101(a)(5) of the Labor-Management Reporting and Disclosure Act (the "LMRDA") which requires that a "full and fair hearing" must be afforded to any member that is disciplined by a union. He asserted that "'courts have uniformly recognized that the right of confrontation and cross examination of witnesses is fundamental to the "full and fair hearing.'" Id. at 4 (citations omitted). Additionally, Carey maintained that certain documents from the November Group may cast the illegality asserted in a completely different light. Id. at 3.
Thus, Hamilton argues, by reference to the Carey Brief, that he should have access to the November Group documents before the IRB hearing and the opportunity to examine both Nash and Davis at the IRB hearing to ensure him a "full and fair hearing." Hamilton recognizes that this Court is not required to grant him subpoena power but requests, out of fairness, the power to subpoena Nash and Davis to the IRB hearing and the authority to subpoena certain documents from the November Group before the hearing. Hamilton Brief at 4.
The Government opposes Hamilton's request, arguing that Hamilton has no right to subpoena witnesses and that none of Hamilton's rights will be violated if this Court refuses to grant his request. For the reasons set forth below, Hamilton's motion is denied.
This Court has once before considered an application for subpoena power by a member of the IBT who was to appear before the IRB for a disciplinary hearing. See United States v. International Brotherhood of Teamsters In re Charges against Robert T. Simpson, 870 F. Supp. 557 (S.D.N.Y. 1994). In that case, which this Court does not find dissimilar to the instant proceeding, this Court held that neither the IBT Constitution nor the Consent Decree afforded IBT members the right to compulsory process in connection with IRB disciplinary hearings. See Id. Hamilton, however, insists that his situation is different than the circumstance in the Simpson case because "there are no documents or other evidence which can substitute for the knowledge of [Nash or Davis]." Hamilton Brief at 4. He further asserts that the documentary evidence he wishes to subpoena from the November Group is necessary for him to "demonstrate that the scheme of Davis and Nash was driven by a financial motive, and that [Hamilton] was not part of their scheme." Id. at 5.
As previously mentioned, Hamilton has joined in, and adopted the arguments and authorities set forth in the Carey Brief. Therefore it is necessary to review the arguments set forth in the Carey Brief as they relate to Hamilton.
This Court addressed Carey's application on its own merits in an Opinion and Order issued contemporaneously with this decision. See United States v. IBT, 992 F. Supp. 598, 1998 U.S. Dist. LEXIS 504, Opinion and Order dated Jan. 16, 1998. Carey, also insisted that his case is different than Simpson's because Mr. Simpson was seeking the use of general subpoena power and intended to compel the attendance of several witnesses. Carey Brief at 6.
As opposed to Mr. Simpson, Carey argued that the witnesses that he proposes to subpoena are few in number and are the key witnesses "who have a powerful motive to fabricate their stories." Id. at 6-7. He also asserted that the IRB's position in not opposing his request to this Court is different from the IRB's position in Simpson and that this distinguished his application from that of Mr. Simpson's.
In support of his application, Carey relied on section 101(a)(5) of the LMRDA, which prohibits a union from taking disciplinary action against a member without affording the member a "full and fair hearing." See 29 U.S.C. § 411(a)(5). However, as this Court noted in Simpson, "the Second Circuit has held that the power to subpoena a witness is not 'a requirement of a 'full and fair hearing' under section 411(a)(5)(c).'" Simpson, 870 F. Supp. at 561 (citations omitted). The LMRDA cannot be construed to provide subpoena power to IBT members facing disciplinary hearings where the IBT Constitution nor the Consent Decree do not confer such authority to its members. Carey's argument, and thus Hamilton's argument, are without merit.
Carey also argued that this Court should grant him subpoena power pursuant to the All Writs Act. The All Writs Act provides that "the Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651. However, as this Court has previously noted, the All Writs Act "does not require a court to take a specific action," Simpson, 870 F. Supp. At 559, and this Court declines to do so here.
As this Court stated in its Opinion and Order regarding Carey's request for subpoenas, "[a] union is entitled to carry out disciplinary proceedings under its own constitution where, as here, the charged party receives notice specific enough to describe the offense, the right to present evidence and witnesses, and the opportunity to cross-examine any live witnesses. See 29 U.S.C. § 411(a)(5). Although Hamilton is not permitted to subpoena witnesses, he is entitled to present evidence to rebut the charges against him and present witnesses on his behalf. He is also entitled to cross-examine any live witness called at the hearing. He is free to rebut the statements of Nash and Davis in countless ways, including by his own testimony; by introducing testimony or hearsay statements from cooperative third parties; by introducing any inconsistent statements of the declarants themselves; and by introducing other documentary or physical evidence to support his assertion that the testimony of Nash and Davis is unreliable.
Applying this standard, it is evident that Hamilton will not be deprived of a full and fair hearing even though he is not being granted the authority to subpoena witnesses or obtain documents.
Accordingly, Hamilton's application is Hereby Denied.
DATED: New York, New York
January 16, 1998.
David N. Edelstein