Shimman v. Frank

Decision Date01 October 1980
Docket NumberNos. 77-3338,s. 77-3338
Citation625 F.2d 80
Parties104 L.R.R.M. (BNA) 2440, 89 Lab.Cas. P 12,153 John C. SHIMMAN, Plaintiff-Appellee, Cross-Appellant, v. John FRANK et al., Defendants-Appellants, Cross-Appellees. to 77-3343.
CourtU.S. Court of Appeals — Sixth Circuit

C. Duane Callender, Neipp, Dorrell & Wingart, Toledo, Ohio, for Frank.

N. Victor Goodman, James F. DeLeone, Topper, Alloway, Goodman, DeLeone & Duffey, Stephen Lewis, Columbus, Ohio, for AFL-CIO.

Cary Rodman Cooper, Hayward, Cooper, Straub, Walinski, Cramer & Co., T. Scott Johnston, Toledo, Ohio, for plaintiff-appellee, cross-appellant.

Roy Daniel Chinnis, Wagoner, Steinberg, Chinnis & Smith, Holland, Ohio, for Grothaus.

Foster J. Fludine, Bertsch, Edelman & Fludine Co., Cleveland, Ohio, for Local No. 18.

Before ENGEL and KEITH, Circuit Judges and PECK, Senior Circuit Judge.

KEITH, Circuit Judge.

This case concerns an incident at a union meeting where a dissident union member was beaten. The victim of the beating sued a number of defendants, including the local union and the international union. The district court found every defendant liable and assessed damages totalling over $850,000. We find that all but one defendant is liable, but substantially reduce the damages award.


Local 18 of the International Union of Operating Engineers includes virtually the entire state of Ohio and a small portion of the state of Kentucky. Local 18 has over 16,000 members who operate various types of construction equipment such as bulldozers and cranes. The local union is divided into six districts.

This case concerns events which occurred in District Two of Local 18. District two encompasses fifteen counties in northwest Ohio. Its headquarters is in Toledo. Since October of 1968, the appointed district representative who runs District Two has been John Frank. 1 Mr. Frank's leadership was strongly opposed by a group of dissidents led by four brothers John, Ervin, Walter and William Shimman. Mr. Frank was not the first union official opposed by the dissidents. The Shimmans were long-time union members who had a history of opposing the incumbent leadership. The dissidents claimed that the local union leaders behaved dictatorially. They thought that the membership needed protection from arbitrary behavior by union leaders, particularly district representatives. 2

The dissidents tangled often with the established leadership. In 1959, John Shimman filed suit under § 101 of the then recently passed Landrum-Griffin Act. 3 He claimed that the local union had arbitrarily refused to hold union meetings and that the local union leadership was conducting union affairs without regard for the wishes of the membership. After the suit was filed, the union resumed conducting open meetings. The case was eventually dismissed as moot.

Throughout the 1960's and early 1970's, various dissidents ran for union office. At different times, John, Walter and Ervin Shimman ran for and served on the Executive Board of Local 18. 4 Dissidents enjoyed some success in elections where only District Two members voted. Dissidents enjoyed no success in state-wide elections where all of Local 18's membership voted. The reason for this was that most dissident activities were centered in District Two, where the Shimmans lived and had support. Not surprisingly, the dissidents' chief antagonist was the man who was in charge of District Two, John Frank. Frank presided at district union meetings, oversaw the union's job referral system and otherwise conducted local union business at the district level. Frank's formal title was district representative. He was appointed, not elected.

Statewide, Local 18's chief executive officer is the Business Manager. The business manager's job is to direct and conduct all of the business of Local 18. 5 Among other duties, the Business Manager appoints district representatives like John Frank. 6 John Possehl is the Business Manager of Local 18. He, more than anyone else, ran Local 18.

In the 1971 local union election, William Shimman ran against John Possehl for the position of Business Manager. Dissident Glenn Oberle ran against John Frank for Vice-President. Both lost the election on a statewide basis, but did very well within District Two.

Union elections were also held in the summer of 1972. Again, dissident Glenn Oberle ran against John Frank for Vice-President. Again Oberle lost, although he gained more votes than Frank did within district two. William Shimman also ran against John Possehl for Business Manager, but again lost. However, Walter Shimman and fellow dissident Raymond Rojek were elected to serve as two of the District's three representatives on Local 18's executive board. 7 James Grothaus, a supporter of John Frank, was defeated.

The above background facts are undisputed. Most of the facts surrounding the event which led to this suit are also undisputed. District Representative John Frank was conducting a regularly scheduled District Two union meeting in Toledo, Ohio on September 11, 1972. Dissident union member Ervin Shimman was sitting in his seat taking notes. James Grothaus, a union member who supported the incumbent leadership, reached over Ervin Shimman's shoulder and snatched the notes. Grothaus darted away to his seat with the notes. Just as Grothaus was sitting down, John Shimman, Ervin's brother, reached over Grothaus' shoulder in an effort to retrieve the notes. Grothaus turned and knocked John Shimman to the ground. John Shimman was then surrounded by bystanders. Terry Grothaus, the son of James Grothaus, kicked John Shimman in the head several times before being pulled away.

John Shimman then filed the instant suit. He claimed that the beating he received was administered because of his dissident activities. He asserted that the beating violated his rights under § 101 of the Landrum-Griffin Act. 8 In addition, he added a pendant claim under Ohio state law for assault and battery and a claim alleging a violation of 42 U.S.C. § 1985(3) and § 1986 because of a conspiracy to violate his civil rights. 9 The district court dismissed the civil rights claim, but upheld liability under the Landrum-Griffin and assault and battery claim. 10

The District Court's Findings of Fact and Conclusions of Law

The district court ruled for the plaintiff in all significant respects. The court concluded that the beating had the purpose and effect of intimidating the dissidents. The court held that the beating had the obvious result of infringing on plaintiff John Shimman's rights, protected under § 101 of the Landrum-Griffin Act. Further, the court concluded that the beating constituted an assault and battery under state law.

