1

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-031

Filing Date: June 22, 2010

Docket No. 31,637

JACKIE AKINS,

Plaintiff-Respondent,

v.

UNITED STEEL WORKERS OF AMERICA,

AFL-CIO, CLC, LOCAL 187,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI

Gary L. Clingman, District Judge

Youtz & Valdez, P.C.

Shane Youtz

Albuquerque, NM

Richard J. Brean

Pittsburgh, PA

for Petitioner

Law Offices of W.T. Martin, Jr., P.A.

Wilfred T. Martin, Jr.

Lane T. Martin

Carlsbad, NM

for Respondent

OPINION

BOSSON, Justice.

{1} In virtually all claims sounding in tort, our common law permits punitive damages

where appropriate to punish outrageous conduct and to deter similar conduct in the future.
1

 The record does not support the Court of Appeals’ assertion that “pinche miyate

[sic]” means “fucking nigger.” Akins v. United Steel Workers of Am. Local 187, 2009-

NMCA-051, ¶ 3, 146 N.M. 237, 208 P.3d 457. The only evidence of the meaning of that

term came from Akins, who admitted that he does not speak Spanish. Similarly, the Court

of Appeals asserted that Akins’ coworkers referred to him by the term “nigger.” Id. ¶ 26.

Again, the only testimony on this specific issue came from Akins, and his testimony

suggested that he was unsure whether the comments were directed at him. 

2

Similarly, in New Mexico all labor unions owe a common-law duty of fair representation

(also referred to herein as “DFR”) to their members and are subject to suit for breach of that

duty. In the case at bar, we are asked to limit that liability by imposing a per se exclusion

of punitive damages much as the U.S. Supreme Court has done for similar actions against

federally regulated labor unions. We decline to do so, and instead underscore the important

public policy served by punitive damages as part of our state common-law jurisprudence.

Our ruling today expands upon and clarifies that of our Court of Appeals, affirming its

holding that punitive damages should be available in DFR suits where the union’s conduct

is malicious, willful, reckless, wanton, fraudulent or in bad faith.

BACKGROUND

{2} Respondent Jackie Akins (Akins) worked for the City of Carlsbad (City) from 1992

until 2002. During this time, Akins was a dues-paying member of Petitioner United

Steelworkers of America, AFL-CIO, Local 187 (the Union), which served as Akins’

exclusive collective bargaining representative. Akins was the only African-American

member of the Union.

{3} In 1999 Akins began working in the City’s lube room, where he was responsible for

changing oil on city vehicles, and similar duties. During his employment there, Akins’

coworkers regularly spoke in Spanish, and his supervisor Carmen Vasquez gave him orders

in Spanish, despite the fact that Akins did not speak Spanish. Akins was told he needed to

learn. At trial, Akins testified that various coworkers, some of them with supervisory

authority, used racial slurs in his presence. Specifically, Akins testified that the term “pinche

miyate [sic],” which Akins understood to mean “fucking nigger” in Spanish, was uttered on

two or three occasions when he was the only black person present.1

 Akins’ understanding

of the meaning of the term was not refuted.

{4} Akins made repeated requests to Union officials to address the problem. When Akins

complained to Union President Danny Armendariz, asking him to file a grievance,

Armendariz told him he was the “wrong color” and that he needed to learn to speak Spanish.

The Union refused to file a grievance for racial discrimination on Akins’ behalf.

{5} Akins testified that because of the racially hostile environment at the lube room, he

accepted an option to transfer to the solid waste department in April 2001, taking a pay cut
3

in the process. Akins discontinued his employment with the City in July 2002, due to

decreased but continuing racial discrimination.

{6} Subsequently, in March 2004, Akins filed suit against the Union and the City for two

counts of breach of the Union’s duty of fair representation, and one count each of intentional

infliction of emotional distress and prima facie tort, based on the conduct described above.

Akins reached an agreement with the City, and the City was dismissed with prejudice.

Thereafter, the trial court dismissed the intentional infliction of emotional distress claim, one

count of breach of the DFR, and the prima facie tort claims upon the Union’s motion for

summary judgment. In response to the one remaining DFR count, the Union argued that

punitive damages were unavailable as a matter of law for duty of fair representation suits.

