USCA1 Opinion

March 29, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1167
JOHN ACHILLI,
Plaintiff, Appellee,
v.
JOHN J. NISSEN BAKING CO., ET AL.,
Defendants, Appellees.
___________
TEAMSTERS LOCAL UNION NO. 64, ETC.,
Defendant, Appellant.
_____________________
No. 92-1221
JOHN ACHILLI,
Plaintiff, Appellant,
v.
JOHN J. NISSEN BAKING CO. AND
TEAMSTERS UNION LOCAL 64, ETC., ET AL.,
Defendants, Appellees.
_____________________
No. 92-1407
JOHN ACHILLI,

Plaintiff, Appellant,
v.
J.J. NISSEN BAKING CO., ET AL.,
Defendants, Appellees.
_____________________

No. 92-1408
JOHN ACHILLI,
Plaintiff, Appellee,
v.
J.J. NISSEN BAKING CO., ET AL.,
Defendants, Appellees.
___________
TEAMSTERS UNION LOCAL 64, AFFILIATED
WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________

____________________
Before
Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Marc B. Gursky for Teamsters Union Local No. 64, etc.
______________
Arthur P. Menard with whom Cuddy, Lynch & Bixby was on brief
________________
_____________________
John J. Nissen Baking Co.
Mark L. Galvin for John Achilli.
______________
____________________
March 29, 1993
____________________

BREYER,

Chief Judge.
____________

Achilli, a union shop

On

April

4, 1988,

steward and a bakery sales

John

driver at

the John J. Nissen Baking Company, told other drivers not to

load

extra boxes

of cream

wanted

to

Nissen

dismissed

Achilli

provision in
went

them

for

Nissen

violated

the collective bargaining

to arbitration,

Local

kind of

transport.
having

lost, and

against his Local Union

the

horns (a

had not

an

eclair) that
immediately
anti-wildcat

agreement.

then brought

Achilli

this lawsuit

(as well as Nissen), claiming

represented

Management Relations Act ("LMRA")

159(a), 185(a); Vaca v. Sipes,
____
_____

him properly.

See Labor
___

9(a), 301(a), 29 U.S.C.

386 U.S. 171 (1967).

district court agreed with Achilli that 1) the Local

have

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

The Local and Achilli have filed appeals.

We affirm the judgment.

I.
The Local Union's Appeal
________________________
The

Local

makes six

discuss in turn.
-33

arguments,

which we

shall

1.

The Basic Violation.

____________________

the evidence

does not support the

that it failed to fulfill

to

district court's finding

See Vaca, 386 U.S. at 190.

___ ____

"judicially developed as

the [union's] status

that

its legal obligation to represent

its member Achilli fairly.

obligation,

The Local argues

of exclusive

This

a necessary corollary
representative," The
___

Developing Labor Law 1409 (Patrick Hardin ed., 3d ed. 1992),

____________________
does

not

require

representation free
Freight, Inc.,
_____________
process

perfect

of negligence.

424 U.S.

cannot

be

representation,
Hines v.
_____

554, 571 (1976)

expected

to

Steelworkers of America, etc. v.

_____________________________

be

or

Anchor Motor
____________

("[t]he grievance

error-free");

United
______

Rawson, 495 U.S. 362, 372______

73 (1990) (union's "mere negligence" does not state a

for breach of duty
however,

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

v. Suffield Poultry, Inc., 902 F.2d 125, 129-30

______________________
1990).

28.04[2][c]

See also
________

at 28-65 (1989)

employee's interests
representation).

Theodore

("reckless disregard"

is actionable

And, the

that the Local acted in

Kheel, Labor Law

__________

breach of duty

of unit
of fair

evidence here supports a finding

bad faith, intentionally failing to

-44

represent

Achilli

properly

legitimate union objectives.

for

reasons

unrelated

to

Amalgamated Ass'n of Street,

_____________________________

etc. v. Lockridge, 403 U.S. 274, 301 (1971).

____
_________
The

evidence in

the

record,

read favorably

to

Achilli, the winning party, reveals the following:

1.

Achilli, a driver-salesman and shop steward,

had worked at Nissen for ten years.

2.

