                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                                      PUBLISH
                                                                            SEP 4 1998
                        UNITED STATES COURT OF APPEALS
                                                                        PATRICK FISHER
                                                                                Clerk
                                  TENTH CIRCUIT



 RICK WEBB,

           Plaintiff-Appellee,
 v.

 ABF FREIGHT SYSTEM, INC., a
 corporation,
                                                          No. 96-1427
           Defendant-Appellant,

 and

 TEAMSTERS LOCAL UNION
 No. 17,

           Defendant.


                     Appeal from the United States District Court
                             for the District of Colorado
                                 (D.C. No. 94-Z-239)


Andrew W. Volin (E. Lee Dale with him on the briefs) of Sherman & Howard,
Denver, Colorado, for Defendant-Appellant.

John R. Olsen of Olsen & Brown, Niwot, Colorado, for Plaintiff-Appellee.


Before EBEL and HOLLOWAY, Circuit Judges, and BLACK, * District Judge.


       *
           The Honorable Bruce D. Black, District Court Judge, District of New
                                                                       (continued...)
EBEL, Circuit Judge.



      This case involves a jury’s verdict of $112,124 for the appellee on his

claim that he was wrongfully fired from his job as a delivery truck driver on

trumped up charges after his delivery truck skimmed the underside of some tree

branches, and that the real reason for his discharge was retaliation for his union

activities. Appellant argues that the verdict should not stand because the appellee

failed to prove the elements necessary to his claims of breach of contract and

breach of the duty of fair representation. The appellant also challenges numerous

discretionary rulings by the district court during the course of the trial. We affirm

on all grounds.

                                   Background 1

      The dispute in this case arose in 1993, when defendant-appellant ABF

Freight System, Inc. (“ABF”), fired plaintiff-appellee Rick Webb. ABF alleged



      (...continued)
      *

Mexico, sitting by designation.
      1
       Because of the jury’s verdict in favor of the appellee, our review of the
evidence is presented here in the light most favorable to the appellee. See
Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1522 (10th Cir.
1997). This standard of review requires that we accept the jury’s factual
determinations as long as they are reasonably based on some evidence or the
inferences that may reasonably be drawn from such evidence. Id.

                                        -2-
that Webb had violated his contractual duty to report immediately “any accident.” 2

The question in this case is whether ABF’s claim was the true basis for Webb’s

discharge or merely a pretext for firing a union activist.

1. Webb’s union activities

      Webb worked as a truck driver with ABF for more than nine years before

he was fired on August 2, 1993. Webb also was a member of Teamsters Local

No. 17, 3 which represents all of ABF’s drivers in Colorado and elsewhere, and

Webb had been the shop steward for Local 17 at ABF’s Fort Collins terminal

from the day the company opened its terminal there.


      2
          The relevant language from the Teamsters’ national contract reads:

               Accident Reports
               Any employee involved in any accident or cargo spill
               incident, involving any hazardous or potentially
               polluting product, shall immediately report said accident
               or spill incident and any physical injury sustained.
               When required by his Employer, the employee, before
               starting his next shift, shall make out an accident or
               incident report in writing on forms furnished by the
               Employer and shall turn in all available names and
               addresses of witnesses to the accident or incident. . . .
               Failure to comply with this provision shall subject such
               employee to disciplinary action by the Employer.

National Mater Freight Agreement, for the period of April 1, 1991 through March
31, 1994, art. 16, § 3.
      3
        Local 17 originally was a defendant in this case, but Webb agreed to
dismiss his claims against the union prior to trial. Thus, the union is not a party
to this appeal.

                                         -3-
      In his role as shop steward, Webb prosecuted grievances on behalf of

himself and other drivers from Fort Collins, including grievances alleging unsafe

practices by ABF. Webb also was involved with disputes with ABF management

over the use of overweight trucks and a hazardous waste spill at the terminal.

      During the winter of 1992-93 one of Webb’s grievances involved a dispute

over ABF’s use of drivers from the Denver terminal to do work in Fort Collins on

weekends. Webb secured a grievance award of overtime pay for one Fort Collins

driver who had lost weekend work to Denver drivers. However, two weeks later,

the Denver leadership of Local 17, including union president Ron Schwab,

negotiated a side letter with ABF that effectively reversed the results of the

grievance decision. This side letter was negotiated without input from Fort

Collins’ drivers, and it was adopted by the union before any Fort Collins drivers

could comment on it. The dispute over work allocation between the Denver and

Fort Collins terminals led to continuing friction between Webb and the Teamsters

leadership in Denver, including union president Schwab, whose political support

was based in the Denver terminal’s drivers.

2. Webb’s firing

      On the afternoon of July 30, 1993, a Friday, Webb took a full truck out for

deliveries, with the first delivery at the Colorado State University Alumni Center

(“CSU”). As Webb was backing up to the alumni center, Webb’s truck became


                                         -4-
entangled with overhanging branches. Webb testified that these branches were no

more than 1½- to 2-inches in diameter, and he pulled them out from between his

truck and the trailer. At the time, Webb did not notice any damage to the truck or

the trailer. After finishing his delivery at the alumni center, Webb continued on

his route without making any accident report. Webb returned the truck and trailer

to the ABF terminal in Fort Collins at the end of the day, again without making

any accident report or any log entry of damage in his vehicle condition log.

      Company officials contended that Webb’s entanglement with tree branches

at CSU caused more than $600 worth of damage, bending the exhaust stack on the

tractor and crushing a corner of the trailer. At Webb’s subsequent grievance

hearings, Company officials introduced a picture of a tree limb measuring four

inches in diameter that they contend Webb’s truck pulled down. However, during

the trial in this case, Webb denied that he hit a branch that size. He also testified

that he later returned to CSU to look at the tree branches on the driveway of the

alumni center, and he noticed the stump where the pictured four-inch limb had

come from. He testified that his truck could not have pulled down that branch

because the stump showed that the branch had not been pointed out over the

driveway where Webb could have hit it.

      On the evening of July 30, 1993, after Webb had left work, ABF’s manager

at the Fort Collins terminal, Bill Higley, noticed damage to Webb’s tractor and


                                         -5-
trailer. Higley took several Polaroid pictures of the vehicle, and he called ABF

officials in Salt Lake City and Fort Smith, Arkansas, to report the incident. At

that time, he told ABF officials that Webb was the last driver of the damaged

truck, and ABF regional vice president Sid Hatfield told Higley that failing to

report an accident was a dischargeable offense.

      When Webb returned to work the next Monday, Higley confronted Webb

about the damage to the truck and trailer. Webb told Higley about the tree-

skimming incident, and he pointed out that no driver had ever considered such an

incident to be subject to the company’s rule requiring the reporting of all

accidents. 4 Webb also requested an opportunity to view the damage for himself,

and after inspecting the vehicle, Webb provided a handwritten statement about the

incident. Webb’s statement indicates that Webb did not notice that the stack on

the tractor was askew until Saturday morning, after he had learned from a co-

worker that Higley had been taking pictures of the truck. Webb’s statement also

indicates that Webb did not notice any damage to the trailer until Monday

morning when he was confronted about the incident. However, nowhere in the



      4
        There was extensive testimony during the trial from both Webb and his
former co-workers that tree-skimming incidents were common for Fort Collins
drivers, and that ABF had never required drivers to report such incidents as
accidents under the mandatory accident-reporting policy. One witness testified
that it was only after Webb was fired that the company began to require such
reports for tree-skimming incidents.

                                         -6-
statement does Webb admit responsibility for the damage to the trailer.

