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UNITED STATES v. INTERNATIONAL BHD. OF TEAMSTERS

January 9, 1997

UNITED STATES OF AMERICA, Plaintiff, -against- INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., Defendant. IN RE: APPLICATION XXX OF THE INDEPENDENT REVIEW BOARD


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge :

 TABLE OF CONTENTS

 I. BACKGROUND

 
A. The IRB's Hearing and 1995 Opinion & Decision
 
1. The Charges Against Giacumbo
 
a. Charge One
 
b. Charge Two
 
c. Charge Three
 
2. The Sanctions
 
B. IRB Application XXV
 
C. This Court's Remand of Application XXV
 
D. The IRB's Supplemental Hearing and 1996 Opinion & Decision
 
E. IRB Application XXX

 II. DISCUSSION

 
A. Giacumbo's Objections to Application XXV
 
1. The Recusal of Judge Lacey
 
2. The Sufficiency of the Evidence
 
a. Embezzlement
 
b. Bylaw Violations
 
i. Purchasing Computer Equipment For Local 843
 
ii. Purchasing a Laptop Computer From Local 843
 
iii. Charging Personal Expenses on Local 843's American Express Card
 
iv. Obtaining Only One Signature on Local 843 Checks
 
c. The Allways Organizing Attempt
 
3. The Appropriateness of the Sanctions
 
B. Giacumbo's Objections to Application XXX
 
1. Remand Procedure
 
2 Supplemental Hearing Testimony
 
a. Giacumbo's Claim that the IRB Ignored Testimony
 
b. Giacumbo's Claim that the IRB Mischaracterized Testimony
 
3. Union Democracy
 
4. Giacumbo's Violations of the IRB's Initial Sanctions
 
5. The Appropriateness of the Sanctions

 III. CONCLUSION

 I. BACKGROUND

 Application XXX presents for this Court's review the decision of the IRB *fn1" regarding disciplinary charges brought against Gene Giacumbo ("Giacumbo"), a former President of IBT Local 843 ("Local 843" or "the Local") located in Springfield, New Jersey. From January 1, 1990, to December 31, 1992, Giacumbo was Local 843's President and principal officer. (Report of Charges from the Independent Review Board to Gene Giacumbo ("IRB Report") at 4 (Mar. 20, 1995).) In 1992, Giacumbo lost the Local 843 election. Id. During Giacumbo's tenure as president, Local 843 maintained a membership of approximately 500 Teamsters, the majority of whom were employees of the Anheuser Busch brewery in Newark, New Jersey. Id.

 The events which gave rise to the instant charges against Giacumbo began with a December 22, 1993, letter (the "December 1993 letter") from Aaron Belk, the Teamsters Ethical Practices Committee Administrator, to the Chair of the Eastern Conference of Teamsters Ethical Practices Committee Panel (the "EPCP"). Id. The December 1993 letter contained a list of twelve allegations of wrongdoing by Giacumbo. Id. It did not, however, charge Giacumbo with violating any specific provision of either the IBT Constitution or the Local 843 Bylaws. Id. In response to the December 1993 letter, the EPCP held hearings concerning the charges against Giacumbo on March 14 and 15 and on April 4 and 5, 1994. Id. This hearing was not concluded, however, because the Giacumbo matter was transferred to the IRB with the consent of Giacumbo and the IBT. Id.

 The IRB conducted an investigation into the allegations against Giacumbo, and subsequently levelled three charges against him. The charges against Giacumbo are contained in an investigative report issued by the IRB on March 20, 1995. (IRB Report at 31-34.) The IRB report charges Giacumbo as follows:

 
[Charge One :] While the principal officer of Local 843, you allowed employees of Allways Travel, including a friend of yours, to join Local 843 without negotiating any collective agreement of their behalf, but in an effort to assist their employer to obtain the IBT travel contract and to allow such members to be eligible to vote for you in the 1992 Local 843 election thereby bringing reproach upon the IBT in violation of Article II, Section 2(a) and Article XIX, Section 7(b)(1) and (2) of the IBT Constitution, to wit :
 
By allowing a friend and others who work on commission at Allways Travel to join the union in order for their employer to gain an edge in receiving an IBT contract, you ignored the stated objects of the Local as set forth in Article II, Section 2.01(A)(2) and (3) of the Local's bylaws. In addition, you waived the initiation fee for the employees of Allways Travel without the approval of the Local's Executive Board as required by Article IX, Section 9.01(B) of the Local Bylaws. Moreover, you tried to obtain health insurance for the Allways employees, not as a condition of employment with an employer, but by reducing yourself and the Local to an insurance broker who was searching for a policy from other Locals. By allowing the Allways employees, for whom the Local performed no collective bargaining representation, to join Local 843 only to pay dues at a time to ensure [that] they would be eligible to vote in the Local's election, you recruited individuals to join the union in order to be eligible to vote for you in the 1992 Local election.
 