Following the denial of its motion for summary judgment, the Union filed a motion in limine

to preclude punitive damages, which the district court also denied.

{7} The case against the Union proceeded to trial on the sole remaining claim that the

Union breached its duty of fair representation by failing to file a grievance on Akins’ behalf

for racial discrimination. The jury was instructed, consistent with our holding in Callahan

v. N.M. Federation of Teachers-TVI, 2006-NMSC-010, 139 N.M. 201, 131 P.3d 51, on the

required elements of the claim of breach of DFR, as follows:

To establish the claim of breach of the duty of the Union to fairly represent,

[Akins] has the burden of proving each of the following contentions:

1. The existence of a contract, the Collective Bargaining Agreement, between

the Union and the City of Carlsbad.

2. The breach of the terms of a Collective Bargaining Agreement by the City

of Carlsbad.

3. [Akins] sought help from the Union to remedy the breach.

4. The Union failed or refused to provide [Akins] with representation related

to the breach.

5. The Union’s failure or refusal to pursue Jackie Akins’ grievance was

arbitrary and in bad faith.

The jury was also given the following standard New Mexico instruction on punitive

damages:

If you find that the conduct of the Union was malicious, willful, reckless,

wanton, fraudulent or in bad faith, then you may award punitive damages

against it. . . . Punitive damages are awarded for the limited purpose of

punishment and to deter others from the commission of like offenses. The

law does not require you to award punitive damages, however, if you decide

to award punitive damages, you must use sound reason in setting the amount

of the damages. The amount of punitive damages must be based on reason

and justice taking into account all the circumstances, including the nature of

the wrong and such aggravating and mitigating circumstances as may be
4

shown. The amount of an award of punitive damages must not reflect bias,

prejudice, or sympathy toward any party. The amount awarded, if any, must

be reasonable and not disproportionate to the circumstances.

UJI 13-1827 NMRA.

{8} The jury returned a verdict in Akins’ favor, awarding him $1,661 in actual damages

and $30,000 in punitive damages. Both Akins and the Union appealed. Akins appealed the

trial court’s decision not to put the intentional infliction of emotional distress claim before

the jury. The Union appealed three issues: whether the trial court erred in (1) applying a

four-year rather than six-month statute of limitations, (2) allowing the jury to consider

punitive damages, and (3) failing to order remittitur of the punitive damages award.

{9} The Court of Appeals affirmed the trial court’s rulings in their entirety. Regarding

the issue of punitive damages, the Court of Appeals rejected the Union’s request to adopt a

per se ban on punitive damages in breach of DFR actions. Akins v. United Steel Workers of

Am. Local 187, 2009-NMCA-051, ¶¶ 19-20, 146 N.M. 237, 208 P.3d 457. The Court

followed by holding that the punitive damages award in this case was not excessive, and

affirmed the trial court’s decision not to order a remittitur. Id. ¶¶ 29-38.

{10} In its briefing to this Court the Union disputes several facts, but it does not raise any

concrete legal argument against the jury’s finding of liability. As such, this Opinion will

focus exclusively on the sole question on certiorari: whether to adopt a per se ban on

punitive damages in breach of DFR suits filed against labor unions, as a matter of state

common law. This is a legal question which we review de novo.

DISCUSSION

Foust is not controlling.

{11} As the exclusive representative of City employees under a collective bargaining

agreement, the Union is responsible for prosecuting grievances on behalf of City employees.

In New Mexico all unions owe a common-law duty of fair representation to their members,

but are given considerable discretion to decide whether and how to pursue a member’s

grievance, consistent with the best interests of the Union membership as a whole. See

Callahan, 2006-NMSC-010, ¶¶ 9, 13. In Callahan, we limited the common-law cause of

action for breach of the DFR to arbitrary, fraudulent or bad faith conduct on the part of the

union; allegations of mere negligence by the union do not state a viable claim for relief. Id.

¶¶ 10, 11.

{12} To explain the policy justification for our ruling in Callahan, we cited the U.S.

