In Harmon v. Matthews (supra, p. 659) it was stated: "Undoubtedly, unless some other legal method is provided by its law, before a member can be expelled upon charges from a trade union or any voluntary unincorporated association, he is entitled to have the charges made known to him.Summary of this case from Ames v. Dubinsky
May 12, 1941.
Action by Richard Harmon and another against Walter M. Matthews and others for plaintiffs' reinstatement as members of a union.
Decision in accordance with opinion.
John J. Mangini, of New York City, for plaintiffs.
Robert J. Fitzsimmons, of New York City, for defendant.
[2, 3] Plaintiffs, alleging they were illegally expelled by defendant Local 46 defendant Metallic Lathers International Union, by this action seek reinstatement. Stated in one complaint by separate causes, for each plaintiff, the actions are not joint but several. Although they were tried together, the evidence applicable to each cause must be given separate consideration. The decision in one does not follow necessarily from consideration of the evidence and the decision thereon in the other. Each plaintiff alleges his expulsion was in violation of his right as a member of the union, and the motion expelling him was un-authorized by and contrary to the union's constitution, by-laws and regulations, and beyond the jurisdiction and power of the local union without a lawful bearing or trial on proper charges. The claim is that neither plaintiff had a fair trial or in fact any trial. `Undoubtedly, unless some oilier legal method is provided by its law, before a member can be expelled upon charges from a trade union or any voluntary unincorporated association, he is entitled to have the charges made known to him, In condition, either before the association or a body selected by the members for a trial or hearing, at a time and place of which he is given reasonable notice, he is entitled to be confronted by his accusers and the witnesses' against him, with reasonable opportunity to question or cross-examine them, examine the evidence, and to answer, explain., defend and present evidence and the testimony of witnesses in his own behalf. Those rudimentary rights must be observed which are essential to any fair trial. That does not mean that the procedure known to the common law or defined by statute or rule for the conduct of the public courts or judicial or quasi-judicial bodies, must be followed. If means that the charges must be presented and the trial or hearing conducted and the decision or determination executed in accordance with the constitution, by-laws and rules of the association. If there are none making provision therefore, or those provided are contrary to accepted concepts of natural justice, then the procedure should be generally analogous to that observed in ordinary judicial proceedings in the public courts so far at least as to promote substantial justice. Koukly v. Canavan, 154 Misc. 343. 277 N.Y.S. 28; Koukly v. Weber, 154 Misc. 659, 277 N.Y. 39. The charge against plaintiffs of which each had notice in writing was that on one or more occasions between dates given each worked for and received as compensation less than the wage rate fixed by the agreement between the union and the employers' association. Notice in writing of hearing stating time and place was given. The Executive Committee of the Local was designated by the membership to hear the charges. The charges were made by business agents of the Local. At the hearing of the charges against plaintiff Harmon, an affidavit signed and sworn to by him was presented and some corroborating' statements were made by a member. Harmon asserted he made the affidavit under duress and that his sworn statements and admissions were false and made only because of threats of bodily harm and in fear of jeopardizing his union standing and livelihood. He denied the charges and the statements of the witnesses against him at the hearing. He did not produce any other witness, evidence or testimony, or show he had any. Although he requested an adjournment, he did not show meritorious reason therefor, but sought to file a written statement prepared by his lawyer, which was not accepted. The acceptance or refusal to accept this, statement and the determination of the question of alleged duress were matters addressed to the discretion and judgment of the Executive Committee. The evidence here does not establish that the refusal and determination of that body were prejudicial, unfair, or without warrant in the evidence at the hearing. The procedure followed was that provided for