[Charge Two :] While the principal officer of Local 843 you engaged in a pattern of violating financial control provisions in the Local Bylaws, the IBT Secretary Treasurer's Manual and the IBT Constitution thereby breaching your fiduciary duties and bringing reproach upon the IBT and violating Article IV, Section 4.02(D), Article V, Section 5.01(A)(8) and (9) and Section 5.01(E) and Article IX, Section 9.01(B) of the Local Bylaws, Section 4 of the IBT Secretary Treasurer's Manual and Article II, Section 2(a) and Article XIX, Section 7(b)(1) and Article XXIII, Section 3 of the IBT Constitution, to wit :
 
In 1992, while the Local's principal officer, you waived the $ 150 initiation fee for the employees of Allways Travel. The Local 843 Executive Board did not approve this waiver as required by Article IX, Section 9.01(b) of the Local Bylaws.
 
Between approximately June 1991 and October 1992, you caused the Local to purchase a total of $ 15,752.34 in computer equipment without the approval of the Local's members as required by Article V, Section 5.01(A)(8) of the Local Bylaws. In or about December 1992, you purchased a laptop computer and a portable printer from the Local without the approval of the Local's members as required by Article V, Section 5.01(A)(9) of the Local Bylaws.
 
In 1992[,] you charged approximately $ 824.60 in personal expenses to the Local 843 American Express card and later reimbursed the Local for these charges. This conduct was prohibited by Section 4.1 of the IBT Secretary Treasurer's Manual which states "Under no circumstances should personal expenses be charged and/or run through the Local union books." (alteration in IRB Report) (emphasis omitted).
 
Between January 1990 and January 1992, while a full-time salaried Local officer, you received in addition to your salary a total of approximately $ 1,440 for attending Executive Board meetings in violation of Article V, Section 5.01(E) of the Local Bylaws.
 
Between August and November 1990, you issued seven Local 843 checks by signing your signature and the signature of the Local 843 Vice President on these checks. On or about October 16, 1991 you issued a check to yourself with only your signature. On or about May 7, 1992, you transferred money from the Local's account with an investment company to the Local's general fund by issuing a check drawn on the investment account with only your signature. This conduct violated both Article XXIII, Section 3 of the IBT Constitution and Article IV, Section 4.02(D) of the Local 843 Bylaws which required two officer signatures on all Local Union checks.
 
[Charge 3 :] While an International Vice President and the President of Local 843, you failed to return to the IBT $ 1,600 in monthly car allowances you received between February 1992 and May 1992 when the Local was also paying your car expenses[,] thereby breaching your fiduciary duties and embezzling and converting $ 1,600 of IBT funds to your own use in violation of Article V, Section 1(e) and Article II, Section 2(a) and Article XIX, Section 7(b)(1), (2) and (3) of the IBT Constitution, to wit :
 
In the period from February 1992 through May 1992, you received a $ 400 monthly IBT car allowance while at the same time having Local 843 pay you car expenses. Pursuant to Article V, Section 1(e) of the IBT Constitution, "allowances and expenses paid by the International Union shall be in lieu of any similar payment by a subordinate body or affiliate."
 
On or about June 1, 1992, you told the IBT to stop the monthly car allowance. However, you converted $ 1,600 in IBT funds to your own use by not reimbursing the IBT for the monies you had already been given.

 (IRB Report at 31-34.)

 Because of the complexity of the instant matter's procedural history, this Court will review it at length. This Court will discuss: (1) Giacumbo's initial IRB hearing and the corresponding 1995 IRB Opinion and Decision imposing sanctions on Giacumbo; (2) Application XXV of the IRB ("Application XXV") seeking this Court's affirmance of the IRB's 1995 Opinion and Decision regarding Giacumbo; (3) this Court's remand of Application XXV to the IRB; (4) Giacumbo's supplemental IRB hearing and the corresponding 1996 IRB Opinion and Decision imposing enhanced sanctions on Giacumbo; and (5) Application XXX of the IRB ("Application XXX") seeking this Court's affirmance of the IRB's 1996 Opinion and Decision regarding Giacumbo.

 A. The IRB'S Hearing and 1995 Opinion & Decision

 On March 20, 1995, the IRB transmitted to Giacumbo a Notice of Hearing (the "Notice") and the IRB Report describing the three charges against him. (1995 IRB Opinion & Decision at 2.) The Notice informed Giacumbo that he was entitled to "present any evidence relevant to defense of the charges against [him]." (Transcript of Independent Review Board Meeting Re: Mr. Gene Giacumbo, United States v. International Bhd. of Teamsters, 88 Civ. 4486 ("Tr.") Exh. 9A (May 24 & 25, 1995).)

 In a letter to the IRB dated May 16, 1995, Giacumbo requested that IRB member Judge Frederick B. Lacey ("Judge Lacey") recuse himself from participating in the IRB proceedings against Giacumbo. (Respondent Gene Giacumbo's Objections to the IRB's Opinion and Decision, United States v. International Bhd. of Teamsters, 88 Civ. 4486 (App. XXV Objections") at 6 (Dec. 4, 1995).) Giacumbo predicated his recusal request on statements allegedly made by Judge Lacey which Giacumbo argued reflected a political bias in favor of IBT General President Ron Carey ("Carey"), and against Carey's political opponents, including Giacumbo. Id. By letter dated May 17, 1995, Judge Lacey informed Giacumbo's attorney, J. Bruce Maffeo, Esq. ("Maffeo"), that he would not recuse himself, and that he had no objection to Giacumbo's bringing the recusal issue before this Court. Id. On May 19, 1995, Giacumbo filed an application for an Order to Show Cause before this Court seeking a hearing regarding Judge Lacey's alleged bias. Id. On May 22, 1996, this Court denied Giacumbo's application. Id.

