District Council of New York and Vicinity Trial Procedures
(Approved by the Delegate Body on August 28, 2013)
I. Administrative Support, Forms and Procedures A. Roles
The parties will be known as the Charging Party and the Respondent. The Trial Chairs will be known as Trial Chairs (TC). The role of the TCs will be independent: administratively comparable to hearing officers or administrative trial judges, subject to appeal pursuant to the United Brotherhood of Carpenters Constitution (“UBC Constitution”). Current Trial Chairs will continue to serve and can only be terminated for good cause. During the tenure of the Review Officer, a TC may only be terminated for good cause after approval from the Review Officer. After the tenure of the Review Officer, a TC may only be terminated with approval from Office of the United States Attorney for the Southern District of New York. Vacancies in a TC position will be filled following the solicitation, review and approval process followed by the District Council when seeking professional services. The Trial Panel (“TP”) will continue to be comprised of duly elected District Council members who will function as jurors, comparable to jurors in a civil case as under the UBC Constitution. TCs will rotate, starting in alphabetical order and will sit at the first, second or third dates each month. Schedules will be arranged for six months in advance and any TC may exchange an assigned date with another TC, for a scheduling or other conflict, and must inform the Director of Operations (“DoO”) or his designee of the schedule change. Changes will be posted on the District Council website. B. Administration of the Disciplinary Program
The Disciplinary Program will be administered by the DoO. TCs will report to the DoO for administrative purposes, but function independently as to the substance of the cases heard. Invoices for services related to the Disciplinary Program will be sent to the DoO or his designee. C. Administrative Support
Whatever staff is necessary to adequately assist the DoO with the administrative demands of the Disciplinary Program will be provided by the District Council. The DoO may designate members of his staff to perform administrative responsibilities associated with the Disciplinary
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Program. A member of the DoO’s staff will be designated to provide administrative support to the Disciplinary Program and the TCs. That staff member(s) should be able to communicate with the membership involved in the disciplinary process and with the TCs, as well as complete statistical assessments, create and update forms, and prepare required documents. The Disciplinary Program staff member(s) will be responsible for coordinating communication with the parties, facilitating settlement talks at the First Read and Trial dates and administering a Plea by Mail Program. The CCO and TC’s will work collaboratively with the DoO staff and provide training for the staff as required. Cases brought by the IGO will be eligible for a Plea by Mail settlement program. Letters sent to the Respondent in IGO cases will include language instructing the Respondent to complete and return the plea form and to contact the IGO if the Respondent is interested in settling the matter. If the Respondent wants to plead guilty but the parties cannot agree on a sanction, the Respondent may plead guilty by mail and the penalty will be determined by the TP. In addition to preparing and sending the letters/forms, the Disciplinary Program staff member(s) will prepare the trial folders, arrange for any technological assistance, arrange the physical space for each proceeding, and attend all First Reads and Trial proceedings. Before each Trial, a Disciplinary Program staff member(s) must ascertain the prior disciplinary history of each Respondent and provide that information to the TC. The Disciplinary Program staff member(s) will be available to communicate on behalf of the TCs with members and other District Council staff, to coordinate meetings, and complete correspondence and service of documents. A database of all proceedings going forward – listing offenses, results, penalties recommended and those ultimately imposed – will be created and kept up to date by the Disciplinary Program staff member(s). The monthly disciplinary report currently prepared by the IGO will be prepared by the DoO or his designee and will also be provided to the TCs. D. Forms
The following forms will be utilized and their templates will be kept by the DoO. 1. Charge Form - One Charge Form will be established that must be used by all Charging Parties in member v. member cases. The IGO and the RO may, but are not required to, use this form in any matter commenced by their respective offices. 2. First Read Result Form will be prepared by the TC after assessing the sufficiency of the charging document. The form will be signed by the TC and will document the decision and, where charges are dismissed, the reason(s) for dismissal and will be kept in the case file.
