530 F.2d 558 (4th Cir. 1975), 74--1737, Harrison v. United Transp. Union

Docket Nº:74--1737, 74--1738.
Citation:530 F.2d 558
Party Name:Seymon B. HARRISON, Appellee, v. UNITED TRANSPORTATION UNION, Appellant, Norfolk and Portsmouth Belt Line Railroad Company, Defendant. Seymon B. HARRISON, Appellant, v. UNITED TRANSPORTATION UNION and Norfolk and Portsmouth Belt Line Railroad Company, Appellees.
Case Date:December 05, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 558

530 F.2d 558 (4th Cir. 1975)

Seymon B. HARRISON, Appellee,



Norfolk and Portsmouth Belt Line Railroad Company, Defendant.

Seymon B. HARRISON, Appellant,


UNITED TRANSPORTATION UNION and Norfolk and Portsmouth Belt

Line Railroad Company, Appellees.

Nos. 74--1737, 74--1738.

United States Court of Appeals, Fourth Circuit

December 5, 1975

Argued Feb. 3, 1975.

Certiorari Denied May 3, 1976.

See 96 S.Ct. 1739.

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John M. Ryan, Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for Seymon Harrison.

Raymond H. Strople, Portsmouth, Va. (Willard J. Moody and Moody, McMurran & Miller, Portsmouth, Va., on brief), for United Transp. in No. 74--1737; William E. Rachels, Jr., Norfolk, Va. (Wilcox, Savage, Lawrence, Dickson & Spindle, Norfolk, Va., on brief), for United Transp. and Norfolk & Portsmouth R. Co., in No. 74--1738.

Before HAYNSWORTH, Chief Judge, and WINTER and FIELD, Circuit Judges.


Seymon B. Harrison, a conductor on the Norfolk and Portsmouth Belt Line Railroad (Belt Line), sued the railroad and United Tansportation Union (UTU) and Local 854 of UTU. He dismissed the suit against Local 854 before trial. The complaint alleged that Belt Line and UTU had illegally conspired in the handling of Harrison's grievance that he was improperly suspended for sixty days for purported insubordination and failure to obey an order of his superior. In a jury trial, the district court directed a verdict for Belt Line on the ground that the evidence was legally insufficient to prove that it entered into a civil conspiracy with UTU. The district court submitted the case against UTU to the jury, which awarded a verdict against UTU for $1,570 in consequential damages as compensation for lost wages and $6,000 in punitive damages.

Harrison and UTU have both appealed. Harrison contends that the district court erred in directing a verdict for Belt Line and in refusing to award him attorneys' fees. UTU argues that the evidence was insufficient to show that it breached its duty to represent Harrison, that it cannot be liable for compensatory damages equivalent to Harrison's loss of wages, and that no punitive damages should have been assessed against it.

We think Harrison is correct in his contention that the district court should have awarded him attorneys' fees. However, in all other respects we affirm the district court's judgment.


On the evening of August 18, 1970, Harrison became embroiled in a verbal

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altercation with a certain Lassiter, an assistant Trainmaster and road foreman of engineers. The discussion was both vehement and blunt. Lassiter wanted to know why Harrison did not call the Yardmaster for orders before the train on which Harrison was a conductor reached the West End Junction in Norfolk, Virginia. Lassiter also told Harrison that a certain brakeman should be lining up switches. Harrison defended his conduct on the first point and asserted that the matter of directing the brakeman's activity was within the discretion of the conductor, to-wit, himself. During the discussion, Lassiter told Harrison several times to be in Lassiter's office at 8:30 a.m. the next morning. Harrison testified, however, that after conferring with Yardmaster Bowen before the appointed hour, and learning that Bowen would talk to Superintendent Huddle about what had occurred, Harrison did not believe that he was required to go to Lassiter's office at 8:30 a.m. and did not do so. When he attempted to report for work at 4:00 p.m. on August 19, a railroad official told him that he was being held out of service. Harrison immediately communicated with the Chairman of Local 854, who agreed to represent Harrison. Harrison was charged with violation of Rule 427, 'insubordination', and Rule 554, 'failure to obey the orders of a superior.'

The hearing on the charge against Harrison was postponed once so that his case could be properly prepared, but the matter was eventually heard and Harrison was advised in writing that he was suspended without pay for sixty days beginning August 19, 1970, for violating Rules 427 and 554. Harrison's representative filed a claim objecting to the suspension and requesting that Harrison be reinstated and paid for all time lost. This claim was denied and an appeal was taken to the General Committee of Adjustment.

On or about December 21, 1970, a meeting occurred between the UTU General Chairman of the General Committee of Adjustment and F. W. Morrison, President of Belt Line, at which Harrison's claim was discussed. Although the union representative argued that Lassiter's conduct mitigated Harrison's failure to obey the order to be in Lassiter's office, President Morrison concluded to uphold the previous decisions.

According to the terms of the bargaining agreement between Belt Line and the UTU, Harrison or his representative had sixty days in which to file an appeal from the president's decision. On February 11, 1971, a written notice of appeal was given by the union representative (he had recently qualified as General Chairman); and on April 20, 1971, a meeting occurred between the union representative, the chairman of the Local Committee of Adjustment, the superintendent and the Belt Line president. At the meeting, the grievances of Harrison, a certain Howard J. Gray, Jr., and others were discussed. Gray, who had been discharged by the railroad, had a record of numerous violations of the railroad's rules and an arrest and fine for public drunkenness.

Precisely all that was discussed at the meeting is a matter of considerable dispute, but Morrison made a memorandum for his file in which he stated, 'Conductor Howard J. Gray, Jr., will be reinstated * * * provided the UTU does not further progress * * * the claim in favor of S. B. Harrison. It was agreed by those in attendance that they would not be progressed until too late to do so account time limit.' (Emphasis added.) In violation of the union's constitution and by-laws, Harrison was not advised of the agreement not to 'progress' his claim. The reasons for the failure to notify Harrison that his claim would not be 'progressed' (appealed to a Public Law Board or the First Division of the National Railroad Adjustment Board) are in dispute. Harrison claims that the failure to notify him was intentional. The UTU claims that it was an accidental oversight. In any event, Harrison's right to pursue his claim, individually or through a union representative, lapsed, and thereafter he filed this suit.


We reject Harrison's claim that the district court should have submitted

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to the jury the question of his right to recover against Belt Line. While Harrison's complaint alleged that his suspension was improper, he did not seek recovery against the railroad on that basis. Rather, he sought relief against Belt Line solely upon the ground that it had participated in a civil conspiracy to deprive him of his right to pursue his grievance. From our reading of the record, we do not find sufficient evidence to put to the jury the question whether Belt Line was a coconspirator in a civil conspiracy. As we stated in Ross v. Peck Iron & Metal Co., 264 F.2d 262, 268 (4 Cir. 1959), a civil conspiracy is a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means.

The memorandum of the April 20 meeting may be construed to establish that various grievances of various individuals were 'traded', but such a construction does not prove that the railroad breached a duty toward Harrison. Belt Line is under no legal duty to represent its employees; it is free to represent its own interests where they conflict with those of an employee. Nor, as a general rule, is Belt Line required to make certain that the union fairly represents Belt Line's employees. The case might be a different one if Harrison had proved that Belt Line and UTU acted in concert with the joint motive...

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