Disciplinary Hearings Process before the Adjudications Officer

United Automobile, Aerospace, and Agricultural Implement Workers of America Monitorship,

Case Number 20-13293

These rules govern the process to pursue charges brought by the Monitor of the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (“UAW”) before the Adjudications Officer as contemplated under the Consent Decree in United States v. International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, 20 CV 13293 (E.D. Mich.) (Dkt. No. 10) (“Consent Decree”).[1]

 I. Charging Procedure

Disciplinary proceedings before the Adjudications Officer shall be initiated by the preparation of a written charge by the Monitor, which shall be filed by electronic mail with the Adjudications Officer at UAWAdjudications@katten.com and served on the charged party by mail addressed to the party or its representative at the last known address, by personal service, by overnight delivery, or by electronic mail, provided that reasonable opportunity to be heard with regard to the dispute is or has been granted to the party.

The charged party may file an answering statement with the Adjudications Officer within seven days after the Monitor serves charges. Any answering statement shall be filed by electronic mail, regular mail, or overnight delivery, and will be deemed timely if postmarked or otherwise transmitted to the Adjudications Officer at UAWAdjudications@katten.com on or before the due date. If filing by mail or overnight delivery, documents should be addressed to:

                                                Gil Soffer, Adjudications Officer
                                                525 W. Monroe
                                                Chicago, IL 60661

If no answer is filed within the stated time, it will be treated as a denial of the charge. The Adjudications Officer may extend the time for filing an answering statement for good cause shown.

The Adjudications Officer’s decision in this matter will be made publicly available.

II. The Adjudication Hearing

The Monitor and Adjudications Officer shall afford the subject of potential disciplinary action a fair and impartial process and hearing. Consent Decree at 15 (¶ 36).

The charged party shall have at least thirty days prior to the hearing to prepare a defense, which time may be extended for good cause shown. Consent Decree at 15-16 (¶ 36(b)). The Adjudications Officer will have sole discretion to determine when time to prepare a defense may be extended.

A. Procedures

General: The Adjudications Officer shall have the power to manage the proceedings consistent with the Consent Decree, the rules and procedures generally applicable in labor arbitration proceedings, and these rules.

Location: The Parties[2] may mutually agree on the location where the hearing will be held. The Parties may seek to conduct the hearing remotely. If The Parties disagree as to the location, the Adjudications Officer may determine the place of hearing.

Scheduling: The Adjudications Officer shall convene an initial status hearing within ten days after the Monitor files charges. At the hearing, The Parties shall discuss their assessment of the length of the hearing, number of witnesses likely to be called, and volume of discovery to be produced. The Parties shall also, to the extent possible, identify any issues requiring resolution in advance of the hearing. The Adjudications Officer may, in his sole discretion, convene a further status hearing or hearings if circumstances warrant it. The Parties shall respond to requests for hearing dates in a timely manner, be cooperative in scheduling the earliest practicable date, and adhere to established deadlines and hearing schedules.

Record: There shall be a stenographic record of the hearing, the expense of which will be covered by the UAW. The Monitor shall arrange for a transcript in the event of an appeal, the expense of which will be covered by the UAW. Consent Decree at 11 (¶ 25).

Interpreter: If a charged party requests an interpreter, the Monitor shall make arrangements for the provision of an interpreter, at a reasonable cost to be covered by the UAW. Consent Decree at 11 (¶ 25).

Attendance at Hearing: Any person having a direct interest in the hearing is entitled to attend the hearing. The Adjudications Officer shall have the sole authority to determine who has a direct interest in the hearing sufficient to be entitled to attend the hearing. The Adjudications Officer shall otherwise have the power to require the exclusion of any witness, other than a party, during the testimony of other witnesses. It shall be within the Adjudications Officer’s discretion to determine the propriety of the attendance of any other person other than a party and its representatives.

Postponement: The Adjudications Officer may postpone any hearing upon agreement of The Parties, upon request of a party for good cause shown, or upon the Adjudications Officer’s own initiative.

Communications with the Adjudications Officer: There shall be no direct communication between any Party and the Adjudications Officer on substantive matters relating to the case other than at oral hearings, unless The Parties and the Adjudications Officer agree otherwise.

