[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16596 MARCH 9, 2006
_____________ THOMAS K. KAHN
CLERK
D.C. Docket No. 02-21417-CV-CMA
AMADEO BIANCHI,
Plaintiff-Appellee,
versus
ROADWAY EXPRESS, INC., a foreign
corporation,
Defendant-Appellant,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, AND
WAREHOUSEMEN, LOCAL 390,
a labor organization,
Defendant.
____________
Appeal from the United States District Court
for the Southern District of Florida
____________
(March 9, 2006)
Before HULL, MARCUS and HILL, Circuit Judges.
PER CURIAM:
After thirty-six years of employment as a tractor-trailer driver for defendant
Roadway Express, Inc. (Roadway), plaintiff Amadeo Bianchi (Bianchi) was
terminated. After hearing, a grievance panel upheld his termination. Thereafter,
Bianchi brought a hybrid action under Section 301 of the Labor Management
Relations Act, also known as the Taft-Hartley Act, 29 U.S.C. §185(a)(1947)
(hybrid Section 301 claim), against employer Roadway, for breach of a provision
of a collective bargaining agreement (CBA), and against the International
Brotherhood of Teamsters, Local 390 (the Union), for breach of its duty of fair
representation (DFR). Bianchi claimed that the Union, through its business agent,
Don Marr (Marr), mishandled his grievance of wrongful termination, among other
things, based on political and personal animosity between Marr and Bianchi and in
retaliation for Bianchi’s membership in Teamsters for a Democratic Union (TDU),
a dissident Union organization.
After trial, a jury found that Roadway had fired Bianchi in violation of its
CBA. It found that the Union, through Marr, had represented Bianchi arbitrarily,
discriminatorily, and/or in bad faith at Bianchi’s grievance hearing in breach of its
DFR. On appeal, Roadway contends that the jury’s finding of Union breach is not
supported by the evidence. Roadway claims that Bianchi, with full knowledge of
2
all the relevant facts, waived the argument that Marr represented him in bad faith
and with bias because Bianchi chose not to raise this issue before the grievance
panel itself, before he received an adverse ruling from the panel.1
We agree with Roadway. Based on the following discussion, we conclude
that, by remaining silent and by failing to raise the issue of bad faith/bias at his
panel hearing, Bianchi has waived his right to raise the issue in his claim against
Roadway and on appeal. We vacate the jury’s award and grant judgment as a
matter of law for Roadway.
I. FACTUAL BACKGROUND
The relevant facts are these. Bianchi had worked for Roadway for thirty-six
years. He had been a member of the Union since 1959. Bianchi also served as a
Union steward, volunteering to aid other Union members.
Bianchi was a seasoned Union man, active in Union meetings and Union
politics, well versed in the CBA, and well known for helping other Union
members. Bianchi was also a member of TDU.
Marr was the Union’s business agent for Roadway. He was Bianchi’s
Union representative at the panel grievance hearing. The two men had a history of
1
If so, the jury verdict cannot stand and we need not reach the issue of whether or not the
introduction of certain evidence was prejudicial to Roadway’s case and whether the district court
abused its discretion in not granting Roadway a new trial.
3
political animosity with each other.2 Bianchi ran against Marr five times for
Union office and once for delegate to the International Brotherhood of Teamsters
convention, losing to Marr all six times. In addition to their political rivalries, it
was well known that Marr and Bianchi had open and ongoing personal conflicts
with each other.3 Over the years, Bianchi filed several complaints against Marr
and the Union leadership.
Bianchi was fired when Roadway determined that he had helped another
employee, Issaah “Gerome” Daniels (Daniels) file a fraudulent injury report.
