Unpublished Disposition, 902 F.2d 40 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1987)

Madeline MONTANO, Plaintiff-Appellee,v.COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, DISTRICT 9,Defendant-Appellant.

No. 89-35074.

United States Court of Appeals, Ninth Circuit.

Argued Feb. 21, 1990.Submitted March 21, 1990.Decided May 1, 1990.

Before GOODWIN, Chief Judge, SCHROEDER and FARRIS, Circuit Judges.


MEMORANDUM* 

This matter is before this panel following our remand in 1987. The case was originally before us on appeal by both the union and the employer from a judgment in favor of Ms. Montano after the district court found that her employer had wrongfully discharged her and that the union had breached its duty of fair representation.

In our first memorandum disposition, we reversed the judgment entered against the employer, holding that the employer had not been sued within the appropriate limitation period. Montano v. Communications Workers of America, Nos. 86-3644/3662/3698, unpublished memorandum disposition at 3 (March 23, 1987) (Montano I). We concluded our disposition with what, in retrospect, appears to have been a cryptic instruction that the matter be "remanded for consideration of the appropriateness of apportioning damages. See pretrial order, page 29." Id.

That language was inspired by the provision in the district court's pretrial order reflecting a stipulation by the parties to the Montano I lawsuit that any liability of Pacific Northwest Bell Company (PNB) and the union would be "joint and several," without affecting the defendant's rights to apportionment or contribution. We intended to suggest that the union be held liable only for those damages attributable to its fault. See Bowen v. United States Postal Service, 459 U.S. 212 (1983). On remand, the district court, despite some understandable confusion, appears correctly to have interpreted that mandate.

The district court ruled, following Bowen, 459 U.S. at 223 and S.F. Web Pressman & Plakmakers' Union v. NLRB, 794 F.2d 420, 424 (9th Cir. 1986), that the employer, not the union, would have been responsible for back pay from the date of the wrongful termination to the date the employee would have been reinstated had the union not breached its duty. The court, based upon an affidavit in the record, found that the reasonable time for the arbitration to take place would have been 15 months. The court also awarded attorneys' fees representing the costs of bringing suit against the employer, and the attorneys' fees awarded by this court in the earlier appeal. Because Ms. Montano's retirement and pension benefits would have vested during the period in which she was wrongfully unemployed, the court ruled an award for lost retirement benefits and lost pension benefits was appropriate. The union appeals.

The union initially maintains that the only damages for which it should be responsible are the attorneys' fees and costs incurred by Montano in suing the employer. It attempts to distinguish this case from the situation in Bowen on the ground that here the union did not refuse to file a grievance. It simply filed one late. In both cases, however, the union was found guilty of the breach of its duty of good faith toward the employee, and in both situations the action or inaction of the union resulted in the employee's loss of the contractual right to arbitration. The district court therefore did not err in awarding some back pay damages and pension and retirement benefits lost in addition to the attorneys' fees.

The union also maintains that the district court's award in that regard was in any event too large because the court was attempting to compensate the plaintiff for damages attributable to her lawyer who, for a variety of circumstances unique to this case, is no longer before the court. The district court found that a reasonable time for the employee to be reinstated as a result of arbitration was fifteen months, and this finding is supported by an affidavit in the record. The ruling is therefore not clearly erroneous. The district court did not err when it rejected the 24-month period urged by the union. That period merely represented the time the union and the employee spent arbitrating a different issue.

As to lost pension and retirement benefits, on the other hand, the record contains no evidence to support the district court's amount. It was an estimate which the union correctly challenges as unsupported. In order to avoid another protracted remand, counsel agreed at oral argument that it would be feasible for this court to order the record supplemented with appropriate data so that the question of the amount of the benefits could be easily determined. Accordingly, we issued an order directing the parties to supply such information, and we have received the parties' explanation of the method to be used to calculate the benefits.

Since we affirm the district court's finding that the length of Montano's service should be reduced by a 15-month period, her pension benefits should be calculated under Method A in the stipulation on the basis of 12.5 years. Given our ruling on this issue, the parties have stipulated that they can now agree on a liquidated sum reduced to present value.

Counsel has also brought to our attention a clerical error in the district court's calculation with respect to another portion of the damages. The district court apparently added $78,663.12 back pay to $15,393.21 in attorneys' fees and reached a total of $97,904.63. The true total should be $94,056.33.

We remand for entry of judgment in accordance with the stipulation of the parties as to pension and retirement benefits. We also remand for correction of the total amount of damages awarded for attorneys' fees and back pay. The judgment is in all other respects affirmed. Appellee is awarded costs.

AFFIRMED IN PART; REMANDED IN PART.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3