The opinion of the court was delivered by: JONES
Plaintiffs, a group of airline pilots, originally brought this action against their union, the Air Line Pilots Association [ALPA], and certain of its officers [individual defendants], seeking to enjoin them from further proceeding with disciplinary charges against plaintiffs. They alleged that the disciplinary proceedings which had been instituted by the individual defendants and were to be held by ALPA, were motivated by plaintiffs' intra-union opposition to defendants' policies in violation of Section 609 of the Labor-Management Reporting and Disclosure Act [LMRDA], 29 U.S.C. § 529, and further did not provide plaintiffs with a "full and fair hearing" as required by Section 101 of the Act, 29 U.S.C. § 411(a)(5).
On July 18, 1973, this Court enjoined defendants from proceeding with the disciplinary hearing unless it were to be held in Boston, Massachusetts, and counsel for plaintiffs was permitted to appear on their behalf.
The Hearing Board members thereafter intervened as parties defendant, the Court's July 18 order was appealed, and the Court of Appeals reversed on December 30, 1974. On January 21, 1975, the Hearing Board convened, and proceeded to hear evidence on the charges brought by the individual defendants in a transcribed hearing. None of the four charging parties appeared personally at the hearing; rather, they designated Captain David J. Mudd as their representative, who presented solely documentary evidence on their behalf. Neither the charging parties nor the charged parties were permitted to be represented by counsel at the hearing. At the conclusion of the hearing, the Hearing Board entered written findings, dismissing all charges against the plaintiffs except for one charge against plaintiff Ritz. The Board found Captain Ritz guilty of "disobeying or failure to comply with a decision of the ALPA Board of Directors" in that he wilfully refused to report to ALPA the funds which had been collected from Northeast Airline Pilots for the NEA Master Executive Council Legal Fund. See Exhibit 2 to Pl's Motion for Injunctive Relief, filed April 25, 1975. The decision was unanimous.
Thereafter, plaintiff Ritz and defendant O'Donnell appealed the Hearing Board's decision to the ALPA Appeal Board. The Appeal Board convened on March 18-19 in closed session, affirming the Hearing Board's decision, albeit for different reasons with regard to certain of the charges. It further ordered that plaintiff Ritz be expelled from ALPA "unless prior to [May 1, 1975] Captain Ritz has furnished the Treasurer of ALPA a complete accounting of all NEA pilot funds obtained by any and all assessments of NEA pilots in 1972 as required in ALPA procedures for filing LM-2 reports with the U.S. Department of Labor." Exhibit 5 of Pl's Motion for Injunctive Relief, filed April 25, 1975. The decision was unanimous.
The decision of the Appeal Board was set aside by this Court on June 26, 1975. The Court found that the Appeal Board's failure "to give plaintiff Ritz advance notice of the date on which the Board was to meet . . . did substantially interfere with the plaintiff's opportunity to refute the charges against him in violation of 29 U.S.C. § 411(a)(5) (1970)." Memorandum and Order dated June 26, 1975, at 5.
The Court then enjoined ALPA from taking any disciplinary action against plaintiff Ritz until at least ten days after the Appeal Board had rendered a decision following a hearing which complied with ALPA's constitution and bylaws, ordered that at least twenty days' notice of the Appeal Board hearing be given each of the parties and ordered that the parties be notified at least ten days in advance of any deadline for submission of additional evidence or argument. Id. at 7. The Appeal Board hearing was held on October 21, 1975, and on October 22, 1975, the Board entered its decision in writing. It affirmed the Hearing Board's decision in all respects, and found plaintiff Ritz guilty of "failure to render requested information to the ALPA Home Office needed to complete LM-2 reports required by the U.S. Department of Labor and refusal to follow proper channels as prescribed by the consent Court Order contained in Civil Action No. 1104-70, Ruby v. Hodgson." See Exhibit M to Pl's Motion for Injunctive Relief, filed Nov. 3, 1975. The Board then fined plaintiff Ritz $500, to be paid by November 22, 1975. Following a status call before the Court, the parties agreed that the Appeal Board would withhold action on the fine until ten days after this Court had ruled on plaintiff's motion for injunctive relief and defendants' motions for summary judgment. Subsequently, plaintiff also moved for summary judgment, and the cross-motions are now before the Court.
Plaintiff Ritz challenges the Appeal Board decision on several grounds, which will be discussed seriatim. Prior to doing so, however, it is helpful to set out the principles by which the actions of the Appeal Board are to be judged. Violation of the union constitution and bylaws does not per se amount to a violation of the LMRDA. See Martire v. Laborers' Local Union 1058, 410 F.2d 32, 36 (3d Cir.), cert. denied, 396 U.S. 903, 24 L. Ed. 2d 179, 90 S. Ct. 216 (1969); Navarro v. Gannon, 385 F.2d 512, 516 n. 6 (2d Cir. 1967), cert. denied, 390 U.S. 989, 19 L. Ed. 2d 1294, 88 S. Ct. 1184 (1968); McGovern v. New Orleans Clerks & Checkers, Local 1497 ILA, 343 F. Supp. 351, 352 (E.D. La. 1972); Buresch v. International Broth. of Elec. Workers, Local 24, 343 F. Supp. 183, 189 (D. Md. 1971), aff'd, 460 F.2d 1405 (4th Cir. 1972); Null v. Carpenters District Council of Houston, 239 F. Supp. 809, 814 (S.D. Texas 1965). Rather, the Court must address itself to the question "whether in fact the plaintiff was served with written specific charges and given a reasonable opportunity to prepare his defense and afforded a full and fair hearing as required by Section 411(a)(5) of the Labor-Management Reporting and Disclosure Act." Buresch, supra at 190, quoting from Null, supra at 814. In determining whether "a full and fair hearing" has been afforded plaintiff, "constitutional due process requirements" serve as the basis for decision. See Parks v. International Brotherhood of Elec. Workers, 314 F.2d 886, 912 (4th Cir.), cert. denied, 372 U.S. 976, 10 L. Ed. 2d 142, 83 S. Ct. 1111 (1963); cf. Boilermakers v. Hardeman, 401 U.S. 233, 246, 28 L. Ed. 2d 10, 91 S. Ct. 609 (1971) (section 101(a)(5)(C) requires 'usual reasonable constitutional basis' for disciplinary action").
