Fill and Sign the Jury Instruction 181 Employee Claim Against Employer and Union Vaca V Sipes General Instruction Form

1.8.1 Employee Claim Against Employer And Union (Vaca v. Sipes) In this case the Plaintiff makes two claims. The first claim is that the Plaintiff was discharged by the employer without just cause in violation of the collective bargaining agreement governing the terms and conditions of the Plaintiff's employment. The second claim is that the Union breached its duty to fairly represent the Plaintiff, as one of its members, in failing to investigate or otherwise process the Plaintiff's grievance against the employer under the grievance procedure set forth in the collective bargaining agreement. 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. On the first claim, therefore, the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the Plaintiff was discharged from employment by the employer; and Second: That such discharge was without "just cause." [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] If you find in favor of the Plaintiff on this first claim, you must then consider the second claim, namely, that the Union breached its duty of “fair representation,” that is, to represent fairly the Plaintiff as one of its members. With regard to that claim you are instructed that a union does have a legal duty to represent fairly the interest 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 union to pursue a grievance against the employer. The test is basic fairness. So long as the union acts in good faith, the law permits a union to exercise broad discretion in determining whether a particular employee's grievance should be pursued against the employer under the collective bargaining agreement. The union may consider, for example, the cost of the proceeding wei ghed against its assessment of the likelihood of success if the grievance is pursued. So, even if an employee's grievance has merit, mere negligence or the exercise of poor judgment on the part of the union does not, in and of itself, constitute a breach of its duty of fair representation. On the other hand, when a union acts arbitrarily or capriciously, or in bad faith and dishonestly, in refusing to process a meritorious grievance, it violates the duty it has to represent fairly the union member who lodged the grievance. 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 had, or could have reasonably had, from other employment. In other words, the Plaintiff has a duty to mitigate or minimize the damages and the Defendants are not responsible for lost earnings to the extent that such loss could have been avoided had the Plaintiff used reasonable care in seeking other employment to avoid or minimize the injury. Once you have arrived at a figure for these lost wages or damages, you will then have the task of apportioning those damages between the employer and the union. In making the apportionment you should follow this guideline. The employer is liable for lost wages due solely to its breach of the collective bargaining agreement in discharging the Plaintiff. However, any increases in lost wages caused by the union's failure to process the Plaintiff's grievance should be charged to the union and not to the employer. Thus, if you find that the Plaintiff would have been reimbursed for lost wages and/or would have been reinstated to the job the Plaintiff held with the employer but for the breach by the union of its duty to fairly represent the Plaintiff, then you must apportion those lost wages between the Defendants according to the extent to which the union's breach of duty to fairly represent caused increases to the wages lost by the Plaintiff. 1.8.1 Employee Claim Against Employer And Union (Vaca v. Sipes) SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Plaintiff was discharged from employment by the Defendant? Answer Yes or No 2. That such discharge was without “just cause” (as defined in the Court’s instructions)? Answer Yes or No [Note: If you answered No to either of the preceding questions you need not answer either of the remaining questions.] 3. That the Union breached its duty of fair representation owed to the Plaintiff as one of its members? Answer Yes or No 4. That the Plaintiff should be awarded $ as the Plaintiff’s damages. [Note: Answer Question 5 only if you answered Yes to both Question 2 and Question 3.] 5. That the Plaintiff’s damages should be apportioned between the Defendants, % to the Defendant, and % to the Defendant Union. SO SAY WE ALL. Foreperson DATED: ANNOTATIONS AND COMMENTS This jury instruction applies when an employee or former employee files a hybrid breach of contract - breach of duty of fair representation suit against the employer and union. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). 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 and Helpers Local No. 391 v. Terry, 494 U.S. 558, 564, 110 S.Ct. 1339, 1344, 108 L.Ed.2d 519 (1990) (explaining that most collective bargaining agreements accord finality to grievance procedures established by the agreement). In deciding whether to prosecute a grievance, the union may consider tactical and strategic factors such as its limited resources and consequent need to establish priorities, as well as its desire to maintain harmonious relations among the workers and between the workers and the employer. Pruner v. Tractor Supply Co., 109 F.3d 354, 362 (7th Cir.), cert. denied, U.S. , 118 S.Ct. 294, 139 L.Ed.2d 227 (1997). A union’s actions are arbitrary only if, in light of the circumstances, its behavior is so far outside a “wide range of reasonableness” as to be irrational. Air Line Pilots Assn. Int’l. v. O’Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 1130, 113 L.Ed.2d 51 (1991). Bad faith on the part of the union requires a showing of fraud, deceitful action, or dishonest action. Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 531 (10th Cir. 1992) (citing Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 1924, 29 L.Ed.2d 473 (1971)). Personal hostility is not enough to establish unfair representation if the representation was adequate and there is no evidence that the personal hostility 181 tainted the union’s actions. VanDerVeer v. United Parcel Serv., Inc., 25 F.3d 403, 405 (6th Cir. 1994). 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 v. United Food & Com. Workers Int’l Union, 993 F.2d 1463, 1474-75 (10th Cir. 1993), cert. denied, 510 U.S. 1072, 114 S.Ct. 880, 127 L.Ed.2d 75 (1994).