NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 17, 2011
Decided July 21, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 10-2569 & 10-2932
Appeals from the United
EDDIE HARDWICK,
States District Court for the
Plaintiff-Appellant,
Central District of Illinois.
v.
No. 09-1106
SUNBELT RENTALS, INC., and INTERNATIONAL Joe Billy McDade, Judge.
UNION OF OPERATING ENGINEERS LOCAL 965,
Defendant-Appellee.
Order
A collective-bargaining agreement between Sunbelt Rentals and Local 965 of the
Operating Engineers Union provided that if Sunbelt opened new outlets within the Lo-
cal’s jurisdiction, “any displaced bargaining unit employee from Decatur who is not on
suspension or probation will be offered a lateral position at the new facility.” In January
2008 Sunbelt told employees that the Decatur facility would close soon. It offered Eddie
Hardwick a transfer to East Peoria; he declined. The Union told its members that it ex-
pected Sunbelt to open a new facility in Springfield, Illinois, and that they would be eli-
gible for transfer. It advised them not to resign but to await layoff in February. (Anyone
who resigned would not be “displaced” by Sunbelt.) Hardwick resigned in late January
2008, telling Sunbelt that he was quitting because it had not offered him a transfer to
Champaign.
Nos. 10-2569 & 10-2932 Page 2
In February 2008 Sunbelt laid off the workers at Decatur who had not accepted a
transfer. It opened a new facility in Springfield in summer (the parties dispute whether
the month was July or August; it does not matter who is right), and the Union asked an
arbitrator to decide whether the laid-off workers from Decatur were eligible for posi-
tions there. The arbitrator’s decision provides in part:
The employer is to offer lateral transfers to its Springfield facility to those
employees within the bargaining unit at the time of its January 11, 2008 an-
nouncement of the Decatur center’s closing. Further, to the extent that any of
those employees suffered loss of wages as a result of its failure to do so, those
employees shall be entitled to back pay.
Neither the Union nor Sunbelt asked a court to enforce or set aside this award. They
implemented it amicably. But Hardwick is dissatisfied, for he was left out.
Hardwick believes that he is entitled to both a transfer and back pay, because he was
an employee at Decatur on January 11, 2008. Sunbelt and the Union concede that this is
a linguistically possible reading of the award but doubt that it is the best reading; the
arbitrator did not discuss the effects of Hardwick’s resignation. It is not simply that a
person who quit before being laid off is no longer in the bargaining unit and cannot
have been “displaced” by the layoff (a condition of transfer under the CBA’s language),
but also that any wages that Hardwick lost could not have been “as a result of” Sun-
belt’s failure to offer him a transfer to Springfield. Anything that Hardwick lost was the
result of the fact that he quit to pursue a new opportunity, not of the fact that he was
offered a transfer to East Peoria rather than Champaign. (Hardwick quit in order to
train for work in Iraq but later he gave up that plan. That’s why he was eager to have
his old job back.)
Local 965 told Hardwick that it did not think him entitled to relief under the arbitra-
tor’s award. He asked the Union to seek an accommodation from Sunbelt nonetheless,
and the Union did. Sunbelt offered to employ Hardwick at Springfield without back
pay; as an alternative, it offered to pay Hardwick $3,500 in exchange for a release of any
future employment opportunity. Hardwick turned down the financial offer. He con-
tends that he was told that the amount was $300 rather than $3,500. He also maintains
that the Union never told him about the option of employment without back pay. The
district court did not decide exactly what the Union said (it relayed Sunbelt’s position
orally rather than in writing), so we must accept Hardwick’s version of events. Hard-
wick sent the Union a letter saying that he rejected all “options” presented to him and
demanded employment at Springfield, plus back pay. The Union replied, explaining
that it would be hard to get back pay because Hardwick had quit, despite being in-
structed not to do so, and therefore had not been “displaced” by the layoff at Decatur.
The Union followed up its letter with a meeting between Hardwick (and his wife) and
the Local’s business agent. During the discussion Hardwick repeated his demand for a
job at Springfield plus back pay.
Nos. 10-2569 & 10-2932 Page 3
Officials of the Local took the subject to the Union’s Executive Board, which re-
viewed the CBA, the arbitrator’s award, Hardwick’s letter resigning his position at
Sunbelt, and other correspondence. With officers of Local 965 recusing themselves, the
Executive Board concluded that the award does not entitle Hardwick to back pay, and it
voted not to seek judicial relief on his behalf. The business agent sent Hardwick a letter
communicating this decision and the reasons for it—principally that, by quitting before
the Decatur facility closed, Hardwick had removed himself from the group of employ-
ees eligible for a transfer to Springfield.
