The Next Step
As a result of the official "post" on the UTU’s web site announcing that:
"The International Executive Board found Boyd guilty of violating the UTU Constitution and ordered he be "suspended" from office "without wages" and "for the duration of your current term."
It is obvious that the Executive Board found Boyd guilty of not performing the duties and responsibilities of his office.
It is also clear that the Board intended to fix a penalty that would fall into one of the three categories (censure, suspension, or removal from office) provided for in Article 25. The penalty of "suspension" fell into that category, with the stipulation "without wages" would appear to properly apply as well.
However, the Board’s decision that Boyd’s discipline:
"will automatically be revoked" and that Boyd would be reinstated with all lost wages if he is found not guilty of federal criminal charges currently pending in Houston, Texas, or if the charges are dismissed…"
is completely out of line and, in my opinion, violates the language and the spirit of Article 25.
I received a number of phone calls and e-mails from members with concerns that the decision to defer final disposition of the Article 16 violation to a jury in Houston, was improper, and asked me to address the matter.
Keep in mind that I have not yet received an advance copy of the Executive Board’s decision as did the International, and I am working off the assumption that the report on the official web site for the UTU is correctly stated, if so, this is how I see the matter.
Article 16 is the authority provided by the membership to allow one individual to control the UTU. Article 16 is also the portal to the legal duties and responsibilities under the LMRDA. Article 25 requires the Executive Board to conduct trails when a violation of Article 16 is alleged by a member after supporting evidence has been presented. Article 25 allows the President to defend himself against the charges at the hearing. Article 25 requires the assessment of a penalty when the President violates Article 16. After the penalty is assessed, Article 25 provides closure to the trial proceedings and the penalty is final and binding unless it is reversed upon appeal as provided in Article 26. Article 26 provides the President the opportunity to appeal the trail board’s penalty at the next UTU convention. Article 26 is the only review authority available to an international officer to reverse discipline.
Article 25 provides for two bites of the apple for the President. First, to defend himself at the trial, and second to appeal at the convention, both, which are internal union procedures.
I was always told that when someone uses the words like "but" or "however" that everything stated before that means nothing. For example, the Executive Board found Boyd guilty and suspended him without pay, but if the jury in Houston finds him "not guilty" then the members will be bound by the jury’s decision and not the union’s decision, and Boyd will be reinstated with back pay. Or if the jury finds him "guilty" then he will remain the President and his suspension, without pay, will continue for the remainder of his term in office.
I especially have a problem with the language "…if the jury finds him "guilty" then he will remain in office the President and his suspension, without pay, will continue for the remainder of his term in office…"
If Boyd is found "guilty" and appeals the jury’s verdict, he will be removed from the duties of his office by law, however, he will continue to be the President while the verdict is under appeal. If he is later found "not guilty" based on some legal technicality, he will be restored to office with back pay, as a matter of law. http://www4.law.cornell.edu/uscode/29/504.html TITLE 29 > CHAPTER 11 > SUBCHAPTER VI > Sec. 504.
Whenever any person -
(1) ...has been barred from office or other position in a labor organization as a result of a conviction, and
(2) has filed an appeal of that conviction,
any salary which would be otherwise due such person by virtue of such office or position, shall be placed in escrow by the individual employer or organization responsible for payment of such salary. Payment of such salary into escrow shall continue for the duration of the appeal or for the period of time during which such salary would be otherwise due, whichever period is shorter. Upon the final reversal of such person's conviction on appeal, the amounts in escrow shall be paid to such person. Upon the final sustaining of such person's conviction on appeal, the amounts in escrow shall be returned to the individual employer or organization responsible for payments of those amounts. Upon final reversal of such person's conviction, such person shall no longer be barred by this statute from assuming any position from which such person was previously barred.
Can you see where I'm coming from? If the law states that Boyd is entitled to back pay upon final reversal of the conviction, and the Executive Board based their penalty decision on the outcome of the trial in Houston, can the UTU really withhold Boyd’s pay after the "guilty" verdict in Houston is appealed through the federal court system? One might believe that the Executive Board’s penalty decision to suspend Boyd "without pay" for the remainder of his term if the jury in Houston finds him "guilty", but the law appears to grant back pay upon reversal.
The Board’s decision would have been more appropriately stated: "Boyd is suspended from office, without pay, for thirty days." The jury in Houston will determine what happens from that point. If Boyd is found "guilty" the law protects his salary while his case is under appeal. If the jury finds Boyd "not guilty" not a problem.
