* The Honorable Bruce D. Black, District Court Judge , District of New (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 4 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICK WEBB, Plaintiff-Appellee, v. ABF FREIGHT SYSTEM, INC., a corporation, Defendant-Appellant, and
TEAMSTERS LOCAL UNION No. 17, Defendant. No. 96-1427

Appeal from the United States District Court

for the District of Colorado (D.C. No. 94-Z-239)

Andrew W. Volin (E. Lee Dale with him on the briefs ) of Sherman & Howard, Denver, Colorado, for Defendant-Appellant. John R. Olsen of Olsen & Brown, Niwot, Colorado, fo r Plaintiff-Appellee.

Before EBEL andHOLLOWAY , Circuit Judges, and BLACK , * District Judge.* (...continued)

Mexico, sitting by designation.

1 Because of the jury’s verdict in favor of the appel lee, our review of the evidence is presented here in the light most favora ble to the appellee. See Wolfgang v. Mid-America Motorsports, Inc. , 111 F.3d 1515, 1522 (10th Cir. 1997). This standard of review requires that we ac cept the jury’s factual determinations as long as they are reasonably basedon some evidence or the inferences that may reasonably be drawn from such e vidence. Id. - 2 - EBEL , Circuit Judge.

This case involves a jury’s verdict of $112,124 forthe appellee on his claim that he was wrongfully fired from his job as a delivery truck driver on trumped up charges after his delivery truck skimmedthe underside of some tree branches, and that the real reason for his discharg e was retaliation for his union activities. Appellant argues that the verdict shou ld not stand because the appellee failed to prove the elements necessary to his claim s of breach of contract and breach of the duty of fair representation. The app ellant also challenges numerous discretionary rulings by the district court during the course of the trial. We affirm on all grounds. Background 1 The dispute in this case arose in 1993, when defend ant-appellant ABF Freight System, Inc. (“ABF”), fired plaintiff-appel lee Rick Webb. ABF alleged2 The relevant language from the Teamsters’ national contract reads: Accident Reports Any employee involved in any accident or cargo spil l incident, involving any hazardous or potentially polluting product, shall immediately report said ac cident or spill incident and any physical injury sustained

. When required by his Employer, the employee, before starting his next shift, shall make out an accidentor incident report in writing on forms furnished by th e Employer and shall turn in all available names and addresses of witnesses to the accident or incident.

. . . Failure to comply with this provision shall subjectsuch employee to disciplinary action by the Employer. National Mater Freight Agreement , for the period of April 1, 1991 through March 31, 1994, art. 16, § 3.

3 Local 17 originally was a defendant in this case, b ut Webb agreed to dismiss his claims against the union prior to trial . Thus, the union is not a party to this appeal. - 3 - that Webb had violated his contractual duty to repo rt immediately “any accident.” 2 The question in this case is whether ABF’s claim wa s the true basis for Webb’s discharge or merely a pretext for firing a union ac tivist. 1. Webb’s union activities Webb worked as a truck driver with ABF for more than nine years before he was fired on August 2, 1993. Webb also was a me mber of Teamsters Local No. 17, 3 which represents all of ABF’s drivers in Colorado and elsewhere, and Webb had been the shop steward for Local 17 at ABF’ s Fort Collins terminal from the day the company opened its terminal there.- 4 -

In his role as shop steward, Webb prosecuted grievances on behalf of himself and other drivers from Fort Collins, includ ing grievances alleging unsafe practices by ABF. Webb also was involved with disp utes with ABF management over the use of overweight trucks and a hazardous w aste spill at the terminal. During the winter of 1992-93 one of Webb’s grievanc es involved a dispute over ABF’s use of drivers from the Denver terminal to do work in Fort Collins on weekends. Webb secured a grievance award of overti me pay for one Fort Collins driver who had lost weekend work to Denver drivers. However, two weeks later, the Denver leadership of Local 17, including union president Ron Schwab, negotiated a side letter with ABF that effectively reversed the results of the grievance decision. This side letter was negotiate d without input from Fort Collins’ drivers, and it was adopted by the union b efore any Fort Collins drivers could comment on it. The dispute over work allocat ion between the Denver and Fort Collins terminals led to continuing friction b etween Webb and the Teamsters leadership in Denver, including union president Sch wab, whose political support was based in the Denver terminal’s drivers. 2. Webb’s firing On the afternoon of July 30, 1993, a Friday, Webb t ook a full truck out for deliveries, with the first delivery at the Colorado State University Alumni Center (“CSU”). As Webb was backing up to the alumni cent er, Webb’s truck became- 5 -

entangled with overhanging branches. Webb testifie d that these branches were no more than 11⁄2- to 2-inches in diameter, and he pulle d them out from between his truck and the trailer. At the time, Webb did not n otice any damage to the truck or the trailer. After finishing his delivery at the a lumni center, Webb continued on his route without making any accident report. Webb returned the truck and trailer to the ABF terminal in Fort Collins at the end of t he day, again without making any accident report or any log entry of damage in h is vehicle condition log. Company officials contended that Webb’s entanglement with tree branches at CSU caused more than $600 worth of damage, bendi ng the exhaust stack on the tractor and crushing a corner of the trailer. At W ebb’s subsequent grievance hearings, Company officials introduced a picture of a tree limb measuring four inches in diameter that they contend Webb’s truck p ulled down. However, during the trial in this case, Webb denied that he hit a b ranch that size. He also testified that he later returned to CSU to look at the tree b ranches on the driveway of the alumni center, and he noticed the stump where the p ictured four-inch limb had come from. He testified that his truck could not h ave pulled down that branch because the stump showed that the branch had not be en pointed out over the driveway where Webb could have hit it. On the evening of July 30, 1993, after Webb had lef t work, ABF’s manager at the Fort Collins terminal, Bill Higley, noticed damage to Webb’s tractor and4 There was extensive testimony during the trial fromboth Webb and his

former co-workers that tree-skimming incidents were common for Fort Collins drivers, and that ABF had never required drivers to report such incidents as accidents under the mandatory accident-reporting po licy. One witness testified that it was only after Webb was fired that the comp any began to require such reports for tree-skimming incidents. - 6 - trailer. Higley took several Polaroid pictures of the vehicle, and he called ABF officials in Salt Lake City and Fort Smith, Arkansa s, to report the incident. At that time, he told ABF officials that Webb was the last driver of the damaged truck, and ABF regional vice president Sid Hatfieldtold Higley that failing to report an accident was a dischargeable offense. When Webb returned to work the next Monday, Higley confronted Webb about the damage to the truck and trailer. Webb to ld Higley about the treeskimming incident, and he pointed out that no drive r had ever considered such an incident to be subject to the company’s rule requir ing the reporting of all accidents. 4 Webb also requested an opportunity to view the da mage for himself, and after inspecting the vehicle, Webb provided a h andwritten statement about the incident. Webb’s statement indicates that Webb did not notice that the stack on the tractor was askew until Saturday morning, afterhe had learned from a coworker that Higley had been taking pictures of the truck. Webb’s statement also indicates that Webb did not notice any damage to th e trailer until Monday morning when he was confronted about the incident. However, nowhere in the5 The pertinent part of ABF’s “Letter of Discharge” s tates: On July 30th, 1993, you were involved in an accident which has been judged preventable by the A BF Safety Department. You failed to report this accident. . . . In accordance with Article 46 of the Western Area Supplemental Agreements and Article 16 Section 3 of the National Master Freight Agreement, you are here by discharged for failing to report a preventable acci dent. - 7 - statement does Webb admit responsibility for the damage to the trailer. When Webb finished writing out this statement, Higl ey informed Webb that he was fired and he should leave the ABF premises. Higley then began drafting letters to notify Webb formally that he had been di scharged, with the sole basis for Webb’s firing being Webb’s failure to report th e tree-skimming incident as an accident. 5 3. Webb’s grievance Immediately after being fired, Webb called Ron Schw ab, who was the Local 17 official responsible for handling grievanc es out of the Fort Collins terminal, and Webb requested that the union challen ge his discharge. After commenting that “we knew this was coming,” Schwab a greed to file a grievance on Webb’s behalf. Schwab also agreed to obtain company documents that Webb said would be helpful for the grievance, as well as to interview one of Webb’s coworkers who could testify about the events leading up to Webb’s discharge.6 Subsequent testimony at the trial demonstrated thatABF’s manager, Bill