Daniels was also terminated. Roadway claims they were both fired for dishonesty
and fraud in connection with the injury report. Roadway contends that Bianchi
instructed Daniels to claim an off-the-job injury as an on-the-job injury, and to
2
To summarize the political animosity, Bianchi claims that Marr complained to other
bargaining unit members that Bianchi was wasting Union funds by running for office; that Marr
filed election protests against Bianchi for engaging in behavior in which Marr himself was
engaging; that Marr berated and denigrated Bianchi to other bargaining union members; that
Marr made fun of Bianchi and his supporters; that Marr ripped Bianchi’s “palm cards” from
voters’ hands and threw them in the garbage; that Marr destroyed and discarded Bianchi’s
campaign materials; that Marr constantly referred to Bianchi as a “motherfucker”; and that Marr
screamed at Bianchi to leave an outdoor lunch area as he was in “opposition country.”
3
To summarize the personal animosity, Bianchi claims that Marr repeatedly harassed
Bianchi by making faces and by yelling obscenities at him; that Marr constantly mocked
Bianchi’s political supporters; that Marr told Bianchi many times to his face that he did not like
him; that Marr generally referred to Bianchi as “that motherfucker”; and that Marr would tell
other Union members that Bianchi was an idiot in the way he helped them with their Union
grievances.
4
falsify the date of the injury on the form.4
Both Bianchi and Daniels claim it was a simple misunderstanding as to the
date of the injury put on the form. Both claim that the injury did in fact occur on
the job. Each man filed a grievance regarding his discharge.
Marr represented each man separately as their grievance proceedings
advanced from the local level to the panel hearing level. The grievance panel was
comprised of two Union members and two Roadway representatives. Daniels’
grievance was heard the day before Bianchi’s.5
Prior to Bianchi’s hearing date, a co-worker informed Bianchi that Marr was
only pretending to help him. Bianchi later testified at trial that he had been
uncomfortable with Marr representing him, believing that Marr was only “acting”
as though he was representing him. Still, at the hearing level, Bianchi did not ask
for a different Union representative.
Bianchi contends that Marr’s preparation for his panel hearing left him
4
The details of the injury are not relevant here.
5
Marr allegedly spoke to Daniels prior to his panel hearing, continuing to speak very
disparagingly about Bianchi. Marr told Daniels that if Daniels testified that Bianchi had told him
to falsify the date of injury put on the form, then Daniels would get off without a hearing. When
Daniels refused, Marr said that Daniels had “pissed off” a Roadway official and would now have
to go forward with a hearing. During Daniels’ hearing, Marr blamed Bianchi for the mix-up with
the date of injury put on the forms. He suggested that, while Marr gave Daniels proper advice,
Bianchi had confused him. The panel overturned Daniels’ termination and reinstated him.
5
worried about Marr’s advocacy. Marr allegedly told another worker that he was
merely “go[ing] through the motions” of getting “that motherfucker Bianchi his
job back.” Marr allegedly refused to call live witnesses, instead choosing to read
statements into the record. Bianchi caught and fixed several of Marr’s errors in
preparation of an exhibit packet. In addition, Marr allegedly refused to push for a
joint hearing with Daniels.
At the close of his grievance panel hearing, Bianchi was asked by a panel
member whether or not he had presented all of his evidence. Bianchi responded
that he was not fully prepared and wished that he had had live witnesses, but that
he had presented everything in his favor. When the panel member asked Bianchi
whether Marr had represented him properly and fully, Bianchi replied, “I believe
Don Marr represented me properly and fully.”
Bianchi never expressed to the panel any reservations that he may have had
about Marr’s biases or even those of any panelist.6 On cross examination at trial,
Bianchi was pressed on whether it was true or not that he was happy with Marr’s
representation. He admitted that he lied to the panel. Bianchi claimed that he did
6
At the time of the panel hearing, Bianchi was also aware of the fact that he did not have
a good relationship with one of the panel members but said nothing to the panel. Bianchi stated
that the panel “still had two union men and two company men, that if they heard the evidence
they would vote in my favor.” Immediately after receiving the adverse panel result, Bianchi filed
a complaint with the Union claiming that the two Union panel members were biased against him
and had upheld his termination solely due to his Union politics.
