McGough v. Bohne

In the Matter of James McGough v. Terry Bohne, Juan Hernandez, Reggie Robinson, Chuck Auriemma, Rufus Chapman, Martin Gonzales, Yahn Mann, Richard Caravetta, Ramon Zarate, Leonard White, Alonzo Wimberly, Chris Maxwell, Dave Buccini

Local Union 2, Brookfield, IL

Laborers’ International Union of North America Independent Hearing Officer

Docket No.: 03-04TB

Decided: October 1, 2003

ORDER AND MEMORANDUM

PROCEDURAL HISTORY

This Order and Memorandum addresses trial board charges filed by James McGough (McGough) against certain current and former members of the Executive Board of Laborers’ International Union of North America (LIUNA) Local Union 2 (Local 2), and other members of Local 2.

McGough originally filed omnibus charges with General Executive Board (GEB) Attorney Luskin in May 2002. The charges were subsequently amended and refiled on November 12, 2002. The General President referred the charges to the Independent Hearing Officer (IHO) for a trial board hearing because the Charged Parties were disqualified to serve on the Trial Board. See letter from Terence M. O’Sullivan, General President, to Peter F. Vaira, Independent Hearing Officer, of 1/24/03 (IHO Dkt. tab 2).

The IHO ruled that McGough’s trial board charges did not meet the specificity requirements of the Labor Management Reporting and Disclosure Act (LMRDA) for disciplinary charges filed against a union member. See IHO Order of January 30, 2003 (IHO Dkt. tab 3). Given the number of charges involved, on February 13, 2003, the IHO held a pretrial hearing for demonstration of probable cause for the 100 charges filed. At the hearing, the IHO reviewed each charge with McGough for sufficient particularity and probable cause. The Charged Parties were permitted to attend the hearing and make arguments regarding McGough’s probable cause presentation. The IHO dismissed all charges against all parties except for Charges 2, 3, 9-12, 32, 40, 49-51, 78, and 86. See IHO Order of February 25, 2003 attached hereto as Appendix A for charge-by-charge rulings.

On March 6, 2003, the IHO held a hearing to determine whether Charges 2, 3, 9-12, 32, 40, 49-51, 78, and 86 should be dismissed as time-barred pursuant to

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Article XII, Section 1, of the Uniform Local Union Constitution. The Charged Parties were permitted to attend the hearing and make arguments regarding McGough’s presentation of good cause. For the reasons detailed in his March 12, 2003 Order, attached hereto as Appendix B, the IHO found that McGough had shown just cause for the timing of his charges. However, the IHO dismissed Charges 11, 32, and 40 for failure to state an offense. See Appendix B.

The IHO held a hearing on the merits of the remaining viable charges (Charges 2, 3, 9, 10, 12, 49-51, 78, and 86) in Chicago, Illinois, on May 16, 2003. Parties present were McGough, Gonzales, Hernandez, and Zarate. Randy Dalton, Supervisor of Local 2 and Terrence M. Healy, LIUNA Vice President and Regional Manager were also present. John A. Burke (Burke), a member of Local 2, attended the hearing as a witness for McGough. Former Local 2 employee Bridget Gaskill¹ gave testimony via telephone. Also present observing the proceedings was Richard Kuczkowski, a member and then future President and Business Manager of Local 2.

Charged Parties

McGough initially brought charges against Terry Bohne (President), Juan Hernandez (Vice President), Reggie Robinson (Secretary-Treasurer), Chuck Auriemma (Recording Secretary), Rufus Chapman (Executive Board), Martin Gonzales (Executive Board), Yahn Mann (Executive Board), Richard Caravetta (Business Manager), Ramon Zarate (member), Leonard White (Sergeant-at-Arms), Alonzo Wimberly (Auditor), Chris Maxwell (Auditor), and Dave Buccini (Auditor).

Prior to any of the hearings in this matter, the GEB Attorney entered into a settlement agreement with Bohne, Robinson, and Caravetta. The sealed settlement agreement included a provision that Bohne, Robinson, and Caravetta would leave office at Local 2 and would not be subject to subsequent disciplinary proceedings. Therefore, the IHO dismissed the charges against those individuals. Charged parties Wimberley, Buccini, and Maxwell were Local 2’s auditors. As discussed fully in his March 12, 2003 Order attached hereto as Appendix B, the IHO found that the charges were not applicable to the Local 2 auditors, therefore he dismissed the charges against Wimberly, Buccini, and Maxell. The IHO heard Charges 2, 3, 9, 10, 12, 49-51, 78, and 86 against Chapman, Gonzales, Hernandez, and Zarate.

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¹Bridget Gaskill now goes by the name of Bridget Lane (Lane).

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FINDINGS OF FACT

1. Local 2 was placed into trusteeship on May 24, 1999. (McGough Tr. 399). Following the trusteeship, a special election was held on March 10, 2001. (McGough Tr. 340).

2. McGough acted as a campaign manager for the Coalition Slate of which Burke was the candidate for Business Manager. (McGough Tr. 340). Opposing Burke for the position of Business Manager was Caravetta. Id. The Caravetta slate, including members of the current Executive Board won the election. (McGough Tr. 340).

3. McGough testified that as a result of statements he made during the election campaign, there was some animus between him and members of the Caravetta slate. (McGough Tr. 340). McGough also testified that he felt that there was animus towards him resulting from his website on which he criticizes Local 2 and LIUNA policies and practices. (McGough Tr. 341).

4. Lane is the former clerical secretary of Local 2. (LANE Tr. 393). Lane began working for Local 2 in approximately January 2001. (LANE Tr. 394). Lane testified at the hearing via telephone from an undisclosed location in Illinois. (LANE Tr. 392).

5. Lane testified that she was not present at Executive Board meetings. (LANE Tr. 399). However, Lane attended membership meetings and typed all membership meeting minutes as well as Executive Board meeting minutes for 2001. (LANE Tr. 399). Lane testified that she had been ordered by Bohne to take her own notes at the general membership meeting to supplement those taken by Auriemma who did not take accurate notes. (LANE Tr. 401, 403-04). She would then type the general membership meeting notes encompassing both her and Auriemma’s handwritten notes and give them to Auriemma for his signature (LANE Tr. 403).

Remodeling of Local Union 2 ( Charges 2 and 86 Chapman and Gonzales )

6. The IHO heard testimony regarding two charges brought by McGough concerning remodeling of Local 2: Charge 2 relating to use of nonunion labor and Charge 86 relating to failure to obtain competitive bids and the failure to inform members that the Executive Board had sought permission from the Inspector General for the remodeling expenditures.

7. The remodeling at Local 2 took place from approximately September 2001 to May 2002. (MCGOUGH Tr. 481).

8. Lane testified that the remodeling decisions were made by Caravetta and approved by the Executive Board through an informal telephone vote. (LANE Tr. 446-47). Lane testified that not all Executive Board members were reached

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but it was a practice of Local 2 that if a majority was reached it was deemed sufficient. (LANE Tr. 447). Lane did not contact the members herself but relied upon Bohne and Robinson telling her they had spoken with a majority of the Executive Board. She acknowledged she did not personally know if they had spoken to individual Executive Board members, but was just told the board members had approved it. (LANE Tr. 447-48).

9. Nevertheless, there are sufficient indicia that the Executive Board had full knowledge of the renovations and the expense of the renovation:

The extent of the remodeling (window installation, painting, carpeting, partitions) was obvious. (MCGOUGH Tr. 479).
The Executive Board set a $15,000 budget limit for the remodeling of Local 2. (MCGOUGH Tr. 472-73); See also Executive Board Meeting minutes of September 25, 2001 (“The Board unanimously approved a request by Reggie Robinson and Rick Caravetta to place an amount on what can be spent to refurbish and finish the rest of the offices in the new building. The Board set this amount at $15,000.”)
The December 11, 2001 Membership Meeting minutes indicate that “Rick Caravetta informed the membership on the progress of the renovations being done at the office is going well.”

10. Given the Executive Board’s authorization of the expense, the duration of renovations, the report to the membership regarding the renovations, and the physical presence of the renovations, the IHO finds that the Executive Board had full knowledge of the remodeling of Local 2.

11. Charge 2 states as follows: “Subverted the union by hiring `non-union’ personnel on a time and material basis to remodel Local 2’s new office while members with similar skills were on the out of work list.” In his March 12, 2003 Order, the IHO permitted the charge to stand against Chapman and Gonzales only and dismissed the charge as to other parties.

12. The IHO notes that the Executive Board Meeting Minutes of September 11, 2001 show that a union company was selected to replace signs in front of the local, over a lower bid non-union company. See Executive Board Meeting Minutes, September 11, 2001. The Executive Board voted unanimously to contract the union company despite the higher cost to do so. Id.

