This is an action by Dale C. Richardson under Sec. 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C. Sec. 185(a)1 against his former employer, Western Electric Company, and the Communications Workers of America, AFL-CIO (hereinafter called the International) and Local 7495, an affiliate of the International (hereinafter called the Local). The claim initially arose from an alleged breach of the existing collective bargaining agreement in which Richardson claimed that by reason of his nonunion membership he was wrongfully discharged from his employment with Western Electric. In the first trial Richardson received a verdict of $20,000. However, the trial court reduced the verdict to $1,500 on the ground that damages were allowable only for six and one-half months-the remaining life of the collective bargaining agreement. On appeal, this court held that ruling to be error. We also held to be error the district court's refusal to entertain plaintiff's suit for mental anguish arising out of the unions' alleged intentional discrimination. We remanded the case for a new trial in the Sec. 301 suit on damages only and additionally ordered a reinstatement of the discrimination claim against the unions. See Richardson v. Communications Workers, 443 F.2d 974 (8th Cir. 1971).

On the second trial the jury awarded damages in the Sec. 301 suit against the employer, Western Electric, as well as against both unions, in the sum of $92,000. The jury apportioned the damages according to the respective roles of the defendants in the wrongful discharge of Richardson, 30% against Western Electric and 70% against the defendant unions. The Court thereafter entered judgment against the unions jointly in the sum of $64,400. It is from this judgment that the unions now appeal.2 Western Electric did not appeal.

On this appeal the unions claim that the trial court erred in (1) charging that the Local and International Unions were responsible for the acts of the members, officers and stewards as a matter of law; (2) failing to sever the question of the International's liability from that of the Local and thereby failing to instruct the jury to apportion the damage between the two unions; and (3) refusing to grant a new trial on the ground that the damages of $92,000 were excessive. We affirm the judgment of the district court.

The first two claims were not raised by the unions until the Sec. 301 suit was remanded for a new trial on damages. In the original trial, the jury found each of the defendants liable for the wrongful discharge in breach of the collective bargaining agreement. The record fails to show that either union sought a directed verdict in the first trial on the theories now raised.3 When the trial court reduced the original verdict to $1,500, the plaintiff filed a notice of appeal and the employer and the unions cross-appealed. However, the only ground of the unions' cross appeals, even though there existed a judgment of liability against both unions, asserted that the plaintiff should have exhausted his administrative remedy provided by contract. No challenge was made as to the issues governing liability now raised.

The unions here urge that the prior finding of liability does not specify the basis in fact for such liability and therefore the International's liability for the acts of the Local should have been left to the jury. We disagree. Although the prior finding of the jury was that the International separately breached its duty in failing to adequately represent the plaintiff, the basis of liability as instructed upon by the trial court relates to agency principles.4 In the original trial the court considered the liability of the International to be a question of fact under all the evidence. The trial court there instructed:

"In order for the conduct of the local union through its agents to be attributed as also being the conduct of the international, the international union must join with the local in authorizing the general conduct which led to the breach of contract, if any, or sympathized or by some other means required such conduct."

In our prior opinion ordering a new trial on damages we discussed the unions as a single party since no claim as to their having any separate interests was raised on appeal.5 We remanded the case with directions to try the cause on damages only with apportionment of fault between the employer and the "union" to be determined under the principles of Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967).

