# Appendix — Local 560 of the International Brotherhood of Teamsters v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1140

## Text

‘tis SHPrOMe Court, V.8,
FILER Y
FER RB 1088

IN THE JOSEPH F. — we
UNITED STATES SUPREME cqUR- a

Term

—~ |
S5-¥44e

LOCAL 560 of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America,
MICHAEL SCIARRA, President,
JOSEPH SHERIDAN, Vice-President,
JOSEPHINE PROVENZANO, Sec-Treasurer,
STANLEY JARONKO, Trustee,
and
JOSEPH SHERIDAN,

JOSEPHINE PROVENZANO,
MICHAEL SCIARRA,

STANLEY JARONKO,

Petitioners (Appellants Below),

vb.

UNITED STATES OF AMERICA,
Respondent (Appellee Below).

APPENDIX TO PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT

Barbara H. Fleisher
PREISER & WILSON
1012 Kanawha Boulevard, East
Post Office Box 2506
Charleston, West Virginia 25329
(304) 344-9651

Counsel for Petitioners

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED.

Appendix A:

Appendix B:

Appendix C:
Appendix D:
Appendix E:

Appendix F:

Appendix G:

Appendix H:

Appendix I:

TABLE OF CONTENTS

Page
United States District Court For the Dis-
trict of New Jersey. Opinion | 11/01/82)
‘denving motion to dismiss complaint) A-l
United States District Court for the Dis-
trict of New Jersey Opinion 0:3/08/84)
(findings of fact and conclusions ot law) .... A-2$

United States District Court for the Dis-
trict of New Jersev, Judgment 03/16/54) . A-136

United States Court of Appeals for the

Third Circuit, Opinion | 12/26/85)........ A-135
United States Court of Appeals for the
Third Circuit, Judgment ‘ 12/26/85) ...... A-203

United States Court of Appeals for the
Third Circuit, Order (01/23/86) (sur joint
petition for rehearing)................. A-206

United States Court of Appeals for the
Third Circuit, Order 92/03/86) ‘amending
SA ae ree oe perc uy omen A-209

United States Court of Appeals for the
Third Circuit, Order (2/11/86) | staving
II ro peel ew eas te and A-213

Constitutional Provisions and Statutes ... A-214

l. Title 18, United States Code. Section 2

2. Title 18, United States Code, Section
1962(a)-id)

3. Title 29, United States Code, Section
41]1(ay(l) & (2)

+. Title 29, United States Code, Section
30 1(a)

5. Title 29, United States Code, Section 504

APPENDIX A
UNITED STATES of America, Plaintitf.

W.,
LOCAL 360, etc. et al., Detendants.
Civ. No. $2-689.

United States District Court,
D. New Jersev.

Nov. 1, 1982.

Government brought civil action under Racketeer Influence
and Corrupt Organizations Act against labor union. On motion to
dismiss, the District Court, Harold A. Ackerman, J., held that:
(1) rights guaranteed to union members under the union mem-
bers Bill of Rights are intangible rights within the ambit of the
Hobbs Act; (2) Hobbs Act was not impliedly repealed by portion
of the Labor Management and Disclosure Act; and (3) conduct
which violates the LMRDA may also violate RICO.

Motion denied.

l. Extortion and Threats 4

Evidence is sufficient in a Yobbs Act action if the proot
shows that the victim suffered a loss, although not necessarily
that extortioner received the truits of the extortion, that the ex-
tortioner instilled a tear of econoraic loss in the victim, and that
there was some minimal etfect on commerce. 18 U.S.C.A.
§ 1951(bx2).

2. Labor Relations 51l

Rights created by the Union Members Bill of Rights are not
within the primary jurisdiction of the NLRB. Labor-
Management Reporting and Disclosure Act of 1950, § 101, 29
U.S.C.A. 3 411.

A-l

i)

3. Extortion and Threats

Provision of the Labor-Management Reporting and Disclo-
sure Act making it unlawful to intimidate or coerce anv member
of a labor organization through torce or the threat of violence did
not repeal the Hobbs Act insotar as rights guaranteed bv the
Union Members Bill] of Rights is implicated. Labor-Management
Reporting and Disclosure Act of 1959, $§ 101, 610, 29 U.S.C.A.
$§ 411, 530; 18 U.S.C.A. § 1951.

4. Labor Relations 752

Conduct proscribed bv statute prohibiting coercion or in-
timidation of a union member through violence or the threat of
violence is essentially assault and batterv. Labor-Management
Reporting and Disclosure Act of 1959, § 610, 29 U.S.C.A. § 330.

5. Extortion and Threats 4

Rights guarar teed under the Union Members Bill of Rights
are intangible rights within the ambit of the Hobbs Act. Labor-
Management Reporting and Disclosure Act of 1959, $ LOL. 29
U.S.C.A., § 411; 18 U.S.C.A. § 1951.

6. Commerce §2.5

Conduct which is regulated or proscribed under the Labor-
Management Reporting and Disclosure Act may also violite
RICO. Labor-Management Reporting and Disclosure Act. ot
1959, § LOL et seq., 29 U.S.C.A. § 411 et seg.. LS U.S.C.A.
3§ 1961-1965.

U.S. Dept. of Justice by Thomas Weisenbeck, Sp. Atty..
Newark, N.J., for plaintitf.

Schneider, Cohen. Solomon & DiMarzio by Edward
Cohen, Paul Montalbano, Jersev Citv, N.J., tor detendant. Local
560.

Brenner, New & Brenner by Herbert New, Livingston.
N.J., for defendant, Trucking Emplovees of New Jersey Welfare
Fund.

A-3

OPINION

HAROLD A. ACKERMAN, District Judge.

This civil action brought pursuant to the Racketeer Influ-
ence and Corrupt Organizations Act (RICO)! presents a question
of first impression. The United States charges that Local 560 ot
the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, ( Local 560), together with its
Welfare and Pension Funds ( Funds) and its Severance Pay Plan,
(Plan), is a “captive labor organization.” 2 It principally seeks an
order placing Local 560 under a trusteeship, divesting the indi-
vidual defendants of their interests in the union, and prohibiting
their future involvement in the union's affairs. Local 560, the
Funds and the Plan are named in the complaint as nominal de-
fendants and reterred to collectively as the “Local 3560 Enter-
prise.” Also named as defendants are the current members of the
Executive Board of Local 3560: Salvatore Provenzano, Joseph
Sheridan, Josephine Provenzano Septembre, J. W. Dildine,
Thomas Reynolds, Sr.; Michael Sciarra and Stanley Jaronko: the
trustees and administrators of the Plan: Salvatore Provenzano
and Josephine Provenzano Septembre; the emplovee trustees of
the Funds: Salvatore Provenzano and Thomas Reynolds, Sr.; and
the following individuals: Anthony Provenzano, Nunzio
Provenzano, Stephen Andretta, Thomas Andretta and Gabriel
Briguglio. The government with this court's consent has entered
into stipulations of settlement with Anthony Provenzano’ and

L. Chapter 96 of Title 18, 18 U.S.C. $8 1961-1968. was added to that title
by Title [X of the Organized Crime Control Act ot 1970. Pub. L. 91-452. 54
Stat. 941.

2. The Fund and Plan have been merged and split several times. the two
most recent events being the March 1. 1974 separation of Locals 617 and 641
from the Trucking Emplovees ot North Jersey Welfare Fund (and Pension Plan)
and the May, 4, 1977 merger of the North Jersey Fund and Plan with that of
the Trucking Emplovees of Passiac and Bergen Counties.

3. A consent order was entered bv this court on June 15, 1982 approving
of the terms agreed upon bv the United States and defendant Anthony
Provenzano. That order stated. inter alia—

The defendant be and is herebv permanently enjoined and prohibited
from any form of association with any enterprise (within the meaning of

Section 1961 of Title 18 of the United States Code), which enterprise

A-+

Nunzio Provenzano. + |

The complaint alleges that the Local 569 Enterprise is an
“enterprise within the meaning of 18 U.S.C. 3 1961i4).> It tur-
ther charges that the named individuals are associated under the
leadership ot defendant Anthony Provenzano. | Provenzano
Group), which group allegedly unlawfully conspired. in violation
of 18 U.S.C. § 1962(d), to violate and actually did violate 1%
U.S.C. $ 1962(b) and (c).

The case is presently before me® on the motion of Local 560
pursuant to Fed.R.Civ.P. 12(bi6) to dismiss parazraph 12(a) of
the complaint for failure to set forth a cause of action. A com-
plaint mav only be dismissed pursuant to Fed.R.Civ.P. 12(b)6)
if, accepting the factual allegations of the complaint as true. it
appears bevond a doubt that the plaintiff can prove no set of tacts
which would entitle him to relief. Jamieson cv. Robinson, 641
F.2d 138 (3d Cir. 1981). For the reasons which follow, I am de-
nving the detendant’s motion to dismiss.

In order to understand the thrust ot the defendant's motion. it
is necessarv to outline the structure of this complaint in some detuil
prior to summarizing the arguments raised in the moving papers.

The government alleges in paragraph 12/a) that detendant
Anthony Provenzano and other defendants either associated
with the Provenzano Group or aiding and abetting the same.
violated section 1962(b) of RICO.* Section 1962(b) provides in
pertinent part:

NOTES | Continued)

secks. directly or indirectly, to dominate. control. conduct or othenvise

influence the affairs of anv labor organization or anv empiovee benefit pian

within the meaning of Title 29 of the United States Code:

+. A similar consent order was entered on September 15. 1982 approving
ot the terms agreed upon by the United States and Nunzio Provenzano.

3. 18 U.S.C. § 1961/4) provides:

“enterprise” includes any individual partnership, corporation. .sso-
- ctation, or other legal entitv. and anv union or group ot individuals usso-
ciated in fact although not a legal entity:

6. Subparagraphs 12(a(26). (27) and (28) were added to the compiunt
upon application by the plaintiif for leave to file an ainended complaint pur-
suant to Fed. R.Civ. P. 15(a) granted on September 20. 1962.

T. The complaint also alleges in paragraph 12/b) that the defendants vi-
olated 18 U.S.C. 3 1962(c) of RICO. That portion is nut at issue in this motion.

A-5

It shall be unlawtul for any person through a pattern of rack-
eteering activity. . . to acquire or maintain. directly or in-
directly, anv interest in or control of any enterprise which
is engaged in, or the activities of which affect interstate or
foreign commerce.

“Pattern of racketeering activity is defined as at least two acts of
racketeering activity, within a period of ten vears ‘excluding any
period of imprisonment), one of which has to have occurred atter
the effective date of the Act. 18 U.S.C. $ 1961/5). RICO defines
“racketeering activitv’ by reference to certain crime chargeable
under state law and to certain indictable offenses under federal
law. 18 U.S.C. § 1961(1).°

$. 18 U.S.C. § 1961(1) provides:

“Racketeering activity) means (A) anv act or threat involving murder.
kidnapping, gambling, arson. robbery, briberv, extortion, or dealing in
narcotic or other dangerous drugs, which is chargeable under State law
and punishable bv imprisonment for more than one vear. B) anv act which
is indictable under anv of the following provisions of title 18. United States
Code: Section 201 (relating to bribery), section 234 ‘relating to sports brib-
erv) sections 471, 472, and 473 ‘relating to counterteiting), section 639
‘relating to theft trom interstate shipment) if the act indictable under sec-
tion 659 is felonious. section 664 (relating to embezzlement from pension
and welfare funds). sections 891-894 (relating to extortionate credit trans-
actions), section 1084 (relating to the transmission of gambling informa-
thon), section L341 relating to mail fraud), section 1343 relating to mail
fraud). section 1503 relating to obstruction of justice), section 1510 re-
lating to obstruction of State or local law entorcement), section 1951 re-
lating to interterence with commerce. robberv. or extortion). section 1952
relating to racketeering), section 1953 relating to interstate transporta-
tion of wagering paraphernalia), section 1954 \ relating to unlawtul welfare
fund payments). section 1955 relating to the prohibition of illegal gam-
bling businesses), sections 2314 and 2315 ‘relating to interstate transpor-
tation of stolen property), sections 2341-2346 relating to trafficking in
contraband cigarettes), sections 2421-24 (relating to white slave traffic), .C)
anv act which is indictable under title 29. United States Code. section 186
dealing with restrictions on payments and loans to labor organizations) or
section 50Lic) (relating to embezzlement trom union funds), or |D) anv
offense involving fraud connected with a case under title 11. fraud in the
sale of securities, or the felonious manufacture. importation. receiving,
concealment, buving, selling, or otherwise dealing in narcotic or other
dangerous drugs, punishable under anv law of the United States:

A-6

Paragraph 12(a) charges the “predicate * vifenses ot mur-
der and Hobbs Act extortion, 18 U.S.C. § 1951. as the pattern
through which the defendants unlawtully acquired and main-
tained a controlling interest in the Local 560 Enterprise.
Specifically, the property which is alleged to have been svstemat-
ically extorted was “in the torm of ‘the members) union rights as
guaranteed bv the provisions of sections 157° and 411 ot Title 29.”

The union rights guaranteed bv section 411 were enacted us
Title I of the Labor Management Reporting and Disclosure Act vt
1959 (LMRDA), 29 U.S.C. $§ 411 et seqg., and reterred to as the
“Bill of Rights Members of Labor Organizations.” ‘' [ts emphasis is

9. The statute which satisfies the “racketeering activity” element is com-
moniv called the predicate offense.

LO. 29 U.S.C. 3 L157 is section 7 of the Taft-Hartlev Act. Detendant notes
in its bmef that the plaintif appears to have toregone reliance upon it. [n Cneted
States v Boffa, 686 F 2d 919 (3d Cir. 1982). as discussed infra. the reliance on
that provision as the source of intangible mehts under the mail traud statute was
overtumed. :

Ll. 29 U.S.C. § 411 provides:

ail) Equal mehts—Everv member of a labor organization shall have
equal mghts and privileges within such organization to nominate cundi-
dates, to vote in elections or referendums of the labor organization. to
attend membership meetings. and to participate in the deliberations und
voting upon the business of such meetings. subject to reasonable rules and
regulations in such organization » constitution and bviaws.

