United States Court of Appeals
For the First Circuit
No. 06-2487
CRAIG GOULET,
Plaintiff, Appellant,
v.
NEW PENN MOTOR EXPRESS, INC., and TEAMSTERS LOCAL 25,
AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS.
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Scott A. Lathrop with whom Scott A. Lathrop & Associates was
on brief for appellant.
Renee J. Bushey with whom Michael A. Feinberg and Feinberg,
Campbell & Zack were on brief for appellee Teamsters Local Union
25.
Carl H. Gluek with whom Jennifer L. Whitney, and Frantz Ward,
were on brief for appellee New Penn Motor Express, Inc.
January 8, 2008
CAMPBELL, Senior Circuit Judge. Appellant-plaintiff
Craig Goulet appeals from the entry of a directed verdict in favor
of defendant New Penn Motor Express ("New Penn") and from a jury
verdict in favor of defendant Teamsters Local 25 ("Local 25" or
"the union") in the United States District Court for the District
of Massachusetts on his hybrid claim for breach of a labor
agreement by New Penn and breach of the duty of fair representation
by the union, in violation of 29 U.S.C. § 185. We affirm the
judgments in favor of the defendants.
Facts
APA Transport Company ("APA") was a trucking corporation
with several terminals, including two located in Canton and Dracut,
Massachusetts. In 1986, APA hired Goulet at its Canton terminal.
On March 11, 1987, Goulet was seriously injured. The truck he was
loading with a forklift moved away from the loading dock, pulling
Goulet and the forklift off the dock. As a result of the accident,
Goulet suffered a torn rotator cuff, a herniated disc in his neck,
a herniated disc in his lower back, and a torn knee ligament. Upon
investigation, APA determined that the accident was caused by
Goulet's own negligence. APA then terminated Goulet's employment.
Local 25 represented the drivers and dockworkers at APA's
Canton terminal and at the time of his injury, Goulet was a member
of Local 25. Pursuant to the collective bargaining agreement
between Local 25 and APA, Goulet filed a grievance relative to his
-2-
termination. In accordance with the rules of the grievance
committee, no action was taken on the grievance during the time
that Goulet pursued and received workers' compensation benefits.
From 1987-2000, Goulet collected the maximum of 600 weeks of
partial disability workers' compensation benefits. Goulet also
applied for and was granted social security disability benefits
starting in 1995 and retroactive to 1987. Goulet receives a
monthly social security disability benefit of $2,160.
After the exhaustion of his workers' compensation
benefits, and more than thirteen years after his termination from
APA, Goulet pursued his grievance against APA. On October 16,
2001, the New England Joint Area Grievance Committee ("NEJAGC")
issued, in relevant part, the following order:
The panel after hearing the case, motion made, seconded
and carried that upon submitting acceptable documentation
to the Company of his ability to return to unrestricted
duties, the grievant [Goulet] shall serve a ten (10) day
suspension. Upon completion of the suspension he shall
be reinstated in the seniority list in his original
position.
Goulet did not thereafter submit to APA documentation of his
ability to return to unrestricted duties nor has he served any
period of suspension. His name, however, appeared on an APA
seniority list dated November 2001. On the basis of that exhibit,
Goulet argues that APA reinstated him as of that date and did so
without requiring him to submit any documentation of ability to
return or to serve a 10-day suspension.
-3-
New Penn is a trucking corporation with a terminal
located in Billerica, Massachusetts. Local 25 represents the New
Penn drivers and dockworkers at its Billerica terminal. In
February 2002, APA ceased operations, and New Penn sought to
acquire APA's customers. In order to serve them, New Penn believed
it might need more drivers and dockworkers. New Penn, therefore,
negotiated a collective bargaining agreement ("CBA") with the
Teamsters National Freight Industry Negotiating Committee
("TNFINC") regarding the potential hiring of APA employees.