13. The IHO finds that the vote regarding the sign replacement project demonstrates the Executive Board knew of the custom to select union labor over non-union labor when selecting companies to perform work for Local 2.

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14. Lane testified that the person who installed the carpet in Local 2 during the remodeling was not a union member but Caravetta’s neighbor. (LANE Tr. 44546). This testimony was not disputed and there was no evidence presented that the Executive Board sought to ensure organized labor was hired.

15. The IHO finds that at least one subcontractor, the carpet installer, was not a union member.

16. Significantly, other than the September 11, 2001 mention of the sign, the meeting minutes for 2001 do not show other mention of bids or whether to use union companies regarding the remodeling.

17. The IHO fords that as members of the Executive Board of Local 2, the Executive Board knew of the custom favoring organized labor contractors when possible. However, the record is silent as to the circumstances regarding the hiring of labor performed by contractors and subcontractors on their union hall.

18. As discussed infra, there is no disciplinary offense for permitting non-union labor to refurbish the local.

Discussion

The charged parties did not dispute that non-union labor was at least partially used during the renovation of the union. Given the duration, expense, and evidence that the Executive Board requested IG approval for the expenditure, it cannot be found that the Executive Board was totally ignorant of the renovations. McGough argues that the Executive Board deliberately hired non-union contractors to refurbish the union hall fully aware that there was a practice to hire union contractors. The issue before the IHO is whether the Executive Board’s hiring of non-union contractors for the refurbishing constitutes a disciplinary offense.

There is an informal policy in LIUNA to support the union movement by hiring union contractors and vendors. There is however, no formal LIUNA international policy on the subject and many exceptions are permitted. As a matter of pattern and practice, there are times when non-union contractors and vendors may be utilized. There is no clear line that may drawn to articulate when the use of non-union labor may constitute a disciplinary offense. In the absence of a clear prohibition against using non union labor, under the circumstances of this matter, the IHO cannot find that the charged parties committed any disciplinary offense by permitting the remodeling to the union hall to be done by non union labor.

A disciplinary rule must be clear in what it prohibits to enable uniform enforcement. Local unions should be aware of what is required when hiring non-union labor. However, because there are many varieties of circumstances when non-union contractors and suppliers may be permitted, the IHO cannot

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make a ruling that could be applied with any consistency regarding when nonunion contractors are not permitted as a disciplinary matter. This decision should not be taken to mean that such a practice of by-passing union labor is encouraged. The General Executive Board is encouraged to provide policy statements on the issue.

19. Charge 86 states as follows: “Failed to obtain competitive bids on major expenses and did not inform Local 2 members whenever they sought the approval of LIUNA’s Inspector General for expenditures.” In his March 12, 2003 Order, the IHO permitted the charge to stand against Chapman and Gonzales only and dismissed the charges as to other parties. The IHO also narrowed the scope of the charge to the remodeling of the local, dismissing the portions related to purchase of jackets and a Christmas party.

20. Lane testified that competitive bids were not sought for the remodeling, that Caravetta made the remodeling decisions, and that approval by the Executive Board was done through informal telephone vote. (LANE Tr. 446-47).

21. Dalton stated that he had been unable to find records of competitive bids. (DALTON Tr. 483). Hernandez provided a letter from Keith Trelford, a member of Local 96 in which Trelford stated that he had submitted an estimate for Local 2’s remodeling. (HERNANDEZ Tr. 483-84); see also Hernandez Ex. 1. McGough accepted Hernandez’s letter from Trelford as a demonstration that competitive bids had been requested. (MCGOUGH Tr. 484).

22. The IHO finds that there is not a preponderance of the evidence to prove that the charged parties failed to obtain competitive bids.

23. Local 2 submitted the proposed renovation costs to the Inspector General’s office for approval. (Hernandez Ex. 2, letter from Gow to Robinson). The Inspector General informed Local 2 that the amount sought to be expended for renovations was below the threshold requiring IG approval. Id.

24. McGough’s charge 86 charges the Executive Boards with seeking IG approval without first asking the general membership if it could seek such approval.

25. The IHO finds that there is no cause of action for the Executive Board seeking approval from the Inspector General for an expenditure without first seeking general membership approval.

26. The Executive Board did not breach a duty by not seeking membership approval prior to seeking IG permission for an expense.

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Discussion

McGough’s charge 86 included faulting the Executive Board for seeking approval from the Inspector General for an expenditure without first seeking approval from the membership. The IHO notes that the charge was not whether the Executive Board made a large expenditure without membership approval. The narrow issue under consideration is whether the Executive Board can be disciplined for seeking guidance from the IG without first seeking approval for seeking the guidance. The IHO finds that the Executive Board cannot be faulted for seeking help from the international. Seeking permission from the IG does not, however, mean that the Executive Board can bypass membership approval for large expenditures. McGough did not charge that the membership approval was not sought prior to an expenditure being made, only that the IG approval was sought before membership approval. The IHO does not find this to be a chargeable offense.

Misrepresentation of Employee’s Termination (Charge 3 Chairman and Gonzales)

27. Charge 3 states as follows: “Deceitfully misrepresented the reasons `whistle blower’ Bridget Gaskill was no longer employed as Local 2’s clerical secretary when they allowed Terry Bohne and Reggie Robinson to falsely and maliciously blame her for their incompetence.”

28. Lane testified that she and Robinson were aware that as of January 8, 2002, the per capita payments reports had not been filed and the federal withholding had not been done. (LANE Tr. 432, 437-38).

29. Lane testified that to the best of her knowledge, the Executive Board members were aware that Robinson was not doing his job. (LANE Tr. 432-33). She testified that she had requested the officers and Executive Board of Local 2 to procure some assistance for her in her duties. (LANE Tr. 433).

30. Lane testified that she felt she had been fired to cover up Robinson’s failure to perform his duties. (LANE Tr. 434-41). She said that Bohne “inferred to her” that the Executive Board was aware that she had been fired and forced to sign nondisclosure statement to cover for Robinson and had approved. (LANE Tr. 440, 442).

31. The IHO finds that there is not a preponderance of the evidence to prove that the Executive Board had sufficient knowledge concerning the details of Lane’s dismissal to require them to correct Bohne and Robinson’s report.

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Improper Political Contribution ( Charge 9 Chapman, Gonzales, and Hernandez)

32. Charge 9 states as follows: “Allowed political contributions to be made without members’ knowledge or approval (see minutes of executive board authorizing political expenditures for democratic candidates).”

33. The IRS Form 990 for 2001 file by Local 2 indicates political contributions made to Political Friends of Saviano and Political Friends of Bill Russell. See McGough Exhibit 8, Form 990 Local 2 for 2001.

34. McGough testified that the political contributions were made without the knowledge or approval of the general membership. (MCGOUGH Tr. 380).

35. The August 14, 2001 Local 2 Membership Meeting Minutes indicated that Representative Skip Saviano addressed the membership. See Membership Meeting of Local 2, August 14, 2001. There is no indication that a political contribution was discussed with the membership at that time. Id. None of the 2001 general membership meeting minutes of Local 2 indicate that there was any motion or approval by the members for political contributions in the year 2001. See 2001 Local 2 Membership Meeting Minutes.

36. Lane testified that political contribution cheeks were cut the same day Caravetta requested them, at Caravetta’s discretion, without prior approval by the membership. (LANE Tr. 444). Lane testified that Chapman, Gonzalez, and Hernandez had nothing to do with the preparation of the political contribution checks. (LANE Tr. 444).

37. McGough conceded that he was not charging that the Executive Board members knew of the political donations before they were made and failed to seek membership approval. Rather, McGough charges the Executive Board members Chapman, Gonzales, and Hernandez with having notice after the donations had been made but failed to “correct” the political contributions being made without membership approval. (MCGOUGH Tr. 387).

38. At the hearing, Hernandez raised the issue that if the Executive Board had no knowledge of the political contribution checks until after they had been issued, it would be too late for the Executive Board to act because the cash donations had already been made in the Local’s name and could not be recuperated. (HERNANDEZ Tr. 389-91). McGough responded that the Executive Board should have “put a stop to the practice” and perhaps bring charges against the individual making unauthorized expenditures. (MCGOUGH Tr. 391).

39. Hernandez testified that he, Chapman, and Gonzales had been working at the calling in the field and were not in the Local 2 office daily during the events of McGough’s charges. (HERNANDEZ Tr. 499). Hernandez testified that

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during the time period of McGough’s charges he was working double and triple shifts, between 10 to 14 hours per day. (HERNANDEZ Tr. 499-500). Hernandez further testified that he and the others had no knowledge of the events taking place at the local until the charges were brought by McGough. (HERNANDEZ Tr. 499).

40. McGough conceded that Executive Board members who are not business agents have “no intimate knowledge of what’s going on day-to-day in the Local.” (MCGOUGH Tr. 500).

