A Proposal for Apportioning Damages in Fair Representation Suits

Apportionment of damages in fair representation suits represents one of the most unsettled issues in labor law today. Although the Supreme Court has attempted to establish a single “governing principle” for apportioning damages, lower courts have read this principle as authorizing two divergent standards for apportionments. Part I of this article traces the evolution from the Court’s original standard presented in Vaca v. Sipes through two subsequent applications of that standard: the Czosek v. O’Mara standard, which interpreted Vaca as placing the bulk of damages on the employer, and Justice Stewart’s standard taken from his concurrence in Hines v. Anchor Motor Freight, which interpreted Vaca as placing most of the damages on the union. Part II assesses the adequacy of these two interpretive standards, with criticisms aimed at both of them. Finally, part III proposes a two-tiered analysis for apportioning damages in fair representation suits which synthesizes elements of the Czosek and Justice Stewart standards. The implementation of this article’s two-tiered analysis would establish a workable apportionment standard consistent with Supreme Court pronouncements. As a result of such an implementation, a significant degree of predictability could be achieved in this complex area.