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November 27, 1995

JACK B. YAGER, et al., Plaintiffs,
RONALD CAREY, et al., Defendants.

The opinion of the court was delivered by: LAMBERTH

 This case comes before the court on the parties' cross-motions for summary judgment, and plaintiffs' motion to amend its complaint. Plaintiffs are former officials of the Central Conference of Teamsters ("CCT"). Defendants are the highest ranking officials in the International Brotherhood of Teamsters ("IBT"). *fn1" At issue is the legality of the removal of plaintiffs from their union offices by defendants. Previously, in an opinion dated June 29, 1993, this court denied plaintiffs' motion for a preliminary injunction. In the related case, Civil Action Number 93-1970, this court denied plaintiffs' motion for a preliminary injunction in an opinion dated November 16, 1993.

 Following discovery, defendants have now moved for summary judgment on all counts of both complaints, and plaintiffs have moved for summary judgment on Count I of their second complaint (Civ. No. 93-1970). In this consolidated opinion, upon consideration of the parties' submissions and the relevant law, for the reasons set forth below, the court shall grant defendants' motion for summary judgment on all counts of Civil Action Number 93-1970, and on counts one through five and seven of the amended complaint in Civil Action Number 93-1054. The court shall also dismiss count six of plaintiffs' amended complaint for failing to state a proper claim. Accordingly, the court shall deny plaintiffs' motion for summary judgment on count one of their complaint in Civil Action Number 93-1970. Finally, the court shall deny plaintiffs' motion to amend their complaint in Civil Action Number 93-1970.



 A. Internal Structure of the Teamsters

 The International Brotherhood of Teamsters is a labor organization made up of the International Union and its affiliates, that is, the local unions, multi-state conferences, trade divisions, and members. The International Union is the parent organization that functions as an umbrella for coordinated action by the local affiliates. The officers of the International Union are the General President, the Secretary-Treasurer, and seventeen Vice-Presidents who make up the GEB, the decision-making arm of the International. Defendant Carey won the election for General President in 1991 on a "reform" platform.

 Each of the local unions and state conferences is a separate labor organization with its own constitution, bylaws, officers, and dues structure. These local unions and state conferences band together by region to form five major Area Conferences: Eastern, Central, Western, Southern, and Canadian Conferences. The Central Conference of Teamsters ("CCT") is the largest and most influential, as it represents more than one-third of the entire membership.

 The Area Conferences are also separate labor organizations. They are governed by committees whose members are elected at an Area Conference convention by vote of the local unions within the covered geographical area. The Central Conference of Teamsters' Policy Committee governs the Central Conference. Plaintiff Jack Yager is the former chairperson of the CCT and the former chairperson of the Policy Committee of the CCT. Yager ardently supported Carey's opponent in the 1991 elections.

 The International also maintains twelve trade divisions that serve local unions and are organized along industry lines such as the freight, auto transport, and beverage and soft drink industries. The trade divisions are not separate labor organizations, but they are staff bodies organized jointly by the International and the area conferences to advise and assist local unions in multi-area or multi-employer "Master Agreements," collective bargaining, and contract administration. The Automobile Transport Division, also known as the "Car Haul" division, is the trade division relevant to this case. Plaintiff Brendan Kaiser is the former Chairperson and Director of the CCT Car Haul Division.

 B. The NMATA and the Joint Committee

 Many local unions within the Central Conference are signatories to a Car Haul Master Agreement known as the National Master Automobile Transporters Agreement ("NMATA") and its Central-Southern Area Conference Supplement. *fn2" Pursuant to the NMATA, the Central and Southern Conferences, along with the relevant employers, formed the Central-Southern Areas Automobile Transporters Joint Arbitration Committee ("Joint Committee") to adjust grievances for all local members situated within the thirteen states of the Central Conference and the nine states of the Southern Conference.

 The Joint Committee is a grievance panel that is staffed by an equal number of representatives from the Conferences' local unions and from the employers who are parties to collective bargaining agreements with those local unions. This panel hears regionally significant grievances in the car haul industry not settled at the local level. The Joint Committee is co-chaired by a representative from the employers (the "Employer Chair") and a representative from the union (the "Union Chair").

 C. The Dispute

 In the fall of 1992, plaintiff Jack Yager, then chairperson of the Policy Committee for the CCT named plaintiff Brendan Kaiser as the new chairperson and director of the Central Conference Car Haul Division.

 The dispute between the plaintiffs and defendant Ron Carey began in November of 1992, when Kaiser, with Yager's approval, purported to remove Charles Lee from his position as Union Chair of the Joint Committee. Lee had served in this capacity since 1989; however, Kaiser had expressed his dissatisfaction with Lee's performance as Union Chair. *fn3" Kaiser then, again with Yager's approval, appointed himself to the position of Union Chair. Carey informed Kaiser in a letter dated November 25, 1992, that he, Kaiser, lacked the authority to remove or appoint the Union Chair. Both Yager and Kaiser disputed Carey's interpretation of union rules, and they refused to recognize Lee as he Union Chair.

 To comply with that plaintiffs believed to be the Joint Committee's requirement that its union members elect the Union Chair, Kaiser called a meeting of local representatives of the CCT and the SCT for January 25, 1993, in Dania, Florida. The notice sent by Kaiser regarding the meeting made no reference to his plan to hold an election. At the meeting, the representatives elected Kaiser to be the Union Chair over Lee. That same day, Carey again

 notified Kaiser that Kaiser had no authority to serve as Union Chair, and Carey advised the Employer Chair, James Osmer, that Lee was the duly authorized Union Chair.

 At the January 26, 1993, meeting of the Joint Committee, Kaiser and Lee both demanded recognition as Union Chair. Osmer refused to recognize either and, except for a small number of cases processed with a temporary Union Chair, refused to hear the scheduled grievances.

 1. The Michigan Suit

 On February 2, 1993, plaintiffs, through the CCT and the SCT, brought suit in United States District Court for the Eastern District of Michigan against the Car Haul Employer Association. The plaintiffs seek a declaratory judgment recognizing Kaiser as the proper Union Chair of the Joint Committee. The employers brought a third-party action against the IBT, Carey, and the other International officers. The IBT asserts that the appointment of the Union Chair is an internal union matter, and that the IBT Constitution authorizes the IBT General President, Ron Carey, to make such appointments. This matter is still pending.

 2. The General Executive Board Resolution

 On March 7, 1993, Carey convened the International's General Executive Board ("GEB") to address the issue of who has the authority to appoint the Union Chair of the Joint Committee. The GEB passed a resolution that added the following provision to Article XII of the IBT Constitution in order "to reaffirm the right of the General President" under Article XII to appoint union chairs of joint arbitration committees:

In circumstances where the General President deems it necessary, the General President shall have the authority to appoint the Union Chairperson of any joint arbitration and grievance panel provided for by master agreements.

 The GEB took this action pursuant to Article XII, Section 6, of the IBT Constitution, which provides:

The General Executive Board is empowered to amend, delete or add to this Article at any time it believes such action will be in the interests of the International Union or its subordinate bodies.

 On March 22, 1993, Carey sent Yager a letter demanding that he withdraw his claim of authority over the appointment of the Union Chair, advise the Employer Chair that Lee is the rightful Union Chair, recognize Lee as such, and take no other actions inconsistent with Carey's authority over the appointment of the Union Chair. Carey made a similar demand on Kaiser that same day. At the end of both letters, Carey threatened disciplinary action if either plaintiff failed to comply. *fn4"

 3. The Internal Charges

 Despite the warnings, both plaintiffs continued to treat Kaiser as the rightful Union Chair. On April 23, 1993, Carey filed internal union charges against Yager and Kaiser for engaging in conduct that violated the IBT Constitution. Carey lodged seven charges against Yager and one against Kaiser.

 Carey alleged violations by Yager of the recent amendment to the Constitution of the IBT as well as other, unrelated violations. The first two charges against Yager concerned his conduct prior to the March 7, 1993, amendment. These charges stemmed from Yager's replacement of Lee with Kaiser as Union Chair. The third charge against Yager, identical to the one against Kaiser, alleged that Yager and Kaiser failed to comply with Carey's post-March 7 directives. The remaining charges against Yager stemmed from actions unrelated to the controversy over the appointment of Kaiser as Union Chair. These charges included (1) failing to effectively enforce a successorship clause in a master agreement; (2) acquiescing in the relocation of an employer's operation; (3) entering into a collusive agreement with an employer that contained substandard wages and benefits; and (4) increasing the per capita tax paid to the CCT by affiliated local unions without securing prior approval of the General President.

