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UNITED STATES v. INTERNATIONAL BHD. OF TEAMSTERS

August 19, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, THE COMMISSION OF LA COSA NOSTRA, ANTHONY SALERNO, a/k/a "Fat Tony," MATTHEW IANNIELLO, a/k/a "Matty the Horse," ANTHONY PROVENZANO, a/k/a "Tony Pro," NUNZIO PROVENZANO, a/k/a "Nunzi Pro," ANTHONY CORALLO, a/k/a "Tony Ducks," SALVATORE SANTORO, a/k/a "Tom Mix," CHRISTOPHER FURNARI, SR., a/k/a "Christie Tick," FRANK MANZO, CARMINE PERSICO, a/k/a "Junior," "The Snake," GENNARO LANGELLA, a/k/a "Gerry Lang," PHILIP RASTELLI, a/k/a "Rusty," NICHOLAS MARANGELLO, a/k/a "Nicky Glasses," JOSEPH MASSINO, a/k/a "Joey Messina," ANTHONY FICAROTTA, a/k/a "Figgy," EUGENE BOFFA, SR., FRANCIS SHEERAN, MILTON ROCKMAN, a/k/a "Maishe," JOHN TRONOLONE, a/k/a "Peanuts," JOSEPH JOHN AIUPPA, a/k/a "Joey O'Brien," "Joe Doves," "Joey Aiuppa," JOHN PHILLIP CERONE, a/k/a "Jackie the Lackie," "Jackie Cerone," JOSEPH LOMBARDO, a/k/a "Joey the Clown," ANGELO LAPIETRA, a/k/a "The Nutcracker," FRANK BALISTRIERI, a/k/a "Mr. B," CARL ANGELO DELUNA, a/k/a "Toughy," CARL CIVELLA, a/k/a "Corky," ANTHONY THOMAS CIVELLA, a/k/a "Tony Ripe," GENERAL EXECUTIVE BOARD, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, JACKIE PRESSER, General President, WELDON MATHIS, General Secretary-Treasurer, JOSEPH TREROTOLA, a/k/a "Joe T," First Vice President, ROBERT HOLMES, SR., Second Vice President, WILLIAM J. McCARTHY, Third Vice President, JOSEPH W. MORGAN, Fourth Vice President, EDWARD M. LAWSON, Fifth Vice President, ARNOLD WEINMEISTER, Sixth Vice President, JOHN H. CLEVELAND, Seventh Vice President, MAURICE R. SCHURR, Eighth Vice President, DONALD PETERS, Ninth Vice President, WALTER J. SHEA, Tenth Vice President, HAROLD FRIEDMAN, Eleventh Vice President, JACK D. COX, Twelfth Vice President, DON L. WEST, Thirteenth Vice President, MICHAEL J. RILEY, Fourteenth Vice President, THEODORE COZZA, Fifteenth Vice President, DANIEL LIGUROTIS, Sixteenth Vice President, SALVATORE PROVENZANO, a/k/a "Sammy Pro," Former Vice President, Defendants.


EDELSTEIN


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

 I. BACKGROUND

 A. The Government's Suit

 On June 28, 1988, the Government filed this civil action pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq., against the IBT, its GEB, the individual members of the GEB, the Commission of La Cosa Nostra, and 26 alleged members of La Cosa Nostra. The Government alleged that the Union suffered from rampant corruption and La Cosa Nostra domination. In order to purge the IBT of these nefarious influences and restore union democracy, the Government sought sweeping relief, including the appointment of court liaison officers vested with certain powers of the IBT General President and the GEB and with authority to supervise general elections for IBT International Union Officers.

 On the eve of trial, March 14, 1989, the IBT and the Government settled the action and entered into the Consent Decree. In the precatory paragraphs of the Consent Decree, the IBT admits "that there have been allegations, sworn testimony and judicial findings of past problems with La Cosa Nostra corruption of various elements of the IBT." Consent Decree, at p. 2 (fourth Whereas clause). Based on this admission, the IBT agrees "that there should be no criminal element or La Cosa Nostra corruption of any part of the IBT." Id. (fifth Whereas clause). Moreover, the IBT agrees "that it is imperative that the IBT, as the largest trade union in the free world, be maintained democratically, with integrity and for the sole benefit of its members without unlawful outside influence." Id. (sixth Whereas clause). The framework of reform sought by the Government in its Complaint was preserved in the Consent Decree in order to achieve these goals.

 B. The Court-Appointed Officers

 Pursuant to Section F of the Consent Decree, this Court appointed three officers: an Independent Administrator, an Investigations Officer, and an Election Officer (collectively, the "Court-Appointed Officers"). In May 1989, this Court appointed Frederick B. Lacey to serve as the Independent Administrator, Charles M. Carberry to serve as the Investigations Officer, and Michael H. Holland to serve as the Election Officer.

 The Independent Administrator is vested with a broad range of powers under the Consent Decree, including: (1) the disciplinary powers of the General President and the GEB, which he may use to eradicate corruption within the IBT and to appoint temporary trustees for distressed Locals; (2) the power to review all disciplinary and trusteeship decisions of the General President and the GEB; and (3) the authority to veto proposed or actual expenditures, contracts, and appointments if he believes that such conduct furthers an act of racketeering. Consent Decree, §§ F.12(A)-(B). The Investigations Officer has authority to investigate corruption in the IBT and to bring disciplinary charges before the Independent Administrator. Id., § F.12(A). The Consent Decree also provides for the first direct rank-and-file secret ballot election for International Union Officers and authorizes the Election Officer to supervise it. Id., § F.12(D). Any Court- Appointed Officer, as well as any party, may make an application to this Court to resolve an issue involving the Consent Decree. Id., §§ F.12(I), K.16.

