Crocker and Piedmont squarely addressed the issue of keeping Crocker's application active: Piedmont offered to do so in the form letter included with his application ("You may update the application information by mail, indicating your continued interest in being employed by Piedmont. Applications are removed from our active files after six months unless updated,"); on the application itself ("Please note that this application will remain active for 6 months from the date it is submitted. It will then be discarded, unless otherwise updated, and the applicant must renew his or her application if still desiring employment"); and orally in a communication by Welch to Crocker, to the effect that it was only necessary for Crocker to keep Piedmont "abreast" or updated as to what he was doing.
Further, Crocker accepted or attempted to accept this offer in the series of letters he sent Welch, on September 17, 1982 ("I continue to hope that soon . . . I will be called for training."), May 23, 1983 ("Re: Letter of Up-date "), October 27, 1983 ("I am still hopeful for a flight crew position, . . ."), and January 5, 1984 ("Re: Letter of Up-date "). Thus Piedmont offered to keep Crocker's application active if he "updated" it every six months, and Crocker accepted this offer by the letters he subsequently sent, thus creating, or attempting to create a unilateral contract. 1 A. Corbin, Corbin on Contracts § 70 (West1963).
Of course, all of this is to get at a proper way of ascertaining what meaning should be imparted to the term "update," and how the six months requirement should be computed, in deciding whether Crocker took sufficient steps to keep his application active. The term "update" is clearly vague: for example, it could simply mean a brief communication asking that the previously submitted application be kept on file (in which case Crocker was clearly in compliance); or it could require that Crocker inform Piedmont of any changes to information he gave on the application (which Crocker appears to have done); or it could have meant that an entirely new application form be completed and filed, as Piedmont contends it did (and which Crocker failed to do).
Further, the "6 months" term appears to have at least two possible meanings: that the application would remain active for six months after it was filed, and then for six months after each update was received; or, that the application would remain active for six months from the time it was first received, and if an update was received within that period, for a subsequent six months, and so forth. Note the crucial difference -- under the former meaning, Crocker's updates would not appear to have kept his application active until March, 1984; under the latter, they would have. These then would appear to be material questions for the finder of fact, not properly disposed of on summary judgment.
The jury might find, for example, as Piedmont has suggested, that it is commonly understood in the airline industry that a pilot applicant must submit an entirely new application form each time he wishes to update, and perhaps keep his physical exam results current as well. Or it might find that representations by Welch or his office to Crocker reasonably indicated that far less was required. And of course, it might well find that whatever the terms meant, Piedmont in fact had kept Crocker's file active through March, 1984.
But one other aspect relevant to this issue is striking: Crocker certainly believed he was taking the necessary steps to keep his application active with Piedmont, at least through January of 1984; and further, Piedmont was aware that Crocker so believed. All four letters to Welch made explicit Crocker's continuing desire to work for Piedmont; the first three referred to their interview in July, 1982; two of the letters contained the explicit caption "Re: Letter of Up-Date," and, the last three pointed out his status as a protected employee. From the four letters, Piedmont knew that Crocker was representing himself to be a protected employee, that he desired employment with the carrier, and that he believed he was complying with Piedmont's requirement for keeping his application file active. Under such circumstances, it would be unjust if Piedmont could now defeat vindication of Crocker's right of first hire on the ground that he failed to update his application.
Even if a jury were to conclude that Crocker misinterpreted the term "update," or the six months requirement, this would only mean that he had not satisfied a condition of Piedmont's offer to keep his application active; namely, the condition that he update every six months. Even so, this does not necessarily excuse performance by Piedmont -- such a contractual condition can be waived by an offeror. In particular, it may have been waived here by Piedmont's continuing to receive performance (i.e. the letters from Crocker) with knowledge that the condition had not been performed (that is, the letters did not constitute "updating", and/or they were not timely sent). 3A Corbin at § 755, citing Wenzel & Henoch Const. Co. v. Metrop. Water District., 115 F.2d 25 (9th Cir. 1940), cert. denied, 313 U.S. 560, 85 L. Ed. 1520, 61 S. Ct. 834 (1941) (contractor continued work even though progress payments not made), and Collins v. Collins, 348 Mich. 320, 83 N.W.2d 213 (1957) (vendor repeatedly accepted late payments; thus, purchaser could be granted specific performance).
Clearly then, at least at this stage of proceedings, Piedmont can not escape its duty to hire under section 43 by claiming Crocker failed to keep his application active. To the contrary, it seems more likely that Piedmont was obligated to keep Crocker's application active as a matter of contract law, although Crocker has not so moved.
It is therefore
ORDERED, that defendant's motion for summary judgment is denied, and it is further
ORDERED, that plaintiff's motion for partial summary judgment that he is a "protected employee" under section 43, which is unopposed by defendant, is granted.
© 1992-2004 VersusLaw Inc.