       When Webb finished writing out this statement, Higley informed Webb that

he was fired and he should leave the ABF premises. Higley then began drafting

letters to notify Webb formally that he had been discharged, with the sole basis

for Webb’s firing being Webb’s failure to report the tree-skimming incident as an

accident. 5

3. Webb’s grievance

       Immediately after being fired, Webb called Ron Schwab, who was the

Local 17 official responsible for handling grievances out of the Fort Collins

terminal, and Webb requested that the union challenge his discharge. After

commenting that “we knew this was coming,” Schwab agreed to file a grievance

on Webb’s behalf. Schwab also agreed to obtain company documents that Webb

said would be helpful for the grievance, as well as to interview one of Webb’s co-

workers who could testify about the events leading up to Webb’s discharge.



       5
           The pertinent part of ABF’s “Letter of Discharge” states:

                      On July 30th, 1993, you were involved in an
                accident which has been judged preventable by the ABF
                Safety Department. You failed to report this
                accident. . . .
                      In accordance with Article 46 of the Western Area
                Supplemental Agreements and Article 16 Section 3 of
                the National Master Freight Agreement, you are hereby
                discharged for failing to report a preventable accident.

                                           -7-
Schwab, however, decided not to call any witnesses for Webb during the

grievance hearing, and he failed to obtain any of the documents Webb requested.

      The first hearing on Webb’s grievance occurred two days after the firing,

on August 4, 1993, in Denver before the joint Colorado-Wyoming Longline

Grievance Committee, an arbitration panel evenly composed of union and

company officials. Schwab focused his arguments during the hearing on Webb’s

account that the tree-skimming incident at CSU was not a reportable accident in

light of the small size of the branches involved and the fact that Webb had not

noticed any damage when he was at the scene. Schwab, however, failed to object

when an ABF official characterized the branch that Webb had hit as “about eight

inches in diameter and about 30 foot [sic] long.” Schwab also failed to review

the evidence ABF prepared before the hearing, and as a result, he was taken by

surprise when ABF introduced a statement by one of Webb’s co-workers that

detailed ABF’s account of the damage to Webb’s tractor and trailer. 6 Schwab’s

failure to review ABF’s evidence before the hearing also may have affected his

and Webb’s ability to raise questions about ABF’s alleged tampering with the

evidence of damage to Webb’s trailer. 7 Finally, despite telling Webb again before

      6
       Subsequent testimony at the trial demonstrated that ABF’s manager, Bill
Higley, prepared the co-worker’s statement. The co-worker signed the statement
two days after Higley wrote it, and four days after Webb’s alleged accident.
      7
          The photographs presented at Webb’s grievance hearing inexplicably show
                                                                     (continued...)

                                         -8-
the grievance hearing that “we knew this was coming,” and despite Webb

specifically asking Schwab to do so, Schwab did not present Webb’s allegation of

retaliation – that Webb’s firing was prompted by the company’s desire to silence

his union activities.

      The grievance committee deadlocked on the question of whether to reverse

ABF’s discipline. As a result, the grievance was transferred one week later to the

Joint Western Area Committee (“JWAC”) in San Diego, an arbitration panel

whose voting members were again evenly split between union representatives and

company representatives. In the days before this second hearing, Schwab

apparently told Webb it wasn’t necessary for Webb to be present because no new

testimony or evidence would be introduced. 8


      7
       (...continued)
different kinds of damage to the top right corner of a trailer, with two
photographs showing the running light on the trailer still present but a third
photograph showing the running light missing. No mention of these discrepancies
was made during the grievance hearing.
      8
        Schwab disputed Webb’s testimony on this point. However, in light of the
jury’s apparent assessment of Schwab’s credibility, we must accept Webb’s
version of events.
       In any event, Schwab’s statement about the JWAC proceeding turned out to
be incorrect. ABF officials introduced new photographs of the alleged damage to
Webb’s truck at the second hearing. Also, they offered new testimony as to the
specific events on the morning when Webb was fired, implying that Webb knew
he had “wrecked” his truck: Rick Porter, ABF’s manager for industrial relations,
told the JWAC panel that Webb gave his handwritten statement “when Mr. Higley
was asking him ‘Did you know that you wrecked the tractor?’ He said ‘Let me
tell you about it.’”

                                       -9-
      Despite his apparent discouragement of Webb’s attendance at the JWAC

hearing, Schwab told the JWAC panel, “Mr Webb was invited to be present here

and apparently has chosen not to be here to testify in his own behalf. The Local

Union will do its best with these conditions.” Schwab also told the JWAC

hearing that “the Union has no problem stipulating to the size of the tree branch.

We have seen the tree branch.” Schwab made this stipulation despite the fact that

the only offer from ABF as to the size of the tree branch was the eight-inch-

diameter claim that directly contradicted Webb’s account of branches no larger

than two inches in diameter. When a panel member asked Schwab whether Webb

was aware that any incident that resulted in damage to company equipment was a

reportable accident under the contract, Schwab responded, “I’m not Mr. Webb so

I don’t know exactly what his position would be because he’s not here to answer

that personally. . . .” In answer to another question, Schwab said, “I don’t know

why Mr. Webb did the things that he did at that time.”

      At the conclusion of the hearing, the JWAC panel upheld Webb’s

discharge. No reason or written decision was issued by the panel.

4. Webb’s federal suit

      Webb subsequently brought suit in federal court under 29 U.S.C. § 185(a)

(also known as § 301 of the Labor Management Relations Act of 1947) in what is

commonly referred to as a hybrid § 301/DFR (duty of fair representation) suit.


                                        - 10 -
Webb sued both ABF and Local 17, alleging that ABF had violated the Teamsters

contract through a wrongful discharge and that Local 17 had breached its duty to

represent him fairly. Webb sought reinstatement, an award of back pay,

emotional distress damages, and punitive damages. The union was dismissed out

of the case pursuant to a stipulation by Webb prior to the trial. Following a

seven-day trial, the jury returned a verdict in favor of Webb against ABF. The

jury found that Webb’s total economic damages were $112,124, and it allocated

$89,699.20 of the damages to ABF. 9 The jury declined to award any damages on

Webb’s claim of emotional distress. 10

5. Attorney misconduct claim

          Following the end of the trial, the court fined Webb’s lawyer $757 for

conduct it found to be unethical. 11 This matter arose near the end of the trial when

Charles Cantrell, the superintendent of ABF’s repair shop in Denver, testified

about the damage to the tractor and trailer that Webb was driving on the day of

      9
       The jury’s division of damages – $89,699.20 against ABF and $22,424.80
against Local 17 – represents an 80% to 20% split.
      10
        The jury’s finding that Webb suffered no emotional distress rendered
moot ABF’s claim that emotional distress damages are unavailable for a § 301
claim against an employer. As a result, we offer no opinion on that legal
question.
      11
        Webb filed, but eventually dropped, a cross-appeal to challenge this
penalty. The issue remains a live controversy in this case because ABF has
asserted that the district court’s failure to grant a mistrial on the basis of this
conduct was an abuse of discretion.

                                         - 11 -
the accident. On cross-examination, Webb’s lawyer attempted to question

Cantrell about a statement Cantrell allegedly had made to the lawyer out of

court. 12 The court promptly conducted a consultation with the attorneys out of the

hearing of the jury in which she announced that the conduct by Webb’s lawyer

violated the ethical rule against attorney communication with a represented party

and she would entertain suggestions as to the appropriate remedy. ABF moved

for a mistrial, which the court denied the following day. Instead, the court gave

the jury a limiting instruction to disregard any evidence of a telephone

conversation between Webb’s attorney and Cantrell.