 In fulfilling his mandate under the Consent Decree, the Investigations Officer has filed charges against 185 individuals and three Local Unions. These charges resulted from investigations that entailed examining books and records, interviewing and taking testimony from union officers and members, reviewing information supplied by IBT members, and taking sworn statements. The Independent Administrator has conducted at least 73 hearings on disciplinary charges brought by the Investigations Officer, rendered numerous decisions, imposed at least 9 trusteeships on IBT Locals, and decided over 250 appeals from decisions of the Election Officer on election protests. The Independent Administrator has also reviewed appointments, expenditures, the handling of funds, and transfer of assets, and has communicated with the membership through the IBT magazine while also supervising the magazine's publication. The Election Officer supervised all aspects and stages of the first IBT secret ballot rank-and-file election, including the election of delegates to the IBT Convention from the over 600 IBT Local Unions, the nominations for International Union Office at the IBT Convention, and the approximately 1.5 million member rank-and-file general election of International Union Officers. The Election Officer certified the results of the election on January 22, 1992, which saw Mr. Ronald C. Carey elected IBT General President.

 C. The Independent Review Board

 The certification of the election results marks a point of transition in the Consent Decree. The termination of the Court-Appointed Officers' authority is related to this event, and indeed, their terms of office will soon end. See Consent Decree, § B.3(2). Certification of the election results, however, also heralds the birth of the Independent Review Board, which is the subject of this application. The Consent Decree provides that "following the certification of the 1991 election results, there shall be established an Independent Review Board." Id., § G.

 The IRB is to consist of three members, one chosen by the Attorney General of the United States on behalf of the Government, one chosen by the IBT, and a third person chosen by the Attorney General's and the IBT's designees. Id., § G. The Attorney General chose Frederick B. Lacey, currently the Independent Administrator, as his designee on March 8, 1992. The IBT chose Harold E. Burke, special assistant to IBT General President Ronald C. Carey, as its designee on April 9, 1992. After these two designees reached an impasse on the selection of a third IRB member, this Court confirmed the Independent Administrator's nomination of William H. Webster *fn1" to serve as the third member of the IRB on August 4, 1992. (Transcript of August 4, 1992 Hearing, pp. 35-36).

 The Consent Decree addresses various aspects of IRB operation, including general matters of IRB administration, the IRB's disciplinary powers, and the investigatory and disciplinary process. As to general administration, for instance, the Consent Decree touches upon such matters as funding and staffing. Section G(1) states that "the IBT shall pay all costs and expenses of the [IRB] and its staff (including all salaries of [IRB] members and staff)." Consent Decree, § G(1) (emphasis added). In addition, the IRB may hire a staff of investigators and attorneys to assist in the performance of its duties. Id, § G(a).

 The Consent Decree also sets forth the IRB's investigatory and disciplinary powers, and a process for acting on the results of its investigations. The IRB is vested with the same investigatory authority as enjoyed by the General President and the General Secretary-Treasurer under the IBT Constitution and applicable law. Id., § G(b). The IRB must use this authority to investigate, inter alia, (1) "any allegations of corruption," (2) "any allegations of domination or control or influence of any [part of the] IBT . . . by La Cosa Nostra or any other organized crime group, and (3) "any failure to cooperate fully with the Independent Review Board." Id., § G(a).

 Upon completing an investigation, the IRB must issue a written report (the "Investigative Report") setting out its charges, findings, and recommendations concerning a disciplinary or trusteeship matter. Id., § G(d). The Investigative Report is then referred to an appropriate IBT entity, which must "promptly take whatever action is appropriate under the circumstances." Id., § G(e). "Within 90 days of the referral, the IBT entity must make written findings setting forth the specific action taken and the reasons for such action." Id.

 The IRB's role in a particular matter does not end upon this referral to an IBT entity. Instead, the IRB must monitor its referrals. If the IRB determines that the IBT entity has not pursued a referred matter in "a lawful, responsible, or timely manner," or that the IBT entity's proposed resolution "is inadequate under the circumstances," the IRB must notify the relevant IBT entity of its determination and the reasons for it. Id., § G(f). Within 10 days of the IRB's notice, the relevant IBT entity must "set forth in writing any and all additional actions it has taken and/or will take to correct the defects set forth in [the] notice and a deadline by which said action may be completed." Id., § G(g). The IRB shall "immediately thereafter" issue a written determination "concerning the adequacy of the additional action taken and proposed by the IBT entity." Id. If the IRB finds that the IBT entity has not remedied the defects specified in the IRB's notice, the IRB promptly shall convene a hearing. Id.

 The IRB assumes an adjudicatory role at this hearing, which is meant to determine an appropriate course of action in a particular matter. After conducting a "fair hearing" pursuant to the rules and procedures generally applicable to a labor arbitration hearing, the IRB must issue a written decision, which "shall be final and binding." Id., §§ G(h), (i). The GEB must then take whatever action is necessary to implement the decision, "consistent with the IBT Constitution and applicable Federal laws." Id., § G(i). The IRB, however, is empowered to examine and review the GEB's implementation of the IRB's decisions; if the IRB is dissatisfied with the GEB's efforts, the IRB has "the authority to take whatever steps are appropriate to insure proper implementation" of its decision. Id., § G(j).

