# Appendix — International Brotherhood of Teamsters v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2223%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 501 U.S. 1229 ## Text §0-19%4 The Supreme Court of the United States upreme » ve FILLED JUN 13 1991 UNITED STATES OF AMERICA, } pcrice ge THE CLERK er Pesabiinmamanne INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, THE COMMISSION OF LA COSA NOSTRA; ANTHONY SALERNO, also known as Fat Tony; MATTHEW IANNIELLO, also known as Matty the Horse; ANTHONY PROVENZANO, also known as Tony Pro; NUN- ZIO PROVENZANO, also known as Nunzi Pro; ANTHONY CORALLO, also known as Tony Ducks; SALVATORE SANTORO; CHRISTOPHER FURNARI, SR., also known as Christie Tick: FRANK MANZO, CAR- MINE PERSICO, also known as Junior, also known as The Snake; GEN- NARO LANGELLA, also known as Gerry Lang; PHILIP RASTELLI, also known as Rusty; NICHOLAS MARANGELLO, also known as Nicky Glasses; JOSEPH MASSINO, also known as Joey Messina; ANTHONY FICAROTTA, also known as Figgy; EJOGENE BOFFA, SR.; FRANCIS SHEERAN; MILTON ROCKMAN, also known as Maishe; JOHN TRONOLONE, also known as Peanuts; JOSEPH JOHN AIUPPA, also known as Joey O’Brien, also known as Joe Doves; also known as Joey Aiuppa; JOHN PHILLIP CERONE, also known as Jackie the Lackie, (Continued on inside front cover) OCTOBER, 1990 TERM PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT APPENDIX RUDOLPH F. PIERCE Counsel of Record for Defendant-Petitioner International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO GOULSTON & STORRS A Professional Corporation JAMES T. GRADY 400 Atlantic Avenue JAMES F. O'BRIEN Boston, MA 02110-3333 Of Counsel (617) 482-1776 also known as Jackie Cerone; JOSEPH LOMBARDO, also knoqwn as Joey the Clown; ANGELO LAPIETRA, also known as Nutcracker, The; FRANK BALISTRIERI, also known as Mr. B; CAROL ANGELO DELUNA, also known as Toughy; CARL CIVELLA, also known as Corky; ANTHONY THOMAS CIVELLA, also known as Tony Ripe; GENERAL EXECUTIVE BOARD, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA; JACKIE PRESSER, General President, WELDON MATHIS, General Secretary-Treasurer, JOSPEH TREROTOLA, also known as Joe T, First Vice President, ROBERT HOLMES, SR., Second Vice Pres- ident; WILLIAM J. MCCARTHY, Third Vice President; JOSEPH W. MORGAN, Fourth Vice President; EDWARD M. LAWSON, Fifth Vice President, ARNOLD WEINMEISTER, Sixth Vice President, JOHN H. CLEVELAND, Seventh Vice President; MAURICE R. SCHURR, Eighth Vice President; DONALD PETERS, Ninth Vice President; WALTER J. SHEA, Tenth Vice President; HAROLD FRIEDMAN, Eleventh Vice President; JACK D. COX, Twelfth Vice President; DON L. WEST, Thir- teenth Vice President; MICHAEL J. RILEY, Fourteenth Vice President; THEODORE COZZA, Fifteenth Vice President, DANIEL LIGUROTIS, Sixteenth Vice President; SALVATORE PROVENZANO, also known as Sammy Pro, Former Vice President, Defendants, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, Defendant-Petitioner, BARRY FEINSTEIN, CARROLL HAYNES, FRANK J. SCARPINA-TO, MELANIO CUEBAS, LOUIS PARTENZA, RALPH PROSSIMO, WIL- LIAM BROWN, JAMES BROCKWELL, PATRICIA WILLIAMS, CAR- MINE CHIOCCARICLIO, HOWARD FORSTER, DAN ZAMBANINI, LEROY FLEMING, WAYNE CRUZ, RUTH WILKERSON, LAW- RENCE PODAIR, TODD RUBINSTEIN, EDDIE CULLEN, NAR-CIS- SUS BRINSON, RUBY THOMAS, ALFRED KING, ARNETHIA MEL- VIN, JOHN P. MORRIS, JOSEPH L. YEOMAN, JAMES E. SMITH, DANIEL J. MCGINLEY, PETER COYLE, JOSEPH SULLIVAN, JOSEPH M. LYONS, JAMES R. BROCKWELL, WILLIAM R. HILL, WILLIAM NOLAN, JAMES BRENNAN, BRIAN MCDONALD, LARRY A. THOMAS, ERNIE HARRIS, JOSEPH BROCK, SR., JOHN R. MULLER, ROBERT OETTL, JOHN SHIELDS, LEWIS RICE, ROBERT J. EWANCO, TERRY HUNTER, VERNON RHODES, RICH POTO- CHNEY, JOSEPH P. SANTONE, JOHN CRISTINA, WILLIAM C. JOHNSTON, RICHARD GLASS, DOUGLAS CAMPBELL, PAUL H. KNOLLINGER, JR., WILLIAM SIMMONS, SR., HAROLD WOL- CHOK, LANGSTON MCKAY, WALTER CAHILL, ROBERT OTTMAN MARIO ABREGO, JOHN BURKE, VICTOR C. OLIVADOTI, TER- ENCE MAJKA, JOHN AMADIO, FRANK CRAMER, ANTHONY DEBELLA, RAY HILLIARD, Intervenors. TABLE OF CONTENTS Page Order of Honorable James L. Oakes, Honorable George C. Pratt, and Honorable Frank X. Altimari I on cae n cnc secbievscacessscscs 1 Order of Honorable David N. Edelstein eS) cin id as Sdd ¥db wd ado cies 5 Order of Honorable David N. Edelstein SS ee 7 Order of Honorable David N. Edelstein Dated March 14, 1989 [Consent Decree] ............. 55 Transcript of May 6, 1991 Hearing Before Honorable David N. Edelstein ................ 108 Transcript of March 20, 1991 Hearing - Before Honorable David N. Edelstein ................ 128 Transcript of March 14, 1989 Hearing Before Honorable David N. Edelstein ................ 200 SDNY N89-cv-499 88cv4486 EDELSTEIN UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse in the City of New York, on the seventh day of June, one thousand nine hundred and ninety-one. 91-6112 United States of America, Plaintiff-Appellee, International Brotherhood of Teamster, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Defendant-Appellant. 2 91-6130 United States of America, Plaintiff-—Appellee, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Defendant-Appellant. 91-6136 United States of America, Plaintiff-Appellee, Vv. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Defendant-Appellant, Barry Feinstein, et al., Applicant-Intervenors-Appellants. ORDER Docket Nos. 91-6112; 91-6130; 91-6136 The appeal in 91-6112 is dismissed since the order of April 29, 1991, is in the nature of a calendaring order. The order of May 6, 1991, as amended by the order of May 7, 1991, on appeal in 91-6130 is affirmed. See United States v. IBT, slip op. 3601, 3616 (2d Cir. April 12, 1991); United States v. IBT, 905 F.2d 610 (2d Cir. 1990) (Friedman & Hughes). See also Berger v. Heckler, 771 F.2d 1556, 1567-68 (2d Cir. 1985) (consent decree is court order, to be enforced as such). In respect to the appeal in 91-6136, from the denial of a motion to 4 intervene, we treat the appeal as a petition to intervene on appeal and grant a Mandate to issue forthwith. JAMES L. OAKES, Chief Judge GEORGE C. PRATT, Circuit Judge FRANK X. ALTIMARI, Circuit Judge N.B. THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND SHOULD NOT BE CITED OR OTHERWISE RELIED UPON IN UNRELATED CASES BEFORE THIS OR ANY OTHER COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, Plaintiff, -V- 88 CIV. 4486 (DNE) INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, et al., Defendants. ORDER EDELSTEIN, District Judge: IT IS HEREBY ORDERED that the following sentences shall be added the May 6, 1991 Opinion & Order in the above-captioned case: The sentence “Paragraph L.17, like the entire Consent Decree, is a permanent amendment to the IBT constitution.” shall follow the last sentence of the first full paragraph on page 22; and ——— 0 The sentence "Nothing in this opinion shall be construed to alter the provisions of the Consent Decree that require the Consent Decree's amendments to be put to the convention delegates for a vote." shall be added to follow the last sentence of the second full paragraph on page 23. So Ordered. Dated: May 7, 1991 New York, New York U.S.D.J. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK PEED PERERA SD RT ID AE SEP DD DD x UNITED STATES OF AMERICA, Plaintiff, -Vv- 88 CIV. 4486 (DNE) INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, et al., Defendants. sxe em dn hs aw ea ty sm en aust geil lle ea eae histamine x OPINION & ORDER APPEARANCES: OTTO G. OBERMAIER, United States Attorney for the Southern District of New York, (Edward T. Ferguson, III, Peter C. Sprung, Assistant United States Attorneys, of counsel) for the United States of America; GOULSTON & STORRS, Boston Massachusetts, (Rudolph G. Pierce, James F. O'Brien, Dennis King, of counsel) for the International Brotherhood of Teamsters. a § EDELSTEIN, District Judge: This opinion emanates from the voluntary settlement in the action commenced by plaintiff United States of America (the “Government") against the defendants International Brotherhood of Teamsters (the "“IBT") and the IBT's General Executive Board (the "GEB") embodied in the voluntary consent order entered March 14, 1989 (the “Consent Decree"). The provisions in the Consent Decree provided for three Court-appointed officials, the Independent Administrator to oversee the remedial provisions, the Investigations Officer to bring charges against corrupt IBT members, and the Election Officer to oversee the electoral process leading up to and including the 1991 election for International Officers (collectively, the _ TN | 9 "Court Officers"). -The goal of the Consent Decree is to rid one IBT of the hideous influence of organized crime through the election and prosecution provisions. On March 19, 1991, the Government moved this Court for (i) a declaration that the function of the International Union nominating convention as set out in {F.12.(D) of the Consent Decree may not be altered except by compliance with 4L.17 of the Consent Decree; and (ii) an order enjoining the IBT, as the representative of the GEB, and its employees, members, agents, attorneys and affiliates (including local unions, joint counc.ls, and area conferences [hereinafter the “subordinate entities"]) from taking any action to alter the function of the International Union nominating convention as set out in {F.12.(D) of the Consent Decree. This -3- 10 Court held oral argument on this motion on March 20, 1991, after which the parties submitted proposed findings of fact and conclusions of law. This dispute arises because the Government has reasons to believe that constituencies of the IBT are planning for the IBT convention delegates to "vote out” the Consent Decree, more particularly, the provisions for direct rank and file elections of International Officers. The Government contends that with the Consent Decree's electoral provisions voted out, the IBT would attempt to revert to its prior election process. Thus, the convention delegates themselves elect the General President at the convention, eliminating the rank and file vote, and thereby disenfranchising the membership. The Government seeks to prevent this -4- aaa eel il Situation. The Government asks this Court to rule on the legal status of provisions of the Consent Decree. The validity of the Consent Decree's electoral changes to the IBT constitution are no longer at issue. Accordingly, the relevant ruling for this Court to make is a substantive determination of the legal effect of the Consent Decree in the event that the convention delegates vote against its constitutional changes. In the alternative, this Court will also rule on the Government's motion de novo. I. Background The Consent Decree settled the litigation between the Government and the IBT (the “underlying litigation"). As has been discussed more fully in opinions of this Court and the Court of Appeals this -5- I 12 RICO litigation involved allegations of a massive racketeering enterprise and conspiracy to participate in that enterprise. See, e.g. United States v. International Brotherhood of Teamsters, et al., Slip Opinion, (2d Cir. April 12, 1991) (Election Rules); United States v. International Brotherhood of Teamsters, et al., 907 F.2d 277 (2d Cir. 1990) (All Writs Act injunction); United States v. International Brotherhood of Teamsters, et al., 905 F.2d 610 (2d Cir. 1990) (Friedman & Hughes); United States v. International Brotherhood of Teamsters, et al., 708 F. Supp. 1388 (S.D.N.Y. 1989) (Opinion denying motion to dismiss complaint in underlying litigation). The Consent Decree amended the electoral and disciplinary provisions of the IBT constitution. By %9(a), the entire -6- ete arnteeseeneeel 13 Consent Decree immediately became prt of the IBT constitution: The IBT Constitution shall be deemed and hereby is amended to incorporate and conform with all of the terms set forth in the order. Paragraph 9(b) further stated that the provisions of the Consent Decree would formally be voted a part of the IBT constitution by the delegates to the 1991 IBT Convention. By no later than the conclusion of the IBT convention to be held in 1991, the IBT shall have formally amended the IBT constitution to incorporate and conform with all of the terms set forth in this order by presenting said terms to the delegates for a vote. If the IBT has not formally so amended the IBT constitution by that date, the Government retains the right to seek any appropriate action, including enforcement of this order, contempt, or reopening this litigation. Among its substantive provisions, the Consent Decree amended the IBT constitution's then existing procedure for ~_ = ry 14 electing the General President and International Officers. Under the prior system, officers of IBT subordinate entities had been ex officio delegates to the IBT convention. At such a convention, those delegates would directly elect the General President and International Officers. The Consent Decree created a three-step election process culminating in direct rank and file secret ballot elections. First, the local unions have been holding local secret ballot delegate elections during the fall of 1990 and the Spring of 1991. Second, these elected delegates will attend the 1991 IBT national convention to be held June 24-28 in Epcot Center, Florida (the “convention"). There, the delegates will vote (i) to approve the Consent Decree's changes to the IBT constitution as provided by 9 and -8- lo {F.12.(D) of the Consent Decree, and (ii) to nominate candidates for IBT International Officers. In the fall of 1991, the IBT will hold a union-wide, direct, secret ballot election of the rank and file for the International Officers. Since the Consent Decree was executed on March 14, 1989, its scope, terms, and meaning have been repeatedly challenged. With respect to the disciplinary provisions of the Consent Decree, the Court of Appeals and this Court have now determined that the Investigations Officer and Independent Administrator are stand-ins for the General President and GEB, who properly delegated their disciplinary power to those Court Officers pursuant to Article XXVI, section 2 of the IBT Constitution. United States v. International Brotherhood of Teamsters, supra, Slip Opinion, (2d Cir., April 12, = 1d 1991) at 3617; United States v. International Brotherhood of Teamsters, supra, 905 F.2d at 622; December 27, 1990 Opinion & Order, 754 F. Supp. 333, 337 (S.D.N.Y. 1990); September 18, 1990 Opinion & Order, 745 F. Supp. 189, 191-92 (S.D.N.Y. 1990); August 27, 1990 Opinion & Order, 745 F. Supp. 908, 911 (S.D.N.Y¥. 