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United States v. District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America

August 8, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DISTRICT COUNCIL OF NEW YORK CITY AND VICINITY OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Charles S. Haight, Senior District Judge

MEMORANDUM OPINION AND ORDER

In 1994 the government and the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America ("District Council") entered into a Consent Decree to settle the government's civil RICO action against the District Council, certain of its officers, and other individuals. Since then the District Council has operated subject to the rules and obligations imposed by that decree. The case has generated numerous opinions by this Court and the Second Circuit Court of Appeals. Familiarity with all those opinions is assumed. The District Council now moves to terminate the Consent Decree, contending that its objectives have been met. The government vigorously opposes the motion.

I. PRELIMINARY

A. Legal Standard for Terminating a Consent Decree

The Second Circuit has held that, in cases involving "institutional" reform, courts should "apply a flexible standard in determining when modification or termination should be ordered in light of either changed circumstances or substantial attainment of the decree's objective." Patterson v. Newspaper & Mail Deliverers' Union, 13 F.3d 33, 38 (2d Cir. 1993).*fn1 This standard "entitles a court of equity to focus on the dominant objective of the decree and to terminate the entire decree once that objective has been reached." Id. at 39. In other words, when a "decree has served its purpose, . . . all of its provisions may be ended." Id. The Patterson district court stated: "Before exercising its power to modify or vacate a judicial decree, a court must be convinced by the party seeking relief that the purposes of the litigation as incorporated into the decree have been fully achieved." Patterson v. Newspaper & Mail Deliverers' Union, 797 F. Supp. 1174, 1179 (S.D.N.Y. 1992).

B. The Consent Decree in This Case

Patterson holds that the legal standard for deciding whether a consent decree should be terminated requires the identification of the "objective" and "purpose" of the decree. The objectives and purposes of the Consent Decree in this case are considered in detail infra. At the outset it is useful to review the core provisions of the Decree.

The Consent Decree begins with a preamble of "Whereas" paragraphs, which include the following statements:

WHEREAS, the District Council acknowledges that former officers and representatives of the District Council and certain of its constituent locals have been convicted of labor racketeering;

WHEREAS, the parties agree that there should be no criminal element or La Cosa Nostra corruption of any part of the United Brotherhood of Carpenters and Joiners of America (the "UBCJA"), including the District Council and its constituent local unions, . . .;

WHEREAS, the parties agree that one of the purposes of this Consent Decree is to ensure that the District Council and its constituent local unions shall be maintained and run democratically, and without unlawful influence from outside its membership; . . .

Paragraph 2 of the Consent Decree, captioned "Permanent Injunction against Racketeering Activity," provides:

All current and future officers, employees, and members of the District Council and its constituent locals are permanently enjoined:

a. from committing any act of racketeering activity, as defined in 18 U.S.C. § 1961;

b. from knowingly associating with any member or associate of any La Cosa Nostra crime family or any other criminal group, or with any person prohibited from participating in union affairs (hereinafter collectively referred to as "barred person"); and

c. from obstructing or otherwise improperly interfering with the work of the officers described in this decree.

Paragraph 3 of the Consent Decree established the Investigations and Review Officer ("IRO") and an Independent Hearing Committee "to implement the terms of this Consent Decree."*fn2 Paragraph 4 of the Consent Decree set forth the powers, rights, and responsibilities of the IRO. These powers included authority to investigate the operation of the District Council and its constituent locals; to bring disciplinary charges against union officers and members; to review and veto certain expenditures, contracts, or proposed changes to the Constitution or By-Laws; to recommend to the Court changes in certain areas of operations of the union (such as the procedures used by the union to investigate and discipline misconduct by union officers, employees, or members, and the procedures used by the union to fill vacancies in union positions); to supervise implementation of the job referral rules (further described infra) and to supervise certain union elections held in 1995. Paragraph 9 of the Consent Decree stated that the IRO's term of office was 30 months, unless extended. Following several extensions, the IRO's term expired on June 6, 1999.

Paragraph 5 of the Consent Decree required the constituent locals to "adopt the job referral rules and procedures" attached as an exhibit to the Consent Decree, to "make all job referrals in accordance with the job referral rules" and to "comply with the job referral rules in all respects." The Job Referral Rules were promulgated for the union "to maintain and administer a processing system for referral of members to employment in a fair and equitable manner, and to establish records and procedures which will be adequate to disclose fully the basis on which each referral is made." Under the basic structure of the Job Referral Rules, the union "will compile an out-of-work list consisting of the members who have registered their availability for referral," Rule 4, and "[m]embers on the out-of work list shall be referred to jobs in the order in which they have registered their availability for referral, with the first registered member referred first, provided that the member has indicated that he or she has the qualifications requested by the employer," Rule 5(A). However, Rule 5(B) provides an exception to the first-listed, first-hired procedure by permitting employers to request "specific members employed by the employer within the previous six months" from the outof-work list.*fn3

Paragraph 10 of the Consent Decree prohibits multiple officeholding. It states that "no District Council officer shall simultaneously hold any elected, appointed or salaried position in any local union."

Paragraph 11 of the Consent Decree amends the By-Laws of the District Council to conform with the terms of the Consent Decree, and to incorporate certain provisions of the Consent Decree into the By-Laws. It further states: "To the extent that this Consent Decree conflicts with any current or future rights, privileges or rules applicable to the District Council or its membership, the District Council, as the representative of its membership, hereby waives compliance with ...


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