Reilly v. Local 589, Amalgamated Transit Union

• Decision Date: 09 December 1991
• Docket Number: 90-P-366,Nos. 89-P-713,s. 89-P-713
• Citation: 31 Mass.App.Ct. 633,582 N.E.2d 554
• Parties: William S. REILLY v. LOCAL 589, AMALGAMATED TRANSIT UNION et al. 1 (and a companion case 2 ).
• Court: Appeals Court of Massachusetts

Page 554

582 N.E.2d 554

31 Mass.App.Ct. 633

William S. REILLY

v.

LOCAL 589, AMALGAMATED TRANSIT UNION et al. ¹ (and a companion case ²).

Nos. 89-P-713, 90-P-366.

Appeals Court of Massachusetts Suffolk.

Argued April 11, 1991.

Decided Dec. 9, 1991.

Edward B. Ginn, Boston, for William S. Reilly.

Harrison A. Fitch, Boston, Phinorice J. Boldin, Roxbury, with him, for Mass. Bay Transp. Authority.

Before WARNER, C.J., and DREBEN and IRELAND, JJ.

IRELAND, Judge.

This is an appeal by the plaintiff, William S. Reilly, from an award of damages by a Superior Court judge acting after this court held that damages may be apportioned between an employer and a union where the employer wrongfully discharged an employee and the union violated its duty to fairly represent him. See Reilly v. Local 589, Amalgamated Transit Union, 22 Mass.App.Ct. 558, 495 N.E.2d 856 (1986) (hereinafter Reilly I ). In his appeal, Reilly claims that the judge erred in (1) assessing damages against the union; (2) basing the apportionment in part upon a hypothetical date; (3) excluding testimony offered by Reilly; (4) upholding the arbitrator's award excluding preaward interest; and (5) assessing contributions to the retirement fund. We affirm.

The facts pertaining to this dispute are set out in full in Reilly I. We therefore summarize only the facts relevant to this appeal. On January 12, 1972, Reilly, then an employee of the Massachusetts Bay Transportation Authority (MBTA) and a member of the Boston Carmen's Union, Division 589, the Amalgamated Transit Union (union), was suspended for five days and demoted from motorman to collector for allegedly violating certain rules of employee conduct. Thereafter, instead of returning to work, Reilly took sick leave. On September 7, 1972, by letter, the MBTA requested that Reilly report to the MBTA's doctor for a physical examination to determine if he was qualified "to return to work as a [c]ollector." Reilly failed to do so and, on September 26, the MBTA's general manager notified him by certified letter that he was discharged from employment.

Reilly's Equity Case

Reilly filed a grievance based on his suspension, demotion, and discharge. When the union refused to submit his claim to arbitration, Reilly brought an action in the Superior Court to: (1) compel the union and MBTA to arbitrate; (2) recover damages from the union for breach of its duty of fair representation; and (3) recover damages from the MBTA for wrongful discharge.

On June 22, 1979, Reilly and the union signed: (1) a "Release and Indemnity Agreement," whereby Reilly agreed to indemnify the union for liability resulting from Reilly's complaint; and (2) a "Stipulation and Agreement for Judgment" that Reilly had effectively demanded arbitration and that Reilly's grievances "were not processed to arbitration for reasons other than the merits of his cases." Pursuant to the stipulation, on August 3, 1979, a Superior Court judge entered findings, order and judgment as to the union and directed the union to arbitrate Reilly's grievances if the MBTA were subsequently ordered by the court to arbitrate.

On March 12, 1980, the second day of Reilly's Superior Court trial, the trial judge ordered the MBTA and the union to arbitration and stayed Reilly's equity case pending the final arbitration award. Thereafter, an arbitrator found there was "not sufficient cause" for Reilly's suspension, demotion and discharge and reduced Reilly's discharge to a two-day suspension. On January 14, 1981, the arbitrator ordered that Reilly be "made whole for all benefits lost" due to his suspension, demotion, and discharge, "including back pay, less the two-day suspension and less interim, outside earnings and other appropriate deductions." Despite the MBTA's urgings, the arbitrator found it was beyond his authority "to render a determination on the question of apportionment of damages."

On March 20, 1981, a Superior Court judge confirmed the arbitrator's award and returned the case for assessment of "damages due [Reilly] without respect to the question of apportionment." On September 27, 1982, the arbitrator awarded and, on January 31, 1985, a judgment was entered ordering the MBTA to pay Reilly $189,278.67 with interest from December 20, 1982, and costs.

The MBTA's Civil Action

On May 8, 1981, based on the union's wrongful refusal to pursue Reilly's grievances, the MBTA filed an action against the union seeking indemnity or contribution for all or part of any judgment for Reilly. The union answered on July 2, 1981, and, on March 7, 1984, brought a third-party action against Reilly to enforce the June 22, 1979, release and indemnity agreement. A Superior Court judge ruled that under the release and indemnity agreement, amounts the union owed the MBTA should be deducted from Reilly's recovery. Unsure whether Massachusetts law permitted apportionment of damages between the MBTA and the union, the judge reported that issue to this court.

