Model Jury - Section 13
13. LABOR (INCLUDING FAIR REPRESENTATION)
13.01 LMRA § 301--DUTY OF FAIR REPRESENTATION--ELEMENTS AND BURDEN OF PROOF--HYBRID CLAIM
[On the plaintiff's claim,] the plaintiff has the burden of proving each of the following by a preponderance of the evidence:
1. the union [describe conduct] the plaintiff's claim against the employer as required by the collective bargaining agreement;
2. the union's conduct toward the employee was [arbitrary] [in bad faith] [dishonest] [discriminatory] [hostile]; and
3. the employer [describe employer's conduct] in violation of the collective bargaining agreement.
If you find that each of these things has been proved, your verdict should be for the plaintiff and against both defendants. On the other hand, if any of these things has not been proved, your verdict should be for the defendants.
See Vaca v. Sipes, 386 U.S. 171 (1967); Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558 (1990); Hines v. Anchor Motor Freight, 424 U.S. 554 (1976). A union is not liable for merely negligent conduct when the challenged act involves an exercise of the union's judgment rather than a ministerial act. However, a union may be liable for negligent or arbitrary conduct when the challenged act involves a procedural or ministerial act, or involves a failure to raise a meritorious, substantive argument. Peters v. Burlington N. R.R., 931 F.2d 534, 538-39 (9th Cir. 1990); Moore v. Bechtel Power Corp., 840 F.2d 634, 636-37 (9th Cir. 1988).
In those cases where the challenged conduct of the employer is the discharge of the employee without just cause, the court may use the following definition of "just cause": "Just cause means a cause based on a reasonable ground and exercised in good faith." See Scott v. Anchor Motor Freight, 496 F.2d 276, 281 (6th Cir.), cert. denied, 419 U.S. 868 (1974).
13.02 LMRA § 301--DUTY OF FAIR REPRESENTATION--HYBRID CLAIM--DAMAGES
If you find for the plaintiff [on plaintiff's claim], you must determine the plaintiff's damages. Plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money that will reasonably and fairly compensate the plaintiff for any injury you find was [proximately] [legally] caused by the defendants. You should consider the following:
[Here insert types of damages. See Instruction 7.02--
MEASURES OF TYPES OF DAMAGES]
After you have determined the amount of damages, you must apportion them between the employer and the union. The employer is responsible only for damages that are caused by its breach of the collective bargaining agreement. The union is responsible only for any increase in damages that is caused by its breach of the duty of fair representation.
See Vaca v. Sipes, 386 U.S. 171 (1967); Bowen v. United States Postal Serv., 459 U.S. 212 (1983). Typically, the employer's liability covers the period from the time of the employer's action until the time when appropriate union handling of the employee's claim would have provided relief, while the union's liability generally covers the period from the time of the union's breach of its duty to the time the wrong is rectified through court action. See Bowen, 459 U.S. at 223-24.
See Comments to Instructions 3.09 and 7.01 regarding causation.