Higley, prepared the co-worker’s statement. The co -worker signed the statement two days after Higley wrote it, and four days afterWebb’s alleged accident.

7 The photographs presented at Webb’s grievance heari ng inexplicably show (continued...) - 8 - Schwab, however, decided not to call any witnesses for Webb during the grievance hearing, and he failed to obtain any of t he documents Webb requested. The first hearing on Webb’s grievance occurred two days after the firing, on August 4, 1993, in Denver before the joint Color ado-Wyoming Longline Grievance Committee, an arbitration panel evenly co mposed of union and company officials. Schwab focused his arguments du ring the hearing on Webb’s account that the tree-skimming incident at CSU was not a reportable accident in light of the small size of the branches involved an d the fact that Webb had not noticed any damage when he was at the scene. Schwa b, however, failed to object when an ABF official characterized the branch that Webb had hit as “about eight inches in diameter and about 30 foot [sic] long.” Schwab also failed to review the evidence ABF prepared before the hearing, and a s a result, he was taken by surprise when ABF introduced a statement by one of Webb’s co-workers that detailed ABF’s account of the damage to Webb’s trac tor and trailer. 6 Schwab’s failure to review ABF’s evidence before the hearing also may have affected his and Webb’s ability to raise questions about ABF’s a lleged tampering with the evidence of damage to Webb’s trailer. 7Finally, despite telling Webb again before7 (...continued)

different kinds of damage to the top right corner o f a trailer, with two photographs showing the running light on the traile r still present but a third photograph showing the running light missing. No m ention of these discrepancies was made during the grievance hearing.

8 Schwab disputed Webb’s testimony on this point. Ho wever, in light of the jury’s apparent assessment of Schwab’s credibility, we must accept Webb’s version of events. In any event, Schwab’s statement about the JWAC pro ceeding turned out to be incorrect. ABF officials introduced new photogr aphs of the alleged damage to Webb’s truck at the second hearing. Also, they off ered new testimony as to the specific events on the morning when Webb was fired, implying that Webb knew he had “wrecked” his truck: Rick Porter, ABF’s man ager for industrial relations, told the JWAC panel that Webb gave his handwritten statement “when Mr. Higley was asking him ‘Did you know that you wrecked the tractor?’ He said ‘Let me tell you about it.’” - 9 - the grievance hearing that “we knew this was coming ,” and despite Webb specifically asking Schwab to do so, Schwab did notpresent Webb’s allegation of retaliation – that Webb’s firing was prompted by th e company’s desire to silence his union activities. The grievance committee deadlocked on the question of whether to reverse ABF’s discipline. As a result, the grievance was transferred one week later to the Joint Western Area Committee (“JWAC”) in San Diego, an arbitration panel whose voting members were again evenly split betwee n union representatives and company representatives. In the days before this s econd hearing, Schwab apparently told Webb it wasn’t necessary for Webb t o be present because no new testimony or evidence would be introduced. 8- 10 -

Despite his apparent discouragement of Webb’s atten dance at the JWAC hearing, Schwab told the JWAC panel, “Mr Webb was i nvited to be present here and apparently has chosen not to be here to testifyin his own behalf. The Local Union will do its best with these conditions.” Sch wab also told the JWAC hearing that “the Union has no problem stipulating to the size of the tree branch. We have seen the tree branch.” Schwab made this st ipulation despite the fact that the only offer from ABF as to the size of the tree branch was the eight-inchdiameter claim that directly contradicted Webb’s ac count of branches no larger than two inches in diameter. When a panel member a sked Schwab whether Webb was aware that any incident that resulted in damage to company equipment was a reportable accident under the contract, Schwab resp onded, “I’m not Mr. Webb so I don’t know exactly what his position would be bec ause he’s not here to answer that personally. . . .” In answer to another ques tion, Schwab said, “I don’t know why Mr. Webb did the things that he did at that tim e.” At the conclusion of the hearing, the JWAC panel up held Webb’s discharge. No reason or written decision was issue d by the panel. 4. Webb’s federal suit Webb subsequently brought suit in federal court und er 29 U.S.C. § 185(a) (also known as § 301 of the Labor Management Relati ons Act of 1947) in what is commonly referred to as a hybrid § 301/DFR (duty of fair representation) suit.9 The jury’s division of damages – $89,699.20 againstABF and $22,424.80

against Local 17 – represents an 80% to 20% split.

10 The jury’s finding that Webb suffered no emotional distress rendered moot ABF’s claim that emotional distress damages ar e unavailable for a § 301 claim against an employer. As a result, we offer n o opinion on that legal question.

11 Webb filed, but eventually dropped, a cross-appeal to challenge this penalty. The issue remains a live controversy in t his case because ABF has asserted that the district court’s failure to granta mistrial on the basis of this conduct was an abuse of discretion. - 11 - Webb sued both ABF and Local 17, alleging that ABF had violated the Teamsters contract through a wrongful discharge and that Loca l 17 had breached its duty to represent him fairly. Webb sought reinstatement, a n award of back pay, emotional distress damages, and punitive damages. The union was dismissed out of the case pursuant to a stipulation by Webb priorto the trial. Following a seven-day trial, the jury returned a verdict in fav or of Webb against ABF. The jury found that Webb’s total economic damages were $112,124, and it allocated $89,699.20 of the damages to ABF. 9 The jury declined to award any damages on Webb’s claim of emotional distress. 10 5. Attorney misconduct claim Following the end of the trial, the court fined W ebb’s lawyer $757 for conduct it found to be unethical. 11 This matter arose near the end of the trial when Charles Cantrell, the superintendent of ABF’s repai r shop in Denver, testified about the damage to the tractor and trailer that We bb was driving on the day of12 It appears that Cantrell called Webb’s lawyer in an attempt to avoid the

subpoena that Webb’s lawyer had served on him. Web b’s lawyer told the court during the subsequent hearing on the issue that he received the call without notice and he did not ask any questions of Cantrell during the conversation. Rather, Cantrell spontaneously blurted out the statement atissue. - 12 - the accident. On cross-examination, Webb’s lawyer attempted to question Cantrell about a statement Cantrell allegedly had m ade to the lawyer out of

court. 12 The court promptly conducted a consultation with the attorneys out of the hearing of the jury in which she announced that the conduct by Webb’s lawyer violated the ethical rule against attorney communic ation with a represented party and she would entertain suggestions as to the appro priate remedy. ABF moved for a mistrial, which the court denied the followin g day. Instead, the court gave the jury a limiting instruction to disregard any ev idence of a telephone conversation between Webb’s attorney and Cantrell.

