acts, conduct or relations between any of the parties hereto and/or between the Union and any Employer, directly or indirectly, which shall not have been adjusted by and between those involved shall be submitted to the Impartial Chairman hereinafter mentioned for arbitration and his decision shall be final and binding upon the parties hereto. (Emphasis supplied). The first dispute between the Union and SNH is whether the contractual duty to arbitrate employee grievances terminated when SNH withdrew from the multi-employer association. That decision obviously involves the meaning of “null and void to such Employer” as used in section 32 of the contract, see note 2 supra. A question immediately arises whether, as SNH contends, its withdrawal from an association of employers could immediately terminate SNH’s obligations to the Union under the contract without notice to it. The question becomes more pointed because of the Union’s argument to us that under section 33 of the contract,³ SNH could not terminate the contract before the “expiration date” of March 31,1981, and 24 hours thereafter. The arbitration clause quoted above is a broad one, as the italicized language indicates. It encompassed “all” questions of “interpretation or application of any clause” of the agreement “or any acts, conduct or relations” between the parties, “directly or indirectly.” In light of this language, as we said in Rochdale, “all questions, including those regarding termination, will be properly consigned to the arbitrator. . . . ” 605 F.2d at 1295 (emphasis supplied). We find, therefore, that Judge Cannella properly allowed the arbitrator to decide the issue of whether SNH’s obligations under the contract had terminated.⁴

III.

SNH responds that even if the arbitrator had the power to decide whether the agreement had terminated, he exceeded his authority when he based his decision on federal law rather than on the contract. This argument is based on the well-known language of United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960), where Justice Douglas stated that:

[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.

The arbitrator noted that SNH “withdrew its membership in the Association” on October 30 but held that this “in and of itself did not terminate the collective bargaining agreement so far as [SNH] is concerned” because of SNH’s “failure ... to establish that it complied with” 29 U.S.C. § 158(d), reproduced in the margin.⁵ The arbitrator concluded that as a result SNH’s “attempt ... to terminate the labor agreement . . . must be deemed futile.”

The leeway given arbitrators to look at factors outside the contract has been much debated in recent years, see, e.g., Meltzer, Ruminations About Ideology, Law and Labor Arbitration, 34 U.Chi.L.Rev. 545, 558 (1967) (“Arbitrators should in general accord . .. respect to the agreement that is the source of their authority and should leave to the courts or other official tribunals the determination of whether the agreement contravenes a higher law.”); Kaden, Judges and Arbitrators: Observations on the Scope of Judicial Review, 80 Colum.L.Rev. 267, 288 (1980) (“Increasingly [the arbitrator] will find himself engaged in the difficult process of finding and applying external law .... ”). Cf. Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 743, 101 S.Ct. 1437, 1446, 67 L.Ed.2d 641 (1981). We reject a per se rule that denies enforcement of an award simply because it rests upon an arbitrator’s interpretation of external law. Arbitration is favored because it is fast and cheap. Rapid, binding decisions promote industrial peace and create a system of industrial self-government that is capable of fashioning remedies that are perhaps more flexible than those available in a court of law, United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578-81, 80 S.Ct. 1347, 1350-1352, 4 L.Ed.2d 1409 (1960). If, however, we confine the arbitrator to mechanically interpreting contracts in a vacuum, we critically hinder his ability to achieve these goals. The contract, after all, was drafted against a backdrop of stringent government regulation.⁶ It makes little sense to require the arbitrator to ignore this background and to render a decision that may be in conflict with the mandate of law and that therefore might later be set aside. This resolution would thwart federal policy rather than further it.

If we refuse to set aside the arbitration award on the ground that the arbitrator looked to external law, we must next deal with SNH’s argument that the award is invalid because of a conflict between our own decision in Procter & Gamble, supra, where we held that a union’s failure to give the 30-days notice required by § 8(d)(3) of the Act did not “have the effect of extending the period of the expired contract,” 312 F.2d at 189, and the arbitrator’s finding that SNH could not effectively terminate the contract without giving the Union the notice required by §§ 8(d)(1) and (3). While this apparent conflict is troublesome, I would leave for another day the question of the scope of review to be accorded arbitration awards that are based solely on an erroneous interpretation of public law,⁷ for I do not believe that Arbitrator Wolff’s award under this agreement can fairly be so characterized.