 Although Judge Lacey declined to recuse himself, IRB member Judge William Webster ("Judge Webster") voluntarily recused himself from all proceedings regarding Giacumbo due to Judge Webster's past association with Anheuser Busch, the Local 843 members' principal employer. (Letter from the Honorable William H. Webster to the Honorable David N. Edelstein, United States District Judge for the Southern District of New York (May 8, 1996).) As a result, the IRB panel before which Giacumbo appeared consisted solely of Judge Lacey and Grant Crandall, the third IRB member.

 On May 24 and 26, 1995, the IRB held a hearing concerning the charges against Giacumbo in New York City (the "hearing"). (Chief Investigator's Memorandum of Law In Support of the Independent Review Board's Application XXV, United States v. International Bhd. of Teamsters, 88 Civ. 4486 ("CI Memo") at 2 (Dec. 14, 1995).) Giacumbo attended the hearing and was represented by counsel. (Tr. 2)

 At the hearing, the Chief Investigator presented the IRB with exhibits, including the IRB Report, as well as testimony regarding the significance of each exhibit. (Tr. 21.) Giacumbo called several witnesses in his defense. See id. at 42-190. In addition, Giacumbo testified at the hearing in his own behalf. Id. at 190-223 & 232-379. This Court will review the evidence presented to the IRB concerning each of the charges against Giacumbo. This Court will then discuss the sanctions the IRB imposed on Giacumbo.

 1. The Charges Against Giacumbo

 a. Charge One

 The first charge against Giacumbo alleges that he improperly permitted employees of Allways to join Local 843. Allowing the Allways employees to join the Local was alleged to be improper because their membership was for two purposes other than representing them in collective bargaining--the only legitimate reason for IBT membership. (1995 IRB Opinion & Decision at 2.) The actual reasons alleged for the Allways employees' membership were that: (1) Giacumbo expected the Allways employees to vote for him in the upcoming Local 843 nomination meeting and election; and (2) Giacumbo would assist Allways in its bid for the IBT travel contract. Id.

 Allways is located in Sea Bright, New Jersey, Giacumbo's home town. Id. The IRB was presented with evidence that, from 1990 to 1992, Giacumbo maintained a "personal relationship" with Antoinette ("Toni") Russo ("Russo"), a travel agent at Allways. Id. ; (Tr. 265-66.) Until that time, no business relationship existed between Local 843 and Allways or its employees. (1995 IRB Opinion & Decision at 2); (Tr. 337-38.) After the relationship between Giacumbo and Russo began, however, "about five full-time employees of Allways, including Russo, on or about April 29, 1992[,] signed dues checkoff cards for Local 843." (1995 IRB Opinion & Decision at 2.) Giacumbo was responsible for bringing these new members into the Local. Id.

 The IRB received evidence that Giacumbo "negotiated" with the Allways employees to calculate a "favorable" dues rate of $ 10 per month each. Id. at 2-3. By comparison, the Local 843 members who work at the Anheuser Busch brewery each pay $ 36 per month. Id. at 3 n.2. In addition, the Allways employees did not pay their union dues until September 1992, nearly four months after they became members of Local 843. Id. at 3. When the Allways employees' dues were paid, the "dues for all five members were paid in a lump sum by a personal check from Russo." Id. at 3 & Exh. 21. Russo again used her own personal checks to pay the October and November dues for all five Allways employees. Id. at 4.

 Under Article VIII, Section 8.01(C)(1) of the Local 843 Bylaws, Russo's payments rendered the Allways employees eligible to vote at the November 1, 1992, meeting at which nomination for Local 843 officers occurred, as well as in the subsequent Local 843 election which was conducted by ballots mailed on November 12, 1992. Id. at 4 & 4 n.5. Giacumbo ran as the incumbent Local President at both the November 1 meeting and the November 12 election. Id. at 4. He won the nomination, but lost the election by approximately 51 votes on December 2, 1992. Id. ; (Tr. Exh. 27.) Within twenty days of Giacumbo's loss, each of the Allways members of Local 843 withdrew from the Local, and the Local did not make any demonstrable effort to retain the Allways members. (1995 IRB Opinion & Decision at 4-5.)

 In addition, the IRB was presented with evidence that, at approximately the same time that the Allways employees signed authorization cards to become members of Local 843, the IBT's travel contract was "up for bid" and several travel agencies, in addition to Allways, submitted travel bids to the IBT. Id. at 5. In his testimony at the hearing, Giacumbo stated that he informed the Allways employees that he would endorse the Allways bid for the IBT's travel contract only if Allways became a "union shop." Id. ; (Tr. 267.) Moreover, Local 843 Recording Secretary Deborah Kuffer ("Kuffer"), one of the witnesses Giacumbo called at the hearing, identified the travel contract as "the reason" the Allways employees became Teamsters. (1995 IRB Opinion & Decision at 5 & 5-6 n.9.) Giacumbo admitted at the hearing that he personally delivered Allways' bid for the IBT travel contract. Id. at 6. On or about August 4, 1992, however, the IBT travel contract was awarded to another travel agency. Id. Nevertheless, even after Allways failed to obtain the IBT travel contract, Giacumbo encouraged other union officials to use Allways for their IBT travel. Id. at 6; (IRB Report at Exh. 51, at 36-37.)

