                                                               F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                                 PUBLISH
                                                               AUG 24 1998
                    UNITED STATES COURT OF APPEALS
                                                             PATRICK FISHER
                                                                   Clerk
                               TENTH CIRCUIT



ROBERT D. LAMPKIN,

      Plaintiff-Appellee,

v.

INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW);
LOCAL NO. 1093 OF THE
INTERNATIONAL UNION, UNITED
                                               No. 96-5212
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW),

      Defendants-Appellants,

and

MCDONNELL DOUGLAS-TULSA, a
division of McDonnell Douglas
Corporation,

      Defendant.




         APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE NORTHERN DISTRICT OF OKLAHOMA
                      (D.C. No. 93-CV-200-E)
Steven R. Hickman of Frasier, Frasier & Hickman, Tulsa, Oklahoma, for
Defendants-Appellants.

Jon B. Comstock, Bentonville, Arkansas, for Plaintiff-Appellee.


Before BALDOCK and HOLLOWAY, Circuit Judges, and BROWN,* Senior District
Judge.


HOLLOWAY, Circuit Judge.


       The McDonnell Douglas Corporation (the employer or the company) terminated the

employment of plaintiff-appellee Robert Lampkin because of his absenteeism. Lampkin

brought suit in District Court of Tulsa County, Oklahoma, against McDonnell Douglas for

wrongful termination in February 1993. With his claim against McDonnell Douglas, plaintiff

joined claims against his unions, the International Union, United Automobile, Aerospace &

Agricultural Implement Workers of America and Local 1093 of the UAW, its local affiliate

(collectively referred to hereinafter as the unions), for breach of the duty of fair

representation in his behalf. Thus this was a “hybrid” action under section 301 of the Labor

Management Relations Act (LMRA), 29 U.S.C. § 185.

       The defendants removed the case to the United States District Court for the Northern

District of Oklahoma in March 1993. I Aplt. App. at 175. While the notice of removal is not

in the appendix, the Agreed Pretrial Order states that plaintiff asserts three claims: (1) for his


       The Honorable Wesley E. Brown, Senior United States District Judge for the District
       *

of Kansas, sitting by designation.

                                               -2-
allegedly unlawful discharge by McDonnell Douglas in violation of his rights under the

collective bargaining agreement; (2) for breach by defendant UAW and Local 1093 of their

duty of fair representation owed to plaintiff Lampkin; and (3) for allegedly tortious

interference with economic expectation for plaintiff relating to unemployment compensation.

The first and third claims are not at issue in this appeal. The jurisdiction of the district court

is said to be conferred by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185.

As to claims (1) and (2), the case is one of which the district courts of the United States have

original jurisdiction and was therefore removable to the district court. 28 U.S.C. § 1441.

       After a jury trial, McDonnell Douglas was found liable for wrongful termination in

breach of the collective bargaining agreement and for damages of $16,500 to plaintiff

Lampkin. McDonnell Douglas commenced an appeal from the judgment against it, but

dismissed its appeal after reaching a settlement with Lampkin.

       On the verdict form, the jury also found that the unions had breached their duty of fair

representation of Lampkin but awarded no damages against the unions. I Aplt. App. at

114-15. In addition to the verdict form, the jurors had been given a special interrogatory to

be completed only in the event that they determined that the unions had breached their duty

of fair representation. On this form, the jurors were asked whether “the attorney fees

chargeable to the efforts required of plaintiff to enforce the collective bargaining agreement

against the employer[] should be awarded as an element of damage to the plaintiff?” This

interrogatory then informed the jurors that if they answered that question in the affirmative,


                                               -3-
which the jurors did, then the court would “conduct a hearing after the jury has been

dismissed at which time the court will hear evidence and determine the amount of any fee

to be awarded.” I Aplt. App. at 116.

       The district judge ultimately awarded attorneys’ fees in the amount of $13,027.48

against the unions as compensatory damages due from the unions for breach of their duty of

fair representation of Lampkin. The unions then commenced this appeal after the district

court had denied a second motion under Fed. R. Civ. P. 50(b).1 We have jurisdiction of this

appeal pursuant to 28 U.S.C. § 1291.

                                              I

       We, sua sponte, noted a possible problem regarding the scope of our jurisdiction and

ordered the parties to submit memoranda on this issue: Whether this court has jurisdiction

to review the judgment on the merits where the notice of appeal was filed more than 30 days

after entry of the order of March 22, 1996, denying the appellant unions’ Rule 50 motion?

We conclude that we have jurisdiction over all issues raised by the unions.

       The jury verdict was returned on April 6, 1994, but, as noted, the jury put zeroes in

the blanks asking for the amount of damages against the two unions. The court did not

immediately enter judgment on the jury verdict, but invited the parties to submit proposed


       1
        We note that in the district court the local affiliate union argued that it was not the
bargaining representative of the employees. Because no such argument is raised on appeal,
we may properly treat all issues as affecting the international union and the local affiliate
identically. See Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1357 n.8 (10th Cir.
1994).