Discussion

This Charge raises an issue of what overall duty the non-officer Executive Board members (i.e. other than the president, secretary-treasurer, or business manager) owe in monitoring matters other than those before them at the formal meetings. There is little guidance from LIUNA policy statements.

The Executive Board members constitute a board of directors, similar to inside directors of a board of directors of a corporation. See e.g., Hoke v. Shanker, 108 A.D.2d 1065, 1065-66 (1985) (members of union executive board “should be held to the same high standard of care and diligence in the exercise of their duties as are corporate directors” and “have responsibilities analogous to those of corporate directors and they must be expected to discharge those responsibilities similarly.”). Unlike outside directors appointed for particular expertise, the inside directors are expected to have a thorough working knowledge of the institution. Their vote is required on all major matters.

In a local union, the non-officer Executive Board members usually are not present during the daily operation of the local, and may be working at the calling in the field². Often, the officer Executive Board members who manage the daily activities make decisions that are not put before the other board members. Those non-officer board members may not be apprised of such actions, depending upon the magnitude of the decisions.

The issue before the IHO is what duty those non-officer Executive Board members have to monitor the actions of the officer board members. In In re Local 1175, IHO Order and Memorandum, 03-1 OT (6/11/03), the IHO held that the non-officer board members had completely abandoned their duties by never inquiring why the business manager was charging personal charges on his union credit card, as well as benefit fund charges. The IHO also found that the Executive Board members had abandoned their role by permitting a field

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² The IHO is aware that such Executive Board members may work as field representatives or dispatchers and be present for some part of the day at the union hall.

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representative for the local union to be paid by the benefit funds so that the money formerly used for his salary could be used to give the Business Manager a raise. Id.

Although each situation will depend upon the factual circumstances, the IHO applies the following standard for determining the duty of the non-officer Executive Board members to monitor the actions of the officer Executive Board members: should a reasonable Executive Board member have been aware of the actions in question and, if so, should the Executive Board member have brought the issue before the Executive Board and the general membership for a vote?

The membership did not vote on the political contributions when they were made and there appears to be no notice in the meetings that such contributions were made. The record in this matter is very sparse regarding how much the non-officer Executive Board members knew of these contributions. Normally, all Executive Board members should be aware of such expenditures. In this matter, however, where the officer-members have been removed for their own misconduct, there is a faulty set of minutes, and there is sparse evidence of what after the fact knowledge the non-officer board members had, and when they became aware. Based upon this record, there is not a preponderance of the evidence that the non-officer members of the Executive Board were derelict in their duties.

The IHO sets out the following guidelines for situations where political contributions are improperly made without a prior authorized vote by the membership. Once the contributions are discovered the Executive Board members have a duty to bring the matter before the general membership for a ratifying vote. If the contribution is rejected, it will be of record that it was unauthorized, subjecting the donors to disciplinary action, and will serve as a deterrent for unauthorized contributions.

Loans to Union Employees ( Charge 10 Chapman and Gonzales)

41. Charge 10 states as follows: “Caused an employee to become indebted in excess of $2000 as prohibited by Sec 503 of LMRDA. (see outside auditor’s report for 2001) and LM-2 for 2001.”

42. Lane testified that she had borrowed money through Robinson and Bohne from Local 2 and had been making repayments through a payroll deduction. (LANE Tr. 451). At the time of her dismissal, there was approximately $1800 still outstanding on Lane’s loan. (LANE Tr. 452).

43. Lane testified that she did not know whether the members of the Executive Board had known about the unauthorized loans given to Robinson, Bohne, and Lane. (LANE Tr. 454). McGough admitted that he could not prove whether the Executive Board had had knowledge of the loans to Robinson, Bohne, and Lane. (MCGOUGH Tr. 454).

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44. The IHO finds insufficient evidence to determine whether the Executive Board was aware of loans to Robinson, Bohne, and Lane.

Allegation of Physical Attack During Union Meeting (Charge 12 Zarate)

45. Charge 12 states as follows: “Attacked John Burke while speaking at a union meeting. Ramon Zarate had to be physically restrained from physically attacking John Burke at the November 2001³ union meeting.”

46. McGough tried to raise a point of order concerning a procedural issue. (MCGOUGH Tr. 460-61). The membership reacted to McGough with catcalls and calls for him to sit down. (BURKE 465). John A. Burke stood up to McGough’s defense to speak. (MCGOUGH Tr. 460-61; BURKE 465)

47. McGough testified that Zarate charged toward Burke and “was physically going to attack him” “Zarate came physically threatening Burke and had to be stopped by the sergeant at arms.” “Zarate charged him in a physically threatening manner and had to be physically restrained by the sergeant at arms before an attack could occur.” (MCGOUGH Tr. 460-62, 464). Burke testified that he was not intimidated by Zarate but that Zarate tried to silence him “by showing some type of force.” (BURKE Tr. 466).

48. Both Burke and Hernandez testified that McGough was mistaken and there was no need for the sergeant-at-arms to intercede at the meeting. ( BURKE Tr. 467; HERNANDEZ Tr. 468).

49. After Zarate confronted Burke, Bohne who was presiding over the meeting, got up went over to Burke and Zarate and told Zarate to sit down (BURKE Tr. 466-67).

50. Hernandez testified that Zarate never physically attacked Burke. (HERNANDEZ Tr. 468). Burke’s testimony also seemed to indicate there was no physical threat and had been misinterpreted by McGough: “a verbal intimidation can be just as dangerous as a physical….” (BURKE Tr. 468) and “his [McGough’s] interpretation is different than ours…” (BURKE Tr. 468-69).

51. Zarate testified that he exercised his freedom of speech but never physically threatened anyone. (ZARATE Tr. 469).

52. Local 2 held its General Membership meeting on September 11, 2001, the day of the terrorist attacks. (MCGOUGH Tr. 460-61). Given the events of that

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³ Despite the “November” designation in the charges, the incident alleged in Charge 12 took place at the September 2001 membership meeting. (MCGOUGH Tr. 461.)

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date, McGough admitted “people’s tempers were short” and “it wasn’t the best time.” (MCGOUGH Tr. 461).

53. The Membership Meeting minutes also reflect that the meeting was held while members were upset about the terrorist attacks on that date:

Member James McGough addressed President Terry Bohne and stated that he believed that this meeting was not being held in accordance with the International Constitution or Local Unions. President Terry Bohne stated that keeping in mind the tragedy that had happened earlier that morning in New York, Washington DC, and Pennsylvania regard to the terrorist attacks that the nation had suffered, the meeting was still being held, but the people were upset. He apologized to the membership for not following the constitution to the letter, but everyone agreed that emotions and tension were high and that the meeting actually could have been reset. At this time, Member McGough sat down.

See Unfinished Business, Membership Meeting of Local 2, September 11, 2001 minutes.

54. The testimony from various individuals, including McGough’s own witness, regarding this charge reflects that McGough is mistaken or misinterpreted what occurred at the meeting. Given the tensions present on that date and the fact that there is no evidence other than McGough’s impression contradicted by several witnesses, the IHO finds that Zarate did not physically threaten McGough.

Deprivation of Full Share of Union Self-Government ( Charge 78 Chapman Gonzales Hernandez)

55. McGough made several allegations that he had been prevented from exercising his full share of union self-government.

56. Charge 78 states as follows: “Deprived member McGough to his full share in Union self-government and attempted to extort late payment fee from McGough for unfair and malicious suspension.” The charged parties are Chapman, Gonzales, and Hernandez.

57. McGough mailed his union dues on May 31, 2001. (McGough Tr. 342). See McGough Ex. 1, Letter from McGough to Sewer & Tunnel Miners Union, Local 2, Attn: Reggie Robinson of May 31, 2001. Local 2 received the dues on June 1, 2001. See McGough Ex. 2, Letter from Reggie Robinson to James McGough of June 4, 2001.

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58. Robinson’s letter indicates that because the dues were not received until June 1, 2001, the dues were considered late and the payment sent in by McGough had been allocated as $24 for a late fee and $48 monthly dues for April and May, thereby leaving McGough with a balance due of $24. Id.

59. Lane testified that it was the custom and policy of Local 2 to accept mailed dues up to five days late without suspending a member provided the postmark dates indicated that the payment was timely. (LANE 393).

60. McGough testified that on June 4th or 5th 2001, he called the local to be placed on the training center class and was informed that he had been suspended for failure to pay. (McGough Tr. 345). In response, on June 6, 2001, McGough faxed a letter to Robinson stating that the application of a suspension for failure to pay late fees was incorrect because the prior practice and policy of Local 2 had been to accept timely postmarked dues up to five or six days into the first week of the third month. (McGough Tr. 345);⁴See also McGough Ex. 3 Letter from Jim McGough to Reggie Robinson of 6/6/01.