2) Freedom ot speech and ssembiv—Every member of anv labor
organization shail have the mght to meet and wsembie freely with other
members. and to express anv views. arguments. or opinions. and to ex-
press at meetings of the labor organization his views. upon candidates in
an election of the labor organization or upon any business property betore
the meeting, subject to the organization s established and reasunabie rules
pertaining to the conduct of meetings. Procided. That nothing herein shail
be construed to impair the right of a labor organization to adopt and en-
force reasonable rules as to the responsibility of everv member toward the
organization as an institution and to his refraining trom conduct tha? would
interfere with its pertormance ot its legal or cuntractual obligations.

(3) Dues, initiation tees. and assessments—Except in the case of a
federation of national or international labor organizations. the rates ot dues
and initiation tees pavable by members of anv labor organization in effect
on September 14, 1969 shail not be increased. and no general or special
assessment shall be levied upon such inembers. except—

(A) in the case of a local labor organization. ©) by majority vote bs

A-

on the nights of union members to freedom of expression
without fear of sanctions bv the union. which in many in-

secret ballot of the members in good standing voting at a general or special
membership ineeting, aiter reasonable notice ot the intention to vote pen
such question, or (ii) by majorty vote ot the members in good standing
voting in a membership referendum conducted by secret ballot. or

B) in the case of a labor organization, other than a local labor orga-
nization or a federation of national or international labor organizations. |
bv majontv vote of the delegates voting at a regular convention, or at a
special convention ot such labor organization held upon not less than thirts
davs written notice to the principal office of each local or constituent labor
organization entitled to such notice. or i) bv majority vote of the members
in good standing ot such labor organization voting in a membership ret-
erendum conducted bv secret ballot. or iii) by majority vote ot the mem-
bers of the executive board or similar governing body of such labor
organization, pursuant to express authority contained in the constitution
and bvlaws of such labor organization, Provided. That such action on the
part of the executive board or similar governing body shall be effective
only until the next regular convention of such labor organization.

4) Protection of the neht to swe—No labor organization shail limit the
nght of anv inember thereof to institute an action in anv court. or in a
proceeding before anv administrative agency, irrespective of whether or
not the labor organization or its otficers are named us defendants or re-
spondents in such action or proceeding, or the right of anv member of a
labor organization to appear as a witness in any judicial, administrative. or
legislative proceeding, or to petition anv legislature or to communicate
with anv leislator: Procided, That anv such member mav be required to
exhaust reasonable hearing procedures but not to exceed a four-month
lapse of time: within such organization, betore instituting legal or admin-
istrative proceedings against such organizations or any officer thereot. And
provided further. That no interested emplover or empiover association
shall directly or indirectly finance. encourage. or participate in. except as
4 party. any such action, proceeding, appearance, or petition.

(3) Safeguards against improper disciplinary action—No member ot
any labor organization may be fined. suspended. expelled. or othernvise
disciplined except for nonpayment ot dues by such organization or bv anv
otficer thereof unless such member has been (A) served with wntten spe-
cific charges: |B) given a reasonable time to prepare his defense: C) a-
forded a full and fair hearing

(b) Any provision of the constitution and bvlaws of anv labor organi-
zation which is incunsistent with the provisions of this section shail be of
no force or effect.

A-S

stances could mean loss of union membership and in turn
loss of livelihood.

Finnegan v. Leu. e.S. 102 $.Ct. L867. 1870.
72 L.Ed.2d 238 (1982). The provision which ultimately was en-
acted as Title | was introduced as a Hoor amendment by Senator
McClellan to the Kennedy Ervin bill, $.1555. 105 Cong. Rec.
5810 idailv ed., Apr. 22.1969) [I NLRB. Leyislative History ot
the Labor-Management Reporting and Disclosure Act ot 1959
‘hereinafter Legis. Hist.) 1102. Senator McClellan believed that

. . we ought to start with the union man, with the worker.
and to relieve him trom the oppression which has been
thrust upon him in some places. We should restore to him
his rights. We should vest in him again the power to do
something to protect his rights. W2 must give him the au-
thority again to run his own union. We must pass a law. such
as the measure now proposed, which will enable him to pre-
vent usurpation by would-be exploiters. Let us start to help
the worker.

105 Cong. Rec. 3818 (daily ed. Apr. 22, 1959), II Legis. Hist.
11056. The amendment passed bv a slim maryin of 47 to 46. 105
Cong. Rec. 5827 daily ed. Apr. 22. 1959) II Legis. Hist. 11158. See
generally United Steelworkers of America cv. Sadlowski.
U.S. 102 $.Ct. 2339, 2342, 72 L.Ed.2d 707 1982).
The particular acts of the defendants which allegedlv cre-
ated the climate of intimidation which in turn induced the sur-
render ot the members’ rights are included as subparagraphs |
through (28) of paragraph 12(u). The specific acts alleged. are: 1
the June 1961 murder of Anthony Castellitto: (2) the August 1961
appointment of Salvatore Provenzano to the position of Trustee
formerly occupied bv Casteilitto: (3) the September 1961 ap-
pointment of Salvatore Briguglio—the alleged murderer ot
Castellitto—to the position of Business Agent; (+) the February
1963 appoin*mer t of Nunzio Provenzano to the position ot Busi-
ness Agent follewing his January 1963 conviction for extortion:
(5) the May 1963 murder of Walter Glockner: (6) the 1964 ap-
pointment of Robert A. Luizzi to the position of Business Agent

A-9

in spite ot a record of criminal convictions: \7) the May 1967
appointment of Luizzi to the position of Trustee: |S) the February
1969 appointment of Salvatore Briguylio to position of Business
Agent tollowing completion of a term of imprisonment for ex-
tortion; (9) the April 1969 appointment of Nunzio Provenzano to
the position of clerk following completion otf a term of impris-
onment tor extortion; (10) the 1970 appointment of Nunzio
Provenzano to the position of Business Agent; (11) the 1971 ap-
pointment of Thomas Reynolds, Sr. to the position of Business
Agent in spite of a record of criminal activity; :12) the 1972 up-
pointment of Nunzio Provenzano to the pusition of Fund
Trustee; (13) the 1972 appointment of Salvatore Briguglio to the
position of Fund Trustee; (14) the allowance of trequent visita-
tions by Armand Faugno and Thomas Andrette to the offices ot
Local 560; (15) the January 1963 appointment of Nunzio
Provenzano to the position of Secretarv-Treasurer; (16) the 1973
appointment of Reynolds to the position of Fund Trustee; : i7)
the 1974 resumption of duties as Business Agent bv Salvatore
Briguglio following completion of a term of imprisonment for
counterteiting; (18) the 1974 appointment of Luizzi to the posi-
tion of Fund Trustee: (19) the November 1975 appointments of
Anthony and Nunzio Provenzano to the positions of Secretarv-
Treasurer and President, respectively. in spite of a record of con-
victions tor extortion; (20) the February 1977 appointment ot
Reynolds to the position of Trustee; (21) the July 1978 appoint-
ment of Josephine Provenzano Septembre to the position ot
Secretarv-Treasurer following Anthony Provenzano’s conviction
for the Cuastellitto murder; (22) the July 1981 appointment of
Salvatore Provenzano to the position of President tollowing
Nunzio Provenzanos torced resignation as a condition of bail on
a labor racketeering conviction; (23) the Executive Board’s tail-
ure to recover monies wrongtully converted by Anthony
Provenzano; (24) the retention of Marvin Zalak as Fund Admin-
istrator in spite of payments accepted by him from an insurance
company representativ: during the 1960's; (25) the retention of
Ralph Torraco as the Fund’s independent certified public ac-
countant in spite of his federal indictment for systematically
overbilling the Fund; (26) the extortion of contributions to the

A-10

defense funds of the Provenzanos and Michael Sctarra trom
union members: (27) the 1981 appointment ot Luizzi to the po-
sition of Business Agent: and :28) associations by some of the
defendants with Frank “Funzi” Tieri and Matteo Alfredo Iunni-
ello, reputed organized crime members.

Defendant Local 560 in moving to dismiss paragraph 12(u:
contends that the rights guaranteed bv section 411 are not “prop-
erty” extortable under the Hobbs Act. The argument is premised
on two propositions. the correctness of either of which will en-
title the defendant to the dismissal of this portion of the com-
plaint; first, that the concept of “property under the Hobbs Act
does not embrace the rights created under section 101 of the
LMRDA; and second, to the extent that these rights are extort-
able, that the LMRDA provides the exclusive criminal sanction
for such a violation. See 29 U.S.C. $530. !-

The government argues that section 610 of the LMRDA is
not the exclusive remedy for extortionate taking of section 411
rights. The LMRDA. it contends. neither expressly nor
impliedlv repealed the Hobbs Act's application to conduct which
might also violate sections ot the LMRDA because Congress did
not intend the LMRDA to be exclusive. The government further
submits that section 330 does not prohibit the conduct alleged in
the complaint because it is essentially an assualt and battery stat-
ute.

12. 29 U.S.C. 3330 entitled “Depnvaton ot Rights by violence. penalty |
provides:
[t shall be unlawtul tor any person through the use of force or violence. or
threat ot the use of force or violence. to restrain. coerce. or intimidate. or
attempt to restrain. cverce. or intimidate anv inember of a labor organi-
zation tor the purpose ot intertering with or preventing the exercise of ans
night to which he is entitled under the provisions of this chapter. Anv
person who wiilfully violates this section shall be fined not more than
$1.000 or imprisoned for not more than one vear. or both.
29 U.S.C. $529 makes it unlawtul for anv labor organization, officer or em-
plovee to “fine, suspend, expel, or otherwise discipline” a rember for exer-
cising any rights granted under the LMRDA. The remedy provided is a civil
one.

A-1ll

A review of some of the history preceding the enactment ot
the Hobbs Act and the LMRDA will be helptul for an under-
standing of the issues raised in this motion. The precursor to the
Hobbs Act was the Anti-Racketeering Act of 1934. It was de-
signed to penalize extortion and racketeering and to protect com-
merce against interference bv threats and violence. Annot., 4
A.L.R. Fed. 881, 890 (1970). In 1942, the Supreme Court nar-
rowly construed the provisions of the Anti-Racketeering Act to
exclude from its extortion coverage certain labor activities. Con-
gress thereafter enacted the Hobbs Act in reaction to that deci-
sion in order to implement its intentions to curb labor
racketeering. While aimed at labor racketeering, its broad terms
cover a field comparable to existing state extortion statutes. See
generally United States v. Harding, 363 F.2d 299, 302-04 6th
Cir. 1977) cert. denied, 434 U.S. 1062, 98 S.Ct. 1285, 55
L. Ed.2d 762 (1978).

The LMRDA, in addition to the Bill of Rights of Title I dis-
cussed earlier, contained five titles designed primarily to achieve
internal union democracy with one additional title covering
amendments to the Taft-Hartlev Act. It included comprehensive
reporting requirements, 29 U.S.C. $$431-41; regulation of the
imposition of trusteeships over subordinate labor organizations.
29 U.S.C. §$$461-66; the establishment of election procedures.
29 U.S.C. $$481-82: safeguards in the torm of fiduciarv standards
amd responsibilities tor officers, 29 U.S.C. §§501-04: and nu-
merous civil, administrative, and criminal enforcement provi-
sions. The congressional debate centered primarily upon the
Tatt-Hartley Amendments. For a discussion of the controversy
surrounding its passage, see A.B. A. The Developing Labor Law.
49-59 (1971).

In analyzing the interplay between the Hobbs Act and the
LMRDA, I take guidance from the » cent opinion of the Third
Circuit Court of Appeals in United States v. Boffa, 688 F.2d 919
(1982). In Boffa, this Circuit found, on the one hand. that the
RICO predicate act of mail fraud, 18 U.S.C. $1341. may encom-
pass a scheme to deprive union members of the right to the hon-
est and faithful services of union officials provided in section 301
of the LMRDA, 29 U.S.C. $501, but mav not, on the other hand,

A-12

encompass a scheme to deprive emplovees of rights created by
section 7 of the National Labor Relations Act :NLRA) 29 U.S.C.
$157. The dichotomy of treatment given these statutes is instruc-
tive.

In Boffa the defendants Eugene Botfa. Sr.. Robert Botfa.
Sr.. and Chandler Lemon wiho operated labor leasing businesses
switched labor leasing contracts they had with certain facilities
from corporations they controlled to others ostensibly indepen-
dent but which they also controlled for the purpose ot lowering
wages paid and/or increasing fees charged. The detendants as-
sured themselves of the cooperation of defendant Francis
Sheeran who was the president of the local Teamsters union
which represented some of the leased drivers by delivering
money or some other thing of value to him vio:ation of the Tuatt-
Hartlev Act, 29 U.S.C. $196(a\(4). The mailing of the notices of
termination to the employee, drivers in furtherance of the
scheme tormed the basis of the mail fraud indictments. At
924-925. ‘

In examining the contentions of the appellants that the labor
switches were, at most. unfair labor practices, the Third Circuit
first reviewed the statutory coverage of the mail fraud statute to
find that in general “a scheme to deprive persons of intangible
rights or interests may be within the ambit of 18 U.S.C. $1341.”
[d. at 927. However, in order to discern whether any tederal
statute in particular can serve as the source of an intangible right
in a mail fraud prosecution, the court examined the language and
legislative historv of the federal statute. Chiet Judge Seitz stated:

As a matter of statutory construction we are unwilling to
sanction mail fraud prosecutions for schemes to deprive in-
dividuals of a particular intangible right when such a pros-
ecution would contravene the intent of the Congress that

created that right.

Id. at 926. The court t’ierefore inquired into the congressional
policies underlying the NLRA and the LMRDA, the two sources
of the rights allegedly defrauded by the defendants.

A-13

Two policies underlying the NLRA were tound particularly
pertinent in Boffa: “the remedial nature of the Act and the pri-
macy of the National Labor Relations Board in resolving untair
labor practice disputes.” [d. at 927. The legislative history
evinced Congress's intent that “violations of the civil provisions
of the Act were to be without criminal consequences.” [d. at 925,
The Third Circuit. relving upon Republic Steel Corp. cv. NLRB.
311 U.S. 7, 11, 61 S.Ct. 77, 79, $5, L.Ed. 6 (1940), emphasized
that the Act’s remedial measures “relate to the protection ot the
emplovees and the redress of their grievances, not to the redress
of any supposed public injurv... . “ Id.

