*3 WOOD, Before ESCHBACH and POS- NER, Judges. Circuit POSNER, Circuit Judge. appeal
We consider in this issues of feder- jurisdiction al and labor law arising out of attempt worker, aof railroad Daniel Graf, union, to sue his a local union of the Carmen, Brotherhood of and his Elgin, employer, Joliet and Eastern Railway.
Graf in an acci- sustained concussion investigat- dent work. In course ing the accident railroad learned that Graf years when had been hired two earlier on employment disclosed his previous (to job, injury medical forms a knee) job, and a claim for com- pensation for that All items injury. were required of information that the him forms disclose, penalty being fired if he hearing did not. After an informal before supervisor, represent- at which was Graf Evans, ed Leo the chairman of Local (the representative), bargaining having knowing- the railroad fired Graf for ly falsified the forms. indi- complaint had not Graf’s state court under the collec- grievance procedure suing, and in what law he cated under entitled Graf to agreement
tive
the suit the union did not indicate
removing
boss within 60
supervisor’s
to his
appeal
complaint was within
why
thought
Graf’s
levels in the
higher
thereafter
days, and
dis-
original
to the arbitration
eventually
filed an
After removal Graf
trict court.
created
boards
court,
in the district
complaint
amended
Evans to
asked
see 45 U.S.C.
original
identical to the
one
virtually
it was
Evans said he
for him and
appeal
file an
legal
not indicate the
basis
and likewise did
would,
ap-
had. These
later that he
never stated
The district court
for the suit.
and hand
customarily are handwritten
peals
juris-
of federal
thought
what it
the basis
following
wrote out
delivered. Evans
was either.
diction
as a
“Please consider this
appeal:
assumption,
a natural
There is
[terminating
.. .
your dission
Graf].
*4
Taft-Hartley
301 of the
based on section
ap-
and therefore
except your
can’t
dission
185,
to en
Act,
that all suits
29 U.S.C. §
of the carri-
highest
the next
officer
peal to
(in
bargaining agreements
force collective
with
reinstated
er. We ask that
be
workers, see
by individual
cluding suits
Ev-
wages.”
and all back
seniority intack
Ass’n,
195,
371
Evening
News
U.S.
Smith
together
appeal
pocket
in his
put
ans
267,
(1962))
246
are with
83 S.Ct.
others,
after the
only to find
with several
the federal
jurisdiction of
original
He
was still there.
up
60
were
that it
days
under
and hence removable
district courts
that the failure to
deposition
testified in his
court.
1441 if filed in state
28 U.S.C. §
appeals
with the other
appeal
Graf’s
submit
complaint,
court
least
And Graf’s state
deposi-
Graf in
had been inadvertent.
that
the union
liberally, alleges
very
read
him, “I
that Evans had told
tion testified
representation under
violated' its
of
I
it in.”
thought
put
sorry.
really
am
and
bargaining agreement
the
agreement
the
company
violated
court
filed suit in a state
Graf
by firing him. But section 301 does
(Count
(Count I)
the union
company
and
Railway
employers subject
apply
I,
II).
sought
which
reinstatement
Count
2(2), 2(3) of the
(see
Act
sections
charged that
pay,
and back
Act,
amended,
as
Labor Relations
National
wrongful
fired Graf for the sole
(3),
301(a)
152(2),
and section
29 U.S.C. §§
had sued it under the
reason that Graf
Act, 29
Labor-Management Relations
Act, 45
Employers Liability
U.S.C.
Federal
185(a)),
employer
in this
U.S.C. §
allegedly sus-
seq.,
damages
51 et
for
§§
be; and no other statute
case is conceded to
II,
accident. Count
tained as a result of the
jurisdic-
courts
give
the federal
purports
$15,000, charged
sought damages
bargaining agree-
tion to enforce
failed to
negligently
the union had
employers.
It is true that
ments with such
This count
grievance.
Graf’s
arbitral
awards and denials of awards
named Evans as a codefendant
originally
Railway
Labor Act
boards created
he has been dismissed from
case
but
court, 45
are reviewable in federal district
does not
the dismissal.
