(dissenting).
I respectfully dissent.
In my judgment, the District Court properly submitted the question of whether Safeway had breached the collective bargaining agreement to the jury. There was a clear conflict between Article IX, § 9.3(e) of the Agreement and Article VIII, § 8.7. It was appropriate to ask the jury to resolve these ambiguities in the light of all of the evidence. There was evidence in the record, as the majority opinion points out, which tended to support the company’s interpretation of the collective bargaining agreement. On the other hand, there was evidence indicating that the Union officers acquiesced in that interpretation only because the night stockers were a minority in the Union.
A new trial is necessary, however, because the jury verdicts were inconsistent.
At the close of the evidence, the trial court instructed the jury that:
[i]f you find that the defendant Union Local 782 violated its statutory duty fairly to represent plaintiffs in respect to [their] grievances * * *, and further find that defendant Safeway Stores, Incorporated violated the Collective Bargaining Agreement * * * and if you further find that as a direct and proximate result of such violation that plaintiffs were damaged, then you shall find in favor of plaintiffs and against defendant Safeway Stores * * *.
The court then instructed:
If you find that defendant Union Local No. 782 violated its statutory duty fairly to represent plaintiffs in respect to the grievances * * *, and further find that as a direct and proximate result of such failure that plaintiffs were damaged, then you shall find in favor of plaintiffs and against defendant Union Local No. 782 * * *.
The jury was given the following four general verdict forms upon which to record their findings:
We the jury, in the above entitled cause, on Count I find all issues against the plaintiffs and in favor of the defendant Local No. 782 Retail Clerk Int’l. Assn., AFL-CIO.
We the jury, in the above entitled cause, find the issues for the plaintiffs and against the defendant Local No. 782 Retail Clerks Int’l. Assn., AFL-CIO on Count I and assess plaintiffs actual damages against said defendant in the sum of *1316$__We further assess exemplary damages against the defendant Local No. 782 Retail Clerks Int’l. Assn., AFL-CIO in the sum of $--
We the jury, in the above entitled cause, on Count I find all issues against the plaintiffs and in favor of the defendant Safeway Stores, Inc.
We the jury, in the above entitled cause, find the issues for the plaintiffs and against the defendant Safeway Stores, Inc. on Count I and assess plaintiffs actual damages against said defendant in the sum of $__
During their deliberation, the jury sent to the court several written questions, including one which asked:
Is it possible to render [a] verdict for one defendant and not the other?
Over the objection of the appellant, the court replied in writing, “Yes.”
The jury then returned verdict form number one, finding all issues against the plaintiffs and in favor of the Union, and form number four, finding all issues for the plaintiffs and against Safeway. The jury also awarded plaintiffs $3,256.33 assessed against Safeway.
In its motion for judgment notwithstanding the verdict or for a new trial, Safeway argued, inter alia, that the jury’s verdict finding “all issues against the plaintiff and in favor of the defendant Local No. 782” indicated that the jury had determined that the Union had not violated its duty of fair representation. This determination, Safeway argued, precludes, as a matter of law, any verdict against Safeway.
In its order denying these motions, the trial court initially recited the two instructions set forth above. The court then stated:
In returning a verdict in favor of the defendant Local Union No. 782, the jury was required to find either (1) that defendant Local Union No. 782 did not violate its statutory duty to represent the plaintiffs, or (2) that as a direct and proximate result of such failure, plaintiffs were not damaged. It is quite apparent, from the jury’s verdict against defendant Safeway Stores, that a finding was made that defendant Local Union No. 782 did in fact violate its statutory duty to represent the plaintiffs, but that as a direct and proximate result of the violation plaintiffs incurred no actual damages. The evidence provided a substantial basis for this latter finding in that the grievance would have been denied even if it were fairly and vigorously presented by the Union.
The law is clear that it must be assumed, in the absence of exceptional circumstances not stated or shown to be present in the case at bar, that the jury understood and properly applied the clear instructions in arriving at its verdicts. * * * Thus, it should be concluded that the verdicts are not inconsistent. (Emphasis included; citations omitted.)
The law is well established that in § 301 suits in order to recover damages against an employer for breach of a collective bargaining agreement where, as here, the grievance has not been considered through the existing binding arbitration procedures, a plaintiff must first prove that the union violated its statutory duty of fair representation in failing to pursue this claim through the grievance procedures. Hines v. Anchor Motor Freight, 424 U.S. 554, 564-567, 96 S.Ct. 1048, 1057-1058, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Butler v. Local U. 823, Int. Bro. of Teamsters, etc., 514 F.2d 442, 447 (8th Cir. 1975); Richardson v. Communication Workers of America, 443 F.2d 974, 981 (8th Cir. 1971).
The jury’s selection of verdict form number one, finding all issues against the plaintiffs and in favor of the Union, must be read to mean exactly what those words state: that the jury found that the Union had not violated its duty in failing to take the appellees’ grievance to arbitration. The jury’s subsequent choice of verdict form number four, finding liability and assessing damages against Safeway, provides no sup*1317port for the District Court’s conclusion that the jury also felt that the Union had violated its duty. The selection of these two verdict forms supports only the conclusion that the jury was confused as to what its responsibilities under the law were and, thus, returned inconsistent verdicts.
This conclusion is supported by several factors. First, the instructions given did not unambiguously state that the jury must find initially that the Union violated its duty of fair representation before it considers the employer’s liability. Second, the jury’s question to the court asking whether it could find for one defendant and not the other indicates that the jury was uncertain as to the applicable law. Although the District Court’s affirmative response is theoretically correct, in that the jury could find only against the Union and not against Safeway, the answer could also lead the jury to believe that it could legally find for the Union but against Safeway. Finally, the verdict forms themselves did not set forth the requirement that the Union be initially found liable.
In the face of these inconsistent verdicts, the present judgment cannot stand and a new trial is necessary. See Wood v. Holiday Inns, Inc., 508 F.2d 167, 175 (5th Cir. 1975); Hopkins v. Coen, 431 F.2d 1055, 1059 (6th Cir. 1970).
I would reverse and remand for that purpose.