What is look like to me, and I'm a nut so pardon me for a minute, the Executive Board found Boyd guilty, but is going to allow a jury in Houston determine his punishment. (Remember everything before the "but")
If the published decision of the Executive Board is not worded as the UTU web site would make one believe, then I can only apologize and redraft this editorial. For the meantime, what I am having trouble understanding is:
1) Where is the final and binding decision of the union for the Article 16 violation? I can understand the finding of "guilt" and a resulting penalty with a suspension of a fixed time period, however, I have a hard time understanding why the union's "jury of peers" and their finding of "guilt" can now be subject to reversal by a group of people in Houston who have no idea of what Article 16 is, nor the standard by which the union judges corrupt union officers. This authority was granted to the union by law, not the courts.
2) Will the jury in Houston be told that the Executive Board found the President guilty of Article 16 and the standard used to determine that guilt? No.
3) Will the U.S. Attorney be prosecuting Boyd for violating Article 16? No
4) Will the jury in Houston be told that in addition to the unrelated criminal charges being addressed in the court, they will also be required to judge Boyd based on the union's internal policies. No
5) If the jury in Houston finds Boyd "not guilty" of the criminal offense, does that mean he did not violate Article 16? No, what it means is that the U.S. Attorney failed to meet the government’s burden of proving "beyond a reasonable doubt" that Boyd was guilty.
6) Did the Executive Board find that Boyd was guilty based on the standard of "some evidence" as established by the U.S. Supreme Court for internal union trials? Yes Boilermakers v. Hardeman, 401 U.S. 233 (1971).
7) Did the Executive Board find Boyd guilty of violating Article 16? Yes
8) Is Boyd going to get another bite of the apple in Houston? Yes
9) Is it possible that Boyd did all of the things the indictment said he did, and could be found "not guilty" and be returned to office with pay and no penalty for violating Article 16? Yes
10) Is the Executive Board’s decision to allow another tribunal (that does not have standing in this internal matter) to assess the penalty in keeping with Article 25 of the UTU Constitution? That remains to be seen.
So, where do we go from here? First we need to understand where we’ve been so we don't get lost. Fact: The determination was made that Boyd violated his fiduciary duties in that he did not discharge his financial duties faithfully and efficiently. Fact: Irregularity and neglect was found in the indictment and supported by Dennis’s plea agreement. Fact: Trustee Johnson failed to act on the violation and bring charges against Boyd.
Johnson declined to bring charges against Boyd based on advice of an attorney hired by Boyd. The Board of Directors granted approval for Johnson to violate the exact requirements of Article 22, by approving the advice given to Johnson by the attorney hired by Boyd. A member brought charges against Boyd and Johnson.
Fact: The Executive Board found Boyd guilty based on the information in the indictment and Dennis’s plea agreement, which was the same information the attorney hired by Boyd and the Board of Directors advised Johnson not to bring charges against Boyd.
Problem: The discipline assigned to Boyd by the Executive Board may be reversed contingent upon the outcome criminal charges dealing with unrelated matters, such as Boyd’s involvement with taking money from attorneys in return for designations on the UTU’s FELA approved attorney list, three counts of union embezzlement, and two counts of witness tampering.
Let me explain it another way. Paul likes to use railroad terms, so
Case #1 - A railroad employee is involved in using drugs off-duty and is involved in an accident. He is arrested, indicted and awaiting trial. The railroad finds out about incident, investigates the matter, dismisses the employee. The carrier will await the outcome of the trail before final disposition of the case is resolved in court. In this matter the verdict is relevant to the charges brought against the employee by the railroad.
Case #2 – A railroad employee is on-duty driving a company vehicle and has an accident and is caught using drugs. He is arrested, indicted and awaiting trial. The railroad investigates the matter, a drug test is introduced as evidence, and the railroad dismisses the employee for violation of Rule G based on the positive results of the drug test. The carrier’s rule was violated and the outcome of the criminal matter is irrelevant to the discipline issued by the railroad for a violation of Rule G.
What we have in this matter is the equalivent of the facts in Case#2.
So now a decision must be made. Fact: The union’s rule (Article 16) has been violated. Should the fiduciary officers of the UTU have moved to protect the best interests of the members by assessing a final and binding decision which would have required Boyd to appeal internally, or should the jury in Houston be allowed to replace the responsibility of the Executive Board, and take away the authority of the members to hear his appeal at the convention?