With these principles in mind, each of plaintiff Ritz's complaints will be reviewed individually.
(1) Failure of Five Appeal Board Members to Contribute to Decision.
Plaintiff Ritz first complains that only four members of the Appeal Board decided his appeal in contravention of the union constitution and bylaws, Article VIII, Sec. 7. Section 7 states that "[an] Appeal Board shall be established to hear cases appealed to it" and that "[the] Appeal Board shall be composed of five regular and three alternate members." If in a particular case, the charged party exercises his peremptory challenge to remove one of the regular members, "one of the alternates selected by the challenger shall become a regular member of the Board for hearing the subject case." The rule clearly contemplates that five members will hear each case, although nowhere does it expressly state this. Violation of the rule, however, does not amount to a denial of a full and fair hearing. There is no requirement that the decision of the Board be unanimous; thus, three members could find a charged party guilty. Here, four of the five members found plaintiff Ritz guilty. That he was adjudged by four rather than five members could not conceivably be viewed as a denial of due process, and therefore this particular complaint is without merit.
(2) Failure of Jones and Sieber to Disqualify Themselves as Appeal Board Members.
Two of the four Appeal Board members who joined in the October 22, 1975 decision, Captains Jones and Sieber, were members of the same airlines as were two of the charging parties, Captains Giberson and Davis. Rule D of the Appeal Board's Rules of Procedure provides that "It is the policy of the Board that a member disqualify himself in any case involving pilots of his own airline." See Exhibit I to Pl's Motion for Injunctive Relief, filed Nov. 3, 1975. Even apart from the fact that Captains Giberson and Davis did not take part in the appeal, failure to abide by the rule does not in and of itself constitute a denial of a full and fair hearing.
Apparently plaintiff Ritz alleges that the tribunal was biased, and therefore his hearing was not a fair one. It is, of course, well settled that an impartial tribunal is requisite to a full and fair hearing. See Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir. 1975); Falcone v. Dantinne, 420 F.2d 1157, 1166 (3d. Cir. 1969); Parks v. International Brotherhood of Elec. Workers, 314 F.2d 886, 912 (4th Cir. 1963), cert. denied, 372 U.S. 976, 10 L. Ed. 2d 142, 83 S. Ct. 1111 (1963). There exists some disagreement over the standard by which impartiality is to be adjudged, however. In Parks, supra, the court held that only upon a showing of "specific prejudice" as opposed to "built-in-bias" can a federal court find a tribunal biased. 314 F.2d at 912-13. No other case has specifically stated as much. In Falcone, supra, the court held that plaintiff was denied a full and fair hearing where one of the tribunal had, according to the evidence, prejudged the case against plaintiff. 420 F.2d at 1166-67; see also Stein v. Mutuel Clerks Guild of Massachusetts, Inc., 384 F. Supp. 444, 447-48 (D. Mass. 1974) (one of tribunal prior to hearing stated that men charged were guilty and ought to be punished; full and fair hearing denied). In Tincher, supra, however, the Seventh Circuit held that participation on the tribunal by a person who has been charged with wrongdoing in another union proceeding by one of the charged parties he is called upon to judge renders the tribunal so improper as to amount to denial of a full and fair hearing. 520 F.2d at 855. Even though the tribunal member stated under oath that the charge had no effect on his decision, "[the] circumstances themselves, by presenting a significant danger of bias, created the inherent impropriety" leading to denial of a full and fair hearing. Id.
Even assuming that a person can be denied a full and fair hearing for lack of an impartial tribunal, where the tribunal's bias is based upon "built-in" factors rather than a specific showing of prejudice, the facts of the instant case do not raise to a level of "inherent impropriety" as was the situation in Tincher. Here, the only allegation of bias is that two of the tribunal members were employed by the same airline as two of the original charging parties. Those charging parties were not parties to the appeal (see Exhibit K to Pl's Motion for Injunctive Relief, filed Nov. 3, 1975), and their employment was in no way connected with the charges brought against plaintiff Ritz. While the union's attempt to promote the utmost appearance of propriety and impartiality by disqualifying Appeal Board members from a particular case involving union members employed by the same airline is laudable, the absence of such a rule or practice, at least where the identity of the employer is not involved in the charges before the tribunal even tangentially, as here, does not constitute "inherent impropriety" resulting in a denial of a full and fair hearing. See Cornelio v. Metropolitan District Council of Philadelphia and Vicinity, United Brotherhood of Carpenters & Joiners of America, 243 F. Supp. 126, 129 (E.D. Pa. 1965) (claim that fair hearing was impossible because accusers were persons of influence within the union is without merit).
(3) Failure to Call Accusers and Witnesses in Accordance With Appeal Board Rules of Procedure.
Rule F of the Appeal Board Rules of Procedure states that the procedure for the appeal hearing includes "presentation of evidence, if any, and argument by the appellant." The union constitution and bylaws states that "[the] Appeal Board may hear appeals solely upon the evidence and decision submitted to it." Article VIII, Sec. 4.C. Clearly, the rules do not require that additional evidence be submitted at the appellate level, and there is no requirement of due process that additional evidence be accepted at the appellate level. It is only mandated that the decision of the union be based upon "some evidence." Boilermakers v. Hardeman, 401 U.S. 233, ...