Myers v. Affiliated Property Craftsmen Local No. 44

667 F.2d 817, 109 L.R.R.M. (BNA) 2799
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 8, 1982
DocketNo. 80-5340
StatusPublished
Cited by10 cases

This text of 667 F.2d 817 (Myers v. Affiliated Property Craftsmen Local No. 44) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Myers v. Affiliated Property Craftsmen Local No. 44, 667 F.2d 817, 109 L.R.R.M. (BNA) 2799 (9th Cir. 1982).

Opinions

ALARCON, Circuit Judge:

Appellant, James R. Myers, sued the defendant union, Affiliated Property Craftsmen, Local 44 (Local 44), claiming Local 44 expelled him from the union without providing a “full and fair hearing” as required by the Labor-Management Reporting and [819]*819Disclosure Act (L.M.R.D.A.), 29 U.S.C. § 411(a)(5)(C) (1976).1

The L.M.R.D.A.2 provides for federal district court jurisdiction over suits by union members against labor organizations that have allegedly infringed certain rights protected by the Act. 29 U.S.C. § 412 (1976).

The district court ruled in favor of Local 44. We hold that Myers was not afforded a full and fair hearing, and therefore reverse.

I. FACTUAL BACKGROUND

A. The Executive Board Proceedings

Myers, the president of Local 44, was accused of soliciting a bribe of $100 from a prospective member of the union. In return for the $100, Myers allegedly agreed to advance the member’s seniority in violation of union procedures.

Myers was tried before the Executive Board of Local 44. Myers argues that he did not receive a full and fair hearing, as required by 29 U.S.C. § 411(a)(5) (1976), because at least one member of the Executive Board, Ronald Joe Peck, was improperly influenced by Don Bernarducci, the Union’s Secretary-Treasurer who acted as the prosecutor in this matter, and Milton W. Olsen, in meetings that took place after the hearing, but before the Executive Board rendered its guilty verdict against Myers. Olsen, under Bernarducci’s questioning at the hearing, stated that Myers admitted receiving $100 from Klasen, but there was “[njever a clear explanation of why he accepted the hundred dollars. . . . ”

The prospective member who allegedly bribed Myers testified at the union hearing that he gave $100 to Ernest Klasen who immediately handed the money to Myers.

Myers testified at the hearing that he received $100 from Klasen in order to buy a camper shell for Klasen’s truck. Klasen corroborated Myers’ testimony regarding the purpose for which the money was given to Myers.

Myers never admitted his guilt at the union hearing. He denied admitting guilt to Bernarducci and Olsen. No one testified at the hearing that Myers admitted guilt.

B. The District Court Proceedings

Peck testified in district court that Bernarducci and Olsen told him, that Myers had “taken some money for a favor” and responded affirmatively when asked if Bernarducci and Olsen told him that Myers admitted having done the “act that was alleged against him.” Bernarducci was asked in district court if he had told Peck that Myers “admitted guilt” to him, Bernarducci answered “yes.” Peck testified that he believed Bernarducci and Olsen when they told him that Myers admitted taking money for a favor.

Peck was scheduled to be chairman of the Executive Board for Myers’ hearing. Either Bernarducci or Olsen, Peck could not remember who, asked Peck to remove himself from the chairmanship of the proceedings because the chairman could not vote on Myers’ guilt or innocence. Peck was urged to appoint L. L. Linnean, a member of the Executive Board, to the chairmanship because Bernarducci and Olsen “weren’t sure of how Mr. Linian [sic] would vote” regarding Myers’ guilt. Peck removed himself from the chairmanship of the Myers hearing and voted. The Executive Board unanimously voted Myers guilty.3

[820]*820As stated above, Peck’s testimony that Bernarducci told him that Myers admitted guilt was corroborated by Bernarducci’s testimony in district court. Peck’s testimony that either Bernarducci or Olsen asked him to relinquish the chairmanship to make a guilty vote more likely was unchallenged.

Local 44’s constitution provides for an appeal to the general membership. A general membership meeting was scheduled for Myers’ appeal, but was not held due to the lack of a quorum. Myers’ appeals to the International President and the International Executive Board were both “denied”.

II. DISCUSSION

This court must determine whether these facts constitute a denial of the right to a full and fair hearing in accordance with 29 U.S.C. § 411(a)(5) (1976).

The courts have had some difficulty deciding what the “full and fair hearing” provision of the L.M.R.D.A. requires. The full and fair hearing requirement has been compared to “traditional concepts of due process of law.” Pawlak v. Greenawalt, 464 F.Supp. 1265, 1271 (M.D.Pa.1979). See also NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 194, 87 S.Ct. 2001, 2013-14,18 L.Ed.2d 1123 (1967); Howard v. United Association of Journeymen and Apprentices, 560 F.2d 17, 21 (1st Cir. 1977). There is agreement, however, that a union disciplinary hearing need not incorporate the same protections found in criminal proceedings. Ritz v. O’Donnell, 566 F.2d 731, 735 (D.C.Cir.1977).

Biased or tainted trial committees have been a recurring problem in union disciplinary hearings. An unbiased or untainted finder of fact is fundamental to a full and fair hearing and procedural due process. Falcone v. Dantinne, 420 F.2d 1157, 1166 (3rd Cir. 1969). Union trial committees typically consist of members of the same local. Accordingly, the triers of fact can be expected to have some knowledge of the events in question obtained outside of the disciplinary hearing. See Etelson & Smith, Union Discipline Under the Land-rum-Griffin Act, 82 Harv.L.Rev. 727, 749 (1969). There are limits, however, to the personal knowledge the courts have tolerated from the judges of union disciplinary proceedings. For example, witnesses to the offenses in question cannot sit on the union’s trial committee. Kiepura v. Local Union 1091, United Steelworkers, 358 F.Supp. 987, 991 (N.D.Ill.1973). The Second Circuit in Rosario v. Ladies’ Garment Cutters’ Union, Local 10, 605 F.2d 1228, 1243 (2nd Cir. 1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980), held that union “disciplinary charges cannot be heard upon remand [from the district court] for a new trial by those who previously heard the charges.” Similarly, the court in Tincher v. Piasecki, 520 F.2d 851, 856 (7th Cir. 1975), held that introducing into evidence a prior invalid decision which was vacated by the district court, deprived the union members of an “impartial, open-minded tribunal.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
667 F.2d 817, 109 L.R.R.M. (BNA) 2799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-affiliated-property-craftsmen-local-no-44-ca9-1982.