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3. Notification Letter of the First Read results. Letters will be sent to parties advising them of the results of the First Read. When charges are dismissed, the letter will advise the parties of the reason for the dismissal. 4. Affidavit of Service will be prepared by a Disciplinary Program staff member to document mailing of the charges to the Respondent and hearing notices to all parties. The affidavit will include language that it and any attached documents are kept as a business record per CPLR 4518. 5. Plea Form: The Plea Form shall contain the caption for the matter and the number assigned to the matter. The Plea Form shall provide a clear direction to the accused that s/he may plead either guilty or not guilty to the charge and indicate his choice by checking an appropriate box on the form, signing the form, writing his UBC ID number on the form and returning it by first class mail, registered mail, or email to the DoO at the address indicated on the form. The Plea Form will include notice that a plea of guilty will become part of the pleading member’s union file. It will further notify the member that a plea of guilty by mail is final and may not be withdrawn. Failure to return the form will be considered a plea of not guilty. 6. Withdrawn/Settled Charges: When charges are withdrawn before the First Read or Trial as a result of parties agreeing to settle the matter, the Charging Party will sign the First Read/Trial Summary sheet indicating that s/he has withdrawn the charges. 7. Notification of Trial Date Letter containing the following information/notices will be sent to all parties: o Notice to both parties to bring all witnesses and 10 copies of documentary evidence. o Notice that the Charging Party (the actual signatory on the Charge Form) must appear or the case will be dismissed. o Notice that the Respondent will be tried in absentia if s/he fails to appear. o Notice that if parties settle a matter before the hearing they must notify \ a Disciplinary Program staff member about the result. o Language explaining the Respondent’s opportunity to plead guilty by mail , including an explanation that where there is a guilty plea by mail, the TP will only decide penalty and that a guilty plea will remain in the member’s permanent record. For IGO cases, Respondents will be directed to contact the IGO if they wish to resolve charges by settlement without a hearing. o Includes information that, upon written request of either party, the DoO will notify members that they are requested to appear as witnesses at trial, but that a member cannot be compelled to attend as a witness. o Cautions parties that if audio/video/electronic evidence is to be used, the party must make copies that can be admitted into evidence and kept by the Panel, whether by DVD, CD, flash drive etc. Requires the party to notify the DoO 48 hours in advance of the hearing date so appropriate equipment can be obtained and set up for the proceeding. Warns the party that if this is not done in advance, the evidence may not be admitted.
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8. First Read/Trial Sign-In Form. This form will be kept by the security officer on the First Read and trial date. Parties and witnesses will sign in when they arrive and indicate whether or not there is a possibility of settlement. If there is, they will be directed to meet outside the presence of the TP and TC to seek a resolution. If they need assistance, a Disciplinary Program staff member(s) will facilitate. 9. Trial Verdict and Penalty Letters informing the parties of the TP’s verdict and, if guilty, the penalty imposed. The Letter will inform the parties of the appeal process, including the time in which an appeal must be filed. 10. Report of Trial Panel Proceedings. This form documents who was present at the hearing, verdicts, penalty and a brief description of the facts of the case. The form is maintained as part of the case file and will form the basis of a monthly report of Trial Proceedings prepared for the Delegate Body by the TC’s. E. Physical space 1. A dedicated location for service of Charge Forms and maintenance of other Disciplinary Program documents will be established. 2. A place for the TC to wait or work outside the presence of the members should be made available on hearing dates. 3. Only drinks, and no food, will be permitted in the hearing room.
