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MEMBERS v. BEVONA

December 15, 1997

MEMBERS FOR A BETTER UNION, CARLOS GUZMAN, DOMINICK BENTIVEGNA and FRANK COLON, Plaintiffs,
v.
GUS BEVONA, AS PRESIDENT OF LOCAL 32B-32J, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, Defendant.



The opinion of the court was delivered by: OWEN

 Owen, D.J.

 Before me after a five-day bench trial *fn1" is the latest round in the long-boiling struggle of plaintiff Carlos Guzman *fn2" against the leadership of his union, Local 32B-32J (the "Local"), and particularly its long-standing president, defendant Gus Bevona. It addresses an upcoming vote on amendments to the Local's constitution which the Local has scheduled for later this month (December, 1997). Local 32B-32J is part of the Service Employees International Union, AFL-CIO, the union of service workers for commercial and residential buildings. The Local's membership, numbering some 60,000 members, spans all five boroughs of New York City as well as Nassau and Suffolk counties and Northern New Jersey, and it is divided into nine separate geographical districts. Its members are employed as superintendents, doormen, elevator-starters, handymen, porters, security guards, and maintenance workers.

 The relevant history begins in 1991 and is best told in the words of District Judge Robert P. Patterson, who made the following findings in Guzman v. Bevona, 1995 U.S. Dist. LEXIS 15145, 152 L.R.R.M. 2925, 2927-31 (S.D.N.Y. 1995).

 
In January and February 1991, Guzman circulated to other Local members a flyer protesting a dues increase voted in December and included the LM-2 information obtained from the United States Department of Labor. It demanded, among other things, a 50% reduction in the salaries of the Local's officers. Guzman also circulated a petition that called for a new vote on the dues increase. Guzman visited more than forty buildings in that time period.
 
On January 26, 1991, Guzman distributed his flyers and collected signatures for his petition inside and outside the Sheraton Centre Hotel at which a shop stewards' meeting was being held.
 
Defendant Donald Mumm *fn3" had not known Gus Bevona's salary until he read plaintiff's flyer at the shop stewards' meeting luncheon.
 
In the three or four days immediately following the shop stewards' luncheon, Bevona found out that Guzman was a member of the Local in a commercial building and had been a shop steward until the previous year.
 
Several days after the shop stewards' meeting, Bevona learned that Guzman's flyer was being distributed at some buildings and told his administrative assistant, James Lynch, to keep track of plaintiff's visits to buildings.
 
Lynch kept a written record of where plaintiff's flyers appeared and what the members were saying about them.
 
In February, 1991, Bevona asked Raab to have Guzman surveilled by a private detective agency and asked Raab to contact [a] law firm and ask for a recommendation of a private detective agency.
 
The . . . law firm recommended to Raab APB Investigations, Inc. ("APB"), a licensed private investigation firm located on Staten Island and owned by a retired New York City detective, John Gaspar. Raab retained APB on behalf of the Union on or about February 22, 1991.
 
On Thursday, February 28, 1991, Guzman mailed to Bevona copies of his petitions containing around 400 signatures as well as his "Open Letter to Gus Bevona."
 
On Friday, March 1, 1991, Raab faxed John Gaspar a letter instructing him to begin surveilling Guzman immediately, 16 hours a day (but not during his eight hour work shift) and stating that the surveillance would continue up to March 19, 1991.
 
Gaspar mailed Raab reports of each day's surveillance and called him regularly concerning the surveillance.
 
On Saturday morning, March 3, 1991, around 9 a.m. Guzman was in his apartment on the 7th floor of a twenty story public housing project in a Hispanic and black section of the upper west side, when an APB investigator, a large, white, Irish-appearing male knocked on his door and asked if Michael Gonzalez was there. Guzman knew the person was strange to the neighborhood and that there was no reason for anyone to think that Michael Gonzalez lived in his apartment. He watched as the APB investigator left his hallway and took up watch from a car outside his apartment house. About 11 a.m. Guzman's son came to visit and checked on the APB man while he was using a street phone and heard him say, "John, we think he's in there." The APB man told Guzman's son that he was in construction asbestos removal. Guzman's son reported his observations to Guzman, who thought "John" was John Bevona, a union official, and called other neighbors and his cousin, Wilson Sornoza, to watch the man.
 
