Thomas v. Bakery, Confectionery and Tobacco Workers Intern. Union, Local No. 433, s. 91-3549
| Decision Date | 12 February 1993 |
| Docket Number | 92-1563 and 92-1591,91-3553,Nos. 91-3549,s. 91-3549 |
| Citation | 982 F.2d 1215 |
| Parties | 142 L.R.R.M. (BNA) 2168, 123 Lab.Cas. P 10,489 Selman THOMAS, Jr., also known as Joe Thomas, Jr.; Lloyd Anderson; David Bell; Dale John Burk; Dennis Canterbury; John Conner; Curtis Cotton; Michael DeJaynes; Ressie Estell; Paul Flower; David Foster; Donald Froien; Lacinda George, Personal Representative of the Estate of James George; Eddie Gill; Ivan Heesacker; Robert Hinsley; Josephine James; Calvin Jewett; Ralph Johnson; Kent Jorgesen; Patricia Livengood; Clyde Moore; Percy Moore; James Nash; Robert Peters; John Pittman; Sylvio Rebolloso; Jane Reed; Wayne Shaffar; Paul Stone; Rose Mascarello, Personal Representative of the Estate of James Thompson; James Walker; Clayton Welch; Ishanwee Wrenn; Gerald Carew; Thomas Hayden; Melvin Wade, Jr.; William Marsh; Mary L. Fillbach, Personal Representative of the Estate of Robert Fillbach; Shirley Huston, Personal Representative of the Estate of Lewis Huston, Appellants, v. BAKERY, CONFECTIONERY AND TOBACCO WORKERS INTERNATIONAL UNION, LOCAL # 433; Metz Baking Company, Appellees, Curtis Burton; Clark Cowing; Tom B. Miller; Donita Wimer; Bernard Vontersch; Audrey Leahy; Joan Delesene; Mary L. Ardery; Junior Lee Hoxsie; Annie C. Moore; Bob Herman; Gary Wasinger; Barbara Wasinger; Mark Boro; Bessie Sherrod; Richard Timperley; Thomas J. Mathis; William T. Adams; Patrick Laughlin; Matthew L. Seeman; Mark Martinez; Jim Hudson; John P. Gue; Larry Stryker; Kirk Keller; Steve Keithley; Jack Hotz, Jr.; Margaret Hilliard; Carlotta Chapman; Gary Kjar; Jan Hall; David Kunkle; Ronald Black; Homer C. Jackson; Rondell Guffey; Joy Southall; Janelle Swafford; Delores Urkevich; William H. Bailey; Brenda J. Brown; Emma J. Martin; Dave Hawkins; Dana McCoy; Donnie Parks; Bernie H. Bell; Edmon J. Flury; Kathryn Nelson; Carolyn L. Dibelka; William J. Miller; Taral E. Clift; L.Z. Steen; Douglas O'Leary; Rodger Vordestrasse; Robert Heib; Tim Schneckloth; Alvin Ward; Richard Lindaer; Harold Poppino; Mary Wright; Doug Woodworth; Richard Wills; R.P. Moore |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas G. Young, Omaha, NE, argued, for appellants.
Robert MacDonald Smith, Sioux City, IA, and Neil B. Danberg and M.H. Weinberg, Omaha, NE, argued, for appellees.
Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, and LARSON, * Senior District Judge.
This is the end of a dispute which began in February of 1983 when the defendant, Metz Baking Company, purchased most of the assets of Interstate Brands Corporation (IBC). The purchase included the plant on Leavenworth Street in Omaha, Nebraska, where the plaintiffs, forty former employees of IBC, worked. The problem arose when Metz closed down its own Omaha bakery and transferred those employees to the Leavenworth plant. Metz then "end-tailed" the former IBC employees, which means it placed them at the bottom of the plantwide seniority list. Consequently, when Metz made labor adjustments to rectify the two-workforce, one-plant problem, it laid off the plaintiffs.
After an unsuccessful attempt at arbitration, the plaintiffs sued Metz and Local No. 433 of the Bakery, Confectionery, and Tobacco Workers Union--the union which represented all of the former employees of IBC and the employees of Metz. 1 The trial was bifurcated, with the idea that relief would be determined later if the jury found the defendants liable. The jury did find the defendants liable, but the District Court granted judgment n.o.v. for the defendants. On appeal, we reversed the judgment n.o.v. and remanded for a determination of appropriate relief. Thomas v. Bakery Workers Union Local No. 433, 826 F.2d 755 (8th Cir.1987), cert. denied, 484 U.S. 1062, 108 S.Ct. 1019, 98 L.Ed.2d 984 (1988). After a two-month trial, the District Court 2 awarded each plaintiff the equivalent of three months' wages less any income actually earned during that period. The plaintiffs make numerous arguments on appeal. We reject all of them and affirm the judgment of the District Court.
The District Court found the following passage from a footnote in our earlier opinion to be central to its resolution of damages:
The District Court should determine on remand who would have voted to ratify a negotiated solution to the consolidation problem. Determining who would have voted will help determine the range of solutions that would have been feasible, and this will help the Court determine what would have occurred but for the Union's failure to negotiate. Plaintiffs will bear the burden of proof, and if the evidence is simply too sketchy or uncertain to justify anything more than speculation, their remedy would be merely a declaratory judgment and perhaps nominal damages.
Thomas, 826 F.2d at 760 n. 1. Since Metz could not have kept all of the employees from both workforces, and the collective-bargaining agreement had no provision governing labor in the event of a corporate merger, the collective-bargaining agreement would have had to be modified. In footnote 1 we ordered the District Court to determine what that modification would have been if proper negotiations had in fact taken place.
The Court found that a modification would have legally end-tailed the former IBC employees. Thus, it held that Metz could have legally fired the plaintiffs as soon as the modification had been negotiated, proposed, and ratified, which, the Court found, would have been sometime in June. The plaintiffs were therefore entitled to recover for the loss they suffered during the three-month period from mid-March, when they were laid off, until mid-June, when they could have legally been laid off. Thomas v. Bakery Workers Union Local # 433, No. CV83-0-652, slip op. at 10-12 (D.Neb. October 11, 1991).
Plaintiffs first argue that the District Court erred in its application of footnote 1. They argue that the jury found that had negotiations taken place, the plaintiffs would never have been laid off, because any new agreement would have preserved their seniority rights. This, they add, is the law of the case, and this Court did not direct the District Court to re-examine the jury's determination as to the probable result of negotiations. Footnote 1, they claim, merely directed the District Court to apportion damages between the Union and Metz. Having written this passage, we disagree. First, the language in the footnote is not simply referring to an apportionment-of-damages matter. We expressly directed the District Court to determine "who would have voted to ratify a negotiated solution" so it could ascertain what would have occurred--that is, what the solution would have been--but for the failure to negotiate. Second, the plaintiffs have mischaracterized what the jury decided. Contrary to the plaintiffs' argument, the jury did not find that an agreement preserving the plaintiffs' jobs would have been reached, but that they would not have been laid off in March had the Union negotiated. Appellant's Add. 107-08. In fact, the jury was never asked to resolve the dilemma between the Metz workers and the IBC workers or to decide who would have ended up with jobs after negotiations.
This brings us to plaintiffs' alternative argument, which is that the District Court erred in holding that the plaintiffs would have been end-tailed if negotiations had taken place. First, they argue, the only persons who would have been entitled to vote to modify the...
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