6
not bring up his concerns about Marr’s bias to the panel because he did not want
to make the panel mad. Bianchi testified: “I figured there is no way they are going
to take my job from me. I figure I would just let it [the bias] go.”
The panel upheld Bianchi’s termination.
II. PROCEDURAL HISTORY
Thereafter Bianchi filed his hybrid Section 301 claim against Roadway and
the Union in federal district court. Before trial, Roadway filed a motion in limine
claiming that Bianchi had waived his argument that Marr was biased against him
and had fixed the panel grievance hearing, by not raising this with the grievance
panel itself. The district court denied the motion and the case proceeded for jury
trial.
The jury held for Bianchi against both Roadway and the Union, finding: (1)
that Roadway had terminated Bianchi without just cause in violation of the CBA;
(2) that the Union had breached its DFR by Marr’s handling of Bianchi’s
grievance proceedings arbitrarily, discriminatorily and/or in bad faith; and (3) that
the Union’s breach materially affected the outcome of Bianchi’s grievance
hearing.
Roadway then filed a motion for judgment as a matter of law, renewing its
contention that Bianchi had waived his bad faith/bias argument, or, in the
7
alternative, a motion for new trial. The district court denied the motions without
explanation and entered judgment for Bianchi in accordance with the jury’s
verdict.
This appeal follows.7
III. ISSUES PRESENTED
A. Whether the district court erred by denying Roadway’s motion for
judgment as a matter of law because Bianchi had waived his objection of bad
faith/bias by failing to raise it before his grievance panel, and therefore the
evidence at trial was insufficient to support a jury finding that the Union had
breached its DFR?
B. Whether the district court abused its discretion by refusing to grant
Roadway’s motion for a new trial on evidentiary grounds?
IV. STANDARDS OF REVIEW
A. Judgment as a Matter of Law
A district court’s denial of a defendant’s motion for judgment as a matter of
law is reviewed de novo, applying the same legal standard as the district court.
7
Although the Union was initially a party to this appeal as well, it withdrew from the
appeal via a motion to dismiss its appeal with prejudice. As the Union’s breach is an element of
Roadway’s liability, Roadway can challenge the jury finding without the Union as a party on
appeal.
8
See Dade County, Fla. v. Alvarez, 124 F.3d 1380, 1383 (11th Cir. 1997). The
sufficiency of a hybrid Section 301 plaintiff’s DFR allegations is a question of law
that is also reviewed de novo. See Harris v. Schwerman Trucking Co., 668 F.2d
1204, 1206 (11th Cir. 1982). A ruling on the issue of waiver of arbitration is also
reviewed de novo. See Ivax Corp. v. B. Braun of America, Inc., 286 F.3d 1309,
1316 (11th Cir. 2002).
B. Motion for New Trial
We review the district court’s denial of a motion for new trial for abuse of
discretion. See Ad-Vantage Telephone Directory Consultants, Inc. v. GTE
Directories Corp., 37 F.3d 1460, 1463 (11th Cir. 1994).
V. DISCUSSION
A. Judgment as a Matter of Law
1. Waiver
a. Bianchi’s Contentions in General and as to Waiver
Bianchi claims that Marr’s hostility towards him caused Marr to represent
him at his grievance panel hearing in bad faith and in an arbitrary and
discriminatory manner. See Tedford v. Peabody Coal Co., et al., 533 F.2d 952, 957
(5th Cir. 1976) (citing Vaca v. Sipes, 386 U.S. 171, 190 (1967)); Black v.
Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 577, 583-84 (6th Cir. 1994); Thomas v.
9
United Parcel Service, Inc., et al., 890 F.2d 909, 923 (7th Cir. 1989). Bianchi
contends his hearing was a sham. See Margetta v. Pam Pam Corp., 501 F.2d 179,
180 (9th Cir. 1974) (union breaches DFR when proceeding is essentially a sham).
