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INDEPENDENT HEARING OFFICER APPENDIX A IHO FEBRUARY 25, 2003 ORDER In the Matter of James McGough v. Terry Bohne, Juan Hernandez, Reggie Robinson, Chuck Auriemma, Rufus Chatman, Martin Gonzalez, Yahn Mann, Richard Caravetta, Ramon Zarate, Leonard White, Alonzo Wimberly, Chris Maxwell, Dave Buccini Local Union 2, Brookfield, IL Laborers' International Union of North America Independent Hearing Officer Docket No.: 03-04TB Decided February 25, 2003 ORDER AND MEMORANDUM PROCEDURAL HISTORY This Order and Memorandum addresses the trial board charges filed by James McGough against certain current and former members of the Executive Board of Laborers' International Union of North America (LIUNA) Local Union 2 (Local 2), and other members of Local 2. Mr. McGough originally filed expansive omnibus charges with General Executive Board (GEB) Attorney Luskin in May 2002. The charges were subsequently amended and refiled on November 12, 2002. The General President referred the above-referenced matter to the Independent Hearing Officer (IHO) for a trial board hearing because the Charged Parties were disqualified to serve on the Trial Board. See letter from Terence M. O'Sullivan, General President, to Peter F. Vaira, Independent Hearing Officer of 1/24/03. The IHO previously ruled that McGough's disciplinary charges did not meet the specificity requirements of the Labor Management Reporting and Disclosure Act (LMRDA) for disciplinary charges filed against a union member. See IHO order of January 30, 2003. Given the number of charges involved, on February 13, 2003, the IHO held a pretrial hearing for demonstration of probable cause for the 100 charges filed. At the hearing, the IHO reviewed each charge with McGough for sufficient particularity and probable cause. The charged parties were permitted to attend and comment at the hearing.1
_____________________ Local 2 is currently the subject of a Consent Supervision pursuant to Article IX, Sec. 9 of the International Union Constitution. Prior to the pretrial hearing, charged parties Terry Bohne, Reggie Robinson, and Richard Caravetta entered into a Settlement Agreement with the GEB Attorney which included a provision that the parties would not be subject to any subsequent trial board charges. As a result, the IHO dismisses all charges against Bohne, Robinson, and Caravetta. In addition, the IHO ruled that the amended second set of charges superceded the first set of charges and that McGough would be limited to the individuals and subject areas addressed by the amended set of charges. DISCUSSION McGough has charged several members of the Executive Board with associating with or permitting members of organized crime to have influence with the union. The allegations take many forms in the various charges, but all have as their basic premise that of permitting organized crime to influence the local. Ridding the union of organized crime influence was the basis of the LIUNA reform movement, which started in 1995. See Agreement of February 13, 1995 between LIUNA and the United States of America (creating the EDP). The EDP created the positions of the GEB Attorney, the Inspector General, the IHO, and the Appellate Officer. EDP, 2-5. These professional offices were designed to investigate and rid the union of organized crime influence. The method is by disciplinary charges filed before the IHO or placing local unions or district councils in trusteeships. The EDP maintained the trial board as a traditional forum for members filing charges against other members of their own local or district council. The only change in the trial board procedure was the appeal of trial board rulings to the Appellate Officer, and the adoption of trial board procedural rules by the Appellate Officer. EDP, 5. The Uniform Local Union Constitution (Constitution) was subsequently amended to permit the General President to refer trial board charges to the IHO when all parties were disqualified. Article XII, Section 3. The IHO, sitting as a trial board, has recognized that some subject matter is beyond the capacity of trial board to hear. In In the matter of Gomez v. Rodriguez, IHO Order and Memorandum, 00-34TB (Feb. 6, 2001), the IHO held that the subject matter of the charges were beyond the procedural capacity of a trial hoard. The charges involved allegations of manipulation of hiring hall dispatches, improperly placing persons on the out of work list, dispatching persons outside of the local's jurisdiction, and dispatching persons without authority. The IHO determined that in order to render a reasoned decision in the matter would require subpoenaing numerous members and officials, volumes of 2 records, requiring the IHO to engage accountants and investigators to review the records, and finally conducting days of hearings. The IHO held that such a task was beyond the capacity of a trial board. The IHO held that such matters were intended for the GEB Attorney and the Inspector General. Id. The same rationale applies even more so to allegations of organized crime. Although the LIUNA reform effort was based in great part upon ridding LIUNA of organized crime influence, such effort was entrusted to the Inspector General and the GEB Attorney. It was not intended for trial boards. The decision to charge a member of being an organized crime member or associate, or associating with organized crime cannot be taken lightly, and was intended only be done by the professional staffs of the Inspector General or the GEB Attorney. The formal disciplinary procedure of the EDP was intended to be presided over by the IHO, a professional. Any appeals from the IHO's decisions are to be made to the Appellate Officer, another professional. Nowhere in the EDP is there any indication that the decision regarding organized crime affiliation is to be made by