The exclusive authority of the Board to decide what consti-
tutes an unfair labor practice was also considered in Boffa to be
pertinent in ascertaining the scope of the mail fraud statute. The
court stated:

We believe the ‘overriding interest in.a uniform, nationwide
interpretation of the federal statute by the centralized ex-
pert agency created bv Congress’, New York Telephone Co.
u. New York Labor Department, +40 U.S. 519, 528 [99
S.Ct. 1829, 1834, 59 L.Ed.2d 353] (1979), casts serious
doubt on the proposition that Congress intended schemes to
detraud emplovees of section 7 rights to fall within the ambit
of the mail fraud statute.

688 F.2d at 929. [t held on the basis of these two congressional
policies that such a scheme does not constitute mail fraud.

The RICO indictment in Boffa, as I indicated earlier. also
alleged that the defendants Botta and Lemon had violated the
mail fraud statute through a scheme to deprive emplovees ot the
loval, faithful, and honest services Uf their union president. de-
fendant Sheeran. The Third Circuit's analvsis of whether the
mail fraud statute could encompass these rights paralleled that of
the NLRA rights and is especially instructive of the issue betore
me.

Section 501(a) of the LMRDA was found to impose fiduciary
responsibilities upon union officials and to establish a corre-
sponding right in the members to the honest and faithful services
of union officials. [d. at 930-991. The court defined this as an

A-l4

“intangible right” and examined the legislative history tor indi-
cations as to whether prosecution tor schemes to detraud em-
plovees of their rights under section 501 would contravene anv
congressional policy. It found no such indications pointing to the
fact that the remedy under section 301 merely permits a union
member to bring an action against officials who breach their f-
duciarv dutv but not against emplovers or third parties. [t went
on to hold:

This remedy was clearly not intended to be exclusive. See
29 U.S.C. $413 (nothing in this title ‘shall limit the rights
and remedies cf anv member of a labor organization under
State or Federal law or betore anv other court or tribunal’:
Cox, Labor Law Preemption Revisted. $5 Harv.L. Rev.
1937, 1371 (1972) (Congress has never developed a com-
prehensive and impliedly exclusive plan of federal regula-
tion for union-member relations.”). . . In short, there is no
indication that prosecutions for schemes to defraud emplov-
ers of the intanuible right provided in 29 U.S.C. $501 would
contravene any congressional policv. See United States v.
Stout, 499 F.Supp. 602 (E.D. Pa. 1980) (LMRDA does not
preclude mail fraud prosecution for union official’s scheme
to detraud his labor union. }

[d. at 931. Therefore, the court concluded that section 301 rights
are within the scope of the mail fraud statute. /d. at 931.”
The issue raised by Local 560s motion to dismiss is whether
section 411 rights are within the ambit of the Hobbs Act. With
Boffa as a guide, | turn now to this issue. The Hobbs Act. 18
U.S.C. 319514 forbids interference with commerce bv extor-

13. The court also considered and rejected defendants argument that “bv
enacting the NLRA. Congress intended to work an implied repeal of existing
federal criminal statutes insotar as they regulate ‘arguably prohibited’ con-
duct.” Boffa. supra, 688 F 2d at 932.

14. 18 U.S.C.A. $195 1a) provides:

(a) Whoever in anv way or degree obstructs, delavs. or affects cuin-
merce or the movement of anv article or commodity in commerce. '»v
robberv or extortion of attempts or conspires so to do. or commits or

A-15

tion. The Act defines “extortion to mean “the obtaining of prop-
ertv trom another, with his consent. induced by wrongtul use ot
actual or threatened force. violence. or tear’. . 1S U.S.C.
$1951(bv2). The essertial elements of a Hobbs Act violation.
theretore. are—

(1) that the defendants induce their victims to part with
property. (2) that they do so through the use of fear. and 3)
that, in so doing, thev adversely affect interstate commerce.

United States v. Addonizio, 451 F.2d 49, 59 3d Cir.) cert. de-
nied, 405 U.S. 1048, 92 §.Ct. 1909, $1 L.Ed.2d 391 | 1972).

(1] The Hobbs Act has been construed broadlv so as to im-
plement Congress s purpose “to use all the constitutional power
Congress has to punish interference with interstate commerce
by extortion. . .” Stirone v. United States, 361 U.S. 212, 215.
80 §.Ct. 270, 272. 4 L.Ed.2d 252 (1959). For example, with re-
spect to each of the aforementioned elements, it is sufficient if
the proofs show (1) that the victim suffered a loss but not nec-
e: sarily that the extortioner received the fruits of the extortion.
United States v. Provenzano. 334 F.2d 678, 686 (3d Cir.) cert.
denied, 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 344 : 1964): . 2)
that the extortioner instilled in the victim a fear of economic loss.
Addonizio, supra, 451 F.2d at 72; United States v. Sweeney, 262
F.2d 272 (3d Cir.1959); and (3) that there was some minimal
effect on commerce. United States cv. Cerilli, 603 F.2d 415, 424
(3d Cir. 1979) cert. denied. 444 U.S. 1043. 100 S.Ct. 72S. 62
L.Ed.2d 728 (1980).

Courts have upheld Hobbs Act extortion prosecutions based
on the loss not only of tangible property but also of intangible
“property rights. See United States v. Santoni, 385 F.2d 667.
673 (4th Cir. 1978) cert. denied, 440 U.S. 910, 99 S.Ct. 1221. 39
L.Ed.2d 459 (1979) (right to make business decision free trom
outside pressure); United States v. Nadaline. 471 F.2d 340, 344
(5th Cir.) cert. denied, 411 U.S. 951. 93 S.Ct. 1924. 36 L. Ed.2d
414 (1928) (right to solicit business accounts and hire business

threatens physical violence to anv person or property in furtherance of a
plan or purpose to do anvthing in violation of this section shall be fined not
more than $10,000 or imprisoned not more than twenty vears. or both.

A-16

representatives): United States v. Tropiano, 418 F.2d 1069.
1975-76 (2nd Cir. 1969) cert. denied, 397 U.S. 1021, 90 S.Ct.
1258, 25 L.Ed.2d 580 : 1970) (right to solicit business accounts):
Bianchi vc. United States, 219 F.2d 182. 189 ‘Sth Cir. cert. cde-
nied, 349 U.S. 915. 75 S.Ct. 604, 99 L.Ed. 1249 (1955) rights
under construction contract): United States cv. Stofsky, 409
F.Supp. 609, 615 (S.D.N.Y. 1979) ‘right to solicit business). The
complaint at issue, as stated earlier, alleges that the property
extorted was the members rights conterred by 29 U.S.C. $411.
In this instance, the LMIRDA is the source of such intangible
rights. I must theretore determine whether in enacting the
LMRDA Congress intended this intangible right to be outside
the ambit of the Hobbs Act. Boffa, supra. 688 F.2d at 926-927.

(2] Section 411, as stated earlier, was eracted by Congress
as the central provision ot Title I of the LMRDA. creating a “Bill
of Rights of Members of Labor Organizations.” Title I also gives
to union members a direct cause of action against the union and
its officers tor infringement ct these rights. 29 U.S.C. $412. Any
pre-existing state or federal remedies are explicitly preserved bv
this Title. 29 U.S.C. $413. See Maier v. Patterson, 511 F.Supp.
436 (E.D. Pa. 1981). These rights therefore are not within the pri-
marv jurisdiction of the National Labor Relations Board. See
Fulton Lodge No. 2 of Internat'l Ass'n of Machinists and Aero-
space Workers v. Nix. 415 F.2d 212 (5th Cir. 1969). Under the
teaching of Boffa, these characteristics are clearly indicative ot a
nonexclusive statutorv scheme. Furthermore, the LMRDA con-
tains a second and broader saving provision applicable to the
entire act:

Except as explicitly provided to the contrarv. nothing
in this chapter shall reduce or limit the responsibilities of
anv labor organization or anv officer. agent. shop steward.
or other representative otf a labor organization. or of anv
trust in which a labor organization is interested, under any
other Federal lav’ or under the laws of any State. and. ex-
cept as explicitly provided to the contrary, nothing in this
chapter shall take away any right or bar any remedy to

A-1l%

which members of a labor organization are entitled under
such other Federal law or law of any State. ‘Emphasis

added)

29 U.S.C. §523(a).

The LMRDA is not an © ‘impliedly exclusive plan of federal

regulation for union-member relations. “ Boffa, supra. 655
F.2d at 931 (quoting Cox, Labor Law Preemption Revisited, $5
Harv. L. Rev. 1337, 1372 (1972)). The congressional declaration
of findings, purposes and policy which pretaces the LMRDA
clearly establishes the role this legislation is to plav in the larger
scheme of labor law:

The Congress further finds, from recent investigations
in the labor and management fields, that there have been a
number of instances of breach of trust, corruption, disregard
of the rights of individual emplovees, and other tailures to
observe high standards of responsibility and ethical conduct
which require further and supplementary legislation that
will afford necessary protectior of the rights and interests of
emplovees and the public generally as they relate to the
activities of labor organizations, emplovers, labor relations,
consultants, and their officers and representatives. ‘Empha-

sis added)

29 U.S.C. $401(b).'5 Therefore. there is no indication that pros-

15. Senator Coidwater also refected on the supplementary nature ot the

LMRDA and its interaction with the Hobbs Act:

Criminal procedures are surrounded with safeguards for the accused.
and are inevitably, slow. cumbersome. uncertain. We do not wish to de-
strov these safeguards. thev are a necessary part of our traditional system
ot civil liberties and protection against judicial and governmental tvrannvy.
But we cannot escape the fact that the requirement of an indictment by a
grand jury, the availability of the fifth amendment. the need for proot
hevond a reasonable doubt, the right to a jury tral. the rigid rules of
evidence, all of which prevail in a criminal prosecution. render this tvpe
of sanction an awkward and often ineffectual weapon against misconduct in
the labor-management field.

There are now on the Federal statutes books three laws in the field
of labor which utilize the methods of the criminal prosecution.

o 7 . . 7 ® - -

A-18

ecutions for conduct which extorts from members the intangible
right provided in 29 U.S.C. $411 would contravene any cuon-
gressional policy.

(3] The defendant also asserts a distinct but related ground
for dismissal of paragraph 12(a). [t argues that the conduct al-
leged in the complaint is embraced bv a specific criminal pro-
vision of the LMRDA, 29 U.S.C. $530. which precludes
application of the Hobbs Act. Plaintiff responds that the two stat-
utes do not cover the same ground. It further argues that even
if they did, section 330 cannot be read to repeal the Hobbs Act
insofar as extortion of section 411 rights is implicated. I find that
section 3530 is not an extortion statute and that the principle ot
statutory construction of implied repeualer is inapplicable.

Section 330 provides:

It shall be unlawtul for anv person through the use ot force
or violence, or threat of the use of force or violence. to re-
strain, coerce, or intimidate. or attempt to restrain, coerce.
or intimidate anv member of a labor organization for the
purpose of interfering with or preventing the exercise of any
right to which he is entitled under the provisions of this
chapter.

NOTES | Continued)

The third instance is the Hobbs Act. which
a ee ee ee
is designed to reach many of the practices engaged in by the Teamsters us
disclosed bv the McClellan hearings, vet. as those hearings conclusivels
demonstrate, these vicious practices go merrily on despite the Hobbs Act.
Thus. it is evident bevond any reasonable doubt that criminal pro-

ceedings are not the proper machinerv tor cleaning up the abuses in the
labor-management field. And incidentally. we should recognize the wis-
dom of the Congress in deliberately avoiding the criminal law approach in
favor of administrative sanctions when it enacted the Wagner and Tuit-
Hartley Acts to cope with the evils at which those statutes were aimed.
However, we do not wish to eliminate these :mminal sanctions but rather
to supplement them. thus providing a well-r »unded and effective entorce-
ment machinerv which would give genuine vitalitv to those few rights
which the committee bill confers.

105 Cong. Rec. 9110 :dailv ed. June $, 1959) UI Legis. Hist. 122.

A-19

The penalty is a fine of $1,000 and/or imprisonment tor a term ot
not more than one vear.

The provision as enacted represented a compromise be-
tween the House and Senate versions of the Act. The Senate. as
noted earlier, passed the Kennedy-Ervin bill, $.1555, of which
section 506(b) made it unlawtul tor anv person to restrain, coerce
or intimidate anv member “through the use of force or violence.
or threat of the use of force or violence, or by economic reprisal
or threat thereof.” (Emphasis added). A violation ot this provi-
sion was made a felony with a maximum penalty of $10.000 or
imprisonment for not more than 2 vears or both. A bill intro-
duced in the House by Rep. Landrum and Rep. Griffin. H.R.
8400, as a substitute for the House bill reported out of commit-
tee, H.R. 8342, provided for the same penalty as the Senate bill
but did not include the language on economic reprisal empha-
sized above. The Landrum-Gritfin bill was substituted on the
floor of the House only after it was amended, inter alia, to reduce
these criminal penalties to a maximum imprisonment of one vear
and a fine of $1,000.'* In the conference committee, the House
version was adopted on this point.

The reason for the deletion of the phrase “economic re-
prisal” by the House, and some clue as to its significance, is
tound in the remarks and analysis of Rep. Griffin:

Section 610 (denial of rights through violence!: Like the pre-
vious section, this section deals with the denial of rights
guaranteed to union members. However, unlike section
609, this section applied to the denial of such rights through
torce or violence. Criminal penalties in this case are justified
and, accordingly, are provided. Section 610 is comparable
to section 607(b) of S. 1555, which was stricken bv the House
committee. However, the words “or bv economic reprisal or
threat thereof” in the Senate-passed bill are omitted in the
substitute. We believe the quoted language too vague for

i6. 105 Cong. Rec. 14513 (daily ed. Aug. 13. 1959) II Legis. Hist. 1685.