Under that agreement, in order for APA employees to
receive work opportunities from New Penn, Local 25 was required to
provide New Penn with a list identifying by name all of the APA
employees who wanted to be placed on New Penn's call list, along
with their terminal preferences. The CBA provided that New Penn
was not obligated to place any APA employee on the terminal call
list or to provide any APA employee with work unless he placed his
name on the seniority call list by March 1, 2002. The CBA states,
in pertinent part:
No APA NMFA [National Master Freight Agreement] employee
shall be required to place his/her name on any NPME [New
Penn Motor Express] terminal call list. NPME shall have
no obligation to any APA NMFA employee who chooses not to
place his/her name on a NPME terminal call list by March
1, 2002. Additionally, NPME shall have no obligation to
APA NMFA employees until TNFINC provides the APA NMFA
terminal selection call lists in accordance with this
agreement. (Emphasis supplied.)
-4-
When he found out that APA was closing, Goulet called Doug Francey,
the steward for Local 25 in the APA Canton facility. Francey had
been instructed to find out where each employee wanted to go if
called to work for New Penn. The choices were Cranston, Rhode
Island, or Billerica, Massachusetts. Goulet told Francey he would
prefer to work for New Penn at the Billerica terminal. Goulet's
name did not appear on the official APA seniority list given to
Francey. Francey wrote Goulet's name in ink at the bottom of the
call list he was preparing, despite Goulet's not having provided
any documentation to APA concerning his ability to return to work.
After filling out employees' preferences of terminal, Francey gave
the list to Mark Harrington, the Local 25 Business Agent, who had
represented Goulet in his October 16, 2001 grievance.
On February 22, 2002, Local 25 President George Cashman
brought several documents to his assistant, Janet McLaughlin, and
told her to fax them to the Teamsters' International Office in
Washington. Cashman told her to write on the cover sheets, "Per
request of the Eastern Region Freight Department, attached please
find seniority list (preference list) with the most up-to-date
information that we have at the present time. Any questions please
call." The preference lists faxed to the Teamsters' International
Office did not include Goulet's name or his preference for the New
Penn terminal in Billerica. On February 28, 2002, Cashman wrote
directly to Dan Schmidt, the Vice President of Labor Relations for
-5-
New Penn. He enclosed an "updated list of former employees of
A.P.A. in Canton, Massachusetts," noting that the area code of one
employee's phone number had changed and that another employee had
shifted his terminal preference. Goulet's name and terminal
preference were not on this list either.
In March, 2002, Goulet called William Carnes, the Local
25 Business Agent for New Penn, to ask about the call list. Carnes
testified that he called the Billerica terminal on behalf of
Goulet, and that the terminal manager responded with an expletive
suggesting a negative reaction. Goulet testified that Carnes also
told him that New Penn had indicated that Goulet was not on the
call list the union had provided. The call lists provided to New
Penn did not include Goulet's name.
Goulet was never called to work by New Penn. Goulet
prepared a hand-written grievance on April 7, 2003, alleging that
he should have been called to work. Carnes left the union office
on May 2, 2003. Harrington was assigned to be the new Local 25
business agent for New Penn. Goulet called Harrington's office on
approximately May 3, 2003 to inquire about the grievance.
Harrington said he was not aware of the grievance and that Goulet
should send him a copy. During this conversation, Harrington
questioned Goulet about his medical fitness to return to work.
Harrington knew Goulet had not complied with the decision of the
-6-
grievance panel and that employees had to be medically cleared to
work in the freight industry.
Goulet sent Harrington a letter on July 25, 2003,
enclosing a copy of the grievance he had sent to Carnes. Following
up on their earlier conversation, Goulet wrote in the letter,
"Let's not lose sight of the real issue here in this grievance.
It's about seniority rights under the agreement, not weather [sic]
one was capable of working or not." Goulet subsequently called
Harrington's office again. Harrington stated that he had received
a copy of the grievance and was looking into it. Goulet was aware
that the grievance had not yet been docketed. The grievance was
docketed with the Eastern Region Joint Area Committee ("Joint Area
Committee") in September of 2003.
