9th Cir. Model Jury Instr. (Civil) 13.1

To prevail, the plaintiff [name] must prove each of the following by a preponderance of the evidence:

First, that the plaintiff was discharged from employment by [name of employer];

Second, that such discharge was without “just cause”;

Third, that the plaintiff filed a grievance with [name of union]; and

Fourth, 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 [name] must prove all four of the elements listed above whether [he] [she] [other pronoun] is suing the union, the employer, or both. In this case, the plaintiff [name] is suing [the union] [the employer] [both the union and the employer].

If you find that the plaintiff [name] has proved all four of the elements listed above, your verdict should be for the plaintiff [name]. If, on the other hand, the plaintiff [name] has failed to prove any of these elements, your verdict should be for the defendant [name].

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.