Second,
(p), (q),
153 First
153
but
U.S.C. §§
seeking judicial review of the
Graf is not
removed
suit
to federal
The union
an award.
denial of
summary judg-
district court and moved
mo-
judge granted
The
ment.
district
can be read to al
complaint
If the
ground
II on the
tion and dismissed Count
Railway
Labor Act
lege a violation of
its
had not breached
that the union
just of the collective bar
itself rather than
judge
The
then dis-
representation.
fair
then 28
1337
gaining agreement,
§
U.S.C.
I on his own initiative be-
See,
Count
missed
jurisdiction.
federal
original
confers
precon-
the union’s
is a
cause breach of
v. Brotherhood of
Car
e.g., Raus
791,
(8th Cir.1981).
men,
796
maintaining
dition
R.R.,
Nashville
323
v. Louisville &
Steele
company.
226,
192, 199, 204,
U.S.
89 bargaining contract
in Moore v. Illinois
(1944),
R.R.,
630,
632,
L.Ed. 173
held that the
La
Central
imposes
bargain
(1941)
bor
the collective
(see
L.Ed. 1089
dissenting
duty independent
representative
opinion
appeals,
in the court of
Illinois
agreement
represent
Moore,
the terms
all
Cent. R.
(5th
Co.
members of the bargaining
fairly. Cir.1940)),
unit
diversity
alleged
here
II can
to allege
Count
be read
a breach of
appears
not to be present. Moreover,
duty,
R.R.,
and therefore 28
U.S.C.
Andrews v. Louisville
& Nashville
confer
jurisdiction
does
over this
Labor Act to prevent (7th Cir.1981), the worker from hav another case where the ing his grievance “griever” considered under union pro simply forgot to perfect the up by cedures set bargaining appeal worker’s within the system created agreement. The the power court has the collective bargaining agreement, a award damages panel both the union and of this court held of fair employer representation their violation of the Act not been breached. eorrelatively and to determine the Proof negligence enough; inten- merit, grievance has federal tional common misconduct had to be shown. Graf law argues controls this determination. If only deliberately Evans failed to for- has violated the but the ward his failing violation also to tell prevented (or has from using done) worker the Graf what he had done rather system prevented arbitral his grievance prosecuting griev- Graf from denial, a result ance himself. Evans’ vigorous But oath, worker sues the employer federal court of deliberate neglect obliged Graf, for breach of summary was to resist judg- agreement, ment, law ap present common support should some evidence in ply to that 56(e); breach also. Since the of his theory, court see Fed.R.Civ.P. Ad- *7 must Co., 144, decide in the remedy phase 160, of the suit ickes v. S.H. Kress & 1598, 1609, the union as a 90 matter of 26 (1970), S.Ct. L.Ed.2d 142 federal common law presented the collective and he bargain none. He was not able to breached, contract was how peculiar it show motive for Evans’ trying do would be if in—personal the court had to him animosity, politics, decide question same (and under law or anything state state else. The form and text exist) indicate, law that may drafted Evans what is the employer arising plain, from the same anyway representation proc- breach. that the in grievance ess matters is informal. Inad- Now that the amount in re- controversy prosecute vertent omissions to grievances quirement has been abolished in federal common, imply must be do and bad cases, question it hardly matters whether faith. this area of regarded federal common law is thing as a apart Railway from the But also asks us to reexamine the Act, so that federal adopted Hoffman, conferred standard we and think 1331, 28 part or U.S.C. as a ought we to do so. That standard was
778 Inc., Spector Freight Systems, v. su- Rupe vote with the two
