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U.S. v. INTERNATIONAL BROTH.

May 9, 1991

UNITED STATES OF AMERICA, PLAINTIFF,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, ET AL., DEFENDANTS. IN RE APPLICATION XXII OF THE INDEPENDENT ADMINISTRATOR.



The opinion of the court was delivered by: Edelstein, District Judge:

MEMORANDUM & ORDER

This order emanates from the voluntary settlement in the action commenced by plaintiff United States of America (the "Government") against defendants International Brotherhood of Teamsters (the "IBT") and the IBT's General Executive Board (the "GEB") embodied in the voluntary consent order entered March 14, 1989 (the "Consent Decree"). The remedial provisions in the Consent Decree provided for three Court-appointed officials, the Independent Administrator to oversee the remedial provisions, the Investigations Officer to bring charges against corrupt IBT members, and the Election Officer to oversee the electoral process leading up to and including the 1991 election for International Officers (collectively, the "Court Officers"). The goal of the Consent Decree is to rid the IBT of the hideous influence of organized crime.

Application XXII presents for this Court's review the opinion and supplemental opinion of the Independent Administrator deciding the disciplinary charges against Theodore R. Cozza. Cozza, a defendant in the underlying litigation and a signatory to the Consent Decree, is a member of the GEB as the Ninth Vice President; the Secretary-Treasurer of the Eastern Conference of Teamsters Policy Committee; the President of Local 211 in Pittsburgh, Pennsylvania, and chairman and trustee of the funds operated by IBT Local 211, the Employee Welfare Fund, and the Prepaid Legal Service Fund.

Cozza was charged by the Investigations Officer with violating Article II, § 2(a) of the IBT constitution. Article II, § 2(a) is the IBT membership oath, which provides in pertinent part that every IBT member shall "conduct himself or herself in a manner so as not to bring reproach upon the Union . . ." The charge alleged that Cozza had conducted himself in a manner to bring reproach upon the IBT by knowingly associating with members of La Cosa Nostra from January 1, 1970 to the present. The Investigations Officer charged Cozza with knowingly associating with six members of the Pittsburgh area La Cosa Nostra.

The Independent Administrator determined that the Investigations Officer had met his burden and demonstrated just cause that the charge had been proved. The Independent Administrator determined that the following five of those individuals named by the Investigations Officer, John S. LaRocca, Gabriel "Kelly" Mannerino, Michael Genovese, Joseph "JoJo" Pecora, and Joseph Sica, were, members of La Cosa Nostra (the "five individuals"). The Independent Administrator further determined that Cozza had knowingly associated with those five individuals. The proof against Cozza is fully set out in the Independent Administrator's opinion, attached to this memorandum as the Appendix, and need not be repeated here. (Appendix, at 806-13). The Independent Administrator imposed the penalty of permanent debarment from the IBT. Further, the Independent Administrator determined that the IBT or any affiliated entity should make no further payments to any of Cozza's five pension plans, or his three health and welfare benefit plans.

In the hearing before the Independent Administrator and in his papers before this Court, Cozza admits that he associated with the five individuals. Rather, in his voluminous appeal of the Independent Administrator's opinions, Cozza argues (i) he was denied pre-hearing discovery, (ii) the charge was unspecific, (iii) the charge violates his first and fifth amendment rights, (iv) he was unaware that those five individuals were members of La Cosa Nostra, and (v) the membership of Local 211 knew generally of his association with these individuals. Considering the unrefuted proof before the Independent Administrator, Cozza's position as a leader of the IBT, and the nature of the charges against him, these arguments are disingenuous, contrary to established law, and totally without merit.