A-20

criminal entorcement and, further, that the activity pro-
scribed is covered, and should be prohibited, under the
phrase “or otherwise discipline’ in section 609 where civil
remedies are available for entorcement.

105 Cong. Rec. 13091 ‘daily ed. July 27, 1959), II Lewis. Hist.
1522 (1959). The sanction as passed bv the Senate and originally
included in the Landrum-Gritfin bill was considered too harsh:

This was a major dispute between the supporters of the
Elliott and Landrum-Griffin bills during floor debate. [t was
the contention of the backers of the Elliott biil that the
Landrum-Gniffin penalties were so stringent that thev
might deter honest men from seeking and holding union
office. We argued that the rights conferred bv the act were
so numerous and varied that in most instances the penalty
did not fit the crime with the result that this sanction would
be both harsh and unworkable. Our argument on this point
prevailed and the Landrum-Griffin bill was quietly
amended so that the drastic telony penaltv was reduced to
a misdemeanor. This solution was then adopted bv the con-
ference report.

105 Cong. Rec. 16637 daily ed. Sept. 4. 1959) (remarks of Rep.
Udall), [1 Legis. Hist. 1722. Detendant contends that section 330
was thus enacted as a misdemeanor extortion provision specially
tailored to the purposes of the LMRDA. | disagree.

(+] As the preceding review of the legislative history indi-
cates and the cases construing section 530 confirm, the conduct
proscribed by this provision of the LMRDA is essentially assault
and batterv. See United States v. Williams, 624 F.2d 75 (9th Cir.
1980) (defendant hired someone to assault member in retaliation
for outspoken opposition); United States v. Kelley, 345 F.2d 619
(8th Cir. 1976) cert. denied, 430 U.S. 983, 97 S.Ct. 1555, 51
L. Ed.2d 777 (1977) (defendant threw a bat and fired three shots
at truck containing dissatisfied members who were circulating a
petition); United States v. Bertucci, 333 F.2d 292 (3d Cir.) cert.
denied, 879 U.S. 839, 85 S.Ct. 75, 13 L.Ed.2d 45 (1964) (braw!
found to have arisen out of conspiracy to prevent members from

A-21

exercising right to attend and participate in meeting). Cnited
States v. Roganovich, 31S F.2d 167 (7th Cir. 1963) disturbance
at a local union meeting over criticism of report of business
agent); Maier, supra, 311 F.Supp. 436. E.D. Pa. 1981) genuine
issue of material fact as to whether assault was tor purpose of
chilling section 411 rights). In accord is the view of Senator
Morse who, in opposing the passage of section 330, com-
mented—

(T]he conterence committee bill would make it a Fed-
eral crime to use force or the threat of force to prevent a
member, bv intimidation, from exercising rights to which
he is entitled under the bill. A similar provision was in-
cluded in section 607/b) of the Kennedv-Ervin bill. as
passed by the Senate. The Kennedv-Ervin bill. however.
prohibited economic reprisal, as well as the use of force or
the threat of force, and imposed substantially heavier pen-
alties for violations than does the conterence committee bill.
Generally speaking, the effect of these provisions is to make
assault and battery a Federai crime, but only when it occurs
in a union. I have already reterred above to the inappro-
priateness of provisions of this tvpe for the entorcement of
the rights of union members. (Emphasis added)

105 Cong. Rec. 16389 ‘daily ed. Sept. 3. 1959), II Lewis. Hist.
1418.'* For these reasons, | do not find. as detendant contends.

LT. This is turther confirmed bv a review ot the hearings recently held on
the proposed Labor Nianagement Racketeering Act ot L9SL. S. 1755. Sen. Bill
1786 proposes to toughen certain provisions of the Tatt-Hartley Act. the
LMRDA and ERISA. S.Rep. No. 97-497 introduced the bill thu—

The purpose of this bill is to afford greater protection for unions and em-

plovee benefit plans from corrupt union and management officials bv in-

creasing the penalties for violating portions of three statutes—the Labor

Management Relations Act of 1947, known us the Tatt-Hartlev Act. the

Emplovee Retirement Income Security Act of 1974. known as “ERISA’.

and the Labor-Management Reporting and Disclosure Act of 1969. known

as the Landrum-Gniflin Act. The bill is a direct outgrowth of public hear-
ings held before the Permanent Subcommittee on Investigations.
One of the provisions of the bill would expand the list of generic crimes which
qualify a person from serving in a fiduciarv capacity under the LMRDA. 29

|

A-22

that section 330 is an extortion statute.

When compared to the prohibition within the LMRDA
against extortionate picketing, 29 U.S.C. $522.'° it becomes
even clearer that Conzress carefully chose the words it did and
the penaltv to be imposed in section 330 in order to penalize
labor extortion in the one instance but not in the other. Senator
John F. Kennedy commented on the relationship between the
Hobbs Act and extortionate picketing provision which became
section 522:

Under the provisions of the Kennedy-Ervin hill last
vear we provided that anvone who engaged in picketing tor

NOTES / Continued)
U.S.C. $504. to parallel the list contained in a similar provision under the
E:inplovment Retirement Income Security Act. 29 U.S.C. $1111. In its exam-
ination of the effect of the bill's amendments. the Office of Leuislative Affairs
of the United States Department of Justice was of the view that:
The list of specific cries in Section 111 would also provide new protection
under Section 504 with respect to persons convicted of the fullowing stat-
utory crimes:
on * * * * *
3) those deprivations of union members nghts through the threut-
ened use of violence in violation of 29 U.S.C. 330 which could not oth-
erwise he characterized as murder. assault with intent to kill. or assault
which inflicts gnevous bodily injury: Emphasis added)
Heanng before the Subcomm. on Labor of the Senate Comm. on Labor and
Human Resources on S. 1735. 97th Cong.. 2d Sess. 73 1962). As section 504.
in addition to murder..ctc.. disqualifies persons who have been convicted ot
extortion, the Justice Department s enumeration supports my construction ot
section 330 as an assault and buatterv statute.

ls. 29 U.S.C. $522 entitled “Extortionate picketing; penuitv for violation ©
provides:

a) it shal be unlawful to carrv on pickering on or about the premises
of anv empilover for the purpose of. or as part of anv conspiracy or in
furtherance of anv plan ur purpose for. the personal profit or ennchment
of anv individual (except a bona fide increase in wages or other « mpiovee
benefits) by taking or vbtaining anv money or other thing of salue from
such emplover against his will or with his consent. ;

‘bi Any person who willfully violates this section shail be fined not
more than $10,000 of imprisoned not more than twenty vears. or both.

A-25

the purpose of a shakedown should be guilty of an untair
|,bor practice. That was an additional remedy, to be avail-
able in addition to the Hobbs Act.

There has alwavs been some question as to whether the
Hobbs Act applied to cases in which violence did not take
place. In addition, this provision provided a quicker rem-
edy. It provided for compulsory immediate injunction.
while the criminal prosecution might be going on.

There was some objection to making this practice an
untair labor practice. and a felony rather than a misde-
meanor. The Department of Justice raised the question 3 or
4 davs ago as to whether this provision might not raise some
question as to the sanctions available under the Hobbs Act.
Therefore. in order to make sure that there is no choice of
sanctions, as between those which might be misdemeanors
and those which might be felonies, the amendment is now
rewritten, so that the sanctions against using a picket line for
the purposes of extorting money are now identical with
those under the Hobbs Act.

This provision would not weaken or change the Hobbs
Act. It would merely provide that when there is anv ques-
tion as to whether the Hobbs Act applies in cases in which
violence does not occur, as in the case of shakedown pick-
eting, adequate sanctions are provided, This language is in
accordance with the views of the Department ot Justice

106 Cong. Rec. 3861 ‘daily ed. Apr. 23, 1969), II Legis. Hist 11:35.
In enacting section 522, therefore, Congress was ensuring one.
that extortion would be construed to include nonviolent conduct
and two, that that section would operate in tandem with the
Hobbs Act. Tis leads to the other point raised by the parties.
whether both the Hobbs Act and section 530 can apply to con-
duct which infringes upon section 411 rights.

While the detendant refrains from resting upon the dista-
vored principle of implied repealer, Posadas v. National City
Bank, 296 U.S. 497, 504-05. 56 S.Ct. 349, 352-353, $0 L.Ed. 351
(1986), to sav that section 530 preempts or controls the field is to

A-24

sav the same thing. “To assume. . . that the mere passage ot a
specific statute covering an area of conduct also regulated bv a
more general statute limits enforcement of the general statute
. is, in effect. to accomplish a partial repealer of the general
statute.’ ” Boffa, supra. 688 F.2d at 932 quoting United States
vc. Burnett, 505 F.2d $15, 916 (9th Cir. 1974) ‘per curiam). cert.
denied, sub nom. Lyon vc. United States, 420 U.S. 966. 95 S.Ct.
1361, 48 L. Ed.2d 445 (1975)). See also Stout, supra, 499 F.Supp.
at 608. The touchstone tor application of implied repealer is the
“positive repugnancy between the provisions. United States vc.
Batchelder, 442 U.S. 114, 122, 99 S.Ct. 2198, 2203. 60 L. Ed.2d
735 (1979). In Batchelder. the Supreme Court stated that “it 1s
‘not enough to show that the two statutes produce differing re-
sults when applied to the same factual situation.’ Radzanover v.
Touche Ross & Co., 423 U.S. 148, 155 [96 S.Ct. 1989.
1993-1994. 48 L. Ed. 2d 340] (1976). Id. The Court reversed the
lower court's ruling that two firearm proscriptions were in ir-
reconcilable conflict because their penaltv schemes differed.
Here, there ha: only been evidence that Congress intended
the new labor legislation to expand on remedies already avail-
able. Moreover, the overlap between the two statutes is not com-
plete. At most, the conduct alleged in the complaint may be said
to give rise to separate and independent violations of law. Al-
though the element of interference with section 411 rights is
included within the Hobbs Act allegation. the material elements
ot the crime of extortion include additional elements. such us
effect on interstate commerce and inducing the victim to part
with property. Section 330, on the contrary, requires restraint.
coercion, or intimidation and a specific intent to intertere with
the exercise of LMRDA rights. As the Ninth Circuit has stated.
“The existence of overlapping coverage under other criminal
statutes does not diminish the scope of the Hobbs Act.” United
States v. LaBinia, 614 F.2d 1207 (9th Cir.) cert. denied. +46 U.S.
969, 100 S.Ct. 2951, 64 L.Ed.2d 330 (1980) coverage under
Hobbs Act and Bank Robbery Act, 18 U.S.C. $2113). Other
courts have allowed prosecution under the Hobbs Act even
though the alleged criminal conduct might be punishable under
a different criminal statute. In Cerilb. supra. 603 F.2d at 421.

A-25

the Third Circuit concluded that 15 U.S.C $601 is “Congress
attempt to deal with a problem related to but not identical with
the problem at which the Hobbs Act is aimed.” The Seventh
Circuit compared the Hobbs Act with a violation of the Tutt-
Hartley Act, 29 U.S.C. $156ib) in United States v. Kramer. 355
F.2d 891, 896 : 1966):

When the charge under the Labor Act is based on a coercive
demand or request bv a representative of emplovees. this
conduct may also constitute extortion under the Hobbs Act. |
The fact that the same conduct may give rise to separate and
independent violations of law does not render the charges of
convictions based thereon inconsistent or mutually
exclusive.

This result is consistent with the broad scope ot the Hobbs Act.
discussed earlier. As the Supreme Court stated: “Our examina-
tion of the statutory language and the legislative historv of the
Hobbs Act impels us to the conclusion that Congress intended to
make criminal all conduct within the reach of the statutory lan-
guage.” United States v. Colbert, 435 U.S. 371. 380, 98 S.Ct.
1112, 1117, 55 L. Ed.2d 349 (1978). Where two statutes overlap,
the right of election belongs to the prosecutor. Batchelder.
supra, 442 U.S. at 123-25, 99 S.Ct. at 2203-2205. To the extent
that the conduct alleged in paragraph 12(a) does state a cause of
action under both section 3530 and the Hobbs Act. plaintitf has
made its choice of the course to follow.

It bears repeating at this time that the defendant's motion
under Rule 12(b\6) attacks paragraph 12(a) on the basis that it
cannot set forth a claim upon which relief mav be granted. The
defendant's brief assumed for purposes ot the motion that the
acts of intimidation alleged in the complaint induced the mem-
bers of Local 560 to part with their section 411 rights. Whether
the plaintiff will be able to satisfy all the elements of a Hobbs Act
offense is not presently before me.

5] In sum, therefore, | have determined that section 411
rights are intangible rights which are within the ambit of the
Hobbs Act, and that the Hobbs Act is not impliedly repealed by
the LMRDA.

A-26

Defendant raises as it final objection the point that para-
graph 12(a) essentially makes section 530 of the LMRDA a pred-
icate crime under RICO in violation ot the express definition of
“racketeering activity.” However, this misconstrues the nature
of the plaintiff's charges. Cf. Stout. supra. I have already de-
termined that section 330 does not prohibit the same conduct
prohibited under the Hobbs Act, and it is the Hobbs Act which
serves as one of the predicate otfenses in this action. Further-
more, my research has not produced any evidence that the the-
ory of this case contravenes Congress's intent in passing RICO.

(6] The Senate Report in its analvsis of Title IX which was
enacted as RICO stated with respect to the infiltration of labor
unions by organized crime:

Closely paralleling its takeover of legitimate busi-
nesses, organized crime has moved into 'egitimate unions. ’
Control of labor supply through control of unions can pre-
vent the unionization of some industries or can guarantee
sweetheart contracts in others. It provides the »pportunity
for theft from union funds. extortion through the threat of
economic pressure, and the profit to be gained from the
manipulation of welfare and pension funds and insurance
contracts. Trucking, construction, and watertront entrepre-
neurs have been persuaded for labor peace to countenance
gambling, loan sharking and pilferage. As the takeover of
organized crime cannot be tolerated in legitimate business.
so, too, it cannot be tolerated here.

