Section 8 Recoverable Damages

• Library: Employer-Employee Law 2008

Damages recoverable in a hybrid § 301/DFR action (§ 301, 29 U.S.C. § 185) and the manner in which the damages should be apportioned between the employer and the union present somewhat murky issues, if only because they are infrequently litigated. Generally, courts hold that an employer may be liable for traditional contract damages, including lost pay and benefits to the wrongfully terminated employee. Bowen v. United States Postal Serv., 459 U.S. 212, 223 (1983). But the employer will not be held accountable for non-economic injuries, such as pain and suffering or mental anguish, which are not typically awarded on contract claims. See generally Richardson v. Commc’ns Workers of Am., 443 F.2d 974, 979–80
(8^th Cir. 1971) (outlining types of damages recoverable against employer in hybrid action and omitting any discussion of non-economic relief); Zielinski v. Pabst Brewing Co., 360 F. Supp. 2d 908, 924 (E.D. Wis. 2005).

The union is liable for injuries caused by its actions in failing to take adequate steps to remedy the company’s breach of the collective bargaining agreement. Vaca v. Sipes, 386 U.S. 171, 196–98 (1967); Scott v. Local Union 377, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 548 F.2d 1244, 1246 (6^th Cir. 1977). Those damages commonly include attorney fees incurred in pursuing the § 301/DFR suit. Wilson v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 83 F.3d 747, 753 (6^th Cir. 1996), cert. denied, 519 U.S. 1041 (1996); Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1275–76 (9^th Cir. 1983); Scott, 548 F.2d at 1246. A plaintiff may recover attorney fees as an actual damage on the theory that the plaintiff would not have incurred those expenses had the union fulfilled its duty to represent the plaintiff properly. Accordingly, the attorney fees must be proved at trial like any other damage. A § 301/DFR claim does not include a fee-shift component allowing a prevailing plaintiff to petition the court for a posttrial order granting attorney fees against the defendants.

Courts have suggested that unions may be liable for emotional distress damages for breach of the representational duty in especially egregious circumstances that could be expected to result in such harm. Baskin v. Hawley, 807 F.2d 1120, 1133–34 (2^nd Cir. 1986); Richardson, 443 F.2d at 982. See also Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 (6^th Cir. 1994) (court of appeals recognizes propriety of jury verdict...