|Jottings By An Employer's Lawyer|
Tuesday, October 19, 2004
7th Circuit Discourse On Battle Between Two Unions - A Good Piece of Judicial Work
All four plaintiffs have appealed, but their joint brief does not advance any argument on behalf of Michael Gear. This abandons his claim.Two short declarative sentences, one appellant down, three to go.
Turning to the claim of the 2nd appellant who had also filed bankruptcy:
And the Court is not afraid to turn its withering look at the merits of a claim. Referring to the one it had just found no longer belonged to Mr. Pease:
Not that Pease had much of a claim to begin with. Local 707 took his discharge to arbitration and lost, following detection of another fraud: he did not have the sort of driver's license that he falsely had told Randall that he possessed and that was essential to his employment. None of the criteria for upsetting an arbitrator?s award is even arguably satisfied.Being charged with fraud for two separate acts in one opinion is no mean feat. Mr. Pease should be entitled to some sort of award, since he certainly won't be collecting anything from his litigation.
And for the third appellant who advanced a claim because he had been laid off in a reduction in force the Court was able to dispatch of his claim and give its view of the nature of the litigation in one short paragraph:
Viti was laid off about a month after his hire. As the most junior employee, he was most exposed to the vagaries of business, and it is undisputed that Randall reduced its staff after demand for its services slackened. Last hired, first fired, is what the collective bargaining agreement provided. It does not matter whether Viti had graduated from 'probationary' status under the collective bargaining agreement; he was still the most junior. That Local 150 continues to argue on his behalf (and that of Pease) implies that this is vexatious litigation.Thanks to the Court for affirming what I frequently refer to as the "gold standard" in making termination decisions. LIFO (last in, first out) is the term I use, being one of the few things I remember from my Accounting 101 course.
And finally, one claimant had managed to convince a jury of one theory, although even that was taken away by the judge. In disposing of his claim, Judge Easterbrook managed to touch on the nature of the interaction between representatives and their various constituents, a keen understanding of how unions normally behave and an important though not often discussed rule of evidence. First the interaction of a representative and their cogitating:
Welcoming support - Local 707 naturally thought better of those who favored its role and opposed Local 150's efforts to oust it - differs from abandoning anyone. Many a union (or public agency, for that matter) faithfully protects its political opponents -often from a sense of duty, and if that is lacking from a desire to improve its prospects of reelection.The role unions normally play:
Unions regularly fight tooth and nail to establish seniority systems and avoid forfeitures of that benefit, which favors longer-term workers (and longer-term members!) over newcomers. Local 707 behaved according to expectations. Had the union instead supported Berge [a member with much greater seniority than Walker], then Walker would have had a much stronger claim that it had violated its duty.And finally that little used rule of evidence featuring another speech favorite of mine "the burden of persuasion.":
The jury heard evidence that Local 707 was hostile to Local 150 and its supporters, of whom Berge was one. It also heard evidence that Local 707 and Randall had an understanding, in place before Walker bumped Berge, that workers who transferred to other positions at Randall kept their seniority in the event of a return to the bargaining unit. It was this evidence, which the district judge viewed as undisputed, that led to the Rule 50 judgment in defendants' favor.And finally a parting shot:
Plaintiffs' other arguments have been considered and need not be discussed.Good judging is hard. And like most things in life, those who make it look easy do not belie that fact, but rather show really how good they are. And they should be appreciated.