a trial board. This also applies to the IHO when sitting as a trial board. All charges in this matter, which allege organized crime influence or association with organized crime will be dismissed. The LIUNA 2001 International Convention amended Article XII, Section of the Constitution as follows:
The IHO has previously addressed the application of the amendment in In the Matter of Rex Eaton v. Richard Yost, IHO Order and Memorandum, 02-07TB (August 21, 2002). While the issue was not raised at the hearing on February 13, 2003, the IHO notes that all the charges in this matter are presumptively time barred. As a matter of completeness, where there are grounds to dismiss a charge other than for being time barred, the IHO has ruled on those grounds. As discussed below, the surviving charges are presumptively time barred pursuant to Article XII, Section l of the Constitution. As McGough has not had the opportunity to demonstrate why those charges should not be time barred, he will be given the opportunity to show good cause why those charges should not be dismissed. VIABILITY OF CHARGES Charge 1: Associated with organized crime associate Richard Caravetta on the Caravetta "organized crime slate" and knowingly permitted the continuing influence of organized crime in Laborers Local 2. IHO Ruling: Charge dismissed as to all parties. Issues relating to organized crime are outside the capacity of the trial board process. Under the EDP, allegations of organized crime fall under the jurisdiction of the LIUNA GEB Attorney and the Inspector General. Charge 2: Subverted the union by hiring "non-union" personnel on a time and material basis to remodel Local 2's new office while members with similar skills were on the out of work list. IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties. Charge 3: Deceitfully misrepresented the reasons "whistle blower" Bridget Gaskill was no longer employed as Local 2's clerical secretary when they allowed Terry Bohne and Reggie Robinson to falsely and maliciously blame her for their incompetence. IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties. Charge 4: Allowed unfettered discussion of an illegal and unethical conspiracy to expel member McGough from Local 2 to be the main topic of discussion at the June 2001 union meeting in an effort to suppress dissent and keep the members ignorant of organized crime's continuing influence in Local 2. IHO Ruling: Charge dismissed as to all parties. The members enjoy a wide latitude of free speech at membership meetings. Discussions of McGough's activity by members is protected speech. See, e.g., Eagle v. Bartlett, IHO Order and Memorandum, 98-60TB (March 26, 1999). Charge 5: Permitted the interruption of members' attempts to speak at union meetings without interruption when Burke asked questions about loans at the January 2002 meeting and McGough attempted to inform the members of the reasons for Caravetta's resignation from office. IHO Ruling: Charge dismissed as to all parties. The President is entrusted with the orderly conduct of union meetings and while such a 4 charge might have stood against the former President, trial board charges are precluded pursuant to an existing settlement agreement. All other parties were without requisite power to act at a meeting under the alleged course of conduct. Charge 6: Allowed sergeant at arms, Leonard White, at the July 2001 meeting to threaten members Jim McGough and John Burke with violence for attempting to speak at union meetings. Leonard White, in the presence of witnesses, told both Jim McGough and John Burke that he was going to "kick their ass if they asked anymore questions at union meetings." IHO Ruling: Charge dismissed as to all parties. The President is entrusted with the orderly conduct of union meetings and while such a charge might have stood against the former President, trial board charges are precluded pursuant to an existing settlement agreement. All other parties were without requisite power to act at a meeting under the alleged course of conduct. Charge 7: Did not prepare a budget. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Trial Board issues pertain to disciplinary matters and a trial board proceeding is not a forum for allegations of inefficiency. Charge 8: Allowed loans to be made without knowledge or approval of executive board or members. (see Robinson letter to LIUNA V.P. and political ally Terrence Healy of April 4, 2002) and minutes of April 2002 meeting IHO Ruling: Charge against auditors only is presumptively timebarred pending a showing of good cause. Charge as to all other parties dismissed. McGough admitted that the Executive Board had no knowledge of the loans, therefore, the Executive Board members may not be charged. Should good cause be demonstrated, the IHO will rule separately on the liability of the auditors. Charge 9: Allowed political contributions to be made without members' knowledge or approval (see minutes of executive board authorizing political expenditures for democratic candidates). IHO Ruling: Charge as to Chapman, Gonzales, and the auditors is presumptively time-barred pending a showing of good cause. Charge dismissed as to any other parties. Should good cause be demonstrated, the IHO will rule separately on the liability of the auditors. 