1990); March 13, 1990 Opinion & Order, 743 F. Supp. 155, 159-60, aff'd 905 F.2d 610, 622; January 17, 1990 Opinion & Order, 728 F. Supp. 1032, 1048-57, aff'd 907 F.2d 277 (2d Cir. 1990); November 2, 1989 Memorandum & Order, 725 F.2d 162, 169 (S.D.N.Y. 1989); Joint Council 73 et al. v. Carberry et al., 741 F. Supp. 491, 493 (S.D.N.Y. 1990); Local 27 v. Carberry et al., July 20, 1990 at 3-4 (S.D.N.Y. 1990). The validity of the Consent Decree's electoral changes are also settled. This =i O— TN Court and the Court of Appeals in turn have held that the electoral changes were properly within the parties of the General President and GEB and binding upon the entire IBT. United States v. International Brotherhood of Teamsters, supra. (April 12, 1991). The scope of the Election Officer's duties, October 18, 1989 Memorandum & Order, 723 F. Supp. 203, stay and certification denied 728 F. Supp. 920 (S.D.N.Y. 1989); appeal dismissed, No. 89-6252 (2d Cir. Dec 13, 1989), cert. denied, 110 S. Ct. 2618 (1990), aff'd Slip Opinion (2d Cir. April 12, 1991), and approved a comprehensive set of rules applicable to all facets of the IBT that govern this historic election. July 10, 1990 Opinion & Order, 742 F. Supp. 94 (S.D.N.Y. 1990), aff'd Slip Opinion (2d Cir. April 12, 1991). elie iS The Consent Decree's constitutional changes are fully effective and binding on the entire 1.7 million member IBT. Challenges by subordinate entities and individual IBT members to the validity of the disciplinary provisions and electoral provisions have been repeatedly rejected by the Court of Appeals and this Court. See, e.q., United States v. International Brotherhood of Teamsters, supra, 905 F.2d 610, aff'g March 13, 1990 Opinion & Order, supra, (challenges to disciplinary powers of Court Officers rejected); United States v. International Brotherhood of Teamsters, supra, Slip Opinion, April 12, 1991, aff'g July 10, 1990 Opinion & Order (challenges of electoral process to subordinate entities rejected). Paragraph L.17 of the Consent Decree, the future practices provision, sets out -12- eel 19 the obligation of the parties not to alter the understanding of both parties as to the terms of the settlement Paragraph L.17 states: The parties intend the provisions set forth herein to govern future IBT practices in those areas. To the extent the IBT wishes to make any changes, constitutional or otherwise, in those provisions, the IBT shall give prior written notice to the plaintiff, through the undersigned. If the plaintiff then objects to the proposed changes as inconsistent with the terms and objectives of this order, the change shall not occur; provided, however, that the IBT shall then have the right to seek a determination from the Court, of after the entry of judgment dismissing this action, from this Court or any other federal court of competent jurisdiction as to whether the proposed change is consistent with the terms and objectives set forth herein. Paragraph L.17 has been interpreted as requiring approval of any changes to the IBT constitution that would alter the background understanding of the parties as to disciplinary or electoral matters: =} 3< (T]he IBT [must] refrain from any unilateral changes, ‘constitutional or otherwise,’ in the broad areas covered by the Consent Decree. Paragraph (L.J17 was obviously intended to protect the background understanding of both parties as to what existing rules, regulations, and constitutional provisions would govern the IBT. United States v. International Brotherhood of Teamsters, supra, 905 F.2d at 620 (quoting March 13 Opinion & Order, supra, 743 F. Supp. at 163). II. Discussion In the instant matter, this Court must consider (i) %K.16, the application provision of the Consent Decree, (ii) two motions to intervene, (iii) the substantive legal status of the delegates vote at the IBT convention, and (iv) the Government's motion. —-14- 41 A. The Application Provision of the Consent Decree As a threshold matter, the IBT argues that this Court should not entertain the Government's motion or make any ruling regarding the upcoming convention. The Government argues that the IBT consented to this Court ruling on the instant motion by way of K.16. I agree. Paragraph K.16 authorized this Court to “entertain any future applications" by the parties, which includes interpretations and rulings relating to the Consent Decree. Such rulings have been sought and issued numerous times over the past two years. See October 18, 1989 Memorandum & Order, supra, (interpretating F.12 to determine scope of duties of Election Officer); November 2, 1989 Memorandum & Order, supra, (interpreting D.5 to determine statute of -15- - : we limitations for bringing disciplinary charges); November 16, 1989 Order, (interpreting F.12.(E) to determine the scope of the Independent Administrator's _right to publish a monthly communication in The International Teamster); December 12, 1989 Memorandum & Order, 726 F. Supp. 943 (S.D.N.Y. 1989), (interpreting {fE.10 to determine when collateral lawsuits interfere with work of Court Officers); January 17, 1990 Opinion & Order, supra, (interpreting scope of appiications to Court under %K.16; status of {F.12 changes); February 27, 1990 Memorandum & Order, 735 F. Supp. 502 (S.D.N.Y. 1990), (Interpreting YF.12.(E) to permit publication of names of those charged in disciplinary proceedings in The International Teamster); March 13, 1990 Opinion & Order, supra, determining —-16- siataaieaaeaaseiemaemeanaaeanaamaiiiel Independent Administrator's power to interpret disciplinary portions of IBT constitution by {/F.12.(A); inability of IBT to interpret disciplinary provisions of IBT constitution without complying with %{L.17); April 9, 1990 Memorandum & Order, 735 F. Supp. 319 (S.D.N.Y. 1990), (interpreting “reasonable cause” requirement for sworn statements set out at {/F.12.(C)(c) and (d)); July 10, 1990 Opinion & Order, supra, (interpreting #F.12.(D) scope of Election Officer duties; E.10 injunction); November 28, 1990 Memorandum & Order, 133 F.R.D. 99 (S.D.N.Y. 1990), (interpreting cause requirement to take statements of IBT agents at YF.12.(C)(i)(d)). The scope of K.16 is broad enough to warrant the court to consider prospective matters that may threaten the letter, Spirit and intent of this Decree. The =} Pa a4 IBT's assertion that this motion is speculative is merely a play on words. Further, the IBT has specifically refused to deny the Government's allegations. On March 20, 1991, I directly asked IBT General Counsel Grady whether the IBT disputed the Government's allegations. On behalf of the IBT, General Counsel Grady did not deny those allegations. (Transcript, March 20, 1991 at 24-25). This matter would never even have to be addressed had the IBT been candid and forthright and assured me that no such plan was in place. The fact that they did not leads to the reasonable inference that they are up to no good. Accordingly, the IBT's challenges are meritless. ~38- ‘es B. Motions to Intervene Two groups of IBT members, (i) the Durham-Mathis Unity Team, (a slate of candidates running for international office), and (ii) a group of elected delegates to the IBT convention, moved this Court to intervene in the instant motion pursuant to Fed. R. Civ. Pro. 24(a). These applications have no merit. Neither group has demonstrated that its interest in the instant matter is not “adequately represented by existing parties," in this instance the IBT. See Fed. R. Civ. Pro. 24(a). It has been established that the election of international officers pursuant to the Consent Decree is a matter solely in the purview of the IBT. United States v. International Brotherhood of Teamsters, supra, April 12, 1991 Slip Opinion at 3620. Accordingly, since the instant -19- motion relates exclusively to the Consent Decree, specifically the validity of its provisions, the movants have not met the requirements of Rule 24. As a result, intervention in this matter is hereby denied in all respects. C. The Status of the Consent Decree The Government seeks to determine the obligation of the IBT should the convention delegates vote against the Consent Decree's provisions. This issue needs clarification because 9(a), which stated that the IBT constitution was immediately amended to include all the terms of the Consent Decree, seems in conflict with 412(D) and 9(b), which provide that the changes would be brought to a vote at the convention. The language, purpose, and history of the Consent reveal that there is no -—-20- inconsistency. The parties originally included the convention vote because of their uncertainty whether the IBT could agree to constitutional changes that would bind the subordinate entities by the Consent Decree. The vote was designed to ensure that the subordinate entities would be bound by their ratification. In the course of litigation over the past two years it has been conclusively determined that the IBT had the power to bind the subordinate entities, and has bound the subordinate entities, thus eliminating any possible uncertainty. It is clear that the Consent Decree is fully part of the IBT constitution and the law of that union no matter what the convention delegates’ vote. The (i) specific language of the Consent Decree and the intent of the parties expressed to me -21- — ' | 25 when the Consent Decree was signed, and (ii) legal decisions over the past two years make this self-evident. First, the specific language of {{/9(b) and F.12.(D) (the “approval provisions") of the Consent Decree, coupled with the parties explicit statements clearly reveals the reasons for the inclusion of those provisions. At a conference held on March 14, 1989, after briefly considering the draft Consent Decree submitted to the Court by the parties, this Court pointed out a number of ambiguities in that document. (Transcript, March 14, 1989, at 1-18). Most relevant was this Court's observation that the Consent Decree contained an inconsistency: {9 stated that the IBT constitution was immediately amended in accordance with all the terms of the Consent Decree, but #12.(d) provided that «@3- 29 the electoral changes would be submitted to the IBT convention delegates for a vote at the 1991 convention. (Tr. at 3). In response to the Court's request for clarification, counsel for the Government on behalf of the parties stated why they had included those inconsistent terms: The document makes clear that the constitution of the IBT is deemed amended immediately. In the Government's view, that is a permanent amendment and not subject to change, absent [Governmental approval pursuant to WL.17), without first coming to the Government for change... Certain locals officials or local unions may in the future raise legai challenges about the amendment of an international constitution in a manner that was by court order rather than pursuant to the constitution which calls for ratification at a convention. We believe, the Government believes, your Honor, that there is no question that the amendments can be ordered by this Court pursuant to a consent decree, and that they are automatically in effect. But if down the road, there is a challenge by a local official or local union, -23- eee sian aaa aaa aia 30 ratification at the convention would eliminate any legal issue at all. (Transcript, March 14, 1989 at 15-16). The Court then instructed the parties to insert “clarifying language" on this subject. Id. at 16. The parties returned later that day, having rewritten 9 to the current "9(a) and (b). As was clearly stated to the Court, the Government insisted that the convention delegates vote in the Consent Decree's electoral changes, first at F.12.(D), then at 9(b), in order to eliminate any potential doubt as to the Consent Decree's binding effect on the subordinate entities. The Government in no way intended to give the convention delegates “veto" power over the entire Consent Decree Or any portion of it. Nor does the language of the Consent Decree, its purpose —-24- 3] or history provide for such power. When the Consent Decree was signed on March 14, 1989, there was no direct legal ruling that established the IBT's ability to amend its constitution by the Consent Decree. It is undoubtedly true that had such precedent been in place on March 14, 1989, the approval provisions never would have been part of the Consent Decree. Further, there is no doubt that the IBT agreed to the inclusion of the approval provisions for the sole purpose of ameliorating a potential legal challenge to its power to enter into the Consent Decree's constitutional changes. The General Counsel for the IBT, Mr. Grady, publicly stated just after the signing of the Consent Decree in testimony before the United States Senate, that the IBT agreed for the Consent Decree's changes to be -25- submitted to the convention delegates solely at the insistence of the Government: SENATOR NUNN: How can, the Convention in 1991, or whenever it is going to occur, how can they--the Convention amend this if it is precluded by this provision [({L.17]? MR. GRADY: I recognize where the Senator is coming from and there does appear to be some inconsistency here. “ 7 x However, it was the Government's position that ve concur to that, that this was a necessary element of a settlement. That is, for the delegates to, in effect, bring these provisions into their own constitution, and that is why they are there. Federal Government's Use of Trusteeships under the RICO Statute: Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Governmental Affairs, 100th Cong., list Sess. at 31. (1989). Second, interpretations by this Court and subsequently the Court of Appeals have =~2¢— 33 resolved challenges to the validity of the Consent Decree's constitutional changes. The amount of litigation that has ensued boggles the imagination. Repeated litigation has resulted in a line of decisions that conclusively determined the IBT's power to amend the IBT constitution by entering into the Consent Decree, and bind the entire union to those changes. United States v. International Brotherhood of Teamsters, supra, 905 F.2d 610, aff'g March 13, 19906 Opinion & Order, supra; United States v. International Brotherhood of Teamsters, supra, Slip Opinion, April 12, 1991, aff'g July 10, 1990 Opinion & Order; United States v. International Brotherhood of Teamsters, supra, 907 F.2d 277, aff'g January 17, 1990 Opinion & Order, 728 F. Supp. 1032. See also Joint Council 73 v. Carberry et al., supra; Local ~97F< eae ed 34 27 v. Carberry, supra. In consequence, the precise uncertainty that led to the inclusion of the approval provisions has been resolved by this Court and the Court of Appeals over the past two years. An examination of those decisions reveals how this uncertainty has been resolved. With respect to the disciplinary provisions of the Consent Decree, Anthony “Hughes, an IBT officer from local 507 in Cleveland, Ohio, argued before this Court and the Court of Appeals that the Consent Decree's disciplinary changes to the IBT constitution were not binding on him because the IBT did not have the power to unilaterally amend its constitution at judicial direction. The Court of Appeals specifically rejected that argument: Hughes contends that the IBT cannot unilaterally change its constitution...and then make the new ~28- terms binding on [its affiliated local unions and members]. This is so, Hughes maintains, because various provisions of the IBT constitution explicitly reserve the power of amendment to the International Convention of the IBT, by vote of its duly elected delegates. ...Hughes...clearly could be bound by terms of the disciplinary mechanism set in place by the Consent Decree. This is so because the investigatory and disciplinary mechanism of the Court Officers are proper delegations of the powers of the IBT General President and the GEB within the scope of the IBT constitution that binds all members, and because the IBT constitution contemplates amendment by the GEB, under the circumstances of this case, as a result of judicial direction. United States v. International Brotherhood of Teamsters. supra, 905 F.2d at 622. With respect to the election provisions of the Consent Decree, the parameters of the election process set out in the Consent Decree has been continually contested over the past eighteen months by the IBT and the subordinate entities. The Court of Appeals -29- has recently rejected all challenges to the Consent Decree's electoral changes to the IBT constitution. United States v. International Brotherhood of Teamsters, supra, Slip Opinion, April 12, 1991. The electoral-related litigation began in October, 1989, where in the October 18, 1989 Order, this Court ruled that the power of the Election Officer at #F.12.