13.1 EMPLOYEE CLAIM AGAINST UNION AND/OR EMPLOYER—LABOR MANAGEMENT RELATIONS ACT (LMRA) § 301
(29 U.S.C. § 185)
In order to prevail, the plaintiff must prove each of the following by a preponderance of the evidence:
1. that the plaintiff was discharged from employment by the employer;
2. that such discharge was without "just cause"; and
3. that the union breached its duty to fairly represent the plaintiff’s interests under the collective bargaining agreement.
The plaintiff must prove all three of the above whether [he] [she] is suing the union, the employer, or both. In this case, the plaintiff is suing [[the union] [the employer] [both the union and the employer]].
If you find that the plaintiff has proved each of the elements on which the plaintiff has the burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
Under the law, an employer may not discharge an employee governed by a collective bargaining agreement, such as the one involved in this case, unless "just cause" exists for the employee’s dismissal. The term "just cause" means a real cause or basis for dismissal as distinguished from an arbitrary whim or caprice; that is, some cause or ground that a reasonable employer, acting in good faith in similar circumstances, would regard as a good and sufficient basis for terminating the services of an employee.
A union has a duty under the law to represent fairly the interests of its members in protecting their rights under a collective bargaining agreement. However, an individual employee does not have an absolute right to require the employee’s union to pursue a grievance against the employer. A union has considerable discretion in controlling the grievance and arbitration procedure. The question is not whether the employee is satisfied with the union representation or whether that representation was perfect.
Breach of the duty of fair representation occurs only where a union acting in bad faith or in an arbitrary or discriminatory manner fails to process a meritorious grievance. So long as the union acts in good faith, it may exercise its discretion in determining whether to pursue or process an employee’s grievance against the employer. Even if an employee’s grievance has merit, the union’s mere negligence or its exercise of poor judgment does not constitute a breach of its duty of fair representation.
This jury instruction applies when an employee or former employee files a suit against either the union or employer. It also applies in a hybrid suit against the employer and union. A plaintiff may decide to sue one defendant and not the other, but must prove the same case whether the suit is against one defendant or both. Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 564 (1990) (explaining that most collective bargaining agreements accord finality to grievance procedures established by agreement).
To support a breach of the duty of fair representation claim, the plaintiff must prove that the employer’s action violated the terms of the collective bargaining agreement and that the union breached its duty to act honestly and in good faith and to avoid arbitrary conduct. Id. at 563; see also Hines v. Anchor Motor Freight, 424 U.S. 554, 564 (1976) (holding that union is always subject to complete good faith and honesty of purpose in exercise of discretion); Vaca v. Sipes, 386 U.S. 171, 177 (1967).
A union is not liable for merely negligent conduct. See U.S. Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73 (1990); Slevira v. Western Sugar Co., 200 F.3d 1218, 1221 (9th Cir.2000). Breach of the duty of fair representation occurs only when a union’s conduct is arbitrary, discriminatory, or in bad faith. See id. For example, "[a] union breaches its [duty of fair representation] if it ignores a meritorious grievance or processes it in a perfunctory manner." Conkle v. Jeong, 73 F.3d 909, 916 (9th Cir.1995) (citing Vaca, 386 U.S. at 191).
A union’s actions are arbitrary "only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be ‘irrational.’" Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 67 (1991). See also Conkle, 73 F.3d at 915-16 (holding that union’s decision is arbitrary if it lacks rational basis); Johnson v. U.S. Postal Serv., 756 F.2d 1461, 1465 (9th Cir.1985) (holding that reckless disregard may constitute arbitrary conduct); Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir.1982) (defining arbitrary as "egregious disregard for the right of union members").
To establish that a union acted in "bad faith," a plaintiff must provide "substantial evidence of fraud, deceitful action, or dishonest conduct," Humphrey v. Moore, 375 U.S. 335, 348 (1964), or evidence that the union was motivated by personal animus toward the plaintiff. See Conkle, 73 F.3d at 916 (including personal animus as basis for finding of bad faith)
13.2 LMRA § 301—Damages
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. U.S. 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 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 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) (holding that attorneys’ fees are in fact compensatory damages for breach of 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) (attributing wrongfully-denied sick leave benefits to employer, and attorneys’ fees to 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.
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?