 In addition to initiating an investigation, which results in the filing of an Investigative Report and the process just described, the IRB also may review the GEB's own disciplinary and trusteeship decisions. Id., § G(k). After such review, the IRB may make a determination, which is final and binding, that affirms, modifies, or reverses any such GEB decision. Id.

 In sum, Section G of the Consent Decree empowers the IRB to eradicate corruption in the IBT on its own initiative and to monitor IBT efforts to purge corruption in the Union. In this way, the IRB may be considered a successor to the Investigations Officer and the Independent Administrator. Its activities, however, are limited to the disciplinary sphere of union activity; it has no involvement in the "day-to-day" operations of the Union.

 D. History of Consent Decree Litigation

 The Consent Decree introduced a series of measures designed to reform the IBT by eliminating corrupt influences and restoring democratic practices. As a party to the Consent Decree, the IBT agreed, of course, to the process of reform. The implementation of reform could have been characterized by a unity of purpose and a spirit of cooperation between the parties. Soon after the signing of the Consent Decree, however, the IBT embarked on a fierce campaign to avoid the reforms that it agreed to in the Consent Decree. In over three years of constant litigation in this Court and the Court of Appeals, the IBT repeatedly has sought to advance its cause by arguing for a narrow, restrictive interpretation of the Consent Decree. *fn2"

 1. New York Office Space

 Resolution of the application turned on two provisions of the Consent Decree. Section F.12(C)(iii) provides that "the Independent Administrator, Investigations Officer and Election Officer shall be provided with suitable office space at the IBT headquarters in Washington, D.C." Section F.12(H) provides that "the compensation and expenses of the [Independent ] Administrator, the Investigations Officer and the Election Officer (and any designee or persons hired by them) shall be paid by the IBT." Despite the absence of an express provision in the Consent Decree concerning a New York office for the Investigations Officer, this Court ordered the IBT to provide such office space. It reasoned that Section F.12(C) (iii) and Section F.12(H) encompassed the provision of office space in New York City. Such an interpretation comported with the language and purpose of the Consent Decree, and the intent of the parties. Despite this Court's order, the IBT continued to block the Investigations Officer's efforts to obtain New York office space. After a second hearing before this Court, the IBT approved a lease for the Investigations Officer.

 2. Election Officer's Authority to Supervise 1991 IBT Election

 a. Scope of Election Officer's Authority

 The next dispute involving the Consent Decree, and the first that concerned the authority of a Court-Appointed Officer, arose in Application II, which the Independent Administrator filed with this Court on September 29, 1989. This application involved the duties of the Election Officer. Until the signing of the Consent Decree, officers of IBT subordinates had been ex officio delegates to a convention where they directly elected the International Officers, including the General President. The Consent Decree eliminated this process of electing International Union Officers and initiated a three-stage electoral process that culminated in the 1991 direct rank-and-file secret ballot election for International Officers. See Consent Decree, § F.12(D). The Consent Decree provides that: (1) the Local Unions shall hold secret ballot elections of delegates to the IBT Convention; (2) these elected delegates shall attend the 1991 IBT Convention and nominate candidates for IBT International office; and (3) the rank-and-file shall vote in a union-wide, direct, secret ballot election for the candidates for International Union office. Application II resulted from a dispute over the Election Officer's authority to supervise this process. Each party offered a different interpretation of Section F.12(D) of the Consent Decree, which in pertinent part empowered the Election Officer to "supervise . . . the IBT election to be conducted in 1991."

 The Government asserted that the term "supervise" gave the Election Officer a broad mandate to coordinate all aspects of the electoral process. The Government also contended that the phrase "IBT election to be conducted in 1991" referred to the entire three-stage electoral process that culminated in the 1991 election of International Union Officers. The IBT adopted an extremely narrow interpretation of the term "supervise" and the phrase "IBT election to be conducted in 1991." It argued that the term "supervise" allowed the Election Officer merely to oversee the IBT electoral process and provide post-election advice. The IBT also argued that the phrase "IBT election to be conducted in 1991" referred not to the entire three-stage electoral process, but only to the general rank-and-file election of International Union Officers. The IBT reasoned that the disputed phrase refers to a single election -- the election for International Union office -- and not multiple elections. It supported its interpretation with affidavits that contained drafts of the Consent Decree before its final incarnation.

 This Court interpreted the term "supervise" as having its most "expansive and proactive meaning." October 18, 1989 Opinion & Order, 723 F. Supp. 203, 206 (S.D.N.Y. 1989), aff'd, 931 F.2d 177 (2d Cir. 1991). *fn3" In addition, this Court interpreted "election to be conducted in 1991" as encompassing the entire three stages of the electoral process, including Local Union election of delegates to the 1991 IBT Convention. Id. at 207. Such an interpretation, which vested the Election Officer with "authority to carry out . . . any and all facets of the IBT electoral process up to and including the 1991 election for International Officers," was necessary to realize the Consent Decree's goal of restoring democracy to the IBT. Id. Based on this interpretation, the Election Officer could promulgate election rules and procedures, educate IBT Locals on the election process, monitor candidate campaigning, devise absentee voting procedures, and certify all elections. Id. Further, this Court found that "it is within the scope of the duties of the Election Officer to take any further reasonable actions necessary to carry out his duties . . . and ensure fair elections for the IBT membership." Id.

