Smart, Ronald D. v. Int'l Brohd Elec 702Smart, Ronald D. v. Int'l Brohd Elec 702
Smart, an electrical contractor who is white, hired Robert Thompson, who is black, to work for him as an electrician; Thompson was and is Smart‘s only employee. Smart had not signed on to the collective bargaining agreement that the IBEW local had signed with the area‘s other electrical contractors. Deciding to do so, he went to the union office and signed a letter of assent to the agreement. With him on this visit he took Thompson so that the latter could join the union. At the office Smart learned that the union had a program for subsidizing union contractors to enable them to compete more effectively with nonunion contractors, and he requested the application form. That was in July 1998. By October, the union had neither furnished the form nor arranged to swear in Thompson as a member of the union. Smart complained to the union and Thompson was sworn in; but still the form did not arrive. Between October 1998 and March 1999, Smart called the union officer with whom he had been dealing, Jim Nolen, 16 times requesting the form and also requesting that Thompson be enrolled in a union training program. He never got through to Nolen and the messages he left were never returned. Meanwhile in January 1999 Smart‘s union dues had been tripled, and two months later Smart wrote Nolen that he was terminating his relation with the union. Nolen promptly called him and asked him why. Smart explained that it was because of the delay in Thompson‘s swearing in and enrollment in the training program, the failure to send Smart the application form for the subsidy, and the tripling of his dues. Nolen said that Smart‘s dues had been raised because he was “working
Smart was not satisfied, and so his termination as a union contractor stood. The union, however, filed a grievance against him pursuant to the collective bargaining agreement because he had failed to make required contributions to the union‘s welfare (“fringe benefits“) fund. The grievance was arbitrated, and the arbitrators found Smart “guilty of non-payment of fringes as required. Further, the parties are encouraged to meet as soon as possible to resolve the current delinquencies.” But the arbitrators did not specify the dollar amount that he owed the union.
Smart‘s suit challenges the arbitrators’ award as invalid primarily because of lack of finality, and also claims that the union discriminated against him, because of his employing a black person, in violation of
Insofar as the suit challenges the arbitrators’ award, it is founded both on section 301 of the Taft-Hartley Act,
The Act requires the court to vacate an arbitrator‘s award, so far as bears on this case, “where the arbitrators . . . so imperfectly executed [their powers] that a mutual, final, and definite award upon the subject matter submitted was not made.”
There can be a jurisdictional question in cases challenging or seeking enforcement of arbitration awards, for although no statute corresponding to section 1291 tells the courts when an arbitration award is ripe for judicial enforcement or review, the courts are naturally reluctant to invite a judicial proceeding every time the arbitrator sneezes. But beyond that, generalization is difficult. In IDS Life Ins. Co. v. Royal Alliance Associates, Inc., supra, 266 F.3d at 650, we expressed skepticism about the propriety of engrafting Fed. R. Civ. P. 54(b) onto the arbitration statute and might have been understood to be implying a jurisdictional standard similar to that of section 1291. That seems to be the position of the Second Circuit as well. See Michaels v. Mariforum Shipping, S.A., supra, 624 F.2d at 413-14. But an earlier panel of our court had said that “a ruling on a discrete, time-sensitive issue may be final and ripe for confirmation even though other claims remain to be addressed by arbitrators,” and this sounds Rule 54(b)-ish. Publicis Communication v. True North Communications, Inc., 206 F.3d 725, 729 (7th Cir. 2000). The First Circuit is even more hospitable to what amount to interlocutory appeals of arbitral awards—to the extent of allowing review of the arbitrator‘s liability determination before he has made an award of damages, see Providence Journal Co. v. Providence Newspaper Guild, 271 F.3d 16, 19-20 (1st Cir. 2001); Hart Surgical, Inc. v. Ultracision, Inc., 244 F.3d 231, 233-35 (1st Cir. 2001), which Rule 54(b) does not permit, Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742-44 (1976); Mercer v. Magnant, 40 F.3d 893, 896 (7th Cir. 1994); General Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 311 n. 3 (3d Cir. 2001), though later we shall note a minor exception to the rule that a judgment in a case seeking damages is not final and appealable under section 1291 until the amount of the damages has been computed and incorporated into the judgment.
One thing is clear, however: if the arbitrator himself thinks he‘s through with the case, then his award is final and appealable, Local 36, Sheet Metal Workers Int‘l Association, AFL-CIO v. Pevely Sheet Metal Co., 951 F.2d 947, 949 (8th Cir. 1992), for that is the rule under section 1291 as well, Bankers Trust Co. v. Mallis, 435 U.S. 381, 387-88 (1978) (per curiam); Miller v. Artistic Cleaners, 153 F.3d 781, 783-84 (7th Cir. 1998); Student Loan Marketing Ass‘n v. Lipman, 45 F.3d 173, 177 (7th Cir. 1995); and then section 10(a)(4) comes into play to guide the court in deciding whether the award is either incomplete (the arbitrator was wrong to think he was through with the case) or indefinite. Neither circumstance is present here. The question put to the arbitrators was whether Smart owed the “fringes,” not how much he owed. The parties assumed that once that issue was resolved, if it was resolved against Smart, they could figure out readily enough how much he owed. And there is no ambiguity about what the arbitrators decided: they decided that Smart owed the fringes and they directed the parties to compute the amount owed.