Harrington had meetings with Goulet in order to prepare
for the arbitration of the call list grievance. During these
meetings, Goulet expressed ambivalence about whether he wanted to
go back to work, and was not sure if he was physically able to
-7-
work.1 Nonetheless, Harrington prepared a written brief and filed
1
Goulet testified at trial that he continues to struggle with
physical injuries, including the herniated discs in his back and
neck and torn ligaments in his knee. He testified that his
injuries have negatively affected his ability to sit, stand, lift,
turn and bend. Goulet further testified that his social security
benefits were based on a finding by the Social Security
Administration that he was disabled and unable to perform his past
relevant work. According to an exhibit introduced at trial and
Goulet's own testimony, he represented to the Social Security
Administration in December 2002 that "My condition has not improved
since I first became disabled. In fact my condition has become
worse since I was first disabled in 1987." Goulet admitted that
between the time of his injury in 1987 and the March 1, 2002
decision to register terminal preferences with New Penn, he did not
work for any employer. In his reply brief, Goulet responds that
the defendants' emphasis on his inability to work ignores the fact
that the Social Security Administration allows trial periods during
which disabled people may return to work without losing disability
status. Goulet requested that such reference be made in the jury
instructions, and the trial court said the following to the jury:
the Social Security Administration, not surprisingly,
encourages people to go back to work and says the
following:
The trial work period is a period during which
you may test your ability to work and still be
considered disabled. It begins and ends, as
described in other regulations. During this
period you may perform services in as many as
nine months but these months do not have to be
consecutive. We will not consider those
services as showing that your disability has
ended until you have performed these services
in at least nine months. However, after the
trial period has ended, we will consider the
work you did during the trial work period in
determining whether your disability ended at
any time after the trial work period.
That's what the Social Security Administration has to
say.
Implicit in that regulation is some notification of the
Social Security Administration, that the person is, you
-8-
it on behalf of Goulet in July, 2004.
The Joint Area Committee heard the grievance on July 26,
2004. A representative from New Penn brought a point of order
before the Committee that the grievance was improper as Local 25
had not docketed the case within thirty days. The Joint Area
Committee denied Goulet's grievance because the case had not been
docketed within thirty days.
On or about December 9, 2004, Goulet filed this action
under 29 U.S.C. § 185 against New Penn and Local 25 in the district
court. In his complaint, inter alia, he alleged:
19. When New Penn failed to put Goulet on its call list,
it breached the collective bargaining agreement then in
effect between New Penn and Local 25.
20. Local 25's failure to timely file and pursue
Goulet's grievance against New Penn was arbitrary,
capricious, and in bad faith. As such, Local 25 breached
its duty of fair representation with regard to Goulet and
his grievance.
21. Due to said breach by Local 25, Goulet hereby also
brings this action against New Penn directly for its
breach of the collective bargaining agreement with regard
to its failure to put him on the call list.
22. New Penn's failure to put Goulet on its call list
has caused Goulet to suffer damages.
know, going back for a trial period.
There was no evidence that Goulet notified the Social Security
Administration that he was going to return to work for a trial
period and no evidence that he would have been able to do so.
-9-
Goulet, among other things, demanded proper placement on New Penn's
call list, all lost moneys and benefits, and compensatory and
punitive damages. (He did not ask, specifically, for
reinstatement.)
Following the completion of discovery, both defendants
filed motions for summary judgment, which the district court
denied. The case was reassigned to a different judge on June 12,
2006. A three-day trial was then held. At the close of Goulet's
case, upon motion from both defendants, the court granted New
Penn's motion for a directed verdict but denied the union's similar
motion. In directing the verdict in favor of New Penn, the court
reasoned that because New Penn had prevailed at the grievance
hearing, as a matter of law, the issue of its alleged breach of a
labor contract could not be relitigated, and New Penn could
therefore not be held liable for a breach of a labor contract under
29 U.S.C. § 185.2
2
The court's ruling was as follows:
The motion of New Penn Motor Express Incorporated is
allowed on the following theory. It's allowed because
the whole theory of labor disputes in these
circumstances, the resolution of labor disputes, is to
encourage, at least that's the congressional intent, that
there be resolution by private ordering.
