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 &amp;  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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                             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

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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,

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                             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 &amp; 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 &amp; 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). 

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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  &amp;  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,

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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

                            -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

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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

                            -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.
                  

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