II. Charge and Hearing Procedures A. Charging Procedure 1. The Charging Party shall file a written specific Charge (which may contain multiple counts) in person with the Disciplinary Program staff member(s) designated by the DoO, via email sent to an address designated by the DoO, or by first-class mail or courier addressed or delivered to the DoO at 395 Hudson Street, 9th Floor, New York, New York. The Charge shall state the period or date of the alleged misconduct and state facts sufficient to give reasonable notice of the conduct in question. For Charges filed by the Review Officer, “misconduct” means conduct described in Section 5.f of the Stipulation and Order. 2. With the exception of the RO and IGO, all Charging Parties must use the uniform Charge Form provided by the District Council. Charges will not be accepted by the DoO unless the correct form is used. A supply of Charge Forms for the Charging Party to complete will be available at the Security Desk on the 9th Floor of 395 Hudson Street, New York, New York and on the District Council website. If an incorrect form is received, it will be returned to the Charging Party with a copy of the correct form. Provided that the correct
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form is received within 10 business days, it will be deemed to have been filed as of the date of the filing of the initial (incorrect) form. 3. The DoO staff shall log the Charge, assign a number to the matter, open a file for the matter, obtain the address(es) of the Respondent from District Council and Benefit Fund databases and within five (5) business days send a copy of the Charge with its matter number, a plea form, and a copy of these procedures to the address of the Respondent maintained by the District Council. The Charging Party shall include on the Charge an email address by which s/he may be contacted for all purposes related to the matter. 4. A Disciplinary Program staff member will prepare an Affidavit of Service to document service of the Charge. The Affidavit and any supporting documents (e.g., return receipt) will be maintained as part of the Case File. A packet consisting of the Affidavit and any supporting documents will be prepared for every trial and be introduced as a standard exhibit designated as TP Exhibit #1. 5. A central location will be established at the District Council to receive all Charge Forms, which must be date stamped upon receipt by the District Council. Beginning June 1, 2013, the date stamp placed upon incoming Charge Forms will control for purposes of determining compliance with timeliness requirements. 6. Email filing is acceptable and will be stamped as received on the same date ONLY if received BEFORE 4:00 pm. Email filings must have the correct Charge Form or they will be rejected. (Corrected forms will be emailed, as above.) Charges filed in person may be filed until close of business. 7. Charges sent by regular USPS or other mail will be considered filed as of the postmark date if it is legible, or the date stamped as received in Operations, if the postmark is not legible. The Charging Party may provide documentation to prove mailing within the proscribed time if there is an issue, and if the party received a return receipt. B. First Read Procedure 1. First Reads will take place on the 2nd Thursday of every month. The First Read is not open to anyone except the parties, the TC, representatives of the RO, the CCO, and the DoO staff. All cases will be reviewed solely on the filed papers for facial sufficiency. 2. On the First Read date, parties will be required to sign in at the security desk and indicate on that form whether they are interested in a possible settlement. A Disciplinary Program staff member will speak with all parties, ensure that each has arrived and registered, facilitate settlement by bringing the parties together (but not counseling them), and alert the TC as to which cases are ready to be reviewed. 3. The First Read will be conducted by the assigned TC. If the charge(s) meet the requirements of Section 52 of the UBC Constitution, the TC shall refer the charge(s) to the Trial Committee for a hearing. If the TC finds that a charge does not meet the requirements of Section 52 of the UBC Constitution, the TC will dismiss the charge.
