The second claim is that [Plaintiff]’s union breached its duty to fairly represent [Plaintiff] as one of its members by failing to investigate or otherwise process [his/her] grievance against [his/her] employer under the collective-bargaining agreement’s grievance procedure.
The law prohibits an employer from discharging an employee governed by a collective-bargaining agreement unless there is just cause to dismiss the employee.
“Just cause” means a real cause or basis for dismissal – not an arbitrary whim. “Just cause” is something that a reasonable employer, acting in good faith in similar circumstances, would regard as a good reason for dismissing an employee.
For the first claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: [Name of employer] discharged [Plaintiff] without just cause.
To succeed on this second claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: [Plaintiff] was a member of a collective-bargaining unit represented by [Union];
Third: [Plaintiff] filed a grievance with [Union];
Fourth: [Union] breached its duty of fair representation by handling the grievance proceedings arbitrarily, discriminatorily, or in bad faith; and
Fifth: [Union]’s breach materially affected the outcome of [Plaintiff]’s grievance hearing.
For example, the union may weigh the cost of pursuing a grievance against the likelihood of success. So even if an employee’s grievance has merit, mere negligence or the union’s exercise of poor judgment does not establish a breach of its duty of fair representation.
But when a union acts arbitrarily or carelessly, or dishonestly and in bad faith, by refusing to pursue a union member’s meritorious grievance, it violates its duty to represent fairly the member who lodged the grievance.
[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]
If you find for [Plaintiff] on [his/her] first claim or on both claims, you must consider [his/her] damages. The damage award should be an amount that justly compensates [him/her] for the damages [he/she] incurred.
The measure of these damages, if any, is the amount [Plaintiff] would have earned from [his/her] employment with [name of employer] if [name of employer] had not discharged [him/her]. But you must reduce this amount by any earnings [Plaintiff] received, or reasonably could have received, from other employment. [Plaintiff] has a duty to mitigate or minimize the damages. [Defendant] is not responsible for lost earnings to the extent that [Plaintiff] could have avoided those lost earnings by using reasonable care in seeking other employment.
After you have determined an amount for damages, if you have found for [Plaintiff] and against both the employer and the union, you must then divide the damages between the employer and the union. The employer is only responsible for lost wages caused by discharging [Plaintiff] in breach of the collective-bargaining agreement. But any increase in lost wages that the union caused by failing to pursue [Plaintiff]’s grievance should be charged to the union – not to the employer.
So if you decide that [Plaintiff] would have been reimbursed for lost wages or reinstated to [his/her] job if the union had fairly represented [him/her], then you must divide those lost wages between the employer and the union. In that case, you should allot damages to the union to the extent its breach of duty to fairly represent [Plaintiff] increased the amount of wages [he/she] lost.
