Wyatt v. Interstate & Ocean Transport Co.

• Citation: 623 F.2d 888
• Decision Date: 16 May 1980
• Docket Number: Nos. 78-1810,78-1811,s. 78-1810
• Parties: 104 L.R.R.M. (BNA) 2408, 88 Lab.Cas. P 12,066 Earnest Earl WYATT, Appellant, v. INTERSTATE & OCEAN TRANSPORT COMPANY (formerly Interstate Oil Transport Co.), Defendant, and Inland Boatmen's Union of the Seafarer's International Union of North America, Atlantic, Gulf Lakes and Inland Waters District, A.F.L.-C.I.O., Appellees. Earnest Earl WYATT, Appellee, v. INTERSTATE & OCEAN TRANSPORT COMPANY (formerly Interstate Oil Transport Co.), Defendant, and Inland Boatmen's Union of the Seafarer's International Union of North America, Atlantic, Gulf Lakes and Inland Waters District, A.F.L.-C.I.O., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 888

623 F.2d 888

104 L.R.R.M. (BNA) 2408, 88 Lab.Cas. P 12,066

Earnest Earl WYATT, Appellant, v. INTERSTATE & OCEAN TRANSPORT COMPANY (formerly Interstate

Oil Transport Co.), Defendant,

and

Inland Boatmen's Union of the Seafarer's International Union

of North America, Atlantic, Gulf Lakes and Inland

Waters District, A.F.L.-C.I.O., Appellees.

Earnest Earl WYATT, Appellee, v. INTERSTATE & OCEAN TRANSPORT COMPANY (formerly Interstate

Oil Transport Co.), Defendant,

and

Inland Boatmen's Union of the Seafarer's International Union

of North America, Atlantic, Gulf Lakes and Inland

Waters District, A.F.L.-C.I.O., Appellants.

Nos. 78-1810, 78-1811.

United States Court of Appeals Fourth Circuit.

Argued Dec. 5, 1979.

Decided May 16, 1980.

Wayne Lustig, Norfolk, Va. (Campbell, Lustig & Hancock, Norfolk, Va., on brief), for appellant.

C. Arthur Rutter, Jr., Norfolk, Va. (Breit, Rutter & Montagna, Norfolk, Va., on brief), for appellees.

Before FIELD, Senior Circuit Judge, MURNAGHAN and SPROUSE, Circuit Judges.

SPROUSE, Circuit Judge:

This is an appeal by Earnest Earl Wyatt, hereinafter Wyatt, from a judgment of the District Court for the Eastern District of Virginia, Norfolk Division, wherein the trial court granted a judgment notwithstanding the verdict to the defendant Inland Boatmen's Union of the Seafarer's International Union of North America, hereinafter the union, after a jury verdict in favor of Wyatt, the plaintiff below. Wyatt also appeals the trial court's conditional ruling granting the union a new trial on the basis of inadequate evidence to support the verdict and excessive damages.

Wyatt, a former employee of Interstate and Ocean Transport Company, hereinafter employer, injured his back in 1973 during his employment as a deck hand on a tug boat. He was operated on for a ruptured lumbar disc in 1974 and returned to work in October of that year. In early 1976, while still employed by the employer as a deck hand, Wyatt filed suit against the employer for personal injuries stemming from the 1973 accident. In late December, 1976, Wyatt settled his personal injury action with his employer. On January 4, 1977, the employer discharged Wyatt and the next day Wyatt notified a union official, John Fay, of his termination and requested grievance representation by the union. Fay requested a grievance meeting with the employer representatives, which was held seven days after the discharge. After this meeting with the employer, Fay, in response to an inquiry from Wyatt, informed him that his complaint was without merit and the grievance would not be processed. Wyatt commenced this action against the union and the employer in July, 1977, alleging wrongful discharge by the employer and the failure to provide fair representation of his grievance by the union. Wyatt dismissed the employer from the action during the trial.