                                             -4-
judgment forms and motions as to the issue of attorneys’ fees that might be awarded against

the unions. All three defendants filed post-trial motions for judgment as a matter of law

under Fed. R. Civ. P. 50(b) within ten days of the jury verdict. Also within ten days of the

verdict, plaintiff Lampkin filed an “Application For Post-Verdict Determination of Attorney

Fees and Entry of Judgment On Jury Verdict.” Judgment was entered against McDonnell

Douglas on April 29, 1994, but entry of judgment against the unions did not come until later.

       The district court held a hearing on the motions of Lampkin and the unions on

November 7, 1995, at which the judge denied the unions’ Rule 50(b) motion and took the

remaining issues under advisement. IV Aplt. App. at 1034. On March 22, 1996, the district

judge entered an order formally denying the unions’ motion for judgment as a matter of law

and setting a hearing to determine the number of attorney hours for which plaintiff should

be compensated. Testimony and argument were heard on April 10, 1996, and the judge fixed

Lampkin’s recovery at $13,027.48. Judgment in that amount was entered on May 14, 1996.

I Aplt. App. at 127-28. On May 28, 1996, the unions filed a second Rule 50(b) motion,

which alternatively asked for a new trial. The district court denied that motion in an order

entered on September 3, 1996, and the unions filed their notice of appeal on September 12.

       Lampkin urges that the district court’s order of March 22, 1996, which denied the

unions’ post-trial motion for judgment as a matter of law, was an appealable final order “on

the merits.” Accordingly, Lampkin contends that the unions’ appeal is timely only as to the

amount of fees awarded. At argument, counsel for Lampkin stated that the case most closely


                                            -5-
on point is Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988). We disagree. The

holding in that case was that, even in diversity cases, the question whether the district court’s

decision on the merits is appealable before the attorneys’ fees determination has been made

is one of federal law under which the determination of attorneys’ fees is ordinarily a

collateral matter which does not suspend finality of the judgment on the merits. Id. at 200,

202. See White v. New Hampshire Dept. of Employment Security, 455 U.S. 445 (1982).

       In Budinich, the Court rejected an argument that “the general status of attorney’s fees

for [28 U.S.C.] § 1291 purposes must be altered when the statutory or decisional law

authorizing them makes plain . . . that they are to be part of the merits judgment.” 486 U.S.

at 201. A close reading of the Court’s opinion reveals, however, that the holding there does

not apply to cases such as this one, which does not involve an award for the prosecution of

the case against the unions, but instead makes the unions responsible, as a part of

compensatory damages, for the attorneys’ fees incurred in pressing plaintiff’s claim against

the employer.

       Budinich held that “the § 1291 effect of an unresolved issue of attorney’s fees for the

litigation at hand should not turn upon the characterization of those fees by the statute or

decisional law that authorizes them.” Id. at 201 (emphasis added). This limitation of the

Court’s holding to attorneys’ fees requests for the “litigation at hand” is crucial to our

resolution of the jurisdictional issue here. The Court justified its holding in large part by the

substantial need for a uniform rule providing “operational consistency and predictability in


                                              -6-
the overall application of § 1291.” Id. at 202. The Court repeated the limitation of its

holding, on which we rely in this case, when it said that the goal of consistency and certainty

of application under § 1291 “requires, we think, a uniform rule that an unresolved issue of

attorney’s fees for the litigation in question does not prevent judgment on the merits from

being final.” Id. (emphasis added). Nor are these the only expressions in the case which we

take as instructive here. Repeating the holding that we have just quoted and its underlying

policy considerations, the Court said: “Courts and litigants are best served by the bright-line

rule, which accords with traditional understanding, that a decision on the merits is a ‘final

decision’ for purposes of § 1291 whether or not there remains for adjudication a request for

attorney’s fees attributable to the case .” Id. at 202-03 (emphasis added). In spite of the

Court’s recognition of the need for a bright-line rule, the holding is not universally

applicable. We think the Court’s careful limitation of the type of attorneys’ fees recoveries

subject to its holding was a recognition that there are cases which must be analyzed

differently. And we are convinced that this is such a case.

       Under the circumstances of this case the award of attorneys’ fees is an award of

compensatory damages for breach of the duty of fair representation under the LMRA, which

only incidentally happens to be measured in this instance solely by the attorneys’ fees

incurred by the plaintiff Lampkin. It has long been recognized that in these hybrid actions

by an employee against the employer and the union,

       [t]he governing principle . . . is to apportion liability between the employer and
       the union according to the damage caused by the fault of each. Thus, damages

                                              -7-
       attributable solely to the employer’s breach of contract should not be charged
       to the union, but increases if any in those damages caused by the union’s
       refusal to process the grievance should not be charged to the employer.

