Foust v. International Broth. of Elec. Workers
| Citation | 572 F.2d 710 |
| Decision Date | 06 March 1978 |
| Docket Number | No. 76-1951,76-1951 |
| Parties | 97 L.R.R.M. (BNA) 3040, 83 Lab.Cas. P 10,415 Leroy FOUST, Plaintiff-Appellee, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, D. F. Jones, District Chairman, in his representative capacity, Leo Wisniski, General Chairman, in his representative capacity, and Frank T. Gladney, International Vice President, in his representative capacity, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Terry W. Mackey of Urbigkit, Mackey, Whitehead & Sullivan, P. C., Cheyenne, Wyo., for plaintiff-appellee.
William J. Hickey, Washington, D. C. (Edward J. Hickey, Jr., Washington, D. C., and Mulholland, Hickey & Lyman, Washington, D. C., of counsel, on the brief), for defendants-appellants.
Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.
The International Brotherhood of Electrical Workers, defendant-appellant herein, seeks reversal of a judgment of the United States District Court for the District of Wyoming, which was based on a jury verdict holding the Brotherhood liable for breach of duty to fairly represent plaintiff-appellee Leroy Foust in grievance proceedings addressed to the Union Pacific Railroad and ultimately to the Railway Adjustment Board. The judgment of the district court was in favor of Foust and included an award of $40,000 actual damages and $75,000 punitive damages. The crucial question on this appeal is whether the evidence supports the judgment based upon breach on the part of the Brotherhood of a duty owed to Foust, a member of the Union.
Foust was a radioman, who had been employed by Union Pacific Railroad and had been a member of the International Brotherhood of Electrical Workers, which organization was his collective bargaining representative while he was employed by the railroad. The individual defendants herein are the officers of the Union. The injury to Foust occurred on March 9, 1970, while he was on the job. He had a claim against the railroad under the Federal Employer's Liability Act, which claim was settled on September 25, 1973. The settlement provided for payment of $75,000 to Foust less $2,600 in sickness benefits. He waived future right of employment and any claim that he might have had for alleged wrongful discharge against the railroad.
His second claim was that which had arisen as a result of the railroad company terminating his employment. A release was given with respect to this when he received the $75,000 settlement.
The claim in the instant case is against the Union and is based on its alleged failure to represent him fairly in the proceedings having to do with his grievance which grew out of the termination of his employment by the Union Pacific Railroad Company.
Our main concern is, therefore, whether the proof at trial was legally sufficient to establish a claim that the Union violated a legal duty to represent him, supported by sufficient evidence.
After his injury on March 9, 1970, Foust went on leave of absence from his job in order to obtain medical treatment for his injured back.
The rules in the Collective Bargaining Agreement provided for an employee to file a request for a leave of absence for a limited period of time with rights of renewal on request. Based upon Rule 23(b) of the Collective Bargaining Agreement, he must apply for leave of absence at the peril of being terminated. The Agreement provides:
Failure to report for duty at the expiration of leave of absence shall terminate an employe's service and seniority, unless he presents a reasonable excuse for such failure not later than seven days after expiration of leave of absence.
On January 12, 1971, Union Pacific advised Foust by letter that his current leave of absence had expired December 22, 1970; that they had not heard from him; and that it was necessary that a proper request for an extension accompanied by a statement from his doctor be furnished. On January 21, 1971, Foust's then attorney informed the railroad that Foust had filed a request for extension in December and asked whether it had been received and, if not, what forms were needed.
The railroad responded on January 25, 1971, advising the attorney that it still did not have a physician's statement and that when one was received Foust's request for leave would be considered. However, on February 3, the railroad wrote to Foust and advised him that he was being terminated for failure to request an extension prior to expiration of his leave and for failure to furnish a statement from his doctor as to the necessity for additional leave.