During 1987 and 1988, Nissen management would

sometimes provide drivers with more boxes of
pastry than the drivers had expected.
This
practice -- of supplying what the drivers
called "add-ons"
-was a
source
of
continuing controversy.

3.

In October 1987, at a Local meeting, Paul

Hanoian, the Local's Business Agent, told
Achilli and other drivers that they were "not
to take unnecessary add-[ons]" and that it
was "left up to the shop steward to decide"
whether or not
a particular add-on was
"unnecessary."

4.

On April 4, 1988, Nissen doubled the number

of cream horns the drivers were to carry,
leading many drivers to object.
Achilli
wrote a sign telling the drivers to leave the
"add-on cream horns" behind, and several did
so.

5.

Later that day, Hanoian learned of the add-on

cream horn incident, and that Nissen intended
to dismiss Achilli, while retaining the other
drivers.
Hanoian spoke to Nissen, conceded
that Achilli's conduct was improper, but
asked Nissen to
retain Achilli
anyway.
Hanoian said nothing
about his
October
_____________________________________________
meeting instruction.
____________________

6.

Nissen dismissed Achilli.

The Local sought
arbitration. It provided a union official,
-55

Joseph
Padellero, to
represent Achilli.
Achilli told Padellero (with Hanoian present)
that he had "left the cream horns behind
because of the meeting . . . in October."
Hanoian replied, "You can't say that . . .
.[T]he company can sue the union if you say
that."
And Hanoian later repeated, "Well,
you just can't say that."
7.

Later, at the arbitration meeting, Padellero

conceded that Achilli's action violated the
collective bargaining agreement. And, while
he
pointed
out
various
mitigating
circumstances, he said nothing about the
_____________________________
October meeting instruction. The arbitration
____________________________
panel decided against Achilli (2-0).

These
Local's
own

facts

indicate

duty to represent

interest.

The Local

conflict

a member fairly

between

and the Local's

resolved the conflict

no legitimate

in its own

favor.

The evidence

Local's

choice, and it does not show that a contrary choice

would have hurt

shows

the

the Local.

Household Mfg. Inc.,

___________________

Cf. Ooley
___ _____

961 F.2d 1293,

reason for

the

v. Schwitzer Div.,
________________

1303 (7th Cir.

1992).

The evidence also permitted the district court to find that,

had the
told

Local resolved the

Nissen or

instruction

defended

the arbitrators

--then

drivers, would

conflict differently -about the

Achilli,

like

have kept his

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

Achilli's witnesses, not the Local's.

The
have

told

Local adds
the

instruction.

arbitrators

But, the

the contrary,

that Achilli,
about

on his

the

own, could

October

meeting

district court could reasonably find

namely that the Local's

pressure, along with

Achilli's dependence upon his representative at the hearing,

make

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

Cf. Alicea, 902 F.2d at 127-29 & n.6, 133.

___ ______
Exhaustion.
__________

exhausted
lawsuit.

The
internal
Clayton
_______

Local argues
union
v.

that Achilli

remedies

before

Int'l Union, United

____________________

Auto., etc., 451 U.S. 679 (1981).

___________

We have no doubt that the

exhaustion requirement is critically important, for it helps

to guarantee

union self-government

and independence.

See
___

NLRB v. Indus. Union of Marine & Shipbuilding Workers,

____
______________________________________________

391

U.S. 418, 429

the

Local

(1968) (Harlan,

J., concurring).

But,

cannot insist that Achilli exhaust a remedy that does

not exist.

Clayton, 451
_______

Local, to

demonstrate the

that might have

U.S. at

689 (1981).

existence of an

given Achilli the damages

Here,

the

internal remedy
he seeks, simply

-77

pointed

to

Article

XIX,

section 9(a)

of

the

Constitution, which reads as follows:

Decisions and penalties imposed upon . .
. Local Unions . . . found guilty [by
the
Teamsters'
internal
appeals
tribunal]
of
charges
[brought
by

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

permits the award of damages.

the internal

procedure

Its statement that any "fine"

will be made "to the treasury of the Joint Council" suggests

the opposite.
provision
v.

And, two federal circuits have said that this

seems not to provide for a damage remedy.