Vaca v. Sipes, 386 U.S. 171, 197-98 (1967). In applying this governing principle, a number

of cases have reasoned that an employee’s damages are increased when he is forced to incur

attorneys’ fees in order to achieve the result that the union, as his bargaining representative,

should have obtained for him, and that this increase in damages, consisting of fees incurred

in pursuing the claim against the employer, is properly recoverable against the union. The

theory has been concisely explained by the Third Circuit:

       When there is a legal duty to provide representation, whether that duty arises
       out of a contractual undertaking or, as here, by operation of law, if the
       representation is wrongfully withheld, the cost of substitute representation
       should be recoverable damages. This is not to say that in the suit against the
       Union fee shifting as such would be appropriate. Rather, the employee should
       recover as damages from the Union only the attorneys’ fees incurred in
       pursuing the section 301 claim against the employer – consequential damages
       flowing from the Union’s alleged breach of its duty of fair representation.

Ames v. Westinghouse Electric Corp., 864 F.2d 289, 293 (3d Cir. 1988). We have not found

a case from our own circuit in which we have applied this principle, but we have noted its

application in Ames. Aguinaga v. United Food & Commercial Workers Internat’l Union, 993

F.2d 1480, 1483 n.2 (10th Cir. 1993).

       In sum, we hold under the circumstances of this case the award of attorneys’ fees

recovered by the plaintiff represents compensatory damages and is inseparable from the

“merits” of plaintiff’s claim against the unions. As an integral part of the merits those

damages — the attorneys’ fees — were not settled until denial on September 3, 1996, of the

                                              -8-
unions’ second Rule 50(b) motion, following which a timely notice of appeal was filed on

September 12, 1996. Accordingly we find no jurisdictional defect and will proceed to

consider all of the issues raised by the unions. As further support for our jurisdictional

holding, we note that no judgment on a separate document in compliance with Fed. R. Civ. P.

58 was entered against the unions until May 14, 1996, and the time for appeal from the

judgment was extended by the unions’ filing on May 28, 1996, of a motion for judgment as

a matter of law under Fed. R. Civ. P. 50(b).

                                               II

                                               A

       On the merits, the unions first argue that the judgment against them should be reversed

because Lampkin failed to produce sufficient evidence to maintain his claim against the

company for wrongful termination in breach of the collective bargaining agreement.

Lampkin stipulated below and acknowledges on appeal that success on his claim against the

company is a prerequisite to his claim against the unions. The theory of liability against the

unions is that they breached their duty to bargain in good faith on behalf of Lampkin and that

he suffered legal injury as a result. If Lampkin’s claim against the company had failed, then

ipso facto he could not prove that he suffered legal injury because of the alleged dereliction

of duty by the unions; instead, in that event, the conclusion necessarily would be that no

amount of effort by the unions on Lampkin’s behalf would have produced a favorable

outcome for him. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151,


                                               -9-
164-65 (1983) (claims against union and against employer are “inextricably interdependent”);

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71 (1976) (“To prevail against either

the company or the Union, [the employees] must not only show that their discharge was

contrary to the contract but must also carry the burden of demonstrating breach of duty by

the Union.”).

       The collective bargaining agreement as applicable to Lampkin would allow for his

“discharge for cause.” Agreed Pretrial Order, I Aplt. App. 23. At trial the company

attempted to prove the discharge was based on Lampkin’s violation of the company’s

attendance policy.2 Lampkin did not dispute that violation of the attendance policy could be

sufficient cause for discharge, but contended that he had not violated the policy because his

last absences were, or should have been, excused. We agree with Lampkin’s position that

the record supports the jury’s verdict.

       Lampkin’s case was based primarily on his own testimony. Much of his testimony

was challenged by evidence presented by the employer or the unions. However, on appeal

we view the evidence in the light most favorable to the jury’s verdict and defer to its

determinations on all issues of credibility of the witnesses, the inferences it may draw from

the facts established, its resolution of conflicts in the evidence, and its ultimate conclusions

of fact. E.g., Oklahoma Federated Gold & Numismatics, Inc. v. Blodgett, 24 F.3d 136, 142



       The company made some attempt at trial to justify the discharge on the basis that
       2

Lampkin had been an unsatisfactory performer when he was on the job. This contention is
not made on appeal.

                                             -10-
(10th Cir. 1994).

       Lampkin started working at McDonnell Douglas’s Tulsa manufacturing facility in

1988 as a router operator. In 1992 he became an “aerostructure mechanic B” involved in

making parts for jet aircraft. The controversy here mainly concerns Lampkin’s attendance

record. Under the company policy, employees are not given sick leave like most workers.

Instead, employees may receive a bonus at the end of the year if their absences have been

few. The company’s attendance policy is expressed in terms of guidelines. Absences from

work for all or part of a day are “deviations” subject to limits set by the Attendance

Guidelines. Defendant’s Exhibit 2, I Aplt. App. at 144-46. Any of the following occurring

within a thirty day period would be outside the guidelines: (1) being absent for more than

one day; (2) being tardy more than three times or leaving early more than three times; (3) any

combination of tardies and “early outs” greater than three; or (4) one absence plus one tardy

or early out. Id. at 145-46. An absence, tardy, or early out could be excused by the worker’s

supervisor, and under normal circumstances it would not be held against an employee for

discipline unless an unsatisfactory pattern of excessive attendance deviations occurred.