Order of Proceedings: The hearing shall be opened by the Adjudications Officer recording the date, time, and place of the hearing and the presence of the Adjudications Officer, The Parties, and counsel, if any; and by the receipt by the Adjudications Officer of the written charge and answer, if any. In his discretion, the Adjudications Officer shall conduct the proceedings with a view to expediting the resolution of the dispute and may direct the order of proof, bifurcate proceedings and direct The Parties to focus their presentation on issues the decision on which could dispose of all or part of the case. The hearing may proceed as follows, subject to the Adjudications Officer’s discretion:

(1) Opening statements made by the Monitor followed by the charged party;

(2) Witness testimony and evidence presented by the Monitor followed by the charged party, with all witnesses subject to cross examination; the Monitor may bring a rebuttal case after the charged party rests;

(3) Closing arguments made by the Monitor followed by the charged party and concluding with the Monitor’s rebuttal argument.

Standard of Proof: The Adjudications Officer shall make decisions using a “just cause” standard, which requires the Monitor to meet the burden of proving substantial evidence to sustain the charge against the charged party. Consent Decree at 16 (¶ 36(e)).

Representation: During the disciplinary proceeding conducted by the Adjudications Officer, the charged party may be represented by counsel or by another UAW member. Consent Decree at 16 (¶ 36(c)).

Absence of a Party or Representative: The hearing may proceed in the absence of any party or representative who, after due notice, fails to be present or obtain a postponement without cause.

Subpoenas: The Monitor shall have the right and authority to issue subpoenas, pursuant to the Court’s authority under the Consent Decree and subject to Federal Rule of Civil Procedure 45, requiring:

(i) the attendance and presentation of testimony of any person;[3] and

(ii) the production of documentary or other evidence.

Consent Decree at 17 (¶ 39).

In the case of contumacy or willful failure to obey a subpoena, the Monitor may seek to:

(i) impose discipline upon the person in accordance with the Consent Decree; and

(ii) seek an order from the Court requiring the person to testify or to produce documentary or other evidence.[4]

Consent Decree at 17 (¶ 39).

Evidence and Document Production: All evidence shall be taken in the presence of the Adjudications Officer and all of The Parties, except where any of The Parties is absent, in default, or has waived the right to be present.

The Monitor or Adjudications Officer may require any component of the UAW, or its constituent entities, or any officer, agent, representative, member or employee of the UAW or any of its constituent entities to produce any book, paper, document, record or other tangible object for use in any hearing initiated by the Monitor or conducted by the Adjudications Officer. Consent Decree at 16 (¶ 37).

Any willful failure by the UAW or its affiliated entities to comply with any such request may be used by the Adjudications Officer to determine whether such entity should be subject to the imposition of discipline. Consent Decree at 16-17 (¶ 37).

The Parties may offer such evidence as is relevant and material to the Monitor’s charges, and shall produce such evidence as the Adjudications Officer may deem necessary to an understanding and determination of the dispute. The Adjudications Officer shall determine the admissibility, relevance, and materiality of the evidence offered and may exclude evidence deemed by the Adjudications Officer to be cumulative or irrelevant. Conformity to legal rules of evidence shall not be necessary. Id.

All evidence that is not filed with the Adjudications Officer at the hearing, but arranged at the hearing for or subsequently by agreement of The Parties to be submitted, shall be transmitted to the Adjudications Officer. All parties shall be afforded the opportunity to examine such documents before transmission to the Adjudications Officer.

Documents shall be filed by electronic mail, regular mail, or overnight delivery, and will be deemed timely if postmarked or otherwise transmitted to the Adjudications Officer at UAWAdjudications@katten.com on or before the due date. If filing by mail or overnight delivery, documents should be addressed to:

                                                Gil Soffer, Adjudications Officer
                                                525 W. Monroe
                                                Chicago, IL 60661

Testimony Under Oath: All testimony and other evidence shall be received in any disciplinary action brought by the Monitor under oath and shall be subject to the penalties of perjury to the same extent as if such evidence had been submitted directly to the Court. Consent Decree at 17-18 (¶ 40); 18 U.S.C. § 1621.

Refusal to Testify: If any person who is the subject of a disciplinary charge refuses to testify or to provide evidence at a hearing initiated by the Monitor under the Consent Decree on the basis of his or her privilege against self-incrimination:

(i) the Adjudications Officer may take an adverse inference from that assertion of the Fifth Amendment, consistent with federal law; or

(ii) the Monitor may seek an order from the Court requiring the person to testify or to produce documentary or other evidence if the assertion of the Fifth Amendment privilege is not legally justified.

Failure to testify or provide evidence in the absence of a valid claim of attorney-client or other legally valid privilege may be the basis for discipline. The Monitor may request that the Court find that any person who improperly refuses to testify or provide evidence at any hearing resulting from charges brought by the Monitor under the terms of the Consent Decree in contempt of court. Consent Decree at 18 (¶ 41).