S.Rep. No. 91-617, 91st Cong., Ist Sess. 78 (1969). ‘4

19. Senator McClellan expended on his congressional remarks im an ar-
ticle, 46 Notre Dame L. 35, 141 | 1970):

The infiltration of legitimate business by organized crime has been
increasingly documented in the past vear. Once it invades a legitunate
field of endeavor, the mob quickly brings with it a tull range of corrupt
practices. [t sumetimes uses terror tactics to ybtain a larger share ot the
market. Labor unions are infiltrated. and then labor peace is suid to busi-
nesses. This does not inure to the benefit of the workingman. To the con-
trary. for example, as documented in a grand jury report [ inserted in the
Congressional Record on Devember 5. 1969. in New Jersey meinbers of
the mob recently required payments from 4 contractor so that nonunion

A-27

The factual basis tor the Senate's statement. as disclosed in
footnote 5. is to be tound in the reports issued by the Select
Committee on Improper Activities in the Labor or Management
Field over which Senator McClellan presided. S.Rept. No.
1417, 85th Cong., 2d Sess. (1958): S.Rept. No. 621, $5th Cong..
Ist Sess. (1959); S.Rept. No. 1139. S5th Cong.. 2d Sess. 1960).
The McClellan hearings were also the impetus behind the pas-
sage of the LMRDA, which history I have already set forth.
Therefore, both the LMRDA and RICO were implemented to
attack the same problem. In my opinion, neither statute man-
dates a finding that conduct which is regulated or proscribed
under the LMRDA cannot also violate RICO. RICO. like the
LMRDA, as earlier detailed. is legislation intended to supple-
ment the panoply of remedies designed to reach racketeering.
Further, it is to be liberally construed. See generally United
States uv. Turkette, 452 U.S. 376. 3585-89. LOL S.Ct. 2524.
2531-2532, 69 L.Ed.2d 246 (1981): C'nited States v. Frumento,
563 F.2d 1083, 1090-91 (3d Cir. 1977) cert. denied. 434 U.S.
1072, 98 S.Ct. 1256, 55 L.Ed.2d 775 (1979).

For-all of these reasons. defendant's motion to dismiss para-
graph 12(a) is denied. An order in conformance with my deter-
mination has been filed bv the court.

men could work at lower wages on a project. In business. the mob bleeds
4 firm of assets, then takes bankruptcy. It steals securities and then uses
the stolen securities to traudulentlv obtain tunds from lending institutions.
[t evades taxes and thereby gains an unfair advantage. [t monopolizes
goods and services thereby raising prices. Through the violence used in its
operations and its rigidly enforced cor.e of silence. as well as exploitation
of nonmembers in its schemes, the mob seeks to gain immunity from the
rules of our society governing business and labor practices. We cannot
afford to allow it to succeed in this endeavor.

A-25

APPENDIX B

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA CIVIL ACTION NO. 52-649
Planet.

v OPINION

LOCAL 360. INTERNATIONAL

BROTHERHOOD OF TEAMI-

STERS. CHAUFFEURS. WARE-

HOUSEMEN. AND HELPERS

OF AMERICA. ct al.

Detendants.

W. Hunt Dumont. United States Attorney tor the District of
New Jersev

By: Robert C. Stewart. Attornev in Charge
Thomas L. Weisenbeck, Assistant U.S. Attorney
Leopold Lauter, Special Attorney
United States Department of Justice
Newark. New Jersey 07102 For Plaintiif

Edward A. Cohen: Esa.

Schneider. Cohen, Solomon & DiMarzio

Jersey Citv, New Jersey 07306

For detendant Local 560 and the Severance Pav Plan

Harvey Weissbard, Esq.

West Orange, New Jersev 07502

For detendants Provenzano, Sheridan. Dildine. Revnolds.
Sciarra and Jaronko

Herbert New, Esq.

Brenner, New & Brenner
Livingston, New Jersev 07039

For detendant Tricking Emplovees of North Jersev
Welfare Fund

Mr. Stephen Andretta and Mr. Gabriel Briguglio, Pro Se
ACKERM- ., District Judge.

A-29

John L. Lewis. tormer president of the Congress ot Indus-
trial Organizations and the United Mine Workers once said that
“Labor, like Israel. has many sorrows. ”

— Acareful review of the evidence in this unprecedented cise
reveals the veritv of that observation.

It is not a prettv storv. Beneath the relatively sterile lan-
guage of a drv legal opinion is a harrowing tale of how evil men.
sponsored by and part of organized criminal elements. infiltrated
and ultimately captured Local 560 of the International Brother-
hood of Teamsters, one of the largest local unions in the largest
union in this countrv.

This group of gangsters. aided and abetted by their relatives
and sycophants. engaged in a multitaceted orgy of criminal ac-
tivitv. For those that enthusiastically followed these arrogant
mobsters in their morally debased activity there were material
rewards. For those who accepted the side benefits of this per-
verted interpretation of business unionism. see J. Hutchinson,
The Imperfect Union p. 371, '1970), there was presumably the
ratio~ alization of “I’ve got mine, why shouldn't he get his.” For
thos. who attempted to fight, the message was clear. Murder
and other torms of intimidation would be utilized to insure si-
lence. To get along, one had to go along, or else.

It is important to state what the evidence in this case does
and does not show.

It shows that a trade union which is by origin and nature a
voluntary organization is susceptible to the malicious machina-
tions of others. as Congress perceived in enacting the Landrum-
Griffin and RICO Acts.

It does not demonstrate that unions or union officials in gen-
eral are riddled with racketeering or corruption. Most authori-
ties are convinced that the overwhelming number ot unions and
union officials are “untroubled by the problem of corruption.”
[d. Crooks and racketeers are anathema to a significant portion
of the trade union movement. See id.; D. Dubinsky & A. Raskin.
David Dubinsky: A Life With Labor (1977); P. Jacobs, The State
of the Unions (1963). See also “The RICO Civil Fraud Action in
Context: Reflections on Bennett v. Berg,” 38 Notre Dame L.
Rev. 237, 303 n. 179 (1982).

|

A-30

As Protessor Hutchinson observed in his book The Lmper-
fect Union—A History of Corruption in American Trade Unions
(1970) at p. 7-5:

Corruption owes little more to immoral union leaders
than it does to predatory emplovers who. throughout the
history of American business. have sought by cheating and
violence to circumvent the strictures of competition. union-
ization and the law. It is a companion of the corruption in
politics and law enforcement which tor generations has char-
acterized some ot the major cities of the nation. sheltering
the guiltv and embroiling the innocent in crime. [t owes a
debt to the insanity of Prohibition and its enduring legacy of
organized defiance of the law. It thrives in the procedural
jungle of the American criminal law. It stems from the social
conditions of the cities—trom the tensions of an immigrant
societv, the customs of racial discrimination and ethnic iso-
lation, the miseries of the slums and the frustrations of the
underprivileged. the ignorance of the poor and the indit-
ference of the rich. It has. finally, drawn strength trom a
public philosophy which, in electing for the competitive so-
ciety, has tended to trumpet only its virtues. according ei-
ther praise or tolerance to the victors in a battle lightly
burdened with rules.”

Appiving these precepts and the law applicable to this case
I find that the record clearly demonstrates that the Provenzano
brothers ‘Anthony, Nunzio and Salvatore: and their group be-
traved the membership of Local 560.

David Dubinsky, former President of the International La-
dies Garment Workers Union stated in his autobiography that
“{rlacketeering is the cancer that almost destroved the American
trade-union movement. D. Dubinsky & A. Raskin. supra. The
metaphor of disease is apt. See P. Johnson, Modern Times p. 102
(1983). For reasons set forth below, I have determined in this
case, in accordance with law and to secure justice. to use a ju-
dicial scalpel to excise this malignancy from this union and its
members.

A-31

To do anv less would be to ignore the laws of the land and
do a disservice to the thousands of labor leaders who earn their
daily bread bv honestly striving to improve the wages, hours and
working conditions of their members.

This is an action brought pursuant to the Racketeer [nflu-
enced and Corrupt Organization Act RICO), 15 U.S.C. § 1961

* et seq.! Plaintitf United States alleges. inter alia, that Local 560
‘of the International Brotherhood of Teamsters. Chautteurs.
Warehousemen and Helpers of America : Local 560), together
with its Welfare and Pension Funds | Funds) and its Severance
Pav Plan (Plan),? has become. through the actions of the indi-
vidual detendants, a “captive labor organization.” The United
States seeks. first. the appointment of a receiver or trustee to
serve in the capacity of the Local 360 Executive Board until such
time as the membership can treely nominate and elect new of-
ficers. The complaint also seeks injunctive relief against deten-
dants Salvatore Provenzano. Joseph Sheridan, Josephine
Provenzano. J.W. Dildine. Stanley Jaronko, Thomas Reynolds.
Sr., and Michael Sciarra, inter alia barring them trom union of-
fice until such time as a democratic election of officers bv the
membership may be held. Finally. the complaint seeks injunc-
tive relief against defendants Anthony Provenzano. Nunzio
Provenzano, Stephen Andretta and Gabriel Briguglio, inter alia
barring them from any further contacts with Local 360.

lL. Chapter 96 of Title 1S, 18 U.S.C. $§ 1961-1968. was added to that title
by Title LX of the Organized Crime Control Act of 1970. Pub. L. 91-452. 84 Stat.
S41.

2. The Funds have been merged and split several times. the two most
recent events being the March |. 1974 separation of Locals 617 and 641 from
the Trucking Emplovees of North Jersey Welfare Fund (and Pension Plan) and
the May 4. [977 merger of the North Jersey Fuyd and Plan with that of the
Trucking Emplovees of Passaic and Bergen Counties.

|

A-32

The complaint charges that the “Local 360 Enterprise ° is
an enterprise within the meaning of 15 U.S.C. § 1961 ‘4).+ It
further alleges that the individual defendants are associated to-
gether under the leadership of defendant Anthony Provenzano
as the “Provenzano Group,” and that this Group conspired. in
violation of 18 U.S.C. § 1962 :d),* to violate. and actually did
violate, 18 U.S.C. § 1962(b) and ic:.°

Specifically, paragraph 12(a) of the complaint alleges that
the Provenzano Group, aided and abetted by past and present
members of the Executive Board of Local 360 ‘including deten-
dants Salvatore Provenzano, Joseph Sheridan. Josephine
Provenzano, J. W. Dildine. Thomas Reynolds. Sr., Michael
Sciarra. and Stanlev Jaronko) unlawtuily acquired and main-
tained directly and indirectly. an interest in and control ot the
Local 560 Enterprise through a pattern of racketeering activity in
violation of § 1962(b) of the Rico Act. This racketeering activity
was alleged to have involved murder and the swstematic use of
extortion, with the latter allegedly consisting ot. according to the
complaint, “the wrongful use of actual and threatened torce. vi-
olence and tear ot physical and economic injury in order to create
within Local 360 a climate of intimidation which induced the

3. The complaint reters to the nominal defendants | Local 360. the Fund
and the Plan) collectively as the “Local 560 Enterpnse-

4+. 1$ U.S.C. } 1961\4) provides:

“enterprise includes any individual. partnership. corporations. association.
or other legal entitv. and anv union or group of individuals associated in tact
although not a legal entitv....

5. 18 U.S.C. § 1962/d) provides:

d) [t shall be unlawtul for anv person to conspire to violate any ot the pro-
visions otf subsections \a), ‘b). or ‘c) of this section.

§. 18 U.S.C. § 1962(b) and (c) provide:

(b> [t shall be unlawtul for anv person through u pattern of racketeering
activitv or through collection of an unlawtul debt to acquire or maintain. di-
rectly or indirectly, anv interest in ur control ot anv enterprise which is engaged
in, or the activities ot which affect. interstate or foreign commerce.

c) [t shall be unlawful for any person emploved by or associated with any
enterpnse enyaged in, or the activities of which affect, interstate or foreign
cominerce, to conduct or participate, directly or indirectly. in the conduct ot
such enterprise » affairs through a pattern of racketeering activity or collection
of unlawful debe.

A-35

members thereof to consent to the surrender of certain valuable
property in the torm of their union rights a» guaranteed by the
provisions of Sections 137 and 411 of Title 29 of the United States
Code.... ”

7 29U S.C. 3 157 ts section 7 of the Taft-Hartley Act. while 29 C5. ©
§ 411 was enacted as Title [of the Labor Management Reporting and Disclo-
sure Act of 1959 LMRIDA) and is reterred to as the “Bill of Rights of Slembers
ot Labor Organizations. Section 411 provides:

ai li Equal rights. —Every member of a labor organization shall have
equal rights and privileges within such organization to nominate candi-
dates. to vote in elections of referendums of the labor organization, to
attend membership meetings. and to participate in the deliberations and
voting upon the business of such meetings. subject to reasonable rules and
regulations in such organization s constitution and bvlaws.

2) Freedom of speech and assembly. —Every member of any labor
organization shall have the mght to meet and assemble treely with other
members. and to express any views. arguments. or opinions. and to ex-
press at meetings of the labor organization his views. upon candidates in
an election of the labor organization or upon any business properly betore
the meeting, subject to the organization s established and reasonable rules
pertaining to the conduct of meetings: Provided. That nothing herein shall
be construed to impair the riggt of a labor organization to adopt and en-
force reasonable rules as to the responsibility of every member toward the
organization as un institution and to his retraining from conduct that would
interetere with its pertormance of its legal or contractual obligations.

3) Dues. initiation tees. and assessments. —Except in the case of a
federation of national or international labor organizations, the rates ot dues
and initiation tees pavable by members of any labor organization in etfect
on September 14. 1959 shall not be increased. and no general or special
assessment shall be levied upon such members. except—

A) in the case ot a local labor orgainzation. 0 by majority vote by secret
ballot of the members in good standing voting at a general or special mein-
bership meeting, after reasonable notice ot the intention to vote upon such
question, or (ii) bv majority vote of the members in good standing voting
in a membership referendum conducted bv secret ballot: or

by in the cause of a labor organization. other than a local labor organi-
zation or a federation of national or international labor organizations. \i) bv
majority vote of the delegates voting at a regular convention, or at a special
convention of such labor organization held upon not less than thirtv davs.
written notice to the principal office of each local or constitutuent labor
organization entitled to such notice, or (ii) by majority vote of the members

A-34

The particular acts of the detendants which allegedly cre-
ated the climate of intimidation which in turn allegedly induced
the surrender of the members mghts are set out &
subparagraphs (1) through (28) of paragraph 12(a). These allezed

NOTES | Cuntinued)

in good standing of such labor organization voting in a membership ret.
erendum conducted bv secret ballot, of iit) by majority vote of the men:
bers of the executive board or similar governing body of such labor
organization, pursuant to express authority contained in the constitution
and bylaws of such labor organization: Provided, That such action on the
part of the executive board of similar governing body shall be cttective
only until the next reguiar convention ot such labor organization.

