dissenting:
I respectfully dissent. In summary, I conclude that the district court correctly *797performed its duties of fact finding and contract interpretation. The language of the Memorandum of Agreement was obviously vague. The district court conducted a trial, with the essential issues being the history of the events and the intentions of the parties. The district court then made its decision on intent, and concluded that the Memorandum of Agreement was not intended “to be a binding contract.” The court found the memorandum too vague to determine duty, breach, or remedy. I believe that the district court correctly applied the law, and that its findings of fact were certainly not clearly erroneously, the standard by which this appellate court must review those findings.
With respect to Clause One: The agreement by the Company was simply to “consider in good faith.” The decisions were left to the unilateral discretion of the Company. After hearing the evidence of conduct and intent, the district court found that there was an absence of intent to make a contract, that the clause was too vague to be enforced, and that the determination of a remedy would be futile. Being grounded in the evidence presented at trial, the factual conclusions of the district court were not clearly erroneous. Whatever duties to negotiate may exist in other contexts, and whatever freedom to fashion remedies may exist in other cases, the district court determined after trial that those duties and remedies were not enforceable here.
Even if Clause One were certain enough to be enforced under applicable law, the district court also found that there was no breach. The obligation of the Company was to “consider.” After trial the district court found that the Company had in fact “engaged in good faith negotiations.” That finding of fact was not clearly erroneous from the evidence which the district court heard. The burden of proof on the issue of breach lay with the union, and the union’s argument here is that the Company did not supply it with cost information necessary for the union to submit a proposal. But the memorandum of agreement says nothing about any obligation to submit information, only that the Company consider any proposals submitted by the union.
With respect to Clause Two: The clause provides that when “in the opinion of the Company,” the equipment becomes “inoperative, unsafe, or uneconomical to operate,” the operation can be shut down. Those matters were vested in the unilateral discretion of the Company. The district court found that the clause was ambiguous and took evidence in an attempt to resolve the ambiguity. The union had the burden of proof, and the district court determined after hearing the evidence that it could not determine that a breach had occurred. Its factual conclusion was correct and certainly not clearly erroneously.
I would affirm the decision of the district court.