                                    Discussion

                 I. ABF’s motion for judgment as a matter of law

      This appeal comes to us following the district court’s denial of ABF’s Rule

50 motion for judgment as a matter of law, or in the alternative, for a new trial.

We review de novo a district court’s denial of judgment as a matter of law, using

the same standard applicable in the district court. See Harolds Stores, Inc. v.

Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1546 (10th Cir.), cert. denied, 117 S. Ct.


      12
        It appears that Cantrell called Webb’s lawyer in an attempt to avoid the
subpoena that Webb’s lawyer had served on him. Webb’s lawyer told the court
during the subsequent hearing on the issue that he received the call without notice
and he did not ask any questions of Cantrell during the conversation. Rather,
Cantrell spontaneously blurted out the statement at issue.

                                        - 12 -
297 (1996). Despite the breadth of our de novo standard of review, we may upset

the jury’s conclusion “only if the evidence points but one way and is susceptible

to no reasonable inferences supporting the nonmoving party.” See Yearous v.

Niobrara County Mem. Hosp., 128 F.3d 1351, 1353 (10th Cir. 1997), cert. denied,

118 S. Ct. 1515 (1998). Under this standard of review, we may not “weigh the

evidence, pass on the credibility of witnesses, or substitute our conclusions for

that of the jury.” Id. (quotation omitted).

      In support of its claim for judgment as a matter of law, ABF argues that

Webb did not establish the elements of a hybrid § 301/DFR claim because:

(1) Webb failed to prove that Local 17 breached its duty of fair representation; (2)

Webb failed to prove the required level of causal connection in the DFR claim,

and (3) Webb failed to prove a breach of contract by ABF. Furthermore, with

respect to the question of damages, ABF argues that Webb was not entitled to an

award of backpay from ABF for the period after the grievance arbitration

hearings. Each of these issues intertwines questions of law with questions of fact.

In light of our standard of review, we will discuss the applicable legal standards

first before addressing whether the evidence was sufficient.



                     A. Elements of a hybrid § 301/DFR claim

      Federal labor policy generally extends great deference and finality to the


                                        - 13 -
decision by a labor arbitrator that a company has not violated its collective

bargaining agreement in firing an employee. See DelCostello v. International

Bhd. of Teamsters, 462 U.S. 151, 163-64 (1983). However, this deference can

result in “an unacceptable injustice” when the employee’s assertion of his rights

under the collective bargaining agreement has been tainted by conduct from his

union that breaches its duty of fair representation toward him. See id. at 164

(citing Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976); Vaca v. Sipes,

386 U.S. 171 (1967)). As a result, the Court has explained that,

             [W]hen the union representing the employee in the
             grievance/arbitration procedure acts in such a
             discriminatory, dishonest, arbitrary, or perfunctory
             fashion as to breach its duty of fair representation. . . ,
             an employee may bring suit against both the employer
             and the union, notwithstanding the outcome or finality
             of the grievance or arbitration proceeding.

DelCostello, 462 U.S. at 164 (citations omitted).

      The kind of suit authorized in Vaca, Hines, and DelCostello is a “hybrid”

action under § 301 because it combines two conceptually independent causes of

action, the first against the company for breach of the contract (a standard § 301

claim) and the second against the union for breach of the duty of fair

representation (a claim implied by operation of a union’s status under federal law

as the sole bargaining representative of the employee). See DelCostello, 462 U.S.

at 164. To prevail against his former employer under this hybrid § 301/DFR


                                         - 14 -
cause of action, a discharged worker must prove three elements: (1) Some conduct

by the worker’s union that breached the duty of fair representation; (2) A causal

connection showing that the union’s breach affected the integrity of the

arbitration process, and; (3) A violation of the collective bargaining agreement by

the company. See Hines, 424 U.S. at 568 (“[W]here the union actually utilizes

the grievance and arbitration procedures on behalf of the employee, the focus

is . . . on whether, contrary to the arbitrator’s decision, the employer breached the

contract and whether there is substantial reason to believe that a union breach of

duty contributed to the erroneous outcome of the contractual proceedings.”). The

plaintiff in a hybrid § 301/DFR action need not sue both his union and former

employer in the same case, and he may choose to seek damages against only one

of the potential defendants, but in any event, “the case he must prove is the same

whether he sues one, the other, or both.” See DelCostello, 462 U.S. at 165.



                      B. Local 17’s duty of fair representation

      In light of a union’s position as the sole and exclusive bargaining

representative of an employee with his employer, every collective bargaining

union has a duty to represent its members fairly in its dealings with management.

See DelCostello, 462 U.S. at 164 & n. 14. The scope of this duty in the context

of a grievance arbitration proceeding requires that the union “may not arbitrarily


                                        - 15 -
ignore a meritorious grievance or process it in perfunctory fashion.” See Vaca

386 U.S. at 191. The Supreme Court has consistently repeated this standard for a

DFR claim: “A duty-of-fair-representation claim arises when a union that

represents an employee in a grievance or arbitration procedure acts in a

‘discriminatory, dishonest, arbitrary, or perfunctory’ fashion.’” International

Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 864 n.6 (1987) (quoting

Delcostello, 462 U.S. at 164); see also International Bhd. of Elec. Workers v.

Foust, 442 U.S. 42, 47 (1979) (“In particular, a union breaches its duty when its

conduct is ‘arbitrary, discriminatory or in bad faith,’ as, for example, when it

‘arbitrarily ignore[s] a meritorious grievance or process[es] it in [a] perfunctory

fashion.’”) (quoting Vaca, 386 U.S. at 190, 191).

      In similar vein, this circuit also has reiterated the DFR standard as

prohibiting arbitrary, discriminatory, bad faith, or perfunctory conduct. See Foust

v. International Bhd. of Elec. Workers, 572 F.2d 710, 714-15 (10th Cir. 1978)

(quoting and discussing Vaca and Hines), rev’d on other grounds, 442 U.S. 42

(1979); Nelson v. Holmes Freight Lines, Inc., 37 F.3d 591, 594 & n.4 (10th Cir.

1994) (quoting and discussing Vaca); Young v. United Auto. Workers-Labor

Employment & Training Corp., 95 F.3d 992, 998 (10th Cir. 1996) (quoting Vaca,

386 U.S. at 191); Lampkin v. International Union, United Auto., Aerospace &

Agric. Implement Workers, No. 96-5212, slip op. at 18 (10th Cir. 1998) (proposed


                                        - 16 -
publish opinion now in circulation).

                         1. “Perfunctory” grievance processing

      ABF argues that the duty of fair representation includes only a duty to

avoid acting in an arbitrary, discriminatory, or bad faith fashion, but does not

include an obligation to avoid acting in a perfunctory manner. Based on the

authority cited above, we reject that argument. The district court properly

presented to the jury the duty not to act in a perfunctory fashion, 13 and we believe

the jury verdict can be upheld on the basis of that duty.

      ABF relies principally on the Supreme Court’s most recent hybrid

§ 301/DFR case, in which the Court stated that a union’s duty of fair

representation is “tripartite,” i.e., a union’s actions may not be “‘arbitrary,

discriminatory, or in bad faith.’” See Air Line Pilots Ass’n, Int’l v. O’Neill, 499

U.S. 65, 67 & 77 (1991) (quoting Vaca, 386 U.S. at 190)). In its omission of the



      13
           The text of Jury Instruction No. 10 provides in part:

                     In order to prevail against his employer on his
               claim under 29 U.S.C. § 185, plaintiff Rick Webb must
               prove . . .
                     2. That the Teamsters Local No. 17 breached its
                     duty of fair representation to the plaintiff by:
                           (a) failing properly to process his
                                   grievance; and
                           (b) acting in a discriminatory, dishonest,
                                   arbitrary, or perfunctory fashion.


