Webb v. ABF Freight System, Inc., 17

• Decision Date: 04 September 1998
• Docket Number: D,No. 17,No. 96-1427,17,96-1427
• Citation: 155 F.3d 1230
• Parties: 159 L.R.R.M. (BNA) 2129, 98 CJ C.A.R. 5003 Rick WEBB, Plaintiff-Appellee, v. ABF FREIGHT SYSTEM, INC., a corporation, Defendant-Appellant, and Teamsters Local Unionefendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1230

155 F.3d 1230

159 L.R.R.M. (BNA) 2129, 98 CJ C.A.R. 5003

Rick WEBB, Plaintiff-Appellee, v. ABF FREIGHT SYSTEM, INC., a corporation, Defendant-Appellant and Teamsters Local Union No. 17, Defendant.

No. 96-1427.

United States Court of Appeals Tenth Circuit.

Sept. 4, 1998.

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

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

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

EBEL, Circuit Judge.

This case involves a jury's verdict of $112,124 for the appellee on his claim that he was wrongfully fired from his job as a delivery truck driver on trumped up charges after his delivery truck skimmed the underside of some tree branches, and that the real reason for his discharge was retaliation for his union activities. Appellant argues that the verdict should not stand because the appellee failed to prove the elements necessary to his claims of breach of contract and breach of the duty of fair representation. The appellant also challenges numerous discretionary rulings by the district court during the course of the trial. We affirm on all grounds.

Background ¹

The dispute in this case arose in 1993, when defendant-appellant ABF Freight System, Inc. ("ABF"), fired plaintiff-appellee Rick Webb. ABF alleged that Webb had violated his contractual duty to report immediately "any accident." ² The question in this case is whether ABF's claim was the true basis for Webb's discharge or merely a pretext for firing a union activist.

1. Webb's union activities

Webb worked as a truck driver with ABF for more than nine years before he was fired on August 2, 1993. Webb also was a member of Teamsters Local No. 17, ³ which represents all of ABF's drivers in Colorado and elsewhere, and Webb had been the shop steward for Local 17 at ABF's Fort Collins terminal from the day the company opened its terminal there.

In his role as shop steward, Webb prosecuted grievances on behalf of himself and other drivers from Fort Collins, including grievances alleging unsafe practices by ABF. Webb also was involved with disputes with ABF management over the use of overweight trucks and a hazardous waste spill at the terminal.

During the winter of 1992-93 one of Webb's grievances involved a dispute over ABF's use of drivers from the Denver terminal to do work in Fort Collins on weekends. Webb secured a grievance award of overtime pay for one Fort Collins driver who had lost weekend work to Denver drivers. However, two weeks later, the Denver leadership of Local 17, including union president Ron Schwab, negotiated a side letter with ABF that effectively reversed the results of the grievance decision. This side letter was negotiated without input from Fort Collins' drivers, and it was adopted by the union before any Fort Collins drivers could comment on it. The dispute over work allocation between the Denver and Fort Collins terminals led to continuing friction between Webb and the Teamsters leadership in Denver, including union president Schwab, whose political support was based in the Denver terminal's drivers.

2. Webb's firing

On the afternoon of July 30, 1993, a Friday, Webb took a full truck out for deliveries, with the first delivery at the Colorado State University Alumni Center ("CSU"). As Webb was backing up to the alumni center, Webb's truck became entangled with overhanging branches. Webb testified that these branches were no more than 1 1/2- to 2-inches in diameter, and he pulled them out from between his truck and the trailer. At the time, Webb did not notice any damage to the truck or the trailer. After finishing his delivery at the alumni center, Webb continued on his route without making any accident report. Webb returned the truck and trailer to the ABF terminal in Fort Collins at the end of the day, again without making any accident report or any log entry of damage in his vehicle condition log.

Company officials contended that Webb's entanglement with tree branches at CSU caused more than $600 worth of damage, bending the exhaust stack on the tractor and crushing a corner of the trailer. At Webb's subsequent grievance hearings, Company officials introduced a picture of a tree limb measuring four inches in diameter that they contend Webb's truck pulled down. However, during the trial in this case, Webb denied that he hit a branch that size. He also testified that he later returned to CSU to look at the tree branches on the driveway of the alumni center, and he noticed the stump where the pictured four-inch limb had come from. He testified that his truck could not have pulled down that branch because the stump showed that the branch had not been pointed out over the driveway where Webb could have hit it.

