13.2 LMRA § 301—Damages (29 U.S.C. § 185)
If you find for the plaintiff, you must then consider the issue of damages. The amount of your verdict should be a sum that you find will justly compensate the plaintiff for the damages the plaintiff has incurred. The measure of such damages, if any, is the amount that the plaintiff would have earned from employment with the employer if the discharge had not occurred, reduced by any earnings that the plaintiff received, or could have reasonably received, from other employment.
[Here insert type of damages recoverable. See Instructions 5.1 (Damages–Proof) and 5.2 (Measures of Types of Damages), and if mitigation is at issue, see Instruction 5.3 (Damages–Mitigation).]
Once you have arrived at a figure for lost wages or damages, you must apportion those damages between the employer and the union. In making the apportionment, you should follow this guideline: The employer is liable for lost wages and benefits due solely to its breach of the collective bargaining agreement in discharging the plaintiff, up to the point in time that the employer’s action would have been reversed had the union timely processed a grievance against the employer. The union is responsible for any lost wages and benefits after the point in time that the employer’s action would have been reversed had the union timely processed the grievance.
In Bowen v. United States Postal Serv., 459 U.S. 212 (1983), the Supreme Court held that "damages attributable solely to the employer’s breach of contract should not be charged to the union, but increases if any in those damages caused by the union’s refusal to process the grievance should not be charged to the employer." 459 U.S. at 223–24 (quoting Vaca v. Sipes, 386 U.S. 171, 197–98 (1967)). Bowen does not indicate exactly how damages are to be apportioned between the employer and union. See Murray, Steven L., Apportionment of Damages in Section 301 Duty of Fair Representation Actions: The Impact of Bowen v. United States Postal Service, 32 DePaul L. Rev. 743, 767 (1983) (noting that the Supreme Court's decision in Bowen could be interpreted to support three different apportionment rules). For example, Bowen could be read to hold that the employer and union are liable on the basis of relative degrees of fault. See id. at 767. Bowen could also be interpreted to stand for the more concrete, bright line rule that employers are liable for damages suffered up until the hypothetical date upon which an arbitration award would have issued had the union processed the grievance, and the union is liable for all damages incurred thereafter. See id.
The district court in Bowen had instructed the jury that apportionment between the employer and union could be based on the hypothetical arbitration date at which the employer would have reinstated the plaintiff if the union had fulfilled its duty. See Bowen, 459 U.S. at 215. The district court suggested that the employer was liable for damages before that date and the union for damages thereafter. Bowen was explicit, however, in leaving undecided "whether the District Court's instructions on apportionment of damages were proper." Id. at 230 n.19.
Some courts have held that Bowen does not mandate the hypothetical date method. See Aguinaga v. United Food & Com. Workers Int’l, 993 F.2d 1463, 1475 (10th Cir.1993) ("We do not agree that Bowen requires that damages be apportioned based on chronology using the hypothetical arbitration date."). What is clear from Bowen and its progeny is that union liability is not limited to the litigation expenses and fees incurred by the employee-plaintiff as a result of the union’s breach of the duty of fair representation. See Bowen, 459 U.S. at 220–25 (rejecting the union's argument that its liability was limited to litigation expenses resulting from its breach of duty). Implicit (if not explicit) in Bowen is that a union may be held liable for a portion of the back pay owed to the employee. The Court held that if the plaintiff is unable to collect against the union, the employer "remains secondarily liable for the full loss of back pay." Id. at 223 n.12. Inherent in this statement is that a union may be primarily liable for a percentage of the employee’s back pay. Numerous courts addressing this issue after Bowen have held that a union may be liable for back pay when it breaches the duty of fair representation. See, e.g., Aguinaga, 993 F.2d at 1475 ("[I]n Bowen, the Supreme Court held that a union can be liable for back pay and benefits.").
Where a union affirmatively causes the employer to breach the collective bargaining agreement, or where the union and employer actively participate in each other’s breach, joint and several liability, as opposed to apportionment, may be appropriate. See Aguinaga, 993 F.2d at 1475; Bennett v. Local Union No. 66, 958 F.2d 1429, 1440–41 (7th Cir.1992).
See 5.1 (Damages—Proof) regarding causation.
Attorneys’ fees and awards for costs incurred in suing the union may be awarded as compensatory damages for a breach of the duty to represent. Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270 (9th Cir.1983) (attorneys’ fees are in fact compensatory damages for a breach of the duty to represent). When an employee proves both a breach of the duty of fair representation and a violation of the collective bargaining agreement, the union must pay attorneys' fees incurred by the employee in his suit against the employer and the union. See, e.g., Zuniga v. United Can Co., 812 F.2d 443, 451–52, 455 (9th Cir.1987) (employee collected wrongfully-denied sick leave benefits from employer, and attorneys’ fees from union).
Generally, damages are apportioned between the employer and union according to the damage caused by each. However, joint and several liability may be appropriate where the employer and union actively participated in each other’s breach. Lewis v. Tuscan Dairy Farms, Inc., 25 F.3d 1138, 1145-46 (2d Cir.1994); Aguinaga, 993 F.2d at 1474-75.
For an example of a suggested verdict form, see below:
SUGGESTED VERDICT FORM
1. Do you find from a preponderance of the evidence that the plaintiff was discharged from employment by the defendant employer?
If your answer to Question No. 1 is "no," do not answer the remaining questions. Sign and date the verdict form and notify the bailiff. If your answer to Question No. 1 is "yes," proceed to Question No. 2.
Do you find from a preponderance of the evidence that such discharge was without "just cause" (as defined in the Court’s instructions)?
If your answer to Question No. 2 is "no," do not answer the remaining questions. Sign and date the verdict form and notify the bailiff. If your answer to Question No. 2 is "yes," proceed to Question No. 3.
3. Do you find from a preponderance of the evidence that the defendant union breached its duty of fair representation owed to the plaintiff as one of its members?
If your answer to Question No. 3 is "no," do not answer the remaining questions. Sign and date the verdict form and notify the bailiff. If your answer to Question No. 3 is "yes," proceed to Question No. 4.
4. Do you find from a preponderance of the evidence that the plaintiff suffered damages from the above actions of [[the union] [the employer][both the union and the employer]] in the amount of $________________?
[Proceed to Question No. 5 only if you found that the plaintiff suffered damages from the actions of both the union and the employer.]
5. Do you find from a preponderance of the evidence that the plaintiff’s damages should be apportioned between the defendants, $_____________ to the defendant employer, and $______________ to the defendant union?
DATED: PRESIDING JUROR