Edward C. Dober v. Roadway Express, Inc., Benjamin Carter, and Thomas Kovalik
707 F.2d 292
7th Cir.
1983
Check Treatment

*2 acquitted on bond. He was later in traffic PELL, POSNER, Before CUDAHY and court. Judges. Circuit bargaining agreement The collective pro- POSNER, Judge. Circuit two-stage grievance procedure. vides a This is a suit under stage meeting section 301 of The first is a between union Act, the Labor Management representatives. Relations 29 and company Dober was 185(a), against Roadway Express represented by representatives, U.S.C. two union § and two of its Ligurotis Navigato. meeting officers for breach of a end- (7th Cir.1982) (per is a stage The second

ed deadlock. in a com- curiam); permanent before a United Steel Workers America four of four union and consisting NLRB, 1052, 1057(7th Cir.1982) mittee hap- itAs representatives. management curiam); E. (per Ry., Graf v. Joliet & of this was the chairman Ligurotis pened, (7th Cir.1983). accompanied to the *3 committee. decisions, Superczynski most recent of these named representative by a union hearing Services, Inc., v. P.T.O. with Dober had not talked Coco, Coco but Cir.1983), could not be explicit. remained silent hearing and the before Lonza, Inc., “Hoffman v. 658 F.2d 519 re- that the argues Dober it. throughout (7th Cir.1981), is the law of this cir Coco’s Navigato by of Coco and placement regarding cuit the proof required aof hearing the him before to interview plaintiff seeking to establish a breach of the hearing the show that at speak and to holds fair .... Hoffman fairly. him represent not union did to fairly that union breaches had argued Dober that he hearing, At the deliberately it represent a worker if directions and specific route given not been unjustifiably refuses to that had where he was arrested street that the grievance.” worker At weight-restriction posted with not been distinguish on Superczynski goes to that he had been signs he out pointed ground that Miller and Baidini on a makes com- charge. traffic of the acquitted principle: them instances of the Hoffman for pay to award Dober his decided mittee “The records both cases indicated that had eight hours that he balance unions have acted in bad faith.” day to work on been scheduled Id. at 203. compen- to him arrest, but it refused award spent jail. for the 24 hours sation standard, Applying the Hoffman to be which he claims compensation, That we district court provision of by to virtue entitled not There is not raised triable issue. quoted agreement ear- slightest indication that the union acted $421; that, lier, plus to would amount prosecuting grievance. in bad faith in to a hu- $150,000 punitive damages lend union, knowing This is not a case where the complaint, is the morous touch to possibly the worker has a meritorious in this suit. seeking amount Dober is unwilling prosecute to being but Inc., Lonza, v. F.2d In Hoffman the worker is on the effectively because Cir.1981), this court suits “limit[ed] is a of outs with the union or member fairly represent of to to not a union minority racial or other un of intentional misconduct instances man, prosecute at refuses Judge Cudahy, in a con Although ions.” so in a manner perfunctory all does opinion, contended that standard curring through motions. The dark going just limited, of misconduct was too picture paint Dober can substi est cases, two earlier Seventh Circuit and cited tuting Navigato Coco for and then not re not overruled in Hoff distinguished before the quiring Coco to interview Dober v. Local No. United man —Baldini lackluster, inept, the union was Workers, 581 F.2d Auto careless; and as Hoffman and cases Gateway Transport. Cir.1978), and Miller clear, negligence, it make even following 277 nn. 11-12 gross, does violate the fair when to embrace a 1980) could read —that representation. standard, which a series of eases in broader workers require It be unrealistic panels of this court have followed different up part-time on a basis come "grieving” it is Hoffman make clear that indeed com- judicially to some devised Rupe Spector law this circuit. See required akin petent representation Freight Systems, Stores, being to have lawyers pain found (7th Cir.1982); Eagle Cote v. malpractice. Graf of which his own professional “lawyer” committed judge! chief And, course, E. 697 F.2d at Ry., supra, lawyer, Joliet & Coco is not a and it a standard in adoption (or 779. The such is unclear what his efforts Navigato’s) simply cases would en- would have added to self-represen- Dober’s filing of trivial cases such as courage tation. An articulate and determined de- this, prevent cases that federal fender'of what he conceives rights to be his employers, get- but unions and judges, under the collective bargaining agreement, ting important on with more matters. from which he quoted chapter and verse to There is no need for us to assume such a committee, Dober probably protect burden in order to workers who was a more effective advocate of his cause have grievances. They meritorious do not lay advocate such as Coco or Navi- protection against representation need our gate would have been and if so it was inept but not invidious. If a local reasonable for Navigate to absent himself *4 incompetent job grieving, union does an and for to keep Coco his mouth shut. In- its members can vote new officers who deed, it would have been any lay hard for job will do a better can vote represent advocate to Dober with conviction True, if majority another union. the is effectiveness, given and the unreasonable- oppressing minority process a the electoral refusing ness of Dober’s to surrender his work, just point will not but it is at that him, license to the who stopped officer a that the Vaca principle play comes into and grievance factor the committee’s deci- judicial intervention becomes warranted. license, sion. Had he surrendered his Congress has tried to make unions demo- does, normal every Chicago driver in he cratic, Labor-Management see Reporting could have driven off without penalty, and and Disclosure Act of 29 U.S.C. any prejudice without to his claim of inno- seq., 401 et and to the extent that it has §§ cence; and he would not spend have had to succeeded union members electoral enjoy jail. 24 hours in injury His was self-inflict- protection against incompetent representa- not, ed—and if he was more likely than tion. But union no democracy guar- to be anyone griev- else able to convince the minority against antees a oppression by ance committee that he really was the vic- political If majority democracy does. tim of a deliberately a union refuses to contract. possibly meritorious for an im- not, end, it is So critical what reason, proper assigned such as that apply standard we in this case. But there supporter worker is not a union or adheres many duty suits in this circuit over the to some minority faction the union —but representation, potential parties of fair and precise unimportant reason is —he workers, unions, those employ bypass should be able to the union and sue suits — right ers —and the bar of this circuit have a Brands, company on his own. Barton follow, to know what standard we so we NLRB, Ltd. v. 799 Cir. the standard is reaffirm 1976). But there must be intentional mis- precise meaning misconduct. On the of this conduct. standard in the of fair duty if, Yet even to what contrary we have Ry., context see Graf v. Joliet & E. said, standard were neglience, 697 F.2d at 778-79. Here we add only Although prepa- would lose. Coco’s lack of point that the fact that a union obvious ration and his silence seem may to mark press not to decides worker’s prudent him as the antithesis of the not establish intentional does misconduct. advocate, skillful the circumstances were point appeal— other raised on special. Ligurotis, representative a Dober discovery that Dober was entitled to stage in the first grievance proce- —is dure, discovery requested moot. The went to was the chairman of the second arbi- the merits of his rather than to hardly tral board. Dober needed another “lawyer” dispositive him before a tribunal the issue we consider —whether repre- pra its of fair S.Ct. L.Ed.2d leaves breached [96 231] union has little doubt such not become