                                          - 17 -
duty to avoid “perfunctory” conduct, the O’Neill articulation of a union’s

“tripartite” duties appears to back away from earlier case law stressing that a

union is under a legal obligation not to conduct its dealings with its members in a

“perfunctory fashion.” However, we believe that the prohibition against

“perfunctory” conduct remains the law despite its absence from the discussion in

O’Neill.

      First, the dispute in O’Neill involved claims of union misconduct in the

context of contract formation, as opposed to contract administration in a

grievance proceeding. See id. at 70. Thus, under the facts in O’Neill there was

no need to address the question of a union’s duties when a union member seeks to

challenge a discharge in a grievance proceeding. Indeed, it would have been

dictum in O’Neill for the Court to express any opinion as to the DFR standards

for a grievance arbitration in light of the fact that the O’Neill case arose before

any grievance arbitration process had been established by the parties.

      Second, it is easy to read the Court’s earlier cases prohibiting “perfunctory”

grievance processing as merely expressing a concrete example of the kind of

specific conduct prohibited by the tripartite standard. See Foust, 442 U.S. at 47

(listing perfunctory handling of a grievance as an “example” of union conduct

that is “arbitrary, discriminatory or in bad faith”). If “perfunctory” grievance

processing is a specific kind of conduct under the tripartite standard, then


                                         - 18 -
O’Neill’s failure to mention this particularized DFR standard is immaterial.

      In part, any potential doubt as to the applicability of the prohibition against

“perfunctory” conduct may arise from the fact that courts generally have failed to

give content to the meaning of that term. Indeed, the most this circuit has ever

said on the meaning of the prohibition against “perfunctory” conduct is that one

union’s handling of a member’s grievance was not perfunctory when “the record

shows a prompt and diligent effort by the union business agent . . . to have

appellant’s grievance heard and decided by the panel.” See Nelson, 37 F.3d at

594 n.4.

      The other circuits have similarly had little to say about the meaning of the

term “perfunctory.” The most detailed explanation comes from the Eighth

Circuit, where the court explained that “we construe the Supreme Court’s

reference in Vaca to the ‘perfunctory’ processing of a grievance to mean that ‘the

union acted without concern or solicitude, or gave a claim only cursory

attention.’” Beavers v. United Paperworkers Int’l Union, Local 1741, 72 F.3d 97,

100 (8th Cir. 1995) (quoting Curtis v. United Transp. Union, 700 F.2d 457, 458

(8th Cir. 1983)). The Eighth Circuit’s construction comports with the standard

dictionary definition of “perfunctory.” See Websters Third New International

Dictionary (Unabridged) 1678 (1986) (defining perfunctory as “characterized by

routine or superficiality: done merely as a duty: CURSORY, MECHANICAL . . .


                                        - 19 -
lacking in interest or enthusiasm: APATHETIC, INDIFFERENT”).

      This is not to say that a union violates its duty of fair representation by

mere negligent conduct; carelessness or honest mistakes are not sufficient to

impose liability on a union. See United Steelworkers v. Rawson, 495 U.S. 362,

372-73 (1990); Young, 95 F.3d at 997. We need not here define the line between

negligent conduct and perfunctory conduct because the evidence was sufficient to

allow a jury to find, as it did, that the union conducted this arbitration in such a

perfunctory, apathetic, indifferent, and cursory way that Local 17 breached its

duty of fair representation. 14 Indeed the evidence was sufficient to support not

just a finding of perfunctory conduct, but also conduct by the union that rose to


      14
         Webb’s evidence could have allowed a reasonable juror to reach at least
the following conclusions: (1) Local 17 failed to present a grievance claim of
retaliation despite Webb’s request to do so and despite Schwab’s belief that
Webb’s firing was indeed a case of retaliation; (2) Schwab failed to follow Local
17’s regular practice in grievance cases of reviewing company evidence before
the arbitration hearings; (3) Schwab affirmatively misled Webb by telling Webb
that his presence was not needed at the second grievance hearing in San Diego
and that no new evidence or testimony would be allowed; (4) Schwab
affirmatively misled the JWAC grievance panel in San Diego when he told the
panel members that he did not know why Webb had chosen not to come to the
hearing; (5) Schwab disparaged his own union member before the JWAC panel by
suggesting that there was no explanation for Webb’s conduct in the tree-skimming
incident; and (6) Schwab directly contradicted Webb’s own account of the
incident by accepting the company’s claims as to the size of the tree limbs that
Webb had hit.
       ABF insists these conclusions are contradicted by testimony from Schwab
and others. However, this contention misunderstands our standard of review,
which must uphold the jury’s verdict if any reasonable juror could have ruled as
the jury did. See Yearous, 128 F.3d at 1353.

                                         - 20 -
the level of bad faith. See Young, 95 F.3d at 996 n.1 (noting that bad faith in a

DFR claim “requires a showing of fraud or deceitful or dishonest action”).

                            2. Pre-arbitration investigation

      Next, ABF argues that the union did not have an obligation to conduct its

own investigation of Webb’s grievance because Webb undertook to do the

investigation himself. ABF also contends that a union has no legal duty to

conduct “some minimal investigation” of a grievance complaint. 15

      In Foust, the Tenth Circuit agreed with other circuits that “the failure to

investigate the merits of a grievance could be arbitrary conduct and a breach of a

duty.” See Foust, 572 F.2d at 716 (citing De Arroyo v. Sindicato de Trabajadores

Packinghouse, 425 F.2d 281 (1st Cir. 1970); Hughes v. International Bhd. of

Teamsters, Local 683, 554 F.2d 365 (9th Cir. 1977)). The amount of

investigation required of a union to meet its duty of fair representation depends


      15
           Jury Instruction No. 17 provides as follows:

                      An incomplete investigation of a grievance, or not
               making every conceivable argument on behalf of the
               grievant during the grievance procedure, does not
               violate the union’s duty of fair representation unless the
               union’s actions were discriminatory, dishonest, arbitrary
               or perfunctory. However, some minimal investigation is
               required.

       At trial, ABF objected to the last sentence of this instruction on the grounds
that “there is no minimum investigation threshold under the duty of fair
representation cases.”

                                         - 21 -
on the circumstances of each case. See Garcia v. Zenith Elecs. Corp., 58 F.3d

1171, 1176 (7th Cir. 1995) (holding that the thoroughness of a union’s required

investigation depends on the particular case); Evangelista v. Inlandboatmen’s

Union of the Pacific, 777 F.2d 1390, 1395 (9th Cir. 1985) (same).

      In this case, a reasonable juror could have concluded that Local 17 made no

serious effort to investigate the facts of Webb’s claims. The jury also could, and

apparently did, disbelieve the testimony from Schwab that Local 17 had no

obligation to conduct its own investigation because Webb allegedly had agreed to

undertake the investigation himself. It appears that the jury found Webb more

credible than Schwab, and it is not for us to upset that credibility determination.

See Yearous, 128 F.3d at 1353. Thus, we find the evidence sufficient to support

Webb’s contention that Local 17 breached its duty of fair representation by failing

to undertake an adequate investigation under the circumstances.