61. McGough testified that on June 11, 2001, when he went to the local for the June membership meeting, then Secretary-Treasurer Robinson told him at the door that he was still suspended and had to pay a $25 re-admission fee. (McGough Tr. 346-47). McGough stated that he refused to pay the fee because he believed the local was not entitled to a late fee and he should not have been suspended as his dues payments had been timely. (McGough Tr. 347). McGough left the meeting. (McGough Tr. 348).

62. McGough appealed his suspension to the GEB Attorney and also wrote a letter to LIUNA General Counsel Michael Bearse. (McGough Tr. 348); see also McGough Ex. 4, Letter from Robert D. Luskin to Michael S. Bearse of June 29, 2001.

63. The July 2001 Executive Board Meeting was held prior to the general membership meeting. (MCGOUGH Tr. 353); see also McGough Ex. 6, Executive Board Meeting Minutes of July 10, 2001. At the Executive Board Meeting, Robinson discussed that McGough had filed a protest with the GEB Attorney regarding his suspension, that the International Union had ruled that McGough should be reinstated since his envelope had been timely postmarked. Robinson called for the Executive Board to reinstate McGough and the

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⁴McGough also reference a prior holding of the IHO regarding payment of dues, however, the IHO order referenced related to payment of dues in the context of election eligibility. Given testimony that Local 2 had a policy for accepting payment late provided the postmark was timely, the IHO will not address McGough’s mistaken reliance the election order.

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Executive Board agreed. See McGough Ex. 6, Executive Board Meeting Minutes of July 10, 2001.

64. The Executive Board agreed that the reinstatement would be effective the next business day. See McGough Ex. 6, Executive Board Meeting Minutes of July 10, 2001.

65. Lane testified that Bohne and Robinson received legal advice that they were supposed to reinstate McGough immediately but instead chose to make his reinstatement effective the following day in order to prevent him from speaking at the meeting that evening. (LANE Tr. 407-08).

66. On July 10, 2001, Robinson sent McGough a letter via registered mail informing McGough that he was being reinstated. See McGough Ex. 5 Letter from Reggie Robinson to James McGough of July 10, 2001.

67. However, although the letter had been written prior to the meeting, McGough did not learn of his readmission until July 13, 2001, when he received Robinson’s July 10, 2001 letter, after he had been denied participation in the July 2001 membership meeting. (MCGOUGH Tr. 350-51; 358.)

68. When McGough arrived at the July membership meeting, Robinson informed him that as a suspended member he was permitted to attend the meeting but was not permitted to have a voice in keeping with Local 2’s policy of permitting suspended members to attend meetings without a voice. (MCGOUGH Tr. 348-49). McGough testified that Robinson clearly announced this position to McGough, and at the time the rest of the Executive Board was within five to ten feet away. (MCGOUGH Tr. 349).

69. July 10, 2001 Membership Meeting minutes state “At this point, Jim McGough called for a point of order. President Terry Bohne then informed Mr. McGough that he was allowed to attend this meeting as a courtesy and that he had not [sic] voice, as he had not been reinstated as of this evening. Mr. McGough’s point of order was refused.”

70. Despite McGough’s not being permitted a voice at the July 10, 2001 meeting, the minutes show he was the topic of various conversations:

President Terry Bohne recognized Rufus Chatman and permitted him to address the membership, Chatman addressed the membership stating that in the previous month alone the union had incurred $3,000 in legal expenses and that “the local won’t have a picnic and that expenses like this will also keep the local from having a Christmas Party.” McGough was not recognized or permitted to speak in response. See July 10, 2001 Membership Meeting minutes.

15 In the Matter of James McGough v. Terry Bohne, et al. 2003

Question from the floor in regards to the lawsuit filed by Jim McGough. Terry [Bohne] stated that it was not a lawsuit, but a protest of his suspension. He stated to the members that Jim McGough would be readmitted and the late fee waived, but that this was a decision made by the Executive Board earlier at their meeting. Jim McGough raised a point of order and President Terry Bohne stated to him that he has no voice and would not be recognized. Terry [Bohne] stated that even though Mr. McGough called the late fee extortion money, it was not and that Mr. McGough was suspended. A member then asked by [sic] Mr. McGough was allowed in the meeting. Terry [Bohne] and Reggie [Robinson] informed the membership that it is a courtesy to members to allow them into the meeting if they are suspended, but that those members have no voice in the meeting and have no vote on any issues put to the floor. Id.

71. Robinson’s letter was mailed prior to six p.m. on the day of the Executive Board Meeting. Robinson’s letter indicates that prior to the Executive Board meeting, the Executive Board had already agreed to waive McGough’s suspension and late payment fee. The Executive Board Meeting minutes indicate that at the seven p.m. Executive Board Meeting, the Executive Board voted to make McGough’s readmission effective the following business day. McGough alleged that the minutes were changed to reflect the effective date. (MCGOUGH Tr. 357.)

72. Making McGough’s readmission effective the following business day (July 11, 2001) had the effect of preventing McGough from speaking at the general membership meeting that evening July 10, 2001.

73. Lane testified that after the July 10, 2001 general membership meeting where McGough was told he could not speak, there was an informal executive board meeting attended by everyone employed by the union. (LANE Tr. 416). Lane testified that the subject of the informal meeting was McGough. (LANE Tr. 417).

74. The IHO finds that the officers and Executive Board made McGough’s readmission effective the day after the general membership meeting in order to prevent him from being able to speak at the meeting even though he was the subject of topics raised during the meeting.

75. There is a preponderance of the evidence that Chapman, Gonzales, and Hernandez deprived McGough of his lawful membership rights.

76. The IHO does not find there was an attempt to extort McGough’s readmission fee.

16 In the Matter of James McGough v. Terry Bohne, et al. 2003

Discussion

The record is clear that the executive Board used McGough’s mail-in dues to suspend him. The evidence shows that LILTNA, and Local 2 in particular, had a practice to recognize as timely dues that were mailed and postmarked on or before the last day of the month. The Executive Board further aggravated the situation by agreeing to reinstate him the day following the monthly meeting, to prevent him from taking part in the meeting. This was a deliberate attempt to deny him his rights of membership. It is apparent that McGough is regarded as a gadfly to many members of Local 2, however, LIUNA is a democratic union and a member may make legitimate inquiries and speak out at union meetings notwithstanding that the member’s views and attitudes are not consistent with those of the majority.

Improper Raises (Charges 49, 50, 51 Chapman, Gonzales, and Hernandez)

77. Charges 49, 50, and 51 relate to McGough’s contention that Executive Board Members unconstitutionally increased their salaries without the required membership approval at two consecutive general membership meetings through the use of year-end bonuses.

78. Charge 49 states as follows: “Increasing salaries unconstitutionally without the required approval of members at two consecutive meetings. The year-end bonus of 10% constitutes a salary increase and it was not voted on at two consecutive meetings as required by LLUC, Article X, Section 6.”

79. Charge 50 states as follows: “Increased salaries more than once in one fiscal year.”

80. Charge 51 states as follows: “Increased salaries without amending the bylaws that prohibited a salary increase before March 2002 .(See Local 2 bylaws)”

81. In June and July 2001, the Local membership authorized a five percent salary increase. (MCGOUGH Tr. 364-65). McGough does not dispute that this salary increase was properly done. (MCGOUGH Tr. 365).

82. At the November 13, 2001 Executive Board meeting, “Rick Caravetta asked the board for performance/year end bonuses for full time officers and staff. The vote was unanimous. Percentage to be determined by Rick Caravetta per the Executive Board.” See November 13, 2001 Executive Board meeting minutes.

83. McGough testified that at the November 2001 membership meeting, then Business Manager Caravetta stated that he was “going to discuss year-end performance bonuses later” while the minutes indicated that Caravetta had discussed bonuses. (MCGOUGH Tr. 365). McGough claims that the minutes

17 In the Matter of James McGough v. Terry Bohne, et al. 2003

are misleading because they seem to indicate that the bonuses were discussed when in reality Caravetta merely stated they would be discussed later. (MCGOUGH Tr. 365-66).

84. The Membership Minutes indicate that Caravetta “informed the membership that performance/year end bonuses were to be paid to the full time officers and staff.” See Membership Meeting Minutes November 13, 2001. The indication is that Caravetta simply told the members the bonuses were to be paid, there is no indication that a motion was made, that an amount was discussed, or that the membership voted on the matter other than a general approval from the floor for several topics covered.

85. The IHO finds that the amount of the potential bonus for the full-time officers and employees was not discussed at the November 2001 general membership meeting nor was there a vote taken by the general membership.

86. The December 11, 2001 Executive Board Meeting Minutes reflect that “Year end performance bonuses were asked for at the rate of 10% for full time employees” and it was accepted. See Executive Board Meeting Minutes, December 11, 2001.

