Seymour v. Olin Corp., AFL-CIO-CL

• Decision Date: 22 January 1982
• Docket Number: No. 80-5227,L,AFL-CIO-CL,80-5227
• Citation: 666 F.2d 202
• Parties: 109 L.R.R.M. (BNA) 2728, 93 Lab.Cas. P 13,247 John D. SEYMOUR, Plaintiff-Appellee, v. OLIN CORPORATION, A Virginia Corp., and United Steelworkers of America,ocal 8018, Defendants-Appellants. . Unit B *
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 202

666 F.2d 202

109 L.R.R.M. (BNA) 2728, 93 Lab.Cas. P 13,247

John D. SEYMOUR, Plaintiff-Appellee, v. OLIN CORPORATION, A Virginia Corp., and United Steelworkers of America, AFL-CIO-CLC, Local 8018, Defendants-Appellants.

No. 80-5227.

United States Court of Appeals Fifth Circuit.

Unit B ^*

Jan. 22, 1982.

Ian P. Spier, Asst. Labor Counsel, Stamford, Conn., Holland & Knight, Harry O. Thomas, Tallahassee, Fla., John C. Falkenberry, Birmingham, Ala., Wilfred C. Varn, Tallahassee, Fla., for defendants-appellants.

Bredhoff, Gottesman, Cohen, Chanin, Weinberg & Petramalo, Michael Gottesman, Washington, D.C., Daniel S. Dearing, Tallahassee, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Florida.

Before JONES, TJOFLAT and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

The plaintiff-appellee, John D. Seymour, filed this action in the district court under § 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185 (West 1978), against defendants-appellants, Olin Corporation (Olin) and United Steelworkers of America, AFL-CIO-CLC, Local 8018 (Union). Seymour alleged that Olin, his former employer, had discharged him without just cause in violation of the collective bargaining agreement between Olin and the Union, and that the Union did not satisfy its duty of fair representation. Seymour also claimed that Olin had defamed him, but the trial judge entered a directed verdict for Olin on this count. A jury returned a verdict in Seymour's favor on both the wrongful discharge and the breach of fair representation counts, and the jury set damages against Olin at $139,177.02. The trial judge, having determined that the measure of damages against the Union would be the amount of fees which would reasonably be due to Seymour's attorney, held a hearing on the subject of attorney's fees and found the Union to be liable for $39,368.75.

In this appeal, defendants argue that the trial court committed reversible error in several respects. First, both defendants claim that the court erred by failing to direct a verdict against Seymour since there was no evidence which would support a jury verdict that the Union had breached its duty of fair representation. ¹ Second, Olin argues that the trial court committed error by refusing to allow counsel for Olin to argue to the jury that Seymour had failed to prove his allegations of defamation and that the court had directed a verdict in Olin's favor with respect to that cause of action. Third, Olin argues that the trial court should not have awarded prospective damages against Olin, but at most should have ordered that Seymour be reinstated. Fourth, Olin claims that the trial court incorrectly apportioned damages between Olin and the Union. Fifth, the Union advances the argument that the attorney's fee award against it was excessive as a matter of law. Finally, both defendants raise challenges to the specific wording of certain jury instructions. After a review of the record and the law pertaining to this case, we reject each of these arguments and affirm the judgment of the district court.

I. FACTS.

John Seymour was hired by Olin Corporation to work as an electrician in its St. Marks, Florida, plant in September 1976. Seymour had previously been employed by several other companies as an electrician, and, for a time, he had been self-employed. In August 1977, Seymour approached Mr. J. N. Knowles, an electrical subcontractor working at the St. Marks plant, offering to sell some electrical wire to Knowles. Seymour had apparently done business with Knowles when Seymour was self-employed. At trial Seymour testified that he had obtained the wire from his brother and that he had stored the wire in the carport at his home. Knowles, however, reported to Olin officials that Seymour had offered to sell him wire that belonged to Olin. After discussing the matter, Olin officials told Knowles to purchase the wire from Seymour. In September 1977, Knowles took possession of the wire, agreeing that Seymour would be paid at a later date.

Olin officials and Knowles devised a plan to apprehend Seymour if he attempted to receive payment for the allegedly stolen wire. In the morning of Wednesday, October 5, 1977, Knowles delivered Seymour a check for $80, half of the market value of the wire. When Seymour took the check, Knowles signaled to the plant protection supervisor, Mr. Alan Harvey, by removing his hard hat. Harvey then confronted Seymour, stating, "I know about your wire deal, let's go to Personnel."

