# Harrison v. United Transportation Union

> Court of Appeals for the Fourth Circuit · December 5, 1975 · 530 F.2d 558

URL: https://www.frixlaw.com/law-library/cases/8898538

## Case

- **Full name:** Seymon B. HARRISON v. UNITED TRANSPORTATION UNION, Norfolk and Portsmouth Belt Line Railroad Company, Defendant Seymon B. HARRISON v. UNITED TRANSPORTATION UNION and Norfolk and Portsmouth Belt Line Railroad Company
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** December 5, 1975
- **Citations:** 530 F.2d 558; 90 L.R.R.M. (BNA) 3265
- **Precedential status:** Published
- **Opinion:** Concurring in part by Winter
- **Judges:** Winter
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WINTER, Circuit Judge
(concurring in part and dissenting in part):
I agree with the majority that the district court correctly directed a verdict for Belt Line, that Harrison’s recovery of $6,000 in punitive damages should be sustained, and that the district court should be directed to allow Harrison counsel fees. Accordingly, I concur in Parts I, II, IV and V of the majority opinion. In the light of Vaca v. Sipes, 386 U.S. 171 , 87 S.Ct. 903 , 17 L.Ed.2d 842 (1967), and Czosek v. O’Mara, 397 U.S. 25 , 90 S.Ct. 770 , 25 L.Ed.2d 21 (1970), I am unable to conclude that Harrison’s recovery for lost earnings can be sustained and I therefore respectfully dissent from Part III.
Vaca was a suit by a union member against the union alleging, inter alia, that he had been improperly discharged by his employer and that the union had arbitrarily refused to take his grievance to arbitration. While the Court held that, on the facts, arbitrary or bad faith conduct on the part of the union in processing the grievance had not been shown, the Court also held that “[t]he appropriate remedy for a breach of a union’s duty of fair representation must vary with the circumstances of the particular breach.” 386 U.S. at 195 , 87 S.Ct. at 919 . Both a decree compelling arbitration and damages were mentioned as possible remedies. But the Court held that the union could not properly be held liable for those damages which are attributable solely to the employee’s allegedly wrongful discharge:
[M]ay an award against a union include, as it did here, damages attributable solely to the employer’s breach of contract? We think not. Though the union has violated a statutory duty in failing to press the grievance, it is the employer’s unrelated breach of contract which triggered the controversy and which caused this portion of the *565 employee’s damages. The employee should have no difficulty recovering these damages from the employer .. With the employee assured of direct recovery from the employer, we see no merit in requiring the union to pay the employer’s share of the damages. (Footnote eliminated.) 386 U.S. at 197 , 85 S.Ct. at 920.
Of course, in Vaca the employer was not a railroad and was subject to the provisions of the National Labor Relations Act and the Labor Management Relations Act. Harrison contends that the employee was not permitted to recover loss of earnings from the union in Vaca because the employee had a remedy against the employer under these Acts. In the instant case, the argument runs, the employer is a railroad and the provisions of the Railway Labor Act do not give a railroad employee a similar right of action for loss of wages against his employer; therefore, Vaca does not bar his recovery of lost wages from the union.
Czosek , however, answers Harrison’s argument. It was a case in which employees of a railroad sought damages against the railroad and the union. The employees alleged that they had been wrongfully discharged by the railroad and that the union had been “guilty of gross nonfeasance and hostile discrimination” in refusing to press their claims. The district court dismissed the railroad for failure to exhaust administrative remedies and lack of diversity jurisdiction. In this respect, the Court of Appeals affirmed, but ordered that on remand plaintiffs be given the right to amend their complaint if they wished to allege “that the employer was somehow implicated in the union’s discrimination.” The district court also dismissed the claim against the union, but the Court of Appeals reversed.
In the Supreme Court, the union challenged dismissal of the complaint against the railroad; evidently it feared that it might be held liable for damages inflicted by the employer. But the Court held that even if the railroad were not joined, judgment against the union could be had
only for those damages that flowed from its conduct:
Assuming a wrongful discharge by the employer independent of any discriminatory conduct by the union and a subsequent discriminatory refusal by the union to process grievances based on the discharge, damages against the union for loss of employment are unrecoverable except to the extent that its refusal to handle the grievances added to the difficulty and expense of collecting from the employer. 397 U.S. at 29 , 90 S.Ct. at 773 .
The majority asserts that, strictly viewed on its facts, the holding and language of Czosek do not answer Harrison’s contention. I cannot agree. The flat language of the Czosek opinion can be searched in vain for any suggestion that it was predicated on recognition that the employees had an independent right to recover lost wages from the railroad. By its interpretation of Andrews v. Louisville & Nashville Railroad Company, 406 U.S. 320 , 92 S.Ct. 1562 , 32 L.Ed.2d 95 (1972), the majority impliedly holds that Andrews overruled Czosek sub silentio. I see no warrant for this view. Andrews , too, can be searched in vain for any language indicating that Andrews was intended to have that effect. Moreover, the majority’s conclusion also flies in the teeth of the rationale of Vaca that, in an alleged wrongful discharge case, it is the employer’s breach of the contract of employment which gives rise to the loss of wages, not the union’s failure properly to press the claim.