Here, I adopt one aspect of New Penn's argument, the
aspect that the procedural ground on which the resolution
was resolved, the dispute was resolved, was accurate
under the contract, it wasn't docketed timely, and that
was the ground that the arbitrators chose and that ground
is correct. [New Penn counsel], as he's proper to argue
-10-
After New Penn was dismissed from the case, Local 25
rested. The court then conferred extensively regarding the nature
and scope of the proposed jury instructions. During the course of
those discussions, Goulet never voiced an objection to the court's
intended charge. Goulet never requested the court provide the jury
with a special verdict form. When the jury was brought in to hear
its instructions and closing arguments, the court noted that the
jury could see that counsel for New Penn "are no longer here" and
that the case had been made simpler and more understandable for the
jury. The court then instructed the jury that in the instant
hybrid § 301 claim, Goulet had to prove both that 1) New Penn had
breached the CBA in connection with its alleged failure to call
Goulet for work; and 2) the Local 25 breached its duty of fair
representation.3
it, says, well, there was no violation anyway. I express
no opinion on that one way or another, a jury's going to
have to sort that out.
3
Specifically, the court stated:
Mr. Goulet has to prove four things. Four things. And
I'm going to go over them in detail. . . .
Now, it appears that it is not disputed in this case that
at the time that's most important in this case, New Penn
and Teamsters Local 25 had a labor agreement. I believe
it's in evidence before you. All right? A labor
agreement.
So, the first thing that Mr. Goulet has to prove is that
New Penn violated that labor agreement. And, what Mr.
Goulet, through his attorney, is going to argue to you is
that they did violate it because they did not, as they
-11-
At the conclusion of its instructions, the court gave
counsel a chance to correct or expand upon the charge, stating:
Now, I may have been mistaken in something I said. I may
not have said something I should have said, and the
lawyers get a chance to explain that to me now.
Goulet's counsel specifically stated that he was satisfied with the
court's instructions:
were required to, call him for duty from the seniority
call list of drivers who wanted to work at a particular
terminal which wanted to work for New Penn after APA,
after their business ceased.
Now, as to that was there a breach of contract between
New Penn and Teamsters Local 25, that's disputed.
Because there's a question, a factual question whether
New Penn ever got a seniority list with his name on it.
And, one of the things he's complaining about is that the
reason, if they didn't get one, Mr. Goulet says, well,
the reason for that is that they, that the union didn't
send it over. And they should have. But that's a
factual dispute.
All right. So the first thing is did New Penn violate
the, actually violate the labor agreement between it and
the labor union.
Second, Mr. Goulet has to prove that the labor union,
Teamsters Local 25, failed in its duty of fair
representation of Mr. Goulet; that they failed in that
duty of fair representation.
Now, here I'm not sure I explained this completely
accurately when we went in, so let me be very careful.
It's not enough that Mr. Goulet prove that the union
slipped a stitch or was negligent or careless. That's
not enough. What Mr. Goulet has to prove--it's by the
same fair preponderance of the evidence--is that the
union acted arbitrarily, or acted in bad faith, or acted
in reckless disregard of its duties under, its duties as
a labor union under the labor union agreement.
-12-
The Court: Satisfied, Mr. Lathrop?
Mr. Lathrop: I'm satisfied.
Counsel for Local 25, however, indicated dissatisfaction with the
charge, insofar as the court had not instructed the jury on
mitigation of damages. The court thereupon instructed the jury on
mitigation. Goulet's counsel asked for a sidebar and sought a
supplemental instruction on mitigation. After giving the requested
supplemental instruction, the district court again asked counsel
for approval:
The Court: Is the supplementary instruction
satisfactory, Mr. Lathrop?