                  3. Judicial estoppel from a grievance arbitration

      At the conclusion of the first grievance hearing, the chairman of the

grievance committee, a company representative, engaged Webb in the following

colloquy:

             Chairman Bradfield: I will now ask the grievant, based
                  on the issue of your failure to report an accident
                  are you satisfied that the Union has represented
                  your position properly?
             Mr. Webb: Yes.
             Chairman Bradfield: Have they introduced all pertinent

                                        - 22 -
                  information on your behalf in regard to this
                  defense?
             Mr. Webb: Except for the bracket, I don’t have anything
                  else to say.

On the basis of these statements from Webb, ABF now suggests that Webb be

precluded from raising any argument that Local 17’s representation of his claims

fell below the legal standards required of the union.

      We reject ABF’s argument for two reasons. First, ABF’s contention relies

on principles of judicial estoppel in which a party’s statements or positions in one

proceeding prevent him from subsequently raising a contradictory position in the

same or related proceedings. The Tenth Circuit has firmly established that it will

not be bound by the doctrine of judicial estoppel. See Rascon v. US West

Communications, Inc., 1998 WL 223465, at *6 (10th Cir. May 6, 1998) (to be

reported at 143 F.3d 1324) (holding that claims inconsistent with others raised in

administrative context are not barred by judicial estoppel); United States v. 49.01

Acres of Land, More or Less, Situate in Osage County, Okla., 802 F.2d 387, 390

(10th Cir. 1986). 16 Second, any statements Webb made at the first grievance

hearing are not probative as to the quality of Local 17’s representation at the



      16
        Indeed, it seems likely that ABF cannot succeed on the merits of a judicial
estoppel claim because one of the elements of this doctrine is that the party
against whom estoppel is asserted must have prevailed on the basis of his
contradictory position in the prior proceeding. See 49.01 Acres of Land, 802 F.2d
at 390. In Webb’s case, he most assuredly did not prevail.

                                        - 23 -
second hearing in San Diego. In light of the fact that many of the DFR breaches

that Webb asserted in this case involved the union’s conduct at the second

hearing, there is no sound reason to prevent Webb from raising his DFR claim.

Therefore, the district court properly allowed Webb to present his DFR claim to

the jury.



        C. Causal connection between DFR breach and arbitration outcome

      In Hines v. Anchor Motor Freight, Inc., the Court held that a plaintiff in a

hybrid § 301/DFR case is entitled to relief if he can prove “an erroneous

discharge” and a union “breach of duty tainting the decision of the joint

committee.” 424 U.S. 554, 572 (1976) (emphasis added). The Court stated,

             The union’s breach of duty relieves the employee of an
             express or implied requirement that disputes be settled
             through contractual grievance procedures; if it seriously
             undermines the integrity of the arbitral process the
             union’s breach also removes the bar of the finality
             provisions of the contract.

Id. at 567 (emphasis added). In a later opinion, the Supreme Court reiterated the

“seriously undermines” standard. See United Parcel Serv., Inc. v. Mitchell, 451

U.S. 56, 61 (1981). The Court said, “As Hines makes clear, an employee may go

behind a final and binding award under a collective-bargaining agreement and

seek relief against his employer and union only when he demonstrates that his

union’s breach of its duty ‘seriously undermine[d] the integrity of the arbitral

                                        - 24 -
process.’” Id. (quoting Hines, 424 U.S. at 567); see also Barnett v. United Air

Lines, Inc., 738 F.2d 358, 362 (10th Cir. 1984) (“If an employee can establish

that his union breached its implied duty of fair representation, then even a binding

decision of the [grievance arbitration] board can be set aside if the breach

seriously undermined the integrity of the arbitral process.”).

      In its brief on appeal, ABF contends that the appropriate causation standard

in this case is the “but for” standard expressed in Edwards v. International Union,

United Plant Guard Workers of America, 46 F.3d 1047, 1051 (10th Cir. 1995).

We reject ABF’s argument on this point. First, the discussion in Edwards was

dicta – the issue to be decided in Edwards was not the definition of the elements

of a hybrid § 301/DFR case, but rather the appropriate statute of limitations in

such a case. See id. at 1053. As a result, we are not bound by the Edwards

panel’s articulation. See Bates v. Department of Corrections, 81 F.3d 1008, 1011

(10th Cir. 1996) (holding that one panel is not bound by a prior panel’s dicta).

Second, in light of the conflict between Edwards and Barnett, we note that this

circuit follows the rule that “when faced with an intra-circuit conflict, a panel

should follow earlier, settled precedent over a subsequent deviation therefrom.”

See Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996).

      Having concluded that we must rely on the “seriously undermines”

language from Hines and Barnett, we also conclude that there was sufficient


                                        - 25 -
evidence from which a reasonable juror could conclude that Local 17’s DFR

breach “seriously undermined” Webb’s grievance proceedings. 17 Taken in the

light most favorable to Webb, the record shows that Local 17 misled Webb about

the second grievance hearing in San Diego and that Local 17 misled the JWAC

hearing panel about the nature of Webb’s tree-skimming incident and Webb’s

explanation for his lack of a report to company officials about it. Indeed,

Schwab’s concessions allow a reasonable inference that Local 17 deliberately

attempted to submarine Webb’s case by sending the JWAC panel a message that

Local 17 had no faith in Webb’s claims and was merely going through the

motions on his behalf. This record meets the causation standard under Hines and

Barnett.

      ABF, on the other hand, points to the testimony from the chairman of the

JWAC board, E. James Roberts, who suggested that Webb’s handwritten

statement was sufficient evidence alone to uphold his discharge. Putting aside the

dubious validity of a single, non-voting chairman of an arbitration panel testifying

as to the state of mind of the entire panel, ABF’s argument misunderstands our

standard of review in this appeal. Merely because there is some evidence in the



      17
        According to Jury Instruction No. 10, to award damages to the plaintiff
the jury in Webb’s case was required to find “That the breach of its duty of fair
representation by Teamsters Local No. 17 seriously undermined the integrity of
the grievance proceeding.”

                                       - 26 -
record supporting ABF’s position will not cause us to upset the jury’s verdict.

Instead, ABF must show that there is no evidence in the record that would allow a

reasonable juror to find for Webb. See Yearous, 128 F.3d at 1351. We believe

there is sufficient evidence to support the verdict on the causation element. The

fact that there is some contradictory evidence in the record is immaterial.



                                 D. Breach of contract

      During the course of the trial below, Webb presented two different grounds

for finding that ABF had breached the collective bargaining agreement. First,

Webb argued that ABF’s asserted rationale for firing him – that he had failed to

report an accident as required by Article 16 of the national contract – was

baseless because the tree-skimming incident was not a reportable accident under

the custom and practice at the ABF terminal in Fort Collins. Second, Webb

argued that ABF’s actual reason for firing him was to retaliate for Webb’s union

activities, which was a violation of Article 21 of the national contract. 18 ABF


      18
           Article 21 of the National Master Freight Agreement provides as follows:

                                    Union Activities
               Any employee, member of the Union, acting in an
               official capacity whatsoever shall not be discriminated
               against for his acts as such officer of the Union so long
               as such acts do not interfere with the conduct of the
               employer’s business, nor shall there be any
                                                                           (continued...)

                                         - 27 -
responds that Webb’s tree-skimming incident was a reportable accident under the

contract, and therefore, Webb’s failure to report was a sufficient basis for the

discharge. ABF also argues that Webb should have been precluded from

submitting his retaliation claim to the jury because he failed to exhaust it in the

grievance arbitration proceeding.