In ruling that the contract had not yet terminated at the crucial time,⁸ the arbitrator relied not only on § 8(d)(3) but also on § 8(d)(1), which deals with the failure of one party to a labor agreement to give 60-days notice of termination to the other. The Union argues to us that no notice of termination was given prior to the time that arbitration was sought, and SNH does not deny this contention.⁹ It is apparently SNH’s theory that under this contract, it could terminate its duties to the Union and its members without ever notifying the Union that all rights and obligations had been extinguished. Although Judge Newman does not join me in this view, I think that it is at least fairly arguable that the arbitrator rejected this interpretation, which would allow one side to terminate an agreement unilaterally and without unequivocal notice of termination to the other side. While he did not specifically refer to section 33 of the contract, which clearly requires 24-hours notice following the “expiration date” of March 31 for termination,¹⁰ the arbitrator, as already indicated, did focus on the notice problem when he ruled that the contract had not terminated. The arbitrator could certainly have concluded that by analogy the “null and void” provision of section 32 required at least a one-day unequivocal notice of termination to the union to be effective. Furthermore, in discussing the merits of the grievance, the arbitrator pointed out that throughout Bennett’s employment, SNH continued to recognize its obligations under the contract by checking off Bennett’s union dues and by contributing to the union pension funds. I cannot say, therefore, that the arbitrator’s conclusion that SNH did not terminate this agreement simply by withdrawing from the multi-employer association did not “draw . .. its essence” from the agreement.

Nor is Procter & Gamble necessarily to the contrary. A plausible argument can be made that the case stands only for the proposition that a contract is not extended by a party’s failure to notify the mediation authorities of its termination. Because the panel stated that it considered “[t]he requirement of notifying the federal and state mediation services ... a subordinate feature of the plan,” and that “[t]here is no suggestion in the text [of § 8(d)] that a failure to meet the notice requirements of paragraph (3) will have any effect on paragraph (4),” 312 F.2d at 188, I cannot say how the Procter & Gamble court would have ruled in the case at bar.

Because I find that the arbitration award could reasonably have been derived from the terms of the contract itself, I decline to set the award aside on the ground that the arbitrator’s reasoning disagrees with Procter & Gamble. Cf. Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 704 (2d Cir. 1981). This interpretation has the incidental benefit of laying to rest appellant’s “worst case” analysis, which it presented at oral argument. SNH claims that under the views expressed by Judge Cannella and the arbitrator, the duty to arbitrate continues forever. This holding, the employer argues, would ultimately frustrate federal policy because a complete inability to nullify the duty to arbitrate would discourage parties from committing themselves to arbitration provisions. But this scenario could not obtain in this case: The contract provides for continuation after expiration only “for such reasonable length of time thereafter as may be required for the negotiation of a new agreement”, and even then, either party could terminate on 24-hours notice; a claim years after the termination date that notice was still required by the contract would not be a colorable claim warranting arbitration.

IV.

The other challenges to the arbitration award presented by SNH are without merit. Appellant claims that under section 8H of the contract, grievances related to discharges that are not presented within 15 days of the discharge are waived.¹¹ It is well settled in this jurisdiction that procedural issues are for the arbitrator in the first instance, Conticommodity Services, Inc. v. Philipp & Lion, 613 F.2d 1222, 1226 (2d Cir. 1980), and that the arbitrator’s decision is then subject only to limited review, cf. Sobel v. Hertz, Warner & Co., 469 F.2d at 1214. While it is true that the arbitrator in his opinion did not explicitly focus on section 8H of the contract, the Union points out that SNH did not assert this objection until after the award was rendered. The arbitrator could well have found that a defense based on section 8H, which is so closely analogous to a statute of limitations defense, was waivable, and implicitly held by his refusal to reconsider the arbitration, that SNH had waived the objection in this case. We thus cannot say that there was no “colorable justification for the outcome reached.” Cf. Advance Publications, Inc. v. Newspaper Guild Local 8, 616 F.2d 614, 618 (2d Cir. 1980). Accordingly, we refuse to set aside the arbitration award on the ground that the grievance was not timely presented.

