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Pulcino v. Federal Express Corp.3/1/1999
e resulted from interference with and coercion of employee organization even though they did not result in discharge.
b. Exclusion of Evidence
Pulcino also contends that the trial court erroneously excluded relevant evidence of FedEx's corporate state of mind and events occurring before she became a handler. To prove corporate state of mind, she offered Adams v. FedEx, a 1979 decision enjoining FedEx from interfering with employees' right to choose a union representative, and the 1992 National Mediation Board's decision which held that CEO Smith and other high-level officers interfered with the pilot's union vote.
The trial court deemed Adams "too remote to be relevant." Pulcino argues that Adams is relevant despite its temporal remoteness because FedEx has the same leadership now as it did then and is still subject to the Adams injunction. We agree. Pulcino should have been permitted to use this case to develop her theory that FedEx has established a pattern and practice of discriminatory behavior against unions. Its very remoteness helps to establish the longstanding nature of the alleged pattern.
We also conclude that the trial court's decision to exclude the 1992 decision had no discernible basis. The court stated simply, "{a}s to the pilots, I find that that is not relevant, either . . .". Presumably, the court perceived the pilots' situation to be different from the FAs'. But because the pilots and the FAs worked closely together, and because it is reasonable to infer that FedEx's conflict with the pilots affected its dealings with the FAs, Pulcino should have been permitted to offer this case as evidence of FedEx's corporate state of mind, and the trial court's decision to exclude it was error.
Because the court excluded all evidence which preceded Pulcino's hiring as a handler, she could not offer: 1) evidence that Smith warned employees they were subject to lay-off if they were organized, 2) FedEx's inability to cite any provision in the Collective Bargaining Agreement which stated that FAs are to be treated as external candidates for jobs, 3) evidence that the FA union was the only surviving bargaining unit of the 10 that came with the Flying Tiger acquisition, 4) the short time between the FAs' decision to retain the union and FedEx's decision to furlough them, 5) CEO Smith's interest in the FAs' union decertification effort, and 6) comments by Smith to a pilot about the FA reorganization. Pulcino argues that the trial court erred in excluding all this evidence without allowing her to make an offer of proof. We agree.
Pulcino is correct that a trial court abuses its discretion when it finds potential evidence irrelevant without an offer of proof or its equivalent. Based on its erroneous Conclusion that Pulcino's claim was restricted to wrongful discharge, the court excluded all evidence which occurred prior to her employment as a handler at the Microsoft dock. But that is not the issue here. Because Pulcino should have been permitted to show that FedEx sought to stymie the FAs' attempts to find adequate employment within FedEx after the furlough, FedEx's allegedly anti-union pronouncements and actions are relevant. Although it is possible that not all of the evidence Pulcino seeks to offer should be admitted, the trial court erred in ordering a blanket exclusion of all evidence which preceded her final months at FedEx. On remand, it should permit Pulcino to present an offer of proof on any evidence the court intends to exclude and admit evidence relevant to FedEx's corporate state of mind.
c. Denial of Discovery
The trial court also denied Pulcino's motion to compel production of "documents relating to
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