Supreme Court opinion of Vaca v. Sipes, 386 U.S. 171 (1967), for its discussion of why the

proper balance of interests in the collective bargaining arrangement requires limiting union

members’ access to the courts for DFR suits. Callahan, 2006-NMSC-010, ¶ 11. In following
5

the liability standard for DFR actions set forth in Vaca, we observed that “requiring

arbitrary, fraudulent or bad faith conduct to prove a breach of the duty of fair representation

is consistent with U.S. Supreme Court precedent.” Callahan, 2006-NMSC-010, ¶ 11. The

Union interprets this statement, and our adoption of the same rationale for a standard of

liability as Vaca, to mean that “Callahan mandates that state courts are to develop the state

[DFR] consistent with United States Supreme Court precedent in general and with Vaca in

particular.” But we have never professed slavish adherence to federal case law in developing

our state common-law jurisprudence.

{13} The U.S. Supreme Court relied upon Vaca’s holding in its subsequent opinion in

International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42 (1979). Extending

Vaca’s rationale, the Supreme Court in Foust adopted a per se ban on punitive damages in

federal breach of DFR actions. Foust, 442 U.S. at 49-50. Before this Court, the bulk of the

Union’s case rests on the proposition that, since Callahan supposedly wedded the New

Mexico DFR law to the federal common-law standard, Foust’s per se ban on punitive

damages is automatically incorporated into the New Mexico common-law standard. This

reasoning misconstrues our holding in Callahan and is inconsistent with our common-law

authority.

{14} As a preliminary matter, we reject the Union’s interpretation of our pronouncement

in Callahan. We stated that “arbitrary, fraudulent or bad faith conduct” as a standard of

liability in DFR actions “is consistent with” the standard of liability embraced by the U.S.

Supreme Court in Vaca. Callahan, 2006-NMSC-010, ¶ 11 (emphasis added). We did not

say, as the Union represents in its brief to this Court, that “the state duty . . . [is] to be

developed consistent with such precedent.” (Emphasis added.) The Union goes so far as to

refer to “the Callahan rule” that New Mexico courts “are obliged to develop the state [DFR]

consistent with United States Supreme Court precedent.” (Emphasis added.) Emphatically,

no such “rule” exists.

{15} In developing a body of state common law, we may look to federal law for guidance

where it is persuasive and consistent with our state laws and policies. See State v. Long,

1996-NMCA-011, ¶ 7, 121 N.M. 333, 911 P.2d 227 (filed 1995). In Callahan, we relied on

Vaca to fashion the appropriate standard of liability for DFR claims because its rationale was

in line with New Mexico public policy. But just as we are free to embrace a federal

common-law principle that comports with New Mexico’s distinct needs and conditions, we

are also free to reject one that is inconsistent with or hostile to our circumstances.

{16} The Foust majority, in denying punitive damages in federal DFR claims, explained

that it was implementing a remedial scheme that would “best effectuate the purposes of the

Railway Labor Act . . . to facilitate collective bargaining and to achieve industrial peace.”

442 U.S. at 47. Specially concurring, Justice Blackmun pointed out that the Foust majority

based its holding, in part, on the premise that the remedial federal labor policy is

“inhospitable to punitive awards.” Id. at 55 (Blackmun, J., concurring). In short, Foust was

developing an area of interstitial federal common law to effectuate distinct congressional
6

goals set forth in federal statutes governing unions in the private sector. Id. at 47-48; see

also Woods v. Graphic Commc’ns, 925 F.2d 1195, 1203 (9th Cir. 1991) (“The duty of fair

representation is a judicially created duty arising out of the statutory grant of exclusive

representation to unions under the Railway Labor Act and the National Labor Relations

Act.” (Citations omitted.)).

{17} In contrast, our state common law on DFR is clearly not tied to federal statutes

regulating the private sector, nor to any one state statute pertaining to the public sector. The

relationship between the Union and its City employee members is governed by the New

Mexico Public Employee Bargaining Act (PEBA), but we have never held that the DFR

cause of action is intended exclusively to effectuate the policy goals of that statute. See

Callahan, 2006-NMSC-010, ¶¶ 24-25 (PEBA limited to providing administrative remedies;

suit for breach of DFR operates outside mandates of PEBA). But see Las Cruces Prof’l Fire

Fighters v. City of Las Cruces, 1997-NMCA-031, ¶¶ 14-15, 123 N.M. 239, 938 P.2d 1384

(holding that, generally, language of PEBA is to be interpreted in the same manner as

identical National Labor Relations Act language). Certainly one purpose of the duty of fair

representation is to facilitate the collective bargaining process and to protect union members’

rights under collective bargaining agreements. See Callahan, 2006-NMSC-010, ¶¶ 9-10;

Jones v. Int’l Union of Operating Eng’rs, 72 N.M. 322, 330, 383 P.2d 571, 576 (1963).