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4. The TC will complete and sign the First Read Result Form. If the TC dismisses a charge, s/he will document the reasons for dismissal on the First Read Result Form. The First Read Result Form will be an internal document and kept as part of the case file. A DoO staff member will notify the parties of the results. Copies of the First Read Result Forms shall be given to members of the Executive Committee, the DoO and the COO to review. C. Rules for the Conduct of the Hearing 1. The DoO shall provide reasonable written notice of First Reading and trial schedules to the parties. 2. The TC shall sit as the voice of the TP, and has the authority and responsibility granted herein. 3. Unless otherwise stated herein, the hearing shall be conducted pursuant to and in accordance with the rules and procedures generally applicable under Section 52J of the Constitution of the United Brotherhood of Carpenters and Joiners of America and as set forth in the “Charges, Trials and Appeals” manual of the United Brotherhood of Carpenters and Joiners of America dated May 2011. In the event of a conflict between the rules and procedures established under Section 52J of the UBC Constitution and/or the Charges, Trials and Appeals manual and these rules of trial procedure, then these rules shall prevail. 4. Affidavits shall be received in evidence but will be accorded less weight than live testimony. Direct testimony may be accomplished via affidavit and accorded the same weight as live testimony if the affiant is available for cross-examination. Witnesses shall be placed under oath. D. Trial Procedure 1. The TC shall rule on all issues of procedure, evidence, decorum and any other matter that requires a decision regarding procedure, evidence, and maintenance of a serious, fair and decorous environment. Any exception to any ruling of the TC must be preserved on the record if it is to be taken as a material point argued on appeal. 2. In a matter where a member has pleaded guilty via Plea Form, the hearing shall only involve the penalty phase of the matter. 3. In the event that a Respondent fails to appear at trial, there will be an assessment of proper service by the TC and if the TC determines that the Respondent was properly notified in accordance with the UBC Constitution and these rules of trial procedure, the TC will determine that the Respondent will be tried in absentia. In that event, the TC will state the reasons on the record, the Operation’s Affidavit of Service and accompanying documents will be deemed admitted into evidence as TP Exhibit #1, and become part of
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the record. The TP members will be instructed that the service requirements have been met, that the Respondent’s failure to appear is not relevant to guilt or lack of guilt, that the Charging Party still bears the burden of proof, and that no adverse inference is to be drawn from the Respondent’s failure to appear. 4. The process of the hearing shall be as follows: a. The TC will call the proceedings to order. b. The TC will advise the parties, outside the presence of the TP, that each may challenge up to three TP members if they choose to do so. After any challenges are exercised, the TC will randomly draw the names of five Committee members and sit them as the TP for that proceeding. Committee members not chosen will remain in the room designated for Committee members to assemble. c. The TC must announce the matter and may deliver preliminary instructions to the parties regarding their duties and the rules of evidence and procedure that will be employed. The TC shall read the Charge into the record or may ask the Respondent and Charging Party if s/he has read the Charge and wishes to waive the formal reading of the Charge. d. The Charging Party must deliver an opening statement to the TP that generally states the allegations of the Charge and the means of proof that will be offered. e. The Respondent may deliver an opening statement to the TP. f. The Charging Party must offer evidence in support of the Charge. g. Parties appearing without a representative shall be allowed to testify in narrative form. There shall be direct examination of all live witnesses which shall be followed by cross-examination if desired by the opposing party, followed by redirect and re-cross examination to the extent deemed necessary by the TC. At the end of each witness’s testimony, the TC will ask each TP member in turn if s/he has any questions for the witness. The Parties will have the opportunity to ask additional questions at the discretion of the TC. h. Upon the closing of the Charging Party’s case at a hearing, a Respondent may request the TC to dismiss any Charge if the evidence presented is insufficient under the law or the UBC Constitution, as applicable, to sustain the Charge. The TC may grant such motion but must state the reason or reasons for doing so on the record or in a written statement for the record. Such dismissal shall be without prejudice. i. The Respondent may offer evidence in his defense. j. The Charging Party may offer evidence in rebuttal of the defense evidence. The Respondent may then offer evidence in rebuttal of the Charging Party’s rebuttal