On the evening of July 30, 1993, after Webb had left work, ABF's manager at the Fort Collins terminal, Bill Higley, noticed damage to Webb's tractor and trailer. Higley took several Polaroid pictures of the vehicle, and he called ABF officials in Salt Lake City and Fort Smith, Arkansas, to report the incident. At that time, he told ABF officials that Webb was the last driver of the damaged truck, and ABF regional vice president Sid Hatfield told Higley that failing to report an accident was a dischargeable offense.

When Webb returned to work the next Monday, Higley confronted Webb about the damage to the truck and trailer. Webb told Higley about the tree-skimming incident, and he pointed out that no driver had ever considered such an incident to be subject to the company's rule requiring the reporting of all accidents. ⁴ Webb also requested an opportunity to view the damage for himself, and after inspecting the vehicle, Webb provided a handwritten statement about the incident. Webb's statement indicates that Webb did not notice that the stack on the tractor was askew until Saturday morning, after he had learned from a co-worker that Higley had been taking pictures of the truck. Webb's statement also indicates that Webb did not notice any damage to the trailer until Monday morning when he was confronted about the incident. However, nowhere in the statement does Webb admit responsibility for the damage to the trailer.

When Webb finished writing out this statement, Higley informed Webb that he was fired and he should leave the ABF premises. Higley then began drafting letters to notify Webb formally that he had been discharged, with the sole basis for Webb's firing being Webb's failure to report the tree-skimming incident as an accident. ⁵

3. Webb's grievance

Immediately after being fired, Webb called Ron Schwab, who was the Local 17 official responsible for handling grievances out of the Fort Collins terminal, and Webb requested that the union challenge his discharge. After commenting that "we knew this was coming," Schwab agreed to file a grievance on Webb's behalf. Schwab also agreed to obtain company documents that Webb said would be helpful for the grievance, as well as to interview one of Webb's co-workers who could testify about the events leading up to Webb's discharge. Schwab, however, decided not to call any witnesses for Webb during the grievance hearing, and he failed to obtain any of the documents Webb requested.

The first hearing on Webb's grievance occurred two days after the firing, on August 4, 1993, in Denver before the joint Colorado-Wyoming Longline Grievance Committee, an arbitration panel evenly composed of union and company officials. Schwab focused his arguments during the hearing on Webb's account that the tree-skimming incident at CSU was not a reportable accident in light of the small size of the branches involved and the fact that Webb had not noticed any damage when he was at the scene. Schwab, however, failed to object when an ABF official characterized the branch that Webb had hit as "about eight inches in diameter and about 30 foot [sic] long." Schwab also failed to review the evidence ABF prepared before the hearing, and as a result, he was taken by surprise when ABF introduced a statement by one of Webb's co-workers that detailed ABF's account of the damage to Webb's tractor and trailer. ⁶ Schwab's failure to review ABF's evidence before the hearing also may have affected his and Webb's ability to raise questions about ABF's alleged tampering with the evidence of damage to Webb's trailer. ⁷ Finally, despite telling Webb again before the grievance hearing that "we knew this was coming," and despite Webb specifically asking Schwab to do so, Schwab did not present Webb's allegation of retaliation--that Webb's firing was prompted by the company's desire to silence his union activities.

The grievance committee deadlocked on the question of whether to reverse ABF's discipline. As a result, the grievance was transferred one week later to the Joint Western Area Committee ("JWAC") in San Diego an arbitration panel whose voting members were again evenly split between union representatives and company representatives. In the days before this second hearing, Schwab apparently told Webb it wasn't necessary for Webb to be present because no new testimony or evidence would be introduced. ⁸

Despite his apparent discouragement of Webb's attendance at the JWAC hearing, Schwab told the JWAC panel, "Mr Webb was invited to be present here and apparently has chosen not to be here to testify in his own behalf. The Local Union will do its best with these conditions." Schwab also told the JWAC hearing that "the Union has no problem stipulating to the size of the tree branch. We have seen the tree branch." Schwab made this stipulation despite the fact that the only offer from ABF as to the size of the tree branch was the eight-inch-diameter claim that directly contradicted Webb's account of branches no larger than two inches in diameter. When a panel member asked Schwab whether Webb was aware that any incident that resulted in damage to company equipment was...