A month later, the Union offered Hardwick a compromise: it would file suit in an at-
tempt to obtain Hardwick both a job at Springfield and back pay, if Hardwick would
agree to pay the Union’s costs and legal fees should the suit prove unsuccessful. The
Union thought that a suit would be unlikely to prevail, and it did not want to spend
other employees’ dues on a low-probability quest for relief that could benefit only one
worker. If the Union won, as Hardwick had been insisting it was bound to do, he would
have a job in Springfield, with back pay, and would not owe a penny for costs or legal
fees. Hardwick declined this offer; he insisted that he was entitled to employment and
back pay without bearing any financial risk. At this point negotiations ended.
Hardwick then filed this suit—thus incurring with certainty the legal expenses that
he had earlier refused to accept any risk of. The suit also imposed legal expenses on Lo-
cal 965, and thus on his former co-workers. And Hardwick came away with nothing for
his troubles. The district court granted summary judgment for Sunbelt and the Union.
719 F. Supp. 2d 994 (C.D. Ill. 2010).
Hardwick’s complaint and other filings in the district court asked the judge to “en-
force” the arbitrator’s award and order Sunbelt to provide him the relief that Hardwick
thought the arbitrator had afforded him. The district judge replied that employees can-
not move to enforce awards in labor arbitration. Employees are not parties to CBAs or
arbitrations under them; only unions and employers are parties, and therefore only un-
ions or employers may ask a court to enforce (or set aside) such awards. An employee
may obtain relief only in a hybrid action against both union and employer—an action in
which, to prevail, the employee must show both that the union violated its duty of fair
representation and that the employer violated the CBA. The district court’s comprehen-
sive opinion covers the legal principles. See
719 F. Supp. 2d at 1003–05. It is unnecessary
to repeat the discussion in this order.
Hardwick failed to persuade the district court on both fronts. Sunbelt did not violate
the CBA because it offered Hardwick a transfer to East Peoria and offered him a job at
Springfield even after he resigned. (Hardwick disputes whether the latter offer was
passed on to him by the Union, but there is no doubt that Sunbelt made the offer and
therefore cannot have violated the CBA.) If the arbitrator’s award required Sunbelt to
offer Hardwick a job at Springfield, this does Hardwick no good, because Sunbelt com-
plied. The arbitrator’s requirement of back pay was limited to “those employees [who]
Nos. 10-2569 & 10-2932 Page 4
suffered loss of wages as a result of its failure” to offer jobs at Springfield. Hardwick did
not suffer lost wages for this reason; his loss was attributable to the fact that he quit his
job at Decatur yet failed to obtain alternative employment.
Because Sunbelt did not violate its obligations under the collective bargaining
agreement, Hardwick would not be entitled to relief even if the Union violated its duty
of fair representation. The district judge held, at all events, that the Union did not.
719 F.
Supp. 2d at 1005–14. Violation of the DFR can be shown by action that is “arbitrary, dis-
criminatory, or in bad faith”. Air Line Pilots Association v. O’Neill,
499 U.S. 65, 71 (1991).
This is a substantially higher hurdle than proof of negligence or “union malpractice.”
And, as the district court stressed, a union does not automatically violate its duty of fair
representation by settling a grievance with the employer or deciding not to enforce an
arbitrator’s award. A union may prefer harmonious labor relations—which benefit all
workers—even if this means that some employees do not receive the highest possible
personal benefits. Again these subjects are well covered in the district court’s opinion,
and we need not repeat its analysis.
Hardwick has all but abandoned the contentions presented to the district court. In-
stead he maintains that the Union violated its DFR by not discussing the issues with
him more frequently, and in more detail, and by not mentioning Sunbelt’s offer of rein-
statement without back pay. Yet as even our brief summary shows, the Union met and
corresponded with Hardwick frequently; it did not abandon him. (The district court’s
opinion contains more details, which we have omitted.) The Union obtained conces-
sions from Sunbelt; Hardwick rejected them. The Union offered Hardwick a compro-
mise about an effort to seek judicial relief under the arbitrator’s award; Hardwick re-
jected that too. The problem was not lack of communication but intransigence: Hard-
wick repeatedly said that he would accept nothing less than a job in Springfield, with
back pay, and without any risk. It is hard to see how omission of the job-but-no-back-
pay offer (if the Union did neglect to relay this offer) could have harmed Hardwick.
More than that: as the district judge explained, federal labor law does not require
unions to negotiate with their own members. Unions negotiate with employers on behalf
of their members. The members’ influence comes through their right to approve CBAs
and elect officers. Once elected, the officers may act on behalf of each member, and the
membership as a whole. Hardwick has not cited any authority for the proposition that
officers of a local union must meet with each member personally and explain every of-
fer the employer made. Perhaps officers who want to be reelected will do this; perhaps
not. This is a matter for internal union democracy, not legal obligation. The district
court did not err in concluding that the Union had honored its duty of fair representa-
tion—and, to repeat, Hardwick could not win even if the Union had violated its duty,
because Sunbelt did not violate the CBA.
AFFIRMED
