*3 LEVENTHAL, Circuit Judge: Plaintiff Ritz was with miscon- union, duct the Air Line Pilots Asso- (ALPA). ciation With one exception, union’s Board dismissed all the charges against Ritz.1 The Board found guilty of “disobeying or fail- ure to comply with a decision Board of Specifically, Directors.” Hearing Board subsequent found that merger of Northeast Airlines Del- Airlines, Ritz, ta then chairman of the Northeast Airlines Master Executive Coun- *4 (MEC),2 cil wilfully report refused to ALPA funds which had been collected from Northeast’s for the NEA Master Ex- Forester, Jr., Washington, J. Gordon D. Legal ecutive Council Fund.3 ALPA had C., appellants. for repeatedly requested that Ritz supply the Green, C., Gary Washington, D. with information, home office with the which Katz, Washington, C., whom Daniel M. D. was needed to file a report required by the brief, was on the for individual defendants- Department (LM-2 Labor report).4 Ritz appellees. eventually supplied the directly information Capuano, Washington, C., Donald J. D. to the Labor Department, sent copy O’Donoghue with whom Patrick C. report to the ALPA home office. Matisoff, Washington, C., Robert D. were The decision of Hearing Board was brief, appellee, on the for Air Line Pilots sustained Appeal ALPA’s which Association, International. Glenn V. Whi- assessed a against Captain fine $500 Ritz. C., taker, Washington, D. also entered an He then this action in the district appellee, appearance Air Line Pilots As- court seeking enjoin ALPA and its offi- sociation, International. cers enforcing from the decision of the Ap- TAMM, peal Before Captain contended, LEVENTHAL Board. inter MacKINNON, Judges. alia, Circuit that he was denied a “full and fair hearing” as required by section 101 of the
Opinion court filed LEVEN- Labor-Management Reporting and Disclo- THAL, Judge. Circuit (LMRDA), 411; sure Act 29 U.S.C. §
Dissenting opinion by MacKINNON, filed the disciplinary action was instituted in re- Judge. Circuit taliation for opposition his policies to the time, Hearing 1. At the same indicating Board also the amounts collected were in his charges against dismissed all possession. the related nine pilots, plaintiffs other who are also named as alleged injury this case. Since their is less than 1971, pursuant 4. to a consent order with the Ritz, disposition that of our of his case government, Ruby Hodgson, v. Civil Action No. applies convenience, also to them. For we will (D.D.C. Aug. 1104-70 ALPA institut- plaintiff singular. refer to procedures requiring provide ed the MECs to the home necessary office with the information 2. The Master Executive Council is the union’s reports. to file plaintiff the LM-2 While chal- pilot administrative arm at each airline. Each lenges validity decree, of the consent group airline-by-air- elects its own MEC issue is not now before us. is It clear that line basis. require report ALPA could the MECs to office, home The funds were collected both before and Ritz violated a Valid union during regulation. Ritz’s term as chairman. chairman, since he was the last the records tation and there cross-examination of witnesses leadership; and the union’s to sustain decision fundamental to the “full and fair hearing” insufficient IBEW, district requirement, supra. Board. Appeal They ALPA’s Parks granted allegations rejected these have uniformly court also declared union the defendants. summary judgment fail knowingly members to exercise (1976). O’Donnell, F.Supp. 1365 Ritz v. rights guaranteed offered them in or con- below, we affirm discussed For reasons nection with disciplinary proceedings court. the district decision of Indeed, rights. waived those even stringent procedural under more due OF A I. DENIAL ALLEGED process applicable standards criminal HEARING FAIR proceedings, have held that the courts parties, the individual de- charging to confront and cross-examine wit- action, did not appear this may Taylor fendants in nesses be waived. v. United Hearing pro- States,, 17, 19-20, either the 414 U.S. 94 S.Ct. ceedings.5 alleges plaintiff L.Ed.2d 174 exercising his from
prevented him agree We cross-examination, district court confrontation plaintiff that in this case the did waive thereby the “full and fair hear- denied him of confrontation. The ing” he entitled to under section mem LMRDA, present apparently bers due 101(a)(5)(C) of U.S.C. — other union 411(a)(5)(C). business. But § *5 presence Board repeatedly stated in the of 101(a)(5)(C) prohib section While accused, here, the plaintiff the that he had any by of member a disciplining its the the to right appearance for the of call the a “full fair union unless he is afforded charging parties and to examine them.6 hearing”, necessarily need not the member Captain Mudd, of representative the the provided panoply proce the full with charging parties, offered several times to in criminal safeguards proceed dural found any persons for produce cross-examination Piasecki, 851, ings. 520 F.2d 854 Tincher v. requested by plaintiff time plaintiff. Each (7th determining 1975). Cir. In whether a indicated, he expressly tacitly, or that was hearing been full and fair has afforded a making even request, though not such member, and traditional the “fundamental right he stated his of his awareness do concepts process” serve as the basis of due so.7 Piasecki, v. supra; Tincher decision. request permitted v. Brotherhood of Elec Plaintiff that he be Parks International did (4th Workers, Cir.), 912 his accusers trical 314 F.2d to cross-examine before Board, den., Appeal request cert. S.Ct. 10 ALPA’s but his 372 U.S. (1963). specifical- The courts have uni denied. ALPA Constitution L.Ed.2d 142 right ly permits Board to formly recognized confron- the determine Constitution, Party requested permitted Charging ALPA the no that 5. As [sic] represented by charging parties group, another national be here —of this ei- officers individual, charging Captain David Mudd. The here, represent ther those I that are not that against parties’ con- case Now, entire group nor this that are here. if the documents. sisted of written request Mr. that Mudd made such heard, him, you- is between but no following regard, statement one 6. In Charging Party, Charged Party [sic] —or Hearing partic- Board is of the of the members request, made such Jack McWalter ularly noteworthy. “We have been sort of charged parties] up summed [one think, suggest waiting, someone I comments, quite adequately closing in his them, nobody face here to their accuser be added). position. (Emphasis to our it.” to do seems to want Transcript proceedings Board, plaintiff Hearing Ritz stat- 21-24, Before the January 1975 at 3-158 ed: 3-159, J.A. 221-22. just there had been Mr. said Mudd Party, Charging request [sic] from upon penalizing the record submitted to from solely its members appeals because they is the rule Hearing Board. That have exercised rights of free speech by appel- procedure assembly, followed and the courts have not appellate hesi- courts, entirely congruent nullify tated to disciplinary late actions that infringed fail- have repeated upon rights. Given Ritz’s those procedure. Kuebler at right his of confrontation Cleveland Lithographers ure to exercise and Photoen level, 24-P, his of a Union gravers claim of denial Local (6th F.2d 359 at is with- right case, however, Cir. In the confrontation instant plaintiff out merit. has failed to make