DOCKET NO.: 78-38
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Tenth Circuit
CITATION: 442 US 42 (1979)
ARGUED: Feb 26, 1979
DECIDED: May 29, 1979
Laurence J. Cohen - for petitioners
Terry W. Mackey - for respondent
Facts of the case
Media for International Brotherhood of Electrical Workers v. Foust
Audio Transcription for Oral Argument - February 26, 1979 in International Brotherhood of Electrical Workers v. Foust
Warren E. Burger:
We'll hear arguments next in International Brotherhood of Electrical Workers against Foust.
Mr. Cohen, I think you may proceed when you are ready.
Laurence J. Cohen:
Thank you Mr. Chief Justice, and may it please the Court.
This is an action for breach of the duty of fair representation under the Railway Labor Act.
In the district court, the jury found that the union had breached its duty to Mr. Foust.
It awarded compensatory damages of $40,000 and punitive damages of $75,000.
The Tenth Circuit affirmed in all respects.
This Court denied certiorari on two of the issues raised in our petition whether the union had breached its duty as a matter of law and whether the award of compensatory damages was proper.
The single issue on which certiorari was granted, was the propriety of the punitive damage award.
The basis for the lower court's finding that the union had breached its duty to Foust was the fact that it filed a grievance on his behalf, two days after the expiration of the 60-day grievance period provided in the collective bargaining agreement and that was the basis of the ultimate denial of that grievance by the National Railroad Adjustment Board.
The facts underlying the filing of the grievance are basically undisputed and can be summarized briefly.
Foust was an employee of the Union Pacific Railroad and he was represented by the IBEW for collective bargaining purposes.
In March of 1970, he was injured on the job.
He took several succeeding medical leaves of absence, the last of which expired December 22, 1970.
He did not file a timely request for a further extension of his leave of absence.
And on February 3, 1971, The Railroad wrote to Foust and stated that he was discharged for his failure to do so and his failure to submit a required physician statement.
Now under this Court's decision in Elgin, Joliet & Eastern Railway against Burley, Foust at that point had the option of proceeding on his own to file a grievance or asking that it be handled by his union or by an attorney.
He chose to use the attorney, who was then representing him in his personal injury claim under the Federal Employers Liability Act and on February 11, his attorney wrote to the Railroad concerning the discharge.
The letter went unanswered and he got no favorable response in two subsequent phone calls to The Railroad.
On March 26, which was the 51st day of the grievance period, the attorney wrote to the union, the union representative Jones, and asked that the union attempt to have Jones, excuse me, Foust reinstated.
Jones considered the request unusual, since it came not from the employee the union represented but from his attorney.
So he called his superior.
They discussed the matter and concluded they needed an authorization from Foust himself to proceed, and the superior prepared a letter for Jones to send to Foust.
He mailed that letter to Jones, who dated and signed it and he mailed it to Foust on April the 5th.
In essence, the letter said we need a written authorization from you to handle this matter on your behalf.
He didn't wait for a response.
However, on the following day, April 6, he filed a grievance.
That however was two days after the 60-day period.
I would like to mention two other factual points.
He knew that, didn't he?