*1 a rational Doyle’s parole. to revoke attaining
means the Commission’s dual hand, encourage
objective, the one on parolees who by permitting
rehabilitation society live to continue to peaceably
can so, hand, and, protect
do on the other who
society parolees those demon or will not they
strate that abide thus used
the rules. the Commission Since legitimate goals,
rational to attain means
Doyle’s protection challenge must equal
fall.8 conclusion, Doyle hold that we spent pre- time he apply
entitled to against his violator custody
trial as a credit
term, already full he has received where credit on his sentence. effective hold, further,
We that the Parole Commis- rights in re- Doyle’s
sion did not violate hearing
fusing to within a hold a revocation prompt time after the initial
reasonably
issuance the violation warrant. The dis- dismissing petition
trict court’s order
for corpus a writ of habeas is therefore
affirmed. HOFFMAN, Plaintiff-Appellant,
Albert
LONZA, Oil, INC., corporation, Workers’ Chemical & Atomic Interna 7-662, Union,
tional No. Pekin Local organization, Defendants-Appel
labor
lees.
No. 80-2314. Appeals,
United States Court
Seventh Circuit.
Argued April Aug.
Decided 111., Peoria, for Propp,
Lawrence W. plaintiff-appellant. McGinnis, legitimate change Doyle is a bail. if there
8. Our Under result would not even if action, legitima- prove primary purpose challenged could ob- that the Commission’s Id., cy jective issuing place purposes of other is immaterial. warrant in the first 1061-63. was to U.S. at 93 S.Ct. at accommodate the South Dakota author- ities, Doyle’s prevent who desired release *2 Rosenberg, Feldman, Arnold Cornfield breaching & 111., Chicago, for defendants-appellees. invidious, and employee, directed Mo- tor Employees Lockridge, Coach BAUER, PECK, Before Judge, Circuit 274, 301, CUDAHY, Senior Judge,* Circuit Cir (1971), we hold that an action for breach of Judge. cuit fairly represent requires more than a showing that the union failed to PECK, JOHN W. Judge. Senior Circuit properly process employee’s grievance. Oil, Appellee Chemical and Atomic Work- Hoffman contends that the Union breach- Union, ers’ International Pekin Local No. ed its him in the Lonza, 7-662 filed grievance Inc. on grievance procedure “forgot” when it Hoffman, behalf appellant alleging appeal proscribed notice of Hoffman had been wrongfully discharged. time recognizes limit. Hoffman that a le- grievance through moved the first two gal action steps against the Union for a breach of grievance procedure that was provided him can be by the bargaining agree- Lonza, ment sustained if the acted in an between Union Inc. and the Union manner, arbitrary discriminatory without if vindicating Hoffman. In order for grievance Union acted in bad faith. to the third step, Sipes, Union was required 17 L.Ed.2d to file a written appeal of step (1967). conceding two result within While that the five Union days. appeal If no was required filed within that his claim time, the collective bargaining agreement through grievance procedure, the entire provided grievance that the was to be argues con- Hoffman that the sidered satisfactorily step resolved at two. required Union evaluate his The Union “forgot” give claim deciding to abandon it. Hoff- appeal written within days, five and subse- man contends negligently permitting quently informed Hoffman of this over- lapse the claim by “forgetting” a dead- sight. These facts alleged by were conscious, the Un- line rather than by a rational ion in support of its motion summary decision to abandon the was an judgment and were admitted Hoffman perfunctory act the Union in his cross-motion for summary judgment. and a duty. breach of its granted district court the Union’s mo- Ruzicka v. General Motors tion for summary judgment and denied (1975) (Ruzicka I), F.2d 306 a case with Hoffman’s cross-motion. facts essentially identical to those of the raises single ques case, present the United States Court tion whether a labor union can be Appeals sued in for the appeared Sixth Circuit court, federal pursuant to 29 U.S.C. adopt reasoning advanced Hoffman for a breach of its duty of representa in the case. Acknowledging the tion of an employee in grievance proceed “arbitrary, discriminatory, or bad faith” ing union, because the explanation, Vaca, standard of the Sixth Circuit conclud permitted the employee’s grievance pro ed that negligent handling of a ceeding to be terminated by failing to file a unrelated to the merits of that timely notice of carry intent was a example per “clear of arbitrary and ance to arbitration. Because the courts functory handling grievance” of a and con may enforce of a union to fairly stituted unfair cog represent an employee only when union nizable by the court.1 Id. at 310. In reach- * Peck, Judge Writing separate Honorable John W. concurring opinion, Judge Senior Circuit Appeals, for the sitting Sixth accept majority’s Circuit Court of McCree was unable to by designation. “perfunc- because ing that conclusion the Circuit was