Cruz v. Local Union No. 3 of Intern. Broth. of Elec. Workers

• Decision Date: 25 August 1994
• Docket Number: 1066,Nos. 1065,D,s. 1065
• Citation: 34 F.3d 1148
• Parties: 147 L.R.R.M. (BNA) 2176, 128 Lab.Cas. P 11,167 Socorro CRUZ; Agripina Torres; Delza Perez; Leonie Abellard; Marie Lucienne Jacob; Maria Quintero; Carmen Febles; Elizabeth Martinez, Plaintiffs-Appellees-Cross-Appellants, Milagros Colon; Erlinda Sampson; Pablo Castro; Gladys Gonzalez; Julio Colon; Marisol Quintero Delarra, Plaintiffs, v. LOCAL UNION NUMBER 3 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant-Appellant-Cross-Appellee. ockets 93-7830, 93-7908.
• Court: U.S. Court of Appeals — Second Circuit

Page 1148

34 F.3d 1148

147 L.R.R.M. (BNA) 2176, 128 Lab.Cas. P 11,167

Socorro CRUZ; Agripina Torres; Delza Perez; Leonie

Abellard; Marie Lucienne Jacob; Maria Quintero;

Carmen Febles; Elizabeth Martinez,

Plaintiffs-Appellees-Cross-Appellants,

Milagros Colon; Erlinda Sampson; Pablo Castro; Gladys

Gonzalez; Julio Colon; Marisol Quintero Delarra, Plaintiffs, v. LOCAL UNION NUMBER 3 OF the INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, Defendant-Appellant-Cross-Appellee.

Nos. 1065, 1066, Dockets 93-7830, 93-7908.

United States Court of Appeals, Second Circuit.

Argued March 2, 1994.

Decided Aug. 25, 1994.

Herbert Eisenberg, New York City (Robert B. Davis, Davis & Eisenberg, of counsel), for plaintiffs-appellees-cross-appellants.

Norman Rothfeld, New York City, for defendant-appellant-cross-appellee.

Valerie A. Voorhees, New York City, for amicus curiae National Employment Lawyers' Association/New York.

Before KEARSE, PIERCE and LEVAL, Circuit Judges.

PIERCE, Circuit Judge:

On July 12, 1993, an order was filed in the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge ), 150 F.R.D. 29, which (i) vacated a jury award of $25,969.86, ¹ and awarded nominal damages of one dollar each to eight of fourteen plaintiffs who had alleged that Local Union Number 3 of the International Brotherhood of Electrical Workers ("Local Union No. 3") breached its duty of fair representation; and (ii) awarded attorneys fees totalling $47,250 to plaintiffs' attorneys. The district court also awarded costs of $1,177.15. Local Union No. 3 now appeals from, inter alia, both the nominal damage awards and the awards for attorneys' fees. The eight prevailing plaintiffs appeal with respect to, inter alia, the reduction of the jury awards, and the amount of attorneys' fees awarded to their attorneys. Affirmed in part; reversed in part; and remanded.

BACKGROUND

In March, 1990, Robert Abbey, Inc. ("Abbey"), a lamp manufacturer with plants located in Brooklyn, New York, and North Carolina, determined to close its Brooklyn plant, which was unionized, and move most of its equipment to its non-unionized plant in North Carolina. Prior to that decision, in early 1989, Abbey began laying off its unionized employees in the Brooklyn plant and by the end of that year their number was reduced from over 150 to fewer than 50. The plant closed on July 2, 1990. The unionized employees at the Brooklyn plant were all members of a collective bargaining unit whose exclusive representative was Local Union No. 3.

On December 19, 1989, an action was commenced in the district court against Local Union No. 3 by several of Abbey's unionized employees, alleging breach of the duty of fair representation by Local Union No. 3, in violation of section 9(a) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 159(a). ² The unionized employees included the employer, Abbey, in their action claiming: (1) violation of the Worker Adjustment and Retraining Notification Act of 1988 ("WARN"), ³ Local Union No. 3 and Abbey moved to dismiss the action in January, 1990. Thereafter the plaintiffs moved, on March 19, 1990, "for an order certifying that this action may be maintained as a class action." On April 10, 1990, this motion was dismissed without prejudice to renew. On June 14, 1990, the district court dismissed the plaintiffs' claim that Local Union No. 3 violated its duty of fair representation by failing to inform them or to challenge Abbey with regard to the plant closing and/or mass lay-offs. Accordingly, with respect to Local Union No. 3, only the issue of whether there had been a breach of the duty of fair representation in failing to respond to the employees' seniority grievances remained in the suit before the district court.

29 U.S.C. Secs. 2101-2109; and (2) that Abbey laid-off senior employees before junior employees, in violation of the seniority clause of the collective bargaining agreement ("CBA") governing the terms and conditions of their employment. ⁴

On February 28, 1991, the plaintiffs, inter alia, renewed their motion to certify the class, and moved to consolidate the action against Abbey and Local Union No. 3 with a second action they had commenced against the John Doe Company (a/k/a Robert Abbey, Inc. of North Carolina) and Martin Abbey, individually and as vice-president of Abbey. These requests were granted by the district court on June 17, 1991.