Guzman called the housing police who said that it was not against the law for the man to be outside his building. The APB investigator remained outside the apartment all day. About 6 p.m. Guzman saw another man speak with the APB man and take up a position in a car nearer his building and then come up to his apartment and listen at the door. Guzman spoke to his neighbor, Mrs. Gallagher, who reported that she had seen a man on March 2, 1991 outside Guzman's door who had asked her questions about Carlos and that he was the same man who had been outside Guzman's door that morning. Guzman called 911. The police responded to the call and Guzman saw the man leave the area and come back as the police were leaving. Guzman alerted the police who reported to Guzman they had told the man outside to move on. Mr. Sornoza reported to Guzman that the man had merely moved to another position on 104th Street. Guzman, believing the men were "hit men", called 911 again and received a police escort out of his apartment building. He stayed with his wife, became scared for her and his family's safety and moved to stay with other relations.
 
On March 4, 1991, Raab wrote a letter to APB ordering the surveillance of Guzman's wife.
 
On March 5, 1995 [sic], Raab wrote a letter to Guzman which was hand-delivered to Guzman's apartment. It was left at his apartment door. The letter was retrieved by Mrs. Gallagher and redelivered to Guzman. The letter threatened legal action by the Union and its officers if Guzman made false statements. Meanwhile, he learned that the men were showing his picture to neighbors.
 
The Union had never ordered or approved the surveillance of a rank-and-file member of the Local prior to the hiring of private investigators to surveil plaintiff, although it had ordered the surveillance of a discharged business agent who was suing the Local based on employment-related claims.
 
On Friday, March 8, Guzman went to see ADA Eliot Spitzer of the New York County District Attorney's office.
 
On March 8 investigators from the District Attorney's office accompanied Guzman to his apartment building where he pointed out the man in a car who had been watching him on March 3. The District Attorney's investigators approached the second surveillor and were told by the surveillor that he worked for APB. He was told to leave but Guzman's neighbors reported later that the man merely resumed his post from another vantage spot.
 
On Saturday, March 9, Gaspar himself performed the surveillance.
 
The DA's office served a grand jury subpoena on APB on or about March 12, 1991 to find out by whom they were employed. Mr. Raab was promptly notified of the service of the subpoena.
 
On Friday, March 15, 1991, after hearing Defendant Bevona state it was his responsibility to be certain that Guzman was not working for an employer group or competing union and listening to a reading of Mr. Guzman's open letter to Gus Bevona and Mr. Raab's letter of March 5, 1991, in response thereto, the Joint Executive Board unanimously ratified the previous surveillance of plaintiff and approved the continued surveillance of him until April 21, 1991. . . . The surveillance ordered was discontinued after March 19, 1991.
 
On or about March 26, 1991, Bevona asked Raab to resume the surveillance of Guzman and it was resumed by APB on March 26, 1991. On that same day, Asst. District Attorney Spitzer called Bevona's office on the telephone, was referred to Mr. Raab and, after learning of the District Attorney's interest, Mr. Raab ordered the ending of the surveillance.
 
Before June 11, 1991, numerous new stories about the effect of the surveillance on Mr. Guzman were carried in the news media.
 
On June 11, 1991, the Joint Executive Board was read letters from Carlos Guzman and his attorney charging a violation of the Landrum-Griffin Act based on the surveillance and calling for corrective action. The Board unanimously confirmed the vote taken on March 15 to surveil Plaintiff.
 
* * *
 
Plaintiff's dissident activities within Local 32B-32J have not been chilled ...

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