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TUSINO v. INTERNATIONAL BHD. OF TEAMSTERS

June 6, 1996

ERNEST TUSINO, Plaintiff, against INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, and RONALD CAREY, individually and in his capacity as General President of the International Brotherhood of Teamsters, Defendants.


The opinion of the court was delivered by: EDELSTEIN

OPINION & ORDER

 EDELSTEIN, District Judge:

 Pursuant to Federal Rule of Civil Procedure ("Rule") 65, plaintiff, Ernest Tusino, ("Tusino" or "plaintiff") brings the instant motion, seeking a preliminary injunction, enjoining defendants from imposing disciplinary sanctions that defendant Ronald Carey ("Carey") imposed on plaintiff, pursuant to Carey's authority as General President of the International Brotherhood of Teamsters ("the IBT"). Tusino further asks this Court to issue a preliminary injunction, ordering that "Plaintiff be immediately reinstated as a member of the New England Teamsters Pension Trustee Board" and "suspending the [IBT] Local 170 national delegate election until such time as the Office of the Election Officer investigates and makes a determination on Election Office Case No. P-639." (Plaintiff's Motion for Preliminary Injunction Pursuant to F.R.C.P. 65 ("Plaintiff's Notice of Motion") at 1-2.)

 BACKGROUND

 Tusino has been a member of IBT Local 170 ("Local 170") in Worcester, Massachusetts since 1950. (Tusino v. International Bhd. of Teamsters, et al., 96 Civ. 2774, Verified Complaint ("Verified Complaint") P 5.) "Since 1988, Plaintiff has continuously held the position of Secretary-Treasurer of Local 170. Plaintiff is also a trustee of the New England Teamsters Pension Trustee Board." Id.

 On February 28, 1994, Administrative Law Judge Martin J. Linsky ("Judge Linsky") conducted a hearing on the charges brought against Local 170. Id. At the hearing, Judge Linsky heard testimony from Tusino, Welk, and George Valeri ("Valeri") who was one of Local 170's "business agents responsible for the construction industry." Id. at 4.

 In a decision dated July 26, 1994, Judge Linsky found that "there can be no doubt that, in practice, [Local 170] operated an exclusive hiring hall with respect to the construction industry." Id. at 5. Because Local 170 operated an exclusive hiring hall, Judge Linsky found that the NLRA mandated that Local 170 operate "with due regard to the fair and equal treatment in granting referrals" and ordered that Local 170 could not refuse "to refer an individual to work . . . for discriminatory reasons." Id. (citations omitted).

 Judge Linsky further found that: (1) Local 170 violated sections 8(b)(1)(A) and (2) of the NLRA "by maintaining an exclusive hiring hall for construction whereby employment referrals were made without reference to objective standards or criteria, and in an otherwise discriminatory manner"; and (2) Local 170 violated sections 8(b)(1)(A) and (2) of the NLRA "by failing and refusing to refer Richard Welk for employment for arbitrary and discriminatory reasons." Id. at 7.

 In reaching the conclusion that Local 170 had violated provisions of the NLRA, Judge Linsky discussed both the testimony at the hearing and Tusino's affidavit of June 17, 1993. (See Affidavit of Ernest Tusino ("Tusino Affidavit") (June 17, 1993) (attached at Exhibit #11 to Affidavit of Mary E. Connelly (April 2, 1996).) Judge Linsky's decision states that the parties did not dispute that Local 170 lacked "written rules or guidelines governing the referral of individuals." NLRB Decision at 5. He further found that "the record evidence" indicated that "Tusino and Valeri did not use any objective criteria in referring individuals to particular jobs in April and June 1993 or, for that matter, at any time." Id. Judge Linsky found that Tusino's and Valeri's testimony made it "quite evident . . . that they referred relatives and supporters to these jobs." Id. Judge Linsky stated that, in making referrals, Tusino relied on his subjective knowledge of an individual's experience, financial situation, and the length of time that individual had been unemployed. See id. at 5-6. Judge Linsky found that "the reliance on such personal knowledge is purely subjective because the business agent making the reference is more likely to be familiar with the situation of his friends and supporters[,] and it is difficult indeed to know the personal situations of thousands of union members." Id. at 6 (citation omitted). Moreover, although Judge Linsky found that Local 170 "maintained referral lists," he not only concluded that four separate lists were in use, but also found that "Valeri and Tusino testified that there was no rhyme or reasons to the lists, and [they] referred individuals who were not even on the lists." Id. at 6. He concluded that "the Union gave no priority to those individuals who were on the referral lists." Id.