Discussion I. ABF’s motion for judgment as a matter of law This appeal comes to us following the district court’s denial of ABF’s Rule 50 motion for judgment as a matter of law, or in th e alternative, for a new trial. We review de novo a district court’s denial of judg ment as a matter of law, using the same standard applicable in the district court. See Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1546 (10th Cir.), cert. denied , 117 S. Ct.- 13 -

297 (1996). Despite the breadth of our de novo standard of review, we may upset the jury’s conclusion “only if the evidence points but one way and is susceptible to no reasonable inferences supporting the nonmovin g party.” See Yearous v. Niobrara County Mem. Hosp. , 128 F.3d 1351, 1353 (10th Cir. 1997), cert. denie d , 118 S. Ct. 1515 (1998). Under this standard of rev iew, we may not “weigh the evidence, pass on the credibility of witnesses, or substitute our conclusions for that of the jury.” Id. (quotation omitted). In support of its claim for judgment as a matter of law, ABF argues that Webb did not establish the elements of a hybrid § 3 01/DFR claim because: (1) Webb failed to prove that Local 17 breached its duty of fair representation; (2) Webb failed to prove the required level of causal c onnection in the DFR claim, and (3) Webb failed to prove a breach of contract b y ABF. Furthermore, with respect to the question of damages, ABF argues thatWebb was not entitled to an award of backpay from ABF for the period after the grievance arbitration hearings. Each of these issues intertwines questio ns of law with questions of fact. In light of our standard of review, we will discuss the applicable legal standards first before addressing whether the evidence was su fficient.

A. Elements of a hybrid § 301/DFR claim Federal labor policy generally extends great defere nce and finality to the- 14 -

decision by a labor arbitrator that a company has n ot violated its collective bargaining agreement in firing an employee. See DelCostello v. International Bhd. of Teamsters , 462 U.S. 151, 163-64 (1983). However, this defer ence can result in “an unacceptable injustice” when the empl oyee’s assertion of his rights under the collective bargaining agreement has been tainted by conduct from his union that breaches its duty of fair representation toward him. See id. at 164 (citing Hines v. Anchor Motor Freight, Inc. , 424 U.S. 554 (1976); Vaca v. Sipes , 386 U.S. 171 (1967)). As a result, the Court has e xplained that,

[W]hen the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representatio n. . . , an employee may bring suit against both the employe r and the union, notwithstanding the outcome or final ity of the grievance or arbitration proceeding. DelCostello , 462 U.S. at 164 (citations omitted). The kind of suit authorized in Vaca , Hines , and DelCostello is a “hybrid” action under § 301 because it combines two conceptu ally independent causes of action, the first against the company for breach of the contract (a standard § 301 claim) and the second against the union for breach of the duty of fair representation (a claim implied by operation of a u nion’s status under federal law as the sole bargaining representative of the employ ee). See DelCostello , 462 U.S. at 164. To prevail against his former employer und er this hybrid § 301/DFR- 15 -

cause of action, a discharged worker must prove thr ee elements: (1) Some conduct by the worker’s union that breached the duty of fai r representation; (2) A causal connection showing that the union’s breach affectedthe integrity of the arbitration process, and; (3) A violation of the co llective bargaining agreement by the company. See Hines , 424 U.S. at 568 (“[W]here the union actually util izes the grievance and arbitration procedures on behalf of the employee, the focus is . . . on whether, contrary to the arbitrator’s d ecision, the employer breached the contract and whether there is substantial reason to believe that a union breach of duty contributed to the erroneous outcome of the co ntractual proceedings.”). The plaintiff in a hybrid § 301/DFR action need not sue both his union and former employer in the same case, and he may choose to see k damages against only one of the potential defendants, but in any event, “the case he must prove is the same whether he sues one, the other, or both.” See DelCostello , 462 U.S. at 165.

B. Local 17’s duty of fair representation In light of a union’s position as the sole and excl usive bargaining representative of an employee with his employer, ev ery collective bargaining union has a duty to represent its members fairly inits dealings with management.
See DelCostello , 462 U.S. at 164 & n. 14. The scope of this duty in the context of a grievance arbitration proceeding requires thatthe union “may not arbitrarily- 16 -

ignore a meritorious grievance or process it in per functory fashion.” See Vaca 386 U.S. at 191. The Supreme Court has consistentl y repeated this standard for a DFR claim: “A duty-of-fair-representation claim ari ses when a union that represents an employee in a grievance or arbitratio n procedure acts in a ‘discriminatory, dishonest, arbitrary, or perfuncto ry’ fashion.’” International Bhd. of Elec. Workers v. Hechler , 481 U.S. 851, 864 n.6 (1987) (quoting Delcostello , 462 U.S. at 164); see also International Bhd. of Elec. Workers v.
Foust , 442 U.S. 42, 47 (1979) (“In particular, a union b reaches its duty when its conduct is ‘arbitrary, discriminatory or in bad fai th,’ as, for example, when it ‘arbitrarily ignore[s] a meritorious grievance or p rocess[es] it in [a] perfunctory fashion.’”) (quoting Vaca , 386 U.S. at 190, 191). In similar vein, this circuit also has reiterated t he DFR standard as prohibiting arbitrary, discriminatory, bad faith, o r perfunctory conduct. See Foust v. International Bhd. of Elec. Workers , 572 F.2d 710, 714-15 (10th Cir. 1978) (quoting and discussing Vacaand Hines ), rev’d on other grounds , 442 U.S. 42 (1979); Nelson v. Holmes Freight Lines, Inc. , 37 F.3d 591, 594 & n.4 (10th Cir. 1994) (quoting and discussing Vaca ); Young v. United Auto. Workers-Labor Employment & Training Corp. , 95 F.3d 992, 998 (10th Cir. 1996) (quoting Vaca , 386 U.S. at 191); Lampkin v. International Union, U nited Auto., Aerospace & Agric. Implement Workers , No. 96-5212, slip op. at 18 (10th Cir. 1998) (pro posed13 The text of Jury Instruction No. 10 provides in part: In order to prevail against his employer on his claim under 29 U.S.C. § 185, plaintiff Rick Webb mu st prove . . . 2. That the Teamsters Local No. 17 breached its duty of fair representation to the plaintiff by: (a) failing properly to process his grievance; and (b) acting in a discriminatory, dishonest, arbitrary, or perfunctory fashion.

- 17 - publish opinion now in circulation).