Foust's attorney contacted the railroad in an attempt to get the decision to discharge Foust reversed. On March 26, 51 days after the date of discharge, he wrote to one Dean Jones, District Chairman of the Brotherhood. 1 This letter was received Saturday March 27. Thereupon, Jones contacted the General Chairman of the Systems Council in Omaha, Leo Wisniski. Wisniski prepared a letter which was sent first to Jones in Omaha, and then sent to Foust with Jones' signature. This was dated April 5. It acknowledged receipt of the letter from Foust's lawyer. It explained that Rule 21 of the Collective Bargaining Agreement required a grievance to be presented in writing by or on behalf of the employee involved. The necessity to receive a written authority to handle claims or grievances on behalf of an employee was explained. The letter went on to say that: " . . . Upon receipt of your grievance in writing, and request to the undersigned to handle your initial claim pertaining to the Carrier terminating your service, it will be reviewed and handled under the proper grievance procedures . . ."
Jones filed a claim on Foust's behalf, but did not do so before April 6, which was two days after the deadline. The claim letter was prepared by Wisniski in Omaha and was mailed to Jones in Rawlins, Wyoming, and then sent by Jones to the railroad officer in Omaha. It is not surprising that this claim was denied because of its not having been timely filed. The Union appealed this decision, but it was finally denied by the Railway Board of Adjustment as having been filed two days late.
The issues which are advanced on behalf of the International Brotherhood, defendant-appellant, as a basis for reversal include:
1. The alleged error of the trial court in upholding a verdict, the effect of which was to hold the Brotherhood liable for breach of a duty owed to Foust to represent him.
2. The alleged error of the court in failing to set aside the jury verdict granting, first, compensatory damages in the amount of $40,000, and, secondly, punitive damages in the amount of $75,000.
3. The alleged error of the court in allowing the case to be tried by a jury and in its having failed to grant a motion for directed verdict.
4. The error of the court in failing to dismiss the case because of the neglect of Foust to pursue and exhaust his administrative remedies.
DID THE TRIAL COURT ERR IN ITS FORMULATION AND SUBMISSION TO
The court in its charge to the jury explained the plaintiff's theory of recovery as having arisen from his wrongful discharge on February 3, 1971, by the Union Pacific Railroad for having failed to file for a continued leave of absence. The court explained that under Rule 21 of the Collective Bargaining Agreement between the Union and the Union Pacific Railroad Company, a notice of grievance was required to be filed within 60 days of the date that the grievance occurred, the grievance here being the alleged unlawful discharge. Plaintiff's contention was explained as the Union's failure to file the grievance within the 60-day period, notwithstanding his request within the 60-day period and resulting in denial by the Board of Adjustment (which functions under the Railway Labor Act). The court further said that the allegation of plaintiff was that the Union was guilty of gross nonfeasance and hostile discrimination in arbitrarily and capriciously refusing to process the plaintiff's grievance and in refusing to file it timely.
The issues for the jury to determine were, first, whether the defendant Union was obliged to represent the plaintiff at grievance procedures with the Union Pacific; second, whether failure to represent breached a duty owed the plaintiff to represent him fairly in grievance procedures; third, whether the Union was guilty of gross nonfeasance, hostile discrimination and arbitrary and capricious failure to process the grievance and, finally, whether plaintiff was damaged by this failure.
The jury was also told that it must ignore the wrongful discharge by the Union Pacific Company as a source of damage; that a claim against the Brotherhood for breach of a duty of fair representation was a separate and distinct claim from his wrongful discharge at the hands of Union Pacific.
Emphasis was placed on the need for the jury to find, in order for the plaintiff to recover, that the action of the Union caused damage to him independent of any action which the Union Pacific may have taken. The jury was told that the essential legal standard which the evidence had to satisfy was arbitrariness and capriciousness of the Union; that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory manner. Arbitrary and capricious were said to be synonymous and were defined as an act done without adequate principle or an act not done according to reason and judgment. Arbitrary and capricious were defined as requiring judgment on the basis of whether the act complained of is reasonable or unreasonable under the circumstances. Bad faith was described as implying a breach of faith.
It would seem that the source of the Union's obligation to represent the member of the Union arises under the Railway Labor Act, 45 U.S.C. § 151 et seq., plus the Collective Bargaining Agreement between the...
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International Brotherhood of Electrical Workers v. Foust
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