adopted by a two to one 694; Ethier v. United panel split. pra, of this circuit on the 679 F.2d judges 733, Serv., (8th other have followed Although panels two Postal 590 F.2d 736 States Hoffman, Freight Sys Rupe Spector see v. Cir.1979). But it could also cover a case of 691-92, tems, Inc., 685, (7th 694 679 F.2d such as we have here. forgetfulness sheer Stores, Inc., 688 Cir.1982); Eagle Cote v. standard cannot be deter proper The curiam), 32, (7th Cir.1982) (per both F.2d 34 dicta, ambiguous especial by parsing mined were in the alternative apply careful the cases we have cited ly when none of an earlier stringent standard of slightly less Labor Act. arose under circuit, Baldini v. Local No. case in this duty representation of fair Though Workers, 145, 1095, 581 F.2d United Auto assumed to be the same under usually (7th Cir.1978), requires 150-51 see, laws, e.g., different federal labor Unit union’s conduct prove the worker Serv., Mitchell, 56, v. 451 ed Parcel Inc. U.S. “arbitrary.” was also Miller Gate 1559, 1566 2, 2, 101 n. 66 n. S.Ct. 272, Co., 277 nn. way Transport. 616 F.2d (Stewart, J., we (1981) concurring), 732 (7th Cir.1980). And several other 11-12 overlooks assumption see that shall circuits use a Baldini rather than a Hoff relevant differences. some See, e.g., man standard. Griffin United Workers, 181, (4th ver- though, precise 469 183 Cir. choice of Maybe, Auto F.2d 1972); Super Cargoes duty Beriault v. Local of fair bal formulas to define the & Longshoremen’s & Checkers of Int’l practical signifi- has little representation Union, 501 F.2d 263- Warehousemen's facts in this case are like the cance. The (9th Cir.1974); 64 Foust v. International Hoffman, panel, where the al- facts Workers, Elec. Brotherhood of though agree proper unable to on the stan- (10th Cir.1978); Farmer v. ARA Serv dard, unanimous that the union had not ices, Inc., (6th Cir.1981). duty representation. breached its The Third Circuit’s decision in Medlin v. distinguishable, as it readily And Baldini is (3d Boeing Vertol deliberate rather than inadver- involved a however, Cir.1980), supports Hoffman. plaintiff’s tent failure to grievance. litigation But there is so much 171, 194, Vaca v. Sipes, duty representation of fair that it over 903, 918, 17 (1967), Supreme L.Ed.2d 842 specify applicable seems worthwhile to fullest of fair Court’s discussion clearly possible. standard as We have representation, pregnant contains a dictum: Hoffman, this, having therefore reexamined “In a case when worker such as [the done so we have concluded that its standard supplied with the the Union with grievance] correct, arising at least for cases supporting position, medical evidence well have breached Labor Act. might Union its ignored complaint or had it [his] The standard is as follows. processed grievance perfunctory in a worker represent every union has a repeated manner.” The dictum was but it fairly unit breaches Inc., Freight, v. Anchor Hines Motor deliberately unjusti duty only 554, 568-69, 96 fiably represent refuses the worker. very recently L.Ed.2d 231 in this Negligence, gross negligence—a even of America circuit in United Steelworkers *8 Prosser, standard, see, e.g., much-criticized NLRB, 1052, 1057 (7th Cir.1982) v. 692 F.2d (4th Handbook of the Law of Torts 182 ed. curiam); (per Employ but see Motor Coach and, 1971)—is obviously, inten enough; 274, 299, Lockridge, ees v. 403 91 may not be inferred from tional misconduct 473 not cited simple gross. or Al negligence, “perfunc in Hines. The force of the word unclear, extreme recklessness is so close to though. just though It could tory” is that the law treats refusing—to wrongdoing mean intentional refusing—deliberately see, go through thing, e.g., do more than the motions. Cf. it as the same United States
779
(7th
practical
1119
Anally,
v. Mc
Cir.
A
consideration in favor of a
we
1981),
worry
need not
about that refine
narrow standard of
liability
suggested by
case;
in this
it is clear on which
ment
side
the text of the appeal
by
drafted
Evans.
dig
of the line Evans’ failure to
Graf’s
of
process
Most
the union officers who
out
pocket
of
falls. The failure
grievances
gaffes
and commit the
pro-
perform legal duty
negligence,
or if
pel
of
the Grafs
into
world
court are
the cost of
it would be
performing
much not professional
They
advocates.
are hour-
expected
gross negli
less than the
benefits
ly
“grieving”
part-time
workers
on a
basis.
O’Brien,
gence, Conway
612 It
be
try
would not
realistic to
to hold them
(2d Cir.1940),
grounds,
rev’d on other
312 to the same
lawyers,
standard as
who are
(1941);
L.Ed. 969
damages
in
they
liable
fail to file their
or
and Evans’ action was one
the other.
time,
appeals on
yet
clients’
Graf wants
Graf;
But he was not
trying
do
nor
judge
us to
Evans’
inaction
what
does his
of
lapse
memory signify such a
amounts to a
of
concept
professional mal-
reckless indifference to Graf’s interests that
True,
practice.
the standard of care in
it can be called intentional misconduct.