87. At the December 11, 2001 Membership Meeting, Caravetta asked for 10% year-end bonuses for employees. See Membership Meeting Minutes, December 11, 2001; see also MCGOUGH Tr. 366. A member inquired how much the bonuses would cost the local and Robinson responded approximately $40,000. Id. The membership voted to approve the bonuses. Id.

88. McGough contends that the bonus constituted a second salary increase in one fiscal year and were therefore improperly authorized by the Executive Board for both fiscal and procedural reasons. (MCGOUGH Tr. 367, 369).

89. Lane testified that she was present during a conversation among Caravetta, Bohne, and Robinson where Caravetta outlined a plan to not seek a vote on the year-end performance bonus in November then call for a vote in December. (LANE Tr. 421). Lane stated that it was the plan for Caravetta to simply state in his Business Manager report that the year-end performance bonus would be discussed later in order for the minutes to reflect the issue in both November and December. (LANE Tr. 421-22).

90. Lane testified that the phrase in the typed general membership meeting minutes “Richard Caravetta discussed year-end performance bonuses” was designed to give an impression that the members had discussed and approved of the bonuses in November. (LANE Tr. 422).

91. Lane testified that to her knowledge she was not aware that the members of the Executive Board other than Caravetta, Robinson, and Bohne were party to the arrangement to by-pass a membership vote in November. (LANE Tr. 422,

18 In the Matter of James McGough v. Terry Bohne, et al. 2003

431). Lane testified that it was the practice of the local to “shove things” through the Executive Board sometimes through informal telephone conversations then present the approval to the membership knowing the membership would not overrule the Executive Board. (LANE Tr. 422-23).

92. Lane testified that at the November 13, 2001 General Membership meeting the bonuses were only mentioned, there was no motion or voting by the members. (LANE Tr. 430).

93. At the December 2001 general membership meeting, McGough objected to the bonuses saying it was “illegal and unethical.” (MCGOUGH Tr. 372).

Discussion

The Constitution is clear that any change of salary or compensation made during the officer’s term of office must be approved at two successive general membership meetings. See Article IX Section 6, Local Union Constitution. Any additional compensation such as bonuses are covered by the provision. See, e.g., Advisory Letter from Angelo Fosco, General President, to Local Union 464, Thomas Fisher, Recording Secretary of 6/18/92 (where increase in travel allowance beyond actual expenses incurred is increase in salary and must follow procedures of Article IX, Section 6); Advisory Letter from R.P. Vinall, General Secretary-Treasurer to Thomas C. Zaccaria, President, Upstate New York Laborers’ District Council of 11/20/96 (vacation benefits construed as a component of compensation requiring reduction or increases effective during term of office to be approved by membership after proposal at two consecutive meetings). In this case the officers attempted to manipulate the requirement by talking about the bonuses at the November meeting, then inserting a notation in the minutes to make it appear that a vote was taken, and then taking a vote at the December meeting, but not formally setting for the amount of the bonuses.

This procedure was an intentional violation of the Constitution. The Executive Board members charged here contend that they were not aware that bonuses were of the same character as salary increases, and were relying upon the advice of those officers who were removed.

The defense of blaming every act of misconduct on removed officers has its limits; one cannot blindly cast votes as an Executive Board member on the advice of other members. In this case however, the officer Executive Board members purported to know the procedure, and there was testimony that the charged parties here were not included in the conspiratorial conversations of the officer Executive Board members regarding the scheme to avoid the constitutional requirements. There is not a preponderance of the evidence that the charged parties deliberately approved the bonuses in violation of the constitutional requirements.

19 In the Matter of James McGough v. Terry Bohne, et al. 2003

CONCLUSIONS

1. Charges 1, 4-8, 13-31, 33-39, 41-48, 52-77, 79-85, 87-100 were dismissed for lack of probable cause. Charges 11, 32, and 40 were dismissed for failure to state an offense.

2. There is not a preponderance of the evidence to support a disciplinary charge for failure to use non-union labor as alleged by Charge 2.

3. There is not a preponderance of the evidence that the charged parties had sufficient evidence about Lane’s dismissal to require them to correct the officers’ reports to the general membership as alleged by Charge 3.

4. There is not a preponderance of the evidence that the charged parties had prior knowledge of the political contributions until after the officers made the contributions without a vote of the membership as alleged by Charge 9.

5. There is not a preponderance of the evidence that the charged parties were aware of the unauthorized loans to Robinson, Bohne, and Lane as alleged by Charge 10.

6. There is not a preponderance of the evidence that Zarate physically attacked Burke during a union meeting as alleged by Charge 12.

7. There is not a preponderance of the evidence that the charge parties participated with Robinson and Bohne to improperly suspend McGough’s membership as alleged by Charge 78.

8. There is a preponderance of the evidence that the charged parties, Chapman, Gonzales, and Hernandez in concert with Robinson and Bohne prohibited McGough from receiving his reinstatement of membership to prohibit him from participating in the June membership meeting as alleged by Charge 78.

9. There is not a preponderance of the evidence that the charged parties were aware of the conspiracy of Robinson and Bohne to avoid the constitutional requirements in awarding year-end bonuses as alleged by Charges 49, 50, and 51.

10. There is not a preponderance of the evidence that competitive bids were not sought as alleged by Charge 86.

DECISION

On several occasions the IHO has ruled on the issue of the negligence or malfeasance of non-officer Executive Board members who have either quietly

20 In the Matter of James McGough v. Terry Bohne, et al. 2003

acquiesced in or completely ignored the decisions and actions of the officer Executive Board members. The IHO cannot accept the explanations of the nonofficer Executive Board members that they are working in the field, and went along with the decisions of the officers. The IHO cannot accept without reservation the excuse that the officers were corrupt and that the non-officer Executive Board members were completely mislead. The IHO appreciates the concept of bad leadership, and that corrupt officers may mislead the others. There is however, a duty to examine and inquire into the actions and proposed actions of the officers. As stated above, the test is whether a reasonable Executive Board member should have been aware of the actions of the officers and, if so, should the Executive Board member have brought the matter to the general membership for a vote.

Under the circumstances of this matter there were numerous times when the actions of the corrupt officers may have alerted the charged parties to possible wrong doing. The IHO has determined that the circumstances of this record prove only one instance when there was a preponderance of the evidence that the charged parties Hernandez, Chapman, and Gonzales violated the constitution. In that instance, in concert with Robinson and Bohne, they deliberately delayed the McGough’s membership reinstatement to prevent him from speaking and voting at the July membership meeting.

Hernandez is fined $300.
Chapman is fined $300.
Gonzales is fined $300.

The fines may be paid in two installments.

The parties are hereby notified that they have the right to appeal this Order and Memorandum by filing a Notice of Appeal with the LIUNA Appellate Officer within 10 days of this Order.

The Appellate Officer is:

W. Neil Eggleston, Appellate Officer Howrey, Simon, Arnold & White 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004

(202) 783-0800 (202) 383-6610 (fax)

This Order takes effect in ten days unless a notice of appeal is filed with the

21 In the Matter of James McGough v. Terry Bohne, et al. 2003

Appellate Officer and, if appealed, upon final decision of the Appellate Officer.

s/PETER F. VAIRA
Peter Vaira

INDEPENDENT
HEARING OFFICER

(See service list attached)

INDEPENDENT HEARING OFFICER

APPENDIX A IHO FEBRUARY 25, 2003 ORDER

In the Matter of James McGough v. Terry Bohne, Juan Hernandez, Reggie Robinson, Chuck Auriemma, Rufus Chatman, Martin Gonzalez, Yahn Mann, Richard Caravetta, Ramon Zarate, Leonard White, Alonzo Wimberly, Chris Maxwell, Dave Buccini

Local Union 2, Brookfield, IL

Laborers’ International Union of North America Independent Hearing Officer

Docket No.: 03-04TB

Decided February 25, 2003

ORDER AND MEMORANDUM

PROCEDURAL HISTORY

This Order and Memorandum addresses the trial board charges filed by James McGough against certain current and former members of the Executive Board of Laborers’ International Union of North America (LIUNA) Local Union 2 (Local 2), and other members of Local 2. Mr. McGough originally filed expansive omnibus charges with General Executive Board (GEB) Attorney Luskin in May 2002. The charges were subsequently amended and refiled on November 12, 2002. The General President referred the above-referenced matter to the Independent Hearing Officer (IHO) for a trial board hearing because the Charged Parties were disqualified to serve on the Trial Board. See letter from Terence M. O’Sullivan, General President, to Peter F. Vaira, Independent Hearing Officer of 1/24/03.

