Rule 206 ELECTRONIC CITATION: 2003 FED App. 0377P (6th Cir.) File Name: 03a0377p.06… v. International Union, United Automobile, Aerospace

*The Honorable Myron H. Bright, Senior Circuit Judge of the United
States Court of Appeals for the Eighth Circuit, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0377P (6th Cir.)
File Name: 03a0377p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EDGAR D. LAPERRIERE, JR.,
Plaintiff-Appellee,
v.
INTERNATIONAL UNION,
UNITED AUTOMOBILE,
AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA,
Defendant-Appellant.
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No. 01-1576
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 98-72037—Denise Page Hood, District Judge.
Argued: March 14, 2003
Decided and Filed: October 24, 2003
Before: COLE, GILMAN, and BRIGHT, Circuit Judges.*
2 LaPerriere v. UAW No. 01-1576
_________________
COUNSEL
ARGUED: William A. Wertheimer, Jr., Bingham Farms,
Michigan, for Appellant. Lauren M. Tomayko, Sterling
Heights, Michigan, for Appellee. ON BRIEF: William A.
Wertheimer, Jr., Bingham Farms, Michigan, for Appellant.
Lauren M. Tomayko, Sterling Heights, Michigan, for
Appellee.
_________________
OPINION
_________________
MYRON H. BRIGHT, Circuit Judge. Edgar LaPerriere
sued the International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America ("UAW"),
alleging the UAW failed to represent him fairly in his
discharge grievance against his employer, Chrysler
Corporation ("Chrysler"). A jury returned a verdict in favor
of LaPerriere in the amount of $165,573. The UAW appeals
the judgment in favor of LaPerriere and the court's denial of
its motion for judgment as a matter of law or in the alternative
for a new trial relating to damages. For the reasons set forth
below, we affirm the judgment of the district court.
I. BACKGROUND
Since 1972, Chrysler has employed LaPerriere, a dues
paying member in good standing of the UAW Local 412,
Unit 10, District 3. On June 20, 1994, a task force of
Oakland/Macomb County sheriffs and members of Chrysler’s
security staff raided the homes and businesses of some
Chrysler employees pursuant to search warrants, seeking
stolen Chrysler parts. When they searched LaPerriere’s home
and outbuildings, the task force confiscated fifty-two boxes of

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No. 01-1576 LaPerriere v. UAW 3
Chrysler parts from his home and an additional twenty-three
boxes from his business.
On June 21, 1994, LaPerriere appeared before the Chrysler
Labor Relations Board, where a Chrysler labor relations
person informed LaPerriere that it would pursue charges
against him for theft of company property. LaPerriere’s
union steward, Mark Hasho, accompanied LaPerriere to the
meeting. Chrysler suspended LaPerriere pending further
investigation. Shortly thereafter, Chrysler converted
LaPerriere’s suspension to a dismissal and terminated his
employment. The UAW filed a termination grievance on
LaPerrieres behalf.
On November 7, 1994, police officers arrested LaPerriere
and charged him with several counts of possessing stolen
property. LaPerriere notified Hasho of his arrest. Hasho
advised LaPerriere that the union would place his grievance
on hold pending the result of his criminal action. On
March 24, 1997, after the prosecution rested in his criminal
case, LaPerriere moved for a directed verdict, which the trial
court granted. The court dismissed all criminal charges and
returned the property confiscated from LaPerriere.
LaPerriere notified Hasho of the outcome of his criminal
matter and requested that his grievance proceed. At the
UAW's request, LaPerriere provided the UAW with the trial
transcript. The UAW then requested receipts for all the items
confiscated from LaPerriere. LaPerriere acquired various
receipts and submitted them to the UAW.
On September 23, 1997, the UAW advised LaPerriere that
it had withdrawn his grievance. Hasho advised LaPerriere
that he should not pursue his grievance. Hasho explained that
top union leaders had decided to withdraw LaPerriere's
grievance. Further, Hasho commented that contract or no
4 LaPerriere v. UAW No. 01-1576
1Article 33 o f the UAW ’s constitution guarantees members the right
to app eal the actions o f local and international union o fficials. If a
member challenges an international official's action, the member has the
right to appeal to the International Executive Board (IEB ). In most cases
this results in a hearing at which the member has the right to be
represented by counsel, produce evidence, and submit a brief. If the
member does not timely submit the appeal, the UAW may notify the
appellant that it will not consider the appeal because it is untimely. The
member has the right to appeal that decision to the IEB. If dissatisfied
with the IE B's decision, the member may appeal the decision to the
Convention Appeals Committee (CAC) or the Public Review Board
(PRB ). The CAC consists of elected constitutional convention delegates.
The P RB co nsists of independent individuals with no UAW affiliation.
contract, the union would not act on LaPerriere’s grievance,
and the UAW would not permit an appeal of the decision.1
On February 11, 1998, LaPerriere sued the UAW in state
court, alleging the UAW failed to represent him in his
grievance against Chrysler. After removing the case to
federal court, the UAW filed a motion to dismiss, claiming
that LaPerriere failed to exhaust his administrative remedies
because he did not appeal the UAW’s decision to withdraw
his grievance. The district court denied the UAW's motion.
The case proceeded to trial, and on May 30, 2000, a jury
returned a verdict in favor of LaPerriere in the amount of
$165,573. The UAW then filed a motion for judgment as a
matter of law or in the alternative a new trial. The district
court denied the motion.
II. DISCUSSION
A. Exhaustion of Internal Union Remedies
The UAW asserts as error the denial of its motion for
summary judgment following a jury trial adverse to it.
Paschal v. Flagstar Bank, 295 F.3d 565, 572 (6th Cir. 2002)
(determining that a party may raise as error a denial of
summary judgment after a jury trial when the party preserves
the issue by moving for judgment as a matter of law prior to