+) Protection of the right to sue. —No labor organization shail limit the
right of anv member thereot to institute ar action in any court. or in.
proceeding betore anv administrative agency. irrespective of whether or
not the labor organization or its officers are numed as defendants or re-
spondents inssuch action or proceeding, or the mght of anv member ot «
labor organization to appear as a witness in anv judicial, administrative. or
legislative proceding, of to petition anv legis:ature or to communicate with
any legislator: Provided. That anv such menber mav be required to ex:
haust reasonable hearing procedures | but not to exceed a tour month lapse
of time) within such organization, before instituting legai or administrative
procedinys against such organizations or anv officer thereot: And provided
further. That no interested emplover or emplover association shail directly
or indirectly finance. encourage, or participate in. except as 4a purty. any
such action, preceeding, appearance. or petition.

(5) Safeguards against improper disciplinary action. —No member ot
anv labor organization mav be fined. suspended. expelled. or othernvise
disciplined except tor nonpayment of dues bv such orgamiz*tion or by any
otficer thereof unless such inember has been A) served with written spe-
cific charges: ‘B) given a reasonable time to prepare his detense: C w-
forded a full and tair hearing.

(bh) Any provision of the constitution and bylaws of anv labor organiza-
tion which is inconsistent with the provisions of this section shail be of no
force or effect.

The Supreme Court has recentiv noted that the emphasis of § 411 is “on the
rights of union members to expression without fear of sanctions bv the union.
which in many instances could mean loss ot union membership and in turn loss
of livelihood.” Finn gan v. Leu, U.S. , 102 §.Ct. 1867. 1870 | 1982).

8. Subparagra’shs 12(a) (26), (27) and (28) were added to the compixini
upon application bv the plaintiff for leave to file an amended complaint pur:
suant to Fed.R.Civ. P. Sia), which application was granted on September 20.
1982.

acts are:
(1) the June 1961 murder of Anthony Castellitto, 2) the Au-
gust 1961 appointment of Salvatore Provenzano to the po-
sition of Trustee tormerly occupied bv Castellitto: 3) the

September 1961 appointment of Salvatore Briguylio—the
alleged murderer of Castellitto—to the the position ot Busi-
ness Agent; (4) the February 1963 appointment of Nunzio
Provenzano to the position of Business Agent tollowing his
Januarv 1963 conviction tor extortion; (5) the May 1963 mur-
der of Walter Glockner; (6) the 1964 appointment of Robert
A. Luizzi to the position of Business Agent in spite ot a
record of criminial convictions; (T) the May 1967 appoint-
ment of Luizzi to the position of Trustee; (5) the February
| 1969 appointment of Salvatore Briguglio to the position of
| Business Agent tollowing completion of a term of imprison-
ment for extortion; (9) the April 1969 appointment of Nunzio
Provenzano to the position of clerk following completion ot
a term of imprisonment tor extortion; (10) he 1970 appoint- .
ment of Nunzio Provenzano to the position of Business
Agent; (11) the 1971 appointment of Thomas Reynolds. Sr.
to the position of Business Agent in spite of a record of crim-
inal activitv; (12) the 1972 appointment ot Nunzio
Provenzano to the position of Fund Trustee; (13) the 1972
appointment of Salvatore Briguglio to the position of Fund
Trustee; (14) the allowance of frequent visitations bv
Armand Faugno and Thomas Andretta to the otfices ot Local
360; (15) the January 1963 appointment of Nunzio
Provenzano to the position of Secretarv-Treasurer; | 16) the
1973 appointment of Revnolds to the position ot Fund
Trustee; (17) the 1974 resumption of duties as Business
Agent by Salvatore Briguglio following completion of a term
of imprisonment for counterfeiting; (18) the 1974 appvint-
ment of Luizzi to the position of Fund Trustee: (19) the No-
vember 1975 apnointments of Anthony and Nunzio
Provenzano to the positions of Secretarvy-Treasurer and
President, respectively, in spite of a record of convictions
tor extortion; (20) the February 1977 appointment of

Cen rere

ee

4-36

Revnolds to the position ut Trustee: 21) the July 1975 ap-
pointment of Josephine Provenzano to the position ot
Secretarv-Treasurer tollowing Anthony Provenzano » con-
viction tor the Castellitto murder: 22) the July 19451 ap-
pointment ot Sulvatore Provenzano to the position ot
President following Nunzio Provenzano s torced resignation
as a condition of bail on a labor racketeering conviction. 23)
the Executive Board's failure to recover monies wronztully
converted by Anthony Provenzano: ‘24) the retention of
Marvin Zalk as Fund Administrator in spite of payments
accepted by him trom un insurance company representative
during the 1950's; (25) the retention of Ralph Torraco us the
Fund's independent certified public accountant in spite ot
his tederal indictment tor svstemutically overhilling the
Fund; (26) the extortion of contributions to the detense
funds of the Provenzanos and Michael Sciarra from union
members; (27) the 1981 appvintment of Luizzi to the posi-
tion of Business Agent: and ‘28) associations by some of the
detendants with Frank “Funzi” Tieri and Matteo Altredo
lanniello, reputed to be organized crime members.

Paragraph 12(b) of the complaint alleges that the
Provenzano Group. aided and abetted by various others of the
individual defendants. “unlawtullv did conduct and participate.
directly and indirectly. in the conduct of the affairs ot the Local
560 Enterprise through u pattern of racketeering activity in
violation of $1962/c) of the RICO Act. The’ ‘predicate acts” which
are alleged tc have constituted this pattern of racketeering uc-
tivity are set out as subparagraphs (1) through (5) or paragraph
12(b). These alleged acts are: (1) the extortion of $17,100 trom
Walter Dorn and his company ‘Dorn Transport. [nc. of Rens-
seluer, New York) in return tor “labor peace: (2) the wrongtul
conversion by defendant Anthony Provenzano. aided and abet-
ted bv successive defendant members ot the Local 560 Executive
Board, of approximately $223,785 ia Local 560 funds “bv means
of false and fraudulent pretenses. representations, ind promises.
and pursuant to a scheme and artifice to defraud... .:” (3) the
wrongtul receipt by Provenzano Group members of payments.

A- ds

loans and other things of value from = certain emplovers
Interocean Services. Inc. and Di-Jub Leasing, Inc.) in exchange
for “labor peace”. 4) the unlawful receipt by detendant Anthons
Provenzano. aided and abetted by Salvatore Briguglio. of certain
tees. kickbacks. gifts or things of value in the form ot certain
Florida real estate because ot. and with intent to be influenced
with respect to, his actions and decisions relating to the Benefit
Fund; and (3) the wrongful receipt by detendant Nunzio
Provenzano, together with Irving Cotler and others. as associates
of the Provenzano Group. ot “labor peace’ payments by certain
emplovers. specifically Pacific Intermountain Express Company

Mason and Dixon Lines. Inc., T.1.M.E - DC. Inc. and Helms
Express.

Finally. the initial portion of paragraph 12 of the complaint
contains the governments $1962(d) allegations. It charges that
detendants Anthony Provenzano, Nunzio Provenzano. Stephen
Andretta. Thomas Andretta. Gabriel Briguglio and others asso-
ciated with the Provenzano Group unlawtully did conspire
toghether to violate § 1962(b) and ‘c) with the end of infiltrating,
dominating and exploiting the Local 560 Enterprise.

In its dernand for reliet. the government requests: 1) that
the Provenzano Group be enjoined trom having any dealings.
directly or indirectly. with anv officer or emplovee ot the Local
360 Enterprise or of any labor organization or emplovee benefit
plan as defined in Title 29 about any matter which relates di-
rectly or indirectly to the business affairs of the Local 360 En-
terprise or other such labor organization or benefit plan: :2) that
all current Local 560 Executive Board members—Sualvatore
Provenzano, Joseph Sheridan. Josephine Provenzano. J.W
Dildine. Thomas Revnolds. Sr... Michael Sciarra and Stanles
Jaronko—be enjoined from acting in any offical capacity for or on
behalf of the Local 560 Enterprise: (3) that the court appvint one
or more trustees to discharge all duties and responsibilities of the
Executive Board of Local 560 and such other tasks as the court
may direct; (4) that at an apporpriate time the trustee be in-
structed to conduct, with the assistance of the Department of
Labor and the Department of Justice. a general election in order

A-35

to select officers tor the Executive Board ot Local 360—the elec-
tion to be structured in such a wav as to ensure that the nomi-
nation, primary and final selection processes will not be
vulnerable to torms of intimidation and will reflect the decision.
the government requests. of ut leust eightv percent of the mem-
bers who are eligible to vote; 3) that the court permanently en-
join all individual defendants herein trom having any future
dealings of anv nature whatsoever, directly or indirectly. with
anv officer. agent. representative or emplovee_ot the Local 560
Enterprise or any other Labor organization.

There have been a number ot proceedings in this matter
prior to trial which merit mention. First. a consent order was
entered on June 15, 1982 approving the terms of a stipulation ot
settlement between the plaintiff United States and defendant
Anthony Provenzano, inter alia prohibiting the latter trom “anv
torm of association with anv enterprise within the meaning ot
Section 1961 of Title 18 of the United States Code’. which en-
terprise seeks. directly or indirectly. to dominate. control. con-
duct or otherwise influence the affairs of anv labor organization
or any emplovee benefit plan (within the meaning of Title 29 ot
the United States Code).” A similar consent order was entered
on September 15, 1982 with regard to defendant Nunzio
Provenzano; and, on January 14. 1983, with regard to defendant
Thomas Andretta.

Finally. on November 1. 1982 I denied a motion brought bv
detendant Local 560 pursuant to Fed. R. Civ. P. 12/b) 6) to
dismiss paragraph 12(a) of the compliant for failure to state a
cause of action. United States vc. Local 560 350 F.
Supp. 3511 (D.N.J. 1982). Following a review of the legislative
history ot both the Hobbs Act. 18 U.S.C. 1951. and of the
LMRDA, and relving on United States cv. Boffa, 688 F. 2d 919
3d Cir. 1982), [ concluded that the rights guaranteed to union
members by the LMRDA’s Bill of Rights. 29 U.S.C. § 411. are
intangible rights which fall within the ambit of the Hobbs Act. I
further concluded that the Hebbs Act as construed in this man-
ner was not impliedly repealed by the enactment of the
LMRDA, and that conduct which regulated or proscribed bv the

A-39

LMRDA may also viloate RICOY. RICO. like the LMRDA. is. I
determined. legislation intended to supplement the panoply ot
remedies designed to reach racketeering. Id. at 524-23.

Bv order dated March 25. 1982. my former colleague the
Honorable H. Curtis Meanor directed that the plaintitf’s request
for preliminary and final injunctive reliet be merged pursuant to
Fed. R.Civ.P. 63ia) (2). and that the case proceed t final judge-
ment. On Mav 20. 1982. this matter was reassigned to me trom
Judge Meanor.

The non-jury trial of this case began on Janwry 23. 1943.
The trial encompassed fittv-one davs of testimony, lasting
through Mav 17. 1983, the testimony comprising nearly 9.000
pages in transcript form. I have caretullv considered the live tes-
timony. the exhibits and deposition testimony admitted at trial.
and the arguments of counsel. This memorandum constitutes the
court's decision, and includes the court's findings o tact and con-
clusion of law pursuant to Fed.R.Civ.P. 52(a).

L.
THE PARTIES

Defendant Local 560 is an unincorporated labor association
which was originally chartered on May 11. 1911 bv the Inter-
national Brotherhood of Teamsters. It has its offices at 707 Sum-
mit Avenue in Union Citv. New Jersev. As of May, 1982. it had
approximately LO.000 members emploved by approximately 423
companies in the metropolitan New Jersey - New York area. As
such it is a labor organization engaged in an industry affecting
interstate commerce within the meaning of Section 402 of Title
29 of the United States Code.

Under its constitution. seven elective officers are charged
with managing the dav to dav affairs of Local 560. These officers

9. | specifically determined that 3 330 of the LMRDA does not prolubit
the same conduct prohibited under the Hobbs Act. Since allegations of Hobbs
Act violations serve as predicate offenses in this action. [ fund no merit in
defendant's argument that paragraph 12(a) in essence made § 530 a predicate
crime under RICO in violation of that statute's express deinition of “racke-
teering activity’. 350 F Supp. at 324.

A-40

are: a president. a vice-president. recording secretary. secretary-
treasurer: and three trustees. These seven officers together con-
stitute Local 3560's Executive Board. This Executive Board 1s
generally authorized and empowered to conduct and manage the
affairs of the organization between membership meetings.

Detendant Trucking Emplovees of North Jersey Welture
Fund, Inc. and its Pension Account are located in Local 360 5
building in Union Citv. The tunds were and are today welfare
and pension benefit plans within the meaning of Section 1002 otf
Title 29 of the United States C.xle. As such thev are subject to
the provisions of the Welfare and Pension Plans Disclosure Act
prior to approximately September 2. 1974) and the Emplovee
Retirement Income Security Act ‘after approximately Septeim-
ber 2, 1974).

As noted previously. two other benefit plan entities were
merged into the Funds during May of 1977. These were tormerly
known as the Trucking Emplovees of Passaic and Bergen Coun-

ties Welfare Fund and the Trucking Emplovees of Passaic and
~ Bergen Counties Pension Fund. Both of these benefit plans were
subject to the provision of the Welfare and Pension Plans Dis-
closure Act at the time of their merger into the Funds.

The Funds are controlled by a governing body which is com-
posed of four trustees appointed bv the Executive Board ot Local
360 and four trustees appointed by two emplover associations
whose member companies have collective bargaining agree-
ments with Local 560. The current emplovee trustees include
defendant Salvatore Provenzano. defendant Stanlev Jaronko.
and defendant Joseph Sheridan.”