in the Union's Constitution, By-Laws and Rules. Although the technique may not have attained the refined niceties of court proceeding's, it cannot be said that Harmon was not afforded a fair trial upon specific charges, confronted by his accusers and found guilty on sufficient evidence adduced before the Executive Committee, the tribunal designated by the Union as provided by its law. Forty pages of transcribed typewritten stenographic notes of the proceedings taken by a highly-qualified reporter who authenticated them as a witness upon the court trial, are evidence of attempted procedural rectitude indicative of a bona fide intention to achieve substantial justice. Harmon complains Matthews, the Financial Secretary-Treasurer under the Constitution and By-Laws, was Secretary of the Executive Board and participated in the trial both as judge, prosecutor and witness. He makes the additional claim that the names which in his affidavit he stated were those of members of the Union who to his knowledge had worked for and received less than the wage rate of the Union as compensation, were in fact names of members taken from a list in Matthews' possession and put in the affidavit under duress at Matthews' dictation. He denies any personal knowledge concerning them or the charge that in fact they worked for and received less than the Union's wage rate. Although he did not object to Matthews' participation, he took the same position in respect of the names at the trial before the Executive Committee. The Union and Matthews asserted he was not a member of the Executive Board or Trial Committee, but one of the complaining witnesses, and in January 1932 the Constitution and By-Laws of the Local Union, in due accord with § 79, were amended, effective in January 1932, by eliminating the provisions that the Financial Secretary-Treasurer "shall act as secretary of the Executive Board" and from § 14 that portion italicized below, "The Executive Committee shall consist of six members to be elected and the Financial Secretary, who shall act as secretary of the Committee", and a new provision was adopted that the Recording Secretary act as Secretary of the Executive Committee without vote. Although each plaintiff testified he had received no notice of such a proposition or special meeting for vote on such proposed amendment, had no knowledge of its adoption, and never heard of it at any meeting of the membership, the adoption of the amendment was clearly established by the evidence. The minute book of the Executive Board, beginning with the meeting of April 5, 1935, and continuing to date, was produced by James Gaffney, the Recording Secretary, who testified of the amendment and that he had been secretary of the Executive Board without vote, he alone had recorded all the minutes of executive committee meetings since 1933 to date, and that after the amendment the Financial Secretary-Treasurer had not been a member of the Executive Committee. Defendant put in evidence the minutes of the meeting of October 2, 1930. at which the trials of the plaintiffs were held. The minutes are in Gaffney's handwriting-and record "Members present Frank Charles chairman, William Turney, Joseph Brennan, Fred. Altaian, John McGann, Jas. O'Hare, Chas. Coleman, James Gaffney Secy. Also present at the testimony adduced were the following: Mr. Hugh Birney President, Mr. Thomas Reid Vice-President, Mr. Walter M. Matthews, Sec. Treasurer. Mr. Leonard Klink, Business Agent, Mr. Michael Finn, Business Agent, and Mr. Timothy Spillane, Business Agent."
In respect of plaintiffs, Secretary Gaffney in the minutes recorded the fallowing:
"Richard Harmon 29450 appeared before the Ex. Board on charges of violating Sec. 46 of the Constitution of which he pleaded not guilty. After listening to evidence of both sides motion by Turney Sec. by McGann that he be found guilty of violating Sec. 46 of the Constitution carried. He was told of his rights he can appeal for a jury trial and if he does not like the decisions of the jury trial, he can appeal to the General President of the International."
"* * * William Panzer, * * * called as witnesses before the Ex. Board then were charged with violating 46 of the Constitution of which the four member? pleaded not guilty. Motion by O'Hare Sec. by Coleman that the four members be found guilty of violating Sec. 46 of the Constitution, carried. The four members were told of their rights. They can appeal for a jury trial and if they don't like the decision can appeal to the General President International." (Asterisks indicate three others.)