More generally, however, the DFR cause of action is a common-law means of enforcing the

fiduciary obligations of unions as the exclusive collective bargaining agents of their

members. See Jones, 72 N.M. at 330, 383 P.2d at 576.

{18} We agree with Justice Blackmun’s reasoning in Foust that a court enforcing a

common-law duty “should have at its disposal the full panoply of tools traditionally used by

courts to do justice between parties.” 442 U.S. at 53 (Blackmun, J., concurring). Punitive

damages are one such tool. We have no reason to dispute the U.S. Supreme Court’s

assessment of national needs under federal labor laws. Those concerns, while certainly

relevant to our consideration, do not control the development of our common law. To the

extent that our duty of fair representation shares a common purpose with the federal cause

of action, we are free to weigh similar considerations differently. For the reasons set forth

below, we hold that New Mexico’s interest in enforcing a union’s duty of fair representation

counsels against adopting a per se ban on punitive damages.

A per se ban on punitive damages is inconsistent with New Mexico public policy.

{19} At the heart of today’s controversy is the inherent tension that exists in most

collective bargaining arrangements between the interests of individual union members and

the well-being of the collective (the union as a whole). Our concern for the vitality of unions

as collective bargaining agents is such that we elected in Callahan to raise the threshold for

liability to shield merely negligent union conduct from suit by aggrieved members. Our

decision in that case came at no small cost to the individual interests of union members, but

we agreed that those interests must be subordinated to the collective interests of all members

in a bargaining unit. Callahan, 2006-NMSC-010, ¶¶ 9-15. We concluded that the interests
2

 The Union did not appeal the Court of Appeals’ rejection of its claim that the

punitive damages award in this case was excessive.

7

of the collective are best served by a union that is able to exercise broad discretion in

determining whether and how to prosecute an individual member’s grievance. Id. To now

go further and shield even the most egregious union conduct from punitive damages, would,

in our view, undermine the interests of both Unions and their members.

{20} Punitive damages serve two important policy objectives under our state common law:

to punish reprehensible conduct and to deter similar conduct in the future. Bogle v. Summit

Inv. Co., 2005-NMCA-024, ¶ 34, 137 N.M. 80, 107 P.3d 520. These objectives are of

critical importance in the DFR context, where unions appropriately enjoy broad discretionary

authority and the employee has little recourse outside of the grievance process. As our Court

of Appeals observed, punitive damages are the best means of deterring union misconduct

because actual or compensatory damages in DFR actions may be de minimis or difficult to

quantify. Akins, 2009-NMCA-051, ¶ 24; see also Sanchez v. Clayton, 117 N.M. 761, 767,

877 P.2d 567, 573 (1994) (“Indeed, if the defendant’s conduct otherwise warrants punitive

liability, the need for punishment or deterrence may be increased by reason of the very fact

that the defendant will have no liability for compensatory damages.” (citing 1 Dan B. Dobbs,

Law of Remedies § 3.11(10), at 515-16 (2d ed. 1993))). The present case is illustrative; a

compensatory award against the Union of a mere $1,661 would hardly deter similar

outrageous conduct against other Union members in the future.

