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September 24, 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. IN RE: APPLICATION LXXXVI OF THE INDEPENDENT ADMINISTRATOR


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

EDELSTEIN, District Judge:

 This decision arises from the implementation of the rules for the International Brotherhood of Teamsters ("IBT") International Union Delegate and Officer Election (the "Election Rules"), promulgated by the Election Officer and approved as modified by this Court and the Court of Appeals. July 10, 1991 Opinion & Order, 742 F. Supp. 94 (S.D.N.Y. 1990), aff'd, 931 F.2d 177 (2d Cir. 1991). Roadway Express, Incorporated ("Roadway") appeals from a decision of the Independent Administrator, 92 - Elec. App. - 253, in which he affirmed in part and reversed in part the Election Officer's decision in Election Office Case No. P-916-LU705-CHI. The Independent Administrator affirmed the Election Officer's finding that Roadway discharged its former employee, Leroy Ellis, in retaliation for Mr. Ellis' campaign activities on behalf of a slate of candidates supporting Ronald C. Carey for IBT General President. He reversed the Election Officer's refusal to award Mr. Ellis back pay. For the reasons stated below, the decision of the Independent Administrator is affirmed.


 The Election Officer, Michael H. Holland, was appointed by this Court pursuant to its March 14, 1989 Order (the "Consent Decree"), which was agreed to by the plaintiff United States of America (the "Government") and the defendant IBT in settlement of this civil racketeering action. The Election Officer was empowered to supervise the implementation of the Consent Decree's electoral provisions, which culminated in the first-ever direct rank and file election of IBT International officers. See Consent Decree, § 12.D; October 18, 1989 Opinion & Order, 723 F. Supp. 203, 206-07 (S.D.N.Y.), appeal dismissed, No. 89-6252 (2d Cir. Dec. 13, 1989), cert. denied, 110 S. Ct. 2618 (1990). In fact, the Election Officer supervised all aspects and stages of this 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.

 Pursuant to his supervisory authority under the Consent Decree, the Election Officer promulgated the Election Rules, which were approved as modified by this Court and the Court of Appeals. July 10, 1991 Opinion & Order, 742 F. Supp. 94 (S.D.N.Y. 1990), aff'd, 931 F.2d 177 (2d Cir. 1991). The Election Rules were crucial to the successful conduct of the 1991 election, and thus, a central feature of the Consent Decree's efforts to cleanse the IBT of La Cosa Nostra's corrupt influences. October 18, 1989 Opinion & Order, 723 F. Supp. at 206-07; October 25, 1991 Order, slip op. at 1 (S.D.N.Y. 1991). The Election Rules protected, inter alia, the rights of IBT members to participate in union election campaign activities, see Election Rules, Art. VIII, § 10(a), and enabled the Election Officer to respond to violations of the Election Rules, or any other conduct preventing a fair, honest, and open election, with a wide range of remedial measures. See Election Rules, Art. XI, § 2. This matter involves the election protest of Leroy Ellis, a member of IBT Local 705 in Chicago, Illinois, who, before his discharge, had been employed as a truck driver at Roadway since 1985. In January 1992, Mr. Ellis was elected an IBT International Vice president on a slate of candidates supporting Mr. Carey for General president. Roadway fired Mr. Ellis on September 19, 1991, allegedly for sleeping on the job the previous day, in the course of making a delivery/pickup at the Burlington Northern ("Burlington") rail yard in Cicero, Illinois.