(the
negligence cases
“reasonable man”
And while common sense tells us that
standard) is sometimes scaled down to re-
preserve
reason Evans was not careful
flect
realistic assessment of the defend-
appellate rights may
Graf’s
have been that
capabilities:
ant’s
if a
year
ten
old is sued
thought
grievance
merit,
had little
tort,
the standard of
applied
care
is that
this would make Evans at worst somewhat
average
year old,
ten
not of the
It
devious.
would not show intentional mis
average
Prosser,
person.
supra, at
prose
conduct. A union is not required to
We could lower the
of
applied
standard
care
grievance
honestly
cute a
it
believes
malpractice
in legal
cases until
it was a
Sipes, supra,
lacks merit. Vaca v.
realistic standard to which to hold union
192-95,
agent to the a railroad sense, representation. unless But worker a worker’s tive outs, grievances the union on the on his prosecute worker and entitled to the union would be liable that case own. standard. the Hoffman to indicate that al may This fact seem protect to a standard serves also That right lowing a broad of action the worker law objective of federal labor long-standing of for violation the statu against the union judicial intervention in labor by minimizing representation fair need tory duty of normally resolved arbitration. disputes entangle litigation over the the court America v. Steelworkers of Cf. United the worker under the company’s duty to 568-69, Co., Mfg. 363 U.S. American bargaining agreement. But the 1346-47, L.Ed.2d The court as we appearance deceptive. may Taft-Hartley 301 of the Section interpret agree have will have to noted by mak- introduced a discordant note have phase of the suit remedy ment in the agreements judi- bargaining ing collective Moreover, if union. the worker against the enforceable, does not statute cially proving succeeds in that the breached here, one maybe reasons apply him, may its to the court not be able industry put did not railroad Congress remedy provide adequate an unless 301 was that under section against company litigate allows him to unlike the National Labor Rela- Labor Act just is not problem as well. The creates an elaborate scheme tions Act small, union, many as unions local local remedies for violations of collective arbitral are, may pay damages able to not be agreements. This scheme bargaining will, judgment. the worker like Often judicial interpretation of collective makes reinstatement, Graf, seeking only be which agreements even more otiose bargaining give try can him. Graf can company the federal than in other industries. If an company haul before arbitral board to decide whether unions are courts are but he will no satisfaction unless the get with representing workers competently noncompliance with the time forgives board en- grievances—if they are create and which is agreement, unlikely. limits care, reciprocal standard of and a force a Lazar, in Disciplinary Due Process See governing the un- concept malpractice, Hearings: Decisions of the National Rail workers—they with the relationship ion’s (1980). A Adjustment road Board 353-65 involved in railroad in- deeply will be reviewing court a denial of award on relations. dustry’s labor compel ground unlikely such for judicial involvement would The extent either, giveness owing extremely to the even if a court never had to disturbing judicial narrow review of the ac scope of bargaining agreement interpret a tions of bodies. Union Pac. R.R. those violating union for against a suit 93-94, Sheehan, v. would, (but representation of fair 401-402, (1978); Essary seen), even if worker was have we Chicago Transport. supra; but & N. W. bring as an not allowed to Lines, Inc., 669 see v. Delta Air Stanton to what Contrary defendant. additional Cir.1982). F.2d 833 (1st believed, the worker’s the district court reasons, If for which some courts these the union and remedies see, e.g., persuasive, have found Shum The court’s logically separable. railroad are (2d Ry., 331-32 South Buffalo error, a natural one. Most though, Cir.1974), litigate worker is allowed to come out representation cases duty of prove he must a viola- company, bargaining where collective industries tion of contract to the collective authori- give unions exclusive contracts will prevail, means that court In such indus- ty grievances. the contract to determine interpret have about a may complain the worker tries courts, damages. liability as well as Other contract unless he shows violation *10 however, ent with a the worker to channel his either broad or a narrow stan- require through dard.) the the complaint against company Hoffman minimizes the occasions on up by Railway set La which a system remedial federal district court has to take though he is in properly bor even court over of the function the arbitral boards and union, unless there collusion against enforce a bargaining agreement. collective See, company. and the between union court do so only will when the worker e.g., Raus v. Brotherhood of Car prove can intentional misconduct men, (8th Cir.1981). (Col prosecute to failing grievance. union lusion would make the remedies under the We given have reasons for a narrow stan- Act futile. The arbitral of but we liability prove dard cannot