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Plaintiff, Appellant,
v.
J.J. NISSEN BAKING CO., ET AL.,
Defendants, Appellees.
_____________________
No. 92-1408
JOHN ACHILLI,
Plaintiff, Appellee,
v.
J.J. NISSEN BAKING CO., ET AL.,
Defendants, Appellees.
___________
TEAMSTERS UNION LOCAL 64, AFFILIATED
WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Marc B. Gursky for Teamsters Union Local No. 64, etc.
______________
Arthur P. Menard with whom Cuddy, Lynch & Bixby was on brief
________________
_____________________
John J. Nissen Baking Co.
Mark L. Galvin for John Achilli.
______________
____________________
March 29, 1993
____________________
BREYER,
Chief Judge.
____________
On
April
4, 1988,
John
driver at
extra boxes
of cream
wanted
to
Nissen
dismissed
Achilli
provision in
went
them
for
Nissen
violated
to arbitration,
Local
kind of
transport.
having
lost, and
horns (a
had not
an
eclair) that
immediately
anti-wildcat
agreement.
then brought
Achilli
this lawsuit
represented
him properly.
See Labor
___
told
following
Nissen)
job.
the arbitrators
union
orders, and
known this,
The
2)
Achilli,
had
Achilli probably
court awarded
attorneys' fees.
that
that
The
should
in effect,
was
the arbitrators
(or
would have
Achilli damages
kept his
of $15,000
plus
Local
makes six
discuss in turn.
-33
arguments,
which we
shall
1.
the evidence
to
"judicially developed as
that
of exclusive
This
a necessary corollary
representative," The
___
not
require
representation free
Freight, Inc.,
_____________
process
perfect
of negligence.
424 U.S.
cannot
be
representation,
Hines v.
_____
expected
to
be
or
Anchor Motor
____________
("[t]he grievance
error-free");
United
______
that a
significantly
of fair representation).
labor
harms its
even
organization will
members through
It
does mean,
be liable
actions
claim
if it
that are
arbitrary, reckless, or
190; Alicea
______
(1st
Cir.
in bad
faith.
Vaca,
____
386 U.S.
at
28.04[2][c]
See also
________
at 28-65 (1989)
employee's interests
representation).
Theodore
("reckless disregard"
is actionable
And, the
breach of duty
of unit
of fair
represent
Achilli
properly
for
reasons
unrelated
to
evidence in
the
record,
read favorably
to
2.
3.
4.
5.
6.
Joseph
Padellero, to
represent Achilli.
Achilli told Padellero (with Hanoian present)
that he had "left the cream horns behind
because of the meeting . . . in October."
Hanoian replied, "You can't say that . . .
.[T]he company can sue the union if you say
that."
And Hanoian later repeated, "Well,
you just can't say that."
7.
These
Local's
own
facts
indicate
duty to represent
interest.
The Local
conflict
a member fairly
between
in its own
favor.
The evidence
Local's
shows
the
the Local.
Cf. Ooley
___ _____
reason for
the
v. Schwitzer Div.,
________________
1992).
Nissen or
instruction
defended
the arbitrators
--then
drivers, would
Achilli,
like
job.
itself primarily
by
the
At
trying to
had it
October meeting
other
wildcatting
trial, the
show a
Local
different
-66
version
of
the facts.
But,
the district
court believed
told
Local adds
the
instruction.
arbitrators
But, the
the contrary,
that Achilli,
about
on his
the
own, could
October
meeting
his
failure
understandable,
therefore,
2.
bringing
have
this
volunteer
indeed, less
insufficient
responsibility.
should
to
to
than
this
information
purely voluntary,
absolve the
Local
of
and,
causal
exhausted
lawsuit.
The
internal
Clayton
_______
Local argues
union
v.
that Achilli
remedies
before
union self-government
and independence.
See
___
391
the
Local
(1968) (Harlan,
J., concurring).
But,
not exist.
Clayton, 451
_______
Local, to
demonstrate the
U.S. at
689 (1981).
existence of an
Here,
the
internal remedy
he seeks, simply
-77
pointed
to
Article
XIX,
section 9(a)
of
the
Teamsters
aggrieved
members]
may consist
of
reprimands,
fines,
suspensions,
expulsions, revocations, denial to hold
any office . . ., or commands to do or
perform, or refrain
from doing
or
performing, specified acts. . . . If a
fine is assessed against a Local Union .
. . the payment shall be to the treasury
of the Joint Council.
This
provision does
not
___
say that
the internal
procedure
Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.