anee is not support Sixth sufficient to action influenced a statement in Vaca that a for unfair E. g., Dwyer v. administering grievance Industries, Inc., and arbitra- Climatrol machinery good (1976); tion must make faith and Freight Cannon Consolidated nonarbitrary decisions to the merits of ways Corp., (1975). However, Id. The Sixth concluded in these cases the unions involved had at *3 that an unexplained failure to make any tempted process to employees’ griev duty. ances, decision breached that subsequent claims of failure fairly represent alleged to were based on Motors, al., In Ruzicka v. General et shortcomings performances. in the unions’ (1981) (Ruzicka II), F.2d 1207 the Sixth case, Ruzicka, present In the inas the com holding Circuit clarified its in Ruzicka I. In plaint arises from the union’s failure to act Ruzicka II explained the Sixth Circuit upon the grievance, gives merits of the a union’s failure to act employee’s on an rise to question whether the union’s grievance could be a breach of the union’s negligence failing qualitatively to act is duty to only when the un- negligent action insofar as ion’s failure to act amounts to more than duty to is concerned. ordinary negligence. The court stated that Gateway in order for a Our decisions in Miller v. Trans give union’s omission to rise portation Co., Inc., (1980) to an action for fairly breach of the to Baldini v. represent, Local Union No. that omission would have to be relied on the concurrence are “intended to employee harm” the or be determining of no assistance whether a reflecting disregard “reckless for simply negligent process failure to rights employee.” the individual The may type “arbitrary” ance be the con Sixth Circuit “arbitrarily” concluded that duct sufficient to constitute a breach of the failing grievance, without a failure, fairly represent. In Gate sound reason for that would render way and in Baidini this Court reversed sum the union liable for unfair mary judgments against employees because Thus, At 1212. Ruzicka II makes clear that genuine in each case there existed issues of the Sixth adopted Circuit has not Hoff- fact handling whether a union’s conduct in man’s contention that simply “forgetting” an the un employee’s breached a notice constitutes a fairly represent. Gateway, ion’s In breach to fairly represent. Rather, record indicated that the union had Ruzicka II asserts type represent employee. made no effort “arbitrary” conduct needed for such a inferences that permitted circumstance is conduct “intended to harm” the the union’s was employee “arbitrary, discrim or conduct reflecting a “reckless Baidini, inatory, or in bad faith.” disregard for rights of the individual permitted record inferences that the union’s employee.” failure to to arbitration moti This Circuit has previously decided vated malice or discrimination or bad an action may lie a labor faith. Neither of these that the cases hold union for a breach of its fairly may any conduct of Vaca represent an employee when the union un- thing wrongdoing, less than an intentional intentionally permits the employee’s griev- although the dicta of footnote five in Baidi proceeding lapse properly statement.) ni, 581 F.2d at makes that evaluating the merits of that Prior decisions of this Court have advanced made it Supreme Court has proof judicial employees’ remedy clear that poor judgment by a union handling representation” for “unfair is not based on
tory” adjectives characterizing unintentionally intentional union failed to act. conduct and the evidence showed that the suits, concepts process. Rather, case, of due “the tation” as in the while defendant, of fair representation judicially putative evolved is a the ulti- union fully important principle ... enforce mate rein- sought employee relief no individual union member suf backpay. least insofar as statement and At invidious, fer hostile treatment at hands employee an and back- seeks reinstatement of his Lockridge, supra coworkers.” pay, the union defendant of suit for “un- S.Ct. at 1925. The remedy representation” may little reason have to fairly failure “carries vigorously alleged contest the issue the need to adduce substantial evi union To wrongdoing. dence of discrimination that “forgot” recover because his union severe, legitimate and unrelated to required grievance procedures follow would objectives.” Id.2 create an risk of collu- unacceptably high employee, sion between union and both Court has *4 may the of goal whom share same ultimate showing of in intentional misconduct order employee. By permit- reinstatement of the limit to the employee situations in which an ting fairly represent actions for failure to may judicially the griev- contest results of employee where the can show inten- ance and proceedings arbitration that are tional, union, by invidious misconduct the subject the of collective bargaining and the possibility of collusive suits is minimiz- properly jurisdiction of the Na- ed. tional Labor Board Relations rather than jurisdiction
the
of the courts.