(D) to “supervise” the 1991 IBT election must "be interpreted in its most expansive and proactive meaning." October 18, 1989 Memorandum & Order, supra, 723 F. Supp. at 206. In that order, this Court further authorized the Election Officer to promulgate rules to govern the delegate and International Officer election. Id. at 207. On July 10, 1990, this Court approved, as modified, the set of rules promulgated by the Election Officer to govern the 1991 ~30- 37 election. July 10, 1990 Opinion & Order, supra, 742 F. Supp. 94. In objecting to those rules, local unions argued that they were not bound by the Consent Decree's electoral changes to the IBT constitution because the IBT could not unilaterally agree to such changes absent their approval at an IBT convention. Those challenges - were rejected. Id. at 98. On April 12, 1991, the Court of Appeals affirmed this Court's July 10, 1990 Opinion. In that decision, the Court of Appeals specifically rejected arguments by IBT subordinate entities that the Consent Decree's electoral provisions were impermissible changes to the IBT constitution. The Court of Appeals adopted its reasoning in the Friedman & Hughes opinion, and held that pursuant to Article XXVI, Section 2 of the IBT constitution, =3i— 38 the IBT could amend its constitution to incorporate the Consent Decree's electoral changes at judicial direction: (The Affiliates] argue that those provisions [of the Consent Decree] that displace the IBT Constitution are not binding on them unless and until the amendments have been ratified at an IBT Convention properly constituted under the original IBT Constitution. We disagree. x * x Where the subject matter of an IBT constitutional provision relates to the power of the international rather than of local unions, the IBT may agree to a consent decree entered by a court that renders the provision inoperative and that IBT local unions and members are bound by the terms of that decree. x x * In the instant matter, the IBT constitutional provisions rendered inoperative concern not the powers of the international union but the method by which international officials--Convention delegates and international officers--are selected....The challenged provisions do not relate to, or intrude upon, the governance of local unions or the conduct of collective bargaining by local unions. ...We believe, therefore, that our decision in the instant matter falls within the -32- rs ial 39 rationale of Friedman & Hughes and that . the Affiliates are bound by the Consent Decree. x * * (Wle...believe that an Affiliate or member cannot veto the IBT's settlement of this unique civil RICO action, at least insofar as the Consent Decree provides for membership elections of Convention delegates and IBT officers. Id. at 3617-3621. This line of decisions has unequivocally determined that the Consent Decree's changes to the IBT constitution are valid and binding without the approval of a convention of the IBT. Id. This Court and the Court of appeals have conclusively held that the IBT had the power to agree to the constitutional changes ordered by the Consent Decree, and that the subordinate entities are so bound by those new provisions. Id. Accordingly, the Court finds that the specific reason why the parties in including the approval provisions is no = ‘ i ri Ca longer at issue. Whatever the outcome of the delegates votes as to the electoral and disciplinary changes to the IBT constitution, those provisions will be in full effect in accordance with the Consent Decree. The Consent Decree's provisions may only be changed through full compliance with #L.17, subject to approval by the _Government or this Court. As a result of these determinations, the vote of the delegates on the Consent Decree will now have no legal effect. No action taken by the IBT at the convention can undercut the provisions of this Consent Decree. I remind the IBT that it voluntarily agreed to the Consent Decree, and with it free rank and file elections. The past two years have demonstrated that the IBT had no intention of living up to its end of the =the 41 agreement. The IBT has made every attempt to limit the scope and restrict the terms of the Consent Decree, and each time it has lost. But the time for challenges to the Consent Decree has now passed, and the IBT must live with the Consent Decree as written by the parties, approved by the Court, and repeatedly interpreted by this Court and the Court of Appeals. I tend to be amused when I remember that the IBT by its representatives have made heroic statements from time to time to reaffirm their commitment to a union free of corruption and their dedication to free elections. How I wish that some of these statements could have been true. Time has proved, however, that these statements are empty of any meaning or purpose for the good of this important union. -35- } A ww Fd D. The Motion for Declaratory and Injunctive Relief the Consent Decree While this Court's ruling that the electoral provisions of the Consent Decree are binding upon the entire IBT regardless of the outcome of the convention's vote on those amendments also determines the Government's specific requests for relief in its motion, this Court will in the alternative also consider the Government's motion on its merits. In order to decide that motion, this Court must consider (i) whether the parties to the Consent Decree and this Court directly foresaw this Situation, and inserted a specific remedy at 99(b), (ii) the standards under which these orders should issue, and (iii) the merits of the Government's application. This Court has already held that "K.16 permits prospective applications for relief. =36- | of SPO 1. The Parties' Prior Consideration of this Issue The IBT argues that the parties' March 14, 1989 colloquy with the Court regarding the inconsistency in the Consent Decree demonstrates that the parties foresaw the possibility that the delegates would vote against the Consent Decree's changes. At the Court's direction, a specific remedy, 9(b) of the Consent Decree, was inserted. As a result, the IBT contends that this Court should refrain from issuing this interpretation of the Consent Decree. This argument is without merit. The specific language of the Consent Decree permits the Government's motion. Paragraph 9(b) provides that in the event that the IBT has not formally voted to amend its constitution by the end of the «37J— = > *. 44 IBT convention, the Government may seek “enforcement of this order, contempt, or re-open[ing of] this litigation." {9(b) (emphasis added). In this application, the Government is asking this Court to rule that the future practices provision, {{L17, is still in effect even if the convention delegates vote against the Consent Decree. The Consent Decree is a binding, coercive order of this Court which obligates the parties to adhere to its terms. Assuming arguendo that the delegates could vote out the Consent Decree’s changes, the terms of the Consent Decree would still be in effect as an order of this Court binding on the General President and GEB as the representatives of the IBT. That order includes the Government's right to seek the remedies listed at %9(b), and the obligation of the -38- IBT to adhere to FL.17. Such was the specific intent of the parties in constructing the Consent Decree. In addition, the Government's motion is wholly consistent with the terms of {9(b). That provision gave the Government the right to “seek enforcement of this order" in enumerated ways. This motion essentially asks for a determination as to the status of YL.17 should the changes not be approved. Rationally, such a ruling must be seen as the Government seeking enforcement of another provision of the Consent Decree. 2. The Standards for the Instant Relief With respect to the issue of the standards that must be met for this ruling, the IBT's argument that the Government must -39- meet this circuit's standards for a preliminary injunction and declaratory judgment are not relevant. The Government has properly sought rulings setting out the rights and responsibilities of the parties with respect to the Consent Decree as is their right under %K.16. While the IBT correctly identifies the standards for seeking a preliminary injunction or instituting a declaratory judgment action, those standards are not relevant in the context of this ongoing case. It is appropriate for this Court to issue injunctive and declaratory relief in the ongoing implementation of the Consent Decree. The power of the Court to issue such relief is to be found in the Consent Decree itself. See New York State Association for Retarded Children, Inc. v. Carey, 596 F.2d 27, 38 (2d Cir.), cert. -40- 47 denied 444 U.S. 836 (1979). As has been stated, this Court finds that %K.16 a ae ee specifically foresaw such rulings. : Further, this Court has the authority / under the civil RICO statute to issue “such restraining orders or prohibitions, or take such other actions...as it shall deem proper." 18 U.S.C. §1964(b). The equitable relief moved for by the Government may be issued by this Court in the context of this ongoing civil RICO action. The Government has demonstrated that it is an appropriate exercise of this Court's equitable power to issue declaratory and injunctive relief in this unique Situation. The IBT convention that is to take place June 24-28 1991 will mark a watershed in the American Labor movement. The IBT, this nation's largest labor union, =4l— 4S will vote to nominate candidates for the fall general rank and file secret ballot election for international office for the first time in its history. The convention will mark the culmination of over two years of work to achieve these noble electoral goals. Millions of dollars in union members' funds have already been spent in the course of this election. The convention itself is a large event, with over 2000 IBT delegates, and 10,000 family members travelling to Florida for five days. I agree with the Government that a matter so important must be settled in advance of the convention. To do otherwise would permit the convention to plunge into total disarray. That {[K.16 provided for the Court to issue declaratory and injunctive relief in such a situation is —42- 49 logical and rational. That RICO and the All Writs Act permits such rulings is also clear. 3. The Government's Application With respect to the declaratory relief, as a result of the subsequent judicial determinations as to the legal status of the Consent Decree, and as an order of this Court, #L.17 of the Consent Decree will be in effect for the three-year duration of the Consent Decree. In accordance with that provision, the Government or the Court must approve any changes to the Consent Decree, or the IBT constitutional provisions that implicate the Consent Decree, taken by the IBT. Paragraph L.17 has been interpreted by the Court of Appeals and this Court such that: —-43- 0 os (T]he IBT [must] refrain from any unilateral changes, ‘constitutional or otherwise,’ in the broad areas covered by the Consent Decree. Paragraph (L.J17 was obviously intended to protect the background understanding of both parties as to what existing rules, regulations, and constitutional provisions would govern the IBT. United States v. International Brotherhood of Teamsters, supra, 905 F.2d at 620 (quoting March 13 Opinion & Order, supra, 743 F. Supp. at 163). The convention delegates rejection of the Consent Decree's changes would constitute an alteration of the explicit understanding of the parties as to the procedure for electing international officers. As with any such alteration of the background understanding of the parties, such a change must be in compliance with qL.17. Thus, the Court declares that L.17 requires that any substitute electoral procedure must be first approved by the Government or by this —-44- Court. Failing this procedure, the existing procedure set out in the Consent Decree would remain in effect. With respect to the equitable relief sought by the Government, there can be no doubt that every action must be taken to assure the implementation of this most important portion of the Consent Decree, the honest, fair, secret ballot election. It is undoubtedly an appropriate exercise of this Court's equitable power to enjoin any activity taken by the IBT that would deny the membership their right to decide the legitmate leadership of their union. Further, the IBT explicitly agreed in E.10 of the Consent Decree that it would not “obstruct or otherwise interfere" with the implementation of the Consent Decree, Or the work of the Court Officers. Since the Election Officer must supervise the -45- aimee aia 02 election according to the election rules, any action taken to engineer a vote against the current electoral provision would constitute interference with the work of the Election Officer. Accordingly, any action taken to further the rejection of the Consent Decree's changes would violate the existing injunction in the Consent Decree. Thus, the IBT is put on notice that it shall not take action to vote against the very Consent Decree which it signed. The Government's application is granted. III. Conclusion The Government's application for interpretations and rulings of the consent Decree is hereby granted. IT IS HEREBY ORDERED that the motions to intervene are denied. —-46- IT IS HEREBY ORDERED that the electoral and disciplinary provisions of the Consent Decree are part of IBT constitution and binding on the subordinate entities regardless of the vote of the delegates at the IBT convention unless its provisions are changed in accordance with #L.17 of the Consent Decree. IT IS FURTHER ORDERED that the function of the 1991 IBT International Union nominating convention as delineated in paragraph F.12.