III Aplt. App. at 635-36.

       In June 1991 Lampkin received a record of “unsatisfactory performance,” and in July

he was given a written reprimand. That reprimand was later rescinded, however, when

Lampkin produced documentation that one of his absences had been for a court appearance.

Lampkin’s supervisor excused that absence, which resulted in no violation of the attendance


                                            -11-
guidelines. Two months after that, Lampkin was again given a written reprimand for

excessive deviations from the attendance guidelines. Two months later in November 1991,

Lampkin was put on final “warning” for attendance deviations.3

       In late 1991 Lampkin was suspended from his employment pending investigation of

reports that he had threatened to kill his supervisor. Lampkin denied having made any threats

and he was reinstated on January 6, 1992. There was a dispute as to whether Lampkin

remained subject to the final warning on attendance which was issued in November 1991.

Lampkin testified he was told that he was coming back and his “slate would be wiped clean

. . . .” II Aplt. App. at 329. Werner testified that she told Lampkin that he still remained on

final warning for attendance so that any deviation in excess of the guidelines would result

in termination of his employment. III Aplt. App. at 650-52.

       At a meeting in early 1992, Lampkin said that he was planning to marry and asked if

he could be granted some time off in April. III R. at 655. Although Werner declined to

promise him that the request would be granted, she later decided, in consultation with his

supervisor, that his attitude and attendance were improved to the point that he should be

given the requested time off. The wedding was to occur on the evening of Friday, March 27,

1992, and Lampkin had not asked for that day off, only the following week. In fact, he left


       3
        We note that at trial the employer maintained that, in accordance with its established
practice, the final warning meant that if Lampkin exceeded the absences permitted by the
attendance guidelines again, that he would be terminated. However, Lampkin pointed out that
the actual written final warning informed him that in the event of another excessive absence
he could be terminated.

                                             -12-
work on March 27 only a couple of hours after his shift had begun. Thus, unless excused,

this “early out” was an attendance deviation but not alone a violation of the guidelines.

Lampkin, however, testified that he believed that he was excused to leave early because his

supervisor Magee had actually approved it. II Aplt. App. at 337.

       Misfortune struck after Lampkin’s honeymoon. On April 7, 1992, which would have

been his second day back from his leave, Lampkin was on the way to work when he was

involved in a traffic accident at about 5:45 a.m. II Aplt. App. at 343. Lampkin’s wife, who

was a passenger in the car, was seriously injured and both were transported to St. Francis

Hospital in Tulsa. Mrs. Lampkin had a serious back injury and initially there was concern

that she might be paralyzed or that her injuries could even be life threatening. Lampkin

himself was treated in the emergency room for several hours, and then spent the rest of the

day and the night in his wife’s room.

       Lampkin said he made a number of contacts with the company after the accident.

Lampkin testified that he left a message explaining where he was and why he would not be

at work. II Aplt. App. at 350-51.

       Soon after Lampkin arrived back at work on April 9, 1992, he was called into a

meeting with Werner and his supervisor, Rob Magee. Other company representatives and

other union representatives were also present. Lampkin testified that he was told that he was

being terminated for being absent on the last two days and for not having called in to notify

his supervisor of his absence. Lampkin said that he told Werner and the others about the


                                            -13-
calls he had made over the last two days to Vincent, to absence control, and to others.

       The trial judge instructed the jury that Lampkin’s “First Claim is that he was

discharged by McDonnell Douglas without just cause in violation of the collective bargaining

agreement.” I Aplt. App. at 100. The agreement would allow his “discharge for cause.”

Agreed Pretrial Order, I Aplt. App. at 23. The company contended that just cause existed

because of plaintiff’s violation of the attendance guidelines while he was on final warning

for attendance deficiencies. Lampkin’s position was that his absences had been excused and

that he thus had not violated the guidelines. Lampkin also contended that he had not been

on final warning because when he was reinstated on January 6, 1992, he returned with a

clean slate.

       Viewing the evidence in the light most favorable to the jury’s verdict, as we must, we

conclude that the evidence was sufficient to support the verdict against the company. The

jury could have found that Lampkin was no longer on final warning for attendance so that

even if his absences on the day of the car accident and the following day were not excused,

they still should have resulted in disciplinary action short of termination, consistent with the

company’s practice of progressive discipline.

       The jury was instructed, without objection insofar as we can discern, as follows

concerning just cause for discharge:

       You are instructed as a matter of law that an employer may only discharge an
       employee governed by a collective bargaining agreement, such as the one
       involved in this case, if ‘just cause’ exists for his dismissal. The term ‘just
       cause’ means a real cause or basis for dismissal, such as may be contained in

                                             -14-
       a company’s policies, procedures, and contracts, as distinguished from an
       arbitrary whim or caprice; that is some cause or ground that a reasonable
       employer, acting in good faith in similar circumstances, would regard as good
       and sufficient basis for terminating the services of an employee.

I Aplt. App. 102 (emphasis added).

