Achilli v. John J. Nissen Baking Co. , 989 F.2d 561 ( 1993 )

March 29, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1167
JOHN ACHILLI,
Plaintiff, Appellee,
v.
JOHN J. NISSEN BAKING CO., ET AL.,
Defendants, Appellees.
TEAMSTERS LOCAL UNION NO. 64, ETC.,
Defendant, Appellant.
No. 92-1221
JOHN ACHILLI,
Plaintiff, Appellant,
v.
JOHN J. NISSEN BAKING CO. AND
TEAMSTERS UNION LOCAL 64, ETC., ET AL.,
Defendants, Appellees.
No. 92-1407
JOHN ACHILLI,
Plaintiff, Appellant,
v.
J.J. NISSEN BAKING CO., ET AL.,
Defendants, Appellees.
No. 92-1408
JOHN ACHILLI,
Plaintiff, Appellee,
v.
J.J. NISSEN BAKING CO., ET AL.,
Defendants, Appellees.
TEAMSTERS UNION LOCAL 64, AFFILIATED
WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Breyer, Chief Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Marc B. Gursky for Teamsters Union Local No. 64, etc.
Arthur P. Menard with whom Cuddy, Lynch & Bixby was on brief for
John J. Nissen Baking Co.
Mark L. Galvin for John Achilli.
March 29, 1993
BREYER, Chief Judge. On April 4, 1988, John
Achilli, a union shop steward and a bakery sales driver at
the John J. Nissen Baking Company, told other drivers not to
load extra boxes of cream horns (a kind of eclair) that
Nissen wanted them to transport. Nissen immediately
dismissed Achilli for having violated an anti-wildcat
provision in the collective bargaining agreement. Achilli
went to arbitration, lost, and then brought this lawsuit
against his Local Union (as well as Nissen), claiming that
the Local had not represented him properly. See Labor
Management Relations Act ("LMRA") 9(a), 301(a), 29 U.S.C.
159(a), 185(a); Vaca v. Sipes, 386 U.S. 171 (1967). The
district court agreed with Achilli that 1) the Local should
have told the arbitrators that Achilli, in effect, was
following union orders, and 2) had the arbitrators (or
Nissen) known this, Achilli probably would have kept his
job. The court awarded Achilli damages of $15,000 plus
attorneys' fees. The Local and Achilli have filed appeals.
We affirm the judgment.
I.
The Local Union's Appeal
The Local makes six arguments, which we shall
discuss in turn.
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1. The Basic Violation. The Local argues that
the evidence does not support the district court's finding
that it failed to fulfill its legal obligation to represent
its member Achilli fairly. See Vaca, 386 U.S. at 190. This
obligation, "judicially developed as a necessary corollary
to the [union's] status of exclusive representative," The
Developing Labor Law 1409 (Patrick Hardin ed., 3d ed. 1992),
does not require perfect representation, or even
representation free of negligence. Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554, 571 (1976) ("[t]he grievance
process cannot be expected to be error-free"); United
Steelworkers of America, etc. v. Rawson, 495 U.S. 362, 372-
73 (1990) (union's "mere negligence" does not state a claim
for breach of duty of fair representation). It does mean,
however, that a labor organization will be liable if it
significantly harms its members through actions that are
arbitrary, reckless, or in bad faith. Vaca, 386 U.S. at
190; Alicea v. Suffield Poultry, Inc., 902 F.2d 125, 129-30
(1st Cir. 1990). See also Theodore Kheel, Labor Law
28.04[2][c] at 28-65 (1989) ("reckless disregard" of unit
employee's interests is actionable breach of duty of fair
representation). And, the evidence here supports a finding
that the Local acted in bad faith, intentionally failing to
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represent Achilli properly for reasons unrelated to
legitimate union objectives. Amalgamated Ass'n of Street,
etc. v. Lockridge, 403 U.S. 274, 301 (1971).
The evidence in the record, read favorably to
Achilli, the winning party, reveals the following:
1. Achilli, a driver-salesman and shop steward,
had worked at Nissen for ten years.