 After Judge Linsky rendered his decision, the Administrator of the IBT's Ethical Practices Committee ("EPC") brought a specification that alleged that Tusino and Valeri "brought reproach upon the IBT in violation of Article II, § 2(a) and Article XIX, §§ 7(b)(1), (2) and (5) of the International Constitution by engaging in nepotism in work referrals, unlawful, arbitrary and discriminatory manipulation of hiring hall procedures in order to obtain work for their relatives, friends and political supporters and by discriminating against Local 170 member Richard Welk because he filed unfair labor practice charges with the [NLRB] against the Local." (Findings and Recommendations of EPC Hearing Panel, In re: Earnest Tusino and George Valeri ("EPC Decision") at 1 (Jan. 4, 1996) (attached as Exhibit #2 to Verified Complaint).) Tusino and Valeri "were also charged with violating Article 7, § 11 and Article 14, § 4 of the Local 170 Bylaws which provides that Local Union Officers and Business Agents are obligated to comply with and abide by the International Constitution and Local Union Bylaws." Id. at 1-2.

 The EPC conducted a hearing on these charges on March 27, 1995, and May 16, 1995. Id. at 2. Although Valeri and Tusino testified at the hearing, Richard Welk did not. See id. at 5-6. At the hearing, "the charging party . . . relied exclusively on the record from the NLRB proceeding in presenting his case to [the EPC]." Id. at 4. In contrast, Tusino and Valeri testified that "Local 170 did not operate a discriminatory hiring hall" and they "attack[ed] Welk's credibility[,] claiming that he is a gun-toting, antisemitic racist and concerned only with himself and not his other Union brothers." Id. at 5. Moreover, Tusino asserted that his June 17, 1993, affidavit--which Judge Linsky found to be evidence that Local 170 was operated improperly--"was not accurate and that it was taken out of context." Id.

 On January 4, 1996, the EPC issued a decision that found the charging party had failed to produce sufficient evidence to substantiate the charges against Tusino. The EPC Decision states that the EPC was "troubled with the charging party's extreme reliance on the NLRB proceedings." Id. at 6. This decision states that "while the NLRB proceedings may indeed be relevant and are certainly evidence in this case, the [EPC] is of the opinion that this case should have been tried as if it was [sic] being tried for the first time." Id.

 Moreover, the EPC Decision found that Tusino and Valeri had presented evidence that was sufficient to rebut the charge that Local 170 had discriminated against Welk by refusing to refer him for work. The EPC found that "other than [the] purported instance with Mr. Welk, there were no other instances shown by the charging party that discriminatory referrals were made." Id. at 10-11. Moreover, the EPC found that "Tusino has adequately explained the events surrounding the job referrals to Worthy Brothers," and the EPC did not find that Tusino discriminated against Welk. Id. Tusino testified that he did not refer Welk for a job with Worthy Brothers because Welk was the eighth man on a list of Local 170 members looking for work and the employer only needed seven workers. Id. at 7. Tusino and Valeri also "presented some evidence that employees who were referred to Worthy Brothers had been out of work longer than Welk." Id. Accordingly, the EPC found that "it appears from a preponderance of the reliable evidence that there was [sic] not enough positions available and other Local 170 members who were out of work longer." Id. at 11.

 The EPC also found that the practice of referring work at Local 170 without written guidelines did not constitute a violation of the IBT Constitution or Local 170's Bylaws. The EPC stated that "while it appears that Local 170 suffered from a historical lack of written guidelines, these problems have since been cured." Id. The EPC noted that "Tusino's and Valeri's defense that the lack of written guidelines has gone on for years in Local 170 as well as other locals is no defense." Id. The EPC found, however, that Tusino and Valeri "were simply fortunate in this case that the charging party failed to show where the lack of written guidelines was the basis for any discriminatory conduct." Id.

 In addition, the EPC found that there was insufficient evidence in the record to substantiate the allegation that Tusino had engaged in nepotism. The EPC noted that Tusino testified that he "refused to refer his own son-in-law . . . to a position because [the son-in-law] had quit a full-time, well-paying Local 170 job with a beverage distributor." Id. at 10 (citation omitted). "Tusino testified that the reason he did not refer his son-in-law to any positions was that he had other [Local 170] members who had been out of work longer and he could not justify referring his son-in-law to a job after his son-in-law had left a full-time well-paying position." Id. (citation omitted). The EPC found that "if anything, this [conduct] shows that Tusino did not engage in nepotism." Id.