 b. Election Officer's Staffing Requests

 Another aspect of Application II involved the Election Officer's staffing request. The Election Officer requested that the IBT pay for support staff, including an executive assistant, an administrative assistant, a secretary, and a labor economics consultant. Id. at 708. The IBT opposed these requests because the Consent Decree did not explicitly provide the Election Officer with a staff. The IBT viewed "the Election Officer's staffing requests as arming him for an unwarranted and exceedingly expensive intrusion into the IBT electoral process." Id. at 208. This Court granted the Election Officer's request. It found that the Election Officer required a staff to perform the vast number of tasks involved in "supervising" all aspects of the IBT electoral process. Thus, implementation of the Consent Decree -- in this case, enabling the Election Officer to perform necessary tasks -- compelled provision of a staff, even in the absence of an express staffing provision.

 c. Fund

 The final aspect of Application II involved the Government's desire to create, at its own expense, a $ 100,000 operating fund for the Court Officers. The IBT opposed the Government's request because the Consent Decree did not expressly provide for the creation of such a fund. This Court rejected the IBT's position and found that although the Consent Decree did not explicitly allow it, creation of such a fund facilitated the Court-Appointed Officers' ability to operate, and was thus necessary to implementation of the Consent Decree. Id. at 210.

 d. Certification

 On October 27, 1989, the IBT moved to certify for appeal issues resolved in this Court's October 18, 1989 decision and to stay those rulings pending appeal. This Court denied the IBT's motion for certification because this Court's interpretation of the Consent Decree rested on well-settled principles contained in United States v. Armour & Co., 402 U.S. 673, 683, 29 L. Ed. 2d 256, 91 S. Ct. 1752 (1971) and SEC v. Levine, 881 F.2d 1165, 1178-1179 (2d. Cir 1989). See November 6, 1989 Order, 728 F. Supp. 920, 922 (S.D.N.Y. 1989). This Court also denied the IBT's request for a stay because, inter alia, "the IBT's true intention is to delay and hinder the work of the Court Officers so that their . . . term[s] will expire without significant reforms." Id. at 924. The IBT appealed the denial of the stay and certification requests; the Second Circuit dismissed the IBT's appeals the following day.

 3. Communication with the IBT Membership

 On November 3, 1989, the Independent Administrator filed Application VI, in which he sought an interpretation of Section F.12(E) of the Consent Decree. This section provides, in relevant part, that the Independent Administrator shall have the "authority to distribute materials at reasonable times to the membership of the IBT about the Administrator's activities. . . . Moreover, the [Independent] Administrator shall have the authority to publish a report in each issue of the International Teamster concerning the activities of the [Independent] Administrator, Investigations Officer, and Election Officer." Pursuant to his authority under this provision, the Independent Administrator included reports in the IBT's monthly publication of the International Teamster.

 This application arose in response to the IBT's threat to discontinue publishing the International Teamster on a monthly basis, and to begin quarterly publication. The Independent Administrator's application sought review of the IBT's proposed publication decision, which the Independent Administrator contended would impair his authority under Section F.12(E) of the Consent Decree. This Court found that Section F.12(E) authorized monthly communications between the Independent Administrator and the general membership either through the International Teamster or the mail. In addition, this Court ruled that the IBT had to make this Court's rulings available to the rank-and-file, either in the International Teamster or by direct mail. Such a holding comported with the text of Section F.12(E) and served to educate the membership, which promoted the goal of restoring union democracy. On December 13, 1989, the Second Circuit dismissed the IBT's appeal.

 4. Investigations Officer's Authority to Examine Books

 Section F.12(C)(i)(a) of the Consent Decree provides that "the Investigations Officer shall have the right, [inter alia ], to examine books and records of the IBT and its affiliates." While the IBT permitted the Investigations Officer to inspect its records, it refused to provide him with copies on the ground that the Consent Decree did not expressly impose such an obligation on the IBT. On January 30, 1990, this Court signed an Order compelling the IBT to show cause why they should not have to provide the Investigations Officer with copies of IBT records. This Court noted in the Order that the "ability to obtain copies . . . is a reasonable and necessary incident to [the Investigations Officer's] power under the Consent Order." Subsequently, the IBT voluntarily provided the Investigations Officer with copies of the documents.

 5. Independent Administrator's Power to Interpret IBT Constitution

 On January 7, 1989, the Independent Administrator filed Application VII, which involved a dispute over the Independent Administrator's authority to interpret the disciplinary provisions of the IBT Constitution. This dispute began when the GEB failed to notify the Independent Administrator of a special meeting that it held on November 1, 1989 in Washington, D.C., as required by the Consent Decree. At the meeting, the GEB passed a resolution that limited the type of conduct that brought "reproach upon the union" and thus limited the grounds for disciplining an IBT member. 1991 IBT Constitution, Art. II, § 2(a) & Art. XIX, § 6(b)(2). The GEB passed this resolution at the request of at least one of its members, then-IBT Vice President Theodore Cozza. At the time of the special meeting, the Investigations Officer already had brought disciplinary charges against Cozza for bringing reproach upon the Union by knowingly associating with members of organized crime. *fn4"