5 Charge 10: Caused an employee to become indebted in excess of $2000 as prohibited by Sec 503 of LMRDA. (see outside auditor's report for 2001) and LM-2 for 2001. IHO Ruling: Charge as to Chapman, Gonzales, and the auditors is presumptively time-barred pending a showing of good cause. Charge dismissed as to any other parties. Should good cause be demonstrated, the IHO will rule separately on the liability of the auditors. Charge 11: Allowed Reggie Robinson to use his union credit cards for personal business. See $400 cash advance on union credit card on Christmas eve at 8p.m. at Marshall Fields. IHO Ruling: Charge against auditors only is presumptively time-barred pending a showing of good cause. Charge as to all other parties dismissed for failure to state an offense. Charge 12: Attacked John Burke while speaking at a union meeting. Ramon Zarate had to be physically restrained from physically attacking John Burke at the November 2001 union meeting. IHO Ruling: Charge against Zarate only is presumptively time-barred pending a showing of good cause. Charge dismissed as to all other parties. Charge 13: Terry Bohne as presiding officer unfairly and maliciously deprived McGough of the right to speak at the April meeting by not accepting his good faith assertion that he was working at the calling IHO Ruling: Charge dismissed as to all parties for failure to state an offense. The President is entrusted with the orderly conduct of union meetings and while such a charge might have stood against the former President, trial board charges are precluded pursuant to an existing settlement agreement. All other parties were without requisite power to act under the alleged course of conduct. Charge 14: Did not mention the upcoming constitutional convention at union meetings in 2001 and purposely scheduled the nomination meeting on a Sunday morning to minimize attendance and the possibility of a contested delegate election. IHO Ruling: Charge dismissed as to all parties. Election procedures are solely within the jurisdiction of the LIUNA Election Officer for the International Election and not within the jurisdiction of trial board proceedings. 6 Charge 15: Did not discuss or debate at the December 2001 meeting the reasons for the increase in working dues as mandated by the DC convention call. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 16: Mislead the members on the economic consequences of the choice between increased monthly dues or increased working dues IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 17: Treated members unequally by offering political supporters more favorable terms for obtaining jackets than their political opponents. (see April/May 2002 newsletter). IHO Ruling: Charge dismissed as to all parties, allegations too vague to substantiate grounds for charge. Charge 18: Do not conduct union meetings fairly and in a constitutionally prescribed manner in that the regular order of business is not followed, reports of delegates are not given, incomplete and false financial reports are provided, and members' approval for actions of the executive board are not sought. Not all actions of the executive board are reported as mandated by LIUNA Local constitution Article IV, Sec 4. IHO Ruling: Charge dismissed as to all parties, allegations too vague to substantiate grounds for charge. Charge 19: Do not allow for debate and discussion on motions in accordance with generally accepted parliamentary procedure. IHO Ruling: Charge dismissed as to all parties. The President is entrusted with the orderly conduct of union meetings and while such a charge might have stood against the former President, trial board charges are precluded pursuant to an existing settlement agreement. All other parties were without requisite power to act under the alleged course of conduct. Charge 20: Allowed Caravetta to be paid more than 2 weeks vacation in violation of the bylaws. IHO Ruling: Withdrawn by McGough's own motion. 7 Charge 21: Kept silent about Caravetta's organized crime ties and conspired to keep the members ignorant of organized crime's influence in laborers' Loca12. IHO Ruling: Charge dismissed as to all parties. Issues relating to organized crime are outside the capacity of the trial board process. Charge 22: Offered to buy Caravetta out in return for his resigning without knowledge or approval of members IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 23: Allowed legal counsel to submit inflated and fraudulent legal bills for legal services not rendered, aiding and abetting in mail fraud IHO Ruling: Charge dismissed as to all parties, outside the scope of trial board. The matter is referred to the GEB Attorney. Charge 24: Utilized Local 2's legal counsel to prepare in bad faith frivolous, fraudulent trial board charges against McGough. IHO Ruling: Charge dismissed as to all parties, outside the scope of trial board. The matter is referred to the GEB Attorney. Charge 25: Allowed Reggie Robinson and Terry Bohne to use Local 2 legal counsel as their personal defense attorney for their breaches of duty and statutory violations of the LMRDA. IHO Ruling: Charge dismissed as to all parties, outside the scope of trial board. The matter is referred to the GEB Attorney. Charge 26: Paid out $14,000 in severance pay to Rick Cavins in March 2001 knowing severance pay was prohibited. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Severance pay was paid by the Supervisor in accordance to policies in place at the time. Charge 27: Allowed Local 2 legal counsel to rule on legality of legal document he prepared and to serve as counsel despite conflicts of interest. IHO Ruling: Charge dismissed as to all parties, parties cannot be charged as a matter of law. Legal conflict of interest is a matter to be determined by legal counsel, not laymen. 8 Charge 28: Allowed Reggie Robinson to commit fraud upon the members of Local 2 and LIUNA by allowing Robinson to pose as the author of documents he did not author and is incapable of producing. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 29: Wasted Local 2's money by paying exorbitant legal fees for letter writing services. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 30: Destroyed email communications from legal counsel to cover-up fraud and misdeeds and destroyed the personnel records of former business agents John Burke and Mark Tomasek IHO Ruling: Charge dismissed as to all parties, charge does not apply to charged individuals. Charge 31: Engaged in unethical electoral campaign tactics and allowed organized crime to influence Local 2's election by getting Bobby Ruffolo to run for office to siphon off votes from opponents. Ruffolo did not campaign in good faith and entered the race at Caravetta's urging to further organized crime's goal of retaining influence in Local 2. Ruffolo is the son in law of "mob puppet" and former Matassa associate, Michael Christopher. IHO Ruling: Charge dismissed as to all parties, failure to state an offense and organized crime allegations outside of trial board jurisdiction. Charge 32: Did not require the auditors to perform their duties and facilitated "no show jobs". The auditors of Local 2, (Wimberly, Maxwell, and Buccini) each received $200/mo and made no attempts to audit from March 2001 through March 2002 in dereliction of their duties to detect financial fraud and unauthorized loans. IHO Ruling: Charge against auditors only is presumptively time-barred pending a showing of good cause. Charge as to all other parties dismissed. Charge 33: Approved the appointment of Terry Bohne to a combined office that had not been approved by LIUNA's general president until Feb. 18, 2002. At the Feb. 12, 2002 meeting, without providing any advance notice to the members of Caravetta's Feb. 8 resignation from office and of the Feb 8 emergency executive board meeting called to engineer Bohne's appointment to a 9 combined office that had not yet been approved by LIUNA's General President, the executive board and Terry Bohne made the self-serving decision not to appoint as Caravetta's replacement as business manager his electoral opponent, John Burke, but to combine the offices of president and business manager and to appoint Terry Bohne to that unapproved office, thereby assuring that members elected on the Caravetta "Organized Crime Slate" retained control of Local 2, all to the detriment of honest union governance. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 34: Did not provide new members with copies of the out of work rules as required by the rules and prevented Bridget Gaskill from distributing information to new members that would have helped them exercise their right of self governance. (See LIUNA IG agent interview notes with Bridget Gaskill) IHO Ruling: Charge dismissed as to all parties, charge does not apply to charged parties. Charge 35: Allowed Mob puppet" Caravetta to select for union meetings a Cicero banquet hall that is a well known mob hangout-owned and/or controlled by members/associates of the Chicago Outfit, and permitted meetings to continue in this establishment when they knew or should have know of Carvetta's ties to organized crime. IHO Ruling: Charge dismissed as to all parties, no just cause for penalty against charged parties. Charge 36: Allowed Caravetta to personally benefit from the letting of contracts in that Caravetta drank free at Al's Restaurant and Banquet Hall, 6040 West Cermak, Cicero, Illinois in return for throwing the business to Anthony LoCascio and Sebastian Maniscalco, its proprietors who are associates of mob member Vito LoCascio. (See IBT proposed charges against William T Hogan, p 62, footnote) IHO Ruling: Charge dismissed as to all parties, no just cause for penalty against charged parties. Charge 37: Allowed the unfair suspension of member Jim McGough knowing that averments by Terry Healy and Bruce Monaco were false as to the policy and practice of Local 2 in treating mailed dues payments as timely if postmarked timely. Former clerical secretaries Joanne Caruso and Bridget Gaskill will testify that it has always been the policy of Local 2 to adhere to LIUNA's policy of treating dues mailed on a timely basis as timely dues payments. Bridget Gaskill will testify that the arbitrary decision to suspend McGough was both 10 malicious and purposely designed so as to render him ineligible for office in the June 2003 election and to deprive him of the right to speak at union meetings. IHO Ruling: Charge dismissed as to all parties, failure to state an offense and charge does not apply to charged parties. Charge 38: Lied to and deceived the members as the real reasons Bridget Gaskill was fired. Bridget Gaskill was forced to resign because she refused to advance her career by providing sexual favors to Richard Caravetta , to perform the constitutional duties assigned to Reggie Robinson, and to perform all of the duties members of the executive board were not competent to perform. Bridget was forced to sign a confidentiality agreement to obtain her pay for unused vacation. This confidentiality agreement was designed to hide from Local 2 members information essential to their right of union self governance and to cover up the misdeeds of executive board members. Adding insult to injury, the executive board of Local 2 is now suing Bridget Gaskill for loans she is unable to pay as a result of her unemployment. Local 2 will waste more money paying legal fees to collect a debt that will not cover the legal fees charged. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 39: Allowed Reggie Robinson to become delinquent in the payment of per capita taxes which caused the local to be deemed suspended by the International. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 40: Failed to notify suspended members of delinquency of their dues prior to their suspension and failed to notify of suspensions when made as required by the Local 2 Wendell Hawkins' decision. IHO Ruling: Charge is presumptively time-barred pending a showing of good cause. Charge 41: Failed to provide newsletters to members from March 2001 until March 2002 because it cost too much but increased their salaries by 5% in July 2001 and voted themselves a 10% year end bonus for purportedly conducting the affairs of Local 2 properly, a claim rendered false by the recent supervision agreement . IHO Ruling: Charge dismissed as to all parties, failure to state an offense. 