 Mr. Ellis had gone to Burlington to drop off one trailer and pick up and return to Roadway an empty trailer. He had been instructed to take his lunch prior to returning the empty trailer to the Roadway facility. Roadway claims that a Burlington terminal manager, Bob Stein, observed Mr. Ellis' vehicle in an empty lot at approximately 1:45 a.m. and noted that the driver was asleep. Mr. Stein did not attempt to wake Mr. Ellis or request that Mr. Ellis remove his vehicle, even though Burlington had a policy that prohibited truck drivers from taking breaks in the lot where Mr. Ellis allegedly slept. Instead, Mr. Stein's assistant, Bill Beem, conferred with a Roadway Driver Supervisor, Deborah Halstead, who asked Mr. Beem for the time of Mr. Ellis' arrival at the facility, which he reported as 12:32 a.m. Ms. Halstead then determined that Mr. Ellis probably was on his lunch break and would be for another fifteen minutes. Burlington took no further action until Mr. Stein allegedly observed Mr. Ellis still sleeping at 3:15 a.m. and notified Burlington's security officer, who sounded his horn to wake Mr. Ellis. After the officer supposedly informed Mr. Ellis that he could not sleep in the lot, Mr. Ellis drove away at 3:41 a.m.

 Mr. Ellis denies sleeping at any time while on the Burlington facility and also claims that he arrived at 12:51 a.m., not 12:32 a.m. Although Burlington maintains computer records of all driver arrival and departure times, it could not find or produce Mr. Ellis' check-in time. The 12:32 a.m. time is based on a handwritten record. Mr. Ellis asserts that from his arrival at 12:51 a.m. until 2:08 a.m., he unloaded the contents of the trailer he had driven to Burlington. He contends that it took over an hour to unload the trailer because he had to endure a wait before he could begin his task. He avers that he began his lunch break at 2:00 a.m., and that when Burlington's security officer approached him, he was still on his lunch break working on a campaign speech. He left the facility, after his lunch break, at 3:41 a.m.

 Roadway fired Mr. Ellis on September 19, 1991, pursuant to a policy, adopted in April 1989, which provides that "gross abuse of company time will be considered an act of dishonesty and will be grounds for immediate dismissal." (Decision of the Election Officer ("Elec. Off. Dec.") at 1, 5). Roadway considers sleeping on the job a "gross abuse of company time." As to Mr. Ellis' disciplinary record prior to this incident, Roadway contends that it had disciplined Mr. Ellis on twenty-three separate occasions prior to his discharge and that it had initiated six additional disciplinary actions against Mr. Ellis. These additional charges were rescinded after hearings before grievance panels. Of these disciplinary charges, five involved misuse of company time, although Local 705's records reflect only three such warnings. These three all occurred prior to the nine months preceding Mr. Ellis' discharge. In this nine-month period, Mr. Ellis received three disciplinary warning notices, two for absenteeism and one for insubordination. Mr. Ellis contends that he has no outstanding disciplinary notices in his record at Roadway because all such notices and actions, including those involving misuse of company time, were resolved in his favor in the grievance procedure.

 Mr. Ellis filed an election protest with the Election Officer pursuant to the Election Rules. He claimed that he had not been sleeping on the job and that Roadway had discharged him because of his association with the Carey slate in the upcoming 1991 IBT elections. Mr. Ellis also filed charges with both the National Labor Relations Board (the "NLRB") and a grievance panel, established pursuant to a collective bargaining agreement between Roadway and the IBT, based on the same grounds presented to the Election Officer. On November 1, 1991, the grievance panel concluded that Roadway had fired Mr. Ellis for sleeping on the job. On February 7, 1992, the NLRB found that "the evidence does not show that [Mr. Ellis was] discharged because of . . . union activities, but rather for the reasons advanced by the Employer at the time of . . . discharge[]." Letter from Elizabeth Kinney, Regional Director of the National Labor Relations Board, to Leroy Ellis, IBT Vice President (February 7, 1992) (on file with the Southern District of New York).

