American Federation of Government Employees v. DeGrio

• Decision Date: 17 July 1984
• Docket Number: No. 82-1865,82-1865
• Citation: 454 So.2d 632
• Parties: 116 L.R.R.M. (BNA) 3298, 101 Lab.Cas. P 55,475 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Appellant, v. Joella DeGRIO, Appellee.
• Court: Florida District Court of Appeals

Page 632

454 So.2d 632

116 L.R.R.M. (BNA) 3298, 101 Lab.Cas. P 55,475

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Appellant, v. Joella DeGRIO, Appellee.

No. 82-1865.

District Court of Appeal of Florida,

Third District.

July 17, 1984.

Sept. 7, 1984.

Steel, Hector & Davis and Arthur J. England, Jr., Harold D. Smith, Miami, for appellant.

Hershoff & Levy and Jay Levy, George M. Nachwalter, Miami, for appellee.

Before NESBITT and JORGENSON, JJ., and FERRIS, JOHN G., Associate Judge.

NESBITT, Judge.

The American Federation of Government Employees (AFGE) appeals a final judgment finding it liable for negligent infliction of emotional distress and awarding damages in the amount of $400,000. We reverse.

Joella DeGrio, the plaintiff below and appellee herein, was hired by the United States Government in 1961 as a civilian clerk to the United States Army. She was advised on June 15, 1976 that her employment was terminated effective June 25, 1976. DeGrio was a dues-paying member of Local 2447, a local affiliate of the AFGE, a national union and the defendant below. Although DeGrio did participate in local activities and her membership in the local made her a member of the national union, she was not a member of the exclusive bargaining unit of the local and her job was not covered by the collective bargaining agreement.

As both a federal civilian employee and a dues-paying member of the union, DeGrio had two sets of rights when her employment was terminated. Under federal law and Civil Service Commission regulations, she was eligible to appeal her job termination to the Commission. 5 C.F.R. pts. 752, 772. Additionally, as a dues-paying member of the union, DeGrio had a right to request union representation on this appeal. See Exec. Order No. 11,491 (Oct. 29, 1969) (set out as a note at 5 U.S.C.A. § 7101 (1980)).

By a letter dated July 7, 1976, DeGrio indicated that she wished to appeal her job termination and named the AFGE as her representative, stating that the specific name of the national representative would be forthcoming. The AFGE's district vice president received a copy of this letter, and wrote to William Mudgett, a national representative for the AFGE, and informed him of DeGrio's case. Mudgett then contacted the local's president and advised him that DeGrio should notify the Commission that he, Mudgett, would be her representative so he could receive correspondence directly from the Commission. Mudgett was never so designated by DeGrio to the Commission.

Sometime in July 1976, Mudgett picked up DeGrio's file from the local union. On or about July 19, 1976, Mudgett received a letter from DeGrio transmitting certain documents regarding her job termination. Other than this letter, there was no contact between Mudgett and DeGrio before or after the job termination hearing.

On July 29, 1976, the Commission sent DeGrio a copy of her complete file for the appeal, advising her to complete an included form if she desired a hearing. She completed the form indicating she wished a hearing and listed her witnesses and a summary of their expected testimony. Mudgett was not named in the form as DeGrio's representative and he did not receive a copy of the form.

The case was assigned to a hearing officer who notified DeGrio on August 26, that a hearing was set for September 9, 1976. DeGrio and her witnesses appeared before the hearing officer on the indicated date but Mudgett did not attend. There was conflicting testimony as to whether or not Mudgett was aware of the hearing beforehand, but the trial court determined by competent substantial evidence that he did have such knowledge. DeGrio told the hearing officer that she did not wish to proceed with the hearing without her national representative. The hearing officer said he could not determine whether another hearing could be set until he received a written explanation from Mudgett concerning his absence. Mudgett never explained to the hearing officer his failure to attend and consequently no hearing was ever held. The hearing officer ultimately upheld DeGrio's termination on the basis of her employment file. His recommendation went up to the full Commission without challenge on December 9, 1976, and was there adopted without change.