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No. 01-1576 LaPerriere v. UAW 5
the verdict and renewing the motion following an adverse
verdict); see also Fed.R.Civ.P. 50.
The UAW argues that the district court erred in denying it
summary judgment because LaPerriere failed to exhaust his
administrative remedies. Generally, a union member must
exhaust internal union remedies before a member can sue the
union for the breach of the duty of fair representation, unless
the member can demonstrate the futility of exhaustion.
Rogers v. Buena Vista Sch., 2 F.3d 163, 166 (6th Cir. 1993).
Relevant factors in the exhaustion analysis include:
(1) whether union officials have shown hostility toward the
member; (2) whether the appeals procedures adequately
reactivate the grievance or award the “full relief” sought; and
(3) whether delay would occur if the procedures were
followed. Monroe v. UAW, 723 F.2d 22, 24-25 (6th Cir.
1983). If any of these factors are found to exist, the court
may properly excuse the employee’s failure to exhaust. Here,
the district court determined that LaPerriere met all three
factors. On review, we conclude that LaPerriere met the first
factor, hostility, thus making it unnecessary to address the
district court's conclusions favorable to the plaintiff on the
factors of adequate procedures and delay.
In order for hostility to excuse exhaustion, hostility must
exist at every level of the appeals process. An employee has
a duty to pursue an appeal with the union even when told at
the local level that an appeal would bring no benefits.
Monroe, 723 F.2d at 26. The UAW argues that, at most,
LaPerriere demonstrated Hasho's comments misled LaPerriere
to believe that the union was unwilling to arbitrate
LaPerriere's grievance. Thus, the UAW asserts LaPerriere
failed to show actual hostility by the union. In making this
argument, the UAW claims that the court based its
conclusions solely on the allegations contained in
LaPerriere’s complaint and affidavit, and ignored Hasho's
contradictory statements. The district court rejected the
UAW's arguments. Instead, the court explained that union
officials were hostile to LaPerriere because he attempted to
6 LaPerriere v. UAW No. 01-1576
2The UAW also claims that the district court sua spon te entered
judgment to LaPerriere on the issue of exhaustion. The record does not
bear this out. While the district court did deny the UAW summary
judgment on the issue of exhaustion, the court's ruling does not
autom atically grant summary judgment to LaPerriere. Fed.R.Civ.P. 56.
The UA W fails to cite to any place in the record showing the district court
indep endently entered summary judgment to LaPerriere.
appeal his grievance. However, local union officials
continually told him it would be useless to appeal because the
top international union officials decided to withdraw his
grievance.
LaPerriere has shown hostility on the part of the local union
in advising him not to pursue his grievance further and
hostility from the international union, which actually
withdrew his grievance and indicated that it would not pursue
the matter further. This is not a case where only the local
union or only the international union refused to pursue
claims; they both refused. Cf. Hammer v. UAW, 178 F.3d 856
(7th Cir. 1999) (upholding the district court's finding of
failure to exhaust where no showing of hostility existed at
either the local or international union levels); Monroe, 723
F.2d at 24 (affirming denial of claim because the union
member only showed hostility at local level). In fact,
LaPerriere has repeatedly offered to stay the present lawsuit,
if the union would allow him to exhaust his administrative
remedies. The union has never accepted this proposal.
While the UAW challenges the district court's finding that
requiring administrative exhaustion would have been futile,
the United States Supreme Court has held that whether to
require exhaustion of intraunion remedies is a matter of
discretion for the trial court to decide. Clayton v. UAW, 451
U.S. 679, 689 (1981). Here, the factual circumstances
underlying the exhaustion requirement support the district
court's determination that LaPerriere's further pursuit of union
grievances would have been futile. The district court did not
err in determining this issue.2