 On June 14, 1991, the Election Officer issued his decision in this matter. He found that Roadway had discharged Mr. Ellis because of his candidacy for International Union office as a member of the Ron Carey slate. He reasoned that Mr. Mike Lamphere, the terminal manager at the Chicago Heights facility where Mr. Ellis worked, wanted to discharge him. A former Roadway supervisor, Mr. Wayne Johnson, informed the Election Officer that at a weekly meeting of supervisors in March 1991, Mr. Lamphere publicly stated Roadway's opposition to the Carey slate: "We're not for the Carey Slate, that's for sure." (Elec. Off. Dec. at 6). Mr. Lamphere also directed those who attended this meeting to keep a special eye on Mr. Ellis and two other individuals who had campaigned actively on behalf of the Carey slate, adding that he wished to bring disciplinary charges against them. Mr. Lamphere reiterated these remarks at a meeting of supervisors held in June 1991. Although Roadway denied that Mr. Lamphere made these remarks, the Election Officer credited Mr. Johnson's testimony because Mr. Johnson had no motive to lie, is no longer a Roadway employee due to his retirement in October 1991, and can expect no benefit from the current IBT administration because he has terminal brain cancer. See id. at 7. The Election Officer also proffered the possibility of a collusive relationship between Roadway and Burlington: Mr. Lamphere had worked for Burlington, and the Election Officer suggested that Burlington breached its policy prohibiting truck drivers from taking breaks on the premises to collect incriminating evidence on Mr. Ellis. Breaching the policy would have been necessary to collect such evidence because Burlington allegedly discovered Mr. Ellis sleeping while on break, which is not misuse of company time. Furthermore, the Election Officer noted that "Mr. Ellis was the first and only employee to be discharged by Roadway for misuse of company time who did not have prior discipline for that offence [sic] within nine (9) months of the date of discharge." (Elec. Off. Dec. at 8). Based on these findings, the Election Officer concluded that Mr. Ellis' discharge was in retaliation for his campaign activities, and thus, in violation of Article VIII, Section 10(a) of the Election Rules. *fn1" Because even absent the discharge Mr. Ellis would have resigned his position at Roadway to assume his position in the IBT administration, the Election Officer ordered Roadway to rescind its discharge action and provide him an "honorable resignation." The Election Officer refused, however, to award Mr. Ellis back pay because following his discharge he chose not to mitigate damages, but rather opted to campaign on a full-time basis for International Union office.

 Roadway appealed the Election Officer's decision to the Independent Administrator, who held a hearing by telephone conference on June 29, 1992. The Independent Administrator affirmed the Election Officer's finding of retaliatory discharge, but reversed the Election Officer's refusal to award Mr. Ellis back pay. The Independent Administrator based his finding of retaliatory discharge, in part, on the testimony of Mr. Johnson, which the Independent Administrator found credible, and in part on the severity of the penalty imposed upon Mr. Ellis in light of penalties imposed upon other Roadway employees. The Independent Administrator found that "Mr. Ellis was set-up so that a serious disciplinary proceeding could be initiated against him." (Decision of the Independent Administrator ("Ind. Admin. Dec.") at 8). The Independent Administrator reversed the Election Officer's back pay decision after finding that Mr. Ellis had attempted to mitigate damages suffered due to the discharge by seeking other employment until January 1992, when Mr. Ellis learned he had been elected to International Union office. The Independent Administrator found that the Election Officer's decision concerning Mr. Ellis' efforts to obtain employment stemmed from an erroneous assumption: The parties had not submitted evidence on Mr. Ellis' attempts to mitigate damages, nor had the Election Officer requested such evidence, due to his assumption that given Mr. Ellis' heavy campaign schedule, he did not look for work.


 Roadway challenges the Independent Administrator's decision on the grounds that: (1) the Election Officer and the Independent Administrator had no authority to render decisions in this case because their authority under the consent Decree had lapsed; (2) this Court has no authority to enforce orders issued under the consent Decree against Roadway, which is not a party to the consent Decree; (3) the Independent Administrator's decision is arbitrary and capricious. Roadway's arguments are without merit.

 A. The Election Officer and the Independent Administrator Had Authority to Resolve this Matter

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