I. Standard Of Review

With respect to the disciplinary provisions of the Consent Decree, the Court of Appeals and this Court have now determined that the Investigations Officer and Independent Administrator are stand-ins for the General President and GEB, who properly delegated their disciplinary power to those Court Officers pursuant to Article XXVI, section 2 of the IBT Constitution. United States v. International Brotherhood of Teamsters, 931 F.2d 177, 184 (2d Cir. 1991); United States v. International Brotherhood of Teamsters, 905 F.2d 610, 622 (2nd Cir. 1990); May 6, 1991 Opinion & Order, 764 F. Supp. 787, 789 (S.D.N Y 1991); December 27, 1990 Opinion & Order, 754 F. Supp. 333, 337 (S.D.N.Y. 1990); September 18, 1990 Opinion & Order, 745 F. Supp. 189, 191-92 (S.D.N.Y. 1990); August 27, 1990 Opinion & Order, 745 F. Supp. 908, 911 (S.D.N.Y. 1990); March 13, 1990 Opinion & Order, 743 F. Supp. 155, 159-60, aff'd 905 F.2d 610, 622 (2nd Cir. 1990); January 17, 1990 Opinion & Order, 728 F. Supp. 1032, 1048-57, aff'd 907 F.2d 277 (2d Cir. 1990); November 2, 1989 Memorandum & Order, 725 F. Supp. 162, 169 (S.D.N.Y. 1989); Joint Council 73, et al. v. Carberry, et al., 741 F. Supp. 491, 493 (S.D.N.Y. 1990); Local 27 v. Carberry, et al., July 20, 1990 at 3-4, 1990 WL 108348 (S.D.N.Y. 1990). Hearings before the Independent Administrator are conducted pursuant to the same standards applicable to labor arbitration hearings. Consent Decree, ¶ F.12.(A)(ii)(e).

Paragraph F.12.(C) of the Consent Decree mandates that the Independent Administrator must decide disciplinary hearings using a "just cause" standard. Consent Decree at 9. This Court should overturn the findings of the Independent Administrator when it finds that they are, on the basis of all the evidence, "arbitrary or capricious." This Court and the Court of Appeals have interpreted ¶ K.16 to mean that decisions of the Independent Administrator "are entitled to great deference." 905 F.2d at 616 (2d Cir. 1990) aff'g March 13, 1990 Opinion and Order, 743 F. Supp. 155 (S.D.N.Y. 1990).

Since Cozza does not demonstrate that any of the Independent Administrator's determinations are arbitrary or capricious, his opinion and supplemental opinion must be affirmed in all respects.

II. Discussion

A. Discovery

Cozza's argument that the Independent Administrator violated the Consent Decree by refusing to grant him pre-hearing discovery is meritless. Paragraph F.12.(C) of the Consent Decree, which governs disciplinary hearings, does not give an IBT member against whom disciplinary charges have been filed any right of pre-hearing discovery. Cozza was not prejudiced by the conduct of the hearing. After the completion of the Investigation Officer's case against Cozza, he was granted a 19 day recess to consider all of the evidence and present his defense. Cozza claim that he was denied an opportunity to review the proof against him before putting on his defense absolutely belies all the facts before the Independent Administrator and this Court.

The Court finds his argument facetious, empty of any merit whatsoever, and is rejected.

B. Specificity of Charges

Cozza argues the charge against him was not adequately specific. A review of prior decisions and the charge demonstrates this is not so. The charge against Cozza listed the individuals that he was alleged to have associated with, and the time span for those associations. This Court has upheld virtually identical charges filed by the Investigations Officer against IBT members. August 27, 1990 Opinion & Order, 745 F. Supp. 908 (S.D.N.Y. 1990); September 18, 1990 Opinion & Order, 745 F. Supp. 189 (S.D.N.Y. 1990). The charge against Cozza was a plain, concise statement of the essential facts constituting the offense charged.

Cozza's argument is rejected.

