
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.                                         -3-                                          3                       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                                         -4-                                          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                                         -6-                                          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                                         -7-                                          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).                                          -8-                                          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                                         -9-                                          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,                                         -10-                                          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                                         -11-                                          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                                         -12-                                          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                                         -13-                                          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                                         -14-                                          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.                       ________                                         -15-                                          15