 The Independent Administrator rejected this resolution as an unreasonable interpretation of the IBT Constitution. The IBT appealed the Independent Administrator's decision to this Court on the ground that the Consent Decree did not specifically authorize him to interpret the IBT Constitution. This Court rejected the IBT's restrictive interpretation of the Consent Decree. March 13, 1990 Opinion & Order, 743 F. Supp. 155, 160-61 (S.D.N.Y. 1990), aff'd, 905 F.2d 610 (2d Cir. 1990). The Consent Decree expressly granted the Independent Administrator the same disciplinary authority as the IBT General President and the GEB under the IBT Constitution; this authority necessarily included the General President's and GEB's authority to interpret the disciplinary provisions of the IBT Constitution. Consent Decree, § F.12(A); see United States v. IBT, 905 F.2d 610, 618-19 (2d Cir. 1990) (the Independent Administrator has "the final authority to determine what constitutes an offense subject to discipline under the IBT Constitution").

 6. All Writs Act Jurisdiction

 A major challenge to the Court-Appointed Officers' ability to implement the Consent Decree arose when various IBT-affiliated entities and IBT members filed lawsuits in sister federal district courts based on matters relating to the Consent Decree. These actions sought relief from this Court's orders under the Consent Decree or an adjudication of rights under the Consent Decree. The Government sought to have this Court exercise its authority under the All Writs Act, 28 U.S.C. § 1651, to enjoin all lawsuits -- filed in any forum other than the Southern District of New York -- that attempted to litigate issues arising under the Consent Decree. This Court granted the Government's motion based on its finding that a nationwide injunction would promote judicial economy, avoid repetitive and burdensome litigation, and eliminate the significant risk that collateral lawsuits would subject the Consent Decree to inconsistent interpretations. January 17, 1990 Opinion & Order, 728 F. Supp. 1032, 1047-48 (S.D.N.Y. 1990), aff'd, 907 F.2d 277, 280 (2d Cir. 1990). In addition, this Court found that "this litigation has already consumed a great deal of time, expense, and energy from the Government, the IBT, and this Court, all in the hope that these resources have gone to achieve a better IBT for its members. This litigation is a unique attempt to reform the IBT, and such a situation warrants exercising this Court's extraordinary powers under the All Writs Act." Id. at 1045.

 7. Names of IBT Members Facing Discipline

 On January 19, 1990, the Independent Administrator filed Application VIII, in which he challenged the IBT's refusal to publish in the International Teamster the names of IBT members facing disciplinary charges. The Independent Administrator contended that Section F.12(E) of the Consent Decree, which authorized the Independent Administrator to distribute materials to the membership and publish reports to the membership in the International Teamster, permitted publication of such names. Although the Consent Decree did not specify the type of information encompassed by Section F.12(E), this Court found that "the only relevant point of inquiry is whether [Section] 12(E) of the Consent Decree should be interpreted to permit the dissemination of this information. Upon review of that provision, and the spirit and intent of the Consent Decree [the Independent Administrator's application] is granted." February 27, 1990 Memorandum & Order, 735 F. Supp. 502, 504 (S.D.N.Y.), aff'd, 907 F.2d 277 (2d Cir. 1990).

 Applications X and XI involved another dispute over the Election Officer's authority to "supervise" the 1991 International Officer Election. In Application X, the Independent Administrator sought approval of the Election Officer's "Rules for the IBT International Union Delegate and Officer Election" (the "Election Rules"). In Application XI, the Independent Administrator sought approval for the Election Officer to hire Regional Coordinators and field staff to assist him in his efforts.

 The IBT raised two broad objections to the Election Rules: it first argued that the Election Officer had no specific authority under the Consent Decree to promulgate election rules. This Court found the IBT's argument frivolous, already having determined that the Election Officer had power to promulgate election rules as an aspect of his authority to "supervise" the IBT electoral process. See October 18, 1989 Opinion & Order, 723 F. Supp. 203, 206-07 (S.D.N.Y. 1989), aff'd, 931 F.2d 177 (2d Cir. 1991). The IBT also argued that virtually every individual Election Rule was beyond the scope of the Consent Decree and the IBT Constitution. This Court not only rejected the IBT's contention, but it also supplemented the Election Officer's proposed rules in a manner consistent with the language and purpose of the Consent Decree. For instance, Article VII, § 2(a) of the proposed Election Rules provided candidates for IBT office with only limited access to IBT membership lists. This Court rejected the proposed rule and, on its own initiative, amended the rule to allow accredited candidates access to membership lists. This Court reasoned, in part, that such an amendment was necessary because:

 
The IBT has displayed a pattern of reluctance to comply with the specific terms of the Consent Decree absent judicial intervention, indicating the IBT's official opposition to reform. The IBT has refused to furnish office space and challenged the need for file cabinets; delayed in reimbursing the Court Officers, thereby necessitating the creation of a $ 100,000 fund for their work . . .; bitterly disputed the authority of the Election Officer to serve as more than a passive observer to the 1991 election . . .; protested the hiring of staff members for the Court Officers . . .; and passed resolutions changing the disciplinary provisions of the IBT Constitution in disregard of . . . the Consent Decree. Those resolutions baldly exculpated a former member of the GEB who was a convicted felon from facing disciplinary charges and were determined to be unreasonable by all reviewing courts. . . .
 
