Jottings By An Employer's Lawyer

Tuesday, October 19, 2004

7th Circuit Discourse On Battle Between Two Unions - A Good Piece of Judicial Work

I love to read the opinions of the 7th Circuit. They are written in clear, concise language and evidence a common sense approach to the law that, heaven forbid, if applied everywhere would probably make for a lot fewer lawsuits and thus fewer lawyers. Which all of us in our candid moments would probably agree would be a good thing. This case arose in the background of a long running rivalry by two competing unions for representation of a bargaining unit of employees. The loser in that competition, which has previously been held in contempt by the 7th Circuit for violating a NLRB order not to threaten supporters of the opposing union, continued its fight through the support of four individuals who sued the prevailing union for failing to enforce its collective bargaining agreement with the employer, Randall Rents of Indiana.Pease v. Production Workers Union of Chicago and Vicinity Local 707 (7th Cir. 10/15/04) [pdf].

While rejecting all their claims, Judge Easterbrook was able to cover a lot of territory: With respect to the first:
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:

Pease appears to be engaged in bankruptcy fraud: he prosecuted this suit simultaneously with a personal bankruptcy in which he omitted from his schedule of assets the existence of this chose in action. ... We need not get into the subtle question whether there is any way in which a debtor in bankruptcy could prosecute a high-stakes claim such as this after concealing it from his creditors. Compare Morlan v. Universal Guaranty Life Insurance Co., 298 F.3d 609 (7th Cir. 2002) (claims formally abandoned by a trustee revert to the debtor even if not scheduled, though the abandonment may be rescinded if induced by concealment), with Leon v. Comcar Industries, Inc., 321 F.3d 1289 (11th Cir. 2003) (employees who conceal contract or other substantial claims from their creditors cannot pursue them during or after bankruptcy). Pease?s claim belongs to his creditors (represented by the trustee); and the trustee, although notified belatedly, has declined either to prosecute the litigation or to relinquish it to Pease by formal abandonment. Pease has forfeited any opportunity to argue that the trustee did abandon it to him directly or by inaction after learning of its existence.

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.

According to Berge (and Local 150), the jury was free to disbelieve the sole witness who testified about this understanding, which had not been reduced to writing. And if the jury could disbelieve the testimony, Berge insists, then it also could find that Berge had the superior right to the position, for he had eight months' seniority and Walker had none. The argument is half right. Juries can reject testimony, but doing so is not the same thing as evidence to the contrary. See, e.g., Krist v. Eli Lilly & Co., 897 F.2d 293 (7th Cir. 1990). That's an old, and very important, ingredient in the law of evidence. A jury's decision to disbelieve a witness (or conclude that the witness did not have an opportunity to observe or learn what happened) is consistent with that witness's proposition being true. Someone else may have had better knowledge, or better memory, or better ability to relate and thus to persuade. And if there is no other witness - as there was none in this case -that leaves a hole in the record. We do not know whether the proposition is true or false. (The wrinkle noted in United States v. Zafiro, 945 F.2d 881, 888-89 (7th Cir. 1991), affirmed on other grounds, 506 U.S. 534 (1993) - that disbelief of a criminal defendant's exculpatory testimony can imply consciousness of guilt and thus, like flight to avoid prosecution, add to the evidence in support of conviction - is not applicable here, and we need not discuss how far this proviso extends. See Stallings v. Tansy, 28 F.3d 1018 (10th Cir. 1994); United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993).) When the record is silent, all turns on who had the burden of persuasion (better, the risk of non-persuasion) with respect to the point. See EEOC v. G-K-G, Inc., 39 F.3d 740, 746-47 (7th Cir. 1994); NLRB v. Cutting, Inc., 701 F.2d 659, 663 (7th Cir. 1983).

So let us throw out the testimony about prevailing practices and see what happens. The answer is that Berge, as the plaintiff, is no better off, for a plaintiff bears the risk of non-persuasion.
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.

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