 The IRB notes that "Giacumbo's testimony [at the hearing] regarding any collective bargaining purpose for the relationship between the Local, the five or six Allways employees, and Allways, is remarkably sparse." (1995 IRB Opinion & Decision at 6.) According to Giacumbo, the Allways employees, including Russo, expressed their concerns to him about the health benefits package that Allways provided them. Id. ; (Tr. 266, 272.) Despite Giacumbo's alleged interest in this matter, Local 843 neither handled grievances nor conducted formal negotiations on behalf of Allways' employees. (1995 IRB Opinion & Decision at 6.) Instead, Giacumbo previously testified at a deposition conducted by Celia A. Zahyner, Esq., Special Counsel to the IRB's Chief Investigator's Office, that he spoke with officials at other Local Unions regarding whether the Allways employees could participate in any of the locals' health care plans. Id. at 7; (IRB Report at Exh. 1, at 152-53.) Giacumbo's testimony, however, is rendered suspect by the conflicting statements of Mario F. Perrucci ("Perrucci"), a former Vice president of IBT Local 171. (IRB Report at Exh. 51, at 38.) According to Perrucci, when Giacumbo met with Perrucci, Giacumbo mentioned obtaining health coverage for Russo only, not any of the other Allways employees. (IRB Report at Exh. 51, at 38.)

 Based on the evidence presented at the hearing, the IRB determined that the Chief Investigator had established that Giacumbo committed the conduct with which he was accused in Charge One. First, the IRB found that, "by allowing the Allways employees, for whom the Local performed essentially no collective bargaining representation, to join Local 843 only to pay dues at a time when they would be eligible to vote in the Local election, Giacumbo recruited individuals to join the union in order to be potentially eligible to vote for him in the Local Election." (1995 IRB Opinion & Decision at 7.)

 Second, the IRB found that Giacumbo violated Article II, Section 2.01(A)(2) and (3) of the Local 843 Bylaws. These provisions in relevant part provide:

 
The objects of this Local Union shall be: . . .
 
(2) To engage in organizing workers to provide services to those who are organized;
 
(3) To secure improved wages, hours, working conditions and other economic advantages through organization, negotiations and collective bargaining, through legal and economic means, and other lawful methods.

 Id. at 7-8 (citing IRB Report at Exh. 19). The IRB thus found that, "by permitting a friend and others who work on commission to join the union in order for their employer to gain an edge in receiving an IBT contract, Giacumbo ignored the stated objects of the Local." Id. at 7. Moreover, "in reducing himself and the Local to an insurance broker who was searching for a policy from other locals, Giacumbo violated his obligations to the union." Id.

 In reviewing the evidence presented to it, the IRB found that "Giacumbo's testimony[,] as well as the circumstances he acknowledged, support our finding that the membership of the Allways employees was not solicited for any purpose within [Article II, Section 2.01(A) (2) and (3) of the Local 843 Bylaws]." Id. at 8. The IRB states that while Giacumbo's recollection is clear concerning both the details of his setting the Allways' employees union dues and his efforts to promote Allways' business interests, Giacumbo's "recollection regarding any efforts on his or anyone else's part to obtain benefits for the employees through the collective bargaining process is unclear and lacking in any meaningful corroborative detail." Id. Instead, the IRB found that Giacumbo's "efforts to obtain medical insurance coverage appear to be more like that of an insurance broker searching for a policy from other sources rather than an effort actually to obtain such benefits through the collective bargaining process." Id. Moreover, the IRB "specifically discredited Giacumbo's testimony" regarding his efforts to obtain health benefits for Allways employees through collective bargaining as a result of his demeanor as well as conflicts in his testimony. Id. at 8-9 & 9 n.12.

 The IRB also reasoned that "given the timing of the payment of the dues of the Allways employees, the personal relationship of Giacumbo and Russo, the circumstances that little or nothing was done to foster the proffered legitimate purpose for the transaction and the resignation from the union of the Allways employees when Giacumbo was not re-elected to the position of Local Union President, we find that the relationship between the Local and Allways employees was not formed to obtain benefits of collective bargaining for those employees." Id. at 9. In addition, the IRB found that "the circumstances of the unlikelihood of a bona fide organizing effort for such a small number of employees in an area of commerce unfamiliar to the union . . . also weighs heavily against the legitimacy of the relationship" between Local 843 and Allways. Id. In light of the foregoing evidence, the IRB concluded that "the purpose of the [Local 843-Allways relationship] was to promote the political career of Giacumbo," in violation of Article II, Section 2(a) and Article XIX, Section 7(b)(1) and (2) of the IBT Constitution. Id. at 10.

 b. Charge Two

 Charge Two accuses Giacumbo, as Local 843's principal officer, of engaging in a pattern of ignoring the financial control requirements of the IBT Constitution, the Local Bylaws, and the IBT Secretary-Treasurer's Manual. Id. at 11. The conduct underlying these violations includes: (1) waiving the $ 150 initiation fee for the Allways employees without the requisite approval of the Local's Executive Board; (2) releasing Local 843 checks to himself without two required signatures; (3) purchasing computer equipment for the Local and then buying part of the equipment back from the Local for his personal use; (4) charging personal items on the Local's American Express card and later reimbursing the Local; and (5) receiving payments in addition to his salary for attending Executive Board meetings. Id. at 12.