_________________________
1988);
Beyene
______
it point
contrary.
to a
In these
that might
suggest the
-88
See Doty v.
___ ____
the existence
3.
The
Hanoian's
instructions,
Achilli
nonetheless violated
collective
bargaining
agreement,
which
prohibited
"just cause"
breach
to
dismiss Achilli,
the contract in
section
doing so.
prove not
union
Hence, Nissen
and Nissen
The
the
did not
Local adds
only that
that a
the union
breached its duty to represent him fairly, but also that the
employer
301(a), 29 U.S.C.
the district
likely have
court found
that the
to this argument is
arbitrators would
And, that holding
least in
the
absence
of
reasonable
basis
for
variation.
See
___
Frank Elkouri
that
Nissen
&
Edna
Asper Elkouri,
did
The
not discipline
How
___
evidence here
different
shop
-99
direction
Achilli.
It also shows
instituted,
of
their
union
representative,
namely,
predicted that
have set
aside
the
Measuring Damages.
_________________
Local's
bad
faith
The
conduct
to
Achilli's
discharge.
It measured
the harm
inflicted by
taking the
work, and
subtracting the
wages he
he was
earned in
improper.
First, the
Local says
should not
-1010
grants
courts
broad authority
to
create an
"appropriate
remedy" for a
"fair representation,"
which
may
circumstances
remedy
"vary
with
the
of
the
particular
breach."
circumstances
here
Vaca,
____
386
U.S.
include fairly
at
195.
The
strong evidence
that a
a fairly
small damages
large administrative
costs and
arbitration proceeding.
these
resubmitted
These circumstances, in
subtracted
some
hypothetical
Labor Law
_________
unknown
our view,
court
need
arbitration, nor
small
sum
not
have
need it
have
as
representing
Id.
___
at
196; Kheel,
28.02[2][iii] at 28-22.
the Local
mitigate
employment after
contains
the
alternative punishment.
Second,
properly
to
any new
circumstances,
the matter
and comparatively
delays attached to
award,
his damages
he was
evidence
advertisements
argues
but
that
by looking
discharged.
The
Achilli did
for alternative
record, however,
that
Achilli
did
found
nothing
comparable;
not
read
newspaper
that
he
he turned down
because "it
didn't pay
one, the
that
district court,
and
deliver bread
no definite offer.
non-mitigation.
enough money";
in our
view, could
F.2d
420, 423 (1st Cir. 1968) (union bears burden of proving that
the employee
failed to make
a reasonable search
for post-
termination employment).
Third, the
Local argues
that the
district court
damages.
The short
the court
answer to this
apportions
claim, however, is
liability between
employer and
197.
employer was
apportionment of
and
lawful.
not at fault.
reasonably
Hence,
its
See Baskin
___ ______
v. Hawley, 807
______
Fourth, the
award
the court
may
Achilli, argues
-1212
total
fees
an
amount
reflecting
949,
however,
957-58 (1st
is
primarily for
court, to make.
(9th
its
Cir. 1987).
conclusion
unsuccessful
that spent
Cir.
1991).
the
legal
time
spent
on
district
apportionment,
court, not
this
claims was
legal
time and
on the successful
significant.
II.
energy
spent on
separable from
claims, or separable
but not
Achilli's Appeal
________________
Achilli makes two arguments.
the district
is no longer
to do.
See
___
De Arroyo v.
_________
425 F.2d
281, 292
Achilli's
during trial,
complaint did
when
not mention
Achilli was
asked
and,
in
response
to
the
court's
. if
question
But,
counsel
immediately added
the rather
obscure
comment that Achilli might "take the position that the Court
can order reinstatement,"
make a
or not."
v. Spector Freight Sys. Inc., 679 F.2d 685 (7th Cir. 1982).
_________________________
Second,
wrongly decided to
1, 1989,
when
Achilli
says
that
district
court
the court
found
damages.
that Achilli
had
to reasonable mitigation.
stopped
the
on
work, and
searching
but,
rather,
diligence
constituted
in
obtaining
primarily for
failure
to
use
"reasonable
new employment,"
and
thereby
court.
to
This is
In reviewing
efforts made in
NLRB v.
____
taking short-term
trucking firms
for two
twenty others.
Id. at 714-15.
___
jobs
at
decided the
seven
nine months,
question
In
705
Ryder, a
_____
sought work as
different
applications to
983 F.2d
were we
he failed
to
However we would
trial court,
these
For
these reasons
the judgment
court is
Affirmed.
________
-1515
of the
district