11 Charge 42: Allowed relatives of Cicero Organized Crime Boss Michael Spano, i.e. Pam Spano, to use the facilities of Local 2 to solicit business for Ullico. IHO Ruling: Charge dismissed as to all parties, failure to state an offense as to charged parties. Charge 43: Failed to report Richard Caravetta's ties to organized crime to proper authorities after conducting a meeting whose purpose was to obtain Caravetta's resignation because of his ties to organized crime associate Betty Loren-Maltese. Failed to report Caravetta's saying "he was laying low for four days until this Cicero organized crime story dies down" when Betty Loren_Maltese was arrested in June 2001 and charged with Cicero Crime Boss Michael Spano with looting $10,000,000 from the mob controlled town of Cicero IHO Ruling: Charge dismissed as to all parties. Issues relating to organized crime are outside the capacity of the trial board process. Charge 44: Failed to obtain detailed fee bills from counsel as required by Local 2's bylaws and policy resolution of May 11, 1999. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 45: Failed to conduct union meetings in an atmosphere of fairness where members don't have to apologize for asking questions. Kevin Kelly IHO Ruling: Charge dismissed as to all parties. The President is entrusted with the orderly conduct of union meetings and while such a charge might have stood against the former President, trial board charges are precluded pursuant to an existing settlement agreement. All other parties were without requisite power to act under the alleged course of conduct. Charge 46: Allowing personal attacks to be made upon members' integrity in their absence (June 2001 meeting) and at the May 2001 allowing Kevin Burke to make the personal work history status of McGough the subject of discussion. IHO Ruling: Charge dismissed as to all parties. Exercise of freedom of speech during a union meeting does not give rise to trial board charges. Charge 47: Allowed Reggie Robinson to hire his reputed mistress as Bridget Gaskill's replacement. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. 12 Charge 48: Allowed Terry Bohne to hire his reputed mistress as office help and to work, unsupervised at home. 1HO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 49: Increasing salaries unconstitutionally without the required approval of members at two consecutive meetings. The year end bonus of 10% constitutes a salary increase and it was not voted on at two consecutive meetings as required by LLUC, Article X, Sec 6. IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties. Charge 50: Increased salaries more than once in one fiscal year. IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties. Charge 51: Increased salaries without amending the bylaws that prohibited a salary increase before March 2002.(See Local 2 bylaws) IHO Ruling: Charge as to Chapman, Gonzales, and Hernandez only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties. Charge 52: Fraudulently increased salaries by $40 in June 2001 when a $ 1/hr increase in collective bargaining wages for members was interpreted fraudulently to mean an increase in constitutionally mandated salaries as well. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 53: Tolerated Reggie Robinson's incompetence as a secretary treasurer when they knew that Bridget Gaskill had to write out for Reggie instructions on how to pronounce financial amounts with 6 or more digits for each union meeting. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Simple incompetence not grounds for trial board charges. Appropriate relief is for members to vote incompetent individuals out of office. 13 Charge 54: Permitting Reggie Robinson to perform incompetently for failure to balance the local's check book, for failure to perform the duties of secretary/treasurer, for not knowing the difference between treating an expense a check when it clears the bank as opposed to when the check is cut, an admission of financial ignorance Robinson publicly acknowledged at the April 2002 meeting. Robinson is also charged with deliberate failure to notify the International that McGough's suspension was waived and that his admission date into Local 2 should remain as August 2000. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 55: For conducting the affairs of Local 2 in such a fashion as to necessitate the imposition of a supervision to avoid a complaint for trusteeship. IHO Ruling: Charge dismissed as to all parties. Trial board hearings are an improper forum to examine the circumstances underlying the imposition of a trusteeship or supervision. Charge 56: Ramon Zarate is charged with obtaining signatures of members under false pretenses on a blank sign up sheet that was later altered to indicate the members approval of bogus trial board charges against member James McGough, the filing of bogus trial board charges in an attempt to unfairly deprive McGough of his LMRDA rights to speak freely at union meetings. IHO Ruling: Charge dismissed. Charge falls under the jurisdiction of separate trial board. Charge 57: Permitting Terry Bohne to willfully refuse to learn at the Feb 2002 union meeting the reasons for Caravetta's resignation and depriving the members of the knowledge essential to their right of self-governance. When McGough asked if he wanted to know why Caravetta was forced to resign and what the charges against Caravetta were, Terry Bohne said "no" and Terry Healy, son in-law of mobster Angelo Fosco, misled the members into believing that the information is secret, despite its availability in the LIUNA docket to any member requesting, a policy LIUNA V.P. Healy is aware of and which is clearly spelled out in the Ethics and Disciplinary Procedure. The