 In support of the first instance of Giacumbo's financial misconduct, the Chief Investigator presented the IRB with Local 843 records showing that "the Allways employees did not pay any initiation fee to Local 843." Id. at 11 n.16; (IRB Report at Exhs. 17 & 23.) Article II, Section 2(a) and XIX, Section (7)(b)(1) and (2) of the IBT Constitution and Article IX, Section 9.01(B) of the Local 843 Bylaws provide that only the Local's Executive Board can approve the waiver of a member's initiation fee. (1995 IRB Opinion & Decision at 11 n.16); (IRB Report at Exhs. 19 & 36.) The IRB was also presented with evidence that the Local 843 Executive Board minutes do not contain "any mention of Allways, let alone any Executive Board approval to waive the initiation fee for the Allways employees." (1995 IRB Opinion & Decision at 11 n.16); (IRB Report at Exhs. 11-13.) As a result, the IRB determined that Giacumbo violated Article II, Section 2(a) and XIX, Section (7)(b)(1) and (2) of the IBT Constitution and Article IX, Section 9.01(B) of the Local 843 Bylaws.

 To prove the second of Giacumbo's financial misdeeds, the Chief Investigator presented the IRB with evidence that Giacumbo improperly released Local 843 checks to himself, despite having received several written warnings that such conduct was prohibited. By letter dated December 21, 1990, Steven A. Jay ("Jay"), the accountant for Local 843 at the time, advised Giacumbo that during Jay's examination of the Local's books for November 1990, Jay determined that there was a "problem" with the manner in which several of Local 843's checks had been signed. Id. at 12; (IRB Report at Exh. 44.) In that letter, Jay advised Giacumbo that the Local Bylaws required two separate officer signatures on all Local checks. (App. XXV Objections at 12.) On seven Local checks--four of which were made out to Giacumbo himself--Giacumbo signed his own name as well as the name of 843 Local Vice-President Fred Chambers ("Chambers"). Id. ; (IRB Report at Exh. 45.) Although admitting that he had committed a "technical violation" of the Local Bylaws, Giacumbo testified at his deposition that he had Chambers' authorization to sign Chambers' name on the checks, and that Giacumbo initialed Chambers' signature with his initials, "GG." Id. ; (IRB Report at Exh. 1, at 75.)

 By letter dated February 20, 1991, the IBT General Secretary-Treasurer at that time, Weldon L. Mathis ("Mathis") informed Giacumbo that:

 
It has been brought to my attention that you have signed checks for various items without obtaining the necessary second signature from another officer of the Local Union. . . . While your attorney has assured this office that you are no longer issuing checks without proper signatures, I wish to bring it to your attention that this is a serious breach of the Bylaws of the Local Union and of the Manual for Secretary Treasurers. I trust that it will not be repeated.

 Id. ; (IRB Report at Exh. 78); see also (Tr. 303-04.) In July 1991, Giacumbo asked Mathis about the "appropriate procedures for using a rubber stamp signature" together with a handwritten signature on Local checks. (1995 IRB Opinion & Decision at 13-14.) In his August 8, 1991 response setting forth the steps necessary for using a facsimile signature on Local checks, Mathis again cautioned Giacumbo. Id. at 14. Mathis stated:

 
It is the intent of Article XXIII, Section 3 of the [IBT] Constitution that a Local union follow proper internal accounting controls when processing Local Union disbursements, and the use of improperly approved facsimile signatures (which would include rubber stamp facsimile signatures) indicates that the appropriate officers of the Local union are not adhering to their fiduciary responsibilities in that disbursements can be made without their knowledge.

 Id.

 Despite these three written warnings and the assurances of his attorney that this practice would cease, the Chief Investigator presented evidence that Giacumbo continued improperly to issue Local checks. For example, on September 12, 1991, a check was issued to Giacumbo with only his signature. Id. ; (IRB Report at Exhs. 83.) Giacumbo asserts that this check was an advance for vacation pay for the week of October 7, 1991. (1995 IRB Opinion & Decision at 14); (Tr. 329.) On that same day, however, Giacumbo issued three Local 843 checks to other payees, all of which contained the requisite second signature. (1995 IRB Opinion & Decision at 15.) The IRB states that "Giacumbo could not explain why his advance vacation pay check was issued with only his signature" while the other checks were not, "nor could Giacumbo explain why he was paid on September 12, 1991[,] for vacation during the week of October 7, 1991." Id. ; (Tr. 376-78.)