(D) of the Consent Decree may not be expanded, limited, altered, or otherwise changed in any way without full compliance with the provisions of {{L.17 of the Consent Decree. IT IS FURTHER ORDERED that the IBT, as the representative of the GEB and its employees, members, agents, attorneys and affiliates (including local unions, joint -47- ql wes councils, and area conferences), is hereby enjoined from taking any action in an attempt to cause any expansion, enhancement, limitation, or other change in the function of the 1991 IBT International Union nominating convention as delineated in paragraph F.12.(D) of the Consent Decree, except action expressly authorized by paragraph L.17 of the Consent Decree. So Ordered. Dated: May 6, 1991 New York, New York U.S.D.J. —4 8— UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, Plaintiff, V » INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS (DNE) OF AMERICA, AFL-CIO et al, Defendants. ed ee ee ee ee ee ee ee ee, ee, ee, ee ORDER 88 CIV. 4486 WHEREAS, plaintiff United States of America commenced this action on June 28, 1988, by filing a Complaint seeking equitable relief involving the International Brotherhood of Teamsters, AFL-CIO (hereinafter, “the IBT"), pursuant to the civil remedies provisions of the Racketeer Influenced and Corrupt 00 Organizations ("RICO") Act, 18 U.S.C. § 1964; and WHEREAS, the Summons and Complaint have been served, answers filed, and pretrial discovery commenced by and between the parties; and WHEREAS, plaintiff United States of America and defendants IBT and its General Executive Board, William J. McCarthy, Weldon Mathis, Joseph Trarotola, Joseph W. Morgan, Edward M. Lawson, Arnold Weinmeister, Donald Peters, Walter J. Shea, Harold Friedman, Jack D. Cox, Don L. West. Michael J. Riley, Theodore Cozza and Daniel Ligurotis (hereinafter the “union defendants") have consented to entry of this order; and WHEREAS, the union defendants acknowledge that there have been allegations, sworn testimony and judicial ~~ . : findings of past problems with La Cosa Nostra corruption of various elements of the IBT; and WHEREAS, the union defendants agree that there should be no criminal element or La Cosa Nostra corruption of any part of the IBT; and WHEREAS, the union defendants agree that it is imperative that the IBT, as the largest trade union in the free world, be maintained democratically, with integrity and for the sole benefit of its members and without unlawful outside influence; IT IS HEREBY ORDERED AND DECREED That: A. COURT JURISDICTION l. This Court has jurisdiction over the subject matter of the action, has personal jurisdiction over the parties, and shall retain jurisdiction over this case -3- ae) until further order of the Court. a. Upon satisfactory completion and implementation of the terms and conditions : of this order, this Court shall entertain a | joint motion of the parties hereto for entry of judgment dismissing this action with prejudice and without costs to either party. B. DURATION 3. The authority of the court officers established in paragraph no. 12 herein shall terminate after the certification of the 1991 election results by the Election Officer for all IBT International Officers as provided in this Order, except as follows: (1) The Election Officer and the Administrator shall have the authority to resolve all disputes concerning the conduct —-4- and/or results of the elections conducted in 1991 under the authority granted to them under paragraph 12(D) herein, and the Investigations officer and the Administrator shall have the authority to investigate and discipline any corruption associated with the conduct and/or results of the elections to be conducted in 1991 under the authority granted them under paragraph 12(A) and (C) herein, so long as said investigation is begun within six months of the final balloting. (2) The Investigations Officer and the Administrator shall have the authority to resolve to completion and decide all charges filed by the Investigations Officer on or before the date on which the authority granted to them under paragraphs 12(A) and (C) herein terminates the authority pursuant to subparagraph (3) below. -5- 60 (3) The role and authority provided for in paragraphs 12 and 13 of this Order regarding the Investigations Officer and the Administrator and their relationship with the Independent Review Board shall terminate not later than nine (9) months after the certification of the 1991 election results. (4) As used herein, the date referred to as “the certification of the 1991 election results" shall be construed to mean either the date upon which the Election Officer certifies the 1991 election results for all IBT International Officers or one month after the final balloting, whichever is shorter. eee et. at eee Sree Were ty) 61 C. STATUS OF THE INDIVIDUAL UNION DEFENDANT S 4. The union defendants herein remain as officers of the IBT, subject to all of the terms herein, including the disciplinary authority of the Court-appointed officers, described in paragraph 12(A) herein. D. CHANGES IN THE IBT CONSTITUTION 3. The portion of Section 6(a) of Article XIX of the IBT Constitution that provides, “Any charge based upon alleged onduct which occurred more than one (1) year prior to the filing of such charge is barred and shall we rejected by the Secretary-Treasurer, except charges based upon the non-payment of dues, assessment and other financial obligations," shall be and hereby is amended to provide for a five ~ 62 (S) year period, running from the discovery of the conduct giving rise to the charge. This limitation period shall not apply to any actions taken by the Investigations Officer or the Administrator. 6. Section 6(a) of Article XIX of the IBT Constitution shall be deemed and is hereby amended to include the following: “Nothing herein shall preclude the General President and/or General Executive Board from suspending a member or officer facing Criminal or civil trial while the charges are pending." 7. Immediately after the conclusion of the IBT elections to be conducted in 1991, Section 8 of Article VI of the IBT Constitution shall be deemed and hereby is amended to provide that a special election be held whenever a vacancy occurs in the office of IBT General President, pursuant -8- to the procedures described later herein for election of IBT General President. 8. Article IV, Section 2 of the IBT Constitution shall be deemed and is hereby amended to include a new paragraph as follows: "No candidate for election shall accept Or use any contributions or other things of value received from any employers, representative of an employer, foundation, trust or any Similar entity. Nothing herein shall be interpreted to prohibit receipt of contributions from fellow employees and members of this International Union. Violation of this provision shall be grounds for removal from office. 9, (a) The IBT Constitution shall be deemed and hereby is amended to incorporate and conform with all of the terms set forth in this order. (b) By no later than the conclusion of the IBT convention to be held in 1991, the IBT shall have formally amended the IBT Constitution to incorporate __ 64 and conform with all of the terms set forth in this order by presenting said terms to the delegates for a vote. If the IBT has not formally so amended the IBT Constitution by that date, the Government retains the right to seek any appropriate action, including enforcement of this order, contempt or reopening this litigation. E. PERMANENT INJUNCTION 10. Defendants William J. McCarthy, Weldon Mathis, Joseph Trarotola, Joseph WwW. Morgan, Edward M. Lawson, Arnold Weinmeister, Donald Peters, Walter J. Shea, Harold Friedman, Jack D. Cox, Don L. West, Michael J. Riley, Theodore Cozza and Daniel Ligurotis, as well as any other or future IBT General Executive Board members, officers, representatives, members and -10- employees of the IBT, are hereby permanently enjoined from committing any acts of racketeering activity, as defined in 18 U.S.C. § 1961 et seq., and from Knowingly associating with any member or associate of the Colombo Organized Crime Family of La Cosa Nostra, the Genovese Organized Crime Family of La Cosa Nostra, the Gambino Organized Family of La Cosa Nostra, the Lucchese Organized Crime Family of La Cosa Nostra, the Bonnano Organized Crime Family of La Cosa Nostra, any other Organized Crime Families of La Cosa Nostra Or any other criminal group, or any person otherwise enjoined from participating in union affairs, and from obstructing or otherwise interfering with the work of the court-appointed officers or the Independent Review Board described herein. -ll- 65 ll. As used herein, the term, “knowingly associating," shall have the same meaning as that ascribed to that term in the context of comparable federal proceedings or federal rules and regulations. F. COURT-APPOINTED OFFICERS 12. The Court shall appoint three (3) officers -- an Independent Administrator, an Investigations Officer and an Election Officer -- to be identified and proposed by the Government and the union defendants, to oversee certain operations of the IBT as described herein. The parties shall jointly propose to the Court at least two persons for each of these three positions. Such proposal shall be presented to the Court within four weeks of the date of the entry of this Order, except that for good -12- 67 cause shown such period may be extended by the Court. Except as otherwise provided herein, the duties of those three officers shall be the following: (A) DISCIPLINARY AUTHORITY -- From the date of the Administrator's appointment until the termination of the Administrator's authority as set forth in paragraph 3(3) herein, the Administrator shall have the rights and powers as the IBT's General President and/or General Executive Board under the IBT's Constitution (including Articles VI and XIX thereof) and Title 29 of the United States Code to discharge those duties which relate to disciplining corrupt or dishonest officers, agents, employees or members of the IBT or any of its affiliated entities (such as IBT Locals, Joint Councils and Area Conferences), and appointing temporary -13- 68 trustees to run the affairs of any such affiliated entities. The Investigations Officer shall have the authority to investigate the operation of the IBT or any of its affiliates and, with cause, (i) To initiate disciplinary charges against any officer, member or employee of the IBT or any of its affiliates in the manner specified for members under the IBT Constitution and, (ii) To institute trusteeship proceedings for the purposes and in the manner specified in the IBT Constitution. Prior to instituting any trusteeship proceeding the Investigations Officer shall notify the General President of the Investigations Officer's pian to institute Said trusteeship proceeding and the basis =}g@u 69 therefor and give the General President ten (10) days to exercise his authority pursuant to the IBT Constitution to institute such trusteeship proceedings. If the General President timely institutes such proceedings and/or a trusteeship is imposed, the Investigations Officer and the Administrator shall have authority to review any action thus taken by the General President and/or any trusteeship imposed thereafter and to modify any aspect of either of the above at any time and in any manner consistent with applicable federal law. If the General President fails to institute trusteeship proceedings within the ten-day period prescribed herein, the Investigations Officer may immediately proceed in accordance with the authority specified above. -15- 19 When the Investigations Officer files charges, the following procedures shall be observed: (a) the Investigations Officer shall serve written specific charges upon the person charged; (b) the person charged shall have at least thirty (30) days prior to hearing to prepare his or her defense; (c) a fair and impartial hearing shall be conducted before the Administrator; (d) the person charged may be represented by an IBT member at the hearing; and (e) the hearing shall be conducted under the rules and procedures generally applicable to labor arbitration hearings. The Administrator shall preside at hearings in such cases and decide such cases using a "just cause" standard. The =t¢@— fai Investigations Officer shall present evidence at such hearings. As to decisions of the IBT General Executive Board on disciplinary charges and trusteeship proceedings during the Administrator's tenure, the Administrator shall review all such decisions, with the right to affirm, modify or reverse such decisions and, with respect to trusteeship proceedings, to exercise the authority granted above in this paragraph. Any decision of the Administrator shall be final and binding, subject to the Court's review as provided herein. For a period of up to fourteen (14) days after the Administrator's decision, any person charged or entity placed in trusteeship adversely affected by the decision shall have the right to seek review by this Court of the Administrator's decision. The Administrator shall also oj F< 12 have the right to establish and disseminate new guidelines for investigation and discipline of corruption within the IBT. All of the above actions of the Administrator and Investigations Officer shall be in compliance with applicable Federal laws and regulations. | (B) REVIEW AUTHORITY -- From the ‘ date of the Administrator's appointment until the certification of the IBT elections to be conducted in 1991, the Administrator shall have the authority to veto whenever the Administrator reasonably believes that any of the actions or proposed actions listed below constitutes or furthers an act of racketeering activity within the definition of Title 18 U.S.C. § 1961, or furthers or contributes to the association directly, or indirectly, of the -18- 03 