       We conclude that from all the evidence, the jury could reasonably find that the

company’s actions were neither reasonable nor in good faith. The company’s position was

weakened by some of the testimony given by its own representatives. Werner testified that

if Lampkin had just come in to work for 10 or 15 minutes on April 7 and April 8, then he

would not have been out of the guidelines. III Aplt. App. at 660-61. The jury could have

inferred from all the evidence that the company was not applying its policies reasonably and

in good faith when Lampkin was discharged.

       In sum, we hold that the evidence, viewed in the light most favorable to the jury

verdict, was sufficient to support the verdict in favor of Lampkin and against McDonnell

Douglas on his wrongful discharge claim. I Aplt. App. at 114.

                                              B

       The unions also argue that the evidence was insufficient to support the jury’s verdict

in favor of plaintiff Lampkin on his claim of breach by the unions of their duty of fair

representation. I Aplt. App. at 114-15. The standard to support a judgment against a union

for breach of its duty of fair representation is high:        A breach of the duty of fair

representation occurs “only when a union’s conduct toward a member of the collective

bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190.

                                             -15-
Any substantive examination of a union’s performance “must be highly deferential,

recognizing the wide latitude that negotiators need for the effective performance of their

bargaining responsibilities.” Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991). The

plaintiff must show that the unions’ actions were so far from reasonable as to be wholly

irrational or arbitrary. Id.

       Here the unions do not assert that the district court erred in setting out the governing

law in the jury instructions. They argue only that the evidence was insufficient to support

the verdict on this claim. On review of that evidence, we of course resolve all conflicts in

favor of the verdict and likewise must draw all reasonable inferences in favor of the

prevailing party. Oklahoma Federated Gold & Numismatics, Inc. v. Blodgett, 24 F.3d at 142.

As was the case with the previous issue, the unions’ argument does not squarely address the

fact that the jury heard substantial evidence favoring Lampkin which conflicted with that

adduced by the defendants.

       Lampkin initiated a grievance procedure with his union representative. According to

Lampkin’s testimony, he told Scott Sewell, one of the union representatives, about all of his

efforts to contact the company from the hospital on April 7 and April 8, 1992. Lampkin

testified that Sewell told him more than once that it was wrong for the company to have fired

him for having been in a car wreck and that the unions would get his job back. II Aplt. App.

at 387-89. Lampkin said that he was told that the grievance might have to go through

pre-arbitration or all the way to arbitration. Sewell never made any statement to Lampkin


                                             -16-
that the case was not “a winner” or that it was an “iffy” proposition and that an arbitrator

might rule against Lampkin. Id. at 389.

       The grievance procedure set up by the collective bargaining agreement can go through

as many as four steps. In most termination cases the first step, a very informal meeting with

the employee’s direct supervisor, was skipped. In Lampkin’s case, however, there was a

preliminary meeting. Mr. Magee, Lampkin’s supervisor, testified that union representatives

and Lampkin were there. IV Aplt. App. at 799. The pitch of the union to the company on

the case was simply that the grievance was read, as it always is, and that was about all of the

discussion about the grievance that Magee could recall other than simply “basically begging

to get [Lampkin’s] job back.” Id. Magee said Lampkin did not argue that he had not

exceeded the attendance guideline. Id. at 800.

       When this first step meeting was unsuccessful, the second step was reached. This was

a meeting, which Sewell referred to as a hearing, between several company representatives

and several union representatives. When that meeting failed to convince the company to

reinstate Lampkin, the process moved on to the third step, pre-arbitration.

       The jury heard almost nothing about what goes on generally in pre-arbitration hearings

or what was presented in this case specifically. There was evidence that the unions kept the

Lampkin grievance on the pre-arbitration list for some months, but there was little

explanation of what that meant, except a vague statement that all grievances on the pre-

arbitration list were discussed at a “pre-arb meeting” once each month. Nothing was said


                                             -17-
about the content of any discussions of Lampkin’s grievance in these meetings. Finally, the

unions notified the company by a letter dated September 21, 1992, that the grievance was

withdrawn. Lampkin testified that he was not informed of this action until about two months

later.

         The unions’ testimony, as presented by their witness, Mr. Cox, was that from review

of Lampkin’s folder “we just didn’t feel like we could pursue it to arbitration and win it.”

IV Aplt. App. at 853. Cox added that “you also have got a responsibility to look at the

union’s finances and think and decide if you can afford all of these things . . . . With the

record and past history that I have had in other plants, we just can’t win an absenteeism . . . .”

Id. at 853.

         We hold that the evidence was sufficient to support the verdict against the unions for

arbitrary handling of the grievance and processing it in a perfunctory fashion. Lampkin’s

testimony showed that he had told his side of the dispute to several union representatives and

had been consistently told that he couldn’t be fired for having been in a car wreck and not

coming to work. He said Sewell told him “[w]e’ll win this grievance and get your job back,

don’t worry about it.” II Aplt. App. at 387. Lampkin said that he initiated most of the

contacts with the unions during the months when his grievance was pending, although he was

called a few times. The unions never communicated anything to him in writing, he said, and

he did not learn until late October or early November 1992 that the unions had withdrawn

his grievance on September 21, 1992. Finally, Lampkin called Sewell and was told: “the


                                              -18-
union pulled it because it couldn’t be won.” Id. at 395.

