UNITED STATES оf America, Plaintiff-Appellee, v. Ghazi H. QAISI and Abdul M. Qaisi, Defendants-Appellants.
No. 85-5274.
United States Court of Appeals, Sixth Circuit.
March 27, 1986.
Before MARTIN and WELLFORD, Circuit Judges and WEICK, Senior Circuit Judge.
Accordingly, we hold that plaintiff‘s judgment against the United States bars his actions against the individual dеfendants. The directed verdict in favor of Elsea is affirmed. The judgment against Dr. Pichardo is reversed. The action is remanded to the District Court with directions to enter judgment in favor of Dr. Pichardo.
ORDER
Upon consideration of the petition for rehearing filed herein by the plaintiff-appellee, the Cоurt concludes that the issues raised were fully considered upon the original submission and decision of this case.
IT IS THEREFORE ORDERED that the petition for rehearing be and it hereby is denied.
WELLFORD, Circuit Judge, concurring.
I concur in the denial of the petition but set forth briefly my reasons.
Unfortunately, in this case the government proved an attempt to suborn false testimony of Barbara Qaisi. She was wrongfully induced and bribed to give untrue testimony but that testimony was not material at the proceeding since the marriage of Barbara and Abdul Qaisi was, at the outset, legal on its face, and it was immaterial as to whether they were still living together at the time оf the hearing. Materiality is an essential element of a perjury charge. See United States v. Brumley, 560 F.2d 1268, 1274 (5th Cir. 1977); United States v. Damato, 554 F.2d 1371 (5th Cir. 1977); United States v. Slavik, 548 F.2d 75 (3d Cir. 1977). The argument made by the government in the petition to rehear has some merit; regrettably, it was not presented adequately by brief and at oral argument. I therefore with some reluctance join in the denial of the petition for rehearing.
Pedro CAMACHO, Plaintiff-Appellant, v. RITZ-CARLTON WATER TOWER, a partnership, Defendant-Appellee.
No. 85-1948.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 17, 1986. Decided Feb. 3, 1986.
Kenneth N. Flazman, Chicago, Ill., for plaintiff-appellant.
Donald F. Peters, Chicago, Ill., for defendant-appellee.
Before CUMMINGS, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge.
Pedro Camacho was a waiter in the main dining room of the Ritz-Carlton Hotel in Chicago. One night he went home while diners were still at table, leaving only a busboy to care for the customers. The Hotel fired him. He filed a grievance, and his union (Hotel Employees and Restaurant Employees Union, Local 1, AFL-CIO) sent William Grossman, its business agent, to represent Camacho at a hearing.
The busboy recounted at the hearing that Camacho had left, just as the management said. Camacho replied that Sait Demir, a captain, had left for the evening and told Camacho that he could go too. Demir said that he had told Camacho that as the last waiter on duty he must stay until all customers had left. Demir explained that the Hotel requires at least one wаiter to stay in the dining room to serve guests and reopen the check if guests order something more. Luis Acevado, the manager of the dining room, said that in firing Camacho he took account not only of this incident but also of Camacho‘s disciplinary record, which in-
Camacho maintains in this suit that Grossman was such an inferior advocate that the Union denied him the “fair representation” it is required to supply. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); cf.
The Hotel pointed out thаt Grossman could not have reopened the earlier charges of misconduct because Camacho had not filed grievances concerning them. It moved for summary judgment, attaching extracts of depositions demonstrating that remaining at one‘s post is not only the Hotel‘s (unwritten) poliсy but also a “standard in the waiter‘s profession.” The district court granted the motion—twice. After deciding in the Hotel‘s favor once, the court allowed Camacho to obtain new counsel and file an amended complaint. Then it granted the Hotel‘s renewed motion. Each time the district cоurt concluded that Camacho had not raised a colorable claim that the Union committed “intentional misconduct,” which under Hoffman v. Lonza, Inc., 658 F.2d 519, 522 (7th Cir. 1981), is an
Camacho presented no evidence that at the time of the grievance hearing he was on the outs with the Union. Surely he was on the outs with the Hotel, and perhaps the Hotel was seeking an excuse to get rid of him, but that is a different matter. The only evidence concerning Camacho and the Union is that five months after the hearing, Grossman told Demir “that Camacho had been causing a great deal of trouble.” This “trouble,” the district court pointed out, came from Camacho‘s unhappiness with the handling of his grievance; nothing suggests that Camacho and the Union were at odds at the time of the grievance, and so Hoffman seals Camacho‘s fate.