___

Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.
_________________________

1988);

Winter v. Local Union No. 639, etc.,

______
__________________________

149 (D.C. Cir. 1977).

did

Beyene
______

it point

contrary.

to a

In these

properly hold that

569 F.2d 146,

The Local provided no affidavits, nor

single example

that might

suggest the

circumstances, the district court could

the Local failed to prove

of an internal damage remedy.

1053, 1061 (1st Cir. 1990).

-88

See Doty v.
___ ____

the existence

Sewall, 908 F.2d

______

3.
The

Breach of the Collective Bargaining Agreement.

_____________________________________________

Local argues that, whether or not Achilli was following

Hanoian's

instructions,

Achilli

nonetheless violated

collective

bargaining

agreement,

which

prohibited

representatives from inciting work-stoppages.

had

"just cause"

breach

to

dismiss Achilli,

the contract in

section

doing so.

301 plaintiff must

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

violated the collective bargaining agreement. LMRA

301(a), 29 U.S.C.

185(a); see Kissinger v. United States

___ _________
_____________

Postal Service, 801 F.2d 551, 553 (1st Cir. 1986).

______________
The
that

short, conclusive answer

the district

likely have

court found

that the

ordered Achilli reinstated.

had adequate record support.

to this argument is
arbitrators would
And, that holding

Arbitrators, who are primarily

responsible for interpreting contractual terms such as "just

cause," normally insist that

employers impose punishment in

a consistent manner, treating alike employees who act alike,

at

least in

the

absence

of

reasonable

basis

for

variation.

See
___

Frank Elkouri

Arbitration Works 684

__________________
shows

that

Nissen

&

Edna

Asper Elkouri,

(4th ed. 1985).

did

The

not discipline

How
___

evidence here
different

shop

-99

steward who, following

or

union instructions, had

at least condoned, another work stoppage.

that Nissen did

direction

Achilli.

It also shows

not punish any of the other drivers who, on

April 4 and 5, 1987, engaged in

the

instituted,

of

their

a wild-cat work stoppage at

union

representative,

namely,

The district court could therefore have reasonably

predicted that

Achilli's arbitrators would

have set

aside

his dismissal as lacking "just cause" had it only known that

Achilli, too, was following instructions.
4.
that

the

Measuring Damages.
_________________

Local's

bad

faith

The
conduct

district court found

led

to

Achilli's

discharge.

It measured

the harm

inflicted by

taking the

wages that Nissen would have paid Achilli as long as

looking for

work, and

other, interim jobs.

The

subtracting the

wages he

he was

earned in

The total award came to about $15,000.

Local argues that the

court's damage award was legally

improper.
First, the

Local says

have made an award, but instead

case

should not

should have resubmitted the

to arbitration, or, at least, have subtracted from the

$15,000 award a sum

punishment
might

that the court

representing a lesser, but alternative,

that a knowledgeable Nissen or arbitration board

have imposed in lieu of discharge.

The law, however,

-1010

grants

courts

broad authority

to

create an

"appropriate

remedy" for a

breach of the duty of

"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

fair arbitration proceeding would have led to reinstatement,

little evidence that

it would have meant any large monetary

punishment, no evidence about the precise amount of any such

penalty,

a fairly

small damages

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

a fair and practical remedy.

circumstances,
the matter

and comparatively

delays attached to

make the $15,000 damage remedy

Given

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;

investigated a job possibility

-1111

not

read

newspaper
that

he

with a lumber company, which

he turned down

because "it

that his failure to

didn't pay

pursue a job prospect to

in Worcester was due to the

he had received
fairly close
conclude

one, the

that

Though the issue is

district court,

from this evidence that the

See
___

and

deliver bread

long commute and the fact

no definite offer.

non-mitigation.

enough money";

in our

view, could

Local failed to prove

NLRB v. Arduini Mfg. Corp., 394

____
___________________

F.2d

420, 423 (1st Cir. 1968) (union bears burden of proving that
the employee

failed to make

a reasonable search

for post-

termination employment).
Third, the

Local argues

that the

district court

should have required the employer, Nissen, to pay a share of

the
that

damages.

The short

the court

answer to this

apportions

claim, however, is

liability between

employer and

union "according to the damage caused by the fault of each."