 Furthermore, on October 16, 1991, Giacumbo again issued a Local 843 check to himself bearing only his signature. (1995 IRB Opinion & Decision at 15); (IRB Report at Exh. 50.) This check represented an advance on Giacumbo's salary for the weeks of October 28 and November 4, 1991. (1995 IRB Opinion & Decision at 15); (Tr. 326). That same day, Giacumbo issued three more Local checks to other payees, each of which contained the two required signatures. (1995 IRB Opinion & Decision at 15.) As with the September 12 checks, only the check payable to Giacumbo was signed solely by Giacumbo. Id. The IRB rejected Giacumbo's testimony explaining these checks on the grounds that his explanation for these transactions was not credible. Id. As a result, the IRB found that the "foregoing conduct violated both Article XXIII, Section 3 of the IBT Constitution and Article IV, Section 4.02(D) of the Local 843 Bylaws." Id.

 In support of the third episode of Giacumbo's financial misfeasance, the IRB received evidence that Giacumbo "caused the Local to purchase computer equipment in the total amount of approximately $ 15,752.34 without membership approval." Id. at 16-17. Because the IRB determined that these expenditures were "both non-routine and 'of a substantial nature,'" Article V, Section 5.01(A)(8) of the Local 843 Bylaws required the computer purchase to be made only after obtaining "specific authorization at a membership meeting." Id. at 17 n.26. The IRB found that, although the Local Executive Board discussed the "computerization [of] the office," the minutes of the Executive Board meetings were never read at a membership meeting, and the members neither were on notice of the expenditure nor did they approve it. Id. at 17-18. As a result of this conduct, the IRB determined that Giacumbo violated Article V, Section 5.01(A)(8) of the Local 843 Bylaws and Article XIX, Section 7(b)(1) of the IBT Constitution. Id. at 18.

 To prove the fourth instance of Giacumbo's financial misconduct, the Chief Investigator presented evidence to the IRB that, in December 1992, after losing the 843 Local election, Giacumbo purchased a laptop computer and a printer from the Local for $ 1,000. Id. at 19; (IRB Report at Exh. 43.) Giacumbo obtained two appraisals on the equipment, with one valuing it at $ 875, and the other at $ 920. (1995 IRB Opinion & Decision at 19.) The laptop alone originally cost approximately $ 2,500. Id. The Local's Executive Board approved Giacumbo's purchase on December 18, 1992. Id.

 Pursuant to Article V, Section 5.01(A)(9) of the Local 843 Bylaws, however, the Executive Board has the authority to:

 
sell or dispose of any real or personal estate, property, rights or privileges belonging to the organization whenever in its opinion the Local Union's interests would thereby be promoted, subject to approval (except as to form) at a membership meeting.

  Id. ; (IRB Report at Exh. 19, at 17.) No membership approval was reflected in the minutes of any Local 843 membership meeting. (1995 IRB Opinion & Decision at 19); (IRB Report at Exh. 18.) Moreover, the minutes of the Executive Board meeting at which Giacumbo's computer purchase was approved were not read to the membership. (195 IRB Opinion & Decision at 20.) Based on this conduct, the IRB found that Giacumbo violated Article V, Section 5.01(A)(9) of the Local 843 Bylaws and Article XIX, Section 7(b)(1) of the IBT Constitution by purchasing computer equipment from the Local without membership approval. Id.

  To establish the fifth example of Giacumbo's financial misdeeds, the Chief Investigator presented to the IRB evidence demonstrating that Giacumbo improperly charged personal expenses on the Local's charge card. In 1992, Giacumbo charged a total of $ 824.60 in personal charges on Local 843's American Express card. Id. After the Independent Administrator found that two other officers of Local 843 had embezzled union funds by charging personal items on their Local 843 American Express cards, Giacumbo reimbursed the Local for his personal charges on the Local's American Express card. Id. at 20 n.33.

  Charging personal expenses to the Local's charge card violates Section 4.1 of the IBT Secretary Treasurer's Manual which provides: "Under no circumstances should personal expenses be charged to and/or run through the Local Union books." Id. at 21; (IRB Report at Exh. 64.) The IRB thus found that, "by charging personal items to the Local's American Express card, Giacumbo disregarded this provision of the IBT Secretary Treasurer's Manual." (1995 IRB Opinion & Decision at 21.)

  To demonstrate the sixth instance of Giacumbo's financial misdeeds, the IRB was presented with evidence that Giacumbo improperly received payment for attending Local 843 Executive Board meetings. In 1984, prior to Giacumbo's term as Local 843 President, the Local 843 Executive Board voted to pay the President and Secretary-Treasurer $ 60 per meeting for attending Executive Board meetings. Id. at 22. From January 1990 to January 1992, when Giacumbo was a full-time paid officer of Local 843, he received $ 60 for every Executive Board meeting he attended, for a total of $ 1,440. Id.

