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UNITED STATES v. INTERNATIONAL BHD. OF TEAMSTERS

January 17, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, et al., Defendants. IN RE: APPLICATION LXVI OF THE INDEPENDENT ADMINISTRATOR



The opinion of the court was delivered by: DAVID N. EDELSTEIN

 EDELSTEIN, District Judge:

 This opinion emanates from the voluntary settlement in the action commenced by the plaintiffs United States of America (the "Government") against the 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 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 through the election and prosecution provisions.

 This matter arises out of the refusal by the seven incumbent officers of Local 707 *fn1" to relinquish control of the Local Union to the newly elected officers voted into office by the Local Union membership in a court ordered rerun election. The incumbent officers refusal to relinquish control violates the IBT Constitution, the wishes of the Local Union membership as expressed in their vote, and the direction of the IBT General President. Given the urgency of this matter, the incumbent members of IBT Local 707 and their counsel were given until 12:00 noon on January 16, 1992 to file papers. The Government and the Local 707 Pride Coalition (the "Pride Coalition") were given until the close of business January 16, 1992 to submit reply papers.

 I. BACKGROUND2

 A. Knowing Association With A Member of La Cosa Nostra

 This matter stems from the Independent Administrator's November 18, 1991 decision in Application LX, in which he found that the Investigations Officer had proved charges that three former officers of Local 707, James Buckley, Dominick Milano and David Morris, among others, knowingly associated with a member of La Cosa Nostra, Nicholas Grancio. *fn3" As a penalty, the Independent Administrator permanently banned these three men from the IBT. While the Independent Administrator often stays the imposition of penalties pending review by this Court, the Independent Administrator did not do so in this case because Buckley, Milano, and Morris were running on an incumbent slate in the Local 707 officer election. *fn4" The Independent Administrator did not believe it was proper to allow persons permanently banned from the IBT to run in an IBT election. This Court affirmed the Independent Administrator's decision in a January 16, 1992 Memorandum & Order.

 B. The Rerun Election

 A problem arose, however, because the Local 707 election ballots, which listed the suspended officers as candidates, had already been mailed to the membership before the Independent Administrator issued his decision in Application LX. The ballots were scheduled to be counted on December 7, 1991 by the Honest Ballot Association (the "HBA"), an independent organization retained by Local 707 to conduct the election. On November 22, 1991, the IBT's General Counsel contacted the office of the Independent Administrator and reported that the IBT had received a number of inquiries regarding the impact of the Independent Administrator's decision in Application LX on the then pending Local 707 election. After consultation with the IBT's General Counsel's Office, the Independent Administrator issued a letter on November 25, 1991, which set forth a resolution of the situation. The Independent Administrator directed that: (1) the Local terminate the election process then underway; (2) a new nominations meeting be held within ten days for all Local 707 officer positions; (3) the respondents barred from the IBT in Application LX would not be eligible for nomination to any position; (4) nominated candidates seeking election to the positions to which they were originally nominated would be considered automatically nominated to those positions; and (5) nominated candidates who chose to run for a position other than the one to which they were originally nominated had to be nominated to run for such new position at the nominations meeting. Any objections to this plan had to be filed with this Court before the close of business on December 2, 1991.

 The Pride Coalition filed an objection to the plan, asking this Court to vacate the Independent Administrator's plan and to order the original election to proceed to its conclusion. Neither the incumbent officers of Local 707 nor any other party filed objections. By an Order dated December 4, 1991, this Court: (1) denied the objections of the Pride Coalition to the Independent Administrator's plan; (2) ordered that the procedure set forth in the Independent Administrator's November 25, 1991 letter be followed; (3) ordered that the new nominations meeting scheduled for December 5, 1991, go forward; (4) directed the Independent Administrator to take all steps that he deemed necessary to supervise the nomination process and election; and (5) directed the Independent Administrator to inform the membership of Local 707 of the events that precipitated the cancelation of the first election.

 This Court further ordered that:

 Without limiting the authority of the Independent Administrator, he shall be entitled: (1) to attend the nominations meeting or have one or more representatives attend in his place; (2) to make, or have his representatives make, whatever announcements he deems appropriate at the nominations meeting; (3) to distribute an informative notice to the Local 707 members along with the new ballots that will be distributed to them; and (4) to direct the IBT to take all necessary steps to assist him in performing his duties as defined in (1)-(3), supra, including, but not limited to, the appointment of an International Representative to monitor Local 707 pending the completion of the election.

 (December 4, 1991 Order at 5). In addition, this Court ordered that the ballots were to be received by the HBA no later than 9:00 a.m. on Wednesday, January 8, 1992, and tallied at 10:00 a.m. on January 8, 1992, at the offices of the HBA. Id.