1. “Perfunctory” grievance processing ABF argues that the duty of fair representation inc ludes only a duty to avoid acting in an arbitrary, discriminatory, or ba d faith fashion, but does not include an obligation to avoid acting in a perfunct ory manner. Based on the authority cited above, we reject that argument. Th e district court properly presented to the jury the duty not to act in a perf unctory fashion, 13 and we believe the jury verdict can be upheld on the basis of thatduty. ABF relies principally on the Supreme Court’s most recent hybrid § 301/DFR case, in which the Court stated that a un ion’s duty of fair representation is “tripartite,” i.e., a union’s act ions may not be “‘arbitrary, discriminatory, or in bad faith.’” See Air Line Pilots Ass’n, Int’l v. O’Neill , 499 U.S. 65, 67 & 77 (1991) (quoting Vaca , 386 U.S. at 190)). In its omission of the- 18 -

duty to avoid “perfunctory” conduct, the O’Neill articulation of a union’s “tripartite” duties appears to back away from earli er case law stressing that a union is under a legal obligation not to conduct it s dealings with its members in a “perfunctory fashion.” However, we believe that th e prohibition against “perfunctory” conduct remains the law despite its a bsence from the discussion in O’Neill

. First, the dispute in O’Neill involved claims of union misconduct in the context of contract formation , as opposed to contract administrationin a grievance proceeding. See id. at 70. Thus, under the facts in O’Neill there was no need to address the question of a union’s duties when a union member seeks to challenge a discharge in a grievance proceeding. I ndeed, it would have been dictum in O’Neill for the Court to express any opinion as to the DFRstandards for a grievance arbitration in light of the fact th at the O’Neill case arose before any grievance arbitration process had been establis hed by the parties. Second, it is easy to read the Court’s earlier case s prohibiting “perfunctory” grievance processing as merely expressing a concret e example of the kind of specific conduct prohibited by the tripartite stand ard. See Foust , 442 U.S. at 47 (listing perfunctory handling of a grievance as an “example” of union conduct that is “arbitrary, discriminatory or in bad faith” ). If “perfunctory” grievance processing is a specific kind of conduct under the tripartite standard, then- 19 -

O’Neill ’s failure to mention this particularized DFR stand ard is immaterial. In part, any potential doubt as to the applicability of the prohibition against “perfunctory” conduct may arise from the fact that courts generally have failed to give content to the meaning of that term. Indeed, the most this circuit has ever said on the meaning of the prohibition against “per functory” conduct is that one union’s handling of a member’s grievance was not pe rfunctory when “the record shows a prompt and diligent effort by the union bus iness agent . . . to have appellant’s grievance heard and decided by the pane l.” See Nelson , 37 F.3d at
594 n.4. The other circuits have similarly had little to say about the meaning of the term “perfunctory.” The most detailed explanation comes from the Eighth Circuit, where the court explained that “we constru e the Supreme Court’s reference in Vacato the ‘perfunctory’ processing of a grievance to mean that ‘the union acted without concern or solicitude, or gave a claim only cursory attention.’” Beavers v. United Paperworkers Int’l U nion, Local 1741 , 72 F.3d 97, 100 (8th Cir. 1995) (quoting Curtis v. United Trans p. Union , 700 F.2d 457, 458 (8th Cir. 1983)). The Eighth Circuit’s constructio n comports with the standard dictionary definition of “perfunctory.” See Websters Third New International Dictionary (Unabridged) 1678 (1986) (defining perfunctory as “characterize d by routine or superficiality: done merely as a duty: C URSORY, MECHANICAL . . .14 Webb’s evidence could have allowed a reasonable jur or to reach at least

the following conclusions: (1) Local 17 failed to present a grievance claim of retaliation despite Webb’s request to do so and des pite Schwab’s belief that Webb’s firing was indeed a case of retaliation; (2) Schwab failed to follow Local 17’s regular practice in grievance cases of reviewi ng company evidence before the arbitration hearings; (3) Schwab affirmatively misled Webb by telling Webb that his presence was not needed at the second grie vance hearing in San Diego and that no new evidence or testimony would be allo wed; (4) Schwab affirmatively misled the JWAC grievance panel in Sa n Diego when he told the panel members that he did not know why Webb had cho sen not to come to the hearing; (5) Schwab disparaged his own union memberbefore the JWAC panel by suggesting that there was no explanation for Webb’s conduct in the tree-skimming incident; and (6) Schwab directly contradicted Webb ’s own account of the incident by accepting the company’s claims as to th e size of the tree limbs that Webb had hit. ABF insists these conclusions are contradicted by t estimony from Schwab and others. However, this contention misunderstand s our standard of review, which must uphold the jury’s verdict if any reasonable juror could have ruled as the jury did. See Yearous , 128 F.3d at 1353. - 20 - lacking in interest or enthusiasm: APATHETIC, INDIF FERENT”). This is not to say that a union violates its duty o f fair representation by mere negligent conduct; carelessness or honest mist akes are not sufficient to impose liability on a union. See United Steelworkers v. Rawson , 495 U.S. 362, 372-73 (1990); Young , 95 F.3d at 997. We need not here define the line between negligent conduct and perfunctory conduct because t he evidence was sufficient to allow a jury to find, as it did, that the union con ducted this arbitration in such a perfunctory, apathetic, indifferent, and cursory way that Local 17 breached its duty of fair representation. 14 Indeed the evidence was sufficient to support not just a finding of perfunctory conduct, but also con duct by the union that rose to15 Jury Instruction No. 17 provides as follows: An incomplete investigation of a grievance, or not making every conceivable argument on behalf of the grievant during the grievance procedure, does not violate the union’s duty of fair representation unl ess the union’s actions were discriminatory, dishonest, arb itrary or perfunctory. However, some minimal investigatio n is required. At trial, ABF objected to the last sentence of this instruction on the grounds that “there is no minimum investigation threshold u nder the duty of fair representation cases.” - 21 - the level of bad faith. See Young , 95 F.3d at 996 n.1 (noting that bad faith in a DFR claim “requires a showing of fraud or deceitful or dishonest action”). 2. Pre-arbitration investigation Next, ABF argues that the union did not have an obl igation to conduct its own investigation of Webb’s grievance because Webb undertook to do the investigation himself. ABF also contends that a un ion has no legal duty to conduct “some minimal investigation” of a grievance complaint. 15
In Foust , the Tenth Circuit agreed with other circuits that“the failure to investigate the merits of a grievance could be arbi trary conduct and a breach of a duty.” See Foust , 572 F.2d at 716 (citing De Arroyo v. Sindicato de Trabajadores Packinghouse , 425 F.2d 281 (1st Cir. 1970); Hughes v. Internati onal Bhd. of Teamsters, Local 683 , 554 F.2d 365 (9th Cir. 1977)). The amount of investigation required of a union to meet its duty of fair representation depends- 22 -

on the circumstances of each case. See Garcia v. Zenith Elecs. Corp. , 58 F.3d 1171, 1176 (7th Cir. 1995) (holding that the thorou ghness of a union’s required investigation depends on the particular case); Evan gelista v. Inlandboatmen’s Union of the Pacific , 777 F.2d 1390, 1395 (9th Cir. 1985) (same). In this case, a reasonable juror could have conclud ed that Local 17 made no serious effort to investigate the facts of Webb’s c laims. The jury also could, and apparently did, disbelieve the testimony from Schwab that Local 17 had no obligation to conduct its own investigation because Webb allegedly had agreed to undertake the investigation himself. It appears th at the jury found Webb more credible than Schwab, and it is not for us to upsetthat credibility determination.
See Yearous , 128 F.3d at 1353. Thus, we find the evidence suf ficient to support Webb’s contention that Local 17 breached its duty o f fair representation by failing to undertake an adequate investigation under the ci rcumstances.