On March 17, 1993, Local Union No. 3 moved for summary judgment. The district court denied this motion on April 5, 1993. Thereafter, on April 30, 1993, the district court dismissed the action against Abbey and John Doe Co. pursuant to a stipulation of settlement between the plaintiffs and Abbey, and John Doe Co. The plaintiffs specifically reserved "any and all claims in the litigation still pending against Local Union [No.] 3."

The jury trial against Local Union No. 3 began April 26, 1993, and concluded May 7, 1993. The district court decertified the class of plaintiffs on April 28, 1993, leaving the claims of, inter alia, the fourteen plaintiffs named herein to be tried before the jury. ⁵ Several of the plaintiffs testified as to the terms of their employment, their wages, their respective layoffs, their efforts to secure employment following their lay-offs, whether they were recalled, and their receipt of unemployment compensation. Febles, Jacob, Martinez, Perez, Abellard, Quintero, and Torres testified that they verbally complained about their non-seniority lay-offs to Bartolo Albino, the union shop steward for Local Union No. 3 at Abbey. They testified that Albino told them he could do nothing for them. Febles, Abellard, and Torres testified that they complained to Albino that they were senior in years of service to other employees who were not laid-off in their department. Two plaintiffs--Martinez and Quintero--gave Albino the names of less senior employees in their department who had not been laid-off. Albino, they stated, offered no help, and told one plaintiff, Jacob, who had complained of being laid-off despite seventeen years of service, to speak to Martin Abbey, the company's vice-president.

Abellard testified that she went to the union office and verbally complained about her non-seniority lay-off to Felix Crespo, the business representative of Local Union No. 3 responsible for administration of the CBA at the Brooklyn plant. The record evidence reveals that prior to the fall of 1989 Crespo had access to the union's seniority lists of Abbey's employees and had investigated seniority grievances. Crespo told Abellard to fill out job applications and he would get back to her--he never did. The record also reveals that Abellard had worked for Abbey for over twenty years.

The evidence further reveals the following: With regard to Torres' lay-off, at the time of her lay-off in October of 1989, she had worked in Abbey's Shade Department for over nineteen years; she complained of her lay-off to Albino, but she received no response; she was unsuccessful in attempting to speak to Crespo at the union office; thereafter, she applied for unemployment compensation.

Perez complained to both Albino and Crespo about her lay-off--neither was responsive, and Crespo left the office stating that he did not "have any time" to respond to her grievances. Perez was laid-off on September 22, 1989; then she found employment "near the end of 1989," which apparently lasted until her January 22, 1990 recall to Abbey.

Finally, Cruz, along with Sampson, Perez, Colon, and others, complained to Crespo about their lay-offs. Cruz testified that, rather than advise them about their seniority rights and available grievance procedures, Crespo told her and the others to talk with Albino and their respective lawyers.

Thus, there was evidence that Albino did not aid the plaintiffs with respect to their seniority complaints, nor did Crespo discuss seniority rights with the plaintiffs, although he was responsible for administering the CBA, and had access to Abbey's seniority lists.

Martin Abbey, the former vice-president of Abbey, testified to the following at the trial. He supervised the operation of Abbey's factory, and it was customary for Albino and Crespo to speak with him when problems arose in order to resolve them. He testified that whenever an Abbey employee was laid-off, the information was provided to both Albino and Crespo. When the decision was made to close the Brooklyn plant in March 1990, Crespo was informed.

Martin Abbey also testified regarding employees who were retained although they lacked seniority. Four employees--Frantz Benoit, Genaro Crespo, Palmira Romani, and Rene Ramirez--were retained in the decoration department because, he stated, they possessed skills which the plaintiffs lacked, or performed work the plaintiffs could not perform; another Abbey employee, Carlos DeLeon, was retained despite his lower seniority because he ran the shade department.

Local Union No. 3 moved to dismiss, or, in the alternative, for a directed verdict, at the close of the plaintiff's case, claiming that the plaintiffs had (a) failed to present adequate grievances to the union, and (b) failed to exhaust their intra-union remedies. The district court denied this motion, ruling that further action by the plaintiffs would have been "futile." Thus, the case was submitted to the jury to determine whether the seniority provisions of the CBA were violated, and whether Local Union No. 3 violated its duty of fair representation to the plaintiffs. The jury was instructed that if it found in favor of any plaintiff, the amount of economic injury was to be calculated and apportioned between Abbey and Local Union No. 3, deducting earnings from other sources. The jury was also charged that if it could not determine monetary damages with reasonable certainty, then nominal damages of one dollar each should be awarded to the plaintiffs.

On May 7, 1993, the jury rendered a verdict in...