2. During 1987 and 1988, Nissen management would
sometimes provide drivers with more boxes of
pastry than the drivers had expected. This
practice -- of supplying what the drivers
called "add-ons" -- was a source of
continuing controversy.
3. In October 1987, at a Local meeting, Paul
Hanoian, the Local's Business Agent, told
Achilli and other drivers that they were "not
to take unnecessary add-[ons]" and that it
was "left up to the shop steward to decide"
whether or not a particular add-on was
"unnecessary."
4. On April 4, 1988, Nissen doubled the number
of cream horns the drivers were to carry,
leading many drivers to object. Achilli
wrote a sign telling the drivers to leave the
"add-on cream horns" behind, and several did
so.
5. Later that day, Hanoian learned of the add-on
cream horn incident, and that Nissen intended
to dismiss Achilli, while retaining the other
drivers. Hanoian spoke to Nissen, conceded
that Achilli's conduct was improper, but
asked Nissen to retain Achilli anyway.
Hanoian said nothing about his October
meeting instruction.
6. Nissen dismissed Achilli. The Local sought
arbitration. It provided a union official,
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Joseph Padellero, to represent Achilli.
Achilli told Padellero (with Hanoian present)
that he had "left the cream horns behind
because of the meeting . . . in October."
Hanoian replied, "You can't say that . . .
.[T]he company can sue the union if you say
that." And Hanoian later repeated, "Well,
you just can't say that."
7. Later, at the arbitration meeting, Padellero
conceded that Achilli's action violated the
collective bargaining agreement. And, while
he pointed out various mitigating
circumstances, he said nothing about the
October meeting instruction. The arbitration
panel decided against Achilli (2-0).
These facts indicate a conflict between the
Local's duty to represent a member fairly and the Local's
own interest. The Local resolved the conflict in its own
favor. The evidence shows no legitimate reason for the
Local's choice, and it does not show that a contrary choice
would have hurt the Local. Cf. Ooley v. Schwitzer Div.,
Household Mfg. Inc., 961 F.2d 1293, 1303 (7th Cir. 1992).
The evidence also permitted the district court to find that,
had the Local resolved the conflict differently -- had it
told Nissen or the arbitrators about the October meeting
instruction --then Achilli, like the other wildcatting
drivers, would have kept his job. At trial, the Local
defended itself primarily by trying to show a different
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version of the facts. But, the district court believed
Achilli's witnesses, not the Local's.
The Local adds that Achilli, on his own, could
have told the arbitrators about the October meeting
instruction. But, the district court could reasonably find
the contrary, namely that the Local's pressure, along with
Achilli's dependence upon his representative at the hearing,
make his failure to volunteer this information
understandable, indeed, less than purely voluntary, and,
therefore, insufficient to absolve the Local of causal
responsibility. Cf. Alicea, 902 F.2d at 127-29 & n.6, 133.
2. Exhaustion. The Local argues that Achilli
should have exhausted internal union remedies before
bringing this lawsuit. Clayton v. Int'l Union, United
Auto., etc., 451 U.S. 679 (1981). We have no doubt that the
exhaustion requirement is critically important, for it helps
to guarantee union self-government and independence. See
NLRB v. Indus. Union of Marine & Shipbuilding Workers, 391
U.S. 418, 429 (1968) (Harlan, J., concurring). But, the
Local cannot insist that Achilli exhaust a remedy that does
not exist. Clayton, 451 U.S. at 689 (1981). Here, the
Local, to demonstrate the existence of an internal remedy
that might have given Achilli the damages he seeks, simply
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pointed to Article XIX, section 9(a) of the Teamsters
Constitution, which reads as follows:
Decisions and penalties imposed upon . .
. Local Unions . . . found guilty [by
the Teamsters' internal appeals
tribunal] of charges [brought by
aggrieved members] may consist of
reprimands, fines, suspensions,
expulsions, revocations, denial to hold
any office . . ., or commands to do or
perform, or refrain from doing or
performing, specified acts. . . . If a
fine is assessed against a Local Union .
. . the payment shall be to the treasury
of the Joint Council.