3. Judicial estoppel from a grievance arbitration At the conclusion of the first grievance hearing, t he chairman of the grievance committee, a company representative, enga ged Webb in the following colloquy: Chairman Bradfield: I will now ask the grievant, b ased

on the issue of your failure to report an accident are you satisfied that the Union has represented your position properly? Mr. Webb: Yes. Chairman Bradfield: Have they introduced all perti nent16 Indeed, it seems likely that ABF cannot succeed on the merits of a judicial

estoppel claim because one of the elements of this doctrine is that the party against whom estoppel is asserted must have prevail ed on the basis of his contradictory position in the prior proceeding. Se e 49.01 Acres of Land , 802 F.2d at 390. In Webb’s case, he most assuredly did not prevail. - 23 - information on your behalf in regard to this defense? Mr. Webb: Except for the bracket, I don’t have any thing else to say. On the basis of these statements from Webb, ABF nowsuggests that Webb be precluded from raising any argument that Local 17’s representation of his claims fell below the legal standards required of the unio n. We reject ABF’s argument for two reasons. First, A BF’s contention relies on principles of judicial estoppel in which a party ’s statements or positions in one proceeding prevent him from subsequently raising a contradictory position in the same or related proceedings. The Tenth Circuit has firmly established that it will not be bound by the doctrine of judicial estoppel. See Rascon v. US West Communications, Inc. , 1998 WL 223465, at *6 (10th Cir. May 6, 1998) (to be reported at 143 F.3d 1324) (holding that claims inc onsistent with others raised in administrative context are not barred by judicial e stoppel); United States v. 49.01 Acres of Land, More or Less, Situate in Osage County, Okla. , 802 F.2d 387, 390 (10th Cir. 1986). 16 Second, any statements Webb made at the first gri evance hearing are not probative as to the quality of Loca l 17’s representation at the- 24 -

second hearing in San Diego. In light of the fact that many of the DFR breaches that Webb asserted in this case involved the union’ s conduct at the second hearing, there is no sound reason to prevent Webb f rom raising his DFR claim. Therefore, the district court properly allowed Webb to present his DFR claim to the jury.

C. Causal connection between DFR breach and arbitration out come In Hines v. Anchor Motor Freight, Inc. , the Court held that a plaintiff in a hybrid § 301/DFR case is entitled to relief if he c an prove “an erroneous discharge” and a union “breach of duty tainting the decision of the joint committee.” 424 U.S. 554, 572 (1976) (emphasis add ed). The Court stated,

The union’s breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures; if it ser iously undermines the integrity of the arbitral process the union’s breach also removes the bar of the finality provisions of the contract. Id. at 567 (emphasis added). In a later opinion, the S upreme Court reiterated the “seriously undermines” standard. See United Parcel Serv., Inc. v. Mitchell , 451 U.S. 56, 61 (1981). The Court said, “As Hines makes clear, an employee may go behind a final and binding award under a collective -bargaining agreement and seek relief against his employer and union only whe n he demonstrates that his union’s breach of its duty ‘seriously undermine[d] the integrity of the arbitral- 25 -

process.’” Id. (quoting Hines , 424 U.S. at 567); see also Barnett v. United Air Lines, Inc. , 738 F.2d 358, 362 (10th Cir. 1984) (“If an employ ee can establish that his union breached its implied duty of fair re presentation, then even a binding decision of the [grievance arbitration] board can b e set aside if the breach seriously undermined the integrity of the arbitral process.”). In its brief on appeal, ABF contends that the appro priate causation standard in this case is the “but for” standard expressed inEdwards v. International Union, United Plant Guard Workers of America , 46 F.3d 1047, 1051 (10th Cir. 1995). We reject ABF’s argument on this point. First, the discussion in Edwards was dicta – the issue to be decided in Edwards was not the definition of the elements of a hybrid § 301/DFR case, but rather the appropri ate statute of limitations in such a case. See id. at 1053. As a result, we are not bound by the Edw ards panel’s articulation. See Bates v. Department of Corrections , 81 F.3d 1008, 1011 (10th Cir. 1996) (holding that one panel is not bou nd by a prior panel’s dicta). Second, in light of the conflict between Edwards and Barnett , we note that this circuit follows the rule that “when faced with an i ntra-circuit conflict, a panel should follow earlier, settled precedent over a sub sequent deviation therefrom.”
See Haynes v. Williams , 88 F.3d 898, 900 n.4 (10th Cir. 1996). Having concluded that we must rely on the “seriousl y undermines” language from Hines and Barnett , we also conclude that there was sufficient17According to Jury Instruction No. 10, to award dama ges to the plaintiff

the jury in Webb’s case was required to find “That the breach of its duty of fair representation by Teamsters Local No. 17 seriously undermined the integrity of the grievance proceeding.” - 26 - evidence from which a reasonable juror could conclu de that Local 17’s DFR breach “seriously undermined” Webb’s grievance proc eedings. 17Taken in the light most favorable to Webb, the record shows thatLocal 17 misled Webb about the second grievance hearing in San Diego and that Local 17 misled the JWAC hearing panel about the nature of Webb’s tree-skimm ing incident and Webb’s explanation for his lack of a report to company off icials about it. Indeed, Schwab’s concessions allow a reasonable inference that Local 17 deliberately attempted to submarine Webb’s case by sending the J WAC panel a message that Local 17 had no faith in Webb’s claims and was mere ly going through the motions on his behalf. This record meets the causation standard under Hines and
Barnett

. ABF, on the other hand, points to the testimony fro m the chairman of the JWAC board, E. James Roberts, who suggested that We bb’s handwritten statement was sufficient evidence alone to uphold h is discharge. Putting aside the dubious validity of a single, non-voting chairman o f an arbitration panel testifying as to the state of mind of the entire panel, ABF’s argument misunderstands our standard of review in this appeal. Merely because there is some evidence in the18 Article 21 of the National Master Freight Agreementprovides as follows:
Union Activities Any employee, member of the Union, acting in an official capacity whatsoever shall not be discrimin ated against for his acts as such officer of the Union s o long as such acts do not interfere with the conduct of t he employer’s business, nor shall there be any (continued...) - 27 - record supporting ABF’s position will not cause us to upset the jury’s verdict. Instead, ABF must show that there is no evidence in the record that would allow a reasonable juror to find for Webb. See Yearous , 128 F.3d at 1351. We believe there is sufficient evidence to support the verdicton the causation element. The fact that there is some contradictory evidence in t he record is immaterial.