Harvey then took Seymour to the plant personnel manager, Mr. Michael Mangiere. Mr. Mangiere asked if Seymour would like to have a union representative present, but Seymour declined the offer. With other company officials present, including Mr. Buster Mathis, the superintendent of Seymour's department, Mangiere informed Seymour that he was accused of stealing company property. A discussion ensued, and it is Seymour's testimony that Mangiere threatened to "make things muddy" for Seymour if Seymour decided to cause any trouble. At trial, Mangiere denied threatening Seymour. Mangiere testified that he told Seymour that he could turn the matter over to the sheriff, but would not under the circumstances. At the close of this meeting, Mangiere terminated Seymour for violating Company Rule 5, which rule provides that an employee may be subject to immediate discharge for theft of company property. Article II, Section 8 of the collective bargaining agreement between Olin and the United Steelworkers of America, Local 8018, allows Olin to discharge employees for cause.

Shortly after being terminated, Seymour, a member of the Steelworkers Local 8018, telephoned Mr. Terry Faircloth, president of the local union, to inform Faircloth of the termination. Faircloth told Seymour that he would investigate the matter. Although the chronology of the following events is not completely clear from the record, it appears that Faircloth discussed the matter with Mangiere, met with Seymour at a convenience store near the plant, and then conducted further interviews and inspected the wire in question.

At the suggestion of his wife sometime that day, Seymour drove to Tallahassee and retained Daniel Dearing as counsel. Seymour and his attorney discussed the termination, and Dearing suggested that he should send a letter to Olin on Seymour's behalf urging that Olin had made a mistake in firing Seymour. This letter was sent the following day, Thursday, October 6, 1977, and Olin received it on Friday, October 7.

Later on October 5, the day of the discharge, Seymour and Faircloth met in the parking lot of the plant. According to the testimony of Seymour, Faircloth was willing to press Seymour's grievance under the procedure outlined in Article 8 of the collective bargaining agreement. However, when Faircloth learned during the course of the meeting that Seymour had retained a lawyer, Faircloth stated, according to Seymour, "(W)e can't help you ... because a lawyer cannot sit in on any of our union business.... Now, if you get rid of your lawyer, fire your lawyer, we will take the case." (R. vol. IV at 75). Seymour responded that he would not fire his lawyer. Faircloth met with Seymour again the next day, Thursday, October 6, and essentially repeated the same statement, and he asked Seymour whether Seymour wanted to pursue the matter with his lawyer or with the union. Seymour's response is unclear from his testimony. On Friday, October 7, Faircloth obtained a grievance handbook and union constitution from the union hall and gave them to Seymour.

The following Monday, October 10, the union grievance chairman, Wayne McKenzie, visited Seymour at his home. Under the grievance procedure outlined by the collective bargaining agreement, Monday was the final day on which Seymour could file a grievance. However, as a matter of shop practice, Olin did not insist upon strict adherence to the first two "steps" of the grievance procedure which contained the initial three day time limit. (Record, vol. V at 163). McKenzie told Seymour that under a union rule, there was nothing that the Union could do for him unless he got rid of his lawyer, and that if he was going to do so he had better hurry up, since his time to file a grievance was running out. No grievance was ever filed with the company. Seymour then initiated the suit against Olin and the Union which forms the subject matter of this appeal.

II. DUTY OF FAIR REPRESENTATION.

Both appellants argue that, as a matter of law, a reasonable jury could not have found that the Union breached its duty of fair representation. They note that even taken in the light most favorable to Seymour, the evidence adduced at trial does not support a finding that the Union acted arbitrarily in failing to press a grievance for Seymour. Therefore, the Union and Olin seek reversal of the district court's refusal to direct a verdict in their favor.

The argument of appellants is best summarized in the approach taken by the Union at oral argument and in their post-argument submission to this court. The Union argues that what it characterizes as Seymour's theory of recovery in this case-that the Union officials conditioned their representation of Seymour upon Seymour's firing his attorney whom he had retained to advise him with respect to potential criminal proceedings-is not supported by the facts of this case, because the record shows that Seymour retained his attorney solely to get his job back. The Union contends that the actions of Union officials were within the scope of the Union's right, under the National Labor Relations Act and the collective bargaining agreement, to act as the exclusive representative of employees in the grievance proceedings. As exclusive representative, the Union argues that it could properly require Seymour to choose between union representation and separate pursuit of the grievance through...