IBT or any of its members with the LCN or elements thereof: (i) any expenditures or proposed expenditure of International Union funds or transfer of International Union property approved by any officers, agents, representatives or employees of the IBT, (ii) any contract or proposed contract on behalf of the International Union, other than collective bargaining agreements, and (iii) any appointment or proposed appointments to International Union officer of any officer, agent, representative or employee of the IBT. In any case where the Administrator exercises veto authority, the action or proposed action shall not go forward. The Administrator, upon request of the IBT's General President or General -19- V4 Executive Board, shall, within three (3) days, advise the IBT's General President and/or General Executive Board whichever is applicable, of the reasons for any such veto. For a period of up to fourteen (14) days after the Administrator's decision, the IBT's President and/or General Executive Board shall have the right to seek review by this Court of the Administrator's decision. The Administrator may prescribe any reasonable mechanism or procedure to provide for the Administrator's review of actions or proposed actions by the IBT, and every officer, agent, representative or employee of the IBT shall comply with such mechanism Or procedure. (C) ACCESS TO INFORMATION -- (i) The Investigations Officer shall have the authority to take such reasonable steps —-20— KGa Lt Sept Pes Pe Rit aby eae Ph $ a be e ° & ¢ =! , x ¥ ‘ that are lawful and necessary in order to be fully informed about the activities of the IBT in accordance with the procedures as herein established. The Investigations Officer shall have the right: (a) To examine books and records of the IBT and its affiliates, provided the entity to be examined receives three (3) business days advance notice in writing, and said entity has the right to have its representatives present during said examination. (b) To attend meetings or portions of meetings of the General Executive Board relating in any way to any of the officer's rights or duties as set forth in this Order, provided that prior to any such meeting, the officer shall receive an agenda for the meeting and then give —-2l1- 70 notice to the General President of the officer's anticipated attendance. (c) To take and require sworn statements or sworn in-person examinations of any officer, member, or employee of the IBT provided the Investigations Officer has reasonable cause to take such a statement and provided further that the person to be examined receives at least ten (10) days advance notice in writing and also has the right to be represented by an IBT member or legal counsel of his or her own choosing, during the course of said examination. (d) To take, upon notice and application for cause made to this Court. which shall include affidavits in support thereto, and the opportunity for rebuttal affidavits, the sworn statements or sworn in person examination of persons who are agents of the IBT (and not covered in subparagraph (c) above). -22- (e) To retain an independent auditor to perform audits upon the books and records of the IBT or any of its affiliated entities (not including benefit funds subject to ERISA), provided said entity receives three (3) business days advance notice in writing and said entity has the right to have its representatives present during the conduct of said audit. (ii) The Independent Administrator and the Election Officer shall have the same rights as the Investigations Officer as provided in sections (a), (b), (c) and (d) of A, herein. (iii) The Independent Administrator, Investigations Officer and Election Officer shall each be provided with suitable office space at the IBT headquarters in Washington, D.C. —-23- 08 D. IBT ELECTION -- The IBT Constitution shall be deemed amended, and is hereby amended, to provide for the following new election procedures: (i) The procedures described herein shall apply to elections of the IBT's General President, General Secretary-Treasurer, International Union Vice Presidents, and International Union Trustees; (ii) Delegates to the IBT International convention at which any International Union officers are nominated or elected shall be chosen by direct rank-and-file secret balloting shortly before the convention (but not more than six months before the convention, except for those delegates elected at local union elections scheduled to be held in the fall —-24- ee of 1990), and with all convention Candidate election voting by secret ballot each delegate individually; (iii) Delegates shall nominate candidates for eleven (11) Regional Vice Presidents, as*follows: Three (3) from the Eastern Conference, three (3) from the Central Conference, two (2) from the Southern Conference, two (2) from the Western Conference, and one (1) from the Canadian Conference. In addition, there shall be nominated candidates for five (5) Vice Presidents to be elected at large. All duly nominated Vice Presidents shall stand for election conducted at local unions on the same ballot and time as the election of General President and General Secretary-Treasurer, as provided herein; (iv) At such an International convention, after the nomination of —-25- SO | International Union Vice Presidents and election of Trustees, all delegates shall then vote for nominees for the offices of IBT General President and Secretary-Treasurer; (v) To qualify for the ballot for the direct rank-and-file voting for IBT General President, Secretary-Treasurer, and Vice President, candidates must receive at least five (5) percent of the delegate votes at the International convention, for the at large position, or by conference for regional positions, as the case may be; (vi) No person on the ballot for the position of IBT General President may appear on the ballot in the same election year for the position of Secretary-Treasurer; and further no member shall be a candidate for more than one (1) Vice President position; -—-26- 81 (vii) No less than four (4) months and no more than six (6) months after the International convention at which candidates were nominated, the IBT General President, General Secretary-Treasurer and Vice Presidents shall be elected by direct rank-and-file voting by secret ballot in unionwide, one-member, one-vote elections for each at large position, and conference wide, one-member one-vote elections for each regional position; (viii) All direct rank-and-file voting by secret ballot described above shall be by in-person ballot box voting at local unions or absentee ballot procedures where necessary, in accordance with Department of Labor regulations; and (ix) The current procedures under the IBT Constitution for filling a vacancy between elections in the office of General ~) 82 Secretary-Treasurer, International Trustee, and International Vice President shall remain in effect. The Election Officer shall supervise the IBT election described above to be conducted in 1991 and any special IBT elections that occur prior to the IBT elections to be conducted in 1991. In advance of each election, the Election Officer shall have the right to distribute materials about the election to the IBT membership. The Election Officer shall supervise the balloting process and certify the election results for each of these elections as promptly as possible after the balloting. Any disputes about the conduct and/or results of elections shall be resolved after hearing by the Administrator. The union defendants consent to the Election Officer, at Government -28- able Sol hale J TS ae ee ee Se Ie ey eR expense, to supervise the 1996 IBT elections. The union defendants further consent to the U.S. Department of Labor supervising any IBT elections or special elections to be conducted after 1991 for the office of the IBT General President, IBT General Secretary-Treasurer, IBT Vice President, and IBT Trustee. At the IBT 1991 International Convention, the delegates shall be presented with these aforesaid amendments for vote; provided further that nothing herein shall be deemed or interpreted or applied to abridge the Landrum-Griffin free speech right of any IBT officer, delegate Or wember, including the parties hereto. (E) REPORTS TO MEMBERSHIP -- The Administrator shall have the authority to distribute materials at reasonable times to the membership of the IBT about the ~99— S4 | Administrator's activities. The reasonable cost of distribution of these materials shall be borne by the IBT. Moreover, the Administrator shall have the authority to publish a report in each issue of the International Teamster concerning the activities of the Administrator, Investigations Officer and Election Officer. (F) REPORTS TO THE COURT -- The Administrator shall report to the Court whenever the Administrator sees fit but, in any event, shall file with the Court a written report every three (3) months about the activities of the Administrator, Investigations Officer ont Election Officer. A copy of all reports to the Court by the Administrator shall be served on plaintiff United States of America, the IBT's General President and duly designated IBT counsel. =$9- (G) HIRING AUTHORITY -- The Administrator, the Investigations Officer and the Election Officer shall have the authority to employ accountants, consultants, experts, investigators or any other personnel necessary to assist in the proper discharge of their duties. Moreover, they shall have the authority to designate persons of their choosing to act on their behalf in performing any of their duties, as outlined in subparagraphs above. Whenever any of them wish to designate a person to act on their behalf, they shall give prior written notice of the designation to plaintiff United States of America, and the IBT's General President; and those parties shall then have the right, within fourteen (14) days of receipt of notice, to seek review by this Court of =3i< 85 the designation, which shall otherwise take effect fourteen (14) days after receipt of notice. (H) COMPENSATION AND EXPENSE | -- The compensation and expense of the | Administrator, the Investigations Officer and the Election Officer (and any designee Or persons hired by them) shall be paid by the IBT. Moreover, all costs associated with the activities of these three officials (and any designee or persons hired by them) shall be paid by the IBT. The Administrator, Investigations Officer and Election Officer shall file with the Court (and serve on plaintiff United States of America and the IBT's General President and designated IBT counsel) an application, including an itemized bill, with supporting material, for their services and expenses once every three months. The IBT's General =$2- President shall then have fourteen (14) business days following receipt of the above in which to contest the bill before this Court. If the IBT's President fails to contest such a bill within that 14-day period, the IBT shall be obligated to pay the bill. In all disputes concerning the reasonableness of the level or amount of compensation or expense to be paid, the Court and parties shall be guided by the level of payment as authorized and approved by the IBT for the payment of similar services and expenses. (I) APPLICATION TO THE COURT -- The Administrator may make any application to the Court that the Administrator deems warranted. Upon making any application to the Court, the Administrator shall give prior notice to plaintiff United States of America, the -33- 88 IBT's General President and designated IBT counsel and shall serve any submissions filed with the Court on plaintiff United States of America, the IBT's General President and designated IBT counsel. Nothing herein shall be construed authorizing the parties or the Court-appointed officers to modify, change Or amend the terms of this Order. G. INDEPENDENT REVIEW BOARD Following the certification of the 1991 election results, there shall be established: an Independent Review Board, (hereinafter, referred to as the “Review Board"). Said Board shall consist of three members, one chosen by the Attorney General of the United States, cone chosen by the IBT and a third person chosen by the Attorney General's designee and the IBT's designee. | =36—- A Se 000 ty atk > 89 In the event of a vacancy, the replacement shall be selected in the same manner as the person who is being replaced was selected. (a) The Independent: Review Board shall be authorized to hire a sufficient staff of investigators and attorneys to investigate adequately (1) any allegations of corruption, including bribery, embezzlement, extortion, loan sharking, violation of 29 U.S.C. §530 of the Landrum Griffin Act, Taft-Hartley Criminal violations or Hobbs Act violations, or (2) any allegations of domination or control or influence of any IBT affiliate, member or representative by La Cosa Nostra or any other organized crime entity or group, or (3) any failure to cooperate fully with the Independent Review Roard in any investigation of the foregoing. (b) The Independent Review Board =9S- 90 shall exercise such investigative authority as the General President and General Secretary-Treasurer are presently authorized and empowered to exercise pursuant to the IBT Constitution, as well as any and all applicable provisions of law. (c) All officers, members, employees and representatives of the IBT and its affiliated bodies shall cooperate fully with the Independent Review Board in the course of any investigation or proceeding undertaken by it. Unreasonable failure to cooperate with the Independent Review Board shall be deemed to be conduct which brings reproach upon the IBT and which is thereby within the Independent Review Board's investigatory and decisional authority. (d) Upon completion of an investigation, the Independent Review Board -—-36- SE eee ey Bibi. 91 shall issue a written report detailing its findings, charges, and recommendations concerning the discipline of union officers, members, employees, and representatives and concerning the placing in trusteeship of any IBT subordinate body. Such written reports shall be available during business hours for public inspection at the IBT office in Washington, BC. (e) Any findings, charges, or recommendations of the Independent Review Board regarding discipline or trusteeship matters shall be submitted in writing to any appropriate IBT entity (including designating a matter as an original jurisdiction case for General Executive Board review), with a copy sent to the General President and General Executive Board. The IBT entity to which a matter is o3F= 92 referred shall thereupon promptly take whatever action is appropriate under the circumstances, as provided by the IBT Constitution