Finally, appellant claims that the award cannot be enforced because it conflicts with federal labor law. SNH points out that in February 1981, the National Labor Relations Board issued a complaint based on Trevor Bennett’s discharge. In that complaint, the Board described Bennett as a supervisor of SNH within the meaning of § 2(11) of the Act, 29 U.S.C. § 152(11). We do not see why this characterization in the complaint of the Regional Director necessitates setting aside the arbitrator’s award. Section 14(a) of the Act, 29 U.S.C. § 164(a), states that “[njothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization.... ” More important, only the requirements of the contract are in issue here. Section 1 of the contract provides that “[i]n the event any dispute arises as to whether or not an employee does in fact come within one of the excluded categories above mentioned [including supervisory employee], such dispute shall be submitted to arbitration for settlement and determination in the manner hereinafter provided.” The arbitrator specifically found that Bennett was not a supervisor within the meaning of the labor contract, and that the employer had recognized him as a member of the bargaining unit by checking off his dues and making contributions on his behalf to the union pension and welfare funds. Nor do we see any reason why the definition of “supervisor” in the contract must agree with its definition in federal law. This award does not conflict with national law or national policy and should not be set aside on that ground.

For the foregoing reasons, the judgment of the district court is affirmed. Double costs and attorneys’ fees are denied; appellee is entitled to the usual costs.

1 . The Union claims that the issue of arbitrability is no longer before this court because SNH’s failure to pursue an appeal of the stay action makes arbitrability the law of the case. While it is clear that an order granting a motion to compel arbitration is appealable, Goodall-Sanford, Inc. v. United Textile Workers, 353 U.S. 550, 77 S.Ct. 920, 1 L.Ed.2d 1031 (1957), under our case law an order denying a motion to stay arbitration is not appealable, Greater Continental Corp. v. Schechter, 422 F.2d 1100 (2d Cir. 1970). We believe in any event, as will be seen below, that Judge Cannella properly allowed the arbitration to proceed. v

2 . This section reads in full as follows:

32. INDEPENDENT CONTRACTS

If the membership in the Association of any nursing home consenting hereto is terminated for any reason whatsoever, this agreement shall become null and void to such Employer.

3 . Section 33 provides that:

33. DURATION

A. This agreement shall continue in full force and effect from April 1, 1978 through March 31, 1981.

B. This agreement shall continue in effect during negotiations even though such negotiations extend beyond the expiration date for such reasonable length of time thereafter as may be required for the negotiation of a new agreement. Following the expiration date, either party may terminate the agreement upon twenty-four (24) hours’ notice. Any wage increases included in such agreement shall be retroactive to the date of expiration.

4 . Diamond Glass Corp. v. Glass Warehouse Workers and Paint Handlers Local Union 206, 682 F.2d 301 (2d Cir. 1982), is not to the contrary. In that case, both parties acknowledged that the contract had expired by its terms prior to the Union’s demand for arbitration. Moreover, the Union apparently refused or was unable to demonstrate to the trial court’s satisfaction that the dispute either arose during the time that the contract was in effect or under its terms. Under the circumstances, there was no room to argue in that case that termination was an issue to be decided by the arbitrator, or that the obligation to arbitrate the dispute survived the termination of the agreement under Nolde.