This provision does not say that the internal procedure
permits the award of damages. Its statement that any "fine"
will be made "to the treasury of the Joint Council" suggests
the opposite. And, two federal circuits have said that this
provision seems not to provide for a damage remedy. Beyene
v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.
1988); Winter v. Local Union No. 639, etc., 569 F.2d 146,
149 (D.C. Cir. 1977). The Local provided no affidavits, nor
did it point to a single example that might suggest the
contrary. In these circumstances, the district court could
properly hold that the Local failed to prove the existence
of an internal damage remedy. See Doty v. Sewall, 908 F.2d
1053, 1061 (1st Cir. 1990).
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3. Breach of the Collective Bargaining Agreement.
The Local argues that, whether or not Achilli was following
Hanoian's instructions, Achilli nonetheless violated the
collective bargaining agreement, which prohibited union
representatives from inciting work-stoppages. Hence, Nissen
had "just cause" to dismiss Achilli, and Nissen did not
breach the contract in doing so. The Local adds that a
section 301 plaintiff must prove not only that the union
breached its duty to represent him fairly, but also that the
employer violated the collective bargaining agreement. LMRA
301(a), 29 U.S.C. 185(a); see Kissinger v. United States
Postal Service, 801 F.2d 551, 553 (1st Cir. 1986).
The short, conclusive answer to this argument is
that the district court found that the arbitrators would
likely have ordered Achilli reinstated. And, that holding
had adequate record support. Arbitrators, who are primarily
responsible for interpreting contractual terms such as "just
cause," normally insist that employers impose punishment in
a consistent manner, treating alike employees who act alike,
at least in the absence of a reasonable basis for a
variation. See Frank Elkouri & Edna Asper Elkouri, How
Arbitration Works 684 (4th ed. 1985). The evidence here
shows that Nissen did not discipline a different shop
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steward who, following union instructions, had instituted,
or at least condoned, another work stoppage. It also shows
that Nissen did not punish any of the other drivers who, on
April 4 and 5, 1987, engaged in a wild-cat work stoppage at
the direction of their union representative, namely,
Achilli. The district court could therefore have reasonably
predicted that Achilli's arbitrators would have set aside
his dismissal as lacking "just cause" had it only known that
Achilli, too, was following instructions.
4. Measuring Damages. The district court found
that the Local's bad faith conduct led to Achilli's
discharge. It measured the harm inflicted by taking the
wages that Nissen would have paid Achilli as long as he was
looking for work, and subtracting the wages he earned in
other, interim jobs. The total award came to about $15,000.
The Local argues that the court's damage award was legally
improper.
First, the Local says that the court should not
have made an award, but instead should have resubmitted the
case to arbitration, or, at least, have subtracted from the
$15,000 award a sum representing a lesser, but alternative,
punishment that a knowledgeable Nissen or arbitration board
might have imposed in lieu of discharge. The law, however,
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grants courts broad authority to create an "appropriate
remedy" for a breach of the duty of "fair representation,"
which remedy may "vary with the circumstances of the
particular breach." Vaca, 386 U.S. at 195. The
circumstances here include fairly strong evidence that a
fair arbitration proceeding would have led to reinstatement,
little evidence that it would have meant any large monetary
punishment, no evidence about the precise amount of any such
penalty, a fairly small damages award, and comparatively
large administrative costs and delays attached to any new
arbitration proceeding. These circumstances, in our view,
make the $15,000 damage remedy a fair and practical remedy.
Given these circumstances, the court need not have
resubmitted the matter to arbitration, nor need it have
subtracted some unknown small sum as representing a
hypothetical alternative punishment. Id. at 196; Kheel,
Labor Law 28.02[2][iii] at 28-22.
Second, the Local argues that Achilli did not
properly mitigate his damages by looking for alternative
employment after he was discharged. The record, however,
contains evidence that Achilli did read newspaper
advertisements but found nothing comparable; that he
investigated a job possibility with a lumber company, which
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he turned down because "it didn't pay enough money"; and
that his failure to pursue a job prospect to deliver bread
in Worcester was due to the long commute and the fact that
he had received no definite offer. Though the issue is a
fairly close one, the district court, in our view, could
conclude from this evidence that the Local failed to prove
non-mitigation. See NLRB v. Arduini Mfg. Corp., 394 F.2d
420, 423 (1st Cir. 1968) (union bears burden of proving that
the employee failed to make a reasonable search for post-
termination employment).