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evidence. The TC may in its discretion permit the parties to offer further rebuttal or surrebuttal evidence in this pattern. In the interest of justice, the TC may permit either party to offer evidence upon rebuttal which is not technically of a rebuttal nature but more properly a part of the offering party's original case. k. At the conclusion of the evidence, the Respondent may deliver a summation to the TP. l. The Charging Party may then deliver a summation to the TP. m. Upon the closing of the record and regardless of whether a Respondent makes the request, the TC will review the sufficiency of proof and dismiss any Charge that under any reasonable interpretation of the evidence admitted is clearly not supported by a preponderance of the evidence. The TC will then submit the remaining Charges to the TP. n. The TC will give any closing instructions as to the remaining counts to be considered by the TP and the TP must then retire to deliberate and render a verdict. The TC will not be present for the deliberations but may re-enter the room upon request of the TP to answer any legal, procedural or substantive questions, and will not render an opinion as to the verdict. o. Upon the TP reaching a decision, the parties will be called back to the room to hear the decision. p. If the verdict is ‘not guilty,’ the parties will be excused by the TC. If the verdict is ‘guilty,’ each party will be given an opportunity to be heard on what s/he believes is an appropriate penalty. The TP will then be advised by the TC of any disciplinary history of the Respondent and the parties will be excused from the room. The TP will impose a penalty consistent with these rules and the UBC Constitution, the Consent Decree and Stipulation and Order entered in this matter on June 3, 2010. The TP may review the log of offenses and penalties when determining appropriate penalty recommendations. The TC will remain for the discussion of the penalty, but will have no vote. q. If the TC believes that the penalty imposed by the TP is not consistent with these rules, the UBC Constitution, the Consent Decree and Stipulation or is irreconcilably inconsistent with penalties imposed for similar conduct in previous proceedings, the TC shall not accept the penalty and will direct the TP to reconsider after giving them appropriate instructions. If the TC believes, after the TP has been given an opportunity to reconsider, that the penalty imposed by the TP remains inconsistent, the TC may reject that penalty and impose one that is consistent with the UBC Constitution, the Consent Decree and Stipulation and with penalties imposed for similar conduct in previous proceedings. In cases where the TC finds it necessary to impose a substitute penalty, the TC shall prepare a report describing the penalty(ies) imposed by the TP, why the
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penalty(ies) were inconsistent and setting forth the penalty imposed together with the reasons why it is consistent with the rules and prior proceedings. The report will be provided to the CCO, General Counsel and the IG. r. The parties will be called back into the room to hear the decision on penalty. The DoO staff will prepare a Trial Verdict and Penalty letter formally advising the parties of the proceeding’s outcome. In the case of a ‘guilty’ verdict, the time for filing an appeal will start to run from the date of the Trial Verdict and Penalty letter. s. The TC shall record the disposition of the Charges and penalties. The DoO shall keep a log of Charges where the Respondent has been found guilty, and the penalties imposed. Every six months, the CCO will review the log of offenses and penalties to ensure that penalties recommended for similar acts of misconduct are reasonably consistent. The log of offenses and penalties shall be made available to TPs to review when determining appropriate penalty recommendations. E. Representation and Advocacy 1. The Charging Party and the Respondent may be represented in a manner which conforms to the UBC Constitution, except that a Respondent may be represented by an attorney who need not be a member of the UBC when the Charge has been filed by the Review Officer. 2. The Review Officer and the IGO may be represented before a TP by a designee. All other Charging Parties must appear in person at Trial or the Charge will be dismissed. F. Recordation of Proceedings and Preservation of Exhibits 1. The proceedings before the TP shall be recorded and transcribed by a qualified court reporter. The expense of the court reporter shall be paid by the District Council. 2. The DoO shall provide for the security of all exhibits admitted into the record of a proceeding until such time as a party waives appellate rights or said exhibits shall no longer be needed as part of any appeal. Thereafter, they may be disposed of in accordance with the District Council’s document retention policy. G. Witnesses and Documentary Evidence 1. A Charging Party or Respondent may request that a member of a local union affiliated with the District Council appear at a hearing as a witness. The Charging Party or Respondent must submit the request in writing to the DoO and provide the name and local union affiliation of the member requested to appear along with the date of the hearing. The request must be submitted to the DoO no less than seven days prior to the hearing. The DoO or his designee must within two (2) business days of receiving the
