Richardson v. Communications Workers of America, AFL-CIO

• Decision Date: 13 February 1976
• Docket Number: Nos. 75--1564,75--1614 and 75--1645,AFL-CIO,A,AFL-CI,s. 75--1564
• Citation: 530 F.2d 126
• Parties: 91 L.R.R.M. (BNA) 2506, 78 Lab.Cas. P 11,285 Dale C. RICHARDSON, Appellant-Cross-Appellee, v. COMMUNICATIONS WORKERS OF AMERICA,, and Local 7495, CommunicationsWorkers of America,, Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 126

530 F.2d 126

91 L.R.R.M. (BNA) 2506, 78 Lab.Cas. P 11,285

Dale C. RICHARDSON, Appellant-Cross-Appellee, v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, and Local 7495,

CommunicationsWorkers of America, AFL-CIO,

Appellees-Cross-Appellants.

Nos. 75--1564, 75--1614 and 75--1645.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 8, 1975.

Decided Feb. 13, 1976.

Rehearing and Rehearing En Banc

Denied, in No. 75--1564

March 11, 1976.

J. Patrick Green, Omaha, Neb., for Communications Workers of America, etc., and others.

Robert E. O'Connor, and J. Patrick Green, Omaha, Neb., for Communications Workers of America, AFL-CIO.

David S. Lathrop, Omaha, Neb., for Local 7495 of the Communication Workers of America, AFL-CIO.

Dan J. Whiteside, Orange, Cal., Edward F. Fogarty, Omaha, Neb., and Rex H. Reed, Washington, D.C., Edith D. Hakola, Fairfax, Va., for Dale C. Richardson.

Before MATTHES, Senior Circuit Judge, and STEPHENSON and WEBSTER, Circuit Judges.

STEPHENSON, Circuit Judge.

This is the third appeal arising out of this litigation. The issues raised in plaintiff's appeal and in the cross-appeals by the defendants cannot be placed in proper focus without briefly reviewing the history of the case, which is now here after the third jury trial.

Plaintiff brought this action under section 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C. § 185(a). He sought damages against a former employer, Western Electric Company, Inc. (Company), and the Communications Workers of America, AFL-CIO (International) and its Local 7495 (Local). The jury found that plaintiff was wrongfully discharged in breach of the collective bargaining agreement by the Company, and that the wrongful discharge was caused by actions of the International and the Local in violation of the nondiscrimination clause of the agreement which prohibited discrimination because of nonmembership in the union. Plaintiff was awarded a verdict in the amount of $20,000 which was reduced by the trial judge ¹ to $1500 for the reason that the bargaining agreement could have terminated six and one-half months after plaintiff's discharge. This court reversed and remanded for new trial holding that plaintiff was entitled to damages for loss of earnings extending beyond the collective bargaining agreement, in view of the character of the work involved, the nine years plaintiff had been with the Company, the strong likelihood of his continued employment with the Company, the probability of renewal of the collective bargaining agreement and the severance of seniority rights. We ordered a new trial limited solely to the damage issues as to plaintiff's claim for relief under section 301. We directed that the jury was entitled to consider the evidence as to the activity of the Union (initially treated as a single entity) ² in inducing the wrongful discharge so that it might then apportion the damages between the Company and the Union on the basis of their respective roles in causing the discharge. We directed that damages should include future earnings and an evaluation of seniority rights plaintiff may have had which were lost. We also dircted that plaintiff be given an opportunity to plead against the Union, as a separate count, damages for mental distress for the alleged violation of its statutory duty to avoid intentional discrimination against him up to and including the time of his discharge. Richardson v. Communications Workers, 443 F.2d 974 (8th Cir. 1971).

After remand plaintiff filed an amended complaint alleging two causes of action, the first against the Company and the two unions for wrongful termination of his employment, and the second against the unions for mental anguish. On the first claim for loss of employment the jury returned a verdict in favor of plaintiff Richardson in the sum of $92,000, apportioned 30% to the employer, Western Electric, and 70% to the unions, pursuant to the district court's direction to treat the two unions as joined. Upon Richardson's second claim for mental anguish against the unions, the jury awarded him $250,000.