{21} In Foust, the Supreme Court was persuaded that “windfall recoveries” against labor

unions could “deplete union treasuries” and “impair[] the effectiveness of unions as

collective-bargaining agents.” 442 U.S. at 50-51. The Union argues that the same concerns

merit adopting a per se ban on punitive damages for DFR actions in New Mexico. But

nothing in the present case nor anything cited by the Union indicates that such fears are

presently warranted in New Mexico’s public sector. Despite Foust’s holding in the DFR

context, unions in New Mexico are currently subject to punitive damages under a variety of

federal laws, such as the Labor Management Reporting and Disclosure Act (LMRDA) and

42 U.S.C. § 1981 (2006). See 29 U.S.C. §§ 411(a)(4), 412 (2006) (right to sue and civil

action/jurisdiction provisions of the LMRDA); Int’l Bhd. of Boilermakers v. Braswell, 388

F.2d 193, 200 (5th Cir. 1968) (punitive damages available under LMRDA); Woods, 925

F.2d at 1204 (“Under § 1981, the common law rule is that punitive damages may be awarded

in appropriate cases.”). Unions have also, up to now, been subject to punitive damages for

breach of the state duty of fair representation. Thus, to adopt a per se ban here would be to

depart from the status quo. Despite the potential for exposure to punitive damages from

several angles, the Union cannot point to a single example where runaway punitive damages

awards substantially debilitated a labor union in New Mexico. If anything, the present case

suggests that our juries are entirely capable of assessing sensible and appropriate punitive

damages.2
8

{22} Should a jury’s punitive damages award exceed the bounds of reasonableness,

several checks at the trial and appellate levels operate to temper jury exuberance. These

checks include the trial court’s ability to order a remittitur and the appellate courts’ ability

to review the award for reasonableness and constitutionality. Chavarria v. Fleetwood Retail

Corp., 2006-NMSC-046, ¶ 36, 140 N.M. 478, 143 P.3d 717; see BMW of N. Am., Inc. v.

Gore, 517 U.S. 559, 574-75 (1996).

{23} The present case illustrates the danger of further insulating unions in DFR actions.

In response to serious allegations of a racially hostile work environment, the Union’s

response to Akins was that he was the wrong color and needed to learn to speak Spanish.

At oral argument counsel for the Union asserted that such racial discrimination is the rarest

type of DFR case. Counsel went on to describe an example of the “typical” DFR case as one

where the Union fails to pursue an employee’s grievance because the employee has shown

favor to the employer, or is a “dissident” in the Union’s eyes. This is the conduct that the

Union would have us protect for the sake of hypothetical risks to the well-being of the

collective. When we asked what safeguard would remain for the individual “dissident” were

we to adopt a per se ban on punitive damages, counsel suggested that the Union’s internal

democratic process would be sufficient. We commend the Union for its forthright

representation to this Court, but given the facts of this case, we remain persuaded of the need

for the punishment and deterrence functions served by punitive damages awards.

{24} New Mexico law reflects a preference for holding individuals and institutions

accountable for their actions regardless of status. See Yount v. Johnson, 1996-NMCA-046,

¶ 4, 121 N.M. 585, 915 P.2d 341 (“[O]ur courts have moved forcefully towards a public

policy that defines duty under a universal standard of ordinary care, a standard which holds

all citizens accountable for the reasonableness of their actions. The movement has been

away from judicially declared immunity or protectionism, whether of a special class, group

or activity.”). For instance, like most other states, our Legislature has not adopted the

doctrine of charitable immunity from suit in tort, despite policy arguments in favor of such

immunity that are at least as persuasive as those in favor of immunity for unions. See Janet

Fairchild, Annotation, Tort Immunity of Nongovernmental Charities—Modern Status, 25

A.L.R.4th 517 (Westlaw 2009) (citing cases completely or partially abrogating doctrine of

charitable immunity in a majority of jurisdictions). But see Abramson v. Reiss, 638 A.2d

743, 750 (Md. 1994) (recognizing complete charitable immunity in Maryland); N.J. Stat.

Ann. § 2A:53A-7 (West, Westlaw through L.2010, c.18) (codifying charitable immunity in

New Jersey, except for “damages by a willful, wanton or grossly negligent act of

commission or omission, including sexual assault and other crimes of a sexual nature”). Nor

are we aware of any common-law cause of action in New Mexico for which punitive

damages have been prohibited.

