Avery Allen BAXTER, Appellant, v. UNITED PAPERWORKERS INTERNATIONAL UNION, LOCAL 7370; United Paperworkers International Union; Whirlpool Corporation, Appellees.
No. 97-2022.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 7, 1998. Decided March 26, 1998.
140 F.3d 745
The United States argues that the District Court applied the wrong legal standard in evaluating defendant‘s motion for a new trial based on newly discovered evidence. The District Court did not specifically set forth the prerequisites which must be satisfied to grant such a motion. However, the District Court did cite United States v. Lisko, 747 F.2d 1234, 1237 (8th Cir.1984), which sets forth the five prerequisites for granting defendant‘s motion for a new trial. Although not explicitly stated, the District Court applied the appropriate test for evaluating defendant‘s motion for a new trial based on newly discovered evidence.
We held in Luna, supra, that evidence within the defendant‘s knowledge at the time of trial which could have been communicated to defense counsel could not later be classified as newly discovered evidence. 94 F.3d at 1161. In the present case, defendant obviously knew at the time of trial that Talley was in Delbra Heron‘s garage at the same time he was there. Defendant could have informed defense counsel, either before trial or during Delbra Heron‘s testimony at trial, that Talley was in the garage with him. If defendant had informed defense counsel of Talley‘s presence, defense counsel could have cross-examined Delbra Heron at trial to impeach her stated belief that defendant must have taken the cocaine from her garage. The District Court concluded the evidence given by Delbra Heron at the hearing on defendant‘s motion for new trial was discovered after trial. However, prior to the time of trial, defendant obviously was aware of Talley‘s presence with him in the garage, and therefore, this evidence was not newly discovered by defendant after his trial. The District Court clearly abused its discretion in concluding that evidence of Talley‘s presence in the garage was newly discovered.
III. CONCLUSION
For the reasons stated herein, we find that the District Court clearly abused its discretion in granting defendant‘s motion for a new trial based on newly discovered evidence.
We reverse and remand the case for sentencing.
Charles Karr, Fort Smith, AR, argued, for Appellant.
Shanthi V. Gaur, Chicago, IL, argued (Dana S. Connell and Robert L. Jones, III, on the brief), for Appellee.
Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
In May 1994, Baxter was acquitted on a criminal charge arising out of the alleged marijuana incident. Willard Crane Smith, who represented him in the criminal matter, requested subpoenas from the arbitrator for Baxter‘s December 1994 arbitration hearing, but neither Smith nor Baxter notified UPI of the subpoenas. When the hearing began, Robbins asked that Smith be excluded. The arbitrator, who was from Florida, denied the request, citing the Florida “Sunshine law“; he reserved ruling on whether he would permit Smith to present evidence after UPI and Whirlpool presented their cases. After Whirlpool‘s attorney and Robbins conferred outside the room, Whirlpool‘s attorney indicated that he and Robbins had “de-selected” the arbitrator and would choose another arbitrator in accordance with the CBA (under which the parties were to select the arbitrator), and the hearing ended.
UPI and Whirlpool chose another arbitrator, and the hearing was rescheduled for February 1995. UPI wrote to Baxter, encouraging him to participate in the hearing and notifying him UPI considered the arbitration to be between the parties to the CBA (i.e., UPI and Whirlpool) and intended to exclude Baxter‘s personal attorney from the arbitration hearing. No personal attorney appeared at the February hearing. Several months after the hearing, the arbitrator issued a decision finding Baxter gave one marijuana cigarette to the undercover agent, but decreasing Baxter‘s penalty from discharge to a suspension from the date of his discharge until the date of his reinstatement.
Baxter then brought this action, claiming unfair representation by UPI and breach of the CBA by Whirlpool. The district court granted UPI‘s summary judgment motion, finding Baxter failed to present sufficient evidence that UPI breached its duty of fair representation. The court also granted Whirlpool‘s summary judgment motion because a breach of UPI‘s fair-representation duty was a prerequisite to Baxter‘s claim against Whirlpool. This appeal ensued.
“A union breaches its duty of fair representation when its conduct is ‘arbitrary, discriminatory, or in bad faith.‘” See Washington v. Service Employees Int‘l Union, Local 50, 130 F.3d 825, 826 (8th Cir.1997) (quoted case omitted). Baxter argues that UPI acted arbitrarily and in bad faith when it agreed with Whirlpool to exclude Smith and to disqualify the original arbitrator. To prove arbitrariness, Baxter needed to show UPI‘s conduct was irrational. See id. To prove bad faith, Baxter needed to establish the existence of fraud, deceitful action, or dishonest conduct. See id. We agree with the district court that Baxter proved neither.
The question of whether a union may exclude a grievant‘s personal attorney from an arbitration hearing is an issue of first impression in this circuit. Under the circumstances here—i.e., Baxter‘s criminal case had been resolved, he failed to show other employees were treated differently, his attorney had subpoenaed witnesses without notifying UPI, and there was no evidence of a specific need for Smith‘s presence—we conclude that such exclusion did not constitute a breach of UPI‘s duty of fair representation. See Garcia v. Zenith Elec. Corp., 58 F.3d 1171, 1179-80 (7th Cir.1995) (noting that in “unique context of labor relations,” union‘s decision “to disallow the presence of an independently-retained attorney in a particular case is not, standing alone, enough to show that the union acted arbitrarily“); Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1483-84 (9th Cir.1985) (“no court has adopted the rule that employees are entitled to independently retained counsel in arbitration proceedings or that the exclusion of such attorneys from arbitration violates the duty of fair representation“; participation of employee‘s counsel could “bypass the union and undermine the policy of exclusive representation“); cf. Seymour v. Olin Corp., 666 F.2d 202, 209-10 & n. 5 (5th Cir.1982) (holding union‘s failure to pursue grievance, because grievant would not discharge his attorney, was arbitrary and
We also conclude the evidence did not show that UPI‘s agreement with Whirlpool to decertify the arbitrator they had chosen together under the CBA was discriminatory, irrational, fraudulent, or dishonest. Insofar as Baxter argues that he was harmed by the arbitrator‘s disqualification and the resulting delay, we refuse to speculate that the original arbitrator would have ruled in Baxter‘s favor and more quickly.
Because we conclude UPI was entitled to summary judgment on the fair-representation claim, summary judgment for Whirlpool on the claim for breach of the CBA was also proper. See Smith v. United Parcel Serv., Inc., 96 F.3d 1066, 1069 (8th Cir.1996). We reject as meritless the remainder of Baxter‘s arguments.
Accordingly, we affirm.