Although plaintiffs had the opportunity on cross-examination by the use of this minute book to establish their claim, if in truth it were the fact, that Gaffney had not been the Secretary of the Executive Committee or that the Financial Secretary-Treasurer had been Secretary and a member, no attempt was made by them to elicit such evidence. They relied solely upon their own unsupported testimony. The evidence, taken and transcribed by a disinterested court reporter, of the trial of Harmon shows Gaffney was present and acted with the Committee. He presented a card to Harmon and asked if he had received it and read Harmon's affidavit to the Committee. He moved the chairman that a witness be called before the Committee. Plaintiff Harmon did not testify that Gaffney sat with the Executive Committee at the right of the chairman, but he did not deny that evidence which was given by defendants. Plaintiff Panzer, however, did testify that Gaffney sat with the Executive Committee at his trial Both plaintiffs testified that Matthews stood beside them on the accused side of the Committee table and was not seated on the Committee side. Chairman Charles, Secretary Gaffney and Matthews testified Matthews was not a member of the Executive Committee and did not take part in their deliberations and vote; and that he appeared at the trial of each plaintiff as a complaining witness. That Matthews asked numerous questions of the accused, and also offered suggestions as to the disposition He regarded as that which the Committee should make, is undisputed. Undoubtedly he was an ardent advocate of that which he conceived to be in the interest of the Union's membership expected him to be as active and [ILLEGIBLE TEXT] as the occasion and their interest required. Plaintiffs vigorously objected to the receipt in existence of the testimony of Matthews, Chairman Charles and Recording Secretary Gaffney, as to the loss of the Local Union's minute book of membership meetings in and for the years 1930 and 1931 and of the original written proposition of amendment and of the fact of amendment by which the Financial Secretary Treasurer was eliminated and the Recording Secretary substituted as Secretary of the Executive Committee. Seemingly relying on the best evidence rule, plaintiffs, without offering the support of any pertinent authority asserted that the written proposition of amendment and the minutes recording the amendment constituted not only the best evidence thereof but the only competent evidence, and even if secondary evidence was competent that given did not properly account for the absence of the proper primary evidence. As the evidence received upon the rulings made upon the trial, over counsel's unsupported objections, is vital to the issue presented, it will be given more leisurely consideration here.
[4-12] The rule is that if it becomes necessary to prove the contents of a document, it must be produced or its absence accounted for, Taft v. Little, 17S N.Y. 127, 70 N.E. 211. But even if a fact has been recorded by being reduced to writing, the fact may be proved independent of the writing. Steele v, Lord, 70 N.Y. 280, 26 Am.Rep. 602; Jackson ex dem. Rosevelt v. Stackhouse, 1 Cow. 122, 13 Am.Dec. 514. This latter rule of proof is applied to testimony of a witness at a former trial, as oral evidence thereof by one present who heard the testimony is admissible and the stenographer's minutes are not the best evidence in the sense all other evidence is secondary. Weinhandler v. Eastern Brewing Co. 46 Misc. 584, 92 N.Y.S. 792. Exceptions exist, as written, testimony signed by the witness is the best evidence (Kain v. Larkia, 131 N.Y. 300, 30 N.E. 105), and under statute a corporate resolution correctly recorded in its minutes is presumptive evidence as to its contents, and. in some other jurisdictions no other is competent. Stock Corporation Law, § 1.0; Matter of Hayes' Estate, 153 Misc. 233, 275 N.Y.S. 466; Durbrow v. Hackcnsack Meadows Co., 77 N.J.L. S9, 71 A. 59. It must be observed here that defendants arc not a corporation. They are an unincorporated membership association, if the original writing is lost or destroyed, unobtainable because outside the court's jurisdiction or in possession of an adverse party who, upon due notice, does not produce same, secondary evidence is admissible. Enders v. Sternbergh. *40 N.Y. 264, 1 Keyes 264, 33 How.Pr. 464; Ford v. Walsworth, 19 Wend. 334. If proof of loss is necessary in order to give secondary evidence of the loss, it should be shown that reasonable search was; exhausted and that the available sources of information and means of discovery suggested by the circumstances have not enabled the party to find and produce the paper or record. Kearney v. Mayor, etc., of City of New York, 92 N.Y. 617; Cole v. Canno, 168 App.Div. 178, 153 N.Y.S. 957. The testimony of the last custodian is usually required. The more important the document as proof, the stricter becomes the requirement of the evidentiary foundation for the admission of secondary evidence. People v. Dolan, 186 N.Y. 4, 78 N.E, 569, 116 Am.St.Rep. 521, 9 Ann.Cas. 453. But the sufficiency of the proof of loss is a question of fact for the trial judge, rarely reviewed on appeal. Mason v. Libbey, 90 N.Y. 683. Where there is no proof of destruction to avoid production, the foundation evidence need not be as strong as where the circumstances are not free from suspicion, or a cause, motive or fraudulent design, to evade production appears. West v. New York Cent. H. R. R. Co., 55 App.Div. 464, 67 N.Y.S. 104. If the loss or destruction is shown to have been the result of fraudulent design, parol evidence is inadmissible. The weaker the reason for preservation or fraudulent destruction, the stronger becomes the reason for admissibility and more relaxed the stringency in respect of foundation proof. Steele v. Lord, supra. No suspicious circumstances, cause, motive or fraudulent design for loss or destruction of the original proposition of amendment or of the minutes recording the adoption have been shown, nor any apparent reason suggested which casts suspicion upon the loss and non-production. The contrary is shown by the oral testimony and production of the written record of the meetings of the Executive Committee, wherein the Recording Secretary and not the Financial Secretary-Treasurer is recorded as the Committee Secretary.