Mr. Lathrop: Yes, it is, your Honor.
Mr. Dwyer: It is, your Honor.
The Court: Thank you.
Counsel for Goulet never objected to the court's instruction on his
hybrid § 301 claim and in fact affirmatively endorsed the jury
charge when asked about it.
The jury received its instructions on July 21, 2006.
That same afternoon, the jury asked the following question:
Condition number one: Did NPMA [sic] violate the labor
agreement between union and NPMA [sic]?
Question: With NPMA [sic] no longer a defendant in this
case should it matter if they did or didn't break the
agreement? This would not prove if the union acted in
bad faith, it would only give an example of how NPMA
[sic] acted.
The court responded:
-13-
To that question I make this answer. That's the formal
way of doing it.
That's a very good question. But it has a direct answer.
And the direct answer is this.
The duty of fair representation comes into play only when
the employer has broken the contract. Let me give an
example in the labor context and it has nothing to do
with this case, but I think it's a good example.
I understand that in order to come out of bankruptcy the
pilots in Delta had to give up some of their salary,
whatever salary they were making. Those pilots--I'm
making this up, but I think it to be true--those pilots
had a union contract with Delta. All right. They
renegotiate that contract in essence because the
bankruptcy court tells them they have to, and so now
they're getting a lesser salary than they got before.
Now, one can imagine that those pilots aren't very happy
about that. But there's no duty of fair representation
to go to bat for any particular pilot because that pilot
is bellyaching about getting less pay. That's the
contract. And the union is supposed to try and negotiate
the best contract it can negotiate. So once the
contract's negotiated the fact that this or that person
doesn't like the way it works, thinks that their
interests aren't adequately represented, there's no
lawsuit. No lawsuit because that's worked out by the
democracy within the union, the majority, how they elect
the people who are going to negotiate the contracts.
So let's come to this case. The, the manner in which Mr.
Goulet says that--you call it NMPA, and that threw me,
it's New Penn Motor Express, but I assume we're talking
about the employer in this case, and that's how I'm
answering it.
The manner in which New Penn Motor Express is supposed to
have violated the contract, says Mr. Goulet, is that they
didn't call him from that call seniority list in the way
they were supposed to under the contract. That's what he
says is wrong.
Now, there are factual issues about that. Factual issues
about whether they ever had a list or should have had a
list or where he was on the list. And I can't say
-14-
anything about that. But that's why that's the first
issue: Did New Penn Motor Express break the contract?
Until they've broken the contract, the union has no
specific duty of fair representation with respect to Mr.
Goulet. Once they have the union does, and I've
explained all those matters.
That's my answer to the question. The jury may retire
and continue their deliberations.
At this point, counsel for Goulet asked for a sidebar, at which he
expressed concern that the jury might not understand the reason why
New Penn had been let out of the case, and particularly that they
were not let out of the case because they had been found not to
have broken the contract. After discussion with the lawyers, the
court said the following:
Once again, the lawyers have improved upon what I told
you, in this respect.
They both agree that I ought to tell you this. The fact
that New Penn Motor Express is not here this morning is
not evidence in any way that they didn't break the
contract, that they did break the contract, or anything
about the contract.
Likewise, I should instruct you, you are not to speculate
why they're not here, and I do so instruct you. That's
my further answer to the question. You may retire and
continue your deliberations.
After further deliberations, the jury returned that same afternoon
with a unanimous verdict in favor of Local 25. Goulet did not then
raise any objections to the verdict and did not ask the court to
poll the jury. Judgment was entered that day.
On July 2, 2006, Goulet filed a motion for a new trial,
which the court denied after a hearing. Among other issues, Goulet
-15-
strongly argued that it was error for the court to have directed a
verdict for New Penn, in response to which the court stated that
"it may be that I erred in letting the employer out when I did."
Even so, the court concluded that any possible error was harmless
as it "did not affect the substantial rights of Mr. Goulet."