D. Breach of contract During the course of the trial below, Webb presente d two different grounds for finding that ABF had breached the collective ba rgaining agreement. First, Webb argued that ABF’s asserted rationale for firin g him – that he had failed to report an accident as required by Article 16 of the national contract – was baseless because the tree-skimming incident was nota reportable accident under the custom and practice at the ABF terminal in FortCollins. Second, Webb argued that ABF’s actual reason for firing him was to retaliate for Webb’s union activities, which was a violation of Article 21 of the national contract. 18 ABF18 (...continued) discrimination against any employee because of unio n membership or activities. - 28 - responds that Webb’s tree-skimming incident was a r eportable accident under the contract, and therefore, Webb’s failure to report w as a sufficient basis for the discharge. ABF also argues that Webb should have b een precluded from submitting his retaliation claim to the jury becaus e he failed to exhaust it in the grievance arbitration proceeding. 1. Failure to report an accident There is no dispute in this case that Article 16, s ection 3 of the National Master Freight Agreementrequires all employees “involved in any accident” to report that accident “immediately.” Instead, the d ispute focuses on what is an “accident” under the Teamsters contract. ABF conte nds that any incident that causes damage to company equipment or to the property of a customer is an “accident.” Webb, on the other hand, contends thatat least within the experience of ABF employees in Fort Collins and Denver prior t o his discharge, brushes with overhanging branches that caused limited damage to ABF’s trucks were not “accidents.” It is well-established that when interpreting the t erms of a labor contract, a fact-finder is entitled – and indeed, in some cases required – to look to the past practices of the parties and the “common law of the shop” to determine the19 Jury Instruction No. 8 reflects this understanding of the law. It states, The interpretation of a contract by the parties, as shown by their conduct before any dispute arose between them, is one of the best indications of the ir intent. - 29 - parties’ contractual obligations. 19 See United Steelworkers v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 581-82 (1960) (holding that the int erpretation of contract terms “is not confined to the express prov isions of the contract, as the industrial common law – the practices of the indust ry and the shop – is equally a part of the collective bargaining agreement althoug h not expressed in it”); National Labor Relations Board v. Northeast Okla. C ity Mfg. Co. , 631 F.2d 669, 676 (10th Cir. 1980) (“Where past practice has established a meaning for language that is used by the parties in a new agree ment, the language will be presumed to have the meaning given it by such past practice.”) (quotation omitted); see also Madison Hotel v. Hotel & Restaurant Employees, Loc al 25 , __ F.3d __, 1998 WL 278289, at *3 (D.C. Cir. June 2, 1 998) (en banc) (upholding an arbitrator’s contract interpretation in part becaus e the arbitrator considered “the ‘industrial common law’ of the hotel business”); Tr ailways Lines, Inc. v. Trailways, Inc. Joint Council , 807 F.2d 1416, 1423 & n. 12 (8th Cir. 1986) (vacating an arbitrator’s award in part because the arbitrator failed to consider the “common law of the shop”). This is especially the case when a disputed contract- 30 -

term is ambiguous on its face and no other language in the contract provides a basis for construing the term. See International Bhd. of Elec. Workers, Local Union No. 611 v. Public Serv. Co. , 980 F.2d 616, 617-19 (10th Cir. 1992) (upholding an arbitrator’s interpretation of ambigu ous contract terms in light of the arbitrator’s consideration of the parties’ pastpractices). In Webb’s case, he presented extensive testimony fr om co-workers and an ABF maintenance worker that tree-brushing incidents were common, including incidents that resulted in minor damage to ABF trac tors and trailers. In no case were these incidents treated as reportable accident s, and the witnesses testified that they could not recall anyone being fired for f ailing to report these incidents. In light of this testimony, a reasonable juror coul d conclude that the “common law of the shop” at ABF’s Fort Collins and Denver termi nals was that minor treeskimming incidents were not subject to the mandatory reporting provision of the contract. As a result, a reasonable juror could co nclude that ABF breached the contract by firing Webb for an incident that was no t a reportable accident. Therefore, ABF is not entitled to judgment as a matter of law on its reportableaccident claim. 2. Retaliation for union activities ABF contends that Webb should have been barred frompresenting his retaliation claim to the jury because he failed to raise the claim during the- 31 -

grievance proceedings. This argument, however, fou nders on Webb’s proof of a breach of Local 17’s duty of fair representation. As the Supreme Court explained in Hines , a union’s DFR breach “relieves the employee of an express or implied requirement t hat disputes be settled through contractual grievance procedures.” Hines , 424 U.S. at 567. This circuit has applied the non-exhaustion rule in several case s. See, e.g. , Aguinaga v. United Food & Commercial Workers Int’l Union , 993 F.2d 1463, 1472 (10th Cir. 1993) (“[I]n determining whether Plaintiffs are req uired to exhaust, the relevant inquiry is whether the Union . . . breached its duty of fair representation.”); United Food & Commercial Workers Local 7R v. Safeway Stores, Inc. , 889 F.2d 940, 945 (10th Cir. 1989) (“[I]f the union refuses to press or only perfunctorily presses the individual’s claim, or otherwise acts arbitrarily, discriminatorily, or in bad faith, then the union has breached its duty of fair representation and . . . the employee has ‘exhausted’ his or her remedies under the collective bargaining agreement.”) (quotation and citations omitted). Th us, when a union member proves that his or her ability to prosecute a parti cular breach of contract claim against his employer has been “seriously undermined ” by the union’s failure to represent him or her adequately in grievance procee dings, the union member has fulfilled the exhaustion requirement. Here, it was not error for the district court to present Webb’s retaliation claim to the jury bec ause Webb offered sufficient- 32 -

evidence from which a reasonable juror could have c oncluded that having specifically requested the union to raise the retal iation issue, Webb’s claim was seriously undermined by Local 17’s actions in decli ning to raise that issue. ABF also contends that as a matter of law Webb coul d not prove retaliation because he failed to show that the company official who made the decision to fire Webb – which ABF contends was Sid Hatfield – was aw are at the time of Webb’s protected union activities. ABF’s argument is base d on its premise that Hatfield did not know that it was Webb who had caused the damage that terminal manager Bill Higley had reported. However, in light of Hig ley’s initial report to ABF headquarters that Webb was the last driver of the d amaged truck, a reasonable juror could have concluded that ABF was aware of We bb’s identity at the time. Therefore, ABF is not entitled to judgment as a matter of law on Webb’s retaliation claim.

E. Allocation of damages between union and employer When allocating the amount of money damages in a hy brid § 301/DFR case, “[t]he governing principle . . . is to apportion li ability between the employer and the union according to the damage caused by the fau lt of each.” Vaca v. Sipes , 386 U.S. 171, 197 (1967); Lampkin v. International Union, United Auto.,20 Jury Instruction No. 23 provides as follows: You must apportion any award of damages between the employer and the union according to the damages caused by the fault of each. Damages attributable solely to the breach of the National M aster Freight Agreement by ABF Freight Systems, Inc. shou ld not be charged to Teamsters Local Union No. 17, and increases in those damages caused by Teamsters Loca l Union No. 17’s failure to fairly represent Rick Web b should not be charged to the employer. The combine d amount of these damages should make Rick Webb whole. - 33 - Aerospace & Agric. Implement Workers , No. 96-5212, slip op. at 7 (10th Cir. 1998) (proposed publish opinion now in circulation) (quoting Vaca , 386 U.S. at 197-98). In light of this principle, we have held that the apportionment of damages “must serve the following purposes: (1) dam ages must be apportioned according to each party’s fault, (2) the union mustbe held responsible for any increases in the employee’s damages, which were cau sed by the union, and (3) the employee must be made whole.” Aguinaga v. United F ood & Commercial Workers Int’l Union , 993 F.2d 1463, 1476 (10th Cir. 1993) (quotations and citations omitted). In Webb’s case, the jury was instructed in accordan ce with this law, 20 and the jury determined that Webb had suffered total ec onomic damages of $112,124. The jury then allocated $22,424.80 of the damages t o Local 17 and $89,699.20 to ABF. This allocation suggests that the jury found that Local 17 was 20 percent at- 34 -