Beyond all this, the fact to be established was the participation of Matthews as a voting member of the Executive Committee sitting as the tribunal of trial. The fact established properly by direct primary evidence was that Gaffney, and not Matthews, actively participated as the Committee Secretary, and that neither voted. The evidence received was eminently proper and competent within the rules stated above.
The fact established by the evidence is that Matthews did not act as a member and secretary of the Executive Committee at the trials of plaintiffs, and participated only as a complaining witness. In addition, it is found as a fact that the Constitution and By-Laws of the Local Union were duly amended as testified to by Matthews, Charles and Gaffney, and thereafter the Executive Committee consisted of six elected members, with the Recording Secretary acting as Secretary without vote, who at the trials of plaintiffs were Chairman Charles, Turney, Brennan, Altman, McGann, O'Hare and Coleman, and Secretary Gaffney.
The Union, at a meeting of the members following the decision, considered and upheld the Executive Committee's findings. This was as provided in § 34 of its laws. Harmon had the right thereunder to appeal his case at the following meeting, and get a jury trial consisting of twelve members of the Union under a method approximating selection of jurors under the public law, and to be represented by a member of his selection as counsel (§ 34 — § 37). He did not avail himself of those rights. Courts will not consider weight of evidence or substitute their judgment for that of the union tribunal.
The conclusion required by the foregoing is that the charge against Harmon was sustained within the laws and rules of the Union by substantial evidence, and was not prosecuted unfairly or in bad faith. There was no undue irregularity of procedure, violation of the public law or of natural justice, and the determination of the Executive Committee and the Union may not be disturbed by direct appeal to the court without exhausting the remedies provided by the constitution, laws and rules of the Union. It is noted that the constitution of the parent body (Deft. Ex, A), § 102 to § 105, provides for reinstatements and that defendants offered but plaintiffs rejected a concession to afford plaintiffs a jury trial and appeal to the parent body. It may be that, being confined to the procedure provided in the law and rules of the Union, after he has pursued and exhausted all his remedies within the framework of the Union, Harmon, if unreasonably punished or completely barred from applying for reinstatement, may then seek review in the public courts. That is a matter which it is not necessary to consider or decide in this action.