Camacho therefore asks us to overrule Hoffman, which he says is inconsistent with Hines v. Anchor Motor Freight, 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976). The district court also “question[ed] the validity of the Hoffman standard in light of the clear direction the Supreme Court has provided on this issue in Vaca and Hines....” Camacho asks us to replace the rule of Hoffman with a causation standard: Did the Union‘s conduct cause the grievance process to err? Under this approach, perfunctory handling of a potentially meritorious grievance would be actionable.
We have so far declined all invitations to change the standard of Hoffman. See Graf v. Elgin, Joliet & Eastern Ry., 697 F.2d 771 (7th Cir. 1983); Superczynski v. P.T.O. Services, Inc., 706 F.2d 200 (7th Cir. 1983); Dober, supra. Although Graf hints that recklessness might substitute for intent, see 697 F.2d at 778-79, Graf, Superczynski, and Dober hold that gross negligence is not a basis of liability. A union may be liable if it discriminates against employees for forbidden reasons (such as race or politics, including the employee‘s position on the union and its leaders). It is not liable, however, for careless or boneheaded conduct. When the prohibition is directed against the motive rather than the result, it is necessary to use the standard of intent or recklessness (from which intent may be inferred). See Duckworth v. Franzen, 780 F.2d 645, 651-53 (7th Cir. 1985); Sunstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1040 (7th Cir.), cert. denied, 434 U.S. 875 (1977).
Hoffman and our subsequent cases adopt a standard based on prohibited intent because any other approach would embroil the courts in the merits of employment decisions. The grievance and arbitration machinery is designed to place review of discipline in specialized tribunals. Review of arbitral awards is close to nonexistent so long as the arbitrator interprets (as opposed to revises) the contract; the parties have bargained for non-judicial decisions and are entitled to rely on the decisions they receive. Ethyl Corp. v. Steelworkers, 768 F.2d 180 (7th Cir. 1985). A court could not implement a standard based on causation—Did perfunctory handling cause an employee to lose a meritorious grievance?—without deciding which grievances are meritorious and which are not. That would move the locus of decision from the grievance-arbitration process to the courts, and the movement would both violate the contractual allocation of decisionmaking power and undermine the national policy favoring non-judicial disposition of labor disputes. See Graf, supra, 697 F.2d at 779-80.
The use of a standard based on causation or negligence also would interfere with employees’ right to choose the level of care for which they are willing to pay. Business agents such as Grossman usually have many duties in addition to handling grievances. They are not lawyers or pri-
A union also might conclude that it is not in the interest of employees as a group to wage war against the employer over every grievance. More contentious рrocedures may alter the outcome of some cases, but a union sensibly may conclude—without violating the duty of fair representation that runs to all employees—that the employees as a group are better off displaying a cooperative and conciliatory spirit than showing arms in every encounter over a discharge. An unqualified prohibition of “perfunctory” representation would compel unions to change the allocation of their resources and to be more belicose. Both results would undercut employees’ rights to control their own dеstiny; both could do more harm than good, as the employees see things. One unhappy outcome might be that employers, faced with the prospect of uniformly vigorous pursuit of grievances, might seek to reduce the employees’ access to any grievance-handling machinery. Vaca held that unions may settle disputes short of arbitration, see 386 U.S. at 191-92, in large part to preserve employees’ control about how contentious their unions should be. True, the casual handling of grievances may not be what the employees want, but if perfunctory representation defeats rather than implements the wishes of the employees, they may install a new team of grievers. See Dober, supra, 707 F.2d at 295.