The IHO previously ruled that McGough’s disciplinary charges did not meet the specificity requirements of the Labor Management Reporting and Disclosure Act (LMRDA) for disciplinary charges filed against a union member. See IHO order of January 30, 2003. Given the number of charges involved, on February 13, 2003, the IHO held a pretrial hearing for demonstration of probable cause for the 100 charges filed. At the hearing, the IHO reviewed each charge with McGough for sufficient particularity and probable cause. The charged parties were permitted to attend and comment at the hearing.¹

_____________________
1 Counsel for Local 2 was permitted to attend for the sole purpose of determining which documents if any would be required for the trial board hearing. Counsel for Local 2 did not attend the hearing in any advisory capacity and did not render legal advice to any of the charged parties. See Gomez v. Rodriguez, IHO Order and Memorandum, 00-34TB (February 6, 2001).

Local 2 is currently the subject of a Consent Supervision pursuant to Article IX, Sec. 9 of the International Union Constitution. Prior to the pretrial hearing, charged parties Terry Bohne, Reggie Robinson, and Richard Caravetta entered into a Settlement Agreement with the GEB Attorney which included a provision that the parties would not be subject to any subsequent trial board charges. As a result, the IHO dismisses all charges against Bohne, Robinson, and Caravetta. In addition, the IHO ruled that the amended second set of charges superceded the first set of charges and that McGough would be limited to the individuals and subject areas addressed by the amended set of charges.

DISCUSSION

McGough has charged several members of the Executive Board with associating with or permitting members of organized crime to have influence with the union. The allegations take many forms in the various charges, but all have as their basic premise that of permitting organized crime to influence the local.

Ridding the union of organized crime influence was the basis of the LIUNA reform movement, which started in 1995. See Agreement of February 13, 1995 between LIUNA and the United States of America (creating the EDP). The EDP created the positions of the GEB Attorney, the Inspector General, the IHO, and the Appellate Officer. EDP, 2-5. These professional offices were designed to investigate and rid the union of organized crime influence. The method is by disciplinary charges filed before the IHO or placing local unions or district councils in trusteeships.

The EDP maintained the trial board as a traditional forum for members filing charges against other members of their own local or district council. The only change in the trial board procedure was the appeal of trial board rulings to the Appellate Officer, and the adoption of trial board procedural rules by the Appellate Officer. EDP, 5. The Uniform Local Union Constitution (Constitution) was subsequently amended to permit the General President to refer trial board charges to the IHO when all parties were disqualified. Article XII, Section 3.

The IHO, sitting as a trial board, has recognized that some subject matter is beyond the capacity of trial board to hear. In In the matter of Gomez v. Rodriguez, IHO Order and Memorandum, 00-34TB (Feb. 6, 2001), the IHO held that the subject matter of the charges were beyond the procedural capacity of a trial hoard. The charges involved allegations of manipulation of hiring hall dispatches, improperly placing persons on the out of work list, dispatching persons outside of the local’s jurisdiction, and dispatching persons without authority. The IHO determined that in order to render a reasoned decision in the matter would require subpoenaing numerous members and officials, volumes of

records, requiring the IHO to engage accountants and investigators to review the records, and finally conducting days of hearings. The IHO held that such a task was beyond the capacity of a trial board. The IHO held that such matters were intended for the GEB Attorney and the Inspector General. Id.

The same rationale applies even more so to allegations of organized crime. Although the LIUNA reform effort was based in great part upon ridding LIUNA of organized crime influence, such effort was entrusted to the Inspector General and the GEB Attorney. It was not intended for trial boards. The decision to charge a member of being an organized crime member or associate, or associating with organized crime cannot be taken lightly, and was intended only be done by the professional staffs of the Inspector General or the GEB Attorney. The formal disciplinary procedure of the EDP was intended to be presided over by the IHO, a professional. Any appeals from the IHO’s decisions are to be made to the Appellate Officer, another professional. Nowhere in the EDP is there any indication that the decision regarding organized crime affiliation is to be made by a trial board. This also applies to the IHO when sitting as a trial board. All charges in this matter, which allege organized crime influence or association with organized crime will be dismissed.

The LIUNA 2001 International Convention amended Article XII, Section of the Constitution as follows:

Except for good cause shown [trial board] charges must be filed within ninety (90) days of the time the charging party knew or reasonably should have known of the relevant facts and circumstances giving rise to the charge(s); otherwise, charges filed beyond ninety (90) day calendar time period shall be time barred.

The IHO has previously addressed the application of the amendment in In the Matter of Rex Eaton v. Richard Yost, IHO Order and Memorandum, 02-07TB (August 21, 2002).

While the issue was not raised at the hearing on February 13, 2003, the IHO notes that all the charges in this matter are presumptively time barred. As a matter of completeness, where there are grounds to dismiss a charge other than for being time barred, the IHO has ruled on those grounds. As discussed below, the surviving charges are presumptively time barred pursuant to Article XII, Section l of the Constitution. As McGough has not had the opportunity to demonstrate why those charges should not be time barred, he will be given the opportunity to show good cause why those charges should not be dismissed.

VIABILITY OF CHARGES

Charge 1: Associated with organized crime associate Richard Caravetta on the Caravetta “organized crime slate” and knowingly permitted the continuing influence of organized crime in Laborers Local 2.

IHO Ruling: Charge dismissed as to all parties. Issues relating to organized crime are outside the capacity of the trial board process. Under the EDP, allegations of organized crime fall under the jurisdiction of the LIUNA GEB Attorney and the Inspector General.

Charge 2: Subverted the union by hiring “non-union” personnel on a time and material basis to remodel Local 2’s new office while members with similar skills were on the out of work list.

IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties.

Charge 3: Deceitfully misrepresented the reasons “whistle blower” Bridget Gaskill was no longer employed as Local 2’s clerical secretary when they allowed Terry Bohne and Reggie Robinson to falsely and maliciously blame her for their incompetence.

IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties.

Charge 4: Allowed unfettered discussion of an illegal and unethical conspiracy to expel member McGough from Local 2 to be the main topic of discussion at the June 2001 union meeting in an effort to suppress dissent and keep the members ignorant of organized crime’s continuing influence in Local 2.

IHO Ruling: Charge dismissed as to all parties. The members enjoy a wide latitude of free speech at membership meetings. Discussions of McGough’s activity by members is protected speech. See, e.g., Eagle v. Bartlett, IHO Order and Memorandum, 98-60TB (March 26, 1999).

Charge 5: Permitted the interruption of members’ attempts to speak at union meetings without interruption when Burke asked questions about loans at the January 2002 meeting and McGough attempted to inform the members of the reasons for Caravetta’s resignation from office.

IHO Ruling: Charge dismissed as to all parties. The President is entrusted with the orderly conduct of union meetings and while such a

charge might have stood against the former President, trial board charges are precluded pursuant to an existing settlement agreement. All other parties were without requisite power to act at a meeting under the alleged course of conduct.

Charge 6: Allowed sergeant at arms, Leonard White, at the July 2001 meeting to threaten members Jim McGough and John Burke with violence for attempting to speak at union meetings. Leonard White, in the presence of witnesses, told both Jim McGough and John Burke that he was going to “kick their ass if they asked anymore questions at union meetings.”

IHO Ruling: Charge dismissed as to all parties. The President is entrusted with the orderly conduct of union meetings and while such a charge might have stood against the former President, trial board charges are precluded pursuant to an existing settlement agreement. All other parties were without requisite power to act at a meeting under the alleged course of conduct.

Charge 7: Did not prepare a budget.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Trial Board issues pertain to disciplinary matters and a trial board proceeding is not a forum for allegations of inefficiency.

Charge 8: Allowed loans to be made without knowledge or approval of executive board or members. (see Robinson letter to LIUNA V.P. and political ally Terrence Healy of April 4, 2002) and minutes of April 2002 meeting

IHO Ruling: Charge against auditors only is presumptively timebarred pending a showing of good cause. Charge as to all other parties dismissed. McGough admitted that the Executive Board had no knowledge of the loans, therefore, the Executive Board members may not be charged. Should good cause be demonstrated, the IHO will rule separately on the liability of the auditors.

Charge 9: Allowed political contributions to be made without members’ knowledge or approval (see minutes of executive board authorizing political expenditures for democratic candidates).

IHO Ruling: Charge as to Chapman, Gonzales, and the auditors is presumptively time-barred pending a showing of good cause. Charge dismissed as to any other parties. Should good cause be demonstrated, the IHO will rule separately on the liability of the auditors.

Charge 10: Caused an employee to become indebted in excess of $2000 as prohibited by Sec 503 of LMRDA. (see outside auditor’s report for 2001) and LM-2 for 2001.

Charge 11: Allowed Reggie Robinson to use his union credit cards for personal business. See $400 cash advance on union credit card on Christmas eve at 8p.m. at Marshall Fields.

IHO Ruling: Charge against auditors only is presumptively time-barred pending a showing of good cause. Charge as to all other parties dismissed for failure to state an offense.

Charge 12: Attacked John Burke while speaking at a union meeting. Ramon Zarate had to be physically restrained from physically attacking John Burke at the November 2001 union meeting.

