Opinion
No. CV-01-0508213
October 28, 2004
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT
Plaintiff, Paul Zarella (Zarella) sued the defendant, Local 1303-26 of Council 4, AFSCME, AFL-CIO (Union) alleging a breach by the defendant union of its duty of fair representation of him. The case proceeded to a jury trial, with the undersigned presiding. At the close of Zarella's case, Union moved for a directed verdict, claiming that the jury could not reasonably and legally reach any other conclusion but a defendant's verdict. Specifically, the defendant claimed that there was insufficient evidence to allow a reasonable person to find either that Union had breached its duty or that such breach proximately caused damage to Zarella. The court declined to grant the motion at that time, electing to submit it to the jury.
Other defendants and claims were disposed of prior to the jury trial.
The jury returned a verdict for Zarella of $5,000. Union timely moved to set aside that verdict, raising the same issues as in its motion for directed verdict and adding a claim that the charge of law was erroneous. Pursuant to Practice Book Section 16-37, Union seeks to have the plaintiff's verdict set aside and a defendant's judgment enter.
Viewing the evidence most favorably to the plaintiff, the jury could have found the following facts.
Zarella, an employee of the town of Southington (Town) since 1981, was in the town Highway Department and a member of the defendant, the collective bargaining agent. Zarella had received warnings from Town about attendance and timeliness problems. In 1996, Zarella was suspended twice without pay for such problems. Union grieved each suspension on Zarella's behalf.
After his second suspension in 1996, Zarella failed to report for work on the first day after his suspension ended and was terminated. Union again grieved on Zarella's behalf and in late August, Town, Zarella and Union entered into what was characterized as a "Last Chance Agreement" for Zarella, with Zarella being reinstated. On December 11, 1996, Zarella was terminated again for failing to report for work. Union successfully negotiated a "Revised Last Chance Agreement" that restored Zarella's job by December 19, 1996.
By that date, Town had twice issued notices requiring members of Zarella's department to work Saturday overtime on leaf collection, including on December 21, 1996. On November 4, 1996 Union filed a municipal prohibited practices complaint (MPP) with the State Board of Labor Relations (LR), claiming the required overtime was an unlawful unilateral change in working conditions, in violation of the Connecticut Municipal Employees Relations Act (MERA). Union instructed its members to comply with the overtime requirements while it challenged them. Zarella was aware of that.
On Friday, December 20, 1996, Zarella informed his foreman that he would not be present for work the next day because he was attending a party the night of the 20th. Zarella failed to report on the 21st and was terminated. Another employee, a Mr. Panella, who was also absent that day received a two-day unpaid suspension. Again the Union grieved on behalf of Zarella.
In all of these grievances, lost back pay and benefits (known collectively as "make whole" relief) was specifically requested.
On August, 18, 1997, after a hearing, the State Board of Mediation and Arbitration (MA) sustained Zarella's termination, detailing his attendance record and finding Zarella "demonstrated an irresponsible attitude and continued lack of remorse or improvement in his chronic absenteeism . . ."
The Union complaint about the imposition of overtime was not heard by LR until June 3, 1998. Although aware that Zarella had been discharged for not working on an overtime day, Union's attorney did not specifically ask for "make whole" relief for Zarella nor mention him by name. Union's attorney could have amended the MPP to do so. By decision of April 15, 1999 LR found Town in violation of MERA and ordered Town to rescind any employee discipline resulting from non-compliance with the Saturday overtime. Town took the position that only Panella was affected by the LR decision.
Union initiated a compliance proceeding before LR and submitted the matter on briefs and factual stipulations. The 1997 decision of MA was a submitted exhibit in the compliance proceeding before LR. Town's position was that Zarella had been terminated for violating the Revised Last Chance Agreement. Union again failed to specifically ask for lost back pay and benefits for Zarella and did not address the question of whether make whole relief for Zarella was consistent with the purposes of MERA.