                            1. Failure to report an accident

      There is no dispute in this case that Article 16, section 3 of the National

Master Freight Agreement requires all employees “involved in any accident” to

report that accident “immediately.” Instead, the dispute focuses on what is an

“accident” under the Teamsters contract. ABF contends that any incident that

causes damage to company equipment or to the property of a customer is an

“accident.” Webb, on the other hand, contends that at least within the experience

of ABF employees in Fort Collins and Denver prior to his discharge, brushes with

overhanging branches that caused limited damage to ABF’s trucks were not

“accidents.”

      It is well-established that when interpreting the terms of a labor contract, a

fact-finder is entitled – and indeed, in some cases required – to look to the past

practices of the parties and the “common law of the shop” to determine the


      18
           (...continued)
                 discrimination against any employee because of union
                 membership or activities.

                                         - 28 -
parties’ contractual obligations. 19 See United Steelworkers v. Warrior & Gulf

Navigation Co., 363 U.S. 574, 581-82 (1960) (holding that the interpretation of

contract terms “is not confined to the express provisions of the contract, as the

industrial common law – the practices of the industry and the shop – is equally a

part of the collective bargaining agreement although not expressed in it”);

National Labor Relations Board v. Northeast Okla. City Mfg. Co., 631 F.2d 669,

676 (10th Cir. 1980) (“Where past practice has established a meaning for

language that is used by the parties in a new agreement, the language will be

presumed to have the meaning given it by such past practice.”) (quotation

omitted); see also Madison Hotel v. Hotel & Restaurant Employees, Local 25, __

F.3d __, 1998 WL 278289, at *3 (D.C. Cir. June 2, 1998) (en banc) (upholding an

arbitrator’s contract interpretation in part because the arbitrator considered “the

‘industrial common law’ of the hotel business”); Trailways Lines, Inc. v.

Trailways, Inc. Joint Council, 807 F.2d 1416, 1423 & n. 12 (8th Cir. 1986)

(vacating an arbitrator’s award in part because the arbitrator failed to consider the

“common law of the shop”). This is especially the case when a disputed contract



      19
           Jury Instruction No. 8 reflects this understanding of the law. It states,

                        The interpretation of a contract by the parties, as
                shown by their conduct before any dispute arose
                between them, is one of the best indications of their
                intent.

                                           - 29 -
term is ambiguous on its face and no other language in the contract provides a

basis for construing the term. See International Bhd. of Elec. Workers, Local

Union No. 611 v. Public Serv. Co., 980 F.2d 616, 617-19 (10th Cir. 1992)

(upholding an arbitrator’s interpretation of ambiguous contract terms in light of

the arbitrator’s consideration of the parties’ past practices).

      In Webb’s case, he presented extensive testimony from co-workers and an

ABF maintenance worker that tree-brushing incidents were common, including

incidents that resulted in minor damage to ABF tractors and trailers. In no case

were these incidents treated as reportable accidents, and the witnesses testified

that they could not recall anyone being fired for failing to report these incidents.

In light of this testimony, a reasonable juror could conclude that the “common law

of the shop” at ABF’s Fort Collins and Denver terminals was that minor tree-

skimming incidents were not subject to the mandatory reporting provision of the

contract. As a result, a reasonable juror could conclude that ABF breached the

contract by firing Webb for an incident that was not a reportable accident.

Therefore, ABF is not entitled to judgment as a matter of law on its reportable-

accident claim.

                          2. Retaliation for union activities

      ABF contends that Webb should have been barred from presenting his

retaliation claim to the jury because he failed to raise the claim during the


                                         - 30 -
grievance proceedings. This argument, however, founders on Webb’s proof of a

breach of Local 17’s duty of fair representation.

      As the Supreme Court explained in Hines, a union’s DFR breach “relieves

the employee of an express or implied requirement that disputes be settled

through contractual grievance procedures.” Hines, 424 U.S. at 567. This circuit

has applied the non-exhaustion rule in several cases. See, e.g., Aguinaga v.

United Food & Commercial Workers Int’l Union, 993 F.2d 1463, 1472 (10th Cir.

1993) (“[I]n determining whether Plaintiffs are required to exhaust, the relevant

inquiry is whether the Union . . . breached its duty of fair representation.”);

United Food & Commercial Workers Local 7R v. Safeway Stores, Inc., 889 F.2d

940, 945 (10th Cir. 1989) (“[I]f the union refuses to press or only perfunctorily

presses the individual’s claim, or otherwise acts arbitrarily, discriminatorily, or in

bad faith, then the union has breached its duty of fair representation and . . . the

employee has ‘exhausted’ his or her remedies under the collective bargaining

agreement.”) (quotation and citations omitted). Thus, when a union member

proves that his or her ability to prosecute a particular breach of contract claim

against his employer has been “seriously undermined” by the union’s failure to

represent him or her adequately in grievance proceedings, the union member has

fulfilled the exhaustion requirement. Here, it was not error for the district court

to present Webb’s retaliation claim to the jury because Webb offered sufficient


                                         - 31 -
evidence from which a reasonable juror could have concluded that having

specifically requested the union to raise the retaliation issue, Webb’s claim was

seriously undermined by Local 17’s actions in declining to raise that issue.

      ABF also contends that as a matter of law Webb could not prove retaliation

because he failed to show that the company official who made the decision to fire

Webb – which ABF contends was Sid Hatfield – was aware at the time of Webb’s

protected union activities. ABF’s argument is based on its premise that Hatfield

did not know that it was Webb who had caused the damage that terminal manager

Bill Higley had reported. However, in light of Higley’s initial report to ABF

headquarters that Webb was the last driver of the damaged truck, a reasonable

juror could have concluded that ABF was aware of Webb’s identity at the time.

Therefore, ABF is not entitled to judgment as a matter of law on Webb’s

retaliation claim.




               E. Allocation of damages between union and employer

      When allocating the amount of money damages in a hybrid § 301/DFR case,

“[t]he governing principle . . . is to apportion liability between the employer and

the union according to the damage caused by the fault of each.” Vaca v. Sipes,

386 U.S. 171, 197 (1967); Lampkin v. International Union, United Auto.,


                                        - 32 -
Aerospace & Agric. Implement Workers, No. 96-5212, slip op. at 7 (10th Cir.

1998) (proposed publish opinion now in circulation) (quoting Vaca, 386 U.S. at

197-98). In light of this principle, we have held that the apportionment of

damages “must serve the following purposes: (1) damages must be apportioned

according to each party’s fault, (2) the union must be held responsible for any

increases in the employee’s damages, which were caused by the union, and (3) the

employee must be made whole.” Aguinaga v. United Food & Commercial

Workers Int’l Union, 993 F.2d 1463, 1476 (10th Cir. 1993) (quotations and

citations omitted).

      In Webb’s case, the jury was instructed in accordance with this law, 20 and

the jury determined that Webb had suffered total economic damages of $112,124.

The jury then allocated $22,424.80 of the damages to Local 17 and $89,699.20 to

ABF. This allocation suggests that the jury found that Local 17 was 20 percent at


      20
           Jury Instruction No. 23 provides as follows:

                      You must apportion any award of damages
               between the employer and the union according to the
               damages caused by the fault of each. Damages
               attributable solely to the breach of the National Master
               Freight Agreement by ABF Freight Systems, Inc. should
               not be charged to Teamsters Local Union No. 17, and
               increases in those damages caused by Teamsters Local
               Union No. 17’s failure to fairly represent Rick Webb
               should not be charged to the employer. The combined
               amount of these damages should make Rick Webb
               whole.