The IBT attempted to curtail publication of the International Teamster from monthly to quarterly; sent out a memorandum to every Local urging that the Locals object before this Court to an injunction requiring all litigation concerning the Consent Decree be conducted before this Court. . . . The IBT currently objects to the Election Officer hiring regional coordinators to assist in supervising the election. . . . While not dispositive towards a finding of misuse, this pattern of conduct illuminates the IBT's official stance toward reform and supports the conclusion of official antipathy.

 July 10, 1990 Opinion & Order, 742 F. Supp. 94, 104 (S.D.N.Y. 1990), aff'd, 931 F.2d 177 (2d Cir. 1991).

 As to Application XI, this Court issued an Order that recognized the Election Officer's authority to hire Regional Coordinators and field staff as a reasonable exercise of his explicit authority under the Consent Decree. Id. at 107. With one modification to an election rule involving employer contributions, the Second Circuit affirmed this Court's decision. See United States v. IBT, 931 F.2d 177 (2d Cir. 1991).

 9. Formal Ratification of the Consent Decree at 1991 IBT Convention

 On March 19, 1991, the Government sought an order, based on Section D.9(b) of the Consent Decree, ensuring the incorporation of the Consent Decree into the IBT Constitution at the 1991 IBT International Convention, which was ultimately held at the Walt Disney World Dolphin Hotel, 1500 Epcot Resort Boulevard, Lake Buena Vista, Florida. Section D.9(b) of the Consent Decree provides, in relevant part, that:

 
By no later than the conclusion of the IBT Convention to be held in 1991, the IBT shall have formally amended the IBT constitution to incorporate and conform with all of the terms set forth in this [Consent Decree] by presenting said terms to the delegates for a vote.

 In its application, the Government proffered evidence that the IBT would encourage Convention delegates to "vote out" the electoral provisions of the Consent Decree. May 6, 1991 Opinion & Order, 764 F. Supp. 787, 788 (S.D.N.Y.), aff'd, 940 F.2d 648 (2d Cir.), cert. denied, 112 S. Ct. 76 (1991). The Government sought to prevent this violation of the Consent Decree, and thus avoid a situation where the IBT would revert to past electoral methods that disenfranchised the membership.

 At a March 20, 1991 hearing before this Court, the IBT refused to deny the existence of a plan to "vote out" the Consent Decree. Id. at 791. The IBT argued that Sections D.9(b) and F.12(D) *fn5" of the Consent Decree allowed Convention delegates to nullify provisions of the Consent Decree at the 1991 IBT Convention. This Court rejected the IBT's argument. It based its conclusion on an interpretation of Sections D.9(a)-(b) of the Consent Decree. Section D.9(a) provides that "the IBT Constitution shall be deemed and hereby is amended to incorporate and conform with all of the terms set forth in the [Consent Decree]." This Court found that this section provided for the automatic incorporation of the Consent Decree into the IBT Constitution. This incorporation did not require an affirmative vote at the Convention.

 Section D.9(b) provides that by no later than the conclusion of the Convention, the delegates "shall have formally" ratified the Consent Decree's changes to the IBT Constitution ordered in Section D.9(a). By including Section D.9(b) in the Consent Decree, the parties intended to resolve any uncertainty about the IBT's ability to bind subordinate entities to the Consent Decree. Id. at 791-93. Indeed, initially upon presenting the Consent Decree to this Court, the parties stated that Section D.9(b) was designed to settle any legal challenge by IBT entities and did not permit the IBT to jettison parts of the Consent Decree. Id. at 792-93. *fn6" The provisions of the Consent Decree were part of the IBT Constitution, and bound the IBT and its subordinate entities, regardless of the delegates' vote at the IBT Convention. This ruling prevented the IBT from altering the IBT Constitution at the Convention without first receiving Government approval as required by Section L.17 of the Consent Decree. *fn7" This Court added:

 
I remind the IBT that it voluntarily agreed to the Consent Decree, and with it free rank-and-file elections. The past two years have demonstrated that the IBT had no intention of living up to its end of the agreement. The IBT has made every attempt to limit the scope and restrict the terms of the Consent Decree, and each time it has lost. But the time for challenges to the Consent Decree has now passed, and the IBT must live with the Consent Decree as written by the parties, approved by the Court, and repeatedly interpreted by this Court and the Court of Appeals.

 E. Drafting Constitutional Amendments

 1. Process of Incorporation

 As previously noted, Section D.9(a) of the Consent Decree compels the incorporation of the Consent Decree into the IBT Constitution. To implement this provision, the Government drafted amendments to the IBT Constitution that incorporated provisions of the Consent Decree. (Declaration of Edward T. Ferguson, III ("Ferguson Dec."), P7 at p.4); (Declaration of Gary S. Witlin ("Witlin Dec."), PP4-6 at pp.2-4). Any difference between the constitutional provisions that incorporate the Consent Decree and the Consent Decree reflect a desire to make the constitutional provisions "more intelligible to the average union member and official." (Witlin Dec., P5 at p.3). All language ultimately incorporated into the 1991 IBT Constitution therefore represents, as the Constitution itself states, "language required by the Consent Decree." 1991 IBT Constitution, Introduction. Because Section F.12(I) of the Consent Decree provides, in relevant part, that "the parties [cannot] . . . modify, change or amend the terms of [the Consent Decree]," the amendments formally incorporating the provisions of the Consent Decree into the 1991 IBT Constitution could not limit or expand those provisions.

