Wildberger v. American Federation of Government Employees, AFL-CIO

• Decision Date: 21 June 1996
• Docket Number: No. 95-7150,AFL-CIO and J,95-7150
• Parties: 152 L.R.R.M. (BNA) 2577, 318 U.S.App.D.C. 194 Robert W. WILDBERGER Jr., Appellant, v. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,ohn N. Sturdivant, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1188

86 F.3d 1188

152 L.R.R.M. (BNA) 2577, 318 U.S.App.D.C. 194

Robert W. WILDBERGER Jr., Appellant, v. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO and John N. Sturdivant, Appellees.

No. 95-7150.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 6, 1996.

Decided June 21, 1996.

Rehearing Denied Aug. 6, 1996.

Appeal from the United States District Court for the District of Columbia (No. 91cv02316).

Paul A. Levy, Washington, DC, argued the cause for appellant, with whom Alan B. Morrison was on the briefs.

Michael J. Schrier, Washington, DC, argued the cause for appellees. Charles A. Hobbie and Mark D. Roth were on the brief.

Before: EDWARDS, Chief Judge, WALD and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

The former president of a local union representing government employees argues that his removal from office by the parent union violated his right to a "full and fair hearing" as guaranteed by the Labor-Management Reporting and Disclosure Act. We agree. Because the local's president was a vocal critic of the president of the parent union, the latter's use of a disciplinary procedure in which he initiated the investigation, determined probable cause, and served as the final adjudicator posed a sufficiently high risk of bias to violate the requirements of the LMRDA.

I.

Plaintiff-appellant Robert Wildberger Jr. was employed as a program analyst by the United States Small Business Administration. He was also president of Local 2532, which represents employees at the SBA headquarters in Washington, D.C., as well as of Council 228 of the American Federation of Government Employees, comprised of local AFGE chapters representing SBA employees throughout the country. Defendant-appellees are the AFGE and its president John N. Sturdivant.

In June 1989, Sturdivant's office began investigating Wildberger's actions as president of Local 2532. This investigation culminated in the disciplinary proceedings that are the focus of this case. Although the parties disagree on the extent of Sturdivant's role, both sides agree that he initiated the investigation. Shortly thereafter, concerned about Wildberger's management of Local 2532's finances, the national AFGE placed a hold on all checks due the local from the AFGE and audited the local's financial records. Acting on Sturdivant's recommendation, the AFGE's national executive council placed Local 2532 in trusteeship. In doing so, it acted pursuant to a provision of the union's constitution allowing the national office to take control of a local that "cannot function autonomously."

Two years later, in a letter dated June 3, 1991, Sturdivant charged Wildberger with four violations of AFGE's constitution: (1) misrepresenting his authority to the SBA and the Federal Mediation and Conciliation Service and attempting to usurp the authority of another SBA local AFGE chapter; (2) using Local 2532 funds to rent an apartment for a woman who was not a member of the AFGE; (3) charging in a letter to the Administrator of the SBA that two members of Local 2532 were engaged in criminal conduct and trying to intimidate one of them into withdrawing from a bargaining committee by threatening to revive a dormant investigation against her; and (4) improperly transferring funds from Council 228 to Local 2532. In the same letter, Sturdivant announced that, pursuant to his powers under Article IX, Section 5(e) and Article XVIII, Section 1 of the union constitution, he would appoint a three-member trial committee to hear the charges, and that the trial would begin on June 18, 1991. The letter explained that the trial committee would submit its findings and recommendations to Sturdivant who would make the final decision.

Shortly thereafter, before Sturdivant appointed his trial committee, a committee consisting of members of Wildberger's Local 2532 scheduled its own trial and, according to Wildberger, notified Sturdivant in writing of the hearing's time and place. The parties disagree about Wildberger's role in establishing the local committee: Wildberger claims that his local's membership elected the trial committee; Sturdivant claims that Wildberger selected its members. Following a one-day hearing, the local trial committee issued a report dated June 17, adopting findings and conclusions prepared by Wildberger and dismissing all charges against him. In a letter to local trial committee chair Sandra Mont, Sturdivant asserted that the local committee failed to give him notice of the local trial, that the charging party was not present, and that therefore the June 17 trial report was "not valid and [was] rejected." Sturdivant also suggested that the AFGE might take disciplinary action against Mont. In response, Mont sent Sturdivant an "affidavit," stating that Wildberger had prepared the trial report himself and withdrawing her signature from the report.

