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 [name of employer];
2. that such discharge was without “just cause”;
3. that the plaintiff filed a grievance with [name of union]; and
4. that [name of union] breached its duty to fairly represent the plaintiff’s interests under the collective bargaining agreement by handling the grievance proceedings arbitrarily, discriminatorily, or in bad faith.
The plaintiff must prove all four of the elements listed 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 all four of the elements listed above, 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 when 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.
Comment
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 both 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. Starla Rollins v. Cmty. Hosp. of San Bernadino, 839 F.3d 1181, 1185 (9th Cir. 2016) (explaining that plaintiff could pursue claim against union after employer had settled, but must still show that employer breached collective bargaining 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. Bliesner v. Commc’n Workers of America, 464 F.3d 910, 913–14 (9th Cir. 2006) (affirming summary judgment of hybrid suit based on failure to show employer’s breach of collective bargaining agreement without deciding whether union breached duty of fair representation).
As a general rule, before bringing suit, a plaintiff “must first exhaust the grievance procedures established by the [collective bargaining agreement].” Sidhu v. Flecto Co., Inc., 279 F.3d 896, 898–99 (9th Cir. 2002). However, a plaintiff need not do so if the employer repudiates those procedures. Id. (waiving exhaustion when union attempted to use grievance procedures on plaintiff’s behalf and employer repeatedly refused). An alternative “exception to the general requirement of exhaustion exists, however, where the employee demonstrates that ‘the union . . . [has acted] in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation.’” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 986 (9th Cir. 2007) (quoting DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 (1983)) (affirming summary judgment for defendant on § 301 claim when plaintiff “failed to exhaust his contractual remedies, and no breach of the duty of fair representation [wa]s alleged in the complaint”). “The determination whether to require exhaustion is left to the sound discretion of the trial court.” Scoggins v. Boeing Co., 742 F.2d 1225, 1229 (9th Cir. 1984).
The union’s duty of fair representation extends to members of a collective-bargaining unit represented by the union, provided that the union is the exclusive representative in the collective bargaining process for the unit of employees. Simo v. Union of Needletrades, Indus. & Textile Emps., Southwest Dist. Council, 322 F.3d 602, 614 (9th Cir. 2003) (holding that no duty of fair representation attached because union was not acting as exclusive bargaining representative nor pursuant to collective bargaining agreement). The duty of fair representation arises when a union is representing the workers in question pursuant to either the “authority granted by statute or a collective bargaining agreement,” and it applies “both to the negotiation and to the administration of collective bargaining agreements.” United Bhd. of Carpenters & Joiners of America v. Metal Trades Dept., AFL-CIO, 770 F.3d 846, 848–49 (9th Cir. 2014).
A union is not liable for merely negligent conduct. See Slevira v. Western Sugar Co., 200 F.3d 1218, 1221 (9th Cir. 2000). A breach of the duty of fair representation occurs when “the union conduct at issue is a discriminatory or bad faith exercise of judgment, or is an arbitrary (meaning wholly irrational, inexplicable, or unintentional) action that substantially injured an employee.” Beck v. United Food & Com. Workers Union, Loc. 99, 506 F.3d 874, 880 (9th Cir. 2007). “Whether a union acted arbitrarily, discriminatorily or in bad faith requires a separate analysis, because each of these requirements represents a distinct and separate obligation.” Simo, 322 F.3d at 617 (quoting Thompson v. Aluminum Co. of Am., 276 F.3d 651, 657 (4th Cir. 2002)).