Vaca, 386 U.S. at
____

197.

conclude that the

employer was

apportionment of
and

lawful.

not at fault.

reasonably
Hence,

its

all the damages to the Local is reasonable

See Baskin
___ ______

(2d Cir. 1986).

Here, the court could

v. Hawley, 807
______

F.2d 1120, 1132-33

Fourth, the
award

Local, conceding that

the court

may

attorney's fees as part of the damages that it caused

Achilli, argues

that the court should

have subtracted from

-1212

total

fees

an

amount

reflecting

Achilli's unsuccessful legal claims.

__
F.2d

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

Lewis v. Kendrick, 944

_____
________
This

district

apportionment,
court, not

this

Zuniga v. United Can Co., 812 F.2d 443, 454

______
_____________
The record
that the

claims was

before us adequately supports

legal

time and

either not readily

on the successful

significant.
II.

energy

spent on

separable from

claims, or separable

but not

Achilli's Appeal
________________
Achilli makes two arguments.
the district

court should have ordered

him, something that Nissen

The district court, however,
reinstatement

is no longer

First, he says that

Nissen to reinstate

is now no longer willing

to do.

could lawfully have found that

practicable.

Sindicato de Trabajadores Packinghouse,

_______________________________________

See
___

De Arroyo v.
_________

425 F.2d

281, 292

(1st Cir.), cert. denied, Puerto Rico Tel. Co. v. De Arroyo,

____________ ____________________
_________
400 U.S. 877 (1970).
Regardless,
reinstatement; and,
whether

Achilli's
during trial,

complaint did
when

not mention

Achilli was

asked

he had any interest in returning to Nissen, he said

-1313

that he did not.

We concede that, at the very end of trial,

Achilli's counsel, in the context of talking about insurance

benefits, said that Achilli

reinstated,"

and,

in

would receive "credit . .

response

to

the

court's

. if

question

whether Achilli was "asking for reinstatement" answered, "he

is."

But,

counsel

immediately added

the rather

obscure

comment that Achilli might "take the position that the Court
can order reinstatement,"
make a
or not."

and, if the court did so, he "can

decision as to whether he would accept reinstatement

In this context, the court found

waived the reinstatement remedy.

that Achilli had

That finding, in our view,

is lawful. Tinsley v. United Parcel Service, Inc., 665 F.2d

_______
____________________________
778, 779

(7th Cir. 1981), overruled on other grounds, Rupe

___________________________ ____

v. Spector Freight Sys. Inc., 679 F.2d 685 (7th Cir. 1982).
_________________________
Second,
wrongly decided to
1, 1989,

when

Achilli

says

that

district

court

end its damage calculation as of January

the court

trying to mitigate his

that date, he stopped

found

damages.

that Achilli

had

looking for bread delivery

that alternative, lower

to reasonable mitigation.

stopped

Achilli concedes that,

began his own house painting business.

to start

the

on

work, and

He says his decision

paying, business amounted

The problem for Achilli, however,

is that the district court decided that his decision to stop

-1414

searching
but,

and start painting was not reasonable mitigation,

___

rather,

diligence

constituted

in

obtaining

mitigate loss of income.

a matter

primarily for

failure

to

use

"reasonable

new employment,"

and

thereby

Arduini, 394 F.2d at 423.

_______
the district

court.

to

This is

In reviewing

this conclusion, we have

compared the more extensive search

efforts made in

Ryder System, Inc.,

__________________

NLRB v.
____

(6th Cir. 1993), with

Achilli's efforts here.

wrongfully discharged trucker "diligently

truckdriver,"

taking short-term

trucking firms

for two

twenty others.

Id. at 714-15.
___

for work for

jobs

at

decided the

seven

years, and sending

nine months,

question

In

705

Ryder, a
_____

sought work as

different

applications to

Achilli, by contrast, looked

during which time

follow up on several union-provided leads.

have

983 F.2d

were we

he failed

to

However we would

trial court,

these

circumstances are sufficient on appeal to justify a district

court conclusion that Achilli gave up too soon.

For

these reasons

the judgment

court is
Affirmed.
________

-1515

of the

district