Evidence by Affidavit: The Adjudications Officer may receive and consider the evidence of a witness by affidavit, giving it such weight as the Adjudications Officer deems proper after consideration of any objection made to its admission.

Confidential Sources: The Adjudications Officer may receive and consider, along with other evidence, the sworn testimony of any law enforcement officer regarding information given to a law enforcement agency by a reliable confidential source of information. Consent Decree at 18 (¶ 41).

The law enforcement officer shall not be required to reveal the identity of the confidential source of information, but the Adjudications Officer can choose what weight, if any, to give such testimony. Consent Decree at 18 (¶ 41).

In the event of an appeal to the Court of a decision of an Officer based, in part, on information supplied by a reliable confidential source of information, the Court shall make a determination of the fairness of the process and whether the information should remain confidential if it is to be continued to be relied upon. Consent Decree at 18 (¶ 41).

Closing the Hearing: The Adjudications Officer shall inquire of all parties whether they have any further proof to offer or witnesses to be heard. Upon receiving negative replies or if satisfied that the record is complete, the Adjudications Officer shall declare the hearing closed.

If briefs or other documents are to be filed, the hearing shall be declared closed as of the final date set by the Adjudications Officer for the receipt of briefs. If additional documents or evidence is to be filed after the hearing, the date of their receipt shall be no later than the date for filing the briefs, unless such date is extended by mutual agreement of The Parties and/or order of the Adjudications Officer.

III.       Penalties

A. Form of Penalties

The Adjudications Officer shall render a final decision regarding whether discipline is appropriate and, if so, impose the particular discipline. Consent Decree at 16 (¶ 36(f)).

The Adjudications Officer shall have the right and authority of the UAW International President and IEB to impose discipline up to and including expulsion from membership in the UAW and its constituent entities when a member has engaged in actions or inactions that (i) violate the injunctive prohibitions of the Consent decree, (ii) violate any criminal law involving the establishment or the operation of a labor organization, employee benefit plan, labor management cooperation committee, or voluntary employee beneficiary association, or (iii) further the direct or indirect influence of any barred person, or the threat of such influence now or in the future. Consent Decree at 14-15 (¶ 34). The Adjudications Officer is authorized to exercise all of the disciplinary rights and powers of the UAW’s International President, IEB, and the UAW Public Review Board for violations of the UAW’s Constitution and Ethical Practices Code. Consent Decree at 15 (¶ 35).

The Adjudications Officer shall have the authority to discipline, suspend, remove, or expel from membership any officer, member, or employee of the UAW or any of its constituent entities following the findings pursuant to the processes set forth in the Consent Decree. Consent Decree at 18-19 (¶ 42).

The Adjudications Officer may impose discipline including a period of debarment, up to and including a lifetime debarment from office, employment and membership in the UAW or its constituent entities following the Adjudications Officer’s adverse finding in a disciplinary proceeding as described in the Consent Decree. Consent Decree at 19 (¶ 43).

Any discipline imposed or other decision of the Adjudications Officer pursuant to the terms of the Consent Decree shall be final and binding on The Parties subject to Court review as provided in the Consent Decree. Consent Decree at 19 (¶ 44).

B. Timing of Issuing the Ruling and Penalties

The ruling and issuance of any penalties shall be rendered promptly by the Adjudications Officer and, unless otherwise agreed by The Parties or specified by law, no later than thirty days from the date of closing the hearing or, if oral hearings have been waived, the ruling and issuance of any penalties shall be rendered no later than thirty days from the date of transmitting the final statements and proofs to the Adjudications Officer.

The time limit within which the Adjudications Officer is required to make a ruling shall commence to run, in the absence of another agreement by The Parties, upon the closing of the hearing.

IV.       Appeal and Court Review

A person disciplined by the Adjudications Officer may obtain review of the Adjudications Officer’s decision regarding such discipline by filing a written appeal of such decision with the Court within fourteen days of such decision by the Adjudications Officer. The Adjudications Officer’s decision, all papers or other material relied upon by the Adjudications Officer and the papers filed or issued pursuant to this appeal procedure exclusively shall constitute the record for review. The Adjudications Officer’s decisions shall be reviewed by the Court under the substantial evidence standard set forth in 5 U.S.C. § 706(2)(E). Consent Decree at 22 (¶ 51).

The UAW or the United States may seek the Court’s review of the Adjudications Officer’s decision not to impose discipline. Consent Decree at 22 (¶ 51).

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