 2. Section G and the IBT's Proposed Ethical Practices Committee

 In order to ensure compliance with Section D.9(b) of the Consent Decree, the Government drafted language to incorporate Paragraph G of the Consent Decree into the IBT Constitution. (Ferguson Dec., P11 at p. 6); (Witlin Dec., P13 at pp. 7-8). This language was ultimately incorporated into the IBT Constitution at Article XIX, Section 14. Prior to the IBT Convention, however, the IBT proposed to establish an Ethical Practices Committee in lieu of the IRB. See 1991 IBT Constitution, Art. XIX, § 14(a) (language adopted by delegates but disapproved by Government); (Ferguson Dec., P10 at p. 5 (IBT proposed to establish an Ethical Practices Committee)); (Witlin Dec., P11 at p. 6 (Ethical Practices Committee as substitute for the Independent Review Board)). The IBT proposal called for the establishment of an Ethical Practices Committee, composed of five members recommended by IBT Area Conferences, which would assume some IRB powers. The Government vetoed the IBT amendment proposing the Ethical Practices Committee "because the provisions in the IBT proposal radically altered both the composition and authority of the entity established by the Consent Decree." (Ferguson Dec., P10 at p. 6); see (Witlin Dec., P13 at pp. 7-8).

 F. The Instant Application

 On July 17, 1992, the Government brought this application pursuant to Section K.16 of the Consent Decree. The application seeks an order approving proposed rules and procedures for operation of the IRB. The proposed rules are intended to govern the operation of the IRB, its members, and its staff. This Court scheduled a hearing for July 30, 1992, and received pre-hearing submissions from the Government, the IBT, and Frederick B. Lacey. At the July 30, 1992 hearing, this Court heard argument on the Government's application.

 II. DISCUSSION

 The Government contends that its proposed rules are necessary for the IRB to operate effectively and efficiently, and therefore, its rules are necessary to implement the express terms of the Consent Decree. In addition, the Government asserts that promulgation of its proposed rules now will permit the IRB to be a viable entity on the day it begins operations. Deciding the scope of the IRB's authority and other issues involving the IRB on an ad hoc basis will allegedly stymie its effectiveness for the foreseeable future. The Government's proposed rules are drawn from the terms of the Consent Decree and the IBT Constitution as amended at the IBT Convention.

 The IBT proffers three sets of arguments in opposition to the Government's application. The first set concerns the language and the purpose of the Consent Decree. The IBT agues that: (1) the Government's application is not proper because the Consent Decree authorizes the IRB, not the Government, to promulgate rules for IRB operation; (2) the adoption of any rule for IRB operation, regardless of its content, is an impermissible alteration of the parties' agreement; and (3) the adoption of any rule for IRB operation, regardless of its content, is inconsistent with the purpose and structure of the Consent Decree. The second set of arguments is not based on the express provisions of the Consent Decree, but rather on a farrago of legal principles and policy considerations. The IBT argues that: (1) the Government waived its right to promulgate its proposed rules when, in the process of incorporating the Consent Decree into the IBT Constitution, it failed to raise the issues in this application; (2) the adoption of rules for IRB operation violates a federal labor policy favoring government non-intervention in union affairs; (3) the democratic election of a new IBT administration dedicated to eradicating corruption obviates the need for the Government's proposed rules; and (4) the proposed rules impose excessive monetary costs on the IBT. The third set of arguments attacks the individual rules based on their content.

 From the day the parties entered the Consent Decree, March 14, 1989,until today, the IBT has waged a zealous legal attack on the reforms contained in that agreement. After agreeing that it was "imperative" to eradicate corruption from the IBT and restore democratic practices to the Union, the prior IBT administration spent $ 10.5 million on a campaign to eviscerate the mechanisms contained in the Consent Decree to achieve these goals. The prior IBT administration repeatedly challenged the scope of the Court-Appointed Officers' authority, and in these challenges, sought to limit their power, stymie their efforts, and delay the implementation of any reform. It argued primarily that principles of contract interpretation and union autonomy required a restrictive interpretation of the Consent Decree. Interpreting the language of the Consent Decree in light of its express purposes, and recognizing that the Consent Decree is an agent and not an opponent of union autonomy, this Court and the Court of Appeals consistently rebuffed the IBT's attempts to enervate the provisions of the Consent Decree. The Court-Appointed Officers' authority is drawing to a close; their efforts led to the democratic election of the current IBT administration, which has begun to shape the future of this Union. While the new administration publicly has disassociated itself from its predecessors' attempts to thwart reform, it has adopted its litigation strategy with respect to both the Court-Appointed Officers and the IRB.

 A. Consent Decree Law

 Consent Decrees are hybrid instruments, containing traits of both contracts and judicial decrees. United States v. ITT Continental Baking Co., 420 U.S. 223, 236, 43 L. Ed. 2d 148, 95 S. Ct. 926 n.10 (1975). Nevertheless, because consent decrees "have many attributes of ordinary contracts, they should be construed basically as contracts." Id. at 236-37. Applying principles of contract interpretation to consent decrees implies that a consent decree's "meaning is ordinarily to be discerned within the 'four corners' of the decree." Canterbury Belts Ltd. v. Lane Walker Rudkin, Ltd., 869 F.2d 34, 38 (2d Cir. 1989). A court must not "expand or contract the agreement of the parties as set forth in the consent decree." Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985). It follows, then, that "the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it." United States v. Armour & Co., 402 U.S. 673, 681-82, 29 L. Ed. 2d 256, 91 S. Ct. 1752 (1971). In other words, when resolving disputed language in a consent decree, the decree "should be interpreted in a way that gives effect to what the parties have agreed to, as reflected in the judgment itself." SEC v. Levine, 881 F.2d 1165, 1179 (2d Cir. 1989).