The earlier judgment of the district court is the law of the case as it reflects upon any possible defenses to liability of the two unions. See, e. g., United States v. Hoffa, 402 F.2d 380, 387 (7th Cir. 1968), cert. denied, 400 U.S. 1000, 91 S. Ct. 455, 27 L. Ed. 2d 451 (1971); White v. Murtha, 377 F.2d 428, 431-432 (5th Cir. 1967); Stonega Coke & Coal Co. v. Price, 116 F.2d 618, 621 (4th Cir. 1940); Toucey v. New York Life Ins. Co., 112 F.2d 927, 928 (8th Cir. 1940), aff'd, 313 U.S. 538, 61 S. Ct. 833, 85 L. Ed. 1507 (1941); 1B Moore's Federal Practice Sec. 0.404 (2d Ed. 1965). The defendants' failure to properly preserve these defenses in their motion for directed verdict in the original trial and their total abandonment of these issues on the original appeal precluded their consideration in the second trial and prevents the unions from belatedly raising these issues on appeal. These questions have been adjudicated and no appeal has ever been properly perfected challenging them. As such, the unions are precluded from challenging the finding of liability on the Sec. 301 charge on this appeal. Cf. Smith v. American Guild of Variety Artists, 368 F.2d 511 (8th Cir. 1966), cert. denied, 387 U.S. 931, 87 S. Ct. 2052, 18 L. Ed. 2d 991 (1967).

Defendants additionally urge that although the finding of liability from the prior trial might stand, the jury on remand should still have been instructed to apportion the damage between the International and the Local. However, in view of (1) the basis of liability of the International as originally instructed upon by the district court, (2) the failure of the unions' counsel to object to this instruction, (3) the jury's finding that the International's liability was based on its authorization of the Local's conduct, and more significantly, (4) the unions' abandonment of these issues on the first appeal, we approve the district court's instruction at the second trial grouping the International and Local together for purposes of apportioning the damage between the employer and the unions.6

This brings us to defendants' final claim that the damages were excessive. Richardson was awarded $92,000 as damages arising from his wrongful discharge. At the time of his discharge on September 1, 1966, he was 27 years of age. He had reached the highest grade which an hourly employee could hold (Grade 5) and was second in seniority among the 164 hourly rated shop and warehouse employees in the Omaha plant. By the time of the second trial, he had secured alternate employment as a village police officer and it was stipulated that his lost wages to the date of trial were approximately $12,000.

In discussing the damage question under a Sec. 301 claim, we observed in our prior opinion:

"[A]n employee wrongfully discharged under a collective bargaining agreement, as exists here, suffers more than just the loss of a job itself. His damage must be appraised in terms of not only his wages, but the loss of seniority and the benefits which flow from it; he has thus lost his reasonable expectancy as to his continued employment. To measure this loss only to the expiration of an existing bargaining agreement fails to take into consideration the realities existing. It is true that this expectancy of continued employment might expire if the company goes out of business or if the collective bargaining agreement is not renewed with the union. . . . However, as these factors affect the employee's expectancy of work, in the present case they are even less contingent than the employee's possible contemplation of his own death or unforeseen disability. None of these considerations provide an automatic bar to a recovery for future wages beyond the termination of the bargaining agreement.

"Federal jurisdiction under Sec. 301 is more than a proving ground for breach of employment contracts; it is rather a statutory ground for suits brought to implement labor policy as suggested by the Labor Management Relations Act. . . . When an employee's expectancy of employment is challenged by invidious discrimination of the company or the union arising from his nonunion membership, the law should not react niggardly as to realization of his whole damage. As the Supreme Court has written, 'there are problems so vital to the implementation of federal labor policy that they will command a high degree of inventiveness from the courts."' quoting United Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 701, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966). Richardson v. Communications Workers, 443 F.2d 974, 979 (8th Cir. 1971).

In the charge to the jury the trial court instructed the jury in accord with our directions.7

The trial court reviewed the charge of excessiveness on the Sec. 301 claim on the unions' motion for new trial. It denied the same. The damages awarded cannot be reduced to any mathematical formula. In view of all of the diverse factors for jury consideration we cannot say that the trial court abused its discretion in finding the award was not excessive. See Krall v. Crouch Brothers, Inc., 473 F.2d 717 (8th Cir. 1973); Scoville v. Missouri Pacific R.R., 458 F.2d 639 (8th Cir. 1972); O'Brien v. Stover, 443 F.2d 1013 (8th Cir. 1971); Perry v. Bertsch, 441 F.2d 939 (8th Cir. 1971).

Judgment affirmed.