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request mail a letter via first class mail informing the member of the date, time and place of the hearing, and that his or her presence has been requested by the Charging Party or Respondent to appear at the hearing. The District Council cannot compel any member to appear as a witness, nor can the TC or a TP. 2. There is no compelled production of or right to discovery of documentary evidence or other tangible items and no inference may be drawn by any person’s declining to make such matter available to any litigant or the TP. H. Requests for Adjournment of a Hearing A party to a matter may request that a hearing date be rescheduled by the TC. The first such request by any party shall be directed to the TC and shall be granted on a showing of good cause. Thereafter the matter may only be adjourned in the discretion of the TC. All requests for such rescheduling must be submitted in writing via email or first class mail to the TC (with a copy to the DoO) as soon as practicable and copied to any other party by similar means. The request shall describe the reason for the adjournment and suggest dates for the hearing to occur or be continued. The requester may confer with the opposing party, if possible, to determine the availability of the suggested dates. The TC shall decide whether to grant the request or not, and advise the parties in writing of its decision. If the request is granted, the TC shall set a date for the hearing to begin or resume which should not be more than twenty days later than the original hearing date or the last day of the hearing prior to adjournment. I. Location of Hearings and Attendance Unless notice is given of an alternate suitable location, all hearings conducted pursuant to these procedures will be held at the District Council, 395 Hudson Street, New York, New York. All hearings in which the Review Officer is a party shall be open to the public subject to reasonable security considerations and room occupancy limitations set by the City of New York. All other proceedings will be closed to the public and to members who are not parties. J. Settlement of Charges 1. The Review Officer may agree to settle Charges filed by his office at any time prior to the issuance of a decision by a TP and such settlement shall not be subject to any further review or consideration. The Review Officer may also settle prospective charges with any member rather than filing such charges with the DoO. 2. Charges brought by a member, including the IGO, may be settled at any time but after the opening of a trial only with the approval of the TC.
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K. Appeals 1. A party to a matter conducted pursuant to these procedures may appeal a decision issued by the TP (where exception has been noted on the record of the proceedings) pursuant to Section 53 of the UBC Constitution. If a timely appeal is not filed, the decision of the TP (including any related or incorporated rulings) shall be final. Appeals of a not guilty verdict rendered by a TP are not permitted. 2. It shall be the responsibility of the DoO to timely provide the record of the underlying proceedings to the UBC Appeals Committee after receiving notice from the Appeals Committee that an appeal has been filed. L. Preservation and Inspection of Trial Records and the Docket 1. The District Council shall preserve electronic copies of the transcripts of all TP proceedings for a period of not less than six years. 2. Upon the completion of a matter, a party to a proceeding may ask the DoO via signed letter for an electronic copy of the transcript of the proceeding in which s/he was a party. The DoO shall promptly provide a bona fide requester with such electronic copy. 3. The District Council shall keep an electronic record of all decisions of the TP and shall hold and preserve the written decisions of the TP in each matter after having scanned and digitized said document for the electronic record. Any member may inspect said electronic record for any lawful purpose during business hours with an appointment. 4. The DoO shall implement and maintain a docket of all TP proceedings which must be posted on the District Council website and available for inspection by all members of local unions affiliated with the District Council. Said docket must contain the title of all cases, the index number of each case, citations to the charges at issue, and a record of the disposition and penalty where applicable. III. Charges by Review Officer A. When Charges are filed by the Review Officer, the TP will consist of all three Trial Chairs. B. When the Respondent faces Charges brought by the Review Officer, s/he may be represented by an attorney who is not a member of the UBC. C. There is no additional discovery and the trial procedures established above remain the same. D. The TCs will hear the matter en banc and will decide guilt or lack thereof by majority vote. If there is a verdict of “guilty” the recommended penalty will be determined by a
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majority vote of the TC. The majority decision and any dissent will be noted on the record and reasons given. E. Administrative matters regarding service and correspondence may be completed by the Review Officer’s Office in lieu of Operations, as long as all the established procedures are met, but all records will be preserved by Operations as with any other case.
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