On August 10, 2000 LR issued a decision ordering Zarella's reinstatement but denying him any back pay or lost benefits, ruling that "we do not order a make whole remedy both because the Union has not sought such a remedy and also because we do not find that the purposes and policies of the Act will be served by such an order." (Emphasis supplied.) Witness William Gagne, the Union's attorney before the LR, testified that he had received `make whole' relief for other claimants in other cases where a violation of MERA was found, but did not recall any cases before LR where an employee had been disciplined for refusing to follow an employer's order or lost his job because of an employer's unilateral action.
Zarella subsequently returned to work, after hearing from a town foreman that he was to be rehired. Zarella had not been kept informed by Union of the progress of the MPP claim, although it directly affected his prospects for re-employment by Town. He did not receive back pay or pension credits for the 3 1/2 years he had been away from Town employment. He had found other employment in the interim but with less benefits and different wages. The Union agent told Zarella that he was lucky to get his job back. At trial, Gagne was quick to volunteer that Zarella's work record was abysmal, although the pending question did not require that information. The jury could have concluded, based on that witness' demeanor at trial, that he was hostile to Mr. Zarella.
The standard to be used by a trial court in determining whether a jury verdict should be set aside as unsupported by the evidence is well known. "[I]t is not the function of this court to sit as the seventh juror . . . [but] rather, [to] determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable . . . In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it. . . ." (Citations omitted; internal quotation marks omitted.) Ormsby v. Frankel, 255 Conn. 670, 692 (2001). "Only under the most compelling circumstances may the court set aside a jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have issues of fact decided by a jury." Shea v. Paczowski, 11 Conn.App. 232, 234 (1987).
But "the trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence. The supervision which a judge has over the verdict is an essential part of the jury system . . . [he] should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality. The court has a duty to set aside the verdict where the jury's action is so unreasonable as to suggest that it was the product of such improper influences." (Citations omitted; internal quotation marks omitted.) Palomba v. Gray, 208 Conn. 21, 23 (1988).
The cause of action set forth by the plaintiff at trial was one of breach by the union of its duty of fair representation of Zarella by failing to request "make whole" relief in the proceedings before LR. Plaintiff claimed that he did not receive "make whole" relief from LR because of that failure. In this motion, Union attacks the adequacy of evidence on both the breach of duty and causation. Defendant also seeks to have the verdict set aside because the court declined to specifically charge the jury that Union's failure to appeal the second LR decision could not be considered as a basis for breach of Union's duty.
"A union must represent its members in good faith. This duty of fair representation derives from the union's status as the sole bargaining representative for its members. As such, the union has the exclusive right and obligation to act for its members and to represent their interests . . . The duty of fair representation requires the union to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion in complete good faith and honesty, and to avoid arbitrary conduct. A union breaches this duty if it acts arbitrarily, discriminatorily or in bad faith . . . [A] union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a wide range of reasonableness . . . as to be irrational. Furthermore, a union's actions are in bad faith if the union acts fraudulently or deceitfully or does not act to further the best interests of its members. (Citations omitted; internal quotation marks omitted) Labbe v. Hartford Pension Commission, 239 Conn. 168, 193-95 (1996).
A union's conduct may be deemed to be arbitrary if it acted in a perfunctory manner, with caprice or without rational explanation. Poole v. Budd Co., 706 F.2d 181, 183 (6th Cir. 1983). "To support a claim that the union acted in a perfunctory manner, there must be evidence that the union acted without concern or solicitude, or gave a claim only cursory attention." Curtis v. United Transportation Union, 700 F.2d 457, 458 (8th Cir. 1983). "[M]ere negligence or mistaken judgment is insufficient to establish a breach of the union's duty." Poole v. Budd Co., supra, at 183.