fault while ABF was 80 percent at fault. ABF argues that its damages should have been cappedas a matter of law to those wages that Webb lost prior to the grievance p roceedings and that the district court erred in giving the jury its proportionate fa ult instruction. We reject this argument because it carries forward ABF’s mistaken argument as to the causation standard in a DFR claim. ABF contends that all of the economic damages Webb incurred after the grievance hearings are attributable to Local 17 bec ause “but for” the union’s DFR breach Webb would have prevailed in the grievance h earings and he would have been reinstated to his job. However, Local 17’s DF R breach need not have been the “but for” cause of Webb’s subsequent economic d amages; instead, Webb only needed to prove that Local 17’s actions “seriously undermined the integrity of the arbitration proceedings.” See Hines v. Anchor Motor Freight , 424 U.S. 554, 567 (1976). In light of this standard, it is logically possible for a jury to assess damages against an employer based on proportionate fault that includes damages incurred after the date of the flawed grievance hea ring. A proportionate fault system of allocating damages ensures that the “prim ary wrongdoer” shoulders an appropriate burden, especially when an allocation o f damages based on the grievance arbitration date would shift a disproport ionate amount of damages onto the party that was less at fault. See Aguinaga , 993 F.2d at 1476. Furthermore,- 35 -

Aguinagadirectly contradicts ABF’s claim here that a chron ological allocation of damages based on the date of Webb’s grievance heari ng was the required method of apportionment: “[W]e hold that the hypothetical arbitration date method [of allocating damages] is not required in every hybrid case . . . .” Id. at 1477. Thus, ABF is not entitled to judgment as a matter of law on its allocation of damages claim.

II. ABF’s motion for a new trial In addition to its request for judgment as a matterof law, ABF moved for a new trial in light of various procedural decisions by the court that ABF argues were in error. We review the denial of a motion fo r a new trial for an abuse of discretion, and we may reverse the district court “ only if [it] made a clear error of judgment or exceeded the bounds of permissible choi ce in the circumstances.”
See Weese v. Schukman , 98 F.3d 542, 549 (10th Cir. 1996). Furthermore, under Fed. R. Civ. P. 61, a party is entitled to a new tr ial only if the alleged error “affect[ed] the substantial rights of the parties.”

A. Attorney Misconduct ABF contends that Webb’s lawyer, John R. Olsen, com mitted an ethical breach in communicating with ABF’s maintenance supe rvisor Charles Cantrell at- 36 -

a time when Olsen knew that Cantrell was a manageme nt representative for ABF. ABF argues that this ethical breach caused such pre judice to ABF’s substantial rights that the district court’s curative instructi on was insufficient. As a result, ABF asserts that the district court abused its disc retion in failing to order a new trial. The applicable Rule of Professional Conduct in Colo rado provides,

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Colo. R. Prof. Conduct 4.2. We are not convinced t hat Olsen’s conduct with respect to Charles Cantrell ran afoul of Rule 4.2 b ecause he did not initiate the communication with Cantrell and he did not ask any questions of Cantrell during their brief telephone conversation. Cantrell blurt ed out his claim – that he did not know anything about Webb’s case – without any promp ting from Olsen. Thus, Olsen’s attempt to raise Cantrell’s statement durin g cross-examination may not have been inappropriate. In any event, the district court promptly gave the jury a curative instruction, advising them to disregard this portion of the exam ination. Even if it was improper for Olsen to have asked the question, it w as adequately addressed by the district court, and we see no error here that would render the failure to grant a- 37 -

new trial an abuse of discretion.

B. Evidentiary Rulings ABF contends that it is entitled to a new trial in light of various evidentiary decisions during the trial. Such rulings generallyare committed to the very broad discretion of the trial judge, and they may constit ute an abuse of discretion only if based on an erroneous conclusion of law, a clearly erroneous finding of fact or a manifest error in judgment. See Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995). Under this standard of review, we must “giv e deference to the district court’s evidentiary rulings.” Id. Furthermore, if we find an erroneous evidentiary ruling, ABF would be entitled to a new trial only w hen the error affected the party’s substantial rights. See Hinds v. General Motors Corp. , 988 F.2d 1039, 1049 (10th Cir. 1993). 1. Other discipline against Webb Before the trial began, the district court ruled on a motion in limine that the only evidence of company discipline against Webb th at would be admitted during the trial was evidence concerning events during the nine months before Webb was fired. The court based this limitation on the prov isions of the collective bargaining agreement that prevent an employer from considering multiple disciplinary incidents outside a nine-month window and the fact that ABF’s basis- 38 -

for firing Webb was solely Webb’s failure to reportthe incident at CSU. ABF challenges the district court’s ruling on the g rounds that Webb was allowed to introduce evidence to support his claim of retaliation. ABF contends that because Webb was allowed to claim retaliation, ABF should have been allowed to present evidence of Webb’s disciplinary record going farther back than nine months. ABF’s argument is unpersuasive because of its faulty premise that Webb opened the nine-month door with his retaliation cla im. First, Webb’s retaliation evidence – i.e., his testimony about grievances he had filed and complaints he had registered – all involved his conduct within nine m onths of his discharge. Second, ABF affirmatively denied having fired Webb as a result of his prior record of accidents. ABF has consistently insistedthat the sole basis for the discharge was Webb’s failure to report the incidentat CSU. As a result, nothing about Webb’s prior work history was relevant to the company’s justification. Therefore, it was not an abuse of discretion to exc lude ABF’s evidence of Webb’s prior discipline. 2. Exhibits of grievance arbitration decisions During the course of its case-in-chief, ABF called one of its executives to testify about its interpretation of contract provis ions that allow an employer to fire a worker who fails to report an accident even if the worker has no prior- 39 -

history of company discipline or other accidents. The executive testified that there were two arbitration precedents from other st ates which upheld company discharges for failing to report an accident. When ABF sought to introduce exhibits of these grievance decisions, the districtcourt sustained Webb’s objection to the exhibits. Nevertheless, the courtallowed ABF to present the substance of the decisions through the testimony of ABF’s executive. ABF has failed to show how it was prejudiced by the district court’s decision not to allow introduction of the actual decisions, give n that the substance of the grievance decisions was presented to the jury throu gh the testimony of ABF’s executive. 3. Evidence of Webb’s NLRB complaint During ABF’s cross-examination of Webb, ABF attempt ed to introduce evidence that Webb filed an unfair labor practice c harge against ABF with the National Labor Relations Board (NLRB) prior to fili ng the instant federal suit, claiming that his discharge was in retaliation for his union activities. Because Webb withdrew his NLRB charge after preliminary inv estigation, ABF sought to argue that Webb did not believe his retaliation cla im had merit. The district court excluded this evidence as not relevant because ther e could have been many reasons for Webb’s decision not to pursue his NLRB charge, including difficulties in his divorce and responsibility for his children. We find no abuse of discretion- 40 -

in the district court’s decision to exclude the NLRB evidence.