       A breach of duty may consist of “arbitrarily ignor[ing] a meritorious grievance or

process[ing] it in a perfunctory fashion.” Young v. UAW-Labor Employment & Training

Corp., 95 F.3d 992, 998 (10th Cir. 1996) (quoting Vaca v. Sipes, 386 U.S. 171, 191 (1967)).

Ms. Werner, the company witness, testified that the unions did not in the grievance meetings

convey the position that “the company has got it all wrong. [Lampkin] was within the

guidelines . . . .” or that Lampkin called in about his problems at the time of the accident.

III Aplt. App. at 675. Instead, she said, the unions’ only argument was “asking me to give

him another chance. [The unions] claimed he had learned his lesson . . . and that he would

straighten up and come to work and be a good employee.” Id.

       Most significantly, the unions do not contend on appeal, nor have we seen any

indication in the record, that they ever presented the contentions that the company’s own

documents did not support its position that Lampkin was on final warning for attendance at

the time of his termination; that Lampkin had made all reasonable efforts to notify

management that he could not be at work because of the car wreck and his wife’s serious

condition; that the company’s own policies provided that advance notice of absences was not

required in emergencies; that the serious nature of Mrs. Lampkin’s injuries constituted

“essential personal business” which the company’s policy promised “will be given special

consideration and will not be counted as attendance deviations unless continually repeated”;

or that the company was obligated to apply its policies reasonably and in good faith. And the


                                            -19-
jury could have inferred from Cox’s testimony, noted above, that the union put its finances

ahead of the vigorous presentation of Lampkin’s case in carrying out its duty of fair

representation.

       We note that a near total failure to present the employee’s side of the case in the

grievance procedure has been held to constitute arbitrary and perfunctory conduct in breach

of the duty of fair representation. Griffin v. Internat’l Union, U.A.W., 469 F.2d 181, 183

(4th Cir. 1972) (“A union must especially avoid capricious and arbitrary behavior in the

handling of a grievance based on a discharge - the industrial equivalent of capital

punishment.”). In Griffin, the employee had come to blows with his supervisor and been

fired. The union insisted on filing the grievance with the same supervisor. The union

contended that it basically had no choice: the grievance had to be filed with the supervisor

or with the next higher authority, who was the manager who actually terminated the

employee, and who presumably would be unlikely to reverse his own decision. In rejecting

the notion that this was really no choice at all, the court noted that the manager had heard

only the supervisor’s version of the events; if the employee’s case had been presented to the

manager, he might not have chosen such a drastic disciplinary measure. Similarly, in

Lampkin’s case the company representatives in the pre-arbitration meetings did not hear

Lampkin’s side of the case developed.

       Union conduct in processing a grievance was also held to be in breach of the duty of

fair representation in Service Employees Internat’l Union, Local No. 579, 229 N.L.R.B. 692,


                                            -20-
1977 WL 8661 ** 6 and 7 (1977). There employee Evans was fired for switching shifts

without permission, in violation of the collective bargaining agreement. Evans testified that

she had permission. There was evidence that a union representative met with a manager and

was told that the employer had a lot of problems with Evans, whose history with the

employer included some warnings and disciplinary actions. It seems that the union basically

surrendered at that point. The ALJ, whose opinion was adopted by the Board, emphasized

that the union did not attack the reason given for the discharge and did not press Evans’

position that she had cleared her plan ahead of time.

       We have considered our recent opinion in Young v. United Automobile Workers -

Labor Employment and Training Corp., 95 F.3d 992 (10th Cir. 1996). We there upheld a

summary judgment for the union in a fair representation claim case. The case is clearly

distinguishable from Lampkin’s because in Young the union actually took his grievance over

his discharge to arbitration; the union presented testimony that Young’s work performance

was good; they concentrated on that issue over a dishonesty issue because the allegedly

dishonest statements were felt by Young himself not to be an issue, as the union

representatives in the arbitration proceeding likewise felt. The union representatives also

prepared a thorough post-hearing brief for the arbitrator. The case is thus a far cry from the

facts in Lampkin’s case where there was only an abbreviated presentation made of

Lampkin’s side of the case in the early stages and then, without advising Lampkin, the union

“pulled” his grievance before an arbitration hearing.


                                            -21-
       In sum, we must agree that under the standard laid down in Vaca v. Sipes, Airline

Pilots Ass’n v. O’Neill, and our own Young opinion, here the jury could reasonably infer that

the unions processed the grievance in a perfunctory fashion and pulled it arbitrarily. Thus,

viewing the record as we must favorably to the verdict, we uphold the jury’s determination

on the fair representation claim.