order
For
apparent
these reasons
is
that an
assure that
interference with the adminis-
action
on
based
a
process by
limited,
trative
the courts is so
solely
cannot be
some
or
based
on
action
the Court stated that
the “distinction . . .
by
omission
the union that
results in an
honest,
conduct,
between
mistaken
on the
employee
receiving
hearing
not
a “fair”
on
hand,
one
and
severely
deliberate and
hos-
legal
the merits of a
action
treatment,
other,
tile
irrational
rep-
the
fairly
on
union’s
strictly
needs
to be maintained.”
Id.
properly
resent
as
be more
labeled
an
There
important
is a second
reason for
action
intentionally causing
for the union
limiting suits for
breach of the
employee
harm to an
involved in a
to instances of intentional
proceeding.
“duty”
breach-
misconduct by unions.
employee
Where an
employee
remedy
ed and the
has no
showing
fraud,
is successful in
he
not
substantial
of
ac-
evidence
deceitful
fairly represented
grievance proceed-
in a
Lockridge, supra
tion or dishonest conduct.
ing, then
proceeding
299,
1924,
the result of that
citing
at
91
at
S.Ct.
set
348,
be
employee
permit-
Moore,
335,
aside and the
Humphrey
then
v.
375 U.S.
dispute
ted
contest his
employer
(1964).
with his
S.Ct.
Hoffman admitted that
“for-
Union
under
301 of the Labor
Section
got”
timely filing
to make
of a notice
Management Relations Act of 1947 for
proof
no
offered
to create
bargaining
of a
agree-
breach
genuine
“forget-
issue of
fact
ment.
fulness”
any
was in
manner
intentional
years
five
later
followed
calculated. Mere
rise to
Freight,
Hines Anchor Motor
support
the level of
necessary
misconduct
an action for
the Union’s
301 case
Section
which neither cites nor
Stating that the Union
Lockridge.
discusses
Hines reaffirms the
should have
considered
merits of Hoff-
proposition
that merely
permitting
man’s
than
rather
his
by a union is
of liability:
a clear basis
to lapse by failing
claim
timely
file a
‘we accepted]
[i]n
of appeal
nothing
notice
than
does
more
union may
arbitrarily ignore
that a
alleged
describe the
negligence.
Union’s
It
meritorious
it in a
does not state a
of arbitrary,
claim
discrimi-
*5
fashion,’
natory,
perfunctory
or bad faith conduct.
[although intentionally evidence of hos- tile or invidious action a union is clear- Hines, Baldini, Gateway, Cases such as ly determining relevant Robesky Beriauit bear do not out the representation of fair apparent majority fraud, thesis breached, duty may action, with- be breached deceitful dishonest conduct or delib out scienter on the union .... severely erate and hostile and irrational A union also when breaches its requisite treatment establishing ignores arbitrarily perfunctorily breach of processes an action on a breach of the collective bargaining agreement. appropri The more Co., Gateway Miller v. Transportation standard, ate as set out court (7th 1980) n.11 (emphasis Cir. Baldini, is whether has the union been supplied). Gateway holding expressly “guilty of malfeasance and [whether] rejected application the broad range acceptable asserted here.2 performance collective-bargaining Baldini, agent.” 151 (quoting F.2d at circuit is not recognizing alone in Hines, 1058). impact limited Lockridge. In Beriauit v. *6 Simple Super negligence enough Local Checkers, meet Cargoes & that (9th although something F.2d standard less 1974), Cir. than the Ninth Circuit (or intentionality) noted scienter to be quoted the seems suf dicta the majority given ficient rejected the instant court’s decision Gate case but the way. (not notion that Lockridge “Egregious” necessarily behavior requires equiva the lent intentional), of bad faith for Robesky, all 573 F.2d claims. apparently triggering conduct breaches the constitutes the level “[U]nion of fair representation when it is of conduct ‘arbitrary, union’s breach of its discriminatory, [Vaca, or in bad faith.’ of fair representation doing vio without U.S. at 916], S.Ct. at [Emphasis lence to the decisions of this and other court Beriauit, 501 F.2d 263.3 A added].” federal courts.4 agree majority’s 1. I following with the statement Beriauit cited of other the decisions language merely that the circuits view Baldini was dicta. as consistent with its of Lock- ridge This court ruled Union in : Baldini upon stringent a less standard than that Co., Sanderson v. Ford Motor 483 F.2d advocated in the instant case. (5th 1973); Cir. Woods North Ameri- Corp., (10th can Rockwell F.2d 2. Earlier uncritically decisions of this court that UAW, 1973); Cir. Griffin v. accepted language see, Lockridge, g., e. (4th 1972). Cir. Freightways Corp., Cannon v. Consolidated (7th Beriauit, 1975), Cir. were F.2d at 264. written Hines do not this circuit’s impact authoritative assessment personal (writing As a matter on a clean Gateway provide Hines. Baldini and much slate), appropriate I should think that the most authority. more relevant conduct, sense, dealing When with conduct anee. unintentional the union’s least, though even not “arbi “egregiousness,” standard decisionmaking suggests exceptional trary.” which Deference to union existence of circumstances, is purposes essential of the necessary protect standard. But deference to a fail employer’s being rely interest able ure to a decision union make serves no valid finality procedure. of the Nonetheless, interest. although ques Employers might have little incentive to close, tion is I do not believe the union’s negotiate grievance procedure they if sufficiently egregious default out here to exposed could sim- employee suits weigh employer’s finality interest ple union. of the. Hence, however, grievance procedure.5 of the I con do not believe it is necessary, cur in shift to a test the result.6 of “invidious discrimination” guard against upon inroads grievance procedure which would follow if 301 suits easily. could be too brought
Indeed, such a meaning- standard renders
less the portion of Vaca’s “arbi-
trary, discriminatory, or in bad faith”
sentation standard.
Here, exercise union failed to has respect plaintiff’s
discretion intimate, however, Judge principles cogently rationalized the Sixth Circuit’s Ruzicka, Kennedy Robesky. Judge opinion in in his concurrence in second Ruzicka v. General 1981) (6th Kennedy rejects the term the effort to Motors (Ruzicka II) Cir. define “arbitrary” by concepts culpa- using somehow Ruzicka I. modified tort law basis, contrary, bility. of the “arbi- On a tort law use to the Ruzicka II reaffirmed Quite proscribe trary” apparently holding failing standard would Ruzicka I’s involving which is bad faith but sound reason constitutes blameworthy ordinary negligence. arbitrary more But, according than conduct under the Vaca standards. Judge Kennedy, neither the II, slip opinion language in Ruzicka at 11. The precedents of torts nor law in the federal com- concerning Ruzicka II a need to show that the provide adequate law of mon guidance labor relations to harm” union “intended “arbitrary.” to define the term appropriate standard when the related to the Instead, the issue should be one whether actions, e., a reason for its i. union had procedures handling followed in the defini- was not under the adequate. were "The II, employed in tion Ruzicka II. Ruzicka exercising has Court that in dis- [its] II, Under Ruzicka the deference to n.3. adjust grievances cretion a union should in a *7 decisionmaking cited perfuncto- manner ry.... is neither nor relying only apply where the union was would review, (cid:127) imposed by The standard of practices past employer when failed require this rule seems ... the kind of scru- required for arbitration within the a statement tiny [they] use whenever review a de- [courts] reliance, e., time If there was no i. mere limit. body termination of an individual or entrusted forgetfulness, Ruzicka II would still find discretionary power. inquire [Courts] granted whether the discretion abused a failure to deci- make a reasoned inquire sion .... [Courts] should whether the suggested been that in fair It has never basis, union decisions lacked a rational suits, even the union be liable by perfunctorily processing though fault was not sufficient to made, so that a reasoned decision was employer. against case suits grievance.” the union foredoomed the Robe- guilty union has been of a failure one where the sky, supra, J., (Kennedy, concurring). at 1092 yet not serious default to act on a —a a suit merits allowance of one think employer balancing slightly on these facts. My of the interests the Sixth that undertaken majority appears in Ruzicka I. The