 As ordered, the new nominations meeting took place on December 5, 1991. Two representatives of the Independent Administrator's office attended the meeting, as did Joseph Konowe, the IBT International Representative assigned to the matter by General President McCarthy. The Row A Slate nominated new candidates. The Pride Coalition Slate remained intact as provided for in this Court's December 4, 1991 order. Along with the new ballots, the Independent Administrator enclosed a notice, in both English and Spanish (attached to this Opinion & Order as Exhibit A), to members of Local 707 explaining why the election had to be rerun. At a meeting held at the offices of the HBA on December 12, 1991, a copy of the notice was reviewed and approved by both slates, the Executive Board's attorney, and Mr. Konowe.

 C. The Incumbents Refuse to Relinquish Control

 On Friday, January 10, 1992, and Saturday, January 11, 1992, Stuart Alderoty, an attorney in the Independent Administrator's office who works closely with the Independent Administrator in IBT matters, received telephone calls from Richard Gilberg and Earl R. Pfeffer, attorneys with the law firm of Cohen Weiss and Simon, who represent the Pride Coalition. Mr. Alderoty was informed that the Local 707 incumbent officers, all members of the Row A Slate, refused to relinquish control and devolve power of the Local to the newly elected Pride Coalition candidates.

 On January 9, 1992, Local 707 President-elect John O'Keefe sent a letter to General President McCarthy stating that the incumbent officers of the Local refused to turn over power. General President McCarthy sent a TITAN *fn5" message to the Local 707 Executive Board stating that the incumbents had no basis to continue holding office; he directed that the newly elected officers be installed. The incumbent officers sent a letter dated January 10, 1992, to Mr. Bernard Adelstein, Secretary Treasurer of Teamsters Joint Council 16, *fn6" which made a number of objections and unsubstantiated, outrageous statements about the Independent Administrator's conduct in connection with the Local 707 election.

 The incumbents' January 10, 1992 letter stated, "Independent Administrator Lacey has exceeded the scope of his lawful authority and breached his fiduciary duties to the members of the [IBT] and members of Local 707." The letter goes on to list a number of objections to the Independent Administrator's actions with respect to the election, including that: (1) he exceeded his authority and thereby interfered with and influenced the outcome of the election; (2) he breached his fiduciary duty by simultaneously representing the IBT and Yellow Freight Systems, Inc. ("Yellow Freight"); *fn7" (3) he acted in concert with his client, Yellow Freight, for the election of the Pride Coalition candidates; and (4) he interfered with the outcome of the election by placing an inflammatory and derogatory letter against the incumbents in the envelope containing the ballots. In addition, the incumbents sent a letter to Joint Council 16 on January 10, 1992 requesting a stay of the election.

 In response to the incumbents' refusal to relinquish authority, General President McCarthy sent a second TITAN message to the incumbent President of Local 707, which stated:

 Only the General President has the authority to stay or delay the installation of officers in any Local Union affiliate . . . . Assuming your request for a stay had been properly addressed to this office, I hereby advise you that it is denied. The practice of the International Union is that officers-elect should be installed regardless of any protest which may be pending with the Joint Council. The Joint Council is free to resolve the post-election protest in the ordinary course. However, the election is legally presumed valid in the interim and, accordingly, those elected are entitled to hold office.

 D. The HBA

 E. The Independent Administrator's Application

 On January 14, 1992, the Independent Administrator filed this Application, LXVI. The Independent Administrator states that "the incumbent Local 707 officers are retaining control of the Local in violation of the will of the rank-and-file as expressed in the recently completed election, the IBT's clear directives, and my mandate to supervise the election pursuant to the Court's December 4, 1991, Order." (Ind. Admin. Aff. at 14). In addition, the Independent Administrator states that objections in the incumbents' January 10, 1992, letter that pertain to the Independent Administrator are without merit. (Ind. Admin. Dec. at 8). The Independent Administrator therefore requested that this Court enter an order directing:

 (1) That the incumbent officers of IBT Local 707 immediately relinquish control of Local 707 to the newly elected officers of that Local, and that if the incumbent officials fail to relinquish control, that they personally be held jointly and severally liable in the amount of $ 10,000 per day, until they comply, which sum shall be paid to the Court;

 (2) That IBT Local 707 immediately remit payment to the Honest Ballot Association for services rendered in connection with the Honest Ballot Association's supervision of the Local 707 elections;

 (3) That upon payment of its outstanding invoice to Local 707, the Honest Ballot Association immediately certify the accuracy of the January 8, 1992, IBT Local 707 ballot count or immediately substantiate with the Court its reasons for not doing so;

 (4) That counsel for the Local 707 Executive Board, Vincent J. Beck, Esq., and James P. Hoffa, Esq., immediately substantiate, in writing, to the Court's satisfaction, or withdraw, in writing, the outrageous and libelous statements concerning the alleged breach of the undersigned's "fiduciary duty as an attorney and officer of the Court," contained in a January 10, 1992. letter signed by seven members of the incumbent Row A Slate;

 (5) That each member of the incumbent Row A Slate immediately substantiate, in writing, to the Court's satisfaction, or withdraw, in writing, the outrageous and libelous statements contained in the January 10, 1992, letter executed by each and every one of them;

 (6) That if Mr. Beck, Mr. Hoffa and the seven members of the incumbent Row A Slate do withdraw all of the outrageous and libelous statements contained in the January 10, 1992, letter, that they shall then, within 48 hours, cause a complete retraction and apology to the undersigned to be sent to all persons shown as copy addressees on the January 10 letter; and 24 hours thereafter to file with the Court a copy of said retraction and apology along with an affidavit that such retraction and apology had been mailed to said persons.