and applicable law. Within 90 days of the referral, that IBT entity must make written findings setting forth the specific action taken and the reasons for that action. (f) The Independent Review Board shall monitor all matters which it has referred for action if, in its sole judgment, a matter has not been pursued and decided by the IBT entity to which the matter has been referred in a lawful, responsible, or timely manner, or that the resolution proposed by the relevant IBT entity is inadequate under the circumstances, the Independent Review Board shall notify the IBT affiliate involved of its view, and the reasons therefor. A copy ~ZO— i oak EG ed ora, J3 of said notice shall be sent by the Independent Review Board shall notify the IBT affiliate involved of its view, and the reasons therefor. A copy of said notice shall be sent by the Independent Review Board, to the General President and the General Executive Board. (g) Within 10 days of the notice described in paragraph (f) above, the IBT entity involved shall set forth in writing any and all additional actions it has taken and/or will take to correct the defects set forth in said notice and a deadline by which said action may be completed. Immediately thereafter, the Independent Review Board shall issue a written determination concerning the adequacy of the additional action taken and/or proposed by the IBT entity involved. If the Independent Review Board concludes that the -—-39- J4 IBT entity involved has failed to take or propose satisfactory action to remedy the defects specified by the Independent Review Board's notice, the Independent Review Board shall promptly convene a hearing, after notice to all affected parties. All parties shall be permitted to present any facts, evidence, or testimony which is relevant to the issue before the Independent Review Board. Any such hearing shall be conducted under the rules and procedures generally applicable to labor arbitration hearings. (h) After a fair hearing has been conducted, the Independent Review Board shall issue a written decision which shall be sent to the General President, each member of the General Executive Board, and all affected parties. -40- (i) The decision of the Independent Review Board shall be final and binding, and the General Executive Board shall take all action which is necessary to implement said decision, consistent with the IBT Constitution and applicable Federal laws. (j) The Independent Review Board shall have the right to examine and review the General Executive Board's implementation of the Independent Review's decisions; in the event the Independent Review Board is dissatisfied with the General Executive Board's implementation of any of its decision, the Independent Review Board shall have the authority to take whatever steps are appropriate to insure proper implementation of any such decision. (k) The Independent Review Bc:rd shall be apprised of and have the authority ~~ to to review any disciplinary or trusteeship decision of the General Executive Board, and shall have the right to affirm, modify, or reverse any such decision. The Independent Review Board's affirmance, modifications, or reversal of any such General Executive Board decision shall be in writing and final and binding. (1) The IBT shall pay all costs and expense of the Independent Review Board and its staff (including all salaries of Review Board members and staff). Invoices for all such costs and expense shall be directed to the General President for payment. (m) The Investigations Officer and the Administrator shall continue to exercise the investigatory and disciplinary authority set forth in paragraph 12 above for the limited period set forth in -42- paragraph 3(3) above, provided, however, that the Investigations Officer and the Administrator may, instead, refer any such investigation or disciplinary matter to the Independent Review Board. (n) The IBT Constitution shall be deemed and hereby is amended to incorporate all of the terms relating to the Independent Review Board set forth above in this paragraph. This amendment shall be presented to the delegates to the 1991 Convention for vote. H. INDEMNIFICATION 13. The IBT shall purchase a policy of insurance in an appropriate amount to protect the Administrator, the Investigations Officer, the Election Officer and persons acting on their behalf from personal liability for any of their -43- 95 actions on behalf of the IBT, the Administrator, the Investigations Officer or the Election Officer. If such insurance is not available, or if the IBT so elects, the IBT shall indemnify the Administrator, Investigations Officer, Election Officer and persons acting on their behalf from any liability (or costs incurred to defend against the imposition of liability) for conduct taken pursuant to this order. That indemnification shall not apply to conduct not taken pursuant to this order. In addition, the Administrator, the Investigations Officer, the Election Officer and any persons designated or hired by them to act on their behalf shall enjoy whatever exemptions from personal liability may exist under the law for court officers. -—-44- I. IBT LEGAL COUNSEL 14. During the term of office of the court-appointed officers, the IBT General President shall have the right to employ or retain legal counsel to prcevide consultation and representation to the IBT with respect to this litigation, to negotiate with the appropriate official and to challenge the decisions of the court-appointed officers, and may use union funds to pay for such legal consultation and representation. The Administrator's removal powers and authority over union expenditures shall not apply to such legal consultation and representation. J. NON-WAIVER 15. To the extent that such evidence would be otherwise admissible under the Federal Rules of Evidence, nothing herein =48— shall be construed as a waiver by the United States of America or the United States Department of Labor of its right to offer proof of any allegation contained in the Complaint, Proposed Amended Complaint, declarations or memoranda filed in this action, in any subsequent proceeding which may lawfully be brought. K. APPLICATION TO COURT 16. This Court shall retain jurisdiction to supervise the activities of the Administrator and to entertain any future applications by the Administrator or the parties. This Court shall have exclusive jurisdiction to decide any and all issues relating to the Administrator's actions or authority pursuant to this order. In reviewing actions of the Administrator, the Court shall apply the -46— same standard of review applicable to review of final federal agency action under the Administrative Procedure Act. L. FUTURE PRACTICES 17. The parties intend the provisions set forth herein to govern future IBT practices in those areas. To the extent the IBT wishes to make any changes, constitutional or otherwise, in those provisions, the IBT shall give prior written notice to the plaintiff, through the undersigned. If the plaintiff then objects to the proposed changes as inconsistent with the terms and objectives of this order, the change shall not occur; provided, however, that the IBT shall then have the right to seek a determination from this Court, or, after the entry of judgment dismissing this action, from this Court or o47—= any other federal court of competent jurisdiction as to whether the proposed change is consistent with the terms and objectives set forth herein. M. SCOPE OF ORDER 18. Except as provided by the terms of this order, nothing else herein shall be construed or interpreted as affecting or modifying: (a) the IBT Constitution; (b) the Bylaws and Constitution of any IBT affiliates; (c) the conduct and operation of the affairs of the IBT or any IBT-affiliated entity or any employee benefit fund as defined in ERISA or trust -fund as defined by Section 302(c) of the Labor Management Relations Act, as amended; (d) the receipt of any compensation or benefits lawfully due or vested to any officer, member or employee of the IBT or =46- any of its affiliates and affiliated benefit fund; or (e) the term of office of any elected or appointed IBT officer or any of the officers of any IBT-affiliated entities. N. NON-ADMISSION CLAUSE 19. Nothing herein shall be construed as an admission by any of the individual union defendants of any wrongdoing or breach of any legal or fiduciary duty or obligation in the discharge of their duties as IBT officers and members of the IBT General Executive Board. QO. FUTURE ACTIONS 20. Nothing herein shall preclude the United States of America or the United States Department of Labor from taking any appropriate action in regard to any of the ~49— PO ee ee 104 union defendants in reliance on federal laws, including an action or motion to require disgorgement of pension, severance Or any other retirement benefits of any individual union officer defendant on whom discipline is imposed pursuant to paragraph 12 above. P. LIMITS OF ORDER 21. Nothing herein shall create or confer or is intended to create or confer, any enforceable right, claim or benefit on the part of any person or entity other than to the parties hereto and the court-appointed officers established herein. As to the undersigned defendants hereto, this order supercedes the order of the Court entered on June 28, 1988, as thereafter extended. -50- Q. EXECUTION 22. Each of the undersigned individual defendants has read this order and has had an opportunity to consult with counsel before signing the order. March 1] > , 1989. DAVID N. EDELSTEIN United States District Judge CONSENTED TO: BENITO ROMANO United States Attorney Southern District of New York One St. Andrew's Plaza New York, New York 10007 Attorney for Plaintiff United States of America By: RANDY M. MASTRO Assistant United States Attorney -51- By: 105 MUDGE ROSE GUTHRIE ALEXANDER & FERDON 180 Maiden Lane New York, New York 10038 Attorneys for Defendants IBT and its General Executive Board JED S. RAKOFF JAMES T. GRADY, ESQ. General Counsel International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO 25 Louisiana Avenue, N.W. Washington, D.C. 20001 By JAMES T. GRADY, ESQUIRE Defendant WILLIAM J. McCARTHY Defendant WELDON MATHIS Defendant JOSEPH TREROTOLA Defendant JOSEPH W. MORGAN -52- Defendant EDWARD M. LAWSON Defendant ARNOLD WEINMEISTER Defendant DONALD PETERS Defendant WALTER J. SHEA Defendant HAROLD FRIEDMAN Defendant JACK D. COX Defendant DON L. WEST Defendant MICHAEL J. RILEY Defendant THEODORE COZZA Defendant DANIEL LIGUROTIS -53- 108 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK aE Ae SIE LE ET 25 x UNITED STATES OF AMERICA, Plaintiff, Vv. 88 Civil 4486 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., Defendants. ee eR ee AS. OP ED x May 6, 1991 Li :0e @.H., Before: HON. DAVID N. EDELSTEIN, District Judge APPEARANCES OTTO G. OBERMAIER, United States Attorney for the Southern District of New York EDWARD FEGUSON, Assistant United States Attorney Attorney for the Plaintiff SOUTHERN DISTRICT APPEARANCES: (Continued) FREDRERICK B. LACEY, ESQ., STUART ALDEROTY, ESQ., Attorneys for Administration Officer JONES, DAY, REAVIS & POGUE Attorneys for Investigation Officer CHARLES M. CARBERRY, ESQ. ROBERT GAFFEY, ESQ., MICHAEL HOLLAND, ESQ., Attorney for Election Office GOULSTON & STORRS Attorneys for IBT DENIS M. KING, ESQ., and GRADY and DWYER JAMES T. GRADY, ESQ., THE COURT: Here we go again. I lifted that comment based upon my recent reodilevttels of Mr. Reagan's first debate with President Carter. Apropos of some comments made by the president, Mr. Reagan, with a broad smile and a shrug of his shoulders, said, “Here we go again.” We stand here on the eve of the first direct, secret ballot election in the unfortunate and very sordid history of the IBT. It is my firm conviction that this election will give the membership of this union the opportunity to themselves elect legitimate leadership to govern this country's largest labor union, despite all efforts that may be made to frustrate that purpose. I don't think it an excess of -3- iil rhetoric to say that we stand at a historic moment. The government has recently moved this court for orders relating to the vote to be taken by the delegates to the 1991 IBT convention on the consent decree's changes in the IBT Constitution. I have carefully considered that motion and have this morning entered an opinion deciding that matter in extenso. That will be delivered to you shortly. I have determined that as a result of decisions rendered in the past two years, it has been settled that the IBT had the power to bind the entire union to the consent decree's changes in the IBT Constitution without a vote of the delegates to a convention. Therefore, the vote of the delegates on the consent decree to be taken at the 1991 convention will now -4- 112 have no legal effect. No action taken by the IBT at the convention can or will be permitted to undercut the provisions of this consent decree. I remind the IBT that it voluntarily agreed to the consent decree with its free rank and file elections. The past two years have demonstrated clearly that the IBT had no intention of living up to its end of the agreement. The IBT has made every attempt to limit and restrict the terms of the consent decree and each time it has lost, but has not learned any lessons. But the time for challenges to the consent decree has now past and the IBT must live with the consent decree as written by the parties, approved by the court and repeatedly interpreted by this court and the Court of Appeals. -5- 113 I tend to be amused in a rather paradoxical way when I remember that the IBT, by its representatives, have made heroic statements from time to time, both here and before a constitutionally convened Senate committee, to reaffirm their commitment to a union free of corruption and their dedication to free elections. You can't imagine how I wish that some of those statements could have been true. Time, however, has proved otherwise. The statements have been empty of any meaning Or purpose for the good of this important union. trong language. I'm sorry I have to indulge in that. Hippocracy is not a substitute for free elections. There will now be free elections and nothing short will be countenenced. -6§- 114 I still have under consideration whether my presence is needed to provide assurance that the convention will proceed smoothly and in conformity with the many decrees issued by this court and subsequently affirmed by the Court of Appeals. Now, very recently I intended to save my time, avoid the need of going to this convention and thought that I would enter a stop-gap order, nothing more, nothing less. What happened? An appeal. I'm very curious to see what