Bianchi claims that the jury verdict is well supported by the substantial
record evidence and that Roadway is not entitled to judgment as a matter of law.8
As was discussed at oral argument, Bianchi claims essentially that Marr “lay down
on the job.”
Bianchi argues that the evidence must be considered in the totality of the
circumstances. See, e.g., Parker v. Connors Steel Co., 855 F.2d 1510, 1519-20
(11th Cir. 1988). He contends it was clear that Marr was acting in his own self
8
Bianchi points to eleven instances of bad faith in the record: (1) that Marr canceled a
meeting with another freight company because he had to “go through the motions of getting that
motherfucker Bianchi” his job back; (2) that Marr attempted to convince Daniels to blame
Bianchi for the mistaken date on Daniels’ notice of injury form, in exchange for resolving
Daniels’ grievance in his favor, eliminating the need for a hearing; (3) that Marr instructed
Daniels to lie to the grievance panel [about Bianchi’s involvement]; (4) that Marr refused to
entertain Bianchi’s request that his and Daniels’ grievances be heard together; even though they
arose from the same factual circumstances and were heavily interdependent, Roadway’s Terminal
Manager wanted them heard separately; (5) that Marr refused to call live witnesses despite the
fact that Bianchi requested that he do so, instead choosing to read witness statements into the
record; (6) that Marr left it to Bianchi to do all the preparation work for the hearing; (7) that Marr
twice put Bianchi’s grievance packet together incorrectly; (8) that Marr never questioned Bianchi
about a critical telephone conversation in which Daniels informed Bianchi that he had been
injured on the job; (9) that Marr blamed Bianchi for Daniels’ conduct during Daniels’ hearing;
(10) that when Bianchi attempted to put into the record evidence from Daniels’ hearing, a Union
panelist stopped him from doing so, and Marr did not object; and (11) that Marr made a false
statement to the panel claiming that he did not know that Daniels had told Bianchi that he had
been injured on the job.
10
interest, rather than in Bianchi’s interest, during the grievance process. See Ooley
v. Schwitzer Div., Household Mfg., Inc. et al., 961 F.2d 1293, 1303 (7th Cir.
1992)(self-protectionist motives are not appropriate for fiduciaries and constitute
sufficient evidence that the Union acted in bad faith); see also Schoonover v.
Consolidated Freightways Corp. of Delaware, et al., 147 F.3d 492, 496 (6th Cir.
1998); Alicea v. Suffield Poultry, Inc., 902 F.2d 125, 132-33 (1st Cir. 1990)
(misrepresentations by union representative can amount to arbitrary conduct).
Bianchi likens his case to Achilli v. John J. Nissen Baking Co., et al., 989
F.2d 561 (1st Cir. 1993).9 The Achilli court upheld a finding of bad faith against a
Union in a hybrid Section 301 case. The plaintiff in Achilli cited a number of
pieces of evidence indicative of bad faith, including that his union representative
intentionally refused to present certain evidence to the panel. Achilli, 989 F.2d at
563-64.
In order to prove that this refusal to present certain evidence was not a DFR
breach, the Union in Achilli pointed out that the plaintiff could have simply
presented the missing evidence himself. Id. at 564. The court, through then-Chief
9
Bianchi distinguishes his case from Harris, 668 F.2d at 1204, cited by Roadway, by
arguing that the only issue in Harris was whether the union representative had represented the
grievant in a perfunctory manner. There was no suggestion in Harris that there was deliberate
obfuscation in the presentation of the grievant’s case to the panel by the Union representative, or
that there was a history of personal and political animosity between the two men.
11
Judge Breyer, held that “[t]he district court could reasonably find . . . that the
Local’s pressure, along with Achilli’s dependence upon his representative at the
hearing, make his failure to volunteer this information understandable, indeed, less
than purely voluntary, and, therefore insufficient to absolve the Local of causal
responsibility.” Id.