Upon motion of the unions the district court granted a new trial on the second claim (Count II) for mental distress, anguish and humiliation upon the grounds that the jury 'rendered its verdict as the result of passion, prejudice, mistake, or some other improper reason.' In its discussion the district court stated '(i)t is clear that the verdict was excessive and intended to punish the defendants or resulted from some other improper reason.' ³ However, the court denied the motion of the unions to set aside the verdict or grant a new trial on the first claim (Count I), for lost wages, benefits and seniority rights in the amount of $64,400. This court, upon certification under Fed.R.Civ.P. 54(b), affirmed the judgment on Count I. See Richardson v. Communications Workers, supra, 486 F.2d 801 (8th Cir. 1973). ⁴ Western Electric did not appeal from the judgment against it on Count I in the amount of $27,600.

In the third trial the jury returned a verdict in favor of each defendant union on the mental distress claim under Count II. The court ordered that judgment enter in favor of each defendant on the jury verdict. The court further ordered that plaintiff recover from the defendant unions the sum of $10,000 for his reasonable attorney fees in the prosecution of his claim on Count I that the wrongful discharge of plaintiff was caused by actions of the unions.

In this appeal plaintiff Richardson charges (1) the order for a new trial on the mental distress issue (Count II) was an abuse of discretion; (2) prejudicial errors in the recent trial (Count II) require a new trial; and, (3) the allowance of $10,000 in attorney fees was unreasonably low. The unions, in addition to denying plaintiff's charges, urge by cross-appeals that the award of attorney fees to plaintiff was improper.

Order for New Trial

Plaintiff claims the trial court abused its discretion in ordering a new trial on the mental distress claim upon the grounds that the $250,000 award was excessive and 'the result of passion, prejudice, mistake, or some other improper reason.' Plaintiff argues that since in this case the inference of passion or prejudice was drawn from the size of the verdict alone, a remittitur or a new trial limited to damages would have adequately remedied the supposedly erroneous verdict, without resorting to the penalty of a new trial.

In excessive verdict cases we have held that 'whether the ends of justice will be served by ordering a reduction of the verdict, or whether a new trial must be had, are primary questions for the trial court.' Perry v. Bertsch, 441 F.2d 939, 943 (8th Cir. 1971). The function of the reviewing court in such cases is limited to a determination of whether the trial court abused its discretion in making the determination it did. Id. See also Bankers Life & Casualty Co. v. Kirtley, 307 F.2d 418, 426 (8th Cir. 1962).

The standard we apply for review of the trial court's refusal to set aside a jury verdict on the grounds of excessiveness or inadequacy was reviewed by Judge Blackmun, now Justice Blackmun, in Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447--48 (8th Cir. 1961) and is summarized as follows:

(I)n our opinion, inadequacy or excessiveness of a verdict is basically, and should be, a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and which knows the community and its standards; that this is a responsibility which, for better working of the judicial process and for other seemingly obvious reasons, is best placed upon its shoulders; and that we shall continue to consider review, as we have said before, not routinely and in every case, but only in those rare situations where we are passed to conclude that there is 'plain injustice' or a 'monstrous' or 'shocking' result.

We have continued to adhere to this standard. Snodgrass v. Nelson, 503 F.2d 94 (8th Cir. 1974); Scoville v. Missouri Pacific Railroad, 458 F.2d 639 (8th Cir. 1972); Century '21' Shows v. Owens, 400 F.2d 603, 611--12 (8th Cir. 1968). We have also held that the standard we will apply in determining whether there was an abuse of discretion in ordering a remittitur is whether the remittitur was ordered for an amount less than the jury could reasonably find. Slatton v. Martin K. Eby Construction Co., 506 F.2d 505 (8th Cir. 1974). In applying this standard we reiterated the Solomon standard, supra, 294 F.2d at 447, that inadequacy or excessiveness of a verdict is basically a matter for the trial court.

In summary, we will not disturb a trial court's grant of a new trial for an excessive verdict absent a clear abuse of discretion. Here the trial court properly recognized that plaintiff's damages arising from invidious discrimination were to be measured in terms of the mental distrees, anguish and humiliation caused him, but not as a means of punishing defendants. The court concluded 'that the verdict was excessive and intended to punish the defendants or resulted from some other improper reason' and ordered that a new trial be granted. We are satisfied from our review of the record that the trial court did not abuse its discretion in ordering a new trial in lieu of a remittitur. Perry v. Bertsch, supra, 441 F.2d at 943. ⁵

Neither was there an abuse of discretion in failing to limit the new trial to damages only. The nature of the case was such that the liability and damages issues were interwoven to such an extent that a trial on damages alone would have been inappropriate. Plaintiff's claim for mental anguish and humiliation involved conduct by a larger number of individuals over a seven-month period. In determining damages to be awarded against the Local or International, or neither or both, it was necessary for the jury to determine who committed what acts and the responsibility of the parties under applicable principles of...