Discussion
i. Directed Verdict
Goulet contends the district court erred in directing a
verdict for New Penn, thereby denying Goulet a "substantial right"-
- his right to a jury trial against New Penn. See Chauffeurs,
Teamsters and Helpers Local No. 391 v. Terry, 494 U.S. 558, 573
(1990) (providing for a jury trial in fair representation actions).
The court stated that it allowed the motion because Goulet's
grievance had been resolved against Goulet by the Joint Area
Committee. However, as the court acknowledged, the panel ruled in
favor of New Penn on the procedural ground that Local 25 had not
docketed Goulet's grievance within the thirty days provided by the
CBA. Goulet contends that in neglecting to file his grievance on
time, the union violated its duty of fair representation, and that,
given those grounds, the adverse ruling on the grievance could not
be final and binding so as to prevent him proceeding against the
employer in this hybrid action. See Early v. Eastern Transfer, 699
F.2d 552, 555 (1st Cir. 1981) (quoting Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554, 567-568 (1976)).
-16-
Assuming that Goulet's above argument is correct and,
arguendo, that the directed verdict cannot otherwise be sustained,4
we hold nevertheless that any error in directing a verdict was
harmless. While as a result, New Penn ceased to be a party, the
jury trial went forward against Local 25, involving the same issues
and evidence as would have been presented had New Penn not been let
out. The jury returned a verdict for the union. Goulet does not
argue that New Penn's dismissal after Goulet's case had been put in
affected the evidence he was able or allowed to present to the
jury. Under the circumstances, we do not believe that New Penn's
absence prejudiced Goulet's substantial rights. A wrongly directed
verdict in favor of one party is harmless where the jury's ultimate
verdict necessarily defeats the claim against the dismissed party.
See Mello v. K-Mart Corp., 792 F.2d 1228, 1231 (1st Cir. 1986)
(finding error in directing verdict for manufacturer was harmless
where jury necessarily had to conclude in reaching its verdict that
there was no defect in manufacture).
In claiming prejudice, Goulet says the jury's question
showed that it was bothered by the fact that, although New Penn had
been dismissed from the case, the jury was still expected to decide
4
New Penn responds that even if the court's asserted basis for
directing a verdict was wrong, we should affirm its ruling on the
alternative ground that the CBA provided that New Penn had no
obligation to Goulet since the union had given New Penn a call list
that did not contain Goulet's name, leaving New Penn with no duty
under the CBA to hire Goulet.
-17-
whether New Penn had violated the contract. Goulet contends that
the jury's swift arrival at a verdict following the court's answer
to the question demonstrates that the jurors were "substantially
swayed" by New Penn's absence from the case, but we see nothing
from which to draw this conclusion.
When the jury asked the court whether, with New Penn no
longer a defendant, it still mattered whether it violated the CBA,
the court told them unequivocally it did. The court emphasized
that the first question was still whether New Penn had breached the
CBA and advised the jury that the fact that "New Penn Motor Express
is not here this morning is not evidence in any way that they
didn't break the contract, that they did break the contract, or
anything about the contract." By maintaining in its answer to the
jury's question the first element of the inquiry earlier outlined
in its jury charge--namely, whether New Penn had violated the CBA--
the court made clear that the jury was not to construe the absence
of New Penn as evidence that New Penn had been found not to have
violated the CBA. Rather, the court reiterated that the jury was
to decide that issue for itself.5
We assume, therefore, that in arriving at its general
verdict for Local 25, the jury considered and resolved the
questions put to it. To be sure, given the general verdict, we
5
The court added, "Likewise, I should instruct you, you are
not to speculate why they're not here, and I do so instruct you."
-18-
cannot know whether the jury found that New Penn had violated the
contract but the union had nonetheless properly represented Goulet,
or rather found that New Penn had not violated the contract, making
it irrelevant whether the union had properly represented Goulet.