even a minimal showing that disciplinary proceedings Finally, plaintiff’s even course if were instituted retaliatory as a measure. right a waiver did not constitute was, therefore, It proper for the district cross-examination, we confrontation and grant judgment court to summary for the on the this case he conclude that facts of defendants. any right essential to or not denied statutory of a implicit requirement support claim reprisal, of his What is hearing by plaintiff the union. calls full and fair attention the fact twenty-three frequently reports as “the other characterized LM-2 were not is, essence, the Department accusers” confront one’s filed Labor perti charges against to examine cross-examine time were instituted him. Texas, Pointer v. 380 Charges nent witnesses. See were not against these twenty-three chairmen, 13 L.Ed.2d other this, U.S. 85 S.Ct. person plaintiff argues, A does have he indicates was “singled who filed an question impermissible those out” in attempt punish charges may been based opposition him. Those him for his union’s leader hearsay, responsible ship. rather than di disciplined Ritz was not party. knowledge rect If failure to file the LM-2 with the Labor counsel, charging party, presents or his Department, but for failure to comply with proceed witnesses or other evidence at the specifically ALPA order directing him to ing, respondent and the is offered both full supply union with data that it need *6 opportunity validity to test the of evi ed report. so could file the There is no opportunity dence and the to the charg call evidence that the twenty-three other chair ing persons (even as witnesses as hostile men refused to supply information to witnesses) in the event he thinks there tes ALPA.
timony help case, his will full and III. OF THE hearing is assured. SUFFICIENCY Here the entire case EVIDENCE against Captain Ritz proven by written documents, authenticity the which Ritz Plaintiff contends that there is conceded; there were no witnesses for him showing policy no evidence it was the cross-examine; to sugges there is no ALPA, or that he knew it was the policy of any tion of any claim made that he had ALPA, to reports file the LM-2 request or to accusing parties need call the Department through Labor the home office in order to some kind of affirmative directly rather than the from Master Exec defense. utive Councils. Conviction union on any charges unsupported by evidence vio
II. REPRISAL ALLEGATIONS
full
requirement
lates the
and fair
Plaintiff also asserts that the dis
of the LMRDA.
International Brotherhood
ciplinary proceedings
Hardeman,
violated section 609 of
of Boilermakers v.
401 U.S.
LMRDA,
the
U.S.C.
because
§
91 S.Ct.
vide V. CONCLUSION LM-2 necéssary reports. file summary We end with a that will clearly permits ALPA re order consent points also serve to take account of raised reports filed LM-2 from quire dissenting opinion. Plaintiffs role in There is evidence home office. dispute promotes sympa with ALPA specifically Board record judi thetic consideration of his requirement he informed cial of an insurgen relief. He was leader home the information office. supply cy against union and national in emo tional terms the union’s sanction became DISQUALIFICATION IV. exposed challenge that it was retalia ALLEGATION the Hearing tion. the recourse to charges proceedings Plaintiff error in the Appeals provided by Board Board against him in the failure of two members yielded ALPA Constitution substantial vic Appeals disqualify them- tories in these forums. plaintiffs More rule by reason of the Board’s “that a selves over, restraint, subject are the courts disqualify himself in case in- member import the clear of Boilermakers that volving pilots own airline.” a distinctly law the field of courts 479) employed by The two members were supervisory narrower role over union disci as two the charging the same airlines agency pro than over plinary proceedings officers of ALPA at the time parties, proc ceedings, and a fortiori than criminal plaintiff. must eedings.9 proce We scrutinize the purpose appears of the rule be to dures, intervene if there only has been any possibility of bias in favor of a avoid *7 a breach of fundamental fairness. acquainted with one whom is party charging par- dispute The two had an may worked. Plaintiff acrimonious longer leadership. Charges no officers of ALPA at the the ALPA national ties (J.A. 486), against in- were plaintiff of connec- time financing fight against nominal. tion with the of the volvement was evidence,” judicial developments “some in federal recu- record contains 8. Current International departed Hardeman, from time rule that sals have the one of v. Brotherhood Boilermakers 401 required only disqualification 233, 246, in case of a U.S. 91 28 S.Ct. L.Ed.2d 10 interest, (1971), and what is now though “substantial” con- even this is less than the “sub- templated punctilio. rule of utmost The fun- required is stantial evidence” to affirm an admin- proceedings governing damental fairness agency acting by rulemaking formal istrative minor, by the kind of formal is not violated adjudication, 706(2)(E). appel- 5 U.S.C. The § charging parties. the two involvement of scope late is of less for court’s course of review agency proceedings judg- review than for of appears scope of review is limited 9. That ments civil and criminal cases. clearly requiring the rule affirmance if the from while evidence, The troubled ALPA. but rather evidence plaintiff, charging parties, gave absence of by reason, for whatever decided not to de- contentions, including all consideration mand. In view of our limited review func- presented. tion, and the It plaintiffs hardly we can find an abuse of discre- charges against plaintiffs ex- all dismissed by tion Board. finding plaintiff guilty of re- cept for The argues dissent that since required financial information. fusal to file appeals union’s rule for prohibits cross- rata reimbursement of the required pro It party, examination of a this is tantamount litigation funds and other ac- unexpended to a denial of a fair hearing in a case that pain expulsion on from ALPA. tions requires the testimony of a charging party. likewise Appeals Board considered point This argued by was not counsel. In contentions, affirmed the plaintiff’s Hear- appellants’ deed counsel does not even cite finding guilt on the refusal ing Board’s italicizes, the rule which the dissent though reports, penalty and reduced the to file a number of other rules are invoked.11 This fine. $500 does signify by counsel, inattention the failure The dissent stresses rather mis-reading of the rule charging parties appear either before the dissent. What the rule means is that there Appeals Hearing Board or the Board not- is to be no cross-examination of an individu withstanding the fact that the case simply al because party. he is a Obviously, in its plaintiff entirety was based witness, if he is a gives testimony that authenticity documents whose was unchal- material, subject he would be to cross-ex lenged. union constitution explicitly amination. This court would be the first to charging party represented to be
permits a
join the stream of
appellants’
citations in
by another member.10
brief (pp. 12-13) to the effect
that a fair
presence
charging parties
hearing includes “the right to confront and
during
days
discussed several times
the four
witnesses,”
cross-examine
g.,
e.