The Local 560 Otficers and Emplovees Severance Pay Plan
is also operated out of Local 560’s offices. It is an emplovee ben-
efit plan within the meaning of Section 1002 of Title 29 ot the
United States Code in that it provides severance pay benefits to
the emplovees of Local 560. The current trustees of the Plan ure
Salvatore Frovenzano and Josephine Provenzano.

10. Thomas Reynolds. Sr. was a trustee of the Fund us of the time this
litigation commenced und tor a penod atter the tnal began. but has since re-
signed.

A-41

A brief description of each of the remaining nine individual
defendants may be usetul at this point. First. Salvatore “Sam
Provenzano has been the President of Local 360 since approxi-
mately July of 1981. when the Executive Board appointed him to
that position. '! Prior to that time he had been emploved by Local
560 as a Business Agent between approximately November 10.
1959 and August 8, 1961: as a Trustee between approximately
August 8, 1961 and November oi 1965. and again between ap-
proximately January and May ot 1966: as President between ap-
proximately May of 1966 and November of 1975. and as the
Vice-President between approximately December of 1975 and
July of 1981.

Joseph Sheridan has been the Vice-President of Local 560
since approximately July of 1981, when the Executive Board ap-
pointed him to that position. Prior to that time he had been a
Business Agent between approximately July 7, 1972 and Sep-
tember 1, 1978, and thereafter a Trustee between appoximatelyv
September 1, 1978 and Julv of 1981.

Josephine Provenzano has been the Secretary-
Treasurer of Local 560 since approximately June of 1978. when
the Executive Board appointed her to that position. Prior to that
time, she had been emploved by Local 560 as an office worker
from 1976 until the time of her appointment. Josephine
Provenzano is the daughter of detendant Anthony Provanzano
and the niece of defendants Salvatore and Nunzio Provenzano.

J.W. Dildine has been the Recording Secretary of Local 560
since approximately 1965, when the Executive Board appointed
him to that poistion. Prior to that time he had been emploved by
Local 560 as a Business Agent between approximately 1963 and
1968:

Thomas Revnolds, Sr. has been a Trustee of Local 560 since
February 9, 1977. Before that time, he was emploved by Local -
360 as a Business Agent Between September 24, 1970 and Feb-
ruarv 9, 1977. He is the brother-in-law of defendant Nunzio

11. This appointment was presumably made pursuant to the Executive
Board's authority to Ail otficer vacancies which occur dunny the term of an
office.

A-42

Provenzano and the father of former Business Agent Andrew
Reynolds.

Michael Sciarra has been a Trustee of Local 360 since May
28, 1981. Prior to that time he was emploved bv Local 360 as a
Business Agent Between Julv 7. 1972 and September 30. 1976.
and again between December of 1977 and May 2S, 1941. Sciarra
has been a member of Local 3560 since approximutely 1954.

Stanley Jaronko has been a Trustee ot Local 360 since July
13, 1981. Betoe that time, he served Local 560 in the capacity of
Business Agent between December 12. 1977 and Februarv 19.
1981, and as a Trustee between Februarv 19 and May 25, 1951.

Stephen Andretta. who testified at trial pursuant to a grant
of use immunity under 15 U.S.C $$ 6002 and 6003, was a Busi-
ness Agent tor Local 560 between approximately August of 1973
and October of 1976. His membership in Local 560 dates from
the early 1950's, and he held the position of shop steward tor
Local 360 ut = =Eazor Express Co. between the mid-1960's and
August of 1973, and again between approximately October of
1976 and 1980.

The evidence at trial indicated that Stephen Andretta had
known Salvatore Briguylio for over twenty vears as of the early
1970's. Either through Salvatore Briguglio or his brother
Thomas. Stephen Andretta met Armand Faugno sometime dur-
ing the latter 1960's. Around 1971. notwithstanding his position
as a shop steward with Local 560, Stephen Andretta had an own-
ership interest in West End Trucking Company. which was con-
trolled at least in part by Armand Faugno. Further, during the
period between approximately 1971 and late 1972. Stephen
Andretta and Salvatore Briguylio would not infrequently visit
Armand Faugno at the latter's place ot business in Jersey Citv.
New Jersev. During the earlv 1970's. Stephen Andretta also
knew Frederick Salvatore Furino. and was triendlv with Ralph
Pellechia and Ralph Michael Picardo.

On February 22, 1979, Stephen Andretta was indicted in
the District of New Jersey, along with Anthony Provenzano.
Thomas Andretta, Gabriel Briguglio and Ralph Pelleccia. on
RICO charges (specifically 18 U.S.C. § 1962(c) and (d) stemming

ony

A-45

inter alia trom the demand ter and receipt of “labor peace” pay-
ments trom trucking companies which serviced Seatrain Lines
between 1969 and 1977 \Seatrain Labor Peace Pavotfs). On July
10. 1979. tollowing his conviction. Stephen Andretta was sen-
tenced to a ten-vear term of imprisonment. which he is currently
serving. See United States v. Provenzano, 620 F.2d 985, 959 3d
Cir. 1980).

Gabriel Briguglio was a member and officer of Local 54 of
the International Brotherhood of Teamsters. which has its offices
at 1224 Anderson Avenue in Fort Lee. New Jersey. until March
31. 1980. Local $4 merged with Local 560 in May of 1950. '

Gabriel Bruguglio was indicted on February 22, 1979. in the
District of New Jersey, along with Anthony Provenzano and oth-
ers, in the Seatrain Labor Peace Pavotts cuse. On Mav 253. 1979.
he was convicted of those charges, and on July 10, 1979 he was
sentenced to seven vears of imprisonment.United States v.
Provenzano, 620 F. 2d 985, 959 (3d Cir. 1950).

As to the three individual defendants who have entered into
consent judgments in this matter. Anthony Provenzano was em-
ploved by Local 560 as a Business Agent between approximately
1948 and 1958, as the President between approximately 1955
and May of 1966, and as Secretarv-Treasurer between Novem- ~
ber 24, 1975 and June of 1975.

Anthony “Tony Pro” Provenzano s history is a long one. On
November 15, 1960 he was indicted in the District of New Jerseys
on one count of Hobbs Act Extortion (15 U.S.C. § 1951) relating
to the demand and receipt of what is commonly known as “labor
peace pavotts from the Dorn Transportation Company between
1952 and 1959. On July 12. 1963. having been convicted on this
count, Anthony Provenzano was sentenced to a term ot seven
vears. Between approximately May of 1966 and 1970 he was in-
carcerated on that sentence.

During 1962, Anthony Provenzano was indicted again in the
District of New Jersey for Taft-Hartley violations \28 U.S.C. §

12. It should be noted that Gabriel Briguglio has as of vet not become a
member of Local 560 by virtue of or following the merger of these two Locals.

A-44

186) relating to the wrongtul receipt of a house trom Eastern
Freightwavs Company. These charges were. however. cis-
missed during 1967. .

In 1975, Anthony Provenzano was indicted in the Southern
District of New York tor conspiracy to violate the anti-kickback
statute (18 U.S.C. $$ 371. 1954) relating to a proposed loan trom
the Utica Teamsters Benefit Fund tor the renovation of the
Woodstock Hotel. During July of 1978 he was convicted of these
charges and sentenced to a tour vear term of imprisonment.

On June 23, 1976, Provenzano was indicted in Ulster
County, New York. along with Salvatore Briguylio and Harold
“K.O.” Konigsberg, on charges of conspiracy and murder | pur-
suant to New York Penal Law § 350-A and § 1044) relating to the
1961 death of Anthony Castellitto. On June 14. 1975. he was
convicted on the murder count, while the conspiracy to commit
murder count was dismissed. On June 21, 1978, Anthony
Provenzano was sentenced to lite imprisonment.

Finally, on February 22. 1979. Anthony Provenzano was
indicted in the District of New Jersev. along with Gabriel
Briguylio, Stephen and Thomas Andretta and Ralph Pellecchia
on RICO charges in the Seatrain Labor Peace Pavotts case. On
Mav 25, 1977, he was convicted of these charges. and. on July
10, 1979, he was sentenced to a twentv-veur term of imprison-
ment and remanded. He remains incarcerated on that conviction
todav. See United States cv. Provenzano, 605 F.2d $5 3d Cir.
1979).

Nunzio Provenzano, the brother of Anthony and Salvatore
Provenzano. was emploved by Local 560 as a Business Agent
between approximately 1963 and August 6. 1966, as a clerk be-
tween approximately 1969 and 1970, again as a Business Agent
between approximately 1970 and January 25, 1973. as Secretary-
Treasurer between approximately January 25, 1973 and Novem-
ber 24, 1975, and as President between approximately
November 24, 1975 and Julv of 1981.

On December 26, 1961, Nunzio Provenzano was indicted in
New York County, New York, along with Salvatore Briguylio and
a third defendant. on charges of conspiracy and Attempted
Grand Larceny |New York Penal Law § 360 and 1294) Howing

4-45

trom a scheme to demand what might be characterized as “labor
peace” payments from the Braun Company and Hubert J.
Braun, Jr. during December of 1961 | Braun Pavotf Demand). On
January 29, 1963, he was convicted of attempted grand larceny.
and, on March 5. 1963, he was sentenced to a term of two to four
vears. He served this sentence in New York between approxi-
mately August of 1966 and February of 1969.

On September 4. 1980, Nunzio Provenzano was indicted in
the District of New Jersey, along with Irving Cotler. Salvatore
Provenzano, and Michael Sciarra, for RICO violations ‘specifi-
callv 18 U.S.C. § 1962 ic) and :d)) stemming trom the wrongtul
demand and receipt of “labor peace’ payments trom tour truck-
ing companies between 1971 and 1980. a series of incidents otten
reterred to as the “Citv-Man Labor Peace Pavoltls.” On Mav 5.
1981, Nunzio Provenzano was convicted on these charges. and.
on July 7, 1981, he was sentenced to a ten-vear term of impris-
onment. He is presently incarcerated on this conviction.

Finally, Thomas Andretta, the brother of Stephen Andretta.
has been a member of Local 560 during several periods since
1955, including trom approximately August 30. 1955 through
November 31, 1956: trom October 29, 1959 through January 15.
1960; trom January 10, 1962 through November 29, 1965: and
from February 27, 1978 through July of 1979.

On March 31, 1967. Thomas Andretta was indicted in
Middlesex County, New Jersev, along with Armand Faugno. tor
having used threats to injure in the collection of a loan between
March 13 and 23, 1967. in violation of N.J.S.A. 2A:105-4

Middlesex County Loansharking Transaction). See State cv.
Andretta, 61 N.J. 344, 545 (1972). On Mav 17,1973, Thomas
Andretta pleaded guilty to that charge. On July 10. 1973, he was
sentenced to serve from one to two and a half vears in prison.

During early 1968, while free on bail in the Middlesex
County Loansharking Transaction case, Thomas Andretta was in-
dicted in the District of New Jersev, along with Frederick
Salvatore Furino, on charges of Thett from Interstate Shipment.
in violation of 18 U.S.C. § 659. relating to the theft of Skil Tools
at the Canny Trucking terminal during Januarv of 1968 (Skil
Tools theft). Following his guilty plea in that case he was, on or

A-46

about April 17, 1969, sentenced to a one vear term of unpris-
onment and remanded.

On July 22, 1971, Thomas Andretta was indicted in the Dis-
trict of New Jersev, along with Salvatore Briguylio. Armand
Faugno and three others, on counterteiting charges under 15
U.S.C. § 371. 472 and 474 ‘Counterteiting case’. He later
pleaded guiltv and, on July 10, 1973, was sentenced to tourteen
months of imprisonment.

During the early 1970's, except when he was incarcerated.
Thomas Andretta, along with Ralph Picardo. was a regular and
not infrequent visitor to the Local 560 offices. where he and
Ralph Picardo were hosted bv Salvatore Briguyglio. During
roughly this period—between approximately 1970 and late 1972.
Thomas Andretta was apparently emploved by Armand Faugno.

On February 22, 1979, Thomas Andretta was indicted in the
District of New Jersey, along with Anthony Provenzano and oth-
ers. in the Seatrain Labor Peace Pavoffs case. Following his con-
viction in that matter. he was sentenced on Julv 10, 1979 to a
twenty-vear term of imprisonment. United States ec
Provenzano, 620 F. 2d 985, 989 (3d Cir. 1950). He is currently
incarcerated on this sentence.

The other individuals who figure in this matter. but who are
not mamed as defendants, include Robert A. Luizzi, who has
been a Business Agent for Local 560 since September ot 1975.
Pnor to that time he was emploved by the Local as a clerk be-
tween approximately 1960 and 1963, as a Business Agent be-
tween 1964 and 1967, and as a Trustee between Mav 15. 1967
and November of 1980. Luizzi also held the position ot Trustee
tor the Funds from March 12, 1974 until November of 1950.

Salvatore Briguglio had been a member of Local 560 since
the 1950’s and was emploved bv it as a Business Agent trom
September of 1961 to August 5, 1966: from April 25, 1969 to June
of 1973; and again from February of 1974 until his death on
March 21, 1978. Salvatore Briguylio also held the position ot
Trustee of the Passaic and Bergen Funds from 1972 until June ot
1973 and from early 1974 until January 25, 1975.

On December 26, 1961, Salvatore Briguglio was indicted in
New York County, New York, along with Nunzio Provenzano on

A-47

the Braun Pavotf Demand scheme. He was convicted of At-
tempted Grand Larceny and was incarcerated in New York be-
tween approximately August of 1966 and February of 1969 on
that conviction.

On July 22, 1971. Salvatore Briguglio was indicted in the
District of New Jersey. along with Thomas Andretta, Armand
Faugano and three others. in the counterteiting case. Following
his plea of guilty on these charges, he was sentenced on July LO.
1973 to a term of tourteen months of imprisonment. Salvatore
Briguglio was incarcerated on this sentence until approximately
February of 1974.