See Laurin v. The Providence Hosp., 150 F.3d 52, 61 (1st Cir. 1998)
(failure to establish either prong is fatal to a hybrid claim);
Mello, 792 F.2d at 1231. But either finding is fatal to Goulet's
claim against New Penn--either because the jury found no breach of
the CBA by New Penn, or because it found no breach of the union's
duty of fair representation, which would render the joint
committee's decision in favor of New Penn final. See Early, 699
F.2d at 555 ("To have a right to contest the merits of their
discharge in court, the [plaintiffs] must first show that the union
violated its duty of fair representation; otherwise the decision of
the joint committee is 'final and binding.'"). We find no reason
to believe that New Penn's "early release from the case" affected
the jury's analysis or its ultimate result, rendering any error in
the directed verdict harmless. Mello, 792 F.2d at 1231.6
ii. The Jury Charge
Conceding that he did not make a timely objection to the
instructions, Goulet argues on appeal that the jury charge
6
Goulet argues that Mello is distinguishable on the grounds
that in that case, the jury had a special verdict form, whereas
there was only a general verdict form in this case. But the jury
was amply instructed that if it failed to find liability on one
prong of the hybrid claim, there was no liability for either party.
-19-
contained plain error. The charge stated that in order for the
jury to return a verdict in favor of Goulet, it had to find four
elements, the first of which was that New Penn violated the CBA it
had with the union. Goulet concedes that
[i]n any standard case involving a claim of a violation
of the duty fair representation [sic], this often is a
correct charge for if the employer did not violate the
labor agreement, the employee typically cannot have
suffered any damages even if the union acted recklessly
with regard to its member's grievance.
But he argues that his case is different "because of the unique
nature of the labor agreement," and that there was a potential
circumstance in which Local 25 could have violated its duty of fair
representation and damaged Goulet without New Penn's having
violated the labor agreement.
The main problem with this contention is that, besides
failing to object to the instruction, Goulet appears affirmatively
to have waived any objection. If so, he may not raise the point
now. In response to a question from the district court about
whether he was satisfied with the charge the court gave, his
counsel affirmatively stated, "I'm satisfied." The court later
asked whether its supplementary instruction on mitigation,
requested by Goulet, was satisfactory, and Goulet's counsel replied
once more that that instruction was. Goulet said nothing about
wanting a further charge along the lines he now requests. The
argument is therefore waived. See United States v. Wall, 349 F.3d
18, 24 (1st Cir. 2003) ("Having directly bypassed an offered
-20-
opportunity to challenge and perhaps modify the instructions,
appellant waived any right to object to them on appeal."); United
States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)
(distinguishing waiver and forfeiture).
iii. Weight of the Evidence for Jury Verdict
Appealing from the district court's denial of his motion
for a new trial, Goulet argues that the jury's verdict in favor of
Local 25 was against the weight of the evidence. A district court
should grant a motion for a new trial only if "the outcome is
against the clear weight of the evidence such that upholding the
verdict will result in a miscarriage of justice." Ramos v. Davis
& Geck, Inc., 167 F.3d 727, 731 (1st Cir. 1999) (internal quotation
marks omitted). We review the district court's denial of a motion
for new trial for abuse of discretion only. Johnson v. Spencer
Press of Maine, Inc., 364 F.3d 368, 375 (1st Cir. 2004). We may
weigh the evidence but are mindful that "a jury's verdict on the
facts should only be overturned in the most compelling
circumstances." Velazquez v. Figueroa-Gomez, 996 F.2d 235, 237
(1st Cir. 1993) (citations omitted). "We will uphold the jury's
verdict unless the evidence points 'to one conclusion and one
conclusion only: that the losing party was entitled to win.'"
Sheek v. Asia Badger, Inc., 235 F.3d 687 (1st Cir. 2000) (citations
omitted).
-21-
Goulet argues that the evidence overwhelmingly supports
a finding against Local 25. We disagree. Goulet focuses his
assessment on the question of whether Local 25 violated its duty of
fair representation, even though, as noted, in order to find Local
25 liable, the jury had to find both that New Penn had breached the
CBA and that Local 25 had violated the duty of fair
representation.7 The evidence on both points was sufficient to
support jury findings adverse to Goulet.