                                         - 33 -
fault while ABF was 80 percent at fault.

      ABF argues that its damages should have been capped as a matter of law to

those wages that Webb lost prior to the grievance proceedings and that the district

court erred in giving the jury its proportionate fault instruction. We reject this

argument because it carries forward ABF’s mistaken argument as to the causation

standard in a DFR claim.

      ABF contends that all of the economic damages Webb incurred after the

grievance hearings are attributable to Local 17 because “but for” the union’s DFR

breach Webb would have prevailed in the grievance hearings and he would have

been reinstated to his job. However, Local 17’s DFR breach need not have been

the “but for” cause of Webb’s subsequent economic damages; instead, Webb only

needed to prove that Local 17’s actions “seriously undermined the integrity of the

arbitration proceedings.” See Hines v. Anchor Motor Freight, 424 U.S. 554, 567

(1976). In light of this standard, it is logically possible for a jury to assess

damages against an employer based on proportionate fault that includes damages

incurred after the date of the flawed grievance hearing. A proportionate fault

system of allocating damages ensures that the “primary wrongdoer” shoulders an

appropriate burden, especially when an allocation of damages based on the

grievance arbitration date would shift a disproportionate amount of damages onto

the party that was less at fault. See Aguinaga, 993 F.2d at 1476. Furthermore,


                                          - 34 -
Aguinaga directly contradicts ABF’s claim here that a chronological allocation of

damages based on the date of Webb’s grievance hearing was the required method

of apportionment: “[W]e hold that the hypothetical arbitration date method [of

allocating damages] is not required in every hybrid case . . . .” Id. at 1477. Thus,

ABF is not entitled to judgment as a matter of law on its allocation of damages

claim.



                            II. ABF’s motion for a new trial

         In addition to its request for judgment as a matter of law, ABF moved for a

new trial in light of various procedural decisions by the court that ABF argues

were in error. We review the denial of a motion for a new trial for an abuse of

discretion, and we may reverse the district court “only if [it] made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.”

See Weese v. Schukman, 98 F.3d 542, 549 (10th Cir. 1996). Furthermore, under

Fed. R. Civ. P. 61, a party is entitled to a new trial only if the alleged error

“affect[ed] the substantial rights of the parties.”



                               A. Attorney Misconduct

         ABF contends that Webb’s lawyer, John R. Olsen, committed an ethical

breach in communicating with ABF’s maintenance supervisor Charles Cantrell at


                                          - 35 -
a time when Olsen knew that Cantrell was a management representative for ABF.

ABF argues that this ethical breach caused such prejudice to ABF’s substantial

rights that the district court’s curative instruction was insufficient. As a result,

ABF asserts that the district court abused its discretion in failing to order a new

trial.

         The applicable Rule of Professional Conduct in Colorado provides,

                      In representing a client, a lawyer shall not
               communicate about the subject of the representation
               with a party the lawyer knows to be represented by
               another lawyer in the matter, unless the lawyer has the
               consent of the other lawyer or is authorized by law to do
               so.

Colo. R. Prof. Conduct 4.2. We are not convinced that Olsen’s conduct with

respect to Charles Cantrell ran afoul of Rule 4.2 because he did not initiate the

communication with Cantrell and he did not ask any questions of Cantrell during

their brief telephone conversation. Cantrell blurted out his claim – that he did not

know anything about Webb’s case – without any prompting from Olsen. Thus,

Olsen’s attempt to raise Cantrell’s statement during cross-examination may not

have been inappropriate.

         In any event, the district court promptly gave the jury a curative instruction,

advising them to disregard this portion of the examination. Even if it was

improper for Olsen to have asked the question, it was adequately addressed by the

district court, and we see no error here that would render the failure to grant a

                                           - 36 -
new trial an abuse of discretion.



                              B. Evidentiary Rulings

      ABF contends that it is entitled to a new trial in light of various evidentiary

decisions during the trial. Such rulings generally are committed to the very broad

discretion of the trial judge, and they may constitute an abuse of discretion only if

based on an erroneous conclusion of law, a clearly erroneous finding of fact or a

manifest error in judgment. See Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir.

1995). Under this standard of review, we must “give deference to the district

court’s evidentiary rulings.” Id. Furthermore, if we find an erroneous evidentiary

ruling, ABF would be entitled to a new trial only when the error affected the

party’s substantial rights. See Hinds v. General Motors Corp., 988 F.2d 1039,

1049 (10th Cir. 1993).

                         1. Other discipline against Webb

      Before the trial began, the district court ruled on a motion in limine that the

only evidence of company discipline against Webb that would be admitted during

the trial was evidence concerning events during the nine months before Webb was

fired. The court based this limitation on the provisions of the collective

bargaining agreement that prevent an employer from considering multiple

disciplinary incidents outside a nine-month window and the fact that ABF’s basis


                                        - 37 -
for firing Webb was solely Webb’s failure to report the incident at CSU.

      ABF challenges the district court’s ruling on the grounds that Webb was

allowed to introduce evidence to support his claim of retaliation. ABF contends

that because Webb was allowed to claim retaliation, ABF should have been

allowed to present evidence of Webb’s disciplinary record going farther back than

nine months.

      ABF’s argument is unpersuasive because of its faulty premise that Webb

opened the nine-month door with his retaliation claim. First, Webb’s retaliation

evidence – i.e., his testimony about grievances he had filed and complaints he had

registered – all involved his conduct within nine months of his discharge.

Second, ABF affirmatively denied having fired Webb as a result of his prior

record of accidents. ABF has consistently insisted that the sole basis for the

discharge was Webb’s failure to report the incident at CSU. As a result, nothing

about Webb’s prior work history was relevant to the company’s justification.

Therefore, it was not an abuse of discretion to exclude ABF’s evidence of Webb’s

prior discipline.

                    2. Exhibits of grievance arbitration decisions

      During the course of its case-in-chief, ABF called one of its executives to

testify about its interpretation of contract provisions that allow an employer to

fire a worker who fails to report an accident even if the worker has no prior


                                        - 38 -
history of company discipline or other accidents. The executive testified that

there were two arbitration precedents from other states which upheld company

discharges for failing to report an accident. When ABF sought to introduce

exhibits of these grievance decisions, the district court sustained Webb’s

objection to the exhibits. Nevertheless, the court allowed ABF to present the

substance of the decisions through the testimony of ABF’s executive.

ABF has failed to show how it was prejudiced by the district court’s decision not

to allow introduction of the actual decisions, given that the substance of the

grievance decisions was presented to the jury through the testimony of ABF’s

executive.

                     3. Evidence of Webb’s NLRB complaint

      During ABF’s cross-examination of Webb, ABF attempted to introduce

evidence that Webb filed an unfair labor practice charge against ABF with the

National Labor Relations Board (NLRB) prior to filing the instant federal suit,

claiming that his discharge was in retaliation for his union activities. Because

Webb withdrew his NLRB charge after preliminary investigation, ABF sought to

argue that Webb did not believe his retaliation claim had merit. The district court

excluded this evidence as not relevant because there could have been many

reasons for Webb’s decision not to pursue his NLRB charge, including difficulties

in his divorce and responsibility for his children. We find no abuse of discretion


                                        - 39 -
in the district court’s decision to exclude the NLRB evidence.