{25} In isolated circumstances, our Legislature has created limited tort immunity for

certain actors and institutions. See NMSA 1978, §§ 24-15-1 to -14 (1969, as amended

through 1997) (Ski Safety Act); NMSA 1978, §§ 41-4-1 to -29 (1976, as amended through

2009) (Tort Claims Act); NMSA 1978, §§ 41-10-1 to -5 (1981, as amended through 1997)
3

 We also note that several other states allow punitive damages in suits against unions

for breach of the duty of fair representation. See, e.g., Norton v. Adair County, 441 N.W.2d

347, 363-64 (Iowa 1989) (punitive damages are permissible in action against union for

breach of duty of fair representation if actual or legal malice is demonstrated); Brown v. Me.

9

(Food Donors Liability Act); NMSA 1978, §§ 41-12-1 to -2 (1989, as enacted through 1997)

(Athletic Organization Volunteers); NMSA 1978, §§ 42-13-1 to -5 (1993, as amended

through 1995) (Equine Liability Act). With the exception of the Tort Claims Act, however,

none of these statutes immunize conduct that would warrant a punitive damages award. The

above statutes also suggest that the Legislature is capable of making exceptions to general

tort principles when public policy so counsels. We would defer to the Legislature for such

a drastic departure from current policy—if at all desirable—as that urged by the Union. See

Berlangieri v. Running Elk Corp., 2003-NMSC-024, ¶ 15, 134 N.M. 341, 76 P.3d 1098

(“Courts are generally less well-equipped to address complex policy issues than

legislatures.”); Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995) (“[I]t is the

particular domain of the legislature, as the voice of the people, to make public policy.”).

{26} Finally, the Union argues that we should adopt a per se ban on punitive damages in

DFR actions because punitive damages are not available under the Human Rights Act, and

we should seek symmetry in the remedies the law provides for like conduct. See NMSA

1978, §§ 28-1-1 to -15 (1969, as amended through 2007) (Human Rights Act) (prohibiting

discriminatory conduct); Trujillo v. N. Rio Arriba Elec. Coop., 2002-NMSC-004, ¶ 30, 131

N.M. 607, 41 P.3d 333 (filed 2001) (punitive damages are not recoverable under New

Mexico’s Human Rights Act).

{27} We agree that symmetry of remedies is a laudable policy goal. The Union, however,

conceded at oral argument that discriminatory conduct is rarely the basis for DFR actions.

It makes little sense for us to align the common-law DFR remedial scheme with that of the

statutory Human Rights Act. Moreover, the Human Rights Act was modeled after federal

Title VII legislation, which has since been amended to allow for recovery of punitive

damages. See Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 23, 135 N.M. 539, 91 P.3d

58 (New Mexico Human Rights Act tracks language of federal Title VII); 42 U.S.C. §

1981(a) (as amended by Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071)

(allowing for recovery of punitive damages). More to the point, labor unions may be subject

to liability under Title VII “for intentionally failing to file grievances concerning a racially

hostile working environment.” Woods, 925 F.2d at 1200. Thus, the exact conduct exhibited

by the Union in this case could subject the Union to punitive damages in a federal Title VII

case.

{28} As we mentioned above, we are aware of no New Mexico common-law cause of

action in tort where we have held that punitive damages are unavailable as a matter of law.

Absent a more compelling policy consideration than that presented by the Union, we make

no exception for DFR claims.3

 Accordingly, we adhere instead to the general common-law
State Employees Ass’n, 690 A.2d 956, 959 (Me. 1997) (statutory DFR grants executive

branch agency broad authority to fashion remedy for breach). States that do not allow

punitive damages in DFR suits, for the most part, are those that have tied their governing law

to federal law in the manner the Union here urges. See, e.g., Demings v. City of Ecorse, 377

N.W.2d 275, 277-78 (Mich. 1985); Sw. Bell Tel. Co. v. Buie, 689 S.W.2d 848, 852 (Mo. Ct.

App. 1985).

10

principle in New Mexico that punitive damages should be available as long as the

wrongdoer’s conduct is willful, wanton, malicious, reckless, fraudulent or in bad faith. See

UJI 13-1827; Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 47, 127 N.M. 47, 976

P.2d 999.

The fact that the liability and punitive damages DFR standards contain overlapping

terms does not mean that punitive damages are automatically available in every DFR

action. 