GEB Attorney announces these actions belatedly and summarily in the Laborers magazine. IHO Ruling: Charge dismissed, does not apply to charged parties. Charge may have stood against prior parties against whom trial board charges may not be brought due to settlement agreement. Charge 58: Failure to assess working dues fairly in that some members pay less working dues than others because their percentage of working dues are lower. An examination of the collective bargaining agreements Local 2 is a party to 14 will reveal that not all members are assessed working dues equally. The percentage or tax rate is lower for members who work for Cook County political bodies on a patronage basis than it is for members in the private sector. IHO Ruling: Charge dismissed as moot and for failure to state an offense. The issue identified in this charge has been addressed by the International Union. In addition, a trial board proceeding is not the proper forum to address complaints of failures of the bargaining process. Charge 59: Depositing dues assessments in Local 2's treasury that were illegally taken from non member employee paychecks without written authorization in violation of the LMRDA. IHO Ruling: Charge dismissed as to all parties. Alleged conduct cannot be traced to charged parties and subject matter outside of trial board jurisdiction. Charge 60: Allowing the District Council to distribute double zero ("00") funds on a non pro-rata basis. Local 2 allows smaller locals to receive the same amount of illegally obtained funds to the detriment of Local 2's treasury. IHO Ruling: Charge dismissed as to all parties. Alleged conduct cannot be traced to charged parties and subject matter outside of trial board jurisdiction. Charge 61: Allowing the District Council to increase the working dues percentage to 1.75% from an illegally and non authorized working dues increase of 1.5% that was instituted by the trustee of the Chicago Laborers District Council in 1998 without the approval of local unions affected, in violation of the LMRDA. IHO Ruling: Withdrawn by Plaintiff. Charge does not apply to charged defendants. Charge 62: Allowed McGough's web site to disturb the day to day activities of Local 2 according to Ramon Zarate's malicious trial board charges IHO Ruling: Charge dismissed against all parties. Charge falls under the jurisdiction of separate trial board. Charge 63: Conspired to deprive McGough of his LMRDA right to speak freely and criticize union officials by filing harassing trial board charges .(See Robinson's trial board charges against McGough that were administratively dismissed by the GEB Attomey) 15 IHO Ruling: Charge dismissed against all parties. Charge falls under the jurisdiction of separate trial board. Plaintiff could file counter-charges in the separate trial board. Charge 64: In bad faith, deceptively mailed trial board charges late so as to unfairly deprive McGough of time necessary to respond to frivolous charges that were administratively dismissed by the GEB Attorney as against LIUNA policies IHO Ruling: Charge dismissed as to all parties. Charge falls under the jurisdiction of separate trial board. Charge 65: Failed to obtain for members perusal and their own edification free copies of the decisions of the Independent Hearing Officer and Appellate Officer despite requests to do so. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 66: Failed to inform members of the terms of the new collective bargaining agreement and to seek their ratification of terms proposed. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 67: Failed to conduct the affairs of LIUNA in accordance with LIUNA policies, rules, and regulations. IHO Ruling: Charge dismissed as to all parties, allegations too vague to substantiate grounds for charge. Charge 68: Failed to stop the use of union funds for the self aggrandizement of Reggie Robinson, Terry Bohne, and Richard Caravetta and wasted union money printing their names on the back of union financed T- shirts and on union signs. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Charge 69: Failed to notice that the August 2001 per Capita tax was not paid until Jan 2002. IHO Ruling: Withdrawn by Plaintiff. Charge 70: Permitted Terry Bohne and Reggie Robinson to lie to the members when they both told members at the Feb 2002 meeting that Bridget Gaskill 16 resigned voluntarily for failure to mail per capita tax checks when in fact no check had been cut for mailing. IHO Ruling: Charge dismissed. No just cause for penalty against charged parties. There is no allegation that the charged parties conspired with Bohne or Robinson who made the statements to the membership. Even assuming arguendo that the charged parties should have later raised the issue with Bohne or Robinson, there is no just cause for a penalty for not doing so. Charge 71: Allowed Reggie Robinson to distribute Profit and Loss statements to members that Reggie Robinson admitted at the April 2002 meeting were inaccurate, unreliable, and not trustworthy-all reflecting on Reggie Robinson's incompetence as secretary-treasurer. IHO Ruling: Charge dismissed, does not apply to charged parties. Charge 72: Allowing Reggie Robinson to run for secretary treasurer on their slate when they knew or should have known that Reggie Robinson was incompetent and did not possess the skills or financial intelligence to perform competently as secretary treasurer. Trustee Dalton fired Reggie Robinson for incompetence in October 2000 for depositing checks in the safe and not the bank. - IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Subject matter purely political and does not support the grounds for a disciplinary offense. Charge 73: Failed to provide to members requesting information essential to the exercise of their right of self governance. Failed to provide at the October 2001 meeting or subsequent meetings a report from convention delegates on constitutional amendments enacted and to provide a report of the convention despite McGough's request to do so. IHO Ruling: Charge dismissed, does not apply to charged parties. Charged parties were not delegates to the convention. Charge 74: Failed to retain legal counsel that had no conflicts of interest in representing Local 2. Counsel to Local 2, Hogan, Marren, and McCahill is counsel to the Chicago Laborers District Council whose interests are different than and in conflict with Local 2's. Hogan, Marren, and McCahill is also counsel to laborers Local 152 whose jurisdiction encroaches on Local 2's. Hogan, Marren, and McCahill did not provide Local 2 with information on its representational conflicts so as to obtain the informed consent of Local 2 after complete and full disclosure. 