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CAROLLO v. HERMAN

February 18, 2000

ANTHONY CAROLLO, PLAINTIFF,
V.
ALEXIS M. HERMAN, SECRETARY OF LABOR, AND UNITED STATES DEPARTMENT OF LABOR, DEFENDANTS.



The opinion of the court was delivered by: Gleeson, District Judge.

MEMORANDUM AND ORDER

BACKGROUND

On April 7, 1991, Anthony Carollo and some friends were at the Oyone Tavern in Staten Island when they began arguing with another group at the bar. (Declaration of Ralph Gerchak, New York District Director of Enforcement for the Office of Labor-Management Standards, U.S. Dept. of Labor ("Gerchak Declaration"), ¶ 7.) The dispute continued as the two groups moved outside the bar, and John Campotella, the bar's bouncer, attempted to intervene. (Id.) Carollo, who was on probation at the time for a 1987 conviction for assault in the first degree, retrieved a handgun from his car and shot Campotella once in each leg. (Id., ¶¶ 7, 10.) Campotella survived, but was hospitalized for three weeks and underwent a number of surgeries. (Id., ¶ 7.)

Carollo fled the scene of the shooting, and he was not arrested until April 4, 1992. (Id.; Affidavit of Anthony Carollo, ¶ 6.) Carollo pleaded guilty to reckless endangerment in the first degree on October 9, 1992 and was sentenced to one to three years in prison. (Gerchak Declaration, ¶¶ 8-9.) He was released from prison on September 8, 1993. (Id., ¶ 9.)

In December 1995, Carollo went to work for the New York City District Council of Carpenters Benefit Funds (the "Benefit Funds"). (Carollo Declaration, ¶ 4.) As of January 17, 2000, Carollo was working in the accounts receivable department, where he sought collections from delinquent employers. (Id., ¶ 4.)

In September 1999, union members elected Carollo to the position of delegate to the New York City District Council of Carpenters Union (the "Union"). (Id., ¶ 5.) In this unpaid position, Carollo "participate[s] in votes on issues affecting the livelihood of the [union] membership." (Id., ¶ 5.)

On November 30, 1999, Ralph Gerchak, New York district director of enforcement for the United States Department of Labor's Office of Labor-Management Standards, wrote to Carollo informing him that because of his 1992 conviction federal law prohibited him from assuming a leadership position with a labor union. (Gerchak Declaration, Exhibit A (citing the Labor-Management Reporting and Disclosure Act, § 504, 29 U.S.C. § 504).) Gerchak explained that the prohibition lasted for 13 years from the end of any imprisonment resulting from the conviction and that Carollo could seek an exemption in federal court. Finally, Gerchak advised Carollo that a willful violation of § 504 was a felony.

On January 18, 2000, Carollo filed an order to show cause in this Court seeking a declaratory judgment stating he is exempt from the § 504 prohibition on the ground that he has been rehabilitated. He also sought a temporary restraining order enjoining Department of Labor employees from "interfering with [Carollo's] current position as a delegate with the New York City District Council of Carpenters." I declined to issue the restraining order, but scheduled argument for January 18, 2000. (The argument was subsequently adjourned until February 18, 2000.)

On January 27, 2000, Carollo was suspended without pay from his position at the Benefit Funds. In a memorandum to Carollo, attorney Brian O'Dwyer explained that the Employees Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1111, included statutory bars on employment with benefit funds that mirror § 504 of the LMRDA. (Reply Affirmation of Scott P. Trivella, Exhibit A.) The memorandum said that Carollo would be "considered for employment once again" if he obtained a court-ordered exemption from disability. (Id.)

On February 11, 2000, Carollo renewed his request for a temporary restraining order.

DISCUSSION

A. Statutory Background

The Labor-Management Reporting and Disclosure Act ("LMRDA") prohibits any individual convicted of an enumerated offense from serving as, inter alia, an officer, director, executive board member, or employee of a labor organization.*fn1 See LMRDA § 504(a), 29 U.S.C. § 504(a). Carollo does not contest that (i) his conviction for reckless endangerment is ...


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