Parks
January, 1975.
hearings
Plaintiff was
Int’l
Workers,
Brotherhood of Electrical
issue and
clearly
possible
aware
its
(4th Cir.)
F.2d
denied,
cert.
significance
defense. There was
U.S.
83 S.Ct.
While the Appeals may re the date set the Board’s letter a month evidence, ceive additional what is previous, involved but made it clear that he was here is subsequently not new or discovered calling appearance for the of the individuals *8 Constitution, VIII, (J.A. 10. ALPA appellants’ Art. 3.D (“Procedural § 11. Section I.C of brief 457): Appeal Board”), Violations before the makes a points, number of including other claims of Both the accused member and the accuser violations of Rules D and F of the Rules of the right, original shall have the both at the hear- 3D, and of Sections ing 4C and 7B any appeal therefrom, and at taken Bylaws of Article VIII of the Constitution designate and represented by and be an active of the union. good standing. member of the in Division objections Their spearheaded “accus- were as witnesses at first concerned not by their ers.” Northeast Master Executive Coun- (MEC), cil given which was the to the name judi- was not a again this stress We organization labor of pilots Northeast all of it was a agency proceeding, cial even whom were members of the Airline Pilots the courts are not to and proceeding (ALPA), Association the national union. showing of of except on a kind interfere organizational The local MEC was an sub- entirely lacking grievous unfairness that structure of the national ALPA. in case. this seniority To secure to which Affirmed. considered were entitled the MacKINNON, Judge, dissenting: Circuit members of the Northeast Master Execu- tive instituted legal Council several actions the par- controversy The basic between attacking validity of merged senior- outgrowth merger is an of ties here ity list.1 Ritz Appellant and (Northeast) other members and Delta Northeast Airlines who were in plaintiffs original brought, As ac- (Delta). originally Airlines tion were all members of resulting the Northeast seniority involved the charges Master (MEC). Executive Council Ritz a number of was rights appellant and say To chairman of the MEC until pilots. airline it was abolished other Northeast 21, on 1972. job press November To their disappointed pilots these union, rights independently to them in Ritz and list that was decreed seniority MEC eventually organized air line resulted from the his associates operating mildly. non-profit corporation, A number of put Unified Pilots merger is attack on the pilots engaged Society Treatment, (UP- in the direct Equitable Ltd. only pilot SET). list but Ritz was seniority Through this organization guilty anything pun- was found pilots Northeast collected from other funds outgrowth his acts that were an ished for pilots fight Northeast to finance the of all union leadership. opposition regain pilots Northeast their lost seniori- complaint in appeals my opinion He ty rights. Their contention that their was has merit. (the bargaining representative Union ALPA) in statutory had failed them its
I obligations. charges contractual brought against were thereafter the North- merger between Northeast Delta pilots several east officers of ALPA ad- and one approved May was expended by mits that funds were integration seniority result was “legal pilots Northeast in flight deck crews both air- services con- lists of the objected [designated] nection litigation”2 Northeast seek- lines. The resulting ing list. “the court or seniority they agency obtained in involved 1972; Sept. (J.A. September, dismissed October 12. Ritz’s letter of Flack, jur- (b) 477) appearance Petition NEA-MEC for exercise of called “witnesses," Shaughnessy and Miles as the Civil Aeronautics Board isdiction accusers, my Case, separately Merger demanded all of “that filed October Delta-Northeast J, O’Donnell, Bonner, January 1973; A. Wm. Davis J. J. dismissed Giberson, hearing.” ALPA, There (c) Carey a l. O’Donnell and Civil et evidence, any, if Court, no indication what (District District of Action 609-73 No. hoped, sought, from or even to be elicited these Columbia), Complaint April filed dis “accusers.” 1, 1973; May missed Delta, (d) et al. v. ALPA and Civil Chaudoin 1. As detailed Court, (District District of Action 752-73 No. legal were four actions Pilots these Northeast 1973; Columbia) Complaint April filed number: pending. Motion to Dismiss O’Donnell (a) Pilots MEC v. Northeast (District ALPA, 1911-72 Action No. Civil Complaint Columbia), Court, filed Id. District *9 seniority lidity” the June of the election dissolving invalidate the NEA- (J.A. 23). the MEC proceedings, protests these MEC may In These list. all authorized the approved and knowingly exhausted their intra-union remedies or had from the futility demonstrated the necessary expenditures appeal. further [North- (J.A. 27). These lawsuits Legal Fund” east] 25, 1973, May O’Donnell, On the Presi- against na- directly their pilots pitted ALPA, dent of and the three principal other pi- outgrowth of As an tional union. (hereafter officers of ALPA “charging par- seniority, regain to several activities lots’ ties”) (J.A. 22-30), formally charged the charges against of ALPA officers entire including Ritz, MEC with act- been who had members pilots the Northeast ing “contrary to best interests of (NEA-MEC) Northeast MEC for (J.A. or its 30). [ALPA members]” 22-30). The complaint of charging parties only pur- pilots that The contended was extensive and was directed primarily against them disciplinary action pose against the use of the fund that the North- of the Northeast Pilots gain to control was pilots east had solicited in an sup- effort to Fund. This fund Legal Representation port seniority their claims. Paragraph 23 is pilots from Northeast by Northeast solicited example: an According pilots that are pilots.3 By 8, 10, acts paragraphs described in payments into the fund charged, the here 12 and the MEC and its agents have pilot no voluntary as to each collected funds from other ALPA mem- consti- union compulsory procedures bers by misleading use false and state- were ever by-laws utilized. tution designed suggest ments to such they to had clear pilots contend ALPA obliged members were to contrib- protect funds order to their senior- solicit ute, although ALPA members were and rights by inside and outside the ity actions not, fact, are to required sponsor activ- press may That union members union. ities like those conducted the MEC. rights by subsequent union their (J.A. 28). recognized by implicitly is lawsuits The concluding charges against the mem- provides ALPA constitution which bers (including Ritz), NEA-MEC al- may disciplined “Initiating members for leged: legal against action ... be- [ALPA] your Because position provided all remedies and role as exhausting fore member of By-Laws” (J.A. NEA-MEC at all this constitution relevant times, added). your charges brought knowing active and emphasis ap- proval of and participation Northeast admits in all of the protested first treatment activities described above in paragraphs 19, inclusive, president through you ALPA’s and then the ALPA are hereby Directors, securing any acting without with in a manner to cir- modification;, cumvent, “challenged and also the va- defeat or interfere with collec- majority twenty-three 3. The treats the failure of the North- other sup- chairmen refused report ply (Maj. data op. east MEC to financial information to ALPA. upon though independent important point demand as it were an is that ALPA chose to actuality, only incident disobedience. issue an order to the Northeast MEC chief. withholding very majority of information concerned the “[tjhere While the is correct that is no had funds Northeast MEC raised its twenty-three evidence that the other chairmen Hence, legal majority attacks on ALPA. supply ALPA,” refused to information to there gives an erroneous view of circumstances were asked also no evidence that says: it when supply the information. And the order to Ritz “specifically directing supply” disciplined him to Ritz was not failure in- precisely activity Department, formation to file the LM-2 with Labor about he was carrying fight not, comply failure ALPA order ALPA. This was directing supply opinion specifically majority might believe, him to lead one to failing supply so it file a matter of data needed could insubordinate rou- report. There is no evidence that tine data. financial *10 Division and lost seniority. between the District Court denied bargaining tive existing collective injunction or with employer this but conditioned its denial an on within the mean- agreements, bargaining requirement a stenographic a tran- 1(10) VIII, of the Section ing of Article the script kept proceedings. of It By-Laws. and objection Constitution also sustained an raised coun- role as a your for ALPA that position respondents of sel be denied Because all relevant the NEA-MEC at the hearing. of counsel at the How- member times, knowing ap- ever, your active shortly thereafter when the same in participation all (not of proval present ALPA)— counsel counsel for paragraphs described above in activities the “without notice to court—re- 19, inclusive, 6, you through 8 and quested] permitted that he be appear [in doing acts con- charged with hereby are proceeding] charging the counsel the the Associa- interests of trary to the best O’Donnell, parties” Ritz v. No. 73-2200 meaning the within or its members tion 30, 1974), (U.S.App.D.C., filed Dec. at 4 1(11) of the VIII, Section Article of (emphasis added), the District Court amend- By-Laws. ALPA Constitution permit order ed its to also counsel for the pilots present hearing. to be at the 29-30). From (J.A. order the union took an interlocutory complaint opening paragraph An court. lengthy this In a rather stated: also unpublished opinion memorandum sustained, you are charges against the If court reversed the Court on District Decem- charging parties intend undersigned the (No. 73-2200) ber and held that impose Hearing Board request that the party legal neither could have counsel un- upon $7,500.00upon you, fine of less counsel was a union member. guilty; similarly found person each other O’Donnell,supra. fines, the un- payment of such upon the arrange will dersigned charging parties to their lawful owners
for the restoration II and mis- improperly diverted all of sums Thereafter, commencing January 21, appropriated. charges by Hearing the were heard beginning At the ALPA. the it was clear complaint proceeding From the the accused were all of- contended charging parties charging counsel but none of the without were charged parties of which parties fenses Instead the appeared. being members of grew out of their
guilty to act parties sent one Mudd were MEC at time Mudd, Northeast however, nothing knew stead. their rights seniority trying to defend the matter refused to be sworn. about using the funds pilots. In Northeast through presenting went the motions of He charges alleged collected charges against pilots by the Northeast “misappropriated funds charged parties number merely reading excerpts from a (Em- of ALPA.” Northeast Division he had no connec- documents with which words, charge added). In other phasis person to the truth tion. No attested ALPA and belonged to that such funds all they were received yet documents them their who raised pilots Board. purpose. special against Ritz and others were the three other signed by O’Donnell and filing Immediately after yet officers of ALPA none national them, charges against Northeast testimony or cross-exami- appeared for four enjoin the suit to 1973 filed on June of this charade of At the conclusion nation. brought against disciplinary proceedings wit- unqualified statements unsworn pilots con- allegations the In their them. documents, ness, Mudd reading the after reprisal proceedings tended that of their stated: attempt regain some Gentlemen, going are you parties MR. MUDD: waived compliance with position I because the problem, to have this rule. *11 Charging Party, presenting am in as the against the pilots basically case, not in a nor position, I am the and that alleged their prejudical conduct was to position being cross-ex- can I be in a union, the best the interest of but the de- Charging Parties as one amined of the pilots fense was retaliation. It was All the case. presented here. I have entirely possible out to make some of a kind charges that have been filed here these pilots by case the written docu- charges by as true the represented and ments, but to do through person so Parties, enough there Charging has been had no knowledge documents, of said could in these that have things, evidence found in any way any not questions answer with guilty these men are indicated that them, to respect and could not lay a proper the et allegations charges, these to cetera. foundation for introduction, was a Now, presented the case for Ihave [sic] strategem deny clever the pilots their Parties, Charging the and it would be right to make their defense reprisal in me to attest to the accura- impossible for only way it made, could be through place time that cy, they to the exact took cross-examination possibly of O’Donnell and you. capable; I am and what have not the other officers. added). (Emphasis nor can I it. do The District Court held that “the accused Okay. Let THE CHAIRMAN: parties expressly either silently or decided the representative record show that to specifically request witnesses .” declined to be sworn in Association Order, 3,1976 Memorandum June for the so stated. reasons 517, emphasis added). No cases were cited (J.A. 154). support in holding. this juncture in the proceedings, ap- At that majority opinion obliquely that holds
propriate
motions
made
right
waived their
to cross-exam-
that
charged parties
charges be dis-
witnesses, to-wit,
ine
that
the courts
(J.A. 139, 157).
chairman,
missed
how-
uniformly
have also
declared that union
ever,
since
ruled that
the association could
knowingly
members who
fail to exercise
present
rebuttal
some substantia-
guaranteed
rights
or offered them con-
charges might
tion
forthcoming.
for the
be
nection, with
disciplinary proceed-
theory
The unique
has no
support
ings have
rights.
Indeed,
waived those
law
good example
and is a
of the lack of
'
even under the
stringent
more
procedural
proceedings.
fairness in the
process
applicable
due
standards
to crimi-
III
nal proceedings the courts have
that
held
to confront and cross examine
A
pro-
more substantial denial of a fair
witnesses may be
Taylor
waived.
ceeding
require
here is
failure to
States,
17, 19-20,
United
414 U.S.
94 S.Ct.
O’Donnell to the
present
hearing for exami-
examination lawyer has a one judge where a (J.A. 139). person pointed any (as No has is presiding case in Taylor v. place States)4 the record where of the United certainly in a proceed- Taylor involved criminal defendant who would trial not be halted to suit his conve- voluntarily Supreme Taylor chose absent himself from his nience. The Court found that Taylor selling argued voluntarily trial for cocaine. that he had his waived his confront explicitly should present, have been that warned accusers not to choice be dealing lightly, are it express waiver rather this character ing of out gentlemen put that these some Ritz’ statement required. should themselves, this effort defend 7, Maj. had reference Op.) (see note effect feels or the Board Association proceedings charges, is these it people before the proceedings but not they up little time that shuffle about Board. get airplanes If have to bit. was considera- there During get tonight get thing down here Board, Mudd, between jockeying ble order, why proper we think whether the parties over that. do presented parties would be *12 recess until will stand This cross-examination. afternoon, we and o’clock tomorrow 1:00 hearing “I Mudd, in the said: at one time room 221-231. will reconvene in charging the bring people to have will [the (J.A. added). Yet, 222-223) (emphasis (Emphasis put this on.” here to parties] the proceeding when the convened follow- concept of what added.) This illustrates charging parties again the ing day were not he considered required; that he fairness present. From the is that record it obvious evidence; present to the competent not was respondents at the time of that recess the charging par- presence the of the that and eventually thought they going that to of a necessary presentation to fair was ties their having face accusers without their to parties. against charged the case the incur disfavor with their national officers by requiring presence. their This conclu- charged pilots quoted an earli- the ofOne sion self-evident when Mudd made charging parties of of one the er statement to effect the statements that Chairman “to have a full that order the effect to any of the Board did likewise. If of the the hearing . . accused . charged parties represented by had been . to face his accusers be able should have how counsel would known better any nor Mr. Giberson I do not see [y]et proceed. under the un- proceeding present.” national officers other three the parties not permit ion constitution does charging requested that “the also Mr. Mudd process require compulsory form of the present, be and I would ... party attendance of witnesses. At a minimum until . postponement to have a like ” provide its the union should that mem- . . transcript copy have we obliga- its bers —at least officers —have request postpone- for a 220-21). The (J.A. testify hearings union disciplinary tion to at the Board felt because refused ment requested. This be par- when should true having charging necessity parties the the rules, here, re- ticularly when the hearing at at once: the present quire presentation by the of evidence the THE CHAIRMAN: Back on the rec- charging parties and a union officer the is Mudd, the ord. Mr. Board has considered (J.A. is charging party This similar to request delay charg- your so requiring deponent the who to a [for swears we ing parties present] could to be complaint present testify criminal you request that the time that think the he as to filed under oath. We also highly excessive. would like the analysis in the last say that the accusers —the accused parties clearly finally did not demand gotten together fairly their material well. charging parties the before presence the very This is no say Maj.Op. I would well. reflec- Board. See note the you presentation on but it is such of- tion At various times witnesses were 169-70, (J.A. 159-60, 137, 155-56, the officers opinion of this Board that fered 178), (475-477), 444), (cf. declined brought charges demanded people who these charged parties presumed would here could not be have known trial he should that contrast, hearing urge By that offi- know themselves had continue. accusing representative presence forego parties’ of their accusers all or forever cers and witnesses, willingness of confrontation. expressing to call 221, 223), expected by parties the charging demanded having per- not board, eventually son, possessed sides knowledge both no demanded, presented, they were not charges he was presenting, appear for them Although the finally called. were not at hearing in order to avoid their cross- presentation provides rule Union examination charged parties in sup- party,” I do not “the evidence port “retaliation,” aof defense of did actu- hearing initial before find ally operate deny Ritz and the other because fairness lacked Hearing Board pilots the fair opportunity that the statute hearing at the parties of such absence requires present on evidence foregoing Hearing Board. The point. I punish- would thus set aside the hearing however does description of imposed ment because Ritz was not afford- in its irregularity con- considerable indicate ed opportunity on when he duct: properly requested and when the union However, when the case reached the Ap- provided presenting rules such evidence (cid:127) peal formally request Ritz did stage the proceedings. permit such board him additional Further in connection with consisting cross-examina- appeal, section “F” of the “Rules of *13 477). (J.A. tion O’Donnell The Rules of Appeal Procedure” of the provide Board as Appeal not Board do limit it to the follows: Hearing record Board and autho- procedure rize such presenting additional F. ORDER OF PROCEDURE (J.A. evidence before them It is no Appeal Board has established the dispose issue, answer to of this as the ma- following procedure: order of jority does, by saying present one cannot evidence, 1. any, if Presentation new appeal evidence court. The un- argument by (the appellant, ion rules him give appeal. party appealed). who Appeal however denied such 2. evidence, any, Presentation of if request argument on the of O’Donnell that and oral argument (the by appellee, VIII, gave Article Section power 4C it “the other party to the appeal). solely upon hear an the record 3. Presentation evidence, of rebuttal already . .” made . 487-488). any, if argument and rebuttal by the “power,” Of course had the but did appellant, (party appealed). “right” have the to do so in this case? 4. evidence, Presentation of rebuttal requires federal labor law that union any, argument if by rebuttal members must receive a “full fair hear- appellee, (the party ap- other ing” from their union. This as is much a peal). requirement of the appeal as of the initial Questions hearing does from the record Board both indicate parties. the Appeal ever considered or justified its denial of request Ritz’ to cross- The cases will be heard in common hear- examine O’Donnell within the framework ing session rather than each side being affording Ritz the “full and hearing” privately. heard examination Cross requires. statute I would hold that the by each other the parties to a case is not Appeal Board denied a fair when it permitted. upon power relied its hear a case “solely (J.A. 480) added). (emphasis upon already record made” without These rules obviously contemplate the demonstrating that doing in so charged “presentation of evidence” Ap- before the parties had been afforded a full and fair peal Board and “cross-examination” wit- hearing according to the union rules before nesses. But it denies “Cross-examination both Board and the Appeal each parties other to a case ...” Board. Any person (J.A. 480, who views this case realisti- emphasis added). When the other cally must admit that rules do not indulged permit charged finesse a party to be cuser,” “witness,” he and not as a by legal counsel —and thus makes it represented him- practical represent a matter interpretation must as clear that under their prevents effectively rule self —the rule Ritz could not cross-examine O’Donnell presenting his defense charged party from e., “party,” as a i. as accuser. This would representing himself and when he is to cross-examine deny O’Don- requires the defense cross-examination merely charg- nell because in his status as a here. I would thus charging party —as ing party right, he was adverse. how- Such case, that, aspect in this hold ever, generally recognized to deny it cross-examination of an ad- prohibition of totally lacking results in a situation that is to, party required who is party verse And, majority in fairness. when the fur- himself, also constituted representing and is ther declares that because the par- hearing.” of a “full and fair When a denial “expressly ties refused to call [the request Ritz’ Appeal Board denied (hostile) parties] resisting witnesses in it could have been cross-examine O’Donnell charges, . that in our view is relying wholly partially provision. on this matter,” (emphasis added), an end of the himself representing Ritz was and under they arbitrarily obliterate the could not have cross-examined the rule clearly give union rules members to present majority opinion O’Donnell. The in at- Actually, evidence to the Board. tempting point to answer this tries to ex- the refusal of the charging parties away contending plain the rule there is to no evidence present any means “that be cross-exami- should have been the simply nation of an individual because he is “end of the matter” —it should have been witness, party,” and that “if he is a comply dismissed for failure to material, testimony that is he gives would union rule and for the failure to rule, subject to cross-examination.” The through a competent witness. *14 however, does not so restrict itself. It re- justification upholding There is no for such fers to all “cross-examination of each other ruling. the Board’s ” . . . which by parties would ob- The also majority attempt to make a viously include “cross-examination” in its of the fact “the point individuals who purest against form when directed a “wit- signed charges [O’Donnell, et did al.] as when ness” as well addressed one appear support not as witnesses in of the charged party a “charging whom a calls as ” charges (Maj.Op. p. . . at -of witness, party,” an adverse and hence does p. F.2d). 738 of 566 U.S.App.D.C., 185 present him as his witness so as to not things That is of the worst being testimony. one about this avoid bound The majority make the proceeding. presence duly fact distinction Their re- only Not quested by parties an “ac- Ritz.5 between calling Ritz O’Donnell Appeal If 6 Board construes Doncaster that a mem- Road right ber’s to face his accuser to Lynnfield, mean that the Mass. 01940 must first accused demand that his September 12, accuser 1975 appear, please my Captain then consider this as de- David P. Jones accusers, my O’Donnell, mand that all of Appeal J. J. Board Chairman Bonner, Giberson, A. Wm. Davis and J. 3633 be Camelot Drive present hearing. Annandale, Virginia at the 22003 Captain Dear Jones: Sincerely, you This is to advise requesting that I am following witnesses Appeal at the /s/ Karl F. Ritz hearing O’Donnell, al., Board et v. Ritz that Karl F. is to be September conducted at 0900 on 23 cc: W. W. Anderson Washington 1975 in the office: CERTIFIED MAIL Flack, Mr. E. ALPA Director.of Acc. RETURN RECEIPT REQUESTED Shaughnessey, Captain K. DAL Miles, (J.A. 477). R. DAL EXHIBIT F addition, expecting I am to be able to face accusers, my O’Donnell, Bonner, all of J. J. A. Wm. Davis and J. Giberson. 746 “not witnesses in provide opportunity
who made one for a full and fair support charges” hearing. filed but also the events that oc- Hearing curred before the support no witness testified Board did not being witness, provide such an charges. opportunity. Mudd denied replete confusing incompetent, misleading and rested on competent or references to the summoning imminent presenting that he was the claim material accusing Hearing officers on the nothing that he knew about. total authority. many junctures, Board’s own At presented by this cumulation of unfairness appeared Hearing Board lacking had each fairness in some procedures, decided that the union officers had to be respect, ground is an additional for vacat- and, be, appear. would asked to In that decision. ing the Board’s situation, charged pilots might have hearing required full and been content press Act includes the Landrum-Griffin cross-examination, in the belief that some- confront and cross-examine the accusers. require one else would production is clear that cross-examination is still “[I]t charging parties and “take the heat” for integral part of ‘full and fair hearing’ in summoning top union officers. 101(a)(5); the courts have so held.” § It is most unrealistic to assume that the Restaurant, v. Gleason Chain Service 300 pilots, legal denied the assistance of counsel 1241, (S.D.N.Y.) aff’d, F.Supp. 1251 n. 8 422 hearing, at the should have foreseen the F.2d (2d 342 Cir. See also Parks consequences preclusive International Brotherhood of Electrical apply acquiescence would to their Workers, (4th Cir.), 314 F.2d 912 cert. buck-passing series of false starts and denied, 372 U.S. 83 S.Ct. characterized the Board’s delibera- (1963); L.Ed.2d Local No. Interna Hence, request tions. the denial of the tional Brotherhood of Tel. Workers v. Inter officers, accusing cross-examine the where Workers, national Brotherhood of Tel. proof there was no informed waiver F.Supp. (D.Mass.1966) and cases right, of that followed the denial of the therein; cited Anderson v. Brotherhood of confrontation-cross-examination Carpenters, 18,400 ¶ 47 CCH Lab.Cas. at p. appeal, petitioners denied a full and fair 29,550 (D.Minn.1963); Yochim v. Caputo, 46 hearing. 17,894 27,741 ¶ CCH Lab.Cas. at p. (S.D.N. Y.1962). Cf. Kuebler v. Lithog Cleveland *15 Concerning right the present raphers, (6th 1973); 473 F.2d Cir. Board, the Appeal there is an addi Kiepura v. Steelworkers Local finding tional reason for the procedures af F.Supp. (N.D.Ill.1973). gener See inadequate. forded to be The union’s rules Smith, ally Discipline Etelson & Union Un provided here “[u]pon that application of der Act, the Landrum-Griffin 82 Harv.L. party either to the appeal good and for Rev. 745-46 (1969); Summers, & n. 96 shown, cause the may Board hear The Law of Union What the Discipline: additional evidence in the case . Fact, Courts Do in 70 Yale L.J. 203-204 (J.A. 479). good cause shown was am charges Where the are in written ply provided by the Board’s own
form, writings and those are introduced as frequent presence statements that the evidence, the right to cross-examine neces- the officers necessary,6 by was the charged sarily encompasses right the to confront parties’ defense retaliation, and by Ritz’ one’s accusers. letter of request. Where the rules of the If the union rules were different it could union, here, as provide for the “presenta course, argued, be that a union only need tion of evidence” appeal it Consider, example, among many get for similar the accusers “should down here to- references, hearing get thing (J.A. 223). night officer statement of in order.” hearing deny charging parties a fair Two of the signed much denial of who is as a evi right present member charges against (in- a union the MEC members been stage, as it would have dence at that Ritz) cluding Captain (of were Giberson then been stage an earlier had at Braniff) (of United). Davis It provid rules not Had the union demanded. charges was these that were the basis of on ap of evidence presentation ed for the hearing subsequent disciplinary have been limited to appeal might peal on Ritz. The were imposed fine hearing, but the at the earlier the evidence board of four that heard a included and Ritz had a otherwise provided rules Captain Jones and who were Sieber also re rely refusing on them. his Thus, employed by Braniff and United. only oppor him the real they denied quest members heard a “ease involving two board defense of present he had to tunity Compliance own airline.” [their] say presented To he could have retaliation. required with their own union rule hearing overlooks the fact it at the trial two members of the board from Braniff it is lawyer; demanding Ritz was not a “disqualify” and United themselves since legal charged party no too much of hearing the case did involve training to formulate a defense and airlines, e., pilots of their own i. two of the hearing prosecu after immediately it charging parties. It is no answer to this presented who tion’s case. Even Mudd comply failure to with this Rule to assert: case, could, as best he for charging parties longer “The two were no inability to answer parties confessed to ALPA the officers of time of the concerning what he had any questions (J.A. 486), any involvement was nomi And, may presented. an individual - Maj. nal.” op. p. of 185 U.S.App. ultimately affected action D.C., 737 of (Emphasis added). 566 F.2d. attempt overly not to take an active might “nominal,” just it Even if were which it is many where others proceedings, role in not, nominal involvement is still involve- involved, any legiti for number of are also ment and that is the standard the rule mate reasons. disqualification. While the establishes any to take place good also as This is charging parties may being have ceased was that Mudd the contention issue with being charg- officers did not cease charg- “representative” acting as ing parties credibility and it was their and that he “testified” when ing parties to a certain extent. As was involved union members permitted rules minimal,” “any being involvement I cannot in this man- members other union represent he this rule means see how involvement could be more It is submitted ner. and that counsel having “disqualified” him as substantial than two represent can a witness as testify as he can not mean being assigned does members to decide the case. member when he the other though he were That involvement. It minimal absolutely nothing about admittedly knows charges preferred by on the Giberson and testimony. of his subject matter Davis and two officers from other airlines not auto- another does represent punish- conducted *16 per- knowledge of one matically infuse imposed. Their successors in office ment qualify another and the mind of son into any way in were never involved were the other testify though he as him to charges against Ritz. The fact that Giber- case. not in this certainly did It person. appeal, not choose to son and Davis did furthermore, nothing did to refute the fact IV that, charging parties, as were in- Rules Board’s Appeal (D) of Rule Prevailing parties prac- volved in the case. provides: Procedure tically they always never contin- It is the policy of the Board that a mem- That is all the union rules parties. ue as disqualify ber himself in case involv- require disqualification of the members ing pilots of his Appeal own airline. judge to the case as members of policy disqualifi- Board. The union rule on
748
absolute,
the federal statute
pilots
bring
charges.
