Gosper v. Fancher

49 A.D.2d 674, 371 N.Y.S.2d 28, 90 L.R.R.M. (BNA) 2336, 1975 N.Y. App. Div. LEXIS 10519

Opinion

Judgment unanimously modified, on the law, to reverse the award of damages and a new trial granted on that issue and otherwise judgment affirmed, without costs. Memorandum: In 1965 plaintiff, a fireman employed by the Erie Lackawanna Railroad Company, was discharged on two grounds. He initiated grievance procedures through defendant union which acted in bad faith and violated its duty of fair representation by handling plaintiff’s grievance in a perfunctory manner (Vaca v Sipes, 386 US 171; Scott v Anchor Motor Freight, 496 F2d 276, cert den 419 US 868). He then brought this action for damages against his union. Upon the trial the jury was erroneously charged that the difference between plaintiff’s prior fireman’s income and his reduced income after termination was a proper measure of damages. The union, however, was only liable for loss of employment damages "to the extent that its refusal to handle the grievances added to the difficulty and expense of collecting from the employer” (Czosek v O’Mara, 397 US 25, 29; Schum v South Buffalo By. Co., 496 F2d 328). Because plaintiff has not established any compensable damages within this rule of Federal labor law we are, therefore, constrained to reverse and grant a new trial on the issue of damages only. (Appeal from judgment of Erie Trial Term in action for damages for processing of grievance.) Present— Marsh, P. J., Moule, Mahoney, Del Vecchio and Witmer, JJ.