This case illustrates why section 10(a)(4) should not be interpreted to incorporate the final-judgment rule of
We move on to the discrimination issues. Section 1981 of Title 42, one of the post-Civil War antidiscrimination statutes, guarantees, so far as bears on this case, equal rights “to make and enforce contracts.” Smart argues that if as he believes the union failed to give him the application form for the subsidy for union contractors because he employed a black person, it was impeding his ability to make contracts by denying him a subsidy that would have made it easier for him to compete with nonunion contractors, and it was doing so on racial grounds albeit he is white. Fiedler v. Marumsco Christian School, 631 F.2d 1144, 1149 and n. 7 (4th Cir. 1980); cf. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150-52 (1970). This is a tenuous argument. Smart has made no effort to show that the alleged discrimination, unlike the discriminatory union job-referral service involved in Daniels v. Pipefitters’ Ass‘n Local Union No. 597, 945 F.2d 906, 914-15 (7th Cir. 1991), actually affected his business, specifically his ability to get new business (“make . . . contracts“). See also London v. Coopers & Lybrand, 644 F.2d 811, 818 (9th Cir. 1981). He points to no contract that he bid on and failed to obtain because of racial animus by the union. See Morris v. Office Max, Inc., 89 F.3d 411, 414-15 (7th Cir. 1996); Harris v. Allstate Ins. Co., 300 F.3d 1183, 1195-97 (10th Cir. 2002). The absence of evidence is unsurprising, since it would not be the union but the prime contractor or other entity that had let the bid who would decide who the winning bidder was. Smart might have a better argument that the alleged discrimination in effect prevented him from enforcing his contract with the union itself, since he contends (as we‘re about to see) that had he not hired a black the union would not have enforced the provision—to which he became bound when he registered as a union contractor—in the union bylaws specifying the dues obligations of union contractors. But not having been made in the district court, the argument is forfeited in this court.
We are also skeptical that Smart, as an employer, can sue under Title VII, a statute that forbids employment discrimination. Although it forbids a union “to cause or attempt to cause an employer to discriminate against an individual,”
And whether or not Smart has any statutory basis for his discrimination suit, he hasn‘t enough evidence to withstand summary judgment. That he was mistreated by the union is not evidence of racial animus. The delay in providing him with the application form, in swearing in Thompson, and in enrolling Thompson in a training program need not have had anything to do with Thompson‘s race. “Little bastard” has no racial connotation and
Laying this problem to one side and assuming therefore that one or both of the other contractors were all white, we still find that Smart failed to make a showing of pretext. An absence of uniform treatment need not be evidence that someone is lying. Suppose a black driver is given a ticket for driving 10 miles over the speed limit. He sues, alleging that he was given a ticket because he is black. The police officer who ticketed him submits an affidavit which states that he ticketed him because he was driving 10 miles over the speed limit. The driver does not deny that he was speeding but argues pretext and in support produces affidavits from two white drivers that they also drove 10 miles over the speed limit on the same highway during the period when this police officer was on duty and they did not get ticketed. This would not be evidence of pretext, because as is well known most speeding is not even detected. One cannot be guilty of treating people unequally if one doesn‘t know they‘re not the same, as the Supreme Court made clear in Oyler v. Boles, 368 U.S. 448 (1962), in the related context of a charge of selective enforcement in violation of the equal protection clause. The claim was that the state was discriminating against certain three-time offenders, but the evidence was merely that “according to penitentiary records a high percentage of those subject to the law have not been pro-
AFFIRMED.
RIPPLE, Circuit Judge, dissenting. My colleagues lay too heavy a burden of production on Paschall Electric. Mr. Smart has established a prima facie case that the Union has violated
The Union has not explained why it charged Mr. Wilke the lower dues rate that it charged Mr. Smart before it became evident that he had an African-American employee. It claims that it charges all owner-workers the higher rate, but the only evidence of this is Mr. Nolen‘s statement in his affidavit that it does so; it has not come forward with evidence of any other owner-worker, like Mr. Smart and Mr. Wilke, who is charged the higher rate.2 In fact, it has not come forward with evidence that it has charged any other contractor the higher rate. Mr. Smart, however, has come forward with evidence of two other contractors who are charged the lower rate, Mr. Wilke and Harold Fitts, though Mr. Smart has not shown that Mr. Fitts works in the field.3 Uneven application of union rules, when coupled with the other instances of mistreat-
The court ought to conclude, therefore, that Mr. Smart has provided enough evidence to make out a prima facie case and that the Union has failed to carry its burden of demonstrating that, despite these differences, it applies the requirement of higher dues for owner-workers in an evenhanded manner.
Because I believe that Mr. Smart has produced facts that would survive summary judgment, I would be required, were I in the majority, to reach the question of whether Title VII provides an employer in this situation a cause of action. Because the court declines to answer this question definitively, I believe the prudent course is to refrain from stating a definitive view on the matter until the issue necessarily must be decided. I simply note that Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77 (1981), in reserving the question, certainly does not support the skepticism of my colleagues that Title VII provides such protection. I am also constrained to point out that, unlike the situation presented in Northwest Airlines, we are not faced with teasing an implied right of action out of a text that does not address the situation; rather the situation before us involves, as my colleagues acknowledge, whether we would be justified in denying coverage by going beyond the plain text of the statute that traditionally has been interpreted broadly. Cf. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972). Perhaps, before the issue again makes its way to an appellate court, new scholarship in the field will shed more light on the appropriate approach to this question.
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—11-15-02