Article 75, II (b) provides for the following:
"Actions or decisions of Trial Boards may be appealed to the International President, provided such appeal is filed with the General Secretary and Treasurer within ninety (90) days from the date on which the action or decision occurred. The General Secretary and Treasurer shall docket the appeal and present all papers relating to the appeal to the International
President."
"The International President will promptly render a decision on the appeal which shall be final and binding on all parties unless appealed to and reversed or modified by the Board of Directors. Appeals to the Board of Directors must be filed with the General Secretary and Treasurer within ninety (90) days from the date of the decision by the International President."
What’s wrong with our Constitution?
The Constitution does not contemplate that the International President would be found guilty of violating Article 16 in a union tribunal.
Again, let look back and see what has happened. Fact: When the Executive Board proceeded with the charges, Boyd requested that Thompson represent him at the trial. Logical Assumption: Both Boyd and Thompson knew or should have know that Boyd might have actually been found guilty. Fact: If found guilty, Thompson would be elevated to the position of President. Fact: Disregarding the conflict of interest, Thompson represented Boyd at the trial. Boyd was found guilty. Fact: Thompson was elevated to President.
In order to proceed with an appeal, an appeal of the trial board’s decision must be made to the President. Just so happens, the current President is the same individual that has already taken the position that Boyd was not guilty. Now, Thompson, who knew or should have anticipated an appeal, must rule on the validity of the appeal submitted under Article 75. A conflict of interest that can only be resolved by the Board of Directors.
While all of this is taking place, the UTU still has an indicted President who has been found guilty by the Executive Board temporarily under suspension awaiting the outcome of criminal charges that are unrelated to the union. The members now have to wait until the trial in Houston is over, and any appeal is completed before the Article 16 penalty can be validated. In the meantime UTU members still don’t where they stand with a President who has violated their trust and confidence and has yet to be officially disciplined, and may possibly never be disciplined for his violation of the Constitution. From now, until who knows when, the UTU remains under a dark cloud of suspicion.
The fact is, if unchallenged, the Executive Board’s decision could set bad precedent for future trials. To find one guilty, and not access a definitive final and binding decision is not good business.
What if this matter had been discovered internally and never found it’s way to the courts? What would the penalty have been for the Article 16 violation? Whatever the penalty decision agreed upon by the Board under those circumstances, should be the same penalty now.
In the event the trial in Houston develops evidence of wrongdoing on the part of other International officers, and criminal indictments are issued in other federal or state jurisdictions against other individuals. How will the Executive Board handle the penalty accessed to the those found guilty, await the outcome of there trials as well?
The old saying "justice delayed is justice denied" properly applies in the decision reached by the Executive Board.
So, where do we go from here? I have no problem with appealing the Executive Board’s penalty decision to the President/Board of Directors. The trial will be over before the Board of Directors could rule on the appeal, but the penalty concept created by the Executive Board should not be allowed to stand, as it circumvents the due process of internal justice for both the members and the accused.
Should the Executive Board’s decision be appealed? I’m leaving this up to you, the members of the UTU that visit this site, and feel the union is worth saving. If the appeal is submitted, it will not be by me as an individual – I will require a minimum of twenty-five individual members or 10 locals to co-sponsor the appeal. If your decision is to proceed, I will require signatures on individual appeals or action taken by locals.
If I am the only one that will stand against the International, then we all might as well remain complacent and resolve ourselves to sit back and do nothing. It’s time to stand-up and be counted, or forever hold your peace. One monkey can show his ass, but he can make no show.
Think about it, talk to others, formulate your position based on common sense, the decision rendered by the Executive Board, and the Constitution – not what I say. Bring this up at your next meeting, debate the issue then take a vote and get involved with your future. To print the appeal letter, click on "File" on the top left corner of screen, select "Print.." Hopefully the letter will print on one page.
Click here to print an appeal letter as an individual member.
Click here to print an appeal as a local unit.
Print some of the individual appeals out and pass them around the property. Make sure a phone number is somewhere on the appeal just in case I need to get in touch with someone. After the appeals have been signed, send them to me at the following address:
Roger D. Griffeth, 11 Danby Court, Cartesville, GA - 30121
My phone number is 770-383-9503 if you have any questions.
8:19:14 PM 
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