the court is going to do with that order and how revealing it is about the IBT's intention not even willing to agree to a small step that would save time and money. However, if there is any need for the assurance that my presence may provide at this convention as a barrier too high to on Fan jump over so that this convention may proceed smoothly, I will take the time. It means adjusting a very heavy criminal calendar, but I'm sure there are enough collegial colleagues on this bench to help me over that hurdle. And here we are. The Opinion is now available. You may have it and that's it. If there is any thought on your part that you would like to apply for a stay, I would consider that now, and I will tell you it is rejected out of hand because it doesn't meet any of the criteria that the rules call for for a stay. I see no basis SCE it Gt aii. That's se. Now you have an opportunity to read this opinion, and I would 1ike some input. Do you think -- well, why don't I do this. Why don't you read the opinion, let -8- 115 me hear from you if you think it is necessary for me to be present at this convention in order to get some guarantee or assurance that I am there with a courtroom available, with a staff in place to deal with whatever problems may arise. I will be in the robing room. (Recess) THE COURT: Letter dated May 2, 1991 handed to me by Mr. Holland which sets forth in rather lengthy fashion the kind of subject which may be necessary here. MR. LACEY: What I have to say in response to your question, your Honor, I think may moot that. THE COURT: What? MR. LACEY: What I have to say in response to your question that you raised just as you raised earlier may moot that communication, because you invited a a= il? comment from us on whether we think that it's advisable for you to be present in the court house in Atlanta during the week of the convention -- I'm sorry -- in Orlando, and I think it's a must that you be there. History has shown us that on some very important matters, we have been unable to reach a negotiated conclusion and we have had to come to your Honor for a resolution. I think -- THE COURT: That's what I tried to stop with that last order stop-gap for the government and the IBT to say about any perceived conduct stop, let's talk to the judge. That went up on appeal. However, I think you are right. MR. LACEY: I think it's a must. THE COURT: I think you are right. MR. LACEY: I tell you this, let me give you the reasons I have in mind. -~10- 118 First of all, I am satisfied that what we were trying to work out here was a second or third or fourth best. Telephone communication just is not going to be workable. I am concerned that something very Significant might arise, there will be only one way to deal with it, that would be to bring everybody back up and stop the convention and that makes absolutely no sense. So I think this: I am not suggesting that your Honor be at the hotel, the convention site, because that makes no sense, either. THE COURT: All right. MR. LACEY: But if your Honor is in the court house in Orlando, I don't know the bureaucratic steps you have to go through, empowered to rule there as if you were -ll- 119 sitting here, I'm satisfied that that is going to make, make a big difference in what happens at that convention, and I would urge it on your Honor just as strongly as I can. THE COURT: Well, you will recall that initially, at the very beginning, I though that that was the only way to go. Then I foresaw the expense of my own scheduling and I thought perhaps I could do something a little more convenient, but I have not been able to succeed in that. So your letter, Mr. Holland, is marked for identification, and under the Circumstances it is moot. You Know, I have had a nagging feeling that I have forgotten something. It has bothered me again and again. Then I would forget about it. -—~12- i<0 Now, I am instructing the government to do the following: I would like the government to deliver to my chambers a duplicate of the Roy Williams deposition and the accompanying transcript. Do you have that thus far, Mr. Ferguson? MR. FERGUSON: Yes, your Honor. THE COURT: I also request that the government have the original of the deposition and a transcript at Orlando. Why? I may find it appropriate to play this testimony before the convention, and I will not hesitate to do so if I think that is necessary. Keep that in mind. Will you do that, Mr. Ferguson? MR. FERGUSON: Yes, well, your Honor. -13- 121 THE COURT: And will you also proceed to make all arrangements for me and my staff as follows: My two law clerks and a reporter. I have no problem, I'm sure, obtaining secretarial help in Orlando and a deputy clerk as well, so I will not burden the expense account with more help than I need. And go ahead and do it forthwith. MR. FERGUSON: If your Honor please, those arrangements to include hotel and travel? THE COURT: Yes. I don't think the Orlando federal court would like to have it said that I slept there. MR. FERGUSON: Understood, your Honor. I am just trying to find exactly -- THE COURT: All convenience, transportation, et cetera. MR. FERGUSON: Yes, your Honor. =) = THE COURT: Do it forthwith and make sure that I have those tapes and the testimony in my chambers. MR. LACEY: Mr. Ferguson indicated he might want to address one or two other matters, your Honor, while we are here. MR. FERGUSON: Your Honor, in reading over the court's opinion, a couple of matters occurred to me that if we could clear them up right now it might safe us some future litigation. THE COURT: Ail right. Don't ambush me. MR. FERGUSON: I won't, your Honor. On page 22 of the opinion, the first full paragraph, beginning with, "With respect to the declaratory relief, as a result of the subsequent judicial determinations as to the legal status of the consent decree, and as an order of this court, paragraph L.17 of the consent decree == 123 will be in effect for the three-year duration of the consent decree. In accordance with that provision, the government or the court must approve any changes to the consent decree, or the IBT constitutional provisions that implicate the consent decree, taken by the IBT." My question for clarification purposes is just to make sure so we can obviate an argument later on that paragraph 17 of the decree is no longer in effect after the court appointed officers have completed their tenures. I would just like your Honor to clarify for the record that paragraph 17 of the decree, like the entire consent decree, is a permanent amendment to the IBT Constitution. THE COURT: I will do that in an amended brief order. -16- — 124 MR. FERGUSON: Thank you, your Honor. My second and last request for Clarification pertains to page 23 of the order, the second to the last paragraph, beginning with the word, "Further," and I note in full as follows: THE COURT: The IBT explicitly? MR. FERGUSON: Yes. “Further, the IBT explicitly agreed in paragraph E.10 of the consent decree that it would not ‘obstruct or otherwise interfere’ with the implementation of the consent decree, or the work of the court officers. Since the election officer must supervise the election according to the election rules, any action taken to engineer a vote against the current he electoral provision would constitute interference with the work of the election officer. Accordingly, any action taken to =~} J= 120 further the rejection of the consent decree's changes would violate the existing injunction in the consent decree. Thus, the IBT is put on notice that it shall not take action to vote against the very consent decree which it signed.” | My question for clarification purposes, your Honor, is to make sure that the paragraph I just read does not conflict with the provision in the consent decree itself that requires that the consent decree amendments to the IBT constitution be put before the delegates for a vote. What I understand your Honor to be saying in this opinion is that the consent decree may be put to the delegates for a vote. However, the outcome of that vote is of no legal effect. THE COURT: That's what I have said. -18- 125 MR. FERGUSON: As your Honor stated on page 17 of the opinion. But I just want to make sure that nothing in this -- THE COURT: What language would you suggest for clarification? MR. FERGUSON: A simple clarification that would say nothing in this opinion shall be construed to alter the provisions of the consent decree that requires the consent decree amendments to the IBT constitution to be put to the delegates for a vote. THE COURT: I think that is a helpful suggestion and I accept it and that will also be included in the brief order that I intend to file in accordance with this. MR. KING: Your Honor, if the court please, my name is Denis King -- THE COURT: Oh, I Know. ~~ 127 MR. KING: I am here in Mr. Pierce's absence. THE COURT: You need no introduction. MR. KING: I had two questions Originally, but Mr. Ferguson has -- THE COURT: If you have any questions, write it out. I will not be ambushed. If you have any questions, write it out. MR. KING: Very well, your Honor. THE COURT: So I can think about it. All right? MR. FERGUSON: Thank you, your Honor. =20— UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, Plaintiff, Vv. 88 Civ. 4486 DNE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Defendant. March 20, 1991 10:30 a.m., Before: HON. DAVID N. EDELSTEIN, District Judge APPEARANCES OTTO G. OBERMAIER, United States Attorney for the Southern District of New York Attorney for plaintiff EDWARD FERGUSON, PETER SPRUNG Assistant United States Attorneys SOUTHERN DISTRICT REPORTERS 212-791-1020 JAMES T. GRADY BRIAN MAAS RUDOLPH F. PIERCE Attorneys for defendant 130 (Case called) THE COURT: This is an anniversary. Last week marked the second anniversary of the signing of this historic consent decree between the government and the International Brotherhood of Teamsters. Despite the enormous and persistent opposition during the past two years, there has been progression towards achieving the underlying purpose and intent of this decree, which is to return this great union, which has been clouded by evilness, to its members. As I have said repeatedly and often, the linchpin of this unprecedented effort is the provision that the next leadership of the IBT shall be chosen by the rank and file itself in an open, free and democratic election, without any fear of coercion or any effort to undercut the purpose of this -3- idl decree, to return this union to its rightful rank and file people. It is my determination that a free and open democratic election is an unassailable and inviolate goal. It is the compass by which this case is directed. By bringing the instant motion, the government seeks to insure the reality of this election. The papers submitted with this motion, however, leave some issues unclear, which must be brought into focus and as I continue I will outline. * I need some more light on the specific harm that the government foresees. I need some very clear definition of the specific nature of the remedies they seek from this court. And so that will be a matter for oral argument to bring to this court's attention. -4- 132 I'm sure all you veterans at the bar are-aware of a basic law in physics, sound does not travel faster than light. I expect you to be brief, to the extent that you bring to my attention the clarity that I require by succinct statements. So, let me continue for just one moment before we get on. I have received a letter dated March 15, 1991 from Judge Lacey, the Independent Adrinistrator of the International Brotherhood of Teamsters, dealing with how best to assure the presence of the court during the IBT International Convention to be held June 24 to 28, 1991, so that I may be present to attend to any problems which may arise. I anticipate, based upon my experience, that there will be many problems, many maneuvers and many strategies and, accordingly, I find that -5- none of the options laid out for my consideration are adequate enough to give me the assurance that I will be able to address quickly, effectively and immediately any problems which may arise during that period of time. I believe it would be important for me to sit in the Orlando federal Courthouse and be present at the convention itself. Thus, I am arranging to have facilities available for me and my staff and I expect to put that in place long before the June date. I was somewhat, -I must confess, amused at the options offered to me. Those options, when one compares them with the experience that I have not always enjoyed in this case; certainly doesn't assure the kind of presence that may be needed. -6- id4 Now, you're going to argue, Mr. Ferguson? MR. FERGUSON: I am, your Honor. THE COURT: Let me see if I can give you some guidance. As I see it, the government's motion for a declaratory judgment is, in essence, an application for interpretation of paragraph 16, applications to the court; is that correct? MR. FERGUSON: Your Honor, it's certainly correct that the government makes this application pursuant to paragraph 16 of the Consent Decree. We believe that the language on its face, of paragraph 16, really needs no interpretation, gives this court exclusive jurisdiction to decide precisely these kinds of applications that the parties may bring before it. ~ ido But we are, as your Honor has noted, moving under paragraph 16 of the Consent Decree, in addition to other sources of this court's power to decide the issue that we have brought before it. THE COURT: More succinctly, what are you saying? MR. FERGUSON: In terms of this court's jurisdiction, your Honor? We believe that the court clearly has jurisdiction under paragraph 16 of the Consent Decree to rule on this application. That is what the government and the IBT agreed to in entering into the Consent Decree and that is what the court, on more than one occasion, has made clear, that this is the forum to which the parties should come in the event they have an application touching on the Consent Decree ~B8- 18d that they would like to have the court decide. In addition to paragraph 16 of the decree, this court has the authority under the All Writs Act, 28 USC, Section 1651(a), to issue such orders as are necessary to prevent the frustration of the implementation of the Consent Decree. This court has previously held that it has jurisdiction in this case under the All Writs Act to prevent the frustration of the implementation of the Consent Decree and the Second Circuit, as the court is aware, has affirmed that determination. So the All Writs Act provides another independent source of this court's jurisdiction to issue the relief that the government requests. In addition, a third independent source is the RICO statute itself, under which aan this action was filed. 