Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 89 C 7262 Paul E. Plunkett, Judge.
Before EASTERBROOK, RIPPLE, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
This case is part of a multi-court, multi-tribunal challenge brought by the plaintiffs against the City of Chicago and the Fraternal Order of Police, complaining about the promotion process within the Police Department. It demonstrates the risks, as well as the inefficiencies, of keeping too many balls up in the air at the same time. This particular part of the case involves the claims of Carol Majeske and other white Chicago police officers (all members of the FOP) against the FOP itself, claiming that it discriminated against them in violation of 42 U.S.C. secs. 1981, 1983 and 1985(3), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e-2(c)(1). We conclude that the district court correctly disposed of each of these claims, and we therefore affirm its judgment.
Since 1981, the FOP has been the certified exclusive collective bargaining representative for all City of Chicago police officers below the rank of sergeant. Sections 10.1 and 10.2 of the collective bargaining agreement provides that the employer will provide equal employment opportunity for all officers and that it will not discriminate on the basis of criteria including race, color, sex, religion, age or national origin. Prior to 1989, the Chicago Police Department (CPD) had issued a general order providing that 15 percent of its promotions to detective would be on the basis of "merit"--that is, the officer's record as a whole--and the other 85 percent would be pursuant to a promotional exam only. In February 1989, the City administered a new three-part examination for use in detective promotions, which included a written section, a multiple choice section, and an oral board.
In July 1990, the City, concededly with no involvement by the FOP, decided not to make promotions solely based on raw test rankings. Instead, it took a number of steps designed to address possible racial bias against minority candidates in the promotion procedure. First, it "standardized" the test results to take race and national origin of the applicants into account and created a promotion list based on the standardized rankings. Next, the CPD amended the general order about merit promotions, increasing the percentage of candidates selected under the merit system from 15 percent to 30 percent. Using this hybrid system, it made 90 promotions in July 1990: 64 drawn from the list (of whom 42 were drawn in rank order and 22 out of rank order), and 26 under the merit system. The 26 merit promotions went to 14 white applicants, eight African-American applicants, and four Hispanic candidates.
The FOP filed two grievances on August 21, 1990, claiming that the City had violated the non-discrimination clause of the collective bargaining agreement in the 22 promotions that had been made out of rank order and the 26 merit promotions. The case was submitted to Arbitrator Anthony Sinicropi. On October 30, 1991, Sinicropi issued a decision finding that the City had violated its collective bargaining agreement with the FOP by using race as a factor in promoting detectives out of rank order. He directed the City to promote patrol officers to the 90 detective positions based solely on their "qualifications" and to compensate the individuals who had suffered discrimination under the challenged system. At the same time, however, Sinicropi found that the procedures used to select the 26 merit candidates did not violate the collective bargaining agreement.
On November 20, 1991, the FOP filed a third grievance, protesting the City's increase in the percentage of slots under the merit system, which was assigned to Arbitrator Peter Meyers in December 1991. Shortly thereafter, on January 17, 1992, Meyers entered a decision and award reflecting a settlement among the parties to the dispute that had been reached outside the formal arbitral procedure. Under the settlement, the parties agreed that no more than 20 percent of future promotions to the rank of detective and youth officer would be "merit" promotions. Furthermore, the decision directed the City to promote 20 officers in rank order from the competitive testing list to the position of detective and eight officers in rank order from the competitive list to the position of youth officer. The award specified that no back pay would be required and that the City would not be required to demote "any meritorious detectives or youth officers promoted in 1990." All peace officers promoted based on this settlement were white.
Majeske and her co-plaintiffs were dissatisfied with the arbitral proceedings for several reasons. Most importantly, they believed that the settlement reflected in the Meyers award was a "sweetheart deal" in which the FOP had inappropriately acquiesced in the City's use of race as a factor in detective promotions. They also thought that the FOP had misrepresented the nature of the settlement in its communications to the membership. Accordingly, the Majeske plaintiffs filed a charge against the FOP before the Illinois Local Labor Relations Board (ILLRB), claiming that the FOP had breached its duty of fair representation under the Illinois Public Labor Relations Act, 5 ICLS sec. 315/6(d) (West 1992), when it assisted and acquiesced in the City's use of race as a factor in the promotions in question and in its conduct during the arbitral proceedings.
On January 21, 1993, the Executive Director of the ILLRB dismissed the charge in its entirety. He made three key findings: (1) there was no evidence of intentional discrimination by the FOP during the processing of the Sinicropi grievance, (2) the FOP violated no law or rule when it decided to settle the Meyers grievance prior to formal arbitration, nor did it violate any rule by its conduct in that case, and (3) the FOP made no misrepresentations or misleading omissions of information in its communications to its members concerning the arbitrations that amounted to intentional conduct, or conduct in bad faith. The ILLRB affirmed in a decision of May 25, 1993, and the Appellate Court of Illinois, First Judicial District, Second Division, affirmed the ILLRB's final order dismissing the unfair labor practice charges in an opinion of August 23, 1994.
The Appellate Court's opinion contains a careful review of the underlying facts and the proceedings brought by the Majeske plaintiffs before the state tribunals. It reviewed Illinois law on the question of a union's duty of fair representation, noting that federal court rulings on the analogous duty under the National Labor Relations Act are persuasive authority in the state courts. Citing the leading federal decision, Vaca v. Sipes, 386 U.S. 171, 177 (1967), the court stated that "the duty of fair representation requires a union to serve the interests of all its members without hostility or discrimination, to exercise its discretion with good faith and honesty, and to eschew arbitrary conduct." See Appellee's Appendix at 92-93. It noted in particular that a union may settle or abandon a grievance if it acts in good faith. The union violates the duty of fair representation only by intentional misconduct in representing employees. 5 ILCS 315/10(b)(1).
In this case, the Appellate Court concluded that the FOP had settled the Meyers arbitration in good faith because it had legitimate doubts over whether it could prevail in the end. Although the Majeske plaintiffs were right, insofar as they argued that a victory would have meant the elimination of the practices to which they objected, victory is never a certainty before the fact. Had the FOP lost, the Majeske plaintiffs would have had to live with a 30 percent merit rate and an imprimatur of legality on the out of rank promotion system. The Appellate Court concluded that the settlement reflected in the Meyers award was "rationally based, within the bounds of [the FOP's] substantial discretion and, therefore, does not constitute intentional misconduct." It also commented that "[t]he fact that all the police officers promoted to detective based on the settlement were caucasian belies any claim that they settled the grievance with the intent to discriminate." The court noted that the Majeske parties had failed otherwise to present evidence that the FOP intended to discriminate. Finally, it concluded that the Chicago Municipal Code, sec. 2-74-050 (1984), provides the City with authority to make discretionary merit promotions. Following this decision, the Majeske plaintiffs did not pursue a motion for leave to appeal to the Illinois Supreme Court. Instead, they began to focus all their attention on their parallel federal court proceedings, to which we now turn.
Back in 1989, the very same Majeske plaintiffs, represented by the same lawyer, had filed suit in federal district court against the City of Chicago, claiming that various aspects of the promotion examination used for detective promotions were racially discriminatory. In September 1992, while the state administrative unfair labor practice charges were pending, the Majeske plaintiffs added the FOP as a party to their federal lawsuit. Their "Supplementary Complaint" alleged that the FOP had agreed with the City and assisted it in the use of race as a factor in the detective promotions, by agreeing to violate the Sinicropi arbitral award, by settling the Meyers arbitration in a manner contrary to the Sinicropi award, and by ...