C. Constitutional Challenges

Cozza asserts that to be disciplined for associating with known organized crime figures violates his first amendment freedom of association rights. This Court has specifically rejected that argument. August 27, 1990 Opinion & Order, supra, 745 F. Supp. at 913. This Court held that:

  The Independent Administrator has determined that
  the IBT has the right to discipline members for
  knowingly associating with organized crime
  figures since it has a compelling institutional
  interest in ridding itself of corruption. The
  IBT's sanctioning itself in order to rid itself
  of corrupt influence conforms with § 101(a)(2) of
  the LMRDA, and infringes no First Amendment rights.

Id. Cozza does even not attempt to address this holding. Further, Cozza is being disciplined by the Independent Administrator as a stand in for the IBT General President. He does not establish the state action necessary for a constitutional claim.

Cozza's fifth amendment due process argument ignores established precedent and is fanciful. Cozza argues that current punishment for past conduct violates his rights. He claims he was never notified that associating with organized crime figures could subject him to discipline. That very same argument was previously raised and rejected by this Court in its August 27, 1990 Opinion and Order, supra, 745 F. Supp. at 913-14.

Relatedly, Cozza also argues that these charges are unfair. He contends that the Government assured him in negotiating the Consent Decree that the ¶ E.10 injunction against associating with organized crime figures would apply to prospective conduct. This argument is irrelevant, since Cozza was charged with violating his IBT oath of office, not ¶ E.10 of the Consent Decree.

This Court has specifically held that IBT members may be disciplined for associating with organized crime figures which occurred prior to the signing of the Consent Decree. In rejecting an identical challenge, this Court held "[by such conduct they] ignore[ ] their avowed duties as IBT officers to remain free of corrupt influence." Id. at 914. Cozza, as an International Vice President and member of the GEB, was under the highest duty to remain free of any taint or appearance of corruption. This Court has previously held that during the time in question Cozza clearly knew or should have known that close contact with organized crime figures was in contravention of his duty to the membership as a union officer. Id. Paragraph E.10 of the Consent Decree is not relevant to these charges.

Cozza's arguments are without merit.

D. Cozza's Knowledge

Cozza argues that he did not knowingly associate with organized crime figures because he was unaware that the five individuals were members of the Pittsburgh La Cosa Nostra. This argument does violence to the truth and offends reason. Counsel for Cozza admitted that "Cozza knew of the allegations against these individuals, as did many members of Cozza's local union and the public at large," but argues that Cozza did not have conclusive knowledge of their criminal conduct.

The Independent Administrator considered Cozza's admitted personal contact with these five individuals, including visiting with LaRocca on almost a daily basis, and concluded "it is inconceivable that he [Cozza] was unaware that they were infamous members of Pittsburgh's underworld . . . I conclude that such knowledge may be inferred from the duration and quality of the association." Appendix at 811-12.

E. The Section 3(d) Defense

Finally, Cozza argues that the Independent Administrator erred by rejecting his contention that Article II, § 3(d) ("§ 3(d)") of the IBT constitution, reproduced below, bars this charge.*fn1 This reasoning is baseless.

Judicial interpretation of § 3(d) has established that to invoke this defense, a member must demonstrate "that the membership . . . had conclusive knowledge that the defendants were actually guilty of the conduct when they were" elected to their current term of office. March 13, 1990 Opinion & Order, 743 F. Supp. 155, 166 (S.D.N.Y.) aff'd 905 F.2d 610 (2d Cir. 1990). Section 3(d) cannot be used when the charged member denies the conduct. Id.; November 2, 1989 Memorandum & Order, 725 F. Supp. 162, 165 (S.D.N.Y. 1989), aff'd 905 F.2d 610 (2d Cir. 1990).

Cozza is legally barred from invoking § 3(d). Cozza denies that he knowingly associated with organized crime figures: He still maintains that he did not know that the five individuals were members of La Cosa Nostra. Accordingly, Cozza cannot avail himself of the § 3(d) defense since, as the Independent Administrator found, "it would be impossible for the Local 211 rank and file to be generally aware that Cozza was `knowingly associating' with underworld figures, when Cozza himself denies that he knew of their underworld ties." Appendix at 813. As a result, the questionnaires Cozza presented to the Independent Administrator which purportedly demonstrated that the membership "knew generally" of his conduct is no more real than a mirage.