sentation. reading law. Nor do we think Affirmed. Lockridge or Williams or other cases cited Company really sup- to this effect CUDAHY, Judge, concurring Circuit ports argument. its the result: Id. at n. 5. concludes that Hoffman Cir.1981), has Lonza, Tone, Judge writing for this court in Mil- proc circuit” aby of this “the law become ler, said: conflicting panel opinions up stacking ess of Although intentionally evidence hostile awarding prize pile. to the thickest clearly action or invidious union Superczynski v. P.T.O. Bauer determining whether the relevant Inc., 706 F.2d Services, breached, of fair very followed time earlier short 1983), a breached without scien- and reached procedure same much part “[P]atently ter on the of the union. By conclusion. questionable the same conduct such as racial discrimi- wrongful Baldini v. Local reading any fair hostility” nation or (7th Cir.1978), Mil UAW, prohibited. sole measure what Vaca Transportation ler Gateway at 190-91 S.Ct. at U.S. [87 Cir.1980), which were reversals A union also breaches 916-17].... *5 upholding employee summary judgments arbitrarily ignores per- it or when clearly contrary prop to the discharges, processes grievance. functorily miscon faith osition that bad [emphasis supplied]. at 277 n. 11 non of a breach of the qua the sine duct are representation. duty of Judge (and, in I take Superczynski Bauer it, here) to distin- attempts writing for this in Baldi- Pell court grounds Baldini and Miller on the guish ni said: “the records in both cases indicated that Sipes Vaca v. ... a union breaches Under in have acted bad may the unions of fair when its At 203 [emphasis faith.” supplied]. This the member is “arbi- conduct towards hardly legitimate basis of distinction is It discriminatory, or in bad faith.” trary, language opin- the face of the clear disjunctive. the standard is is noted that matter, might it ions. And for that I think rejected argument an expressly Vaca argued present in the case that Coco be breaches such as dis- obvious What have acted in bad faith. Coco’s be crimination or hostile treatment would of on the continuum from state mind was actionable. to violent hostili- slight negligence 581 [emphasis supplied]. at 150 F.2d and, view, my is should not ty unknown to the Judge Pell attached a footnote of dispositive this case. follows: above-quoted passage as respectfully I must assert Baldini So lifted from their Occasional sentences opposition and Miller stand in stark invidi- make it seem that might context analysis here as well as to the majority’s or some sort of malice hostility ous and Mil- approach Superczynski. Baldini see, required, e.g., Motor Coach always successfully distinguished, have not been 274, ler Lockridge, 403 Employees v. U.S. tell, as I the law this and so far can 1909, 1924, 1925, 29 300, 301 S.Ct. [91 how become a function of em- circuit has (1971); Williams v. General L.Ed.2d 473] assert the panel panels can 399, (7th phatically 405 Cir. Corp., 492 F.2d Foods choice in the face of their proposition issue in 1974), but the treatment of the precedent.1 Inc., contrary su- Freight, clear Hines v. Anchor Motor Further, Cir.1981), panel writing I said: for a unanimous Industries, (7th Baker v. Amsted 656