17 IHO Ruling: Charge dismissed as to all parties, parties cannot be charged as a matter of law. Legal conflict of interest is a matter to be determined by legal counsel, not laymen. Charge 75: Failed to inform and obtain membership approval for convention trips, and other expenditures, actions requiring the approval of the membership. IHO Ruling: Charge dismissed as to all parties, allegations too vague to substantiate grounds for charge. Charge 76: Applied LIUNA rules, regulations, and policies in a discriminatory, arbitrary fashion so as punish political opponents economically, politically, and socially. (McGough suspension and denial of rights to speak at union meetings) IHO Ruling: Charge dismissed as to all parties, no just cause to assess a penalty against charged parties for the breach of parliamentary procedure. Charge 77: Failed to protect the democratic rights of LIUNA members to participate fully, without fear, abuse, or intimidation in all union affairs. IHO Ruling: Charge dismissed as to all parties, no just cause for penalty against charged parties on one time infraction as described orally by McGough. Charge 78: Deprived member McGough to his full share in Union self-government and attempted to extort late payment fee from McGough for unfair and malicious suspension. IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties. Charge 79: Deprived members of Local 2 of the right to participate in the democratic decisions of the Union by allowing suspended members to vote at union meetings. (see newsletter of April/May where policy of allowing suspended members to attend union meetings is published) IHO Ruling: Charge dismissed as to all parties. Subject matter does not give rise to trial board jurisdiction. Charge 80: Deprived Local 2 members of the right to participate in free, fair, and honest elections. An examination of Francisco Perez's phone records for Jan thru April 2001 will show he called Latino members who voted on Mar 10, 2001, utilizing union assets obtained in the course of union business as business agent. 18 IHO Ruling: Charge dismissed as to all parties. Election procedures are solely within the jurisdiction of the LIUNA Election Officer and not within the jurisdiction of trial board proceedings. See Constitution, Article XII, Section 8. Charge 81: Failed to conduct local unions meetings in an atmosphere of fairness. (see minutes of June 2001 meeting where members discussed openly tactics to eliminate McGough as a member of Local 2) IHO Ruling: Charge dismissed as to all parties. Exercise of freedom of speech during a union meeting does not give rise to trial board charges. Charge 82: Failed to apply fairly and uniformly all union rules and laws. McGough was singled out for retaliation because of his web site and criticism of LIUNA officials and his allegations about organized crime influence in Local 2 and the Laborers Union. IHO Ruling: Charge dismissed, does not apply to charged parties. Charge 83: Corruption, discrimination, and anti-democratic procedures were permitted. - IHO Ruling: Charge dismissed as to all parties, allegations too vague to substantiate grounds for charge and lacks specificity to enable a party to defend against charge. In addition, charge does not apply to charged parties. Charge 84: Failed to reasonably inform the membership as to how union funds were invested or used. IHO Ruling: Withdrawn by Plaintiff. Charge 85: Defamed John Burke when they knowingly distributed as campaign literature altered documents they knew to be false and libelous. IHO Ruling: Charge dismissed as to all parties, failure to state an offense. In addition, parties cannot be charged as a matter of law. The falsity of campaign literature cannot be the basis of disciplinary charges. See, e.g., In the Matter of Local 703, IHO Order and Memorandum 00-45P (February 22, 2001). Charge 86: Failed to obtain competitive bids on major expenses and did not inform Local 2 members whenever they sought the approval of LIUNA's Inspector General for expenditures. 19 IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties. Charge 87: Permitted union funds to be invested in a manner which resulted in the personal profit or advantage of Terry Bohne and Reggie Robinson, both of whom received loans from Local 2 at below market interest rates when the money could have received a higher return if invested elsewhere. IHO Ruling: Charge dismissed, does not apply to charged parties. McGough admitted that the Executive Board had no knowledge of the loans, therefore, the Executive Board members may not be charged. Charge 88: Permitted contracts for rendering service that resulted in the personal profit or advantage of union officers. Caravetta benefited by the hiring of his non-union Cicero cronies and increased his stature with organized crime bosses in Cicero by so doing. IHO Ruling: Charge dismissed, does not apply to charged parties. Charge 89: Permitted officers Bohne and Robinson to accept personal profit or special advantage from the action