 As with any other contract, "reliance upon certain aids to construction is proper." ITT Continental Baking, 420 U.S. at 238. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning the parties accorded to certain words, and any other documents expressly incorporated in the decree. Id. In ITT Continental Baking, the Court expressly confirmed that "where parties in one agreement include both a consent order and an explanation of the order, and also provide that the complaint is to be used to construe the order, it seems logical to conclude that, at least as to interpretations not precluded by the words of the order itself, the collateral documents can and should be used to give meaning to the words of the order." Id. at 239 n.12 (emphasis added).

 In this action, the Consent Decree contains its own explanation. The IBT recognized that "there have been allegations, sworn testimony and judicial findings of past problems with La Cosa Nosa corruption of various elements of the IBT." Consent Decree, at p. 2 (fourth Whereas Clause). As a result, the parties expressly agreed that "there should be no criminal element or La Cosa Nostra corruption of any part of the IBT." Id. (fifth Whereas clause). In addition, the parties agreed that "it is imperative that the IBT, as the largest trade union in the free world, be maintained democratically, with integrity and for the sole benefit of its members without unlawful outside influence." Id. (sixth Whereas clause).

 B. Prior Interpretations of the Consent Decree

 During the life of this Consent Decree, the Government and the IBT repeatedly have offered conflicting interpretations of the agreement that required resolution by this Court. In resolving these disputes, this Court has always looked to the four corners of the document with the view that "the spirit . . . of this Consent Decree commands that its specific language be given the most reasonable interpretation possible." October 18, 1989 Opinion & Order, 723 F. Supp. 203, 210 (S.D.N.Y. 1989), aff'd, 931 F.2d 177 (2d Cir. 1991); see, e.g., SEC v. Levine, 881 F.2d 1165, 1179 (2d Cir. 1989); Canterbury Belts Ltd. v. Lane Walker Rudkin, Ltd., 869 F.2d 34, 38 (2d Cir. 1989). *fn9" The principles animating any reasonable interpretation of the Consent Decree are found in the document: by entering this compact, the parties committed to rid the IBT of La Cosa Nostra influence and corruption, and to maintain the IBT "democratically, with integrity and for the sole benefit of its members." Consent Decree, at p.2 (fifth & sixth Whereas clauses); c.f. ITT Continental Baking Co., 420 U.S. at 239 n. 12.

 In recognition of the vital purposes underlying the Consent Decree, this Court and the Second Circuit consistently have rejected restrictive and narrow interpretations of the Consent Decree that would thwart implementation of the parties' agreement. See, e.g., May 6, 1991 Opinion & Order, 764 F. Supp. 787, 794-95 (S.D.N.Y.) (rejecting IBT's argument that it could "vote out" the Consent Decree as contrary to its language and purpose), aff'd, 940 F.2d 648 (2d Cir.), cert. denied, 112 S. Ct. 76 (1991); March 13, 1990 Opinion & Order, 743 F. Supp. 155 (S.D.N.Y.) (rejecting "unfettered power" of IBT officers to interpret IBT Constitution, which could "allow them to frustrate the implementation of the Consent Decree"), aff'd, 905 F.2d 610 (2d Cir. 1990); February 27, 1990 Memorandum & Order, 735 F. Supp. 502, 504 (S.D.N.Y.) (despite absence of express provision, "spirit and intent of the Consent Decree . . . strongly favors informing the rank-and-file of which IBT members are facing charges"), aff'd, 907 F.2d 277 (2d Cir. 1990); November 2, 1989 Memorandum & Order, 725 F. Supp. 162, 166 (S.D.N.Y. 1989) (interpreting scope of Investigations Officer's power in light of language and purpose of Consent Decree, and intent of parties, and concluding that Investigations Officer could pursue charges against convicted felons); October 18, 1989 Opinion & Order, 723 F. Supp. 203, 206 (S.D.N.Y. 1989) (rejecting IBT restrictive interpretation of Election Officer's authority to "supervise" IBT electoral process, and instead, giving term "supervise" its most expansive and active meaning), aff'd, 931 F.2d 177 (2d Cir. 1991).

 For example, the Second Circuit affirmed a decision by this Court that allowed the Election Officer to promulgate Election Rules. See United States v. IBT, 931 F.2d 177 (2d Cir. 1991). In so doing, the Second Circuit rejected the IBT's restrictive reading of the provisions of the Consent Decree. Among the many Election Rules to which the IBT objected was one that allowed the Election Officer to publish information in the International Teamster magazine. The IBT averred that such a rule "rewrote" the Consent Decree because while the Consent Decree expressly gave this authority to the Independent Administrator, it did not expressly grant this authority to the Election Officer. In rejecting the IBT's position, the Second Circuit stated that:

 
The fact that the parties specifically foresaw that the [Independent] Administrator would need to publish reports in the magazine does not foreclose the Election Officer and district court from determining in the course of events that use of the magazine is also necessary to ensure an effective rank-and-file election.

 Id. at 187.

 C. Promulgation of Rules for IRB Operation Is Consistent with the Language and Purpose of the Consent Decree ...


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