The employer had the right, under the collective bargaining agreement, to discharge any employee who was not physically able to perform his assigned duties, and the union had the obligation to refer only physically fit employees to the employer. During the discovery stage of Wyatt's personal injury action, there were statements both by Wyatt and his doctor that he was permanently disabled. One of Wyatt's physicians, Dr. Kirk, indicated a 25% permanent partial disability. Wyatt, in response to interrogatories, stated that he had permanent disability in his back and left leg. He stated he had been working as a deck hand although in pain. At the grievance meeting between Fay and the employer representatives, the employer had possession of these medical reports and, in addition, a medical report from a doctor previously retained by the employer (Dr. Neal) who found no permanent disability. At the meeting Fay was shown only the Kirk report and told that Wyatt had been working "in pain." Fay made no request to review other medical information in the Wyatt file. On this basis Fay determined there was no merit to Wyatt's requested grievance.

After trial, with the union as the sole defendant, the jury found for the plaintiff Wyatt in the amount of $50,000. The court granted the union's Rule 50(b), F.R.Civ.P. motion for judgment notwithstanding the verdict and, as required by Rule 50(c), F.R.Civ.P., ruled on the motion for a new trial. It conditionally ordered a new trial both on the ground that the verdict was contrary to the clear weight of the evidence and that it was excessive. Wyatt appeals from both the judgment notwithstanding the verdict and the order granting a new trial. We reverse that portion of the trial court's ruling granting the judgment notwithstanding the verdict and affirm the order granting a new trial.

A union's duty to fairly represent is to "serve the interests of all members without hostility, discrimination, arbitrariness or capriciousness toward any. Although a union may exercise discretion in representing employees, it must act with complete good faith and honesty." Harrison v. United Transportation Union, 530 F.2d 558, 561 (4th Cir. 1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1739, 48 L.Ed.2d 203 (1976). A breach of a union's statutory duty of fair representation occurs "only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). See also International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979).

In Griffin v. International Union, United Automobile A. & A. I. W., 469 F.2d 181 (4th Cir. 1972), this Court said:

A union must conform its behavior to each of these three separate standards. First, it must treat all factions and segments of its membership without hostility or discrimination. Next, the broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty. Finally, the union must avoid arbitrary conduct. Each of these requirements represent a distinct and separate obligation, the breach of which may constitute the basis for civil action.

Id. at 183.

To sustain a member's action against his union under Griffin standards, it is not necessary that the union's breach be intentional. A union representative could be so indifferent to the rights of members or so grossly deficient in his conduct purporting to protect the rights of members that the conduct could be equated with arbitrary action. Baldini v. Local Union No. 1095, 581 F.2d 145 (7th Cir. 1978); Robesky v. Qantas Empire Airways, Lts., 573 F.2d 1082 (9th Cir. 1978); Hughes v. International Brotherhood of Teamsters, Local 683, 554 F.2d 365 (9th Cir. 1977); Ruzicka v. General Motors Corporation, 523 F.2d 306 (6th Cir. 1975); DeArroyo v. Sindicato de Trabajadores Packinghouse, AFL-CIO, 425 F.2d 281 (1st Cir.), cert. denied, 400 U.S. 877, 91 S.Ct. 117, 27 L.Ed.2d 114 (1970). In the final analysis the right of an individual employee to have his grievance processed depends on the provision of the applicable collective bargaining agreement and the facts of each case.

Wyatt, during his initial contact with Fay, indicated a suspicion that the employer had discharged him due to his civil action against it. In Wyatt's telephone calls to Fay, he pressed his contention that he was able to work. Considering the normal adversary relationship between union representatives and employer representatives in processing grievances, Fay was required to do more than pliantly accept the employer's version of Wyatt's ability to work. Liability for failure to represent, however, cannot be predicated upon simple negligence but must reach the degree of culpability discussed in Griffin, Harrison and Vaca.

A union's violation of its discretionary duty must be considered under the circumstances of each case to determine if...