                                             III

       The unions contend further that the judgment must be reversed because the jury found

that Lampkin had suffered no damages as a result of the unions’ breach of their duty of fair

representation. As we explain in Part IV, infra, we hold on this record that the unions had

waived their right to have the amount of damages determined by a jury. And as we have

already explained in Part I, supra, the attorneys’ fees awarded to Lampkin in this case

represented damages for the unions’ breach of duty. This is shown by the fact that the

measure of damages was the attorneys’ fees necessarily incurred in winning a judgment

against the employer. By contrast, if plaintiff had been awarded attorneys’ fees as a

prevailing party, the trial court would have had to determine the amount of fees necessarily

incurred in winning the judgment against the unions. Therefore, the unions’ reliance on

Farrar v. Hobby, 506 U.S. 103 (1992), is misplaced.

       Given these parameters for our inquiry, and the instruction to the jury which we have

already described, we conclude that the unions’ argument is without merit. Lampkin

reasonably relied on the pretrial order’s provision that the attorneys’ fees would be


                                            -22-
determined by the judge, as we discuss in Part IV. In these circumstances, the lack of a

determination of damages in the jury’s verdict is perfectly logical and, indeed, the only

decision the jury could have made on damages since at trial Lampkin had not attempted to

quantify the damages he sought against the unions. We presume that the jurors understood

the explanation they had been given that the judge would set the amount of attorneys’ fees.

Thus, in this instance a finding of no damages did not represent a finding that there had been

no compensable injury; instead the jury merely recognized that the trial judge would

determine the fees for this element of the damages. Therefore we reject the unions’

argument.

                                             IV

       The Seventh Amendment right to a jury trial applies in hybrid suits under section 301

as to an issue such as the damages sought here against the unions. See Chauffeurs, Teamsters

and Helpers Local No. 391 v. Terry, 494 U.S. 558, 570-73 (1990). The unions contend that

their Seventh Amendment right to trial by jury was violated by the court’s determination of

the amount of damages, which consisted solely of attorneys’ fees. We reject this contention

because the record reveals that the unions acquiesced in the procedure followed by the

district court.4 Four weeks before trial began, an amendment to the pretrial order was entered


       4
         At oral argument, counsel for the unions vigorously argued that there was no
stipulation or agreement that the trial judge could determine the attorneys’ fee issue, while
counsel for appellee Lampkin argued that there was such an agreement. As noted in the text,
the record shows no objection to the procedure provided for in the amendment to the pretrial
order which was that the damages in the form of reasonable attorneys’ fees and litigation

                                            -23-
by the district court which specifically provided that “damages in the form of reasonable

attorney fees and litigation costs (only to the extent of fees and costs incurred in the action

against [McDonnell Douglas]) should be awarded to the Plaintiff after a post-verdict

determination by the court.” Aple. Supp. App. at 1 (italics added). The unions fail to show,

and our review of the record has not revealed, that they made objection to this procedure

before the plaintiff had rested his case at trial. A party who stipulates in the pretrial order to

submission of an issue to the court has waived the right to a jury determination of the issue.

FMC Corp. v. Aero Industries, Inc., 998 F.2d 842, 845 (10th Cir. 1993).

       The unions argue that they construed the amendment to the pretrial order as simply

saying that it was a legal issue for the district judge to decide whether the procedure

described in the amendment should be followed. We are not persuaded. First, the

amendment to the pretrial order simply does not say what the unions assert that they

understood it to say. Second, the trial judge stated on the record his understanding that the

unions had agreed to the procedure of having the fees quantified by the court after trial. IV

Aplt. App. at 1041-43. The district judge’s interpretation of his own order is, of course, the

most authoritative. Third, we note that in the original pretrial order the unions had listed

several issues of fact to be tried, which did not include any reference to the amount of

damages caused by the unions’ alleged breach of the duty of fair representation. I Aplt. App.




costs should be awarded to the plaintiff after a post-verdict determination by the court.
Aple. Supp. App. at 1-2.

                                              -24-
at 41.

         Thus the issue is not whether the unions were entitled to a jury determination of

damages under the Seventh Amendment, but whether the trial judge committed error in

finding that the unions had waived their right to jury trial on the issue of the amount of

damages to be awarded by failure to object in a timely manner to the amendment to the

pretrial order. On this record, we see no error in that finding.

                                              V

         The unions contend that the amount of the judgment against them is excessive. As

we noted in Part I, supra, the measure of damages against the unions was the attorneys’ fees

incurred by Lampkin in pursuing his claim against the company. Ames v. Westinghouse

Electric Corp., 864 F.2d 289, 293 (3d Cir. 1988).

         The unions contend that only those attorneys’ fees incurred in prosecuting the claim

against the employer could be included in the damages award. This is in line with Ames and

the prevailing case law and is conceded by Lampkin.5 The unions’ argument, however, is

so severely truncated that their precise contention or contentions are difficult to discern.

They note that Lampkin paid his attorney a fee of $7,500 pursuant to the contingency fee

agreement they had made. (In his brief, Lampkin says that the amount paid was $6,000, but



        This is the generally applicable principle. It has been held that in some circumstances
         5

the claims against the employer and against the union may be so intertwined that fees for the
entire case may properly be used as the measure of damages, Bennett v. Local Union No. 66,
958 F.2d 1429, 1439-40 (7th Cir. 1992), but Lampkin has not asserted that this exception to
the general rule should have been applied in this case.

