practice of putting important contract amendments to the test of a vote.
Beyond issues presented by the terms of the Agreement and the requirements of the union's by-laws and constitution is the stark fact of Tuscan's own participation in Whelan's deception of his members. Here, it is necessary to address and undo the confusion I caused in this case with apparently contradictory findings in two unpublished opinions in August 1991 and September 1992, reported at No. 87 Civ. 7607, 1991 WL 156689 (S.D.N.Y. Aug. 8, 1991) and No. 87 Civ. 7607, 1992 WL 226927 (S.D.N.Y. Sept. 3, 1992), respectively. In the former, I found Tuscan and the union jointly and severally liable to plaintiffs for damages because "the breaches by the parties were mutually dependent and agreed upon." 1991 WL 156689 at *1. In the latter, when assessing fees and costs solely against the union, I stated that "Tuscan did not participate in the union's breach of the duty of fair representation." 1992 WL 226927 at *1. Although these opinions were written to treat issues of damage and attorney fee allocation, Tuscan has cited the quoted portion of the second, and a later opinion granting reargument but adhering to the second, No. 87 Civ. 7607, 1992 WL 346355 (S.D.N.Y. Nov. 18, 1992), as a fact finding that controls the liability issues on remand. That finding, Tuscan argues, is the law of this case.
The statement in the August 1991 opinion that the breaches were "mutually dependent and agreed upon" was correct but did not go far enough. The quoted segments from the September 1992 opinion on which Tuscan relies were part of a discussion concluding that in hybrid § 301 cases where an employee alleges that his employer breached the contract and his union breached its duty of fair representation, fees are recoverable against the union by statute, but against the employer only by contract absent proof that the employer participated in the union's breach of its fair representation duty. The statement that Tuscan did not participate in the union's breach of the duty of fair representation was meant to convey only a truism, and all that seemed at the time to be relevant: that because Tuscan itself did not owe such a duty, and was not directly involved in performing the duty, Tuscan could not itself have breached the duty. Plaintiffs did not argue then, as they have now, the implications of the parties' joint conduct and that there was evidence of Tuscan's own deception that complemented Whelan's. Regrettably, I did not focus mea sponte on that evidence. Better late than never. To the extent the law of the case doctrine exists in federal court, it sets a prudential and not a mandatory rule, Higgins v. California Prune & Apricot Grower, Inc., 3 F.2d 896, 898 (2d Cir. 1924) (L. Hand, J.) ("the 'law of the case' doctrine does not rigidly bind a court to its former decisions"), and does not prevent a court from correcting its own mistakes.
On the facts present here, it is apparent that beginning at least in June 1987 Tuscan participated in Whelan's duplicity, and thus could not have relied in good faith on Whelan's apparent authority to secure a waiver of Rule IV C. Bennett v. Local Union No. 66, Glass Workers Int'l Union, 958 F.2d 1429, 1435 (7th Cir. 1992) (refusing to uphold secret contract modification that sacrificed rights of particular employees); Merk v. Jewel Food Stores, 945 F.2d 889, 893-96 (7th Cir. 1991), cert. denied, 504 U.S. 914, 118 L. Ed. 2d 555, 112 S. Ct. 1951 (1992) (same).
Whelan had no authority, apparent or otherwise, to mislead his members. Tuscan was aware beginning at least in June 1987 that he had done so, and at the very least fell in line with that strategy. When Tuscan refused to honor Rule IV C, it breached the contract.
The usual rule in hybrid Section 301 cases where the union has breached its fair representation duty and the employer has breached the collective bargaining agreement is that damages are apportioned, Bowen v. United States Postal Serv., 459 U.S. 212, 230, 74 L. Ed. 2d 402, 103 S. Ct. 588 (1983); Vaca v. Sipes, 386 U.S. 171, 197, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967), such that the employer may be required to pay damages caused until the time an arbitrator would have cured the breach, and the union may be required to pay damages accruing thereafter. Alternatively, a court may allocate responsibility for damages based on proportionate fault. See Aguinaga v. United Food & Comm. Workers Int'l Union, 993 F.2d 1463, 1474-76 (10th Cir. 1993), cert. denied, 127 L. Ed. 2d 75, 114 S. Ct. 880 (1994). However, when the parties participate in one another's breaches the rationale for apportionment is not present. Baskin v. Hawley, 807 F.2d 1120, 1132-33 (2d Cir. 1986), and cases cited therein. That is what happened here. Tuscan sought the union's agreement to breach the duty of fair representation by not enforcing the plaintiffs' seniority rights, and the union, through Whelan, gave that agreement so that Tuscan could breach its contractual obligation to honor those rights. "In such circumstances, it is no longer 'unjust' to hold either party accountable for the entire period of injury." Bennett, 958 F.2d at 1440-41.
The same reasoning applies to attorney fees. The September 1992 opinion herein, 1992 WL 226927 at *1-2, relied on Ames v. Westinghouse Elec. Corp., 864 F.2d 289 (3d Cir. 1988), a case in which there was no claim that the employer had participated in the union's breach of its duty of fair representation, id. at 293, as authority that justified allocating responsibility for plaintiffs' attorney fees only to the union, and justified also awarding only those fees incurred for pursuing plaintiffs' claims against Tuscan. It appeared at the time that in this case, as in Ames, there was no claim of employer participation in the union's breach of its duty of fair representation. However, it appears now that there is such a claim, and that it has merit for the reasons discussed above. Accordingly, this is a case for imposing joint and several responsibility for all attorney fees. Bennett, 958 F.2d at 1440.
For the reasons set forth above, Tuscan is found to have breached the collective bargaining agreement, and Tuscan and the union will be jointly and severally liable for plaintiffs' damages and attorney fees.
Michael B. Mukasey,
U.S. District Judge
Dated: New York, New York
December 15, 1995