Bianchi only spends two-and-a-half pages in his answer brief on the subject
of waiver. He claims waiver is not present for two reasons.
Bianchi first contends that there is no waiver present in his case because his
fear that he would “make the union part of the panel mad” excused him from
bringing up the bias issue at his hearing. He claims he had no reason to believe
that the panel was “fixed” prior to the date of the hearing. Bianchi argues that, at
best, he testified that he had some trepidation about a particular panelist because he
“used to be Roadway’s labor man . . . me and him never got along good.” Bianchi
also contends that the presence of that particular panelist did not cause him to
believe that he could not get a fair hearing. Instead, he testified that “[w]e still had
two union men and two company men, [ans so I thought] that if they heard the
evidence they would vote in my favor.”
Bianchi’s second reason that waiver is not present in his case is because he
did not realize Marr’s bad faith until it “dawned on him” after he lost the panel
12
hearing. When asked at trial what made him believe that he did not get a fair
hearing, Bianchi pointed to Marr’s conduct at the hearing. He admitted his
suspicion, that, in hindsight, he felt that the proceeding had been fixed from the
beginning. Bianchi claims that this suspicion “reflects an appreciation of events
which followed the Panel hearing and dawned on [him] only after he sat down,
thought about it, and put it all together . . . .”
b. Roadway’s Contentions as to Waiver
Roadway argues that Bianchi waived his bad faith argument by failing to
raise it with the grievance panel itself. Roadway contends that all the facts relevant
to the issue of bad faith/bias were known to Bianchi at the time of the hearing, and
that he cannot sit mute and later object to an adverse ruling on that basis. His
silence constitutes a waiver of the objection.
In its attempt to establish Bianchi’s waiver, Roadway cites to Bianchi’s
deposition in which he admits that he believed that his hearing was fixed from the
beginning.10 It also highlights that Bianchi filed a protest to the proceeding,
claiming that the Union panel members were politically biased against him, on the
same day of but after the adverse decision, demonstrating that Bianchi had always
10
As Bianchi’s deposition was put in the record as an exhibit to Roadway’s motion for
summary judgment, it was never admitted at trial and can only be examined in the context of
waiver, not sufficiency of the evidence.
13
thought his hearing was fixed and merely held that issue as his trump card, for later
assertion in the event of an adverse decision.
On the issue of waiver, Roadway relies principally on a First Circuit case,
Early v. Eastern Transfer, 699 F.2d 552 (1st Cir. 1983). In Early, the First Circuit
considered whether two hybrid Section 301 plaintiffs could argue bad faith by the
Union. In upholding summary judgment for the defendant, the Early court refused
to consider the plaintiffs’ bad faith/bias argument because of the plaintiffs’ “failure
to have raised the issue of [the union representative’s] purported bias before the
joint committee.” Early, 699 F.2d at 558. In Early, the biased person was a union
representative on the panel.
The Early court determined that, “[i]n the absence of exceptional
circumstances, we will not entertain a claim of personal bias where it could have
been but was not raised at the hearing to which it applies. This is the accepted rule
in arbitration cases.” Id. (citing Amalgamated Meat Cutters v. Cross Brothers
Meat Packers, Inc., 518 F.2d 1113, 1121 & n.19 (3d Cir. 1975); Morris v. Werner-
Continental, Inc., 466 F.2d 1185, 1189 (6th Cir. 1972); Cook Industries, Inc. v. C.
Itoh Co., 449 F.2d 106, 107-08 (2d Cir. 1971) cert. denied, 405 U.S. 921 (1972);
Graphic Arts Int’l Union, Local 97-B v. Haddon Craftsmen, Inc., 489 F.Supp.
1088, 1093 (M.D.Pa. 1979)).
