Achilli v. Baking Co.

• Court: Court of Appeals for the First Circuit
• Decided: March 29, 1993
• Docket: 92-1167
• Status: Published

Opinion

USCA1 Opinion

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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                                          4

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,

                                         -5-
                                          5

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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                                          6

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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                                          7

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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                                          8

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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                                          9

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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                                          10

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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                                          11

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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                                          12

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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                                          13

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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                                          14

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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