 (Ind. Admin. Aff. at 1). On January 16, 1992, this Court was informed that Local 707 paid the HBA, and that the HBA had certified the election. Accordingly, requests number two and three are moot.

 By letter to the Independent Administrator dated January 15, 1992, *fn8" James P. Hoffa, an attorney in Detroit who had been retained by the Local 707 Executive Board in connection with the election, stated that he did not authorize anyone to claim that the Independent Administrator breached a fiduciary duty, nor did he authorize sending internal Union charges to anyone outside the Union. Hoffa also proffered an apology by adding that he did not participate in making any outrageous statements regarding the Independent Administrator's conduct or character.

 On January 16, 1992, Alfred Gatti, one of the seven incumbent officers of Local 707, submitted an affidavit on behalf of the Local 707 incumbents, which raises several objections to the Independent Administrator's Application. They argue that this Court and the Independent Administrator lacked authority to intervene in the election under the Consent Decree and the Labor Management Reporting and Disclosure Act. In addition, Gatti's affidavit states:

 The allegations as to Judge Lacey's representation of Yellow Freight Systems, Inc. were made because input received from reliable sources. Little time was available to prepare the protest to Bernard Adelstein, as representative of the Joint Council. A decision was made to rely upon the information then available.

 To the extent Judge Lacey did not provide such representation, we do regret making this allegation. At the time, it did appear this statement was supported by credible evidence.

 (Gatti Aff. at 7). On January 17, 1992, this Court received a further submission signed by the seven incumbent officers of Local 707 stating that "Our information concerning Independent Administrator Lacey's law firm representing Yellow Freight Systems, Inc., which we believed to be accurate, was in fact, incorrect."

 II. DISCUSSION

 A. Failure to Relinquish Control of the Local

 Article XXII, § 4(c) of the IBT Constitution provides "the officers-elect [in a Local Union election] shall take office at the end of the term of the incumbent officers, regardless of the date of installation." Indeed, as General President McCarthy stated in his second TITAN message to the incumbent officers of Local 707, "the practice of the International Union is that officers-elect should be installed regardless of any protest which may be pending with the Joint Council . . . . The election is legally presumed valid in the interim and, accordingly, those elected are entitled to hold office." Ironically, the incumbents cite the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 401 et seq., as a basis for the failure to relinquish control of Local 707. The LMRDA provides that a "challenged election shall be presumed valid pending a final decision thereon . . . and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide." 29 U.S.C. § 482(b). Accordingly, as the Independent Administrator stated, and as mandated by the IBT Constitution, the direction of the IBT's General President, and labor law, the newly elected officers of Local 707 were entitled to take office at the moment the vote count revealed that they had won the election.

 It is time for the seven incumbent officers of Local 707, Mr. Beck, and Mr. Hoffa to realize that Local 707 is not their personal fief. Put colloquially, the incumbents are not children and Local 707 is not a "ball" that they can take home when they do not like how others are playing. Holding union office is a serious responsibility; part of this responsibility is ensuring the orderly and lawful transfer of power. By refusing to leave office, the incumbents have violated the IBT Constitution, which they swore to uphold, *fn9" and have defied the wishes of the Local Union's membership as expressed in the election ousting them from office. Accordingly, the incumbent officers of Local 707 are ordered to relinquish control of the Local Union immediately -- no later that 5:30 p.m. January 17, 1992.

 B. The Power and Jurisdiction to Order a Rerun Election

 1. Power to Order A Rerun Election

 The Consent Decree gives the Independent Administrator the same rights and powers as the IBT General President to discharge duties that relate to disciplining corrupt or dishonest officers, and instituting trusteeships. Consent Decree, para. F.12.(A). The IBT General President has the power "to render judgment in accordance with the facts and circumstances presented to him" when disciplinary charges against Local Union officers "involve or relate to a situation imminently dangerous to the welfare of a Local Union." IBT Constitution, XIX, § 10(a); see IBT Constitution, XIX, § 9(a). The IBT Constitution's disciplinary provisions are broad and comfortably permit ordering a rerun election when contemporaneous disciplinary actions would otherwise deprive the membership of a meaningful choice of candidates.

 Moreover, in order to "restore democratic procedures" to Local 707, the Independent Administrator could have placed the Local in temporary trusteeship. See IBT Constitution, Article VI, Section 5(a); Consent Decree, para. F.12.(A) at pp. 8-9. Surely, in order to achieve the same objective, the Independent Administrator had the power to take the less drastic measure of requiring a new election. Indeed, this Court noted as much in its December 4, 1991 order, which provided that "the Court and the Independent Administrator are empowered by the Consent Decree to take all steps reasonably necessary to ensure a meaningful vote by the ...


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