{29} The Union argues that because the general standard for punitive damages (willful,

wanton, malicious, reckless, oppressive, fraudulent or in bad faith) describes essentially the

same conduct as the DFR standard for liability (arbitrary, fraudulent or bad faith), unions are

unfairly subject to punitive damages in every case where a plaintiff establishes liability. The

Union asserts that such “automatic” exposure to punitive damages in nearly every case

skews the balance established by Callahan in favor of individual members, to the greater

detriment of the collective. This issue, while not a significant focus of the Union’s briefing,

nonetheless warrants careful consideration, as it lies at the heart of our punitive damages

jurisprudence.

{30} We agree with the Union that the liability and punitive damages standards

substantially overlap, but that is not a novel occurrence in our law. Breach of the duty of fair

representation is but one of several causes of action where the standard for liability closely

resembles the standard for punitive damages, UJI 13-1718, usually where liability is limited

to proof of a heightened culpability. Examples include: (1) intentional infliction of

emotional distress, see UJI 13-1628 NMRA; Baldonado v. El Paso Natural Gas Co., 2008-

NMCA-010, ¶ 28, 143 N.M. 297, 176 P.3d 286 (filed 2006), (2) fraudulent

misrepresentation, see UJI 13-1633 NMRA; Garcia v. Coffman, 1997-NMCA-092, ¶ 38, 124

N.M. 12, 946 P.2d 216, and (3) insurance bad faith, see UJI 13-1704 NMRA; Sloan v. State

Farm Mut. Auto. Ins. Co., 2004-NMSC-004, ¶¶ 2, 18, 135 N.M. 106, 85 P.3d 230. Indeed,

most intentional tort cases provide at least the potential for punitive damages, because

intentional conduct is “willful.” See generally Sanchez, 117 N.M. at 767, 877 P.2d at 573.

{31} In Sloan, we were asked to decide whether a punitive damages instruction is required

in every insurance bad faith case, or whether some culpable mental state beyond bad faith

is required. 2004-NMSC-004, ¶ 1. We held that a stricter standard for punitive damages
11

was not required, stating

we reaffirm our statement in Jessen v. National Excess Insurance Co., 108

N.M. 625, 627, 776 P.2d 1244, 1246 (1989) that “[b]ad faith supports

punitive damages upon a finding of entitlement to compensatory damages.”

Accordingly, an instruction on punitive damages will ordinarily be given

whenever the plaintiff's insurance-bad-faith claim is allowed to proceed to

the jury. We do, however, somewhat limit the per se Jessen rule by affording

the trial court the discretion to withhold a punitive-damages instruction in

those rare instances in which the plaintiff has failed to advance any evidence

tending to support an award of punitive damages.

Id. ¶ 6 (alteration in original).

{32} In Sloan, we modified the jury instruction, UJI 1718, to describe the specific conduct

that warrants punitive damages, in insurance bad faith cases, only a small subset of the range

of establishing liability. Sloan, 2004-NMSC-004, ¶ 17 (“[W]e acknowledge the [liability]

instructions as written might be interpreted . . . as permitting merely unreasonable conduct

to support a finding of bad faith sufficient for an award of punitive damages. . . . While the

unreasonable conduct described in these instructions may support an award of compensatory

damages, such conduct does not support an award of punitive damages.”). Unlike the

insurance bad faith context, however, the prima facie DFR case does not include any conduct

that is necessarily outside the possible range of the punitive damages instruction—willful,

wanton, malicious, reckless, oppressive, fraudulent or in bad faith. As a result, we need not

draw a line between conduct that could support a punitive damages award and that which

could not.

{33} Still, a punitive damages award is far from “automatic.” The distinction between a

finding of liability and an award of punitive damages lies not in the parsing of adjectives,

but in the nature of the jury’s inquiry, and the role of judge and counsel in guiding that

inquiry. The jury must first engage in a factual inquiry to determine whether the plaintiff

has proved the elements of the claim. If so, the jury must then engage in a much different

inquiry—a moral determination—to decide whether the defendant’s conduct should be

punished, and whether such punishment would serve to deter similar conduct in the future.

It is the role of the trial judge to explain the different duties to the jury, and the role of

counsel to argue the elements and policy of liability and punitive damages separately.