Nor should I overlook that Cozza has not even argued that the membership of the Eastern Conference of Teamsters, or the GEB as the representative of the entire IBT, knew generally of his conduct. Since he was an officer of both, he must demonstrate that all members of those bodies knew generally of his conduct to avail himself of the § 3(d) defense.

Cozza's argument is meritless and must be rejected.

III. Conclusion

IT IS HEREBY ORDERED that Cozza's objections to the opinion and supplemental opinion are hereby denied.

IT IS HEREBY ORDERED that the opinion and supplemental opinion of the Independent Administrator are affirmed in all respects.

IT IS FURTHER ORDERED that the stay on the penalties imposed by the Independent Administrator is dissolved, effective immediately.

So Ordered.

APPENDIX

     INVESTIGATIONS OFFICER, Claimant, v. THEODORE R. COZZA,
                           Respondent.

OPINION OF THE INDEPENDENT ADMINISTRATOR

A charge having been filed by the Investigations Officer, Charles M. Carberry, against Theodore R. Cozza ("Cozza"), a hearing was held on July 14 and August 2-3, 1990. Thereafter, I kept the record open until September 11, 1990, to permit Cozza's counsel to supplement the record. Cozza was represented throughout by Joseph J. Pass, Esq. Post-hearing submissions were received from Cozza and the Investigations Officer.

Cozza has been the President of Local 211 in Pittsburgh, Pennsylvania since 1950. He also serves as Chairman and Trustee for each of the funds operated by Local 211, including the Pension Fund, the Employee Welfare Fund, and the Prepaid Legal Service Fund. He is, as well, the Secretary-Treasurer of the Policy Committee of the Eastern Conference of Teamsters. Lastly, Cozza sits on the IBT General Executive Board as the Ninth Vice-President.

Cozza was named as a defendant in the Government's underlying civil RICO suit against the International Brotherhood of Teamsters ("IBT") (United States v. IBT, et al., 88 Civ. 4486 (DNE)); and he was also a signatory to the March 14, 1989, Consent Order that settled that suit.

I. The Charge

The Investigations Officer charges that Cozza has violated Article II, Section 2(a)[fn1a] of the IBT Constitution:

  By conducting [himself] in a manner to bring
  reproach upon the [IBT], to wit: By [his]
  knowingly associating from, at least, January 1,
  1970 to the present with members of organized
  crime families of La Cosa Nostra including John
  S. LaRocca, Gabriel "Kelly" Mannerino, Michael
  Genovese, Joseph "JoJo" Pecora, Antonio Ripepi
  and Joseph Sica.

II. Cozza's General Defenses

A.  The Objection To The Specificity Of The Charge And The
    Pre-Hearing Discovery Issue

Cozza challenges the charge filed by the Investigations Officer as falling short of the Consent Order's requirement of "written specific charges." Cozza also claims the charge is not specific enough under federal law. Cozza also takes exception to the fact that he was not supplied with pre-hearing discovery. Cozza Post-hearing Memorandum at pp. 47-57. Pre-hearing memoranda were submitted on this very issue. On November 30, 1989, I wrote to Cozza's counsel stating that, "given the nature of these charges, I hold that there is no right to pretrial discovery in this matter. Thus, your request for information from Mr. Carberry regarding the `specificity' of the charges against Cozza is denied."

