Lewis v. Whelan

• Citation: 99 F.3d 542
• Decision Date: 06 November 1996
• Docket Number: No. 487,D,487
• Parties: 153 L.R.R.M. (BNA) 2814, 132 Lab.Cas. P 11,704 Ernest LEWIS, Jose Alier, Joseph Arena, Bruce Barnwell, Edward Baronowski, Mickey Lo Bascio, George J. Bauer, Domenico Berardesca, Robert Bertone, Johnathan Blum, William Boehmer, Vito Di Bono, Edward Bottjer, Robert Brice, Charles Brown, E.J. Buchalski, Charles Campo, Anthony Carbone, Arnold Carlin, Edward P. Casale, Richard Charnow, John Clifford, Frank Colletti, Frank Cooke, Joseph J. Costa, Philip Cuiffo, J.D. Donato, Lawrence Donley, Richard Dreste, Robert Dreste, Frank Dushanowitz, Robert Eger, Ely Fallas, Dennis R. Gaglia, Leslie Gaglia, Hiraza M. Gialampoukis, Arthur Goldstein, Robert Gorski, Larry Harney, Jerry K. Hennig, William Hoare, Basil Hurgus, Lionel Inselberg, William Treanor, Dave Johnston, Arthur Jones, Billy Jones, William Jones, Dennis Jordan, Victor Voldemar, Joseph Koenig, Robert Ledee, Henry Leonhardt, William Lindstadt, Sidney Waldman, Joseph Manfre, Luis Manzano, Anthony De Marco, John De Marco, Richard Maskelony, Robert Meoli, Robert Moller, Ray Monahan, Salvatore Montalbano, John Mueller, Thomas Murphy, Anthony Nazzaro, Ralph Nazarro, Charles Nettles, Patrick Nolan, Joseph Pando, Frederick Pluschau, Richard Pluschau, Ralph Polverino, John Porter, Jr., John Pulaski, Domenick Rafanelli, James Rennick, Kenneth Rodden, Lawrence H. Ross, John Saladino, Kenneth Sawicki, Leonard Schulman, Filippo Simone, Robert E. Spahn, Jeff De Stefano, Steven De Stefano, John Stoehrer, Victor Tello, Theodore Freudenberg, John Wittman, Jr., And James Treanor, Plaintiffs-Appellees, v. Willie WHELAN, as President of Local 584, International Brotherhood of Teamsters, Defendant, Tuscan Dairy Farms, Inc., Defendant-Appellant. ocket 96-7446.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 542

99 F.3d 542

153 L.R.R.M. (BNA) 2814, 132 Lab.Cas. P 11,704

Ernest LEWIS, Jose Alier, Joseph Arena, Bruce Barnwell,

Edward Baronowski, Mickey Lo Bascio, George J. Bauer,

Domenico Berardesca, Robert Bertone, Johnathan Blum, William

Boehmer, Vito Di Bono, Edward Bottjer, Robert Brice, Charles

Brown, E.J. Buchalski, Charles Campo, Anthony Carbone,

Arnold Carlin, Edward P. Casale, Richard Charnow, John

Clifford, Frank Colletti, Frank Cooke, Joseph J. Costa,

Philip Cuiffo, J.D. Donato, Lawrence Donley, Richard Dreste,

Robert Dreste, Frank Dushanowitz, Robert Eger, Ely Fallas,

Dennis R. Gaglia, Leslie Gaglia, Hiraza M. Gialampoukis,

Arthur Goldstein, Robert Gorski, Larry Harney, Jerry K.

Hennig, William Hoare, Basil Hurgus, Lionel Inselberg,

William Treanor, Dave Johnston, Arthur Jones, Billy Jones,

William Jones, Dennis Jordan, Victor Voldemar, Joseph

Koenig, Robert Ledee, Henry Leonhardt, William Lindstadt,

Sidney Waldman, Joseph Manfre, Luis Manzano, Anthony De

Marco, John De Marco, Richard Maskelony, Robert Meoli,

Robert Moller, Ray Monahan, Salvatore Montalbano, John

Mueller, Thomas Murphy, Anthony Nazzaro, Ralph Nazarro,

Charles Nettles, Patrick Nolan, Joseph Pando, Frederick

Pluschau, Richard Pluschau, Ralph Polverino, John Porter,

Jr., John Pulaski, Domenick Rafanelli, James Rennick,

Kenneth Rodden, Lawrence H. Ross, John Saladino, Kenneth

Sawicki, Leonard Schulman, Filippo Simone, Robert E. Spahn,

Jeff De Stefano, Steven De Stefano, John Stoehrer, Victor

Tello, Theodore Freudenberg, John Wittman, Jr., And James

Treanor, Plaintiffs-Appellees, v. Willie WHELAN, as President of Local 584, International

Brotherhood of Teamsters, Defendant,

Tuscan Dairy Farms, Inc., Defendant-Appellant.

No. 487, Docket 96-7446.

United States Court of Appeals, Second Circuit.

Argued Oct. 21, 1996.