The court found that James and Terry Grothaus were active participants in the beating. They were assessed $75,000 and $25,000 punitive damages respectively. The court also found that John Frank had instigated and conspired to arrange the beating. He was assessed $75,000 in punitive damages. The court further found that Local 18 Business Manager John Possehl had sent Frank to suppress the dissidents. Accordingly, the court found Local 18 vicariously liable and assessed punitive damages at $250,000. On an identical theory, the court found the International Union liable and assessed $250,000 punitive damages against it. In addition, all defendants were held jointly and severally liable for $107,067.99 compensatory damages and $75,000 attorneys' fees.

The court's key findings regarding the beating were as follows:

Although there was much evidence that the defendant John Frank had used his powers as business manager to keep himself in office by punishing those opposed to him, apparently the defeat of James Grothaus and the election of Raymond Rojek and Walter Shimman in 197(2) was more than usually galling to him. The evidence establishes quite clearly that this was because he had been appointed Business Manager of District 2 for the purpose of ending the division among the membership by eliminating the leaders of the dissidents, and was failing to do so. Some of the dissidents had scored against the defendant Frank and Local 18 before the National Labor Relations Board, and against James Grothaus in an assault and battery case.

The evidence establishes beyond any doubt that at a meeting early in September, 1972, the defendant Frank stated that Raymond Rojek needed a fist in his mouth, but that the blood should flow in the streets and not in the Union Hall. Thus the stage was set for the events which occurred at the general membership meeting of District 2 that was held on September 11, 1972.

Most of the evidence at the trial was concerned with the events of the September 11, 1972 meeting. While the evidence was not without conflict as to details, those conflicts were of the kind which always occur when a number of different witnesses are describing the same occurrence. Absence of such conflicts normally indicates a fabricated story.

The principal actors in the meeting that night were the plaintiff, his brother, Ervin, and the individual defendants John Frank, James Grothaus, and his son, Terry Grothaus. The presence of the two Grothauses strengthens the conclusion that drastic means were to be resorted to in order to break the growing power of the dissident members. Neither of them had been working as an operating engineer for a long time. James Grothaus had gone into business for himself the previous December. (He was still so engaged at the time of trial, and had not worked as an operating engineer since December, 1971.) Terry Grothaus had been severely wounded while a member of the United States Marine Corps in Viet Nam. As a consequence, he was on sick leave from his employment as a factory worker at Champion Spark Plug, where he had been employed since August, 1971. His last work as an operating engineer had been for a brief period...

To continue reading

Request your trial
91 cases
  • Shimman v. International Union of Operating Engineers, Local 18
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • October 1, 1984
    ...not reach Shimman's cross-appeal of that dismissal because recovery on those counts would have been duplicative. See Shimman v. Frank, 625 F.2d 80, 86 n. 10 (6th Cir.1980). Shimman now argues that he has nonetheless prevailed in an "action or proceeding to enforce" sections 1985 and 1986, a......
  • Quinn v. DiGiulian, 83-2065
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 13, 1984
    ...607 F.2d 705, 708 & n. 4 (6th Cir.1979), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982), and Shimman v. Frank, 625 F.2d 80, 101 & n. 42 (6th Cir.1980), the Sixth Circuit sharply questioned the soundness of its own holding in McCraw, particularly in light of the Supreme Co......
    • United States
    • U.S. District Court — Southern District of Ohio
    • November 26, 1984
    ...Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 392, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982); Shimman v. Frank, 625 F.2d 80, 94 (6th Cir.1980); Brown v. International Union, United Automobile Workers, 512 F.Supp. 1337 (W.D.Mich. 1981), aff'd, 689 F.2d 69 (6th Cir.1......
  • Dade County Police Benev. Ass'n v. City of Homestead
    • United States
    • Florida District Court of Appeals
    • January 3, 1984
    ...within which the agent acted. (Citation omitted.) City of Homestead at 723 (quoting Sunset Line & Twine Co. ). PERC cited Shimman v. Frank, 625 F.2d 80 (6th Cir.1980), and Barton Brands, Ltd. v. NLRB, 529 F.2d 793 (7th Cir.1976), as further examples of federal court approval of the Sunset L......
  • Request a trial to view additional results
2 books & journal articles
  • Expert Witnesses
    • United States
    • James Publishing Practical Law Books Litigating Employment Discrimination Cases. Volume 1-2 Volume 2 - Practice
    • May 1, 2023
    ...disability, ignoring “time-honored legal principle” that a wrongdoer takes a victim as the wrongdoer finds the victim); Shimman v. Frank , 625 F.2d 80, 100 (6th Cir. 1980) (defendant liable for plaintiff’s psychological injury where the “personality structure” of plaintiff, who was victim o......
  • Precluding Government Relitigation of Statutory Interpretations: Clark-cowlitz Joint Operating Agency v. Federal Energy Regulatory Commission
    • United States
    • Seattle University School of Law Seattle University Law Review No. 10-02, January 1987
    • Invalid date
    ...F. Supp. 455 (N.D.N.Y. 1980) (de minimus amount of claim in first action meant little incentive to litigate vigorously); Shimman v. Frank, 625 F.2d 80 (6th Cir. 1980) (differences in burden of proof in first and second action make issues different); Haung Tang v. Aetna Life Ins. Co., 523 F.......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT