• Attorneys



• Cases and Documents



• Alan Morrison Supreme Court Assistance Project



• Consumer Justice Project



• Public Interest FOIA Clinic



• Freedom of Information Clearinghouse



• Internet Free Speech



• Fellowship and Employment Opportunities



• FAQs



• Litigation Group
  E-Update

Appellees take a very different view of the record, Br. 21: The National President . . . preferred the charges but was not involved in the underlying complaints filed with him, not involved with the investigation, and not involved with the disciplinary proceedings . . .. The record is absolutely devoid of any evidence to the contrary.

They also quote from a previous decision of this Court, Ritz v. O'Donnell, 566 F.2d 731 (1977) which, they imply, severely limits judicial review of due process claims, and forbids claims such as those advanced by appellant here. Much of their brief is devoted to demonstrating that the AFGE Constitution authorized various procedural steps taken in the disciplinary process, questions that are not at issue on this appeal.

If the foregoing blocked quotation accurately portrayed the record, much of Wildberger's appeal would fail. However, as we explain in this reply brief, the record does not support appellees' characterizations. Indeed, although appellees occasionally cite evidence that they say supports their characterizations of the facts, they never discuss the contrary evidence that was cited in appellant's opening brief. Finally, we explain that Ritz does not bar the claim in this case; if anything, it suggests that claims of "inherent" or structural prejudice are cognizable under the LMRDA. Accordingly, the judgment of the district court must be reversed.

1. STURDIVANT'S WAS PERSONALLY INVOLVED IN THE INVESTIGATION, PREJUDGMENT, AND FILING OF THE CHARGES.

Appellant's opening brief, at 29, cited pages of the Sturdivant deposition where he conceded that he had been involved in both the initiation and the investigation of Wildberger that led to his filing of the charges on which Wildberger was tried. It further pointed out that, although several specific examples of that participation in the investigation appeared in Wildberger's Rule 108(h) Statement of Material Facts below, appellees neither contradicted these facts in their "Statement of Genuine Issues," nor pointed to any evidence in the record disputing them, apart from a conclusory affidavit which, as a matter of law under circuit precedent, cannot retract concessions made during his deposition. Br. 29-30 n.7. Such a failure to file a proper Rule 108(h) Statement establishes the truth of any facts not properly contested. Twist v. Meese, 854 F.2d 1421, 1424 (D.C. Cir. 1988); Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980). Accordingly, Sturdivant's active involvement in the investigation is admitted for summary judgment purposes.

Appellees do not respond to these arguments; they just deny, without any citations, that anything in the record is to the contrary. Br. 31. And, for the first time, they cite "testimony" which they say shows that Sturdivant was not really involved in the investigation of Wildberger. But even if appellees' failure to cite this material in their Rule 108(h) papers below did not bar their use now, Tarpley v. Greene, 684 F.2d 1, 7 and n.16 (D.C. Cir. 1982), the cited matter would not support their position. Appellees simply invoke statements made by some union staff members during Wildberger's intra-union trial about the merits of the charges against Wildberger, recounting what they did in the investigation. Nowhere in the cited pages (or in any other testimony, for that matter) does a witness deny that he or she consulted regularly with Sturdivant, or that Sturdivant participated in the investigation. Appellees' citation of the record to show that Sturdivant was not personally involved in the investigation is sheer fantasy.

Appellees also contend that Sturdivant's issuance of the June 3, 1991 charges against Wildberger, and his order that Wildberger stand trial at the national level, were merely "ministerial" functions, by which Sturdivant referred for trial "complaints filed with him" by others or "complaints filed by other individuals." Br. 20, 21. Once again, there was no evidence below to support a claim either that Sturdivant's actions were ministerial or that anybody else had filed complaints against Wildberger. In the court below, Wildberger asked in discovery for production of all documents relating to the charges; no such complaints were produced. Sturdivant Deposition, 101-102. And, during his deposition, Sturdivant agreed that his action in "preferring" charges was comparable to the "filing" of charges at the local union level. JA 195. He made it clear that his decision to take this step was much more than ministerial -- he had personally decided that the facts alleged in the charges "had already been made clear." JA 195-196, 204, 205-206. Moreover, as shown by Wildberger's opening brief, at 32, Sturdivant repeatedly characterized himself as the charging party and referred to the charges as his own.

Our opening brief, at 30-31, also took issue with the peremptory character of Sturdivant's decision that his charges could not receive a fair trial before a trial committee consisting of members of Local 2532, arguing that -- regardless of whether it was correct or whether it was authorized by union rules -- it showed prejudgment of Wildberger's guilt. Appellees object, Br. at 33, on the ground that "nothing in the record indicates" that the reason for this decision had anything to with the charges themselves; instead, the decision was supposedly based on Sturdivant's belief that Local 2532 was run in an undemocratic and coercive manner.

There are two flaws in this rejoinder. First, the manner of making the decision -- unilaterally, without giving Wildberger a chance to have his say -- was itself evidence of Sturdivant's prejudgment of Wildberger. And second, the charges brought against Wildberger included the accusation that he had engaged in threats and retaliatory charges against one of his constituents. JA 82, Par. 10(c). Although, as Wildberger's opening brief makes clear, he denies that he brought the charge in question, it can scarcely be doubted that the charges were related to the accusations of undemocratic and coercive conduct on Wildberger's part. By basing the decision not to allow a local union trial on grounds of "undemocratic and coercive conditions," Sturdivant was plainly prejudging this aspect of the charges he filed against Wildberger. (See Footnote 1)

Finally, appellees deny that Sturdivant was in any way involved in the underlying matters on which the charge was based. Br. 39. Their argument is misleading at best. Wildberger's opening brief, at 6, pointed out that the third charge was based on a letter to the Small Business Administration whose thrust was to accuse Sturdivant of criminal misconduct; the charge alleged that the same letter made such allegations against certain rank-and-file AFGE members employed at SBA. JA 73, Par. 8(c). As the brief showed, this accusation was completely false -- the only AFGE members accused of misconduct in the letter were Sturdivant and other leaders. Br. 7, citing JA 124-128 and 272-276. The charge is thus based solely on a mischaracterization of a letter attacking Sturdivant. In asserting that the charges "did not involve his accusation against Sturdivant," appellees simply ignore this evidence.

2. STURDIVANT'S WAS DEEPLY INVOLVED IN THE RESOLUTION OF THE CHARGES AGAINST HIS INTRA-UNION OPPONENT -- PICKING THE LEVEL AT WHICH TRIAL WOULD BE HELD, APPOINTING THE TRIAL BODY (WHICH INCLUDED HIS POLITICAL SUPPORTERS) TO HEAR HIS CHARGES, AND MAKING THE FINAL DECISION HIMSELF.

Wildberger's opening brief showed that he had been an intra-union opponent of Sturdivant. Both for that reason, as well as because Sturdivant was himself the accuser (as discussed in the previous section), it was inappropriate for Sturdivant to unilaterally decide the level at which trial would be held, to appoint the trial body to boot, and to reserve for himself the decision on the charges. That error was compounded by the fact that the trial body consisted of Sturdivant's own key political supporters. (See Footnote 2)

Appellees offer no justification for Sturdivant's having made the decision to hold the trial at the national level, without giving Wildberger any notice or opportunity to reply. Their discussion of this decision is confined to a lengthy exposition of the AFGE Constitution to show that it allowed him to make that decision, and skips over entirely the question of whether the statutory requirement of due process allows the accuser to pick the judges of the accused. (They do cite a district court decision for the proposition that both prosecutor and trial body may be selected by the same union body, Br. 37, which is a different proposition indeed). Nor do appellees ever answer the contention that, whatever the character of the trial committee members may have been, they only made a recommendation to Sturdivant, and the decision about discipline was his to make (indeed, he increased the discipline).

They concentrate their defense on the contention that the individual members of the trial body could fairly sit in judgment of Wildberger despite the fact that they supported Sturdivant's election. After all, they contend, Sturdivant received 107,000 votes for re-election in 1991, and surely all these voters should not be disqualified from sitting in judgment of Wildberger. Br. 34-35.(See Footnote 3)

If the trial committee members were merely voters, or even delegates to a union convention who had cast votes in the election, this point might have some force. But Wildberger's proof, cited on pages 35 to 36 of his opening brief, was that trial committee members had played major roles in Sturdivant's election campaigns, not only in 1991 when he was re-elected but, even more important, in 1988 when he won a "bloody" election campaign against then-incumbent Blaylock. Thus, the persons whom Sturdivant picked to conduct the trial were far more than bit players in union politics, and their political allegiances cannot be sloughed off on the ground that Wildberger's argument would require disqualification of most union members who gave Sturdivant his wide margin of victory.

Appellees also argue that the impartiality of the members of the trial committee is shown by the fact that they dismissed two of Sturdivant's four charges against Wildberger. One difficulty with this defense is that Wildberger sentence -- ten years suspension from union membership (to which Sturdivant added a fine of $6,484) is so great that the fact that two charges were dismissed seems little consolation. But the more important point is that Wildberger does not claim that the trial committee members were personally biased, only that, given their roles in Sturdivant's political operation, there is no need to consider their personal partiality in order to decide that their participation in the trial was improper. Especially coupled with the other ways in which the decision-making process was biased against Wildberger, the positions of the trial committee members made their participation improper.

Appellees also argue that Wildberger's objections should be rejected on the ground that he has a "propensity to attack any decision-maker . . . with a frivolous charge . . . to set up the decision-maker for later charges of improper bias." Br. 39. In furtherance of this claim, appellees repeatedly describe occasions in which Wildberger has, in the course of attempting to represent himself, taken actions that, at least so far as described by opposing counsel, may seem regrettable or worse. We do not intend to start rebutting these accusations or explaining their context. The Court may take it as a given that, like many workers who try to act as their own legal representatives, Wildberger made serious mistakes or tried to be too cute. But the issue in this case is not whether Wildberger is a good pro se litigator, or even whether he is a good employee or union member. In this appeal, Wildberger presents a serious claim that the system that AFGE often uses to discipline members -- i.e., the chief officer of the union starts an investigation, confers with the investigators (but not with the accused), issues the charge, decides the adjudicatory forum, picks the hearing panel (who are members of his own political team), and then makes the decision himself -- is legally impermissible under the LMRDA. Although one can understand why AFGE would try to use olfactory evidence about Wildberger to draw attention away from this basic issue, that ruse should not be allowed to succeed.

3. UNION DISCIPLINE MAY BE IMPOSED BASED ON "INHERENT" BIAS, WITHOUT A FINDING OF "ACTUAL" BIAS ON THE PART OF A UNION ADJUDICATOR.

Wildberger's opening brief argued that intra-union discipline procedures may be found to violate the statutory requirement of a "fair" hearing, based on the use of a biased tribunal, even without a finding of "actual" bias on the part of the union adjudicator. We cited numerous cases and other authority holding that trial by persons standing in a certain relation to the accused -- whether because the adjudicator was also the accuser, or is a political adversary of the accused, or was a political ally of the accuser, or was selected by the accuser, or participated in the investigation of the accuser, or was involved in the underlying conduct -- may also constitute partiality that vitiates the disciplinary decision. Br. 29, 33, 34, 39, 40-41.

Appellees argue in their briefs that each case involved some fact that is somehow different from the facts here. Br. 31-33, 35-37. We do not agree that the cases are distinguishable, but leave it to the Court to decide whether the argued distinctions are valid. We do, however, take strong issue with appellees' contention that discipline can never be overturned on grounds of bias unless it is proved that the disciplinary decision was actually caused by improper motives on the part of the decision-maker. AFGE Br. 42, quoting Parks v. IBEW, 314 F.2d 886 (4th Cir. 1963).

The requirement of actual bias and actual impact on a decision is far higher than is needed in other situations where persons allege that tribunals that adjudicated their cases were biased. E.g., 28 U.S.C. Secs. 144, 455; Ward v. Monroeville, 409 U.S. 57, 60 (1972) ("test is whether the mayor's situation is one 'which would offer a possible temptation to the average man as a judge'" to overlook defendant's rights); Goldberg v. Kelly, 397 U.S. 254, 271 (1970) ("an impartial decision maker is essential .. . . [P]rior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decision maker. He should not, however, have participated in making the determination under review"); Tumey v. Ohio, 273 U.S. 510 (1927). In re Murchison, 349 U.S. 133, 136 (1955), made clear that the Tumey standard "may sometimes bar trial by judges who have no actual bias," and went on to state, "It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations." Id. at 137. (See Footnote 4)

In introducing the Union Members' Bill of Rights, its sponsors in both the House and the Senate explained that the Bill of Rights conferred on union members a rough statutory equivalent of the rights that citizens enjoy against the government. 2 NLRB, Legislative History of the LMRDA 1103 (Sen. McClellan), 1645 (Rep. Landrum). Indeed, in Boilermakers v. Hardeman, 401 U.S. 233, 246 (1971), the Court adopted the due process standard barring convictions "unsupported by any evidence" to govern section 101(a)(5) attacks on the sufficiency of the evidence. And in Breininger v. Sheet Metal Workers, 493 U.S. 89 (1989), the Court quoted approvingly Professor Clyde Summers' comment that union discipline "is the criminal law of union government," id. at 91, and Senator Kuchel's explanation that section 101(a)(5) would allow discipline to be imposed only "on the usual reasonable constitutional basis for [criminal] charges." Id. at 93. Accord, Boilermakers v. Hardeman, 401 U.S. 233, 246 (1971) (relying on Kuchel statement). Similarly, in the area of complaints about lack of impartiality on the part of the adjudicator, there is no reason to believe that Congress would have intended to require a showing of "actual bias" to establish a union violation of due process when there is no such requirement under the United States Constitution.

In that regard, appellees invoke Ritz v. O'Donnell, 566 F.2d 731 (D.C. Cir. 1977), and Boilermakers v. Hardeman, 401 U.S. 233 (1971), for the proposition that courts should follow a general rule of abstaining from interference in union affairs, and never find a violation of the LMRDA unless there has been a "grievous" or "fundamental" kind of unfairness. Although allowing Sturdivant to fill the many roles he filled here should meet that standard, the more important point is that it is the wrong standard. The statute, after all, guarantees members a "fair" hearing; it does not limit this right to "fundamental" fairness or forbid only "grievous unfairness." The language cited from Boilermakers and Ritz is taken out of context. What those decisions actually say is that the courts should provide only limited "appellate review" of union disciplinary proceedings, in that they should not determine for themselves whether certain conduct is punishable under union rules, and should review evidence only under the constitutional "some evidence" standard rather than the "sufficient evidence" standard that is applied to review of a conviction rendered in a lower court.

In Boilermakers, the convicted union member argued that the courts should review the evidence to ensure that there was enough to warrant conviction under the union's rules. Despite the fact that the statute says nothing about the substance of the charges, and speaks only to the procedures followed by the union, the Court nevertheless crafted a standard, drawn directly from constitutional due process decisions, requiring that there be at least some evidence to support the decision. Accordingly, it is hard to read Boilermakers as expressing a general insistence on reading the statute as narrowly as possible in order to avoid impinging on union disciplinary powers; instead, the Court read the statute broadly enough to ensure due process for union members.

In Ritz, the convicted plaintiff also contended that he had been denied an impartial tribunal, on the theory that, contrary to union rules, two members employed by the same airline as the two charging parties had participated in the Appeals Board that upheld his conviction. The majority in Ritz stated that plaintiff had not tried "to show actual prejudice from the composition of the Appeals Board, so we must construe the argument as one of inherent prejudice." 566 F.2d at 737. The Court did not then reject the claim on the ground that inherent prejudice is not cognizable under the Act, or even that only "grievous" prejudice is forbidden; rather, it proceeded to consider whether there was a due process violation, thus implying that claims of inherent prejudice are cognizable under the statute.

Applying that test, the Court found that the fact that members of the Appeals Board worked for the same employer was not enough to require their disqualification. The fact that the union's rules did contain that prohibition did not mean that the statute also forbade it. Moreover, the Court characterized the charging parties' involvement in the proceeding as "nominal," "minor," and "formal," id. at 737 and n.8, which is a far cry from the pervasive role played by Sturdivant here. For all these reasons, Ritz does not support the decision in this case.

The Parks requirement of both "actual bias" and actual effect of bias should also be rejected because it would undermine the purposes of section 101(a)(5), by making it far more difficult for union members to litigate their cases. It is easy for union leaders, or the persons that they have appointed to hear intra-union trials, to submit the sort of pro forma denials of actual bias that were provided in this case. And it is going to be the relatively rare case in which a union member who has been disciplined will be able to turn up direct evidence that a union leader's political or personal animosity actually affected his or her decision in a disciplinary matter. Union leaders are normally well-enough counseled to avoid saying such things on the record of a hearing, and the meetings in which disciplinary decisions are actually made are private and off the record. Thus, appellees' proposed standard for finding bias would demand of union members more than they are likely to be able to show, especially by direct evidence.

In our experience, section 101(a)(5) cases are normally decided on cross-motions for summary judgment, with a minimum of discovery. Under the standard proposed by AFGE, although summary judgment would be well-nigh impossible for the member, every non-dismissed case would have to go to trial, which would focus on the mental state of the members of the trial body or others involved in making the decision. Not only would this make the litigation more arduous for the member, it would, in the end, be far more intrusive in union affairs than a flat rule barring the accuser and political opponents from deciding disciplinary charges. Appellees' plea for the adoption of the Parks standard should be rejected for this reason as well.

1 Defendants also argue that it was for Wildberger's sake that a national trial was ordered, because he needed protection from the 20% of the membership who wanted him to resign his office. Br. 34. Suffice it to say that Wildberger did not ask for and did not want a national trial; this reason is makeweight.

2 Appellees denigrate this claim on the ground that Wildberger didn't control very many votes at the AFGE convention. However, the electoral aspects of Wildberger's opposition to Sturdivant form only one part of the on-going intra-union disputes between them that made it inappropriate for Sturdivant to sit in judgment of charges against Wildberger. Moreover, the record refutes the claim that Sturdivant's affidavit shows he "is not aware that Wildberger has ever run against him. " Br. at 35. In his deposition, Sturdivant admitted receiving Wildberger's May 1 letter (a month before he began the investigation of Wildberger) announcing Wildberger's candidacy for Sturdivant's office. JA 182, 237-238.

3 The use of the number 107,000 is quite misleading. Although "107,000 votes" were cast for Sturdivant, Br. 34, that does not mean that "107,000 supporters" are involved. Br. 35. The AFGE constitution gives a local union delegation as many votes as its local union has members. Article VI, Sections 1, 5.

4 The holding of Murchison is that the same individual may not be both grand jury and judge. This holding disposes of appellees' claim, Br. 12, that, in "preferring" charges against Wildberger, Sturdivant was doing no more than finding that there was probable cause to bring him to trial (we note that the charge, JA 239-241, does not suggest so limited a view on Sturdivant's part). Under Murchison, even so limited a function would bar Sturdivant from deciding the charges. Indeed, that is why AFGE rules forbid members who served on a "Committee of Investigation" from participating in the trial committee as well. JA 245.

The judgment of the district court should be reversed.

Respectfully submitted,

Paul Alan Levy and Alan B. Morrison

Attorneys for Robert Wildberger

January 8, 1996

more resources

Because Public Citizen does not accept funds from corporations, professional associations or government agencies, we can remain independent and follow the truth wherever it may lead. But that means we depend on the generosity of concerned citizens like you for the resources to fight on behalf of the public interest. If you would like to help us in our fight, click here.