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No. 01-1576 LaPerriere v. UAW 7
B. Judgment as a Matter of Law
The UAW next asserts the district court erred in denying it
judgment as a matter of law. The UAW argues that the jury,
based on the evidence, could not conclude that the UAW
acted in an arbitrary manner in deciding to withdraw
LaPerriere's discharge grievance. We review a district court’s
denial of a motion for judgment as a matter of law de novo.
Conwood Co. v. United States Tobacco Co., 290 F.3d 768,
781 (6th Cir. 2002). District courts should grant judgment as
a matter of law only if a complete absence of proof exists on
a material issue in the action, or if no disputed issue of fact
exists on which reasonable minds could differ. Clark v.
Chrysler Corp., 310 F.3d 461, 479 (6th Cir. 2002).
In the grievance context, the breach of the duty of fair
representation occurs where the union: (1) conducts itself in
an arbitrary or discriminatory manner, or in bad faith;
(2) processes the grievance in a careless manner; or
(3) inadequately handles the grievance due to its ignorance of
the contract provision. Ryan v. General Motors, 929 F.2d
1105, 1109 (6th Cir. 1989).
Here, the jury considered whether the union acted
arbitrarily in deciding not to further pursue LaPerriere’s
claims. The UAW argues that it did not act irrationally
because it decided not to pursue LaPerriere’s claims since he
failed to provide it with the requested documents. LaPerriere
testified that he provided the UAW with all the documents
that he possessed. The jury found for LaPerriere.
The district court denied the UAW's motion for judgment
as a matter of law, stating:
Viewing the evidence in favor of the nonmoving party,
the Court finds there was sufficient evidence to support
the Jury’s finding in favor of [LaPerriere]. [LaPerriere]
testified at trial that he delivered all the documents to
defense counsel for copying during the discovery
8 LaPerriere v. UAW No. 01-1576
process. There was sufficient evidence presented at trial
that there were other reasons why [the UAW] withdrew
[LaPerriere's] grievance in light of the fact that the State
criminal charges against [LaPerriere] were dismissed and
all the property confiscated from [LaPerriere] was
returned to [LaPerriere]. [The UAW] has failed to show
that the evidence before the jury was not sufficient to
support its verdict.
(App. at 153-54.) On appeal, the UAW reasserts the
argument it made to the jury. The UAW fails to articulate
how the evidence supports a different conclusion. Sufficient
proof exists that LaPerriere provided the UAW with
documents which were available, and that the UAW acted
arbitrarily in refusing to pursue LaPerriere's discharge
grievance.
C. Jury Award
Finally, the UAW contends that the district court erred in
not granting it a new trial on the issue of damages because the
evidence does not support the jury award. Generally, the
grant or denial of a new trial is purely within the discretion of
the trial court and will not be reversed except upon a showing
of an abuse of discretion. Whittington v. New Jersey Zinc
Co., 775 F.2d 698, 700 (6th Cir. 1985). The district court
abuses its discretion when we have a definite and firm
conviction that the court committed a clear error of judgment.
Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.
1989). We accept the jury’s verdict if it was reasonably
reached and supported by some competent, credible evidence.
Anchor v. O’Toole, 94 F.3d 1014, 1021 (6th Cir. 1996). A
jury verdict will not be set aside or reduced as excessive
unless it is beyond the maximum damages that the jury
reasonably could find to be compensatory for a party’s loss.
Jones v. Wittenberg University, 534 F.2d 1203, 1212 (6th Cir.
1976).

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No. 01-1576 LaPerriere v. UAW 9
3It appears that the jury may have considered overtime compensation
in calculating LaPerriere's damages. At trial, LaPerriere testified that
while at Chrysler he worked forty hours a week with little overtime. After
Chrysler terminated him, LaPerriere worked seventy-two hours a week for
less money. Thus, LaPerriere testified that as a result of his termination
from Chrysler he had to work an additional thirty hours each week, and
he still made less money than at Chrysler. The jury may have factored the
overtime LaPerriere would have earned if he worked thirty hours a week
of overtime at Chrysler.
In denying the UAW’s motion for a new trial on damages,
the district court explained:
Regarding damages, [the UAW] merely states in a
conclusory fashion that there was no evidence from
which a jury could have determined that [LaPerriere’s]
damages were more than twice what counsel sought. In
response, [LaPerriere] claims he testified at trial that he
was forced to work far more hours to make less money.
[The UAW] has presented no authority which does not
allow a jury to go beyond the damages requested by
counsel. The Court finds that there was sufficient
evidence to support the jury’s award of damages.
(App. at 154-55.) On appeal, the UAW takes the same
position as it did before the district court, that the evidence
did not support the jury award. The UAW maintains that the
record supports a damage award of $73,729. While the
parties agreed to this amount of mitigated lost wages, the
court did not instruct the jury that it could not award more
than this amount.3 The UAW does not point to any case law
to suggest that any error occurred here, and we have found
none to support the union's position. The UAW has failed to
show that the district court abused its discretion in
determining that the jury's award of damages was supported
by competent and credible evidence.
10 LaPerriere v. UAW No. 01-1576
III. CONCLUSION
We AFFIRM the judgment of the district court.

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