14
This principle has also been applied in a hybrid Section 301 case to a biased
Union representative in Marr’s position. See Hazard v. S. Union Co., 275
F.Supp.2d 214, 225 n.13 (D.R.I. 2003) (plaintiff waived his argument that his
Union representative was biased against him “because he knew of the alleged bias
at the time of the arbitration and failed to raise it during that proceeding”). Finding
no Eleventh Circuit case directly on point, Roadway asks that we follow the
rationale of the First Circuit in Early and the Rhode Island district court in Hazard
on the issue of waiver present in this appeal.
2. Waiver Analysis
In the context of a hybrid Section 301 cause of action, the Supreme Court
has explained that courts should “not undertake to review the merits” of the
underlying grievances, “but should defer to the tribunal chosen by the parties
finally to settle their disputes. Otherwise plenary review by a court of the merits
would make meaningless the provisions that the arbitrator’s decision is final, for in
reality it would almost never be final.” Hines v. Anchor Motor Freight, Inc., 424
U.S. 554, 563 (1976) (internal quotation marks omitted). If a Union member fails
to utilize the grievance procedure under the CBA to air his grievances, then a
district court should not allow him to make such arguments for the first time. See
id. (“[U]nless he attempted to utilize the contractual procedures for settling his
15
dispute with his employer, his independent suit against the employer in the District
Court would be dismissed.”).
The burden is on Roadway to prove waiver. See e.g., Lambert v. Travelers
Fire Ins. Co., 274 F.2d 685, 687-88 (5th Cir. 1961). In order to do this Roadway
must show that Bianchi had “full knowledge of the fact” underlying his bias claim.
See Middlesex Mut. Ins. Co. v. Levine, 675 F.2d 1197, 1204 (11th Cir. 1982)
(“Waiver applies only where a party has acted with full knowledge of the facts.”);
but see University Commons-Urbana, Ltd. v. Universal Constructors, Inc., 304
F.3d 1331, 1340-41 (11th Cir. 2002) (finding no waiver of the argument that the
arbitrator was biased where the arbitrator did not disclose all of the information
revealing the “extensive nature” of the relevant interactions suggesting bias).
Most courts suggest, however, that, where the bias is apparent enough,
waiver will occur. See United Steelworkers of America Local 1913 v. Union R.
Co., 648 F.2d 905, 913 (3d Cir. 1981) (“When the reasons supporting an objection
are known beforehand, a party may not wait to make an objection to the
qualifications of a Board member until after an unfavorable award has been
made.”); Hazard, 275 F.Supp.2d at 225 n.13. This interpretation is the better-
reasoned view. If merely adding additional facts to a bias claim were enough to
avoid waiver, then waiver could be easily avoidable.
16
We find Early to be persuasive in this case. The key to the ruling in Early,
as is true in Bianchi’s case, was that “[a]ll the facts now argued as to [the
committee member’s] alleged bias were known to [the plaintiffs] at the time the
joint committee heard their grievances. Had the [plaintiffs] objected, [the
committee member] might have withdrawn in favor of some other union official.”
Early, 699 F.2d at 558. Additionally, just as occurred in Bianchi’s case, “at the
conclusion of the hearing [the Earlys] expressly stated that they had been properly
represented” by the Union. Id. Rejecting the type of argument that Bianchi is
attempting to assert here, the First Circuit reasoned that:
While it may be unpleasant to have to choose between possibly
alienating a decisionmaker in advance by objecting and waiving the
issue of bias, we cannot accept that parties have a right to keep two
strings in their bow – to seek victory before the tribunal and then,
having lost, seek to overturn it for bias never before claimed.
Id.; accord United Steelworkers, 648 F.2d at 913; Swift Independent Packing Co. v.
District Union Local One, United Food and Commercial Workers Int’l Union, 575
F.Supp. 912, 916 (N.D.N.Y. 1983) (finding waiver present in a Section 301 case
where “plaintiff made a calculated decision not to object to the alleged bias of [an
arbitrator]” because he wanted to avoid alienating the arbitrator); Haddon
Craftsmen, Inc., 489 F.Supp. at 1093 (it is well settled that “a party may not await
an adverse award before asserting objections on grounds of which he had
17
knowledge prior to the award”).