On April 13, 1978, DeGrio brought a negligence action against the AFGE and Mudgett in state court. The complaint sought compensatory damages for emotional and physical stress which required hospitalization, for impaired working ability, and for future loss of wages. The basis of the action was that Mudgett's nonappearance at the hearing on September 9, 1976 was so traumatic to DeGrio that it caused a stress-induced epileptic seizure on September 17, 1976, resulting in a fall causing injuries. DeGrio also sought punitive damages on the ground that Mudgett's failure to appear at the hearing and his later failure to explain his nonappearance constituted a willful and wanton disregard of DeGrio's rights. Mudgett was eventually dismissed as a party defendant and is no longer involved in this case as a party.

The AFGE petitioned this court for a writ of prohibition on the ground that the trial court lacked subject matter jurisdiction. After oral argument, this court dismissed the petition for prohibition without opinion. Mudgett v. Gale, 366 So.2d 901 (Fla.3d DCA), cert. denied, 376 So.2d 74 (Fla.1979), cert. denied, 444 U.S. 1080, 100 S.Ct. 1032, 62 L.Ed.2d 764 (1980).

Following the prohibition proceedings, the trial court struck the punitive damages claim in the complaint. A nonjury trial was conducted on September 22-23, and December 11, 1981. The court found for DeGrio on the negligence claim and awarded $250,000 in compensatory damages. Concluding its earlier order striking the punitive damages claim was error, the court also awarded $150,000 in punitive damages. This appeal followed.

The AFGE maintains, as it has throughout the proceedings in this case, that the circuit court lacked subject matter jurisdiction over this matter. DeGrio counters claiming that this court previously heard oral argument on the merits of the jurisdictional question and subsequently dismissed the petition for prohibition, and that this dismissal was a ruling on the merits and now has a res judicata effect. This same argument was advanced without success in Public Employees Relations Commission v. District School Board of De Soto County, 374 So.2d 1005 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1193 (Fla.1980). As in the present case, the court in Public Employees had previously discharged petitions for prohibition without opinion. The court there found:

It would be pure speculation to attribute any particular reasoning to the majority of the two prior panels of this court which decided that PERC's suggestions for writ of prohibition should be denied. The point is that those denials could have rested on reasons other than the merits of the jurisdictional question posed in those prior proceedings. This being the case, we hold that this court's prior denials of PERC's suggestions for writ of prohibition do not foreclose us from considering the jurisdictional issue on this appeal.

Id. at 1010. Similarly, we find that the dismissal of a writ of prohibition without opinion is not res judicata unless the sole possible ground was that the court acted on the merits of the jurisdictional question, or unless it affirmatively appears that the dismissal was intended to be on the merits. Id. See also State, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA 1982), review denied, 436 So.2d 98 (Fla.1983); Coral Reef Nurseries, Inc. v Babcock Co., 410 So.2d 648 (Fla. 3d DCA 1982). Therefore, our prior dismissal, without opinion, of the petition for prohibition in this case does not foreclose us from considering the jurisdictional question on this appeal. Thus, we now proceed to address that issue.

The AFGE argues that the breach of duty complained of by DeGrio is a breach of the duty of fair representation owed by a labor union to its member and that state courts' jurisdiction has been preempted in this area. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). DeGrio, on the other hand, argues that the duty of fair representation is not involved, and that the AFGE breached a common law duty to act with reasonable care, which was imposed upon the AFGE when it voluntarily undertook to represent DeGrio on her job termination appeal. We agree with DeGrio that the duty of fair representation owed by a labor union to its members in certain circumstances is not involved here.

DeGrio is correct in pointing out that the source of the duty of fair representation is the exclusivity of the union as the bargaining representative. The United States Supreme Court, in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), stated:

The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187, and was soon extended to unions certified under the N.L.R.A., see Ford Motor Co. v. Huffman, [345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048]. Under this doctrine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.

386 U.S. at 177, 87 S.Ct. at 910. The Court further found that:

The federal labor laws seek to promote industrial peace and the improvement of wages and working conditions by fostering a...