[17,18] We now come to a consideration of the facts shown by the record of the hearing accorded Panzer, and the evidence supplementing same given upon the trial herein. The charge and notice of hearing are in conformity with the Union's laws and rules. Substantially they were in all respects similar to those previously discussed. For the reasons stated, they are held to be regular and sufficient in fact and law. Beginning with the Harmon hearing or trial, a number of others upon similar charges against other members were held. We arc not concerned with them and no evidence in respect of them was presented, except that it appeared that they continued on from 8 P. M. at night up to 2 A. M. the next morning. Panzer and two other members against whom charges were made were then called before the Executive Board for trial or hearing. The statement was made that Harmon made the charge against the accused in his affidavit. Harmon was not present at the hearing, but it was shown that he had recanted. The charge was denied by the accused and Panzer made a statement that he had not received less than the union wages and that Harmon had never paid him less. Without producing Harmon or any witness or evidence against Panzer except the affidavit, he was found guilty. At Panzer's trial Matthews stated that the charge, meaning the affidavit of Harmon, should be accepted as evidence and if the accused (Panzer and three others) proved beyond a reasonable doubt to the satisfaction of the Executive Committee that they were not guilty and that Harmon's statement was not the truth, the Committee would have to acquit them, but on the evidence presented the Committee should find them guilty. "If these brothers have-any other evidence to prove to the rank and file of the organization that they are not guilty, they can get on the floor. They can even have counsel but we cannot do anything else outside of the affidavit." Coleman, an Executive Committee member, stated "we are trying to find out if you fellows received less than the scale of wages. We have eight or ten before you who say so and you deny it. It looks pretty screwy to this Executive Board." But neither the eight or ten nor Harmon were produced to face the accused. The hearing: closed on Matthews' further suggestion that if the accused have any evidence that would put a reasonable doubt in the minds of the membership they could present it to the membership but "we are standing behind the affidavit of Harmon; they are named in it and that settles the argument." Whereupon the accused were excluded from the room and the Executive Committee unanimously found them guilty. An admission or confession by Harmon was not an admission or confession by Panzer. Even if the affidavit could be considered without oral authentication by Harmon in the presence of the accused, the undisputed evidence is that Harmon recanted and denied the statements of alleged fact contained in the affidavit. As the chief and only witness denied the truth of his statements which constituted the charges presented and they were not substantiated by any other evidence, it is obvious that they were insufficient to sustain a finding of guilt. There could be no fair trial of the accused on the charges formulated, * as they were not sustained by any evidence of substance. Form alone existed. The accused should have been presumed innocent until guilt was shown by substantial proof in his presence before the trial body. The contrary occurred. Panzer was presumed to be guilty, and adjudged so because he did not prove himself innocent beyond a reasonable doubt. That he was informed of a right to a jury trial and the opportunity to prove himself not guilty was no warrant for the action and decision of the Executive Committee. The hearing or trial, the procedure, consideration, fairness and decision of that body, acting as a tribunal, is the issue which must be considered here. The Executive Committee had jurisdiction, the charges were specified, and the accused was given the opportunity of a hearing. But he was not confronted by his accuser, and no substantial evidence binding upon him was produced. We are not unmindful that an Executive Committee or other trial body designated by or under authorization of the membership of a trade union, either through its own delegates or agents or those of the Union, may investigate charges of acts detrimental to the Union or the membership, predicated merely on information or reasonable grounds for suspicion, and at a trial base the decision to a large extent on the facts ascertained. That such facts should be disclosed to the accused and upon the hearing by the member, delegate or agent who ascertained them, together with their sources, and have the support of some direct substantial evidence in corroboration, seems to be essential. We are not concerned with the legality of a suspension or expulsion by a method provided by a Constitution and By-Laws upon a record consisting of reasons stated in writing of which the accused is furnished a copy, and his answer and defense in writing, if any, for which reasonable time is given, nor with the legality of any other possible method similarly provided. Here the method provided by the Union's Constitution, By-Laws and Rules was for a trial upon written charges, and an opportunity for answer and defense. Each case must be decided on its own record and facts. Those shown here in the Panzer trial must be held insufficient to establish his guilt.
In view of the foregoing, defendants are entitled to judgment dismissing the cause of action of plaintiff Harmon on the merits and plaintiff Panzer is entitled to judgment requiring his reinstatement to full rights of membership in good standing upon payment of dues and per capita tax to date, and the amount, thereof together with the question of damages and costs will be decided after hearing the parties prior to entry of judgment, which will be submitted on notice. As formal findings of fact and conclusions of law have been waived, the decision is embodied herein.