A union’s actions or omissions are arbitrary if they are “unintentional, irrational, or wholly inexplicable, such as an irrational failure to perform a ministerial or procedural act.” Beck, 506 F.3d at 880–81 (union’s failure to file timely grievance after agreeing to do so was arbitrary). For example, “[a] union acts ‘arbitrarily’ when it simply ignores a meritorious grievance or handles it in a perfunctory manner” and fails to “conduct a ‘minimal investigation’ of a grievance that is brought to its attention.” Starla Rollins, 839 F.3d at 1186 (quoting Peterson v. Kennedy, 771 F.2d 1244, 1253–54 (9th Cir. 1985)). By contrast, if “a union’s conduct constitutes an exercise of judgment,” it is “entitled to deference” unless its decision is “wholly irrational.” Beck, 506 F.3d at 879–80. This is a deferential standard that “gives the union room to make discretionary decisions and choices, even if those judgments are ultimately wrong.” Id. (quoting Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45–46 (1998)); see also Demetris v. Transp. Workers Union of America, AFL-CIO, 862 F.3d 799, 805 (9th Cir. 2017) (explaining that “our threshold inquiry in assessing any duty of fair representation claim must be to determine whether the alleged conduct involved judgment or whether such conduct was merely ministerial or procedural in nature”).
If a union’s exercise of judgment is not wholly irrational and thus not arbitrary, “a union can still breach the duty of fair representation if it exercised its judgment in bad faith or in a discriminatory manner.” Beck, 506 F.3d at 880. To establish that a union acted in “bad faith,” a plaintiff must provide “substantial evidence of fraud, deceitful action, or dishonest conduct,” Beck, 506 F.3d at 880 (quoting Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 299 (1971)),or evidence that the union was motivated by personal animus toward the plaintiff. See Conkle v. Jeong, 73 F.3d 909, 916 (9th Cir. 1995) (including personal animus as basis for finding of bad faith); see also United Bhd. of Carpenters & Joiners of America, 770 F.3d at 852 (observing that union’s failure to follow internal policies is “strong evidence of bad faith”).
To establish that a union impermissibly discriminated against its members, “the aggrieved members must set forth ‘substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives.’” Demetris, 862 F.3d at 806 (quoting Lockridge, 403 U.S. at 301). The duty to not discriminate extends beyond “race or other constitutionally protected categories.” Simo, 322 F.3d at 61-19. For example, “a union may not ‘discriminate on the basis of union membership.’” Id. (quoting Bernard v. Air Line Pilots Ass’n, Int’l, 873 F.2d 213, 216 (9th Cir. 1989)); see also Demetris, 862 F.3d at 806 (explaining that “unions cannot discriminate against their members based on political animus or even political expediency”). However, there is “no requirement that the unions treat their members identically as long as their actions are related to legitimate union objectives.” Demetris, 862 F.3d at 806 (quoting Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d 703, 712 (2d Cir. 2010)).
Revised Mar. 2023
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.
[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.
Comment
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.”).
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 example, when a union affirmatively causes the employer to breach the collective bargaining agreement, or when 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. Vaca v. Sipes, 386 U.S. 171, 195-96 (1967) (explaining 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”); Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270 (9th Cir. 1983) (holding employee may recover from union attorneys’ fees expended in pursuing his employer for breach of contract). 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). Compensatory damages “may include lost wages and fringe benefits,” but lost wages should be “offset by wages earned at other employment.” Galindo v. Stoody Co., 793 F.2d 1502, 1516 (9th Cir. 1986).
As of February 2023, the Ninth Circuit has not decided whether punitive and extra-contractual damages are recoverable in an action under the Labor Management Relations Act for breach of a collective bargaining agreement. Alday v. Raytheon Co., 693 F.3d 772, 795 (9th Cir. 2012) (declining to decide whether court may award punitive damages “if it would deter persistent misconduct” or award extra-contractual damages if “defendant’s conduct was particularly likely to result in serious emotional distress”); see also Bloom v. Int’l Bhd. of Teamsters Loc. 468, 752 F.2d 1312, 1315 (9th Cir. 1984) (reversing emotional distress damages because “[t]he minimum level of outrageous conduct was not shown in this case,” without deciding whether remedy for breach of duty of fair representation under Labor Management Relations Act might include damages for emotional distress).
SUGGESTED VERDICT FORM
1. Do you find from a preponderance of the evidence that the plaintiff was discharged from employment by the defendant employer?
________ ________
Yes No
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)?
________ ________
Yes No
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 by handling the grievance proceedings arbitrarily, discriminatorily, or in bad faith?
________ ________
Yes No
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
Revised Mar. 2023
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/13.1_civil_rev_3_2023.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/13.2_civil_rev_3_2023.docx