A union's duty of fair representation requires it not to
"engage in arbitrary or bad faith conduct that evidences hostility,
discrimination, or dishonesty toward an employee-union member."
Fant v. New England Power Service Co., 239 F.3d 8, 14 (1st Cir.
2001). "Reckless disregard" of an employee's interests is an
actionable breach of duty of fair representation. Achilli v. John
J. Nissen Baking Co., 989 F.2d 561, 563 (1st Cir. 1993). A union
may not arbitrarily ignore a meritorious grievance or process it in
a perfunctory fashion. Vaca v. Sipes, 386 U.S. 171, 191 (1967).
Goulet argues that Local 25's failure to submit his name and
terminal preference list to New Penn8 and failure to docket his
7
As discussed supra, Goulet argues that this was a unique case
in which he had only to prove the violation of the duty of fair
representation in order for the jury to find Local 25 liable.
8
Goulet's argument is somewhat unclear on this point; at other
points in his briefs, he argues that New Penn was aware of his
terminal preference, even though his name was not included on the
call lists submitted to New Penn. Goulet's record citations on
this point, however, do not demonstrate that at the relevant time,
-22-
grievance in a timely manner constituted a clear breach of its
duty.9 A rational jury, however, could believe otherwise.
First, there is no evidence that Goulet ever satisfied
the conditions ordered by the NEJAGC on October 16, 2001 for him to
achieve reinstatement on the APA seniority list. He never
submitted documentation showing that he was fit to return to
unrestricted duties and never served the required ten-day
suspension. The only evidence of Goulet's alleged restored
seniority was the November 2001 APA seniority list that contained
his name. No evidence was ever submitted shedding light on whether
this was simply a clerical mistake or whether, as Goulet argued, it
reflected an intentional action taken by APA in order to restore
Goulet to its employ; it seems doubtful that an employer would, on
its own, reinstate a disabled employee that it had discharged after
it found him negligent, without evidence that he was fit to perform
productive work, especially given that it was required to restore
him to the list only upon such a showing. Evidence counter to his
having been reinstated existed in the subsequent official seniority
list given to Francey, which did not contain Goulet's name. The
jury was aware of the requirements for reinstatement set out by the
New Penn was aware of his terminal preference or desire to be on
the call list.
9
Goulet's complaint did not allege that Local 25's breach of
its duty stemmed from its failure to put him on the New Penn call
list but rather only from its failure to docket the grievance in a
timely manner.
-23-
NEJAGC's resolution of Goulet's grievance. Further, evidence at
trial strongly suggested that Goulet remained severely disabled,
and the jury was free to draw further inferences from this as to
the likelihood of his having been reinstated. It would have been
reasonable for the jury to conclude that Goulet had never satisfied
the conditions of the award provisionally allowing his
reinstatement, that he was not physically capable of work during
the period the call list was in effect, and that the unexplained
appearance of his name on the November 2001 list was an aberration
rather than reflective of his actual reinstatement. The question
of Goulet's ability to work affected whether his grievance was
meritorious.
In any event, to find in favor of Goulet the jury would
have had to find that New Penn had violated the CBA, and the
evidence presented at trial does not require such a conclusion.
New Penn did not receive a call list with Goulet's name on it.10
Thus, the plain language of the CBA supports the conclusion that
New Penn was not obligated to offer Goulet work after APA closed.
Accordingly, we find little to persuade us that the weight of the
evidence was other than as determined by the jury.
10
Goulet's argument, raised for the first time in his reply
brief, that the plain language of the CBA did not require that New
Penn receive a physical list is both untimely and unpersuasive.
See Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st
Cir. 2000) ("We have held, with a regularity bordering on the
monotonous, that issues advanced for the first time in an
appellant's reply brief are deemed waived").
-24-
We affirm the judgment of the district court.
-25-