 After the EPC issued its "Findings and Recommendations," the charges against Tusino were referred to IBT General President Carey, who issued a "Decision of the General President" on March 14, 1996. (Decision of the General President, In re: Ethical Practices Committee Charges Against Ernest Tusino and George Valeri ("General President's Decision") (March 14, 1996) (attached as Exhibit #3 to Verified Complaint).) Contrary to the EPC Decision, Carey found that "the charges against [Tusino and Valeri] have been proven [sic] by a preponderance of the reliable evidence." Id. at 2. Carey noted that Judge Linsky's decision stated that "'it could not be clearer' that Bother Tusino, as an agent of Local 170, unlawfully refused to refer member Richard Welk for work because [Welk] had filed an unfair labor practice charge against the Local Union with the NLRB," and Carey found that Judge Linsky had based this conclusion on Tusino's June 17, 1993, affidavit. Id. Carey found that in this affidavit, Tusino "admitted that in 1993 he had refused to refer Brother Welk for work to an employer, Worthy Brothers, because Brother Welk had filed an unfair labor practice charge against the Local Union." Id.

 Unlike the EPC, Carey did not find credible Tusino's claim that "he had not read the affidavit . . . before signing it and was misquoted" in the affidavit. Id. at 3. Although the EPC "found credible Brother Tusino's claim that he had been pressured or misinterpreted by the NLRB investigator" who drafted the affidavit for Tusino's signature, Carey "disagreed with the panel's finding on this point." Id. Carey noted that "Tusino admitted at the NLRB hearing that he had previously given affidavits to Board agents and, therefore was familiar with the procedures for affidavit taking." Id. at 4. In addition to Tusino's experience with affidavits, Carey found that "the length of the affidavit, twenty-two (22) pages, suggests that Brother Tusino spent some time with the Board agent giving, reviewing and signing his statement." Id. Carey also found that it was unlikely that Tusino did not carefully review the affidavit in light of the fact that "Tusino initialed each of the twenty-two pages in the affidavit and also signed it after affirming under oath: 'I have read this statement consisting of 22 pages, including this page, I fully understand its contents, and I certify that it is true and correct to the best of my knowledge and belief.'" Id.

 Carey also disagreed with the EPC's conclusion that Tusino did not refer Welk for a job because Welk's "name was too low on the out-of-work list." Id. Carey found that at the EPC hearing, "Tusino produced no evidence to support his claim that Welk would not have been called for work at Worthy Brothers because only the persons ahead of [Welk] on Bother Tusino's list were referred for work." Id. Carey noted that "the list referred to was not introduced into evidence and the undisputed testimony was that at least four separate lists existed, and that the lists were not always referred to." Id.

 In addition, Carey disagreed with the EPC's conclusion that there was insufficient evidence in the record to substantiate the charge that Tusino and Valeri had operated Local 170's exclusive hiring hall in an arbitrary and discriminatory manner. Carey stated that Tusino "admitted at the NLRB hearing that he . . . used a variety of subjective criteria in making referrals, none of them in writing, and made referrals for improper reasons." Id. at 7. Carey noted that "Tusino testified at the NLRB hearing that among the factors he considered in referring an individual was whether that person was a supporter of his." Id. Although the EPC had found that the record lacked evidence that members of Local 170 were harmed by Tusino's and Valeri's use of subjective referral criteria, Carey concluded that "members are necessarily harmed by the existence of a referral system that operates to reward supporters, relatives and friends with job referrals." Id. at 9.

 Further, Carey rejected the EPC's finding that the record did not demonstrate that Tusino had engaged in nepotism. Carey found that the EPC incorrectly "relied on Brother Tusino's testimony that he refused to refer his own son-in-law to a job because [the son-in-law] had resigned from a well-paying job with a beer distributor as evidence that Brother Tusino did not engage in nepotism in making job referrals." Id. at 7. Carey found that "although Brother Tusino testified before the EPC Panel that he initially refused to refer his son-in-law for work because [the-son-in-law] had quit his job, [Tusino] testified ...


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