On June 27, Sturdivant appointed the trial committee referred to in his June 3 letter. The committee was composed of three members of other AFGE locals. One day after the trial began, the committee suspended proceedings due to a member's family emergency. By then, the AFGE's general counsel and the AFGE's vice-president had presented their evidence. Wildberger had not put on any defense; he had refused to cross-examine witnesses testifying against him or call any witnesses in his defense, contending that, in light of his acquittal by the local trial committee, Sturdivant's committee had no jurisdiction and that the national union had improperly denied him exculpatory documents in its possession. Wildberger said that he would present his closing argument and exhibits when the committee reconvened. Before the committee could reconvene, Wildberger wrote several letters to committee members accusing them of bias against him and demanding that they recuse themselves. In three letters to trial committee chair Stan Gordon, Wildberger threatened to sue Gordon and Gordon's employer, the American Red Cross, for libel and defamation if Gordon did not recuse himself. For these repeated threats to sue the Red Cross, Sturdivant suspended Wildberger as president of Local 2532.

Wildberger responded by filing suit in the United States District Court for the District of Columbia, seeking a temporary restraining order and a preliminary injunction to prevent his removal from office and any further disciplinary proceedings. In his pro se complaint, Wildberger claimed that the national union had subjected him to double jeopardy, that Sturdivant's trial committee was biased against him, and that the union had failed to follow its own procedures, including denying him proper discovery. Relying in part on union counsel's assurance that the union would not hold an election to replace Wildberger as president until the resolution of his suit, the district court refused to issue a temporary restraining order and directed Wildberger to exhaust his union remedies.

Shortly thereafter, on September 30, the trial committee reconvened. Claiming that during the July proceedings Wildberger had waived his right to present testimony, the trial committee prohibited him from presenting witnesses and from cross-examining prosecution witnesses. But the committee did allow Wildberger to submit an affidavit and to make a closing argument. On October 29, the trial committee issued a report recommending that Sturdivant dismiss two of the four charges but that he uphold the charge involving the rented apartment and a portion of the charge involving Wildberger's intimidation of a member of his local. The trial committee recommended that the AFGE remove Wildberger from office, bar him from holding elected or appointed office in the AFGE for ten years, and suspend him from union membership also for ten years. Sturdivant adopted the committee's recommendations, adding a requirement that, in order to regain union membership, Wildberger repay the funds wrongfully expended. Wildberger appealed to the National Executive Council of the AFGE, which upheld Sturdivant's decision. He then appealed to the AFGE 1994 National Convention. The Convention adjourned without reaching his appeal.

Represented by counsel, Wildberger renewed his motion for a preliminary injunction to enjoin the union's disciplinary proceedings as violative of the LMRDA and the union constitution and to stay his suspension as president. He alleged several violations of the Act including: that the union had subjected him to "double jeopardy" by requiring him to face two successive hearings for the same charges; that the trial committee was not impartial because Sturdivant had rigged it by appointing his political supporters; that the union had improperly denied him access to documents necessary for his defense; that the union had refused to allow him to call witnesses at the hearing and cross-examine Sturdivant; and that the union had not allowed him to respond to the recommendations of the trial committee. After the district court denied Wildberger's motion for a preliminary injunction and Sturdivant's motion to dismiss for lack of jurisdiction, the parties filed cross-motions for summary judgment. Finding that the procedures Sturdivant employed were fully authorized by the union constitution and that Wildberger had failed to provide any evidence of actual bias by Sturdivant or the trial committee, the district court denied Wildberger's motion for summary judgment and granted summary judgment to the union and Sturdivant. Wildberger appeals.

II.

Before reaching the merits of this case, we consider whether we have subject-matter jurisdiction to hear Wildberger's challenges. Our jurisdiction turns on whether the LMRDA applies to the AFGE. The LMRDA covers a "labor organization engaged in an industry affecting commerce and includes any organization in which employees participate and which exists for the purpose, in whole or in...