                                             -25-
for our purposes the precise amount need not be determined now.) The unions then conclude

that because fees in a greater amount were ordered, those excess fees must represent recovery

for work done on the case against the unions. That conclusion is specious. The district judge

limited the fees to those incurred in litigating against the company, at least to the extent that

it was possible to do so.

       The district court apparently reasoned that, even though the fees in this case

represented compensatory damages, the amount of fees should be determined by the same

method used in statutory fee-shifting cases. Thus, Lampkin’s counsel produced evidence

regarding the prevailing hourly rate and the number of hours reasonably spent in developing

and proving the claim against the company. The only authority which we have found that

expressly addresses the question of whether this approach is proper supports the district

judge’s decision. Zuniga v. United Can Co., 812 F.2d 443, 453-55 (9th Cir. 1987).

Nevertheless, we disagree with this method of determining the proper amount of fees, which

were the amount of damages recoverable.

       In Zuniga, the defendant union argued that the plaintiff’s fee agreement with his

attorney limited the fee to be charged for taking the case through trial to $1,500. The court,

however, held that the contract was ambiguous and that the most reasonable construction of

the agreement was that the plaintiff was obligated to pay the attorney at an hourly rate for all

work performed in the district court. Id. at 453. The court then went on to say that it would

reach the same result even if the contract had indeed included an upper limit on the amount


                                              -26-
that the client would owe his counsel. In dictum, the court said that “the trial judge in the

exercise of his discretion could properly award attorney fees in excess of the amount actually

paid.” Id. As support for this view, the court cited cases which hold that the amount of fees

actually paid is but one factor to be considered in the balancing process required in a

determination of reasonable attorneys’ fees under fee-shifting statutes. That reasoning is

unpersuasive to us here.

       In a court award of attorneys’ fees, as for instance under the Civil Rights Attorney’s

Fees Awards Act, 42 U.S.C. § 1988, the amount actually paid or owed by the client under a

contingency fee agreement would not necessarily limit the court in determining a reasonable

fee. Blanchard v. Bergeron, 489 U.S. 87 (1989). This is, at least in part, in recognition that

one of the aims of Congress in enacting the statute was to encourage lawyers to take

meritorious cases, thus promoting the enforcement of the civil rights statutes. Id. at 93, 95.

Here, in contrast, the rationale for recovery of fees as damages is making the employee

whole. This is achieved by compensating the client for the fees actually incurred under the

contract with the lawyer. We refer again to the succinct and lucid statements of the Ames

court: “[T]he employee should recover as damages from the Union only the attorneys’ fees

incurred in pursuing the section 301 claim against the employer – consequential damages

flowing from the Union’s breach of its duty of fair representation.” 864 F.2d at 293.

       Accordingly, we reverse the judgment as to the amount of damages awarded against

the unions and remand for the district court to determine the amount of fees actually paid or


                                            -27-
incurred and to award damages in that amount. Prejudgment interest should be allowed on

the damages. See Fed. R. App. P. 37.

                                               VI

       In a final proposition in their brief, the unions argue in the alternative that they should

be entitled to a new trial based on what appears to be an argument of cumulative error.

Having found no error thus far, other than in the method of determining the amount of

damages, we see no basis for a claim of cumulative error and reversal for a new trial. The

unions also attempt to raise new issues under this proposition regarding evidentiary rulings

made at trial. We see no abuse of discretion in these rulings. Finally, the unions make a

passing reference to “the failure to instruct the jury as these Defendants requested at the

instruction conference.” Because this reference is not explained by reference to any other

part of the unions’ argument and the unions fail to cite to the record or in any other way

explain what specific instruction or instructions are meant by this reference, we will not

consider this point.

                                       CONCLUSION

       We reverse and remand for the district court to determine Lampkin’s actual liability

to his counsel for attorneys’ fees and to enter judgment for compensatory damages in that

amount, with prejudgment interest from the date that the fees were actually paid by Lampkin.

       Lampkin also requests an award of fees for this appeal. As we have explained, this is

not a fee-shifting case. Under the rationale of cases like Ames, we have held that Lampkin


                                             -28-
was entitled to compensatory damages against the unions and that in this case the fees

incurred in pursuing the claim against the employer were compensable. That rationale does

not extend to this appeal. The record shows that McDonnell Douglas has paid the judgment

rendered against it under the terms of a settlement agreement.

       Lampkin invokes our inherent, discretionary power to award fees, but we have such

authority, in the absence of a statutory provision, only in limited circumstances not present

here. Lampkin also invokes Fed. R. App. P. 38 and contends that this appeal is frivolous. His

contention is based primarily on the dearth of legal authorities and record citations in the

unions’ brief, along with other deficiencies he asserts. We do not agree that this appeal was

frivolous and we reject the claim for appellate attorneys’ fees.

       IT IS SO ORDERED.




                                            -29-