297 dispute, liability par- I circumstances analytical On merits Supreme Court ticular case.... to believe continue [87 bad faith.” Vaca hold L.Ed.2d 231] U.S. See term S.Ct. Hines telling us has, believe, 554, “arbitrary” 567-71 I 903, 916, 17 L.Ed.2d v. Anchor (1976). And the something [96 v. Motor S.Ct. disjunctively from adopted when 1048, 386 U.S. Freight view which I 842] by all but employed 171, 190 (1967). 424 “in 47 The grave ing agent. conduct of [******] [the policies underlying injury resulting employee] her would be served remedy egregious for the afford- of fair ad circuits which have one of the other 1090, supplied]. Id. at 1091 [emphasis U.S. dressed the F.2d Ethier Foust 1978); Beriault v. & Checkers ices, Inc., trical 733, Workers, v. International United States 736 Farmer problem. S.Ct. of International 1096, 1103 Local 49, F.2d Cir.), 62 L.Ed.2d Brotherhood Postal 40, Super Cargoes cert. v. ARA Service, denied, Longshore 33 Cir.1981); of Elec (1979); Serv 444 590 ring in lowed resolution ing The scribe the standard we [T]he [******] analysis Robesky, term adequacy “arbitrary” grievances. Judge Kennedy, even apply ... procedures persuasive: should de- on review- concur- fol- Union, 501 F.2d men’s & Warehousemen’s A discretion in de- labor union UAW, Cir.1974); Griffin termining proper resolution of an em- (4th Cir.1972); DeArroyo The ployee grievance.... Supreme Packinghouse, Trabajadores v. Sindicato de required exercising Court has this (1st Cir.1970). Cf. Medlin adjust griev- a union should discretion (3d Boeing Vertol ances in a manner that neither arbi- Cir.1980). perfunctory.... nor trary capably has been dealt with matter rule imposed by seems to review Ltd., *6 Airways Robesky Qantas Empire me the kind of we use require scrutiny to Cir.1978), where we review a determination whenever court concluded: dis- body an entrusted with individual power. inquire not whether by cretionary

Acts of omission union officials We granted by harm be so has been abused intended to members discretion In egregious, so far short of minimum stan- to make a reasoned decision. employee us, to and so inquire dards fairness now before we should case union interests as ra- legitimate unrelated to the union decisions lacked a whether arbitrary. basis, be by perfunctorily tional whether omissions [I]t [******] clear by union officials that unintentional may be arbi- acts or doomed the processing decision grievances. not made, so that the union fore- reasoned I [emphasis supplied]. Id. at 1092 therefore disregard for trary if reflect reckless as formulated conclude employee; rights individual generally and as Supreme Court by the injured severely prejudice .. . they can- interpreted the lower federal courts by underly- and the employee; policies ... “intentional mis- be narrowed to fairly ing union from by shielding conduct.” served (including employees who negotiated a individual those collec- Where ... a union has by statutorily- opposed their bargaining agreement that clothes it with tive individually imposed agent) authority employees’ are barred exclusive wrong- employer’s seeking grievances against employer, from their redress heavy responsibility ful conduct. bears supplied]. conscientiously, [emphasis fairly at 1250 since such claims in the case before us this matters None of severely preju- NASH, Petitioner-Appellee, has not been

since Dober Julius James has lost diced, at 1090. He $421— see id. nothing alleged has been And job. not his ISRAEL, LaFollette, Thomas Bronson C. basic taint of suggest any seems to which Respondents-Appellants. fact, Pos- In process. the arbitral context No. 82-1633. out, present ner points Coco’s conduct can be appear that does not of Appeals, United States Court faulted. seriously Seventh Circuit. Nonetheless, narrowing the standard Argued Sept. 1982. misconduct” to “intentional May Decided practi- as a virtually impossible has made it discharged employee cal for a matter his union or his hold either

successfully circum- to account.

employer might give employee an

stances which be an unabashed hope would practical

much refusing it was a union that

declaration an hostility

out of motives of it could interest. Otherwise

employee’s or stifle a “forget” to act

simply For this rea- indifference. monumental facts of life on the

son, as it is in the rooted floor, Supreme specifi- Court’s

factory as well as “bad faith” “arbitrary”

cation of insightful. With is both wise

actions contrary adoption majority’s

all respect, simplistic of law is unsupported rule injustice.

and invites employees are unde- discharged

Many but some are not. And no one

serving, employee than the who has powerless open hostility employer of his

incurred the disfavor or indifference unspoken

and the major-

of those in control of his union. The through the demo-

ity speaks of recourse this is of scant value to process,

cratic In the

the worker who been fired. the court-

present effort to close and lock doors, pow- it is no accident that the

house I cannot

erless are the first suffer. the views announced

therefore

today by majority.