Decided Nov. 6, 1996.

Theodore O. Rogers, Jr., Sullivan & Cromwell, New York City (Robin D. Fessel, Holly H. Weiss, of counsel), for Defendant-Appellant.

Louie Nikolaidis, Lewis, Greenwald, Clifton & Lewis, New York City (Daniel E. Clifton, Lauren Esposito, of counsel), for Plaintiffs-Appellees.

Before VAN GRAAFEILAND, WINTER and ALTIMARI, Circuit Judges.

WINTER, Circuit Judge:

Tuscan Dairy Farms, Inc. ("Tuscan") appeals from Judge Mukasey's decision holding Tuscan jointly and severally liable with the Milk Drivers & Dairy Employees Local 584 (the "Union") under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for violating the seniority provision of the multi-employer Milk Industry Collective Bargaining Agreement ("MIA"). This is the third appeal in this matter. We assume familiarity with all prior decisions.

We briefly summarize the background of the present appeal. After a four day bench trial, the district court found that Tuscan had breached its contractual obligations under the MIA and that the Union had breached its duty of fair representation to the plaintiffs, former workers at Liberty Farms Inc., a milk processing plant in Ozone Park, New York. Lewis v. Tuscan Dairy Farms, Inc., 752 F.Supp. 116, 122-25 (S.D.N.Y.1990). These breaches occurred when Tuscan purchased the plant and, with the cooperation of Union President Willie Whelan, refused to dovetail the seniority of workers in Liberty Farms with the seniority of workers in Tuscan's other two plants, as required by Article IV Section C of the General Rules of the MIA ("Rule IV C"). Id.

On Tuscan's first appeal, we remanded for reconsideration in light of the Supreme Court's opinion in Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). Alier v. Tuscan Dairy Farms, Inc., 979 F.2d 946, 948 (2d Cir.1992) (per curiam). The district court confirmed its decision on remand. Lewis v. Tuscan Dairy Farms, Inc., 829 F.Supp. 665 (S.D.N.Y.1993). On the second appeal, we affirmed the Union's liability for breach of its duty of fair representation but remanded for a finding as to whether Tuscan breached the seniority provision of the MIA or was entitled to rely on Whelan's apparent authority to modify the seniority provision. Lewis v. Tuscan Dairy Farms, Inc., 25 F.3d 1138 (2d Cir.1994). We also asked the district court, if it found that Tuscan had breached its obligations, either: (i) to apportion the liability between Tuscan and the Union based either on fault, according to the damage done by each party, or (ii) to hold the parties jointly and severally liable, if the court found that the Union and Tuscan participated in each other's breach. Id. at 1145-46.

The district court thereafter found that Tuscan did not reasonably rely on Whelan's authority to modify the seniority provision of the MIA. Lewis v. Tuscan Dairy Farms, Inc., 907 F.Supp. 740, 743-45 (S.D.N.Y.1995). It further found that Tuscan and the Union participated together in a "deceitful dance" to conceal their agreement not to dovetail seniority from union members. Id. at 742. Accordingly, the court held Tuscan and the Union jointly and severally liable for damages and attorney's fees. Id. at 746-47.

On this third appeal, Tuscan argues that the district court erred in not crediting Tuscan's reliance on Whelan's apparent authority to alter the MIA and consequently erred in its apportionment of damages and attorney's fees. We disagree.

Tuscan claims that the district court mistakenly considered events occurring after Whelan had agreed to modify the MIA in finding that Tuscan could not have reasonably relied on Whelan's apparent authority at the time of the alleged modification. We see no error in the district court's analysis. It reasoned that Tuscan's reliance could not have been in good faith because Tuscan and the Union actively concealed from union members the decision not to apply Rule IV C. The court logically viewed several events as demonstrating Tuscan's efforts to conceal: at a meeting that occurred on June 22, 1987, shortly after Tuscan's acquisition of Liberty Farms, two newly hired Tuscan executives (one of whom had been the owner of Liberty Farms) "actively misled [union members] about what was in store for them"; moreover, Tuscan never responded to its copy of a July 6, 1987 letter from plaintiffs' counsel to Whelan requesting enforcement of the seniority provision that showed plaintiffs' ignorance of any amendment to the MIA; nor did Tuscan ever reveal that an amendment to the MIA had been made in response to an August 6, 1987 letter from plaintiffs' counsel requesting enforcement of Rule IV C. Id. at 743, 744. While these events occurred after Whelan had informed Tuscan that it need not follow the seniority provision, they shed persuasive light on Tuscan's knowledge and intent at the time it claims to have been relying on Whelan's apparent authority. If Tuscan had in good faith relied on Whelan's authority to amend the MIA, it would not have perceived a need to actively conceal its agreement with Whelan.

Moreover, at trial, Tuscan argued an entirely different theory of why it did not have to apply the seniority provision; it claimed that the transaction with Liberty was a plant closing and not a merger, and therefore did not trigger Rule IV C. Tuscan did not claim that Whelan modified the MIA until ...