of officer Richard Caravetta in receiving loans at below market interest rates. IHO Ruling: Charge dismissed, does not apply to charged parties. Charge 90: Permitted the local union to make loans to officers for the purpose of financing the private business of Reggie Robinson and Terry Bohne. IHO Ruling: Charge dismissed, does not apply to charged parties. Charge 91: Allowed Organized Crime to influence the selection of delegates to the constitutional convention when the allowed Caravetta to slate Johnny Retondo as a delegate instead of other elected members. (See confidential District Council Court Monitor report and hearings on Anthony Solano) IHO Ruling: Charge dismissed as to all parties. Issues relating to organized crime are outside the capacity of the trial board process. Charge 92: Permitted Richard Caravetta, acting as an agent of the International Union with influence in the placement of insurance contracts , to have compromising personal ties with Union Life Insurance Company insurance broker Pam Spano. IHO Ruling: Charge dismissed, does not apply to charged parties. 20 Charge 93: Permitted the publication of the April/May 2002 union newsletter that announced decisions that had not yet been approved by the members. IHO Ruling: Charge dismissed, unclear whether charge applies to charged parties. Moreover if charge does apply, no just cause for penalty against charged parties. Charge 94: Fraudulently operated the out of work list so as to reward friends and punish political opponents. Eddie Anderson was kept off the out of work list for 90 days in January 2002 as punishment for being "whistle-blower" Bridget Gaskill's boyfriend. IHO Ruling: Charge dismissed, does not apply to charged parties. Charge 95: Retaliated against member Anderson because of his association with whistle-blower Bridget Gaskill. Eddie's employer was instructed by someone at the union not to rehire or call Eddie back to work, a subject now under investigation by the LIUNA Inspector General's office. [Note: Correction made by Plaintiff should state Williams not Anderson] IHO Ruling: Withdrawn by Plaintiff, does not apply to charged parties., Charge 96: Failed to provide the outside auditor's report to members requesting. Rather than give the members what they are entitled to receive and see, Local 2 member and LIUNA V.P Terrence Healy advised Local 2 at the April 2002 meeting to obtain LIUNA's approval for providing members with a copy of the auditor's report, less a precedent for openness and transparency be established. The refusal to provide the auditor's report was an effort to cover-up and keep hidden financial irregularities and mismanagement in Local 2. IHO Ruling: Charge dismissed, does not apply to charged parties. Charge 97: Failed to provide accurate, reliable financial reports to members despite promises to do so. At the April 20002 meeting, Robinson admitted that all reports previously furnished were inaccurate and that new reports would have to be issued, which he has failed to do. IHO Ruling: Charge dismissed, does not apply to charged parties. Charge 98: Failed to install financial controls to assure members that union funds were not stolen, misused, or badly invested (see supervision agreement) (See outside auditor's cover letter on 2001 audit for Local 2) 21 IHO Ruling: Charge dismissed as moot, subject addressed by imposition of supervision. Charge 99: Failed to inform the members of the voluntary supervision agreement they entered into on May 1, 2002, 13 days prior to the May 14, 2002 union meeting at which the members ratification will be sought. IHO Ruling: Charge dismissed, failure to state an offense. The Supervisor had the responsibility to ensure the membership received notice. Charge 100: Maliciously and deliberately failed to correct McGough's admission date into Local 2 so as to unfairly and fraudulently deprive him of eligibility for union office in June 2003. IHO Ruling: Charge dismissed, does not apply to charged parties. CONCLUSIONS 1. Charges 1, 4-7, 13-19, 21-31, 33-39, 41-48, 52-60, 62-68, 70-77, 79-83, 85, 87-94, and 96-100 are dismissed in their entirety as to all parties. 2. Charges 2, 3, 9, 10, 40, 49, 50, 51, 78, and 86 against Chapman and Gonzales are presumed time-barred; Charge 51 against Hernandez is presumed time-barred; Charge 12 against Zarate is presumed time barred. At the hearing on March 6, 2003, McGough should demonstrate good cause why these charges should not be dismissed pursuant to Article XII, Section 1, of the Uniform Local Union Constitution. These charges are dismissed as to all other parties. 3. Charges 8, 11, and 32 against the auditors are presumed time-barred. At the hearing on March 6, 2003, McGough should demonstrate why these charges should not be dismissed pursuant to Article XII, Section 1, of the Uniform Local Union Constitution. These charges are dismissed as to all other parties. 4. Charges 20, 61, 69, 84, and 95 were withdrawn by Plaintiffs own motion. DECISION Charges 1, 4-7, 13-19, 21-31,33-39, 41-48, 52-60, 62-68, 70-77, 79-83, 85, 87-94, and 96-100 are dismissed in their entirety as to all parties. Charges 20, 61, 69, 84, and 95 are dismissed as being withdrawn by McGough. At the hearing on March 6, 2003, McGough will be given the opportunity to demonstrate to the IHO why Charges 2, 3, 9-12, 32, 40, 49-51, 78, and 86 22 should not be dismissed as being time-barred pursuant to Article XII, Section 1, of the Uniform Local Union Constitution. Only these charges remain outstanding. The hearing originally set for March 6, 2003, will pertain only to the determination of whether there is good cause to retain these charges. There is no appeal of this Order as it is not a final order. Appellate rights do not arise until a final order on all charges is issued by the IHO. PETER F. VAIRA
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