5 . Section 8(d) of the National Labor Relations Act, 29 U.S.C. § 158(d) reads as follows:

(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification—

(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification;

(2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;

(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and

(4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later:

The duties imposed upon employers, employees, and labor organizations by paragraphs (2)-(4) of this subsection shall become inapplicable upon an intervening certification of the Board, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of section 159(a) of this title, and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any employee who engages in a strike within any notice period specified in this subsection, or who engages in any strike within the appropriate period specified in subsection (g) of this section, shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 158 to 160 of this title, but such loss of status for such employee shall terminate if and when he is reemployed by such employer. Whenever the collective bargaining involves employees of a health care institution, the provisions of this subsection shall be modified as follows:

(A) The notice of paragraph (1) of this subsection shall be ninety days; the notice of paragraph (3) of this subsection shall be sixty days; and the contract period of paragraph (4) of this subsection shall be ninety days.

(B) Where the bargaining is for an initial agreement following certification or recognition, at least thirty days’ notice of the existence of a dispute shall be given by the labor organization to the agencies set forth in paragraph (3) of this subsection.

(C) After notice is given to the Federal Mediation and Conciliation Service under either clause (A) or (B) of this sentence, the Service shall promptly communicate with the parties and use its best efforts, by mediation and conciliation, to bring them to agreement. The parties shall participate fully and promptly in such meetings as may be undertaken by the Service for the purpose of aiding in a settlement of the dispute.

Section 152(14) provides that:

(14) The term “health care institution” shall include any hospital, convalescent hospital, health maintenance organization, health clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged person.

In his award, Arbitrator Wolff did not take into account the variation in this statute that is applicable to nursing homes. This error, however, had no effect on his decision, and for purposes of this discussion, we have ignored the more onerous notice requirements imposed in the health care field.

6 . Kaden, supra at 285, cites as examples the Occupational Safety and Health Act, 29 U.S.C. §§ 651-658; the Employment Retirement and Income Security Act, id. §§ 1001-1381; the Age Discrimination in Employment Act, id. §§ 621-634; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; the Equal Pay Act of 1963, 29 U.S.C. § 206.

7 . We have often reiterated the proposition that “an award will not be set aside for a mistaken application of the law....” Local 771, I. A. T. S. E. v. RKO General, Inc., 546 F.2d 1107, 1113 (2d Cir. 1977); Sobel v. Hertz, Warner & Co., 469 F.2d 1211, 1214 (2d Cir. 1972). See also Wilko v. Swan, 346 U.S. 427, 436, 74 S.Ct. 182, 187, 98 L.Ed. 168 (1953). But it has been suggested that allowing arbitrators full reign to interpret public law according to their own understanding may not be consistent with the responsibilities, of a judge, see Kaden, supra at 288-89, Barrentine, 450 U.S. at 737, 101 S.Ct. at 1443.

8 . Bennett was discharged on January 7, 1981, and arbitration was demanded on February 12, 1981. The “expiration date” set forth in Section 33 of the contract was March 31, 1981.

9 . In post-argument letter briefs to us, the Union flatly states that it is undisputed that SNH “failed to demonstrate compliance with any portion ” of § 8(d), and SNH’s answering letter brief does not deny this. Moreover, after the arbitrator issued his award, SNH wrote him two letters rearguing two points. In neither letter did SNH claim that it had given unequivocal notice of termination to the Union, even though the second letter set forth its legal contention that a failure to give § 8(d) notice would not affect termination of the contract in this case.

10 . On these facts, it is not necessary to decide whether the contract between the employer and the Union could have been terminated before March 31, 1981.

11 . Section 8H provides in relevant part that:

Each grievance, in any event, shall be presented to the other party hereto in writing, on forms' adopted by the Union and the Association. Grievances arising from discharges, other disciplinary action or layoffs shall be presented within fifteen (15) work days from the time of the occurrence, or from the time such occurrence should reasonably have become known, whichever is later .... In the event a grievance relating to discharge, discipline or layoff is not presented within the time limitation set forth above, such grievance shall be deemed to have been waived by the aggrieved party and, for all purposes, barred ....