                     4. Excerpts of Webb’s deposition testimony

      At the close of all the evidence in this case, ABF sought to introduce

blown-up reprints showing excerpts from Webb’s pre-trial deposition. These

exhibits illustrated various portions of Webb’s deposition testimony that ABF

contends contradicted Webb’s testimony at trial. The district court excluded the

exhibits on the grounds that the jury had heard the deposition testimony during

ABF’s efforts to impeach Webb on cross-examination.

      We find no abuse of discretion in the district court’s decision. Our own

review of the proffered excerpts confirms the implication that the exhibits were

merely cumulative and offered nothing new. In addition, because ABF failed to

identify any contradictory statements in the proffered deposition excerpts that

were not already brought out during ABF’s cross-examination of Webb, we can

find no prejudice.

                           5. Emotional distress evidence

      The district court allowed Webb to present evidence of his emotional

distress. ABF now argues that the court abused its discretion by admitting this

evidence because ABF contends emotional distress damages are not available

against an employer in a § 301 case.

      We need not reach ABF’s substantive argument, however, because the jury


                                       - 40 -
found no basis for awarding emotional distress damages and refused to award any

money on that claim. Thus, there was no prejudice to ABF from the admission of

the emotional distress evidence. ABF argues that this evidence “likely”

influenced the jury’s verdict on the primary liability issues as well as on the jury’s

allocation of fault between ABF and Local 17. However, the district court

instructed the jury that it could not award emotional distress damages unless it

first found that Webb’s case involved “extreme and outrageous misconduct” and

that he had suffered “severe emotional distress.” We presume the jury followed

the court’s instruction to disregard the emotional distress evidence in the absence

of these findings. See United States v. Castillo, 140 F.3d 874, 884 (10th Cir.

1998) (“A central assumption of our jurisprudence is that juries follow the

instructions they receive.”).



                          6. Hearsay statements by Schwab

      During the course of Webb’s direct testimony, he discussed Schwab’s

reaction to the news that ABF had fired Webb. Webb testified over ABF’s

hearsay objection that Schwab had said, “We knew this was coming,” indicating

that Schwab felt Webb’s firing came in reaction to Webb’s union activities. Prior

to eliciting this testimony, the district court instructed the jury on the definition of

hearsay and on Webb’s stipulation that the Schwab statement was non-hearsay


                                          - 41 -
because it was not offered to prove the truth of Webb’s claim that his firing was

retaliatory. ABF contends that it was an abuse of discretion to admit this

testimony because the only purpose for offering Schwab’s statement was to prove

the truth of the matter asserted, i.e., that Webb was the victim of retaliation.

      We find no abuse of discretion because we agree with the district court that

Webb’s testimony about Schwab’s statement was not hearsay. Although

Schwab’s statement could have been interpreted as suggesting that ABF actually

had retaliated against Webb, the district court properly instructed the jury not to

consider the statement for that purpose. Instead, Schwab’s statement was

probative of Schwab’s own state of mind and his awareness of Webb’s desire to

raise a retaliation claim, both of which were relevant to Webb’s claim that Local

17 breached its duty of fair representation in failing to raise his retaliation claim.

Thus, the court did not abuse it discretion in admitting the testimony.



                                 C. Jury Instructions

      ABF challenges a series of decisions by the district court admitting or

excluding certain jury instructions. We review a trial court’s decision on whether

to give a particular instruction for abuse of discretion. See Thomas v. Denny’s,

Inc., 111 F.3d 1506, 1509 (10th Cir.), cert. denied, 118 S. Ct. 626 (1997). Within

the scope of this review, we will find an abuse of discretion if the challenged


                                         - 42 -
instruction incorrectly states the governing law. See id. Furthermore, “[n]o

particular form of words is essential if the instruction as a whole conveys the

correct statement of the applicable law.” Considine v. Newspaper Agency Corp.,

43 F.3d 1349, 1365 (10th Cir. 1994) (quotation omitted). Finally, we must decide

whether the jury “could seriously have been misled in its understanding of the

issues and law applicable to the case before it.” United States v. Laughlin, 26

F.3d 1523, 1528 (10th Cir. 1994).

      ABF argues that two of the instructions given to the jury incorrectly stated

the applicable law. First, ABF repeats its contention that Jury Instruction No.

10 21 incorrectly allowed the jury to find a breach of Local 17’s duty of fair

representation based on “perfunctory” conduct. Second, ABF also contends that

Jury Instruction No. 17 22 incorrectly allowed the jury to find a DFR breach if

Local 17 failed to conduct at least a “minimal investigation.” Both of these

claims, however, rely on legal arguments rejected in our discussion, in Part I.A

above, on the substantive scope of a hybrid § 301/DFR case. Because these

instructions accurately stated the law, there was no abuse of discretion in

overruling ABF’s objections to them.

      ABF also challenges the district court’s refusal to give five of its proposed


      21
           The relevant text of Jury Instruction No. 10 is provided in footnote 13.
      22
           The text of Jury Instruction No. 17 is provided in footnote 15.

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jury instructions. We have reviewed each of ABF’s claims, and in each instance,

the language proposed by ABF either was adequately conveyed by the instructions

the court did give, constituted an incorrect statement of the law, or was without

evidentiary support. Therefore we find no abuse of discretion.



                              D. Special verdict form

      In addition to its challenges to the district court’s jury instructions, ABF

also raises two challenges to the wording of the special verdict form given to the

jury. We will review the language of a special verdict form with the same abuse

of discretion standard that we apply to jury instructions. See United States v.

Reed, Nos. 97-10053, 97-10072, __ F.3d __, 1998 WL 372749, at *2 (9th Cir.

July 7, 1998).

      ABF’s first contention points to the wording of the initial question in the

special verdict form, which asks the jury to decide whether Webb was

“wrongfully discharged.” ABF argues that the phrase “wrongfully discharged”

incorrectly characterizes the legal requirement of finding that Webb’s firing

breached the collective bargaining agreement. We see no mischaracterization in

the use of the phrase “wrongfully discharged” instead of “breached the contract.”

Furthermore, we note that Jury Instruction No. 10 ensures that the jury was aware

that in order to find that Webb was “wrongfully discharged,” it must find that


                                        - 44 -
“ABF Freight Systems Inc. violated the National Master Freight Agreement by

terminating Webb from his employment without ‘just cause’ or other valid reason

under said contract.” As a result, we find no abuse of discretion in the special

verdict form’s use of the words “wrongfully discharged.”

      ABF next contends that the special verdict form incorrectly failed to set

forth a “but for” causation standard for Webb’s DFR claim. However, as we

discussed above in Part I.C., the case law does not require a “but for” causation

standard in a DFR case.



                               E. Excessive damages

      ABF’s final basis for claiming a right to a new trial is a rearticulation of its

earlier argument on the allocation of damages. ABF contends that the jury’s

award of $89,699.20 in damages against ABF was “plainly excessive” because

this amount includes lost wages incurred by Webb after the date of the grievance

hearings. However, as discussed above in Part I.E., the jury properly allocated

damages on the basis of its findings of proportional fault. As a result, we reject

ABF’s related claim that the damages are excessive.



                                     Conclusion

      In this case, a properly instructed jury having heard seven days of testimony


                                        - 45 -
found that Teamsters Local 17 had breached its duty of fair representation to Rick

Webb and that this breach seriously undermined Webb’s ability to defend his

rights under the collective bargaining agreement after ABF Freight System had

wrongfully terminated his employment. We have found no errors of law or abuse

of discretion in the proceedings below, and therefore, we AFFIRM.




                                       - 46 -