In addition, Cozza made similar claims before the Honorable David N. Edelstein prior to the commencement of his hearing. Judge Edelstein rejected these claims, first at a pretrial conference on a complaint Cozza had filed against me (March 8, 1990), then again in rejecting Cozza's request for an injunction preventing his disciplinary hearing from going forward. In denying the injunction, Judge Edelstein specifically directed Cozza to bring to him any claims he might have after I issued my decision on the merits. Cozza v. Lacey, et al., 740 F. Supp. 285 (S.D.N.Y. 1990).[fn2a]

Moreover, it has been the Investigation Officer's practice to provide a respondent, prior to the commencement of a hearing, with the evidence that will be offered against him. This was done in this case. On or about July 10, 1990, the Investigations Officer began supplying Cozza with his evidence. The last of the evidence was supplied on July 13, 1990, the day before the hearing commenced. Thereafter the hearing did not reconvene for some 19 days. This gave Cozza's counsel ample time to review and understand the Investigations Officer's evidence.

In addition, the charge itself was specific. It named the six individuals with whom Cozza had allegedly associated. It stated the date the associations commenced. It also noted that Cozza's relationship with the named organized crime members was continuing to the day of the filing of the charge.

Still further, the prohibition against "knowingly associating" with organized crime figures is not vague. Cozza apparently understood the term when he signed the Consent Order which specifically enjoined him from "knowingly associating with any member or associate" of organized crime. Moreover, in my July 12, 1990, decision in the matter of Investigations Officer v. Senese, et al. aff'd, United States v. IBT, (Application XII), 745 F. Supp. 908 (S.D.N.Y. 1990), I clearly set forth the Investigations Officer's burden on such a charge. Id. at pp. 35-37.See also p. 812, infra. Cozza was quite familiar with that matter as he devoted four pages of his post-hearing submission in attempting to distinguish the Senese case. He also devoted an additional four pages attempting to distinguish another "knowingly associating" case decided by me, Investigations Officer v. Salerno, et al., Opinion of the Independent Administrator, August 20, 1990, aff'd, United States v. IBT (Application XIII), 745 F. Supp. 189 (S.D.N Y 1990).

Most significantly, Judge Edelstein has already found such charges to be specific and well within the requirements of the Labor Management Reporting And Disclosure Act (29 U.S.C. § 411), the IBT Constitution and the Consent Order. United States v. IBT, 743 F. Supp. 155 (S.D.N.Y.), aff'd, 905 F.2d 610 (2d Cir. 1990).

In sum, Cozza's claims of prejudice due to lack of specification and lack of pre-hearing discovery are without merit.

B. Cozza's Lack Of Notice Claim

Cozza argues that the charge must be dismissed because he was never put on notice that his actions would bring reproach upon the IBT. Cozza Post-hearing Memorandum at pp. 58-64. Cozza contends that until the Consent Order's permanent injunction against further association with La Cosa Nostra was entered, he lacked notice that he should not engage in such associations. This identical argument has already been rejected by me in my July 12, 1990, Opinion (pp. 11-13) in the Senese matter.

In advancing this argument Cozza adds a new twist. Cozza reviews the evolution of the IBT Constitution, arguing that "the conduct challenged herein was not subject to discipline in the 1970's, so that there was no notice to Cozza or other IBT members." Cozza Post-hearing Memorandum at p. 59. Cozza states that the conduct was "prohibited under the 1957 IBT Constitution, was removed in 1961, and did not reappear until the Consent Order's permanent injunction in 1989." Ibid. As stated by Cozza:

  Even more telling proof was the Government's
  civil RICO suit, brought in an attempt to correct
  the asserted failure of the IBT to enforce
  disciplinary measures in the past.
  [Ibid.]

Cozza also asserts, through the testimony of Robert Baptiste, Esq. (one of the attorneys who negotiated the Consent Order with the Government on behalf of several individual defendants) that in negotiating the injunctive provisions of the Consent Order regarding association with La Cosa Nostra "the parties understood it to be prospective." Id. at p. 60.

Cozza's reliance on the development of the IBT Constitution does not alter the fact that a union officer's association with organized crime figures on its face brings reproach upon his union, whether or not the IBT Constitution ...


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