One final consideration supports Hoffman. This litigation is between Camacho and the Hotel, not between Camacho and the Union. The employer is liable for any damages preceding the time an arbitrator would have reinstated the еmployee, had the union done its duty. Bowen v. United States Postal Service, 459 U.S. 212 (1983). So the employer has an interest in defending the Union‘s conduct, as it has done here. This is not altogether satisfactory, however, because the Hotel cannot readily determine why the Union did what it did. A union has little incentive to cooperate with its natural adversary in the course of litigation, once the plaintiff offers it practical immunity. The steep burden imposed by Hoffman helps to protect employers from the risk of error, a risk magnified when the employer must justify acts it may find inscrutable. Hoffman itself expressed worry about “collusive” suits in which the union assisted the еmployee to get a recovery from the employer by portraying itself as incompetent (658 F.2d at 522), and Bowen makes this less likely by reducing the maximum that the employer may be called on to pay to an employee. But Bowen does not prevent union and employee from ganging up against the employer or make it any easier for the employer to defend the union‘s conduct.
Against all of this Camacho offers Hines. That case holds that an arbitral award does not preclude litigation about the quality of the union‘s representation. The Court did not delineate when unions are liable. There are but hints. One passage statеs that when the union handles a grievance improperly “the focus is no longer on the reasons for the union‘s failure to act but on whether ... the employer breached the contract and whether there is substantial reason to believe that a union breach of duty contributed to the erroneous outcome of the contractual proceedings.”
In some other circuits perfunctory handling of a meritorious grievance may subjеct a union to liability. See Wyatt v. Interstate & Ocean Transportation Co., 623 F.2d 888, 891 (4th Cir. 1980); NLRB v. Postal Workers, 618 F.2d 1249, 1255 (8th Cir. 1980); Ethier v. United States Postal Service, 590 F.2d 733, 737 n. 3 (8th Cir.), cert. denied, 444 U.S. 826 (1979); Robesky v. Qantas Empire Airways, Ltd., 573 F.2d 1082, 1089 (9th Cir. 1978); Foust v. Electrical Workers, 572 F.2d 710, 714-16 (10th Cir. 1978), rev‘d on other grounds, 442 U.S. 42 (1979); Ruzicka v. General Motors Corp., 523 F.2d 306 (6th Cir. 1975), modified, 649 F.2d 1207 (1981), cert. denied, 464 U.S. 982 (1983). Some of these courts may mean the same by “perfunctory representation” as we mean by “bad faith,” but there is substantial disagreement all the same. These other courts have not performed to universal applause. See Michael C. Harper & Ira C. Lupu, Fair Representation as Equal Protection, 98 Harv.L.Rev. 1211, 1255-82 (1985). One day the Supreme Court will resolve these recurring differences, which have called forth at least ten published majority opinions plus several concurring and dissenting opinions in this circuit alone since 1981. Until that day, however, Hoffman stands.
AFFIRMED
CUDAHY, Circuit Judge, concurring in the result.
I have much earlier expressed my disapproval of the rule and reasoning of Hoffman v. Lonza, Inc., 658 F.2d 519 (7th Cir. 1981). See my separate opinions in Hoffman and Dober v. Roadway Express, Inc., 707 F.2d 292 (7th Cir. 1983). But Hoffman—however difficult it may be to square with Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976) and Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)—is clearly the law of this circuit. Hoffman and its progeny appear to govern this case.
In any event, the reasons offered here by the majority for why the union membership is entitled only to a brand of representation worse than perfunctory are ingenious but unpersuasive. I am struck by the apparent need felt by a succession of judges over the years to defend, often at length, the not self-evidently correct Hoffman rule. See Dober, 707 F.2d at 294-95; Superczynski v. P.T.O. Services, Inc., 706 F.2d 200, 202-03 (7th Cir. 1983); Graf v. Elgin, Joliet & Eastern Railway, 697 F.2d 771, 779-80 (7th Cir. 1983); Hoffman, 658 F.2d at 521-23. I would stand by my previously expressed views on this subject.