{34} Here, the jury was given detailed instructions on liability, which explained that

“Akins ha[d] the burden of proving” numerous contentions, including that “[t]he Union’s

failure or refusal to pursue [Akins’] grievance was arbitrary and in bad faith.” Jury

Instruction 12 explained that the amount of compensatory damages, if any, “must be based

upon proof and not upon speculation, guess or conjecture.” The trial court gave the jury a

separate punitive damages instruction, which defined the conduct required to warrant

punitive damages. But the instruction also explained that punitive damages are not required
12

by the law and are only awarded “for the limited purpose of punishment and to deter others

from the commission off [sic] like offenses.”

{35} The separate jury instructions, along with the separate questions on the special

verdict form, very clearly distinguished between the two inquiries required of the jury. The

jury was not instructed to simply match conduct to terms; it was instructed to engage in one

inquiry that focused on facts and proof and another that focused on punishment and

deterrence. In both circumstances, it was necessary to match the Union’s conduct to the

terms of the respective standard, but that alone was not sufficient. For liability, the jury was

expected to weigh proof of the element of lost earnings, calculate compensatory damages

based on lost income alone, and disregard sympathy or prejudice. For punitive damages, the

jury was instructed to consider the concept of justice and aggravating or mitigating

circumstances and to disregard bias, prejudice, or sympathy. We are satisfied that, despite

certain overlapping terms, the jury instructions left no room for confusion between the

liability and punitive damages inquiries.

{36} We emphasize that the parties also play an important role in guiding the jury to an

appropriate award by litigating the issues that are specific to the punitive damages inquiry.

The punitive damages instruction clearly charges that “[t]he amount of punitive damages

must be based on reason and justice taking into account all the circumstances, including the

nature and enormity of the wrong and such aggravating and mitigating circumstances as may

be shown.” UJI 13-1827. The Union argues on appeal that punitive damages are especially

harmful to small, unsophisticated unions like itself, whose only income is derived from the

modest dues of its limited membership. The Union also argues that the punitive damages

award in this case is disproportionate to the Union’s conduct as described at trial. These are

precisely the sort of “mitigating circumstances” the jury instruction envisions, yet the Union

failed to make these arguments, with supporting evidence, to the jury. Whatever the Union’s

trial strategy in this case, the punitive damages instruction leaves ample room for the parties

to argue liability and punitive damages separately, and to ensure that juries do not confuse

the two.

CONCLUSION

{37} We affirm the ruling of the Court of Appeals and the judgment of the district court.

{38} IT IS SO ORDERED.

____________________________________

RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________

CHARLES W. DANIELS, Chief Justice
13

____________________________________

PATRICIO M. SERNA, Justice

____________________________________

PETRA JIMENEZ MAES, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

Topic Index for Akins v. United Steelworkers of America, AFL-CIO, CLC, Local 187

Docket No. 31,637

AY AGENCY

AY-FD Fiduciary Duty

AE APPEAL AND ERROR

AS ASSOCIATIONS AND SOCIETIES

AS-CO Charitable Organizations

AS-NC Non-Profit Corporations

CP CIVIL PROCEDURE

CP-AU Actions and Defenses

CP-BF Bad Faith

CP-CS Causes of Action 

CP-JV Jury Verdict

CP-PF Prima Facie Case

CP-RM Remittitur

CP-VD Verdict

CR CIVIL RIGHTS

CR-ED Employment Discrimination

CR-HA Human Rights Act

CR-RD Racial Discrimination

EL EMPLOYMENT LAW

EL-CB Collective Bargaining

EL-DS Discrimination

EL-GR Employee Grievances

EL-UO Union Organizing

EL-LU Labor Unions

IN INSURANCE
14

IN-BF Bad Faith

JR JURIES

JR-JG Juries, General

JI JURY INSTRUCTIONS

JI-CI Civil Jury Instructions

JI-JI Jury Instructions, General

LL LABOR LAW

See: EMPLOYMENT LAW

RE REMEDIES

RE-AR Additur and Remittitur

RE-CD Compensatory Damages

RE-EP Exemptions

RE-MD Measure of Damages

RE-PD Proof of Damages

RE-PU Punitive Damages