The Early court held that the plaintiffs had waived their bad faith/bias theory
and thus it “could not look behind” the joint committee’s award on that basis.
Early, 699 F.2d at 559; Hazard, 275 F.Supp.2d at 225 n.13. Early and Hazard
strongly support Roadway’s waiver argument.
Bianchi’s response to Roadway’s waiver argument is weak and
contradictory. The case he principally relies on, Achilli, does not squarely address
the issue of waiver. The Achilli court was discussing the DFR issue in the context
of whether the evidence supported the finding that the Union breached its DFR, not
as to whether the DFR argument was waived.11
In Bianchi’s first rationale of excuse, he claims that there is no waiver
present in his case because his fear that he would make the union part of the panel
mad excused him from bringing up the bias issue at his hearing. Early is clearly on
point.12 Excuse is not enough. See Early, 699 F.2d at 558 (“While it may be
unpleasant to have to choose between possibly alienating a decisionmaker in
11
In fact, the Achilli court never used the word “waiver” or “estoppel.” Both Achilli
(1993) and Early (1983) are First Circuit cases, yet Achilli neither references Early nor discusses
the waiver rules set forth therein.
12
Waiver is more apparent in Bianchi’s case than in Early. In Early there were “no
actions or remarks by [the union representative] showing overt hostility or less than
conscientious performance of duty.” Early, 699 F.2d at 559.
18
advance by objecting and waiving the issue of bias, we cannot accept that parties
have a right to keep two strings in their bow.”).13
Bianchi’s second rationale of hindsight, that he did not realize Marr’s bad
faith until it “dawned on him” after he lost the panel hearing, this is not supported
by the record. The record reflects that Bianchi admitted at trial that at the hearing
he believed Marr was only “acting” as though he was representing him. It is also
abundantly apparent that Marr’s personal and political animosity, suggesting bad
faith and bias, were well-known to Bianchi before the adverse decision by the
grievance panel. Despite learning and being advised before the panel hearing that
Marr was fixing the hearing against him and only going through the motions of
helping him, Bianchi still purposely elected not to bring the subject of bias and bad
faith up at the hearing “because he did not have the evidence in writing” and he did
not want to make the panel mad.
Thus, Bianchi “made a calculated decision not to object to the alleged bias.”
See Swift Indep. Packing, 575 F.Supp. at 916. In doing so, he lost the right to keep
13
When a grievance panel member asked Bianchi if he had presented all of the hearing
evidence in his favor, and, if he had been properly represented, he answered yes to both
questions. During cross-examination at trial, Bianchi admitted that this had been a lie, and that
he then thought that Marr and a panel member were biased, and dead set against him. Bianchi
testified at trial that he did not raise the issue of bias at the hearing because he did not want to
anger the panel. He testified: “I figured there is no way they are going to take my job from me. I
figure I would just let it [the bias] go.”
19
two strings in his bow. Early, 699 F.2d at 558. Waiver is present and the evidence
is insufficient therefore to support the jury verdict.
B. Motion for New Trial
Based upon our conclusion that Roadway is entitled to judgment as a matter
of law, we need not reach the second evidentiary issue.
VI. CONCLUSION
Based on the foregoing, Bianchi waived his objection of bad faith/bias by
failing to raise it before his grievance panel. Therefore the evidence at trial was
insufficient to support a jury finding that the Union had breached its DFR. We
VACATE the jury verdict in favor of Bianchi and GRANT JUDGMENT AS A
MATTER OF LAW for Roadway.
JURY VERDICT FOR BIANCHI VACATED; JUDGMENT AS A
MATTER OF LAW FOR ROADWAY GRANTED.
20