4. Excerpts of Webb’s deposition testimony At the close of all the evidence in this case, ABF sought to introduce blown-up reprints showing excerpts from Webb’s pre- trial deposition. These exhibits illustrated various portions of Webb’s dep osition testimony that ABF contends contradicted Webb’s testimony at trial. T he district court excluded the exhibits on the grounds that the jury had heard the deposition testimony during ABF’s efforts to impeach Webb on cross-examination. We find no abuse of discretion in the district court’s decision. Our own review of the proffered excerpts confirms the impli cation that the exhibits were merely cumulative and offered nothing new. In addi tion, because ABF failed to identify any contradictory statements in the proffe red deposition excerpts that were not already brought out during ABF’s cross-examination of Webb, we can find no prejudice. 5. Emotional distress evidence The district court allowed Webb to present evidence of his emotional distress. ABF now argues that the court abused its discretion by admitting this evidence because ABF contends emotional distress damages are not available against an employer in a § 301 case. We need not reach ABF’s substantive argument, howev er, because the jury- 41 -

found no basis for awarding emotional distress dama ges and refused to award any money on that claim. Thus, there was no prejudice to ABF from the admission of the emotional distress evidence. ABF argues that t his evidence “likely” influenced the jury’s verdict on the primary liabil ity issues as well as on the jury’s allocation of fault between ABF and Local 17. Howe ver, the district court instructed the jury that it could not award emotion al distress damages unless it first found that Webb’s case involved “extreme and outrageous misconduct” and that he had suffered “severe emotional distress.” We presume the jury followed the court’s instruction to disregard the emotional distress evidence in the absence of these findings. See United States v. Castillo , 140 F.3d 874, 884 (10th Cir. 1998) (“A central assumption of our jurisprudence i s that juries follow the instructions they receive.”).

6. Hearsay statements by Schwab During the course of Webb’s direct testimony, he di scussed Schwab’s reaction to the news that ABF had fired Webb. Webb testified over ABF’s hearsay objection that Schwab had said, “We knew th is was coming,” indicating that Schwab felt Webb’s firing came in reaction to Webb’s union activities. Prior to eliciting this testimony, the district court ins tructed the jury on the definition of hearsay and on Webb’s stipulation that the Schwab s tatement was non-hearsay- 42 -

because it was not offered to prove the truth of We bb’s claim that his firing was retaliatory. ABF contends that it was an abuse of discretion to admit this testimony because the only purpose for offering Sch wab’s statement was to prove the truth of the matter asserted, i.e., that Webb w as the victim of retaliation. We find no abuse of discretion because we agree wit h the district court that Webb’s testimony about Schwab’s statement was not h earsay. Although Schwab’s statement could have been interpreted as s uggesting that ABF actually had retaliated against Webb, the district court pro perly instructed the jury not to consider the statement for that purpose. Instead, Schwab’s statement was probative of Schwab’s own state of mind and his awareness of Webb’s desire to raise a retaliation claim, both of which were relev ant to Webb’s claim that Local 17 breached its duty of fair representation in fail ing to raise his retaliation claim. Thus, the court did not abuse it discretion in admi tting the testimony.

C. Jury Instructions ABF challenges a series of decisions by the distric t court admitting or excluding certain jury instructions. We review a t rial court’s decision on whether to give a particular instruction for abuse of discr etion. See Thomas v. Denny’s,
Inc. , 111 F.3d 1506, 1509 (10th Cir.), cert. denied , 118 S. Ct. 626 (1997). Within the scope of this review, we will find an abuse of discretion if the challenged21 The relevant text of Jury Instruction No. 10 is pro vided in footnote 13.

22 The text of Jury Instruction No. 17 is provided in footnote 15. - 43 - instruction incorrectly states the governing law. See id. Furthermore, “[n]o particular form of words is essential if the instru ction as a whole conveys the correct statement of the applicable law.” Considin e v. Newspaper Agency Corp. , 43 F.3d 1349, 1365 (10th Cir. 1994) (quotation omitted). Finally, we must decide whether the jury “could seriously have been misled in its understanding of the issues and law applicable to the case before it.” United States v. Laughlin , 26 F.3d 1523, 1528 (10th Cir. 1994). ABF argues that two of the instructions given to th e jury incorrectly stated the applicable law. First, ABF repeats its content ion that Jury Instruction No.
10 21 incorrectly allowed the jury to find a breach of L ocal 17’s duty of fair representation based on “perfunctory” conduct. Sec ond, ABF also contends that Jury Instruction No. 17 22 incorrectly allowed the jury to find a DFR breach if Local 17 failed to conduct at least a “minimal inve stigation.” Both of these claims, however, rely on legal arguments rejected i n our discussion, in Part I.A above, on the substantive scope of a hybrid § 301/D FR case. Because these instructions accurately stated the law, there was n o abuse of discretion in overruling ABF’s objections to them. ABF also challenges the district court’s refusal to give five of its proposed- 44 -

jury instructions. We have reviewed each of ABF’s claims, and in each instance, the language proposed by ABF either was adequately conveyed by the instructions the court did give, constituted an incorrect statem ent of the law, or was without evidentiary support. Therefore we find no abuse of discretion.

D. Special verdict form In addition to its challenges to the district court ’s jury instructions, ABF also raises two challenges to the wording of the sp ecial verdict form given to the jury. We will review the language of a special ver dict form with the same abuse of discretion standard that we apply to jury instru ctions. See United States v. Reed , Nos. 97-10053, 97-10072, __ F.3d __, 1998 WL 3727 49, at *2 (9th Cir. July 7, 1998). ABF’s first contention points to the wording of the initial question in the special verdict form, which asks the jury to decide whether Webb was “wrongfully discharged.” ABF argues that the phras e “wrongfully discharged” incorrectly characterizes the legal requirement of finding that Webb’s firing breached the collective bargaining agreement. We s ee no mischaracterization in the use of the phrase “wrongfully discharged” inste ad of “breached the contract.” Furthermore, we note that Jury Instruction No. 10 e nsures that the jury was aware that in order to find that Webb was “wrongfully dis charged,” it must find that- 45 -

“ABF Freight Systems Inc. violated the National Mas ter Freight Agreement by terminating Webb from his employment without ‘just cause’ or other valid reason under said contract.” As a result, we find no abus e of discretion in the special verdict form’s use of the words “wrongfully dischar ged.” ABF next contends that the special verdict form inc orrectly failed to set forth a “but for” causation standard for Webb’s DFRclaim. However, as we discussed above in Part I.C., the case law does notrequire a “but for” causation standard in a DFR case.

E. Excessive damages ABF’s final basis for claiming a right to a new tri al is a rearticulation of its earlier argument on the allocation of damages. ABF contends that the jury’s award of $89,699.20 in damages against ABF was “pla inly excessive” because this amount includes lost wages incurred by Webb af ter the date of the grievance hearings. However, as discussed above in Part I.E. , the jury properly allocated damages on the basis of its findings of proportiona l fault. As a result, we reject ABF’s related claim that the damages are excessive.

Conclusion In this case, a properly instructed jury having hea rd seven days of testimony- 46 -

found that Teamsters Local 17 had breached its dutyof fair representation to Rick Webb and that this breach seriously undermined Webb ’s ability to defend his rights under the collective bargaining agreement af ter ABF Freight System had wrongfully terminated his employment. We have foun d no errors of law or abuse of discretion in the proceedings below, and therefo re, we AFFIRM.