In Reilly I, we upheld the propriety of apportionment of damages between an employer and a union under Massachusetts law. Id. at 580, 495 N.E.2d 856. However, as there was insufficient evidence to determine whether Reilly's damage award should be apportioned between the MBTA and the union, we remanded the MBTA's civil action and directed the judge to apply the principles of Bowen v. United States Postal Serv., 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983) (hereinafter Bowen ), in assessing damages (if any) against the union. Reilly I, 22 Mass.App.Ct. at 580, 495 N.E.2d 856. We also remanded Reilly's equity case to the Superior Court with leave to vacate the judgment to provide for Reilly's indemnification of the union (under the release and indemnity agreement) and to consolidate that case with the MBTA's action, if appropriate. Ibid. ³

On August 10, 1987, the two remanded actions were consolidated for trial. At trial, the MBTA offered evidence of five other arbitration proceedings between the union and the MBTA. Based on the average length of those prior proceedings, the MBTA argued that, had the union pursued Reilly's grievances in a timely manner, the probable length of his arbitration would have been ten months. The union's deadline to request arbitration of Reilly's grievance under the collective bargaining agreement was February 26, 1973 (sixty days after the MBTA denied Reilly's grievance). The MBTA asserted that had the union requested arbitration by February 26, an award would have issued by December 31, 1973, ten months thereafter. Therefore, the MBTA argued, the union was responsible for Reilly's damages from December 31, 1973, to January 14, 1981, when the arbitration award actually issued. Reilly contested use of a hypothetical award date, arguing that twenty-eight months, "the actual length of arbitration" (i.e., October 31, 1978 [union notified MBTA of its wrongful failure to pursue Reilly's grievance] to March 20, 1981 [award confirmed] ), should determine the MBTA's liability.

The trial judge agreed with the MBTA and set a hypothetical arbitration award date of December 31, 1973. The judge concluded that: (1) the MBTA was liable for any damages suffered by Reilly from January 12, 1972 (the date of Reilly's suspension) through December 31, 1973; (2) the union was liable from January 1, 1974, through October 31, 1978 (when the union notified the MBTA of its error in failing to pursue Reilly's grievance to arbitration); (3) the MBTA and the union were equally liable from November 1, 1978, through July 31, 1979 (the date of the stipulation for judgment in the equity case); (4) the MBTA was liable from August 1, 1979, through March 31, 1981 (when the arbitration award was confirmed); and (5) the union was entitled to indemnity under the release and indemnity agreement. ⁴

Discussion

1. Apportionment of damages. In Reilly I, supra at 580, 495 N.E.2d 856, we ordered the trial judge to apply the principles of Bowen to apportioning Reilly's damages. In Bowen, the Supreme Court held that a union could be held liable for back pay if the union's breach of its duty of fair representation increased the employee's loss beyond that caused by the employer's wrongful discharge. Id. 459 U.S. at 230, 103 S.Ct. at 598-99.

On appeal, Reilly argues certain equitable principles preclude any assessment of damages against the union in this case. Although the judge addressed none of those principles specifically, we conclude from the entry of judgment allocating some damages against the union that the judge found Reilly's equitable arguments to be without merit. Fales v. Glass, 9 Mass.App.Ct. 570, 575, 402 N.E.2d 1100 (1980). We agree.

Reilly first argues allocation against the union is barred by laches due to the MBTA's lengthy failure (from at least 1973, when Reilly filed his equity case, to 1981) to seek contribution or indemnification. ⁵ While the MBTA's delay in asserting its contribution claim was considerable, see, e.g., Myers v. Salin, 13 Mass.App.Ct. 127, 139, 431 N.E.2d 233 (1982) (laches established on delay of two years); Stokes v Commissioner of Correction, 26 Mass.App.Ct. 585, 590, 530 N.E.2d 801 (1988) (three years); and Chiuccariello v. Building Commr. of Boston, 29 Mass.App.Ct. 482, 487-489, 562 N.E.2d 96 (1990) (six months), in order to establish laches, Reilly was also required to demonstrate that he relied on that substantial delay to his detriment. Kenney v. Commissioner of Correction, 399 Mass. 137, 140, 502 N.E.2d 1385 (1987). Matter of Kerlinsky, 406 Mass. 67, 75-76, 546 N.E.2d 150 (1989). Myers, supra 13 Mass.App.Ct. at 137-138, 431 N.E.2d 233. This he did not do. While in an affidavit in support of summary judgment based on laches, Reilly averred that had the MBTA "asserted any claim whatsoever alleging apportionment, contribution or indemnity against the Union before June 22, 1979, [he] certainly would not have entered into the Release and Indemnity Agreement," at trial he testified he...