IHO Ruling: Charge against Zarate only is presumptively time-barred pending a showing of good cause. Charge dismissed as to all other parties.

Charge 13: Terry Bohne as presiding officer unfairly and maliciously deprived McGough of the right to speak at the April meeting by not accepting his good faith assertion that he was working at the calling

IHO Ruling: Charge dismissed as to all parties for failure to state an offense. The President is entrusted with the orderly conduct of union meetings and while such a charge might have stood against the former President, trial board charges are precluded pursuant to an existing settlement agreement. All other parties were without requisite power to act under the alleged course of conduct.

Charge 14: Did not mention the upcoming constitutional convention at union meetings in 2001 and purposely scheduled the nomination meeting on a Sunday morning to minimize attendance and the possibility of a contested delegate election.

IHO Ruling: Charge dismissed as to all parties. Election procedures are solely within the jurisdiction of the LIUNA Election Officer for the International Election and not within the jurisdiction of trial board proceedings.

Charge 15: Did not discuss or debate at the December 2001 meeting the reasons for the increase in working dues as mandated by the DC convention call.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 16: Mislead the members on the economic consequences of the choice between increased monthly dues or increased working dues

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 17: Treated members unequally by offering political supporters more favorable terms for obtaining jackets than their political opponents. (see April/May 2002 newsletter).

IHO Ruling: Charge dismissed as to all parties, allegations too vague to substantiate grounds for charge.

Charge 18: Do not conduct union meetings fairly and in a constitutionally prescribed manner in that the regular order of business is not followed, reports of delegates are not given, incomplete and false financial reports are provided, and members’ approval for actions of the executive board are not sought. Not all actions of the executive board are reported as mandated by LIUNA Local constitution Article IV, Sec 4.

IHO Ruling: Charge dismissed as to all parties, allegations too vague to substantiate grounds for charge.

Charge 19: Do not allow for debate and discussion on motions in accordance with generally accepted parliamentary procedure.

Charge 20: Allowed Caravetta to be paid more than 2 weeks vacation in violation of the bylaws.

IHO Ruling: Withdrawn by McGough’s own motion.

Charge 21: Kept silent about Caravetta’s organized crime ties and conspired to keep the members ignorant of organized crime’s influence in laborers’ Loca12.

IHO Ruling: Charge dismissed as to all parties. Issues relating to organized crime are outside the capacity of the trial board process.

Charge 22: Offered to buy Caravetta out in return for his resigning without knowledge or approval of members

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 23: Allowed legal counsel to submit inflated and fraudulent legal bills for legal services not rendered, aiding and abetting in mail fraud

IHO Ruling: Charge dismissed as to all parties, outside the scope of trial board. The matter is referred to the GEB Attorney.

Charge 24: Utilized Local 2’s legal counsel to prepare in bad faith frivolous, fraudulent trial board charges against McGough.

IHO Ruling: Charge dismissed as to all parties, outside the scope of trial board. The matter is referred to the GEB Attorney.

Charge 25: Allowed Reggie Robinson and Terry Bohne to use Local 2 legal counsel as their personal defense attorney for their breaches of duty and statutory violations of the LMRDA.

IHO Ruling: Charge dismissed as to all parties, outside the scope of trial board. The matter is referred to the GEB Attorney.

Charge 26: Paid out $14,000 in severance pay to Rick Cavins in March 2001 knowing severance pay was prohibited.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Severance pay was paid by the Supervisor in accordance to policies in place at the time.

Charge 27: Allowed Local 2 legal counsel to rule on legality of legal document he prepared and to serve as counsel despite conflicts of interest.

IHO Ruling: Charge dismissed as to all parties, parties cannot be charged as a matter of law. Legal conflict of interest is a matter to be determined by legal counsel, not laymen.

Charge 28: Allowed Reggie Robinson to commit fraud upon the members of Local 2 and LIUNA by allowing Robinson to pose as the author of documents he did not author and is incapable of producing.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 29: Wasted Local 2’s money by paying exorbitant legal fees for letter writing services.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 30: Destroyed email communications from legal counsel to cover-up fraud and misdeeds and destroyed the personnel records of former business agents John Burke and Mark Tomasek

IHO Ruling: Charge dismissed as to all parties, charge does not apply to charged individuals.

Charge 31: Engaged in unethical electoral campaign tactics and allowed organized crime to influence Local 2’s election by getting Bobby Ruffolo to run for office to siphon off votes from opponents. Ruffolo did not campaign in good faith and entered the race at Caravetta’s urging to further organized crime’s goal of retaining influence in Local 2. Ruffolo is the son in law of “mob puppet” and former Matassa associate, Michael Christopher.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense and organized crime allegations outside of trial board jurisdiction.

Charge 32: Did not require the auditors to perform their duties and facilitated “no show jobs”. The auditors of Local 2, (Wimberly, Maxwell, and Buccini) each received $200/mo and made no attempts to audit from March 2001 through March 2002 in dereliction of their duties to detect financial fraud and unauthorized loans.

IHO Ruling: Charge against auditors only is presumptively time-barred pending a showing of good cause. Charge as to all other parties dismissed.

Charge 33: Approved the appointment of Terry Bohne to a combined office that had not been approved by LIUNA’s general president until Feb. 18, 2002. At the Feb. 12, 2002 meeting, without providing any advance notice to the members of Caravetta’s Feb. 8 resignation from office and of the Feb 8 emergency executive board meeting called to engineer Bohne’s appointment to a

combined office that had not yet been approved by LIUNA’s General President, the executive board and Terry Bohne made the self-serving decision not to appoint as Caravetta’s replacement as business manager his electoral opponent, John Burke, but to combine the offices of president and business manager and to appoint Terry Bohne to that unapproved office, thereby assuring that members elected on the Caravetta “Organized Crime Slate” retained control of Local 2, all to the detriment of honest union governance.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 34: Did not provide new members with copies of the out of work rules as required by the rules and prevented Bridget Gaskill from distributing information to new members that would have helped them exercise their right of self governance. (See LIUNA IG agent interview notes with Bridget Gaskill)

IHO Ruling: Charge dismissed as to all parties, charge does not apply to charged parties.

Charge 35: Allowed Mob puppet” Caravetta to select for union meetings a Cicero banquet hall that is a well known mob hangout-owned and/or controlled by members/associates of the Chicago Outfit, and permitted meetings to continue in this establishment when they knew or should have know of Carvetta’s ties to organized crime.

IHO Ruling: Charge dismissed as to all parties, no just cause for penalty against charged parties.

Charge 36: Allowed Caravetta to personally benefit from the letting of contracts in that Caravetta drank free at Al’s Restaurant and Banquet Hall, 6040 West Cermak, Cicero, Illinois in return for throwing the business to Anthony LoCascio and Sebastian Maniscalco, its proprietors who are associates of mob member Vito LoCascio. (See IBT proposed charges against William T Hogan, p 62, footnote)

IHO Ruling: Charge dismissed as to all parties, no just cause for penalty against charged parties.

Charge 37: Allowed the unfair suspension of member Jim McGough knowing that averments by Terry Healy and Bruce Monaco were false as to the policy and practice of Local 2 in treating mailed dues payments as timely if postmarked timely. Former clerical secretaries Joanne Caruso and Bridget Gaskill will testify that it has always been the policy of Local 2 to adhere to LIUNA’s policy of treating dues mailed on a timely basis as timely dues payments. Bridget Gaskill will testify that the arbitrary decision to suspend McGough was both

malicious and purposely designed so as to render him ineligible for office in the June 2003 election and to deprive him of the right to speak at union meetings.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense and charge does not apply to charged parties.

Charge 38: Lied to and deceived the members as the real reasons Bridget Gaskill was fired. Bridget Gaskill was forced to resign because she refused to advance her career by providing sexual favors to Richard Caravetta , to perform the constitutional duties assigned to Reggie Robinson, and to perform all of the duties members of the executive board were not competent to perform. Bridget was forced to sign a confidentiality agreement to obtain her pay for unused vacation. This confidentiality agreement was designed to hide from Local 2 members information essential to their right of union self governance and to cover up the misdeeds of executive board members. Adding insult to injury, the executive board of Local 2 is now suing Bridget Gaskill for loans she is unable to pay as a result of her unemployment. Local 2 will waste more money paying legal fees to collect a debt that will not cover the legal fees charged.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 39: Allowed Reggie Robinson to become delinquent in the payment of per capita taxes which caused the local to be deemed suspended by the International.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 40: Failed to notify suspended members of delinquency of their dues prior to their suspension and failed to notify of suspensions when made as required by the Local 2 Wendell Hawkins’ decision.

IHO Ruling: Charge is presumptively time-barred pending a showing of good cause.