 4. The Panel and the Hearing

 On May 21, 1993, Thomas Sever, the IBT General Secretary-Treasurer and a defendant in this action, appointed a three-person Panel to hear the charges that Carey had filed. On May 27, 1993, Yager and Kaiser filed their first complaint in this court (Civ. No. 93-1054), seeking, among other relief, a preliminary injunction against the holding of a disciplinary hearing on the charges filed against them. This court denied plaintiffs' motion in an opinion dated June 29, 1993, Yager v. Carey, 1993 U.S. Dist. LEXIS 17801, No. 93-1054, Mem. Op. (D.D.C. June 29, 1993) (Lamberth, J.) [hereinafter Yager I].

 On July 26, 1993, the Panel appointed by Sever commenced a three-day hearing on the charges. At this hearing, the Panel permitted plaintiffs to be represented by counsel, and the Panel permitted plaintiffs to call and cross-examine witnesses. After the hearing, the panelists prepared written recommendations to the GEB. The Panel concluded that the GEB had acted properly in amending the IBT Constitution, and that Yager and Kaiser, by not complying with Carey's directives given pursuant to the March 7, 1993, amendment, violated the Constitution. The Panel further found that Yager had violated the Constitution by failing to notify the appropriate IBT officers of an employer's express intent to avoid a successorship provision, and by signing a substandard agreement. The Panel recommended dismissal of the first two charges regarding conduct prior to the March 7 amendment. The Panel also recommended dismissal of the remaining charges against Yager finding that there were no Constitutional violations. Finally, the Panel recommended that Yager and Kaiser be stripped of their union membership if they failed to comply with Carey's directives within five days.

 The GEB met on September 21, 1993, to review the Panel's recommendations. After completing its deliberations, the GEB issued a written decision in which it accepted the factual findings of the hearing panel, and it affirmed the Panel's recommended findings that Yager and Kaiser had violated the IBT Constitution by failing to comply with Carey's post-March 7 directives. The GEB rejected the Panel's dismissal of the charges relating to Yager's conduct prior to March 7. It affirmed the Panel's other recommended findings. The GEB decided to remove Yager and Kaiser from their union offices and to permanently bar them from holding any union office.

 Yager and Kaiser then filed their second complaint with this court (Civ. No. 93-1970), requesting a temporary restraining order to prevent their removal from office. This court denied the motion on September 23, 1993. Yager and Kaiser then moved for a preliminary injunction to prevent defendants from acting on their decision to remove plaintiffs from their offices and bar them from holding office in the future. This court denied that motion in a November 16, 1993, opinion, Yager v. Carey, 1993 U.S. Dist. LEXIS 17801, No. 93-1970, Mem. Op. (D.D.C. Nov. 16, 1993) (Lamberth, J.) [hereinafter Yager II].

 The Independent Review Board ("IRB"), established pursuant to the Consent Order, *fn5" reviewed and affirmed the decision of the GEB in an opinion dated January 27, 1994.



 Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). If summary judgment is to be denied, there must be evidence on which the jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment may be granted. Celotex, 477 U.S. at 322. Additionally, the Supreme Court has stated that conclusory and unsupported allegations, hearsay, or opinions cannot be used to create genuine issues of fact. See Celotex, 477 U.S. at 324.



 A. Full and Fair Trial

 Count One of plaintiffs' second complaint (No. 93-1970) alleges that defendants violated plaintiffs' right to a full and fair trial guaranteed under section 101(a)(5)(C) of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C.A. § 411(a)(5)(C) (1985). The plaintiffs contend that their disciplinary hearing and the post-trial review by the GEB violated a myriad of IBT constitutional provisions and due process requirements protected by the LMRDA, entitling plaintiffs to full reinstatement of their prior offices as well as damages. Both sides argue that the facts surrounding plaintiffs' internal trial and review are undisputed. There being no dispute as to material facts, for the reasons discussed below, the court finds that plaintiffs have failed to show that defendants denied their right to a full and fair disciplinary hearing and review. Accordingly, the court shall grant defendants' motion for summary judgment on plaintiffs' full and fair hearing claim.

 1. The International Constitution Claims

 Plaintiffs allege that defendants violated the LMRDA's guarantee of a full and fair trial by failing to comply with provisions the IBT Constitution. In their motion for summary judgment, plaintiffs focus their attack on the constitutional requirement that the charging party (Carey) must "appear in person and/or present evidence before the [internal union] trial . . . body," or the union must dismiss the charges. *fn6" IBT Constitution, art. XIX, § 2(d). The parties do not dispute that Carey, the charging member, was not present at the disciplinary hearing. In response to plaintiffs' request for dismissal, both the Panel and the GEB found that Section 2(d) was ambiguous, and they then construed that section to require either that the charging party be present or that the charging party ensure that evidence is presented against the accused. The defendants then found that because Carey appointed a prosecutor who presented the evidence, Section 2(d) had been satisfied. Plaintiffs, on the other hand, argue that Section 2(d) requires the charging party to be physically present and to present evidence. Because Carey did not attend the hearing, plaintiffs contend, the Panel should have dismissed the charges. Finally, plaintiffs argue, as they must under the LMRDA, that the failure to dismiss the charges violated the Constitution, and this violation prejudiced plaintiffs, denying them the opportunity for a full and fair hearing.

 A court considering a claim for relief under the LMRDA because a party alleges that an internal union disciplinary hearing violated the union's constitution must conduct a two-step inquiry: (1) the court must find that the hearing violated the constitution; and (2) it must find that the violation deprived plaintiffs of a fair trial within the meaning of the LMRDA. As this court found in its prior opinion, the rights protected by Section 101(a)(5)(C) of the LMRDA are procedural rights associated with hearing. The deprivation of a full and fair hearing means "severely impairing [plaintiffs'] ability to prepare and present a defense or . . . seriously increasing the risk that the decision-maker will reach an erroneous determination." Yager II, at 8 (citing Curtis v. International Alliance of Theatrical Stage Employees, 687 F.2d 1024, 1030 (7th Cir. 1982); Ricks v. Simons, 759 F. Supp. 918, 920-21 (D.D.C. 1991)).

 In its prior opinion, this court interpreted Section 2(d) of the IBT Constitution to require Carey to be physically present at the hearing. See Yager II, at 7. *fn7" The court has no cause now to reconsider that conclusion because even though defendants may have violated the IBT Constitution, plaintiffs are not entitled to relief under the LMRDA because they cannot show that this violation impaired their right to a full and fair hearing. The full and fair trial provision of the LMRDA protects only the procedural rights of an accused party in an internal union proceeding. As the Seventh Circuit stated, the constitutional violation must severely impact a party's ability to prepare or present a defense. See Curtis, 687 F.2d at 1030.

 The plaintiffs' second claim of prejudice is simply that absent the violation of the Constitution, the case could not have gone forward, and plaintiffs would not have been disciplined. To this end, plaintiffs distinguish cases where they believe courts have ignored "minor procedural time and truly 'technical' [constitutional violations] with no mandated substantive result . . . ." Pls.' Mot. for Summ. J. at 34. In contrast, plaintiffs argue, the requirement that the case be dismissed with prejudice cannot be ignored or cast as minor. However, plaintiffs' argument reveals that they misconstrue the type of rights protected by the full and fair trial guarantees of the LMRDA. When an internal union rule has been violated, section 101(a)(5)(C) gives union members a cause of action only when that violation severely impairs the member's ability to prepare and present a defense, or by increasing the risk that a decision maker will reach an erroneous determination. See Curtis, 687 F.2d at 1030. This provision is aimed at procedural rights in the hearing, not, as plaintiffs would argue, a "substantive entitlement." In Ricks, for example, the court found that because the constitutional violation did not deprive plaintiffs of their procedural rights to present evidence, the violations did not support a claim under the LMRDA. 759 F. Supp. at 923. The constitutional violation in Ricks was a time-bar claim; plaintiffs believed that the charges were time barred. As with this case, if the union had conformed to plaintiffs' reading of their constitution, the charges would have been dismissed. Id.

 Thus, the inquiry for a court under this provision is whether the violation impaired rights associated with procedural due process. Section 101(a)(5)(C) ensures that unions will give accused members a fair opportunity to present their case; it does not provide a means for union members to sue for compliance with that member's interpretation of all internal union rules. Unless the violation impairs a member's ability to establish the facts and circumstances surrounding the charges, the LMRDA provides no relief.

 2. Due Process under the LMRDA

 The full and fair trial provision of the LMRDA protects not only procedural rights stemming from internal union rules, but also all procedural rights afforded to accused members under "'fundamental and traditional concepts of due process.'" Ritz v. O'Donnell, 185 U.S. App. D.C. 66, 566 F.2d 731, 735 (D.C. Cir. 1977) (quoting Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir. 1975)). Plaintiffs claim that the disciplinary hearing and subsequent review by the GEB denied them several of these fundamental rights.