18 USC, Section 1964(b) provides that in the case of a civil RICO action brought by the government, such as this one, the court, pending a final determination of the action, may make any orders that it considers appropriate and necessary in the exercise of its jurisdiction under the RICO statute. THE COURT: And that is crucial to your argument? MR. FERGUSON: That, your Honor, is one of the independent bases of this court's jurisdiction. Even if there were no such statute, however, the Consent Decree alone would give this court adequate jurisdiction. And even if there were no Consent Decree, the All Writs Statute alone would give this court jurisdiction. Each of these sources of jurisdiction, the Consent my 138 Decree, and All Writs Act, and RICO statute, provides an independent, separate basis of jurisdiction for this court. THE COURT: Then why does the government not have to meet the criteria under declaratory judgment in the Second Circuit in the Kidder case? MR. FERGUSON: Because this is not an independent act that the government is bringing. If the government did not have a pending RICO suit against the Teamsters Union, and were seeking this relief without the background of a prior litigation which has gone on since June of 1988, then it may well be that the government would be required to meet the declaratory judgment Standards as set forth in 28 USC Section 2201. ati« 189 THE COURT: You were asked to state how you would satisfy the criteria set forth in Kidder. MR. FERGUSON: Assuming the criteria for declaratory judgment would apply here, and the government would have to satisfy them, the government believes there is a concrete controversy here and that is really the essence of what is required for a declaratory judgment. On the one hand, the Consent Decree clearly provides that the future practices provision contained in paragraph 17 of the decree regulates the method by which amendment to the IBT constitution may be considered in areas that touch upon the Consent Decree. That's one half of the controversy. The other half of the controversy, which provides us the concreteness and actuality of a controversy, is the facts => 140 set forth in the government's moving papers, which the government believes indicate there is a serious risk that at the IBT convention in June of this year an attempt will be made to, in essence, ignore the future practices provision of the Consent Decree and attempt to revert to the method of election international union office that was in existence before the Consent Decree amended the IBT constitution. So, on the one hand we have the clear command of the Consent Decree. On the other hand, we have evidence of a clear intention, at least on the part of some high-ranking members of the Teamsters Union to frustrate that Consent Decree. We believe the controversy has been joined now and we believe that it is appropriate for the court to consider this AZo 141 now because if the court does not consider it now and this issue is permitted to, in essence, fester until the convention itself, then we believe a serious risk is presented of throwing the convention into disarray and confusion and the risk is presented of the convention not being able to attend to all of the business it must attend to in the five-day period that has been set aside for it to do so. So, we believe the controversy is here now and that this court should decide it now really for the benefit of not just the government but of the union itself. Because nothing could be worse in the government's view than to have this convention get underway and not be able to complete its business. —-14- 142 THE COURT: All right. Now, I come to the next issue. The government argues - and if you think I have misstated in any way, call it to my attention -- that the court need not make the standard findings before entering this injunction, that the need to make these findings have never been questioned in the numerous preliminary injunctions entered in the course of this case. Does that state your argument correctly? MR. FERGUSON: Your Honor, it is our position that the government is not seeking. a preliminary injunction here. We are Simply seeking relief under the Consent Decree. THE COURT: More in the nature of a stay? MR. FERGUSON: We are seeking two things. I think your Honor stated it -15- 443 correctly the first time. We are seeking an interpretation, a confirmation of what the Consent Decree provides on the one hand and on the other hand we are also seeking an injunction flowing out of an interpretation that would prevent the IBT from taking any action that is really contrary to the agreement it signed. But in terms of the findings that the court must make in order to support the relief the government seeks, all the court must find is that the government's interpretation of the Consent Decree is the correct one. Once the court has found that, then the court is free in the course of and for the purpose of implementing the Consent Decree to give the government the injunctive relief that it seeks. -16- 144 oe The preliminary injunction standards simply do not obtain here. We are not looking forward to some sort of trial on the merits, so that preliminary injunction law and this circuit's test are really completely irrelevant to this particular application. This particular application is no different in kind as far as the court's jurisdiction is concerned than the initial applications made at the very beginning of this case which dealt with matters as mundane as office space for the court officers. It is the precise function and purpose of paragraph 16 to allow the parties to come to the court with any application that they believe is necessary in order for the Consent Decree to be implemented according to its terms and that's really all the government is doing here. =i F= = ror QQ} THE COURT: Now, succinctly, the question I asked: Is the government's argument that the issuance of this injunction would not implicate any statutes or doctrines other than interpretations of relevant provisions of the Consent Decree 9, 12, 16 and 17, because the injunction would only bind the IBT to seek government approval of any substitute election procedure should the convention not approve the Consent Decree's constitutional change: Is the question too verbal. MR. FERGUSON: I believe I understand it, your Honor. The court, should it grant an injunction against the IBT, will have to find that such - injunction is necessary for the adequate implementation of the Consent Decree. Because it is an injunction that the court would be issuing, the issuance of that injunction would be subject to review, as with any injunction, on an abuse of discretion standard. Considerations that the court would take into account in deciding whether to grant the injunction would be considerations that it would take into account in deciding to grant any other kind of injunction, mainly, whether equity, which clearly applies here; allows such an injunction. THE COURT: Have you dealt with the language I've used, namely, implication, at all? Have you answered that? Will the injunction implicate any statutes or doctrines other than interpretation et cetera, et cetera, et cetera? MR. FERGUSON: The only doctrine I believe that would be implicated, other =}]9— than what is in the Consent Decree itself, would be the doctrine that an equitable remedy, such as an injunction, must be supported by adequate, equitable considerations and we believe that we have me that test here, because what is precisely required, and that really there is no other remedy for, is an injunction. There's no other remedy that will really do the job here. THE COURT: Will implicate any statutes? MR. FERGUSON: If your Honor were to Ground an injunction on, for instance, the All Writs Act, obviously, it would implicate the All Writs Act. But if your Honor were simply to ground the issuance of an injunction on the Consent Decree it would implicate no statute. =SO— 148 THE COURT: Now, this court has issued a number of injunctions, is that correct? MR. FERGUSON: That is correct. THE COURT: Does this prayer for an injunction, as you have described it, differ from any of the other injunctions or is 1t similar, all or in part? MR. FERGUSON: I believe, your Honor, this is the first time that the government has sought the issuance of an injunction on the strength of the consent order provision alone. However, that is clearly permitted by paragraph 16 of the consent order. But i= is not the first time that the government has come before the court under the All Writs Act seeking an injunction and there, as the court held in its All Writs Act opinion preliminary injunction law was Simply inapplicable because the government —-21- 449 -/—_ -z was not seeking a preliminary injunction, it was seeking a simple injunction. And the standards that apply to the court's issuance of such an injunction is whether it's an appropriate exercise of the court's jurisdiction in a continuing case, such as this one. And that would be a similar analysis that would take place here, if the court were to ground its decision in whole or in part on the All Writs Act. THE COURT: There was a time when Mr. Grady appeared before Senator Nunn's committee and there was some dialogue and ensued between them. You Know what I'm talking about? MR. FERGUSON: I do, your Honor. THE COUR’: And I think you have included transcript of that in your papers. -22- MR. FERGUSON: That's correct, we included excerpts from it. THE COURT: What did you think the outcome of that dialogue means in terms of what is here before us today? MR. FERGUSON: Well, the government believes that the dialogue between Mr. Grady and Senator Nunn -- THE COURT: Under oath. MR. FERGUSON: Under oath. -- 15 emblematic of the approach that the IBT has taken to this case from the very moment the Consent Decree was entered. We believe the IBT has always sought to leave open the notion that in the event the delegates to the convention vote their disapproval of the Consent Decree, at that time the IBT would be free to revert to its prior method of electing officers, which was at the convention itself. =23- This is a consistent position taken by the IBT in its papers in this court and in the Second Circuit, with statements such as the Consent Decree is nothing more than an act of faith between the parties, with statements that the Consent Decree amendments are subject to the approval of the convention delegates. That simply is not what the Consent Decree says or means. But it has always been the IBT's position in this litigation, the government believes, to keep that issue alive and to create enough doubt and confusion among the membership that when the time comes at the convention it will be possible for the IBT to claim that the delegates' disapproval of the Consent Decree allows it to go back to its old ways. —-24- And it was precisely the function of the future practices provision to prevent that from happening. The essence I guess of the government's argument here is that the IBT's litigation position has, from day one of the post-decree period, ignored the existence of the future practices provision and not just the IBT's litigation position, as the government's papers showed, this is not Simply a hypothetical concern of the government. As IBT official Jack Yager, who at one time was sitting provisionally on the general executive board, testified in a sworn deposition before the independent administrator that there have been plans at the highest echelon of this union to do precisely that, that is, to go to the convention and in the event that the =-25- 103 delegates disapprove the Consent Decree to dispense with the rank and file election in December. And it is that clear concern of the government that brings it here today. This is not just a matter of Yager's testimony. It is Mr. Mathis, the number two official in the union, who told the assembled delegates of the Eastern Conference of Teamsters last year in his view it's completely up to the convention delegates to determine what goes into the IBT constitution. That simply once again ignores the future practices provision of the decree and it is because the government fears, and with reason supported by evidence, that an attempt will be made at the convention to bypass the rank and file elections set for December that we come here today. =%§- THE COURT: Will you succinctly state what precise remedy you seek and then I'm going to follow up with the question: What harm or prejudice do you perceive in the event I do not grant your application for relief? MR. FERGUSON: The precise relief we seek is an order that would do two things: First, to declare that the function of the nominating convention that is scheduled for this June cannot be changed by anyone in the absence of compliance with the future practices provisions, which as your Honor knows requires prior approval of the government or this court for any changes that might be made in the areas covered by the decree. That's the first thing, an order simply declaring that that is what the Consent Decree means. =97= The second thing we seek is an injunction that would enjoin the IBT, acting as the representative of its members, its officers and its affiliates from taking any action that would change the function of that nominating convention THE COURT: How would changing the function of that nominating committee bring irreparable damage and harm to the government? MR. FERGUSON: It would bring irreparable harm to the government by dispensing with a rank and file election that the parties agreed to and that this court ordered in the Consent Decree. Because if the June nominating convention is turned into an electing convention, then there will be nothing left for anyone to do in December. -—-28- THE COURT: You mean it will become cut and dried and, in effect, end up in a manner speaking as a plebiscite. MR. FERGUSON: It will be cut and dried and the decision as to who will run this union will be made by the delegates rather than by the rank and file, which is what the parties agreed to. THE COURT: All right. It's your turn, Mr. Grady. MR. MAAS: Your Honor, my name is brian Maas. THE COURT: Wait aminute. I got confused when I have a Jack-In-The-Box, people jumping up. Who is going to argue? MR. MAAS: I am going to be introducing Mr. Pierce who is not a member of this court. THE COURT: Don't ambush me and don't Surprise me. If you want to do something, a%Qu let me Know what you want to do instead of popping up. I see Mr. Grady here. I know him. He is counsel and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2223%3A2. Public record. Not legal advice.