Charge 41: Failed to provide newsletters to members from March 2001 until March 2002 because it cost too much but increased their salaries by 5% in July 2001 and voted themselves a 10% year end bonus for purportedly conducting the affairs of Local 2 properly, a claim rendered false by the recent supervision agreement .

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 42: Allowed relatives of Cicero Organized Crime Boss Michael Spano, i.e. Pam Spano, to use the facilities of Local 2 to solicit business for Ullico.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense as to charged parties.

Charge 43: Failed to report Richard Caravetta’s ties to organized crime to proper authorities after conducting a meeting whose purpose was to obtain Caravetta’s resignation because of his ties to organized crime associate Betty Loren-Maltese. Failed to report Caravetta’s saying “he was laying low for four days until this Cicero organized crime story dies down” when Betty Loren_Maltese was arrested in June 2001 and charged with Cicero Crime Boss Michael Spano with looting $10,000,000 from the mob controlled town of Cicero

IHO Ruling: Charge dismissed as to all parties. Issues relating to organized crime are outside the capacity of the trial board process.

Charge 44: Failed to obtain detailed fee bills from counsel as required by Local 2’s bylaws and policy resolution of May 11, 1999.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 45: Failed to conduct union meetings in an atmosphere of fairness where members don’t have to apologize for asking questions. Kevin Kelly

Charge 46: Allowing personal attacks to be made upon members’ integrity in their absence (June 2001 meeting) and at the May 2001 allowing Kevin Burke to make the personal work history status of McGough the subject of discussion.

IHO Ruling: Charge dismissed as to all parties. Exercise of freedom of speech during a union meeting does not give rise to trial board charges.

Charge 47: Allowed Reggie Robinson to hire his reputed mistress as Bridget Gaskill’s replacement.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 48: Allowed Terry Bohne to hire his reputed mistress as office help and to work, unsupervised at home.

1HO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 49: Increasing salaries unconstitutionally without the required approval of members at two consecutive meetings. The year end bonus of 10% constitutes a salary increase and it was not voted on at two consecutive meetings as required by LLUC, Article X, Sec 6.

IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties.

Charge 50: Increased salaries more than once in one fiscal year.

IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties.

Charge 51: Increased salaries without amending the bylaws that prohibited a salary increase before March 2002.(See Local 2 bylaws)

IHO Ruling: Charge as to Chapman, Gonzales, and Hernandez only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties.

Charge 52: Fraudulently increased salaries by $40 in June 2001 when a $ 1/hr increase in collective bargaining wages for members was interpreted fraudulently to mean an increase in constitutionally mandated salaries as well.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 53: Tolerated Reggie Robinson’s incompetence as a secretary treasurer when they knew that Bridget Gaskill had to write out for Reggie instructions on how to pronounce financial amounts with 6 or more digits for each union meeting.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Simple incompetence not grounds for trial board charges. Appropriate relief is for members to vote incompetent individuals out of office.

Charge 54: Permitting Reggie Robinson to perform incompetently for failure to balance the local’s check book, for failure to perform the duties of secretary/treasurer, for not knowing the difference between treating an expense a check when it clears the bank as opposed to when the check is cut, an admission of financial ignorance Robinson publicly acknowledged at the April 2002 meeting. Robinson is also charged with deliberate failure to notify the International that McGough’s suspension was waived and that his admission date into Local 2 should remain as August 2000.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 55: For conducting the affairs of Local 2 in such a fashion as to necessitate the imposition of a supervision to avoid a complaint for trusteeship.

IHO Ruling: Charge dismissed as to all parties. Trial board hearings are an improper forum to examine the circumstances underlying the imposition of a trusteeship or supervision.

Charge 56: Ramon Zarate is charged with obtaining signatures of members under false pretenses on a blank sign up sheet that was later altered to indicate the members approval of bogus trial board charges against member James McGough, the filing of bogus trial board charges in an attempt to unfairly deprive McGough of his LMRDA rights to speak freely at union meetings.

IHO Ruling: Charge dismissed. Charge falls under the jurisdiction of separate trial board.

Charge 57: Permitting Terry Bohne to willfully refuse to learn at the Feb 2002 union meeting the reasons for Caravetta’s resignation and depriving the members of the knowledge essential to their right of self-governance. When McGough asked if he wanted to know why Caravetta was forced to resign and what the charges against Caravetta were, Terry Bohne said “no” and Terry Healy, son in-law of mobster Angelo Fosco, misled the members into believing that the information is secret, despite its availability in the LIUNA docket to any member requesting, a policy LIUNA V.P. Healy is aware of and which is clearly spelled out in the Ethics and Disciplinary Procedure. The GEB Attorney announces these actions belatedly and summarily in the Laborers magazine.

IHO Ruling: Charge dismissed, does not apply to charged parties. Charge may have stood against prior parties against whom trial board charges may not be brought due to settlement agreement.

Charge 58: Failure to assess working dues fairly in that some members pay less working dues than others because their percentage of working dues are lower. An examination of the collective bargaining agreements Local 2 is a party to

will reveal that not all members are assessed working dues equally. The percentage or tax rate is lower for members who work for Cook County political bodies on a patronage basis than it is for members in the private sector.

IHO Ruling: Charge dismissed as moot and for failure to state an offense. The issue identified in this charge has been addressed by the International Union. In addition, a trial board proceeding is not the proper forum to address complaints of failures of the bargaining process.

Charge 59: Depositing dues assessments in Local 2’s treasury that were illegally taken from non member employee paychecks without written authorization in violation of the LMRDA.

IHO Ruling: Charge dismissed as to all parties. Alleged conduct cannot be traced to charged parties and subject matter outside of trial board jurisdiction.

Charge 60: Allowing the District Council to distribute double zero (“00”) funds on a non pro-rata basis. Local 2 allows smaller locals to receive the same amount of illegally obtained funds to the detriment of Local 2’s treasury.

IHO Ruling: Charge dismissed as to all parties. Alleged conduct cannot be traced to charged parties and subject matter outside of trial board jurisdiction.

Charge 61: Allowing the District Council to increase the working dues percentage to 1.75% from an illegally and non authorized working dues increase of 1.5% that was instituted by the trustee of the Chicago Laborers District Council in 1998 without the approval of local unions affected, in violation of the LMRDA.

IHO Ruling: Withdrawn by Plaintiff. Charge does not apply to charged defendants.

Charge 62: Allowed McGough’s web site to disturb the day to day activities of Local 2 according to Ramon Zarate’s malicious trial board charges

IHO Ruling: Charge dismissed against all parties. Charge falls under the jurisdiction of separate trial board.

Charge 63: Conspired to deprive McGough of his LMRDA right to speak freely and criticize union officials by filing harassing trial board charges .(See Robinson’s trial board charges against McGough that were administratively dismissed by the GEB Attomey)

IHO Ruling: Charge dismissed against all parties. Charge falls under the jurisdiction of separate trial board. Plaintiff could file counter-charges in the separate trial board.

Charge 64: In bad faith, deceptively mailed trial board charges late so as to unfairly deprive McGough of time necessary to respond to frivolous charges that were administratively dismissed by the GEB Attorney as against LIUNA policies

IHO Ruling: Charge dismissed as to all parties. Charge falls under the jurisdiction of separate trial board.

Charge 65: Failed to obtain for members perusal and their own edification free copies of the decisions of the Independent Hearing Officer and Appellate Officer despite requests to do so.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 66: Failed to inform members of the terms of the new collective bargaining agreement and to seek their ratification of terms proposed.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 67: Failed to conduct the affairs of LIUNA in accordance with LIUNA policies, rules, and regulations.

IHO Ruling: Charge dismissed as to all parties, allegations too vague to substantiate grounds for charge.

Charge 68: Failed to stop the use of union funds for the self aggrandizement of Reggie Robinson, Terry Bohne, and Richard Caravetta and wasted union money printing their names on the back of union financed T- shirts and on union signs.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense.

Charge 69: Failed to notice that the August 2001 per Capita tax was not paid until Jan 2002.

IHO Ruling: Withdrawn by Plaintiff.

Charge 70: Permitted Terry Bohne and Reggie Robinson to lie to the members when they both told members at the Feb 2002 meeting that Bridget Gaskill

resigned voluntarily for failure to mail per capita tax checks when in fact no check had been cut for mailing.

IHO Ruling: Charge dismissed. No just cause for penalty against charged parties. There is no allegation that the charged parties conspired with Bohne or Robinson who made the statements to the membership. Even assuming arguendo that the charged parties should have later raised the issue with Bohne or Robinson, there is no just cause for a penalty for not doing so.

Charge 71: Allowed Reggie Robinson to distribute Profit and Loss statements to members that Reggie Robinson admitted at the April 2002 meeting were inaccurate, unreliable, and not trustworthy-all reflecting on Reggie Robinson’s incompetence as secretary-treasurer.

IