Ritz v. O'Donnell

• Decision Date: 04 October 1977
• Docket Number: No. 76-1524,76-1524
• Citation: 566 F.2d 731,185 U.S.App.D.C. 66
• Parties: 96 L.R.R.M. (BNA) 2178, 185 U.S.App.D.C. 66, 82 Lab.Cas. P 10,127 Karl F. RITZ et al., Appellants, v. J. J. O'DONNELL et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 731

566 F.2d 731

96 L.R.R.M. (BNA) 2178, 185 U.S.App.D.C. 66,

82 Lab.Cas. P 10,127

Karl F. RITZ et al., Appellants, v. J. J. O'DONNELL et al.

No. 76-1524.

United States Court of Appeals, District of Columbia Circuit.

Argued April 1, 1977.

Decided Sept. 6, 1977.

As Amended Oct. 6, 1977.

Rehearing Denied Oct. 4, 1977.

J. Gordon Forester, Jr., Washington, D. C., for appellants.

Gary Green, Washington, D. C., with whom Daniel M. Katz, Washington, D. C., was on the brief, for individual defendants-appellees.

Donald J. Capuano, Washington, D. C., with whom Patrick C. O'Donoghue and Robert Matisoff, Washington, D. C., were on the brief, for appellee, Air Line Pilots Association, International. Glenn V. Whitaker, Washington, D. C., also entered an appearance for appellee, Air Line Pilots Association, International.

Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.

Opinion for the court filed by LEVENTHAL, Circuit Judge.

Dissenting opinion filed by MacKINNON, Circuit Judge.

LEVENTHAL, Circuit Judge:

Plaintiff Ritz was charged with misconduct by his union, the Air Line Pilots Association (ALPA). With one exception, the union's Hearing Board dismissed all the charges against Ritz. ¹ The Board found Captain Ritz guilty of "disobeying or failure to comply with a decision of the ALPA Board of Directors." Specifically, the Hearing Board found that subsequent to the merger of Northeast Airlines with Delta Airlines, Ritz, then chairman of the Northeast Airlines Master Executive Council (MEC), ² wilfully refused to report to ALPA funds which had been collected from Northeast's pilots for the NEA Master Executive Council Legal Fund. ³ ALPA had repeatedly requested that Ritz supply the home office with the information, which was needed to file a report required by the Labor Department (LM-2 report). ⁴ Ritz eventually supplied the information directly to the Labor Department, and sent a copy of the report to the ALPA home office.

The decision of the Hearing Board was sustained by ALPA's Appeal Board, which assessed a $500 fine against Captain Ritz. He then brought this action in the district court seeking to enjoin ALPA and its officers from enforcing the decision of the Appeal Board. Captain Ritz contended, inter alia, that he was denied a "full and fair hearing" as required by section 101 of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411; that the disciplinary action was instituted in retaliation for his opposition to the policies of the union's leadership; and that there was insufficient evidence to sustain the decision of ALPA's Appeal Board. The district court rejected these allegations and granted summary judgment for the defendants. Ritz v. O'Donnell, 413 F.Supp. 1365 (1976). For the reasons discussed below, we affirm the decision of the district court.

I. ALLEGED DENIAL OF A FAIR HEARING

The charging parties, the individual defendants in this action, did not appear at either the Hearing or Appeal Board proceedings. ⁵ The plaintiff alleges that this prevented him from exercising his right of confrontation and cross-examination, and thereby denied him the "full and fair hearing" he was entitled to under section 101(a)(5)(C) of the LMRDA, 29 U.S.C. § 411(a)(5)(C).

While section 101(a)(5)(C) prohibits the disciplining of any member by a union unless he is afforded a "full and fair hearing", the member need not necessarily be provided with the full panoply of procedural safeguards found in criminal proceedings. Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir. 1975). In determining whether a full and fair hearing has been afforded a member, the "fundamental and traditional concepts of due process" serve as the basis for decision. Tincher v. Piasecki, supra; Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 912 (4th Cir.), cert. den., 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963). The courts have uniformly recognized that the right of confrontation and cross-examination of witnesses is fundamental to the "full and fair hearing" requirement, Parks v. IBEW, supra. They have also uniformly declared that union members who knowingly fail to exercise rights guaranteed or offered them in connection with union disciplinary proceedings have waived those rights. Indeed, even under the more stringent procedural due process standards applicable to criminal proceedings, the courts have held that the right to confront and cross-examine witnesses may be waived. Taylor v. United States,, 414 U.S. 17, 19-20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973).

We agree with the district court that in this case the plaintiff did waive his right of confrontation. The charging members were not present apparently due to other union business. But the Hearing Board repeatedly stated in the presence of the accused, the plaintiff here, that he had the right to call for the appearance of the charging parties and to examine them. ⁶ Captain Mudd, the representative of the charging parties, offered several times to produce for cross-examination any persons requested by plaintiff. Each time plaintiff indicated, expressly or tacitly, that he was not making any such request, even though he stated his awareness of his right to do so. ⁷

Plaintiff did request that he be permitted to cross-examine his accusers before ALPA's Appeal Board, but his request was denied. The ALPA Constitution specifically permits the Appeal Board to determine appeals solely upon the record submitted to it by the Hearing Board. That is the rule of appellate procedure followed by appellate courts, and is entirely congruent with fair procedure. Given Ritz's repeated failure to exercise his right of confrontation at the hearing level, his claim of denial of a right of confrontation at the appeal is without merit.

Finally, even if plaintiff's course did not constitute a waiver of his right of confrontation and cross-examination, we conclude that on the facts of this case he was not denied any right essential to or implicit in the statutory requirement of a full and fair hearing by the union. What is frequently characterized as "the right to confront one's accusers" is, in essence, the right to examine or cross-examine the pertinent witnesses. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). A person does not have the right to question those who filed charges against him. Those charges may have been based on responsible hearsay, rather than the direct knowledge of the charging party. If the charging party, or his counsel, presents witnesses or other evidence at the proceeding, and the respondent is offered both full opportunity to test the validity of that evidence and the opportunity to call the charging persons as witnesses (even as hostile witnesses) in the event he thinks there testimony will help his case, a full and fair hearing is assured. Here the entire case against Captain Ritz was proven by written documents, the authenticity of which Ritz conceded; there were no witnesses for him to cross-examine; and there is no suggestion of any claim made that he had any request or need to call the accusing parties in order to present some kind of affirmative defense.

II. REPRISAL ALLEGATIONS

Plaintiff also asserts that the disciplinary proceedings violated section 609 of the LMRDA, 29 U.S.C. § 529, because they were instituted as a reprisal for plaintiff's opposition to the policies of ALPA's leadership. Section 609 clearly prohibits a union from penalizing its members because they have exercised their rights of free speech and assembly, and the courts have not hesitated to nullify disciplinary actions that have infringed upon those rights. Kuebler v. Cleveland Lithographers and Photoengravers Union Local 24-P, 473 F.2d 359 (6th Cir. 1973). In the instant case, however, plaintiff has failed to make even a minimal showing that the disciplinary proceedings were instituted as a retaliatory measure. It was, therefore, proper for the district court to grant summary judgment for the defendants.

In support of his claim of reprisal, plaintiff calls attention to the fact that twenty-three other LM-2 reports were not filed with the Labor Department at the time charges were instituted against him. Charges were not brought against these other twenty-three chairmen, and this, the plaintiff argues, indicates he was "singled out" in an impermissible attempt to punish him for his opposition to the union's leadership. However, Ritz was not disciplined for failure to file the LM-2 with the Labor Department, but for failure to comply with an ALPA order specifically directing him to supply the union with the data that it needed so it could file the report. There is no evidence that the other twenty-three chairmen refused to supply information to ALPA.

III. SUFFICIENCY OF THE EVIDENCE

Plaintiff contends that there is no evidence showing it was the policy of ALPA, or that he knew it was the policy of ALPA, to file the LM-2 reports with the Labor Department through the home office rather than directly from the Master Executive Councils. Conviction by a union on charges unsupported by any evidence violates the full and fair hearing requirement of the LMRDA. International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 246, 91 S.Ct. 609, 28 L.Ed.2d 35 (1971). However, the Supreme Court has held that in reviewing union disciplinary proceedings, the courts are limited to deciding whether there is "some evidence" to support the charges made. Boilermakers, supra at 246, 91 S.Ct. 609. There is no requirement of "substantial evidence." The limited judicial role staked out by the Supreme Court for these cases leads us to affirm the conclusion of the district court that the union met its burden of producing some evidence to support the charges against Ritz.

In 1971, pursuant to a consent order with the government, Ruby v. Hodgson, Civil Action No. 1104-70 (D.D.C. Aug. 9, 1971), ALPA instituted procedures requiring the...