Third, the Local argues that the district court
should have required the employer, Nissen, to pay a share of
the damages. The short answer to this claim, however, is
that the court apportions liability between employer and
union "according to the damage caused by the fault of each."
Vaca, 386 U.S. at 197. Here, the court could reasonably
conclude that the employer was not at fault. Hence, its
apportionment of all the damages to the Local is reasonable
and lawful. See Baskin v. Hawley, 807 F.2d 1120, 1132-33
(2d Cir. 1986).
Fourth, the Local, conceding that the court may
award attorney's fees as part of the damages that it caused
Achilli, argues that the court should have subtracted from
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total fees an amount reflecting legal time spent on
Achilli's unsuccessful legal claims. Lewis v. Kendrick, 944
F.2d 949, 957-58 (1st Cir. 1991). This apportionment,
however, is primarily for the district court, not this
court, to make. Zuniga v. United Can Co., 812 F.2d 443, 454
(9th Cir. 1987). The record before us adequately supports
its conclusion that the legal time and energy spent on
unsuccessful claims was either not readily separable from
that spent on the successful claims, or separable but not
significant.
II.
Achilli's Appeal
Achilli makes two arguments. First, he says that
the district court should have ordered Nissen to reinstate
him, something that Nissen is now no longer willing to do.
The district court, however, could lawfully have found that
reinstatement is no longer practicable. See De Arroyo v.
Sindicato de Trabajadores Packinghouse, 425 F.2d 281, 292
(1st Cir.), cert. denied, Puerto Rico Tel. Co. v. De Arroyo,
400 U.S. 877 (1970).
Regardless, Achilli's complaint did not mention
reinstatement; and, during trial, when Achilli was asked
whether he had any interest in returning to Nissen, he said
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that he did not. We concede that, at the very end of trial,
Achilli's counsel, in the context of talking about insurance
benefits, said that Achilli would receive "credit . . . if
reinstated," and, in response to the court's question
whether Achilli was "asking for reinstatement" answered, "he
is." But, counsel immediately added the rather obscure
comment that Achilli might "take the position that the Court
can order reinstatement," and, if the court did so, he "can
make a decision as to whether he would accept reinstatement
or not." In this context, the court found that Achilli had
waived the reinstatement remedy. That finding, in our view,
is lawful. Tinsley v. United Parcel Service, Inc., 665 F.2d
778, 779 (7th Cir. 1981), overruled on other grounds, Rupe
v. Spector Freight Sys. Inc., 679 F.2d 685 (7th Cir. 1982).
Second, Achilli says that the district court
wrongly decided to end its damage calculation as of January
1, 1989, when the court found that Achilli had stopped
trying to mitigate his damages. Achilli concedes that, on
that date, he stopped looking for bread delivery work, and
began his own house painting business. He says his decision
to start that alternative, lower paying, business amounted
to reasonable mitigation. The problem for Achilli, however,
is that the district court decided that his decision to stop
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searching and start painting was not reasonable mitigation,
but, rather, constituted a failure to use "reasonable
diligence in obtaining new employment," and thereby to
mitigate loss of income. Arduini, 394 F.2d at 423. This is
a matter primarily for the district court. In reviewing
this conclusion, we have compared the more extensive search
efforts made in NLRB v. Ryder System, Inc., 983 F.2d 705(6th Cir. 1993), with Achilli's efforts here. In Ryder, a
wrongfully discharged trucker "diligently sought work as a
truckdriver," taking short-term jobs at seven different
trucking firms for two years, and sending applications to
twenty others. Id. at 714-15. Achilli, by contrast, looked
for work for nine months, during which time he failed to
follow up on several union-provided leads. However we would
have decided the question were we a trial court, these
circumstances are sufficient on appeal to justify a district
court conclusion that Achilli gave up too soon.
For these reasons the judgment of the district
court is
Affirmed.
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