 As this court described in its previous opinion, "although union members are clearly entitled to the fundamental elements of due process in their disciplinary hearings, the procedures of a union hearing need not be a rigorous as a federal court's [procedures]." Yager II, at 12. A charged member, for example, has no right to be represented by counsel, nor does the member have a right to the "technical rules of pleading, procedure and evidence." Frye v. United Steel Workers of Am., 767 F.2d 1216, 1224 (7th Cir. 1985), cert. denied, 474 U.S. 1007, 88 L. Ed. 2d 461, 106 S. Ct. 530 (1985). Therefore, the fundamental due process rights guaranteed under the LMRDA include: (1) the existence of "some evidence" to support the charges made, International Bhd. of Boilermakers v. Hardeman, 401 U.S. 233, 246, 28 L. Ed. 2d 10, 91 S. Ct. 609 (1971); (2) an impartial tribunal, Tincher, 520 F.2d at 854; (3) an opportunity to confront "pertinent witnesses," Ritz, 566 F.2d at 735-36; and (4) an opportunity to present evidence, Tincher, 520 F.2d at 854.

 Plaintiffs allege due process violations in all aspects of the disciplinary hearing and review. Accordingly, the court will examine both the hearing and the review by the GEB, ultimately concluding that plaintiffs' allegations must fail.

 a. The Disciplinary Hearing

 Plaintiffs attack three aspects of their disciplinary hearing as violative of their right to a full and fair trial: (1) two of the three Panel members, defendants Molinero and Robinson, were biased and loyal to defendant Carey; (2) the procedures employed during the hearing violated fundamental notions of procedural due process; and (3) the Panel members were unduly influenced by Joseph Pass, counsel for the Panel. After considering plaintiffs' claims, the court shall reject them and find that plaintiffs have failed to establish that the disciplinary hearing violated their LMRDA due process rights.

 (1) Bias of Panel Members

 In order to sustain a claim that the Panel members (or as discussed later, the GEB members) were biased in violation of plaintiffs' due process rights, plaintiffs must make specific factual allegations of bias that show that the panelists were incapable of hearing plaintiffs' case impartially. See Frye, 767 F.2d at 1225; Yager II, at 17-18. "Courts . . . are justified in ruling a union tribunal biased only upon a demonstration that it has been substantially actuated by improper motives . . . ." Parks v. International Bhd. of Elec. Workers, 314 F.2d 886, 913 (4th Cir. 1963), cert. denied, 372 U.S. 976, 10 L. Ed. 2d 142, 83 S. Ct. 1111 (1963). Courts have found an impermissible bias in internal union hearings and reviews when a member of the tribunal prejudged the guilt of the accused member. See Goodman v. Laborers' Int'l Union of N. Am., 742 F.2d 780 (3d Cir. 1984); Falcone v. Dantinne, 420 F.2d 1157 (3d Cir. 1969). In another case, a member established improper bias when the charging party's brother and father served on the tribunal. Bollitier v. International Bhd. of Teamsters, 735 F. Supp. 612 (D.N.J. 1989). Another court held that supporters of the winner of a union election could not try the supporters of the loser in that election regarding charges stemming from the very same election. Semancik v. United Mine Workers of Am., 466 F.2d 144, 157 (3d Cir. 1972). Finally, a member can establish unfair bias in violation of the member's right to a full and fair trial when at least one member of the tribunal is biased. Id.

 Plaintiffs argue that defendant Joseph Molinero, chairperson of the Panel, is a "well-documented" Carey loyalist. Plaintiffs point out that in 1992 when Molinero's local union was involved in a strike with a company employing 90% of the local's members, Carey, in his capacity as General President, approved the release of $ 3.5 million in strike benefits to the local members. Plaintiffs also state that defendants Sever and Morris of the GEB, supported Molinero at "several" rallies in Molinero's home state.

 That strike benefits were approved for Molinero's local and other defendants attended "several" rallies for Molinero falls far short of "demonstrating a corrupting bias that would arise to fatal procedural flaws." Yager II, at 17. Plaintiffs have not alleged that Molinero's local's receipt of strike benefits was unwarranted or in any way uncommon. The mere fact that Carey, as General President, approved the benefits cannot support an inference that Molinero held a bias against plaintiffs.

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