like
airline
who
is
as the
cation
(how-
have a stock interest
perfectly
This is
understandable.
It is a
judges
minimal)
corporation appearing
in a
fair
designed
rule
to avoid bias and assure a
ever
(1970).
apparent
U.S.C.
455
It
is
and the
hearing.
§
them. 28
The reason
discretionary right.
imposed
pilots
In
rule
themselves
by
was
does
establish
necessary
try
they appreciated
case it is no.t
from their own
such a
because
prejudice.
experience, flying
pilots
pilots
and document actual
with other
ferret out
airlines,
relationship
disqualifying,
disqualification
is
such
that
Where
rule,
judgment
to sit in
is
necessary
proceeding.
is the union
to insure a
language
the union rule seeks and
the rule was here violat-
prohibited.
plain
What
situations,
is
is basic in such
proceedings
nullity
demands what
ed. The
were thus a
“judge
board members who
must be
the union
requirement
because this
completely
independent
‘perfectly
itself established to assure a fair
”’
Manton,
complied
United States v.
was not
with. What
considered
1939),
denied,
(2d
Cir.
cert.
by
occupy
F.2d
unfair
the union rules should
Ritz’ written additional as was authoriz- testimony from O’Donnell Appeal Board found Appeal the rules of the Board. Thus ed requested to render guilty for his failure Appeal two of the Board from members ALPA home need- information office absolutely disquali- the same airlines were complete reports ed LM 2 and for his have fied and should recused themselves. channels as proper pre- refusal follow Failing this the its own by the in Ruby scribed consent order rules, improperly constituted. This ba- (J.A. 493). Hodgson charged He was not sis alone is sufficient to set aside the entire with the italicized conduct. In fact such act proceeding. (the independent filing LM-2) oc- curred on June 1973 after the ALPA contends that since the employ- on May here filed 1973. This is an relationship accused, ment or the finding obvious violation of a fair one trial — accusers, was not an issue in this case the guilty one is not an offense board has discretion to determine there with. nowas need to policy invoke the set forth Jones, (d) disqualify rule and Sieber. Conclusion However, nothing there is policy respect stated with composition rights of unions to conduct their own requires board that that it be limited to disciplinary hearings was not encroached circumstances employment where the rela- upon by Taft-Hartley Act. accused, tionship accusers, or the are Landrum-Griffin, by the time of because of grounded in issue. The rule is in an obvious abuses, Congress considered it neces- recognition by the union of the fact sary statutorily require a “full and fair pilots for the same airline most frequently hearing” be enforced United —to personal a close relationship with each States Courts. Courts should be reluctant other, many sometimes of years’ standing. to interfere —but if the wish to unions con- pilots Airline always work in teams of tinue great power they to exercise the pos- pilot co-pilot the relation-- sess over their own members without more two— —and ships between the pilots very can become courts, interference from they should be close. get order to around this close doubly They certainly cautious. should camaraderie of and to insure a fair comply with their own Rules. Because the *17 hearing, the provides rule that union mem- comply here did not with its Union own bers who are accused of union violations requiring rules the recusal of board mem- should not by pilots be tried from the same disqualifying employment; bers for a be- Appeal Ritz guilty cause the Board found with; offense he was not be- Ritz was denied the given
cause him
by the Union rule to introduce evidence Board; Appeal because the Un- deny charged party,
ion rules who must himself,
represent to cross-exam-
ine a charging party may and such rule
have been basis for the decision of the
Appeal deny Board to Ritz’ request O’Donnell;
cross-examination of because presence Appeal
O’Donnell’s before the necessary
Board was to insure Ritz full hearing;
and fair and because the Appeal
Board did not consider whether it was de-
nying Ritz the fair he was entitled
to when it denied him the to cross-ex-
amine O’Donnell its decision to decide solely
the case record made I would decide that Ritz
was for these reasons denied the “full and hearing” to which he was un- entitled
der the statute. I would therefore vacate
the decision of the Board. To this I respectfully
end dissent. DANIELS, and Next of P. Mother
Frances Representative
Kin and Personal Miller, Deceased and Ad- Lee
Horace Estate of Horace Lee
ministratrix
Miller, Deceased, Appellant, HOSPITAL et al.
HADLEY MEMORIAL
No. 76-1563. Appeals, Court of
United States Circuit.
District Columbia 3 June 1977.
Argued Sept.
Decided 26 27, 1977.
Rehearing Denied Oct.