  Article V, Section 5.01(E) of the Local 843 Bylaws provides: "By action of the Local Union Executive Board, members of the Board who are not full-time paid officers or employees of the organization may be paid their expenses, including wages lost, if any, for attendance at each meeting of the Board." Id. ; (IRB Report at Exh. 19, at 19.) The IRB determined that, despite the 1984 Executive Board vote to the contrary, Giacumbo's receipt of the $ 60 payments violated the Local Bylaws. (1995 IRB Opinion & Decision at 22.) The IRB also rejected Giacumbo's claim that his administration simply followed prior practice of the Local with respect to paying the full-time officers to attend Executive Board meetings. Id. The IRB first explained that "the defense of past practice is not available in the face of specific wording of the foregoing bylaws." Id. at 23. In addition, the IRB reasoned that because, unlike the previous administration, the Executive Board meetings under the Giacumbo administration were held during the day, the claim that the $ 60 fee constituted overtime compensation is unavailable. Id. at 22 n.37. As a result, the IRB found that Giacumbo violated Article V, Section 5.01(E) of the Local Bylaws.

  c. Charge Three

  Charge Three accuses Giacumbo of embezzling $ 1,600 from Local 843. Giacumbo became an IBT Vice President in February 1992. Id. at 23. The IRB was presented with evidence that between February 1992 and May 1992, Giacumbo received a monthly car allowance of $ 400 from the IBT. Id. ; (IRB Report at Exh. 31.) During that same period, Local 843 also paid Giacumbo a total sum of approximately $ 797.62 for his gas, insurance, and repairs. (1995 IRB Opinion & Decision at 23); (IRB Report Exhs. 31 & 34.) Giacumbo thus received overlapping car allowances--one each from the IBT and the Local.

  Based upon the evidence presented to it, the IRB found that Giacumbo "knowingly and intentionally accepted an aggregate of $ 1,600 in payments to which he knew he was not entitled." (1995 IRB Opinion & Decision at 23.) The IRB explained that "even though the monthly car allowance was listed on Giacumbo's pay check stub from the [IBT], and even though the $ 400 monthly car allowance for [IBT] officers was specifically set forth in Article V, Section 1(e) of the IBT Constitution, Giacumbo testified that he did not know that he had received an IBT car allowance until his sworn examination on September 7, 1994." Id. at 24. In addition, the IRB pointed out the inconsistency of Giacumbo's claimed ignorance of the car payments until September 1994 because, "according to IBT records[,] on or about June 1, 1992[,] Giacumbo telephoned the IBT to request that his IBT car allowance be discontinued." Id. The IRB found a further inconsistency in Giacumbo's testimony that, when he first became an IBT officer, he believed that he "signed somewhere right from the beginning not to give me the car allowance because [he] took it from the local union." Id. ; (IRB Report at Exh. 1, at 177-80.) Although the IBT records do not reflect that Giacumbo made such a request, the IRB found that by stating that he requested that the IBT not pay him a car allowance, Giacumbo recognized "from the outset that overlapping payments should not have occurred." (1995 IRB Opinion & Decision at 24-25.) The IRB also expressed its skepticism of Giacumbo's ignorance because he accepted the car allowance from the IBT during the time he purportedly requested the allowance to be discontinued. Id. at 25. Finally, the IRB noted that, even after acknowledging that he was wrongly over-paid for his car expenses, Giacumbo "still did not reimburse either the IBT or the Local . . . even though he testified [that] he would." Id. ; (IRB Report at Exh. 1, at 177, 190.)

  In light of this evidence, the IRB found that Giacumbo knowingly and intentionally accepted $ 1,600 in car payments to which he knew he was not entitled. (1995 IRB Opinion & Decision at 25.) The IRB "discredited Giacumbo's testimony denying [his] knowing acceptance of the monies." Id. The IRB did not accept his claim that he was "ignorant of his own actions," and discounted his testimony based upon both the IRB's observation of Giacumbo's demeanor during the hearing and the inconsistencies discussed above. Id. The IRB summed up its conclusions regarding Giacumbo's testimony as follows:

  
On the one hand, Giacumbo claims that he requested that the [IBT's] car allowance be discontinued in his February and July 1992 communication to the [IBT]; meanwhile, each paycheck states that it includes a $ 400 allowance. Then, in his sworn examination, he testified that he was not aware that he had received a car allowance, even though two times he disclaimed, or requested discontinuances of, the benefit. Even his promise, during his sworn testimony, to repay the amounts was never carried out.

  2. The Sanctions

  The IRB found that all three of the charges against Giacumbo had been proven. Id. at 28. Moreover, the IRB "specifically rejected the efforts of Giacumbo to pass off the violations as trifling, harmless, or de minimis," and determined that those efforts "actually underscore his arrogance of power." Id. The IRB also explained that, although Giacumbo's misconduct "is not as great as perhaps in some other cases, the fact remains that serious violations of fundamental concepts within the IBT Constitution and Bylaws have occurred." Id.

  As a result of Giacumbo's "serious violations," the IRB imposed on him the following sanctions:

  
(1) Giacumbo be suspended from membership and from his position in the IBT for a period of six months ;
  
(2) That during his suspension Giacumbo draw no salary or compensation from any IBT-affiliated source;
  
(3) That Giacumbo be fined, with the fines to be paid to the IBT in the amount of $ 1,600;
  
(4) These fines cannot be waived by either Local nor can they be set off against Giacumbo's future salary;
  
(5) Giacumbo must show proof that the payments have been made to the IBT and such payment must be made before Giacumbo can resume employment.