that composed company repre boards are of a the standard should that Hoffman. sentative, representative, a union and a The sense that it should be narrow is pretty neutral—who outvote the other cannot two No simple much universal. court thinks they colluding.) The choice between negligence would be a proper standard. to confining the worker arbitral remedies Hoffman, reject The courts that that use a may nothing that be worth to him because midway simple negli- standard between prosecute grievance the union to failed misconduct, gence and intentional have timely allowing prose fashion and him to adopted gross in effect negligence. But as grievance cute his in court upon proving noted earlier that standard is criticized as breached union its of fair vague. too tips This consideration the bal- representation happy (Our is not a one. ance favor of Hoffman. II Count was circuit has not sides In yet. Essary, taken correctly dismissed. which suit against employer, dismissed a judge the union was a The district party appeal, not to dismissed Count and we have I on his own thought did not occasion decide initiative because he it it had breached its fair had to fall Count II when fell. This was 14, 17 representation. 6.) F.2d at n. quite correct. What is true is that Raus leaves the worker without remedy unless the union has its duty breached against of a company, proce because representation, a may worker not sue blameless; dural default which he is in court for bargain breach a collective a has remedy against the union but it may contract; Labor Act con be adequate. destroys Shum the em him fines to arbitration and narrow ployer’s reasonable reliance on the deadlines judicial review of arbitration which the Act bargaining agreement provides. of Railway Order Conductors of imposes grievances, on the prosecution of Pitney, 561, 565-66, America v. requires interpret the court 322, 324, (1946); 90 L.Ed. Slocum agreement—but the court have will to do Delaware, W.R.R., Lackawanna & anyway remedy of the stage 577, 579, 94 L.Ed. 795 union, if the suit reaches that Therefore, if the claim stage. dismissed, here, union as it properly the claim the company must be We need not choose these ap- between dismissed too. The moved to dis proaches since failed a prove breach ground miss on this and after union’s duty. union’s But it relevant claim was dismissed the should approach Shum, observe that motion have granted—but only been insofar as Count I allows the worker to his griev- alleges a bargain ance in violation of the federal court when has ing agreement. Conceivably alleges violated its of fair it also representation, has law; indeed, at least tort apparent judi- some merit and some under federal or state and, support rejected, cial unless that is how totally actually Count reads. In the points using toward unlikely narrow standard to event that is found state a determine the union’s liability—a Hoffman claim under federal law the district court (The standard. approach jurisdiction. of Raus is consist- should retain But if is found *11 arising under the cases claim it should a state tort only state their dis- by arbitrating this suit court where U.S.C. § remanded to the state whether a That Adjustment not consider Board. began. putes We need before under state discharge wrongful claim of was not done. by the preempted
tort law is issues, on all I would affirm Therefore Act. dis- dissenting partial from the respectfully II of the dismissing Count judgment The I. position of Count judgment dis- is affirmed. complaint is vacated entirety I in its missing Count pro- further remanded for
and the case is opinion. No consistent with this
ceedings in this court.
costs
So Ordered. WOOD, Jr., Circuit
HARLINGTON dissenting in concurring part Judge, Petitioner, FLAXMAN, Stephen D. part. Judge with Posner’s My disagreements TRADING FUTURES COMMODITY opinion are not serious. majority COMMISSION, Respondent. considered jurisdictional issue Since No. 82-1373. raised, briefed or Posner was not by Judge court or parties in the district argued by Appeals, United Court States his dis- I hesitate to embrace in this court Circuit. Seventh although may very of that issue cussion Argued June 1982. I analysis. If saw well be a correct jurisdiction ap- question about our serious Decided Jan. as I do parties, parently overlooked case, give prefer in this I would to be opportunity some additional parties resolving it in a
heard on the issue before opinion.
precedential possi- I as Posner also reads Count
Judge or state a tort under federal
bly alleging dismissal and
law, and therefore vacates its however, Plaintiff, had not made
remands. complaint In his he al- suggestion. prevented he “was from exhaust-
leged that against” his administrative remedies of the Union’s failure
the railroad because Plaintiff’s his dismissal. timely to tie the fate of approach
own has been appears to me I to Count II. Since
Count viewed his own plaintiff narrowly
that the parties the other
complaint, as did I not endeavor to re-
Judge Grady, would sounding in tort it for him as
characterize I affirm the dismissal stage. would alternatively under Andrews
of Count I Co., 406 and Nashville R.
Louisville
(1972)
1562,
which believe