My view that Harrison ought not to recover loss of earnings might seem harsh if employees in Harrison’s situation could not win compensation from employers on meritorious breach of contract claims. The question is not directly before us, since Harrison has neither expressly alleged nor pressed a claim of wrongful suspension against Belt Line. But if Harrison’s failure to press such a claim is not a sufficient reason to justify the majority’s departure from the exact language of Vaca and Czosek , I add that I am persuaded that in a proper case the means for making such a claim do exist. *566 If an employee covered by the Railway Labor Act has an independent contract claim against his employer, the appropriate initial forum is generally the Adjustment Board. Andrews v. Louisville & Nashville R.R. Co., supra 1 Where this forum is closed to the employee because of his union’s breach of the duty of fair representation, the employee is not precluded from suing the employer. See Schum v. South Buffalo Rwy. Co., 496 F.2d 328 (2 Cir. 1974). 2 “To leave the employee remediless in such circumstances would ... be a great injustice.” Vaca v. Sipes, supra, 386 U.S. at 185-86 , 87 S.Ct. at 914 . Federal jurisdiction for the fair representation claim against the union exists under 28 U.S.C. § 1337 . Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 213 , 65 S.Ct. 235 , 89 L.Ed. 187 (1944). The employee’s independent claim against the employer may be treated as pendent to the claim against the union. 3 Other grounds- of jurisdiction for the claim against the employer may also exist.
In any event, to my mind Czosek dictates that Harrison cannot recover loss of earnings for his suspension from the railroad. He did not allege that the union “affirmatively caused the employer to commit the alleged breach of contract.” Vaca, 386 U.S. at 197 n. 18, 87 S.Ct. at 920 . Nor does the record contain any evidence that UTU played any part in Belt Line’s decision to suspend Harrison. And since he has not sought to recover damages from Belt Line for wrongful discharge, he can hardly claim that the union increased the difficulty and expense of recovery of such damages.
I conclude that the only compensatory damages that Harrison may recover from UTU are those caused directly by the union’s failure to afford him good faith representation. But Harrison has not proved any special damages resulting from the union’s breach of duty. At most, his consequential damages are only nominal. If only nominal, I would not grant him or UTU a new trial; I would simply direct that this portion of the judgment be reduced to $1.00.
While I agree with the majority in sustaining Harrison’s recovery of punitive damages, in view of the fact that I would reverse, or drastically reduce, his recovery of compensatory damages, I should add a word about why I would reject UTU’s argument, in reliance of the law of Virginia, that punitive damages may not be awarded when there is no recovery of compensatory damages. The short answer is that while state law may sometimes provide useful guides in adjudicating federal rights, Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191, 199-200 (4 Cir. 1963), a case like the instant one should be decided by the “federal law which the courts must fashion from the policy of our national labor laws.” Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456 , 77 S.Ct. 912, 918 , 1 L.Ed.2d 972 (1957). Accordingly, I think that the majority is fully justified in fashioning a federal common *567 law of damages to sustain Harrison’s recovery of punitive damages.
. But see Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 918 (7 Cir. 1974), which held Andrews applies only where the dispute stems “from differing interpretations of the collective-bargaining agreement,” Andrews v. Louisville & Nashville R.R. Co., 406 U.S. at 324 , 92 S.Ct. at 1565 , and not where the employee’s claim “rests upon a charge” that the employer violated the Railway Labor Act itself.
. It is also possible that “when a single series of events gives rise to claims against the employer for breach of contract and against the union for breach of the duty of fair representation,” the employee may not be required to take his claim against the employer to the Adjustment Board, even if the Board is open to him. The Supreme Court specifically reserved this question in Czosek v. O’Mara, 397 U.S. 25, 30 , 90 S.Ct. 770, 774 , 25 L.Ed.2d 21 (1970). Andrews does not necessarily provide the answer. I think that Schum was correctly decided.
. See Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2 Cir. 1971); Stone v. Stone, 405 F.2d 94 (4 Cir. 1968), holding that if there is federal jurisdiction against one party, pendent jurisdiction may bring in a closely related state claim against another party. But see the restrained discussion of this point in Moor v. County of Alameda, 411 U.S. 693, 713-15 , 93 S.Ct. 1785 , 36 L.Ed.2d 596 (1973). See generally UMW v. Gibbs, 383 U.S. 715 , 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966); 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3567 at 439-62.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8898538. Public record. Not legal advice.