  Id. at 29 (emphasis added).

  B. IRB Application XXV

  On November 15, 1995, the IRB submitted to this Court Application XXV of the Independent Review Board--Opinion and Decision of the Independent Review Board in the Matter of the Hearing on Charges Against Gen Giacumbo, United States v. International Bhd. of Teamsters, 88 Civ. 4486 ("Application XXV") (Nov. 15, 1995). Pursuant to Paragraph O. of the IRB Rules, the IRB "respectfully requested that an Order be entered affirming the [1995 IRB Opinion and Decision]" imposing sanctions upon Giacumbo. Id. at 1-2. On November 22, 1995, Chambers notified Maffeo, Giacumbo's attorney, that if he or Giacumbo wished to file objections to application XXV, such objections must be in writing and mailed to this Court no later than fourteen days from the date of the letter. (Letter from James C. Maroulis, Law Clerk to the Honorable David N. Edelstein, United States District Judge for the Southern District of New York, to J. Bruce Maffeo, Esq. (Nov. 22, 1995).)

  On December 4, 1996, this Court received the 1995 IRB Giacumbo's objections to IRB Application XXV. In these objections, Giacumbo argues that the IRB's findings and sanctions regarding him were "arbitrary and capricious" because: (1) IRB member Judge Lacey should have recused himself from the proceedings, (App. XXV Objections at 4-10); (2) the evidence against Giacumbo was insufficient to sustain any of the charges, id. at 11-23; and (3) the sanctions imposed are excessive in light of the charges, id. at 24-27. On December 14, 1995, the Government submitted a letter opposing Giacumbo's objections and supporting the IRB's 1995 Opinion and Decision. (Letter from Beth E. Goldman, Assistant United States Attorney, to the Honorable David N. Edelstein, United States District Judge for the Southern District of New York ("Gov't App. XXV Letter") (Dec. 14, 1995).) Also on December 14, 1995, this Court received a memorandum from the Chief Investigator supporting Application XXV. (Chief Investigator's Memorandum of Law in Support of the Independent Review Board's Application XXV ("CI Memo") (Dec. 14, 1995).)

  C. This Court's Remand of Application XXV

  D. The IRB'S Supplemental Hearing and 1996 Opinion & Decision

  After this Court remanded Application XXV to the IRB for reconsideration of the sanctions imposed on Giacumbo in light of the gravity of the charges against him, the IRB granted Giacumbo's counsel's request for an opportunity to present additional testimony concerning Giacumbo's character. (Opinion and Decision of the Independent Review Board on Remand, United States v. International Bhd. of Teamsters, 88 Civ. 4486 ("1996 IRB Opinion & Decision") at 1-2 (May 1, 1996).) In order to receive this evidence, the IRB held a supplemental hearing on March 21, 1996 (the "supplemental hearing"). At the supplemental hearing, Giacumbo presented the IRB with the testimony of: (1) Daniel J. Kane ("Kane"), President of IBT Local 111; (2) Sam Theodus ("Theodus"), President of IBT Local 407 and IBT President-at-Large; (3) Robert Krohmert ("Krohmert"), a member of Local 843; and (4) Wayne Ferguson ("Ferguson"), a "longtime social friend of Giacumbo's." Id. at 2.

  In its 1996 Opinion and Decision, the IRB states that "Kane gave generally conclusory testimony that Giacumbo was 'honest' in addition to being courageous and smart." Id. at 2. Kane also expressed his admiration for Giacumbo's political views on IBT issues and for standing up for his beliefs within the IBT. Id. The IRB found that Theodus "opined, based solely upon his perception of Giacumbo's belief in the IBT and Giacumbo's role as a political crusader, that he was honest." Id. Krohmert, in testifying at the supplemental hearing, "primarily based his opinion of Giacumbo's honesty upon the results Giacumbo obtained in effectuating Krohmert's return to work after a sickness." Id. Finally Ferguson testified that he "never had reason to question Giacumbo's honesty." Id.

  The IRB found that these witnesses' "conclusory testimony concerning Giacumbo's character does not cause us to conclude that any sanctions to be imposed should be lessened 'commensurate with the severity of the charges proven,'" as directed by this Court's Remand Order. Id. at 3. In reaching this finding, the IRB observed that "none of these witnesses had any knowledge of Giacumbo's specific practice and dealings on the Local level, particularly as they related to the IRB's findings for its [1995] Opinion and Decision." Id. at 2-3. The IRB also noted that "Giacumbo himself offered no explanation at the supplemental hearing for his conduct recounted in [the 1995 IRB Opinion and Decision][,] nor did he report that the $ 1,600 he has repeatedly promised to pay the IBT had in fact been paid." Id. at 3.

  Furthermore, not only did Giacumbo's character witnesses not help him, the IRB found that "the character evidence itself supported the findings of [the 1995 IRB] Opinion and Decision reflecting Giacumbo's arrogance in the exercise of his power as a Union official." Id. The IRB states that Theodus "confirmed that he believed that Giacumbo sees himself as above the rules," and that "Giacumbo believed that there ...


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