Between the late 1960's and the mid-1970's. except during
the periods when he was incarcerated. Salvatore Briguylio otten
socialized at the Chateau Renaissance Restaurant in Hudson
County, New Jersev. a place also trequented by Stephen and
Thomas Andretta. Armand Faugno, Frederick Salvatore Furino
and Ralph Michael Picardo. Salvatore Briguglio’s involvment
with Picardo and the Provenzano Group is also exemplied by the
tact that during the period of the Seatrain payoffs, Salvatore
Briguglio promoted the interests of Picardo bv persuading
Salvatore Provenzano to facilitate a meeting between Picardo
and Thomas Durkin (Seatrain’s attornev) so that Picardo could
drum up additional business for Picardo’s trucking company.

On June 23, 1976, Salvatore Briguglio was indicted in Ulster
County. New York, along with Anthony Provenzano and Harold
Konigsberg tor the 1961 Castallitto murder. On March 21. 197S.
while under indictment in that case, Salvatore Briguylio was shot
to death on Viulberrv Street in New York. New York.

Armand Faugno was indicted on March 31. 1967. along with
Thomas Andretta, in the Middlesex County Loansharking Trans-
action case. State v. Andretta, 61 N.J. 544, 545 (1972). On July
22, 1971, Faugno was indicted in the District of New Jersev.
along with Salvatore Briguglio, Thomas Andretta and three oth-

ers, in the Counterteiting cause.) During December ot 1972.

13. While the exhibits relating to these Ovo indictments may have inad-
vertently or incorrectly been ruled inadmissible during the trial in this matter.
Salvatore Provenzano 's testimony provides an alternative basis tor inv findings
ot fact or these matters.

An4S

while under indictment in both of these cases. Armand Faugno
“disappeared. ”

Ralph Michael! Picardo was a member of Local 560. as weil
as being the principal operating officer of several trucking com-
panies, including Lift Van Transport. Picardo was a triend and
associate of Stephen Andretta and had an affiliation with Seutrain
Lines.

On Februarv 22. 1979. Ralph Pellacchia was indicted. along
with Anthony Provenzano and others, in the Seutrain case. On
April 26, 1979, he pleated guilty to related tax charges contained
in that indictment. On Juiv 2, 1979. he was sentenced to two and
half vears of imprisonment.

Frederick Salvatore Furino was. during the late 1960's and
early 1970's, a friend and associate of Stephen Andretta. Thomas
Andretta. Salvatore Briguglio, and Michael Sciarra. and knew
Ralph Picardo. In March of 1968, Furino was indicted in the
District of New Jersev in the Skil Tools Case. Later, during the
latter part of the 1970's, Furino operated a trucking company
which provided non-union labor to the Canny Trucking opera-
tion which was under contract to Local 560. On June 11. 1952.
the bodv of Frederick Salvatore Furino was recovered. The
crime has never been solved.

Finally, Salvatore Sinno plaved a prominent role at trial as
one of the government's chiet witnesses. Sinno, a self-described
criminal, was an early assoc:ate of the Provenzanos and their
triends.

CREDIBILITY FINDINGS

Salvatore (Sam) Provenzano

During the course of his direct testimony Sulvatore Sinno
was asked about Salvatore Provenzano:

Q. Did vou ever engage in anv illegal activity with
Salvatore Provenzano?

A. No.

Q. Did vou ever talk to Salvatore Provenzano about illegal
activity?

A-49

A. No.

Q. Mr. Sinno. did vou ever receive any instruction trom
Anthony Provenzano about what vou could or should talk to
Salvatore Provenzano about?

A. Yeah. thev—he never wanted Salvatore Provenzano. to
get involved in anvthing illegal. We discussed that many a
times, ves.

Q. Can vou tell us specifically what Mr. Anthons
Provenzano s instructions to vou were“

A. He wanted to keep him more or less clean. He didn t
want to get him involved in anv wav or other in illegal ac-
tivities.

Q. Did he give vou the reason that. as vou put it. he

x
wanted to keep Salvatore Provenzano clean?

A. Well, I imagine—
MR. WEISSBARD: Objection. '

THE COURT: Dont imagine. Objection sustained. Answer
the question.

A. Yes. He mentioned that quite often. in regard. he
didn't want Salvatore Provenzano with any kind of a record
or anvthing, but, tor the Unions sake.

Sam Provenzano presently is an International Vice Presi-

dent of the Teamsters Union, President of Joint Council #73.
and President of Local 3560. He thus wields great power on a
national as well as loca! level.

He is intelligent, affable and likeable. Had Sam Provenzano

decided to shed the company he has kept tor at least 25 vears.
there is little doubt in my mind that he would occupy a prom-
inent place on labor's scene todav.

The evidence is highlv persuasive that from the late 30's on

into the 70's, Anthony (Tony Pro) Provenzano, ran this union
with an iron hand whe?! er in or out of prison or office. Sam and

|

A-50

Nunzio plaved musical chairs in minding the store tor Tony to
satistv the technical requirements ot the law.

At some point in the 70's Sam came into his own. With
power at his fingertips, he ran the show and still does. Did he
stav “more or less” clean us Sinno had testified? He cid not. Most
ot the time he helped to steer the ship the wav Tony had wanted
it and made sure the same crew remained on board.

I listened in amazement to him persistently proclaim his
belief in the innocence ot his brothers and other members ot this
criminal syndicate with respect to various crimes that thev had
been convicted of or pled guilty to.

Was he naive, blind or deaf? No. Salvatore Provenzano. in
my judgement, knows the truth and is oblivious to it.

Whv? A revealing answer was provided on April 27. 1953
when he was asked on cross examination:

Q. Today. given all that has happened with Local 560 and
all the indictments and this civil complaint and everything
like that. if another indictment came down like the Seatrain
indictment. would vou. today, hink it a prudent thing as
the president of the union to make an inquirv to trv and find
out what the circumstances were with respect to the union
contract and the alleged violation of the contract?

A. To answer vour question. ves. If I would have done it
bv reading the indictment is something else. I think it is
prudent. I thought I answered that before, that I started to
check out what was going on.

Q. Okay.

A. [never denied that. What I am saving is I didn’t bother
to read the indictments. But I was interested in what took
place.

Q. All right, sir.

Now, I think I understand vou. You were interested then—-
vou were interested at the time of Seatrain in what was go-
ing on?

A-51

A. Yes. Because mv brother was involved. and [ couldn t
see how he was involved in the situation. That was my main
concern.

Q. Your brother?
A. Yes. sir?
Q. As opposed to the union?

A. He comes first. I will say that.
emphasis supplied)

He still does. For Sam Provenzano inherited a legacy ot
corruption which has been preserved by him to this very day. In
speaking ot Tony in partial response to my question he said: “He
would never do anything to hurt this membership. ”

The record is otherwise.

JOSEPHINE PROVENZANO

Miss Provenzano, daughter of Anthony Provenzano. has
been the Secretarv-Treasurer of Local 360 since 1975 when she
was elected to that office at the age of 23 to succeed her tather
who had been convicted of murder. She presently earns $64,000
per vear plus perks.

She has an engaging personalitv and has no illusions as to
why she was appointed. She said:

A... . what motivated them to do that. [ have to sav it Is
because — not onlv that [ was a Provenzano. that counts tor
weight, but [ was Tonv’s daughter. See. there is only one
Tony to them. Now, there was a big issue in this case as to
what members believe. what thev read in papers or dont
thev believe, were they inHuenced bv it? I have to tell vou
the truth. [ dont think they would have cared if it was true
or not true. Because they know what he did tor them. To
them, in their minds, what did the press ever do tor me?
What did the press ever do for me? What did the govern-
ment ever do for me? They take my taxes and thev go on

A-52

about a whole plattorm of things they disagree with the zov-
ernment. Look what Tony did tor me. He gave me pen-
sions, eveulasses. he gave me dental. I have welfare
payments. He saw me on the street and took me in the bar
We had a drink. He remembered inv wite's name. He asked
me how my daughter was. that had the concussion in the
hospital. There is something about mv father. sir. — not
that vou cant get mad at him. You can get mad at him.
There is something about the man. [ mean vou cant un-
derstand until vou're like one of the guvs trom 360. They
just — | would have never believed it. it I wasn't in those
meetings and I didn't hear those people go wild about him.
I mean thev liked him. but it is just incredible to me. It is
just absolutely incredible to me. And to them. [ am Tony s
daughter... .

There can be, to the members cf Local 3560. no higher
recommendation in this entire world And if I don't believe
that, well, [ wouldn't be here right now because I wouldn't
be a member of the executive board of Local 360.

[t is — I don't know how to put it into words. It is more
like an emotion vou feel. He has an uncanny abilitv of mak-
ing people relax. and making them know he cares. He is not
a big deal. He is not verv well-educated. book-wise. He
might have gone to the tourth or fifth grade.

But vou give him a contract, he can read it. [ dont
know how he can read it. He just can. You put him in a room
with 300 truck drivers. Nobodv in this world is going to talk
to them that thev will understand more than mv tather. You
put him in a room with ladies, and vou never see him. Mv
girlfriends — when my father — there is articles in the pa-
pers or — thev crv. They call me on the phone in teurs.
‘How could thev sav that about vour father?’

I tell them, “Hey, listen, evervone is entitled to their

opinion. You know better. Don't crv. Don't zet upset. Don't
read it. That's all.’

A-55

He just commands such love and respect. and admira-
tion and lovaltv. not only from his tamily. but trom the
members ot Local 560. Anvone that comes into contact with
him. I dont know what else to sav. vour Honor. [ mean. |
don't even know it I expressed mvself properly or ade-
quately, but that is just how I teel. [ am so proud to be my
father’s daughter. [Emphasis supplied).

Whatever experience Miss Provenzano lacks. she makes vip
in candor. Her understandable love tor her tather transcends
evervthing else.

STANLEY JARONKO

As pointed out previously, Mr. Jaronko has been a member
ot the Local since 1949 and a business agent since 1977. He was
a shop steward tor 17 vears. He is a trustee of the union and a
union representative to the Trucking Emplovees of North Jersey
Fund (TENJ).

He was asked:

Q. Have vou. to the best of vour knowledge. ever done
anvthing that a member might think was designed to in-
timidate him from coming to meetings or speaking out his
mind?

A. Nope, never did it. Never will.

He was asked:

Q. Mr. Jaronko, if Nunzio Provenzano was able to come
back to the union tomorrow. vou as one member ot the Ex-
ecutive Board would vote him on in a minute. I take it.
right?

A. Yeah. I believe there is a law that he can come back.
But after he does what is he supposed to do? Yes. I would.

Q. And if that law didn't exist and he could come back
tomorrow, you would take him back tomorrow. right?

A. Yes. And | believe the members will. too.

A-54

Q. And vou would do the same thing with Anthonys
Provenzano, assuming he could come back tomorrow. vou
would take him back tomorrow?

A. Yes.

With respect to the Maislin Terminal incident involving Lo-
cal 360 member August Muller. described infra. [ find Mr.
Jaronko’s testimony unconvineing and his version of the story
unbelivable.

A careful review of Mr. Jaronko’s testimony reveals that.
with one exception, he steadfastly retused to accept a verdict ot
guiltv involving the Provenzanos. His rationale — thev were
convicted on the testimony of an informer.

Overall, I found Mr. Jaronko to be fiercely loval to the
Provenzanos, completely indifterent to the historv of criminal
activity on the part of various individuals, including Anthony and
Nunzio Provenzano. Mr. Jaronkos tealty to the present regime
is steadfast bevond question. his testimony left much to be de-
sired.

J.W. DILDINE

A business agent of Local 560 and Recording Secretary since
1968. Mr. Dildine inipressed me as an intelligent individual who
in restrospect “sold himself to the devil” thventv vears ago when
he agreed to come to work tor Anthony Provenzano as a business
agent.

He testified in an extremely lucid manner when contronted
with the sordid historv of the local and its leaders. He was calm
and for a time quite impressive and persuasive.

He testified as follows:

THE COURT: What is vour feeling regarding all these in-
volvements affecting Vir. Nunzio Provenzano?

THE WITNESS: Mv personal feeling is that I would have
to judge Nunzio Provenzano as well as Salvatore
Provenzano and Anthony ?rovenzano in my personul con-
tact with them and mv personal relationship with them.

THE COURT: Yes. sir

THE WITNESS: It has alwavs been one of a strict busi-
ness, from the otfice. Over the vears we had grown. [ guess.
close because of our business association. within that otfice

THE COURT: Yes. sir.
THE WITNESS: Outside ot that otfce. we did no. how

would I put it. personal contact where we socialized or
whatever. I came on the scene as a, as. the expresssion. a
new kid on the block. I had to prove myself. I came in
through the appointment of Mr. Anthony Provanzano. | dug
in. I worked hard. I tried to repay that appointment bv ded-
ication and hard work. So mv association with these gen-
tlemen were always above board.

Thev never asked me to be involved in anv kind of
skullduggerv, nor was I ever aware that there was any skull-
duggerv.

[t was strictly, in that office, as even today, these peo-
ple worked verv hard. They put in a lot of hours, and trey
really tried to do the job tor the membership.

So in answer to vour question, vour Honor. [ dont
know that there has ever been a time that I. and I have had
many conversions with Anthony as well as Nunzio. when he
was the President. and even today, Salvatore. and their
main concern was and is today getting the job done. and
bevond that, I don't know what more I can sav.

THE COURT: All right. Would it be fair then to conclude
that. insotar as Nunzio is concerned. Nunzio Provenzano.
that vou don't believe he was ever involved in anv skull-
duggery, to use vour expression?

THE WITNESS: To mv knowledge. no. sir.
THE COURT: And vou believe in his innocence?
THE WITNESS: Yes, sir.

THE COURT: Okav. Now—

A-56

THE WITNESS: That was in the June thing. The other
one, that is another mutter.

THE COURT. Well. I presume that vour opinion is the
same with respect to the union conviction?

THE WITNESS: Yes. sir.

THE COURT. The most recent conviction?

THE WITNESS: Yes. sir.

THE COURT: All right. You were here when the ygov-

ernment produced this Protessor Summers, were vou not?
THE WITNESS: Yes. sir.

THE COURT: Were vou in the room?

THE WITNESS: Ye

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1534%3A2. Public record. Not legal advice.