While the cumulative evidence was attenuated, it was sufficient for a reasonable person to conclude, if he or she chose to do so, that Union, acting through its representatives, breached its duty of fair representation of plaintiff. Specifically, the jury could have found from the evidence presented, especially the decision of the LR, that Union failed to request "make whole" relief for plaintiff in its complaints to the LR, or in its briefs to the LR. Union's failure to request "make whole" relief for the plaintiff in either proceeding before the LR, juxtaposed with Union's practice of consistently requesting such relief in grievances filed in the past, Union's complete failure to keep the plaintiff appraised of the progress of the proceedings before LR, although the compliance proceedings impacted only him, Union's submission of the compliance issue to LR on the papers and Gagne's trial demeanor, evincing a negative attitude toward plaintiff, support a jury conclusion that Union gave the matter only cursory attention and acted in such a perfunctory manner as to constitute arbitrary conduct. The factual line between negligent behavior and perfunctory behavior can be difficult to ascertain. In this case, the court cannot say that the jury's finding that Union breached its duty is against either the evidence or the law.
In addition to proving a breach of the duty of fair representation, the plaintiff must "also prove that there was a causal connection between the union's wrongful conduct and [his] injuries." (Citation omitted; internal quotation marks omitted.) White v. White Rose Food, 237 F.3d 174, 179 (2nd Cir. 2001). "This causal connection must be based upon more than conjecture and surmise." (Citation omitted) Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 25 (1999). This element the plaintiff failed to prove and, even interpreting the evidence in a light most favorable to plaintiff and allowing for reasonable inferences, a jury could not have reasonably found such casual connection proven, absent a mistake in application of the law.
Plaintiff's damages are related to his lack of "make whole" relief from the LR. The decision of the LR in the compliance proceeding is clear and unequivocal in stating that it denied "make whole" relief for two reasons. The failure of Union to request it was only one of those reasons. The second reason was that the purposes and policies of MERA would not be served by granting "make whole" relief. Plaintiff's response to this obvious difficulty in proof is to state that Union failed to argue why "make whole" relief would serve the purposes of the act, to point out that other claimants had received "make whole" relief in other unrelated MERA violation cases and to argue that Zarella would have received such if it had been requested. However, Gagne did not recall such relief being granted where the employee had refused an order or lost his job.
Part of the evidence before the LR, in reconciling the outcome of the grievance decision by the MB with the prior decision of the LR, was the MA's finding of Zarella's "irresponsible attitude and continued lack of remorse or improvement in his chronic absenteeism . . ." No fact finder could reasonably conclude, based on the evidence, that the plaintiff had proven a causal connection between the Union's breach of its duty of fair representation and the second ground of the LR's compliance decision. Only by resorting to speculation could one conclude that a Union argument for "make whole" relief would have persuaded the LR that granting such to Zarella would meet the purposes and policies of MERA.
Union has also moved to set aside the verdict, because the court declined to explicitly charge the jury that it could not consider Union's failure to appeal the LR compliance decision as a breach of the Union's duty of fair representation. In the charge, the court defined the plaintiff's claim of a breach of the Union's duty not in terms of what was not alleged, but rather in terms of what was alleged. Specifically, the court read the relevant allegations of the complaint to the jury, none of which contained an allegation of failure to appeal the LR decision. The court charged the jury that Zarella could not recover for something not alleged and that he was limited to the allegations of his complaint. In setting forth the elements which Zarella must prove to recover, the court specifically focused on, and directed the jury's attention to the question of whether Union had failed to request "make whole" relief from LR and whether such failure was a breach of the duty of fair representation. Special interrogatories number one and two did the same.
"When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. We do not critically dissect a jury instruction." (Citations omitted; internal quotation marks omitted) Ancheff v. Hartford Hospital, 260 Conn. 785, 811 (2002).
The jury charge in this case, read as a whole, appears to meet the above standard. The court declines to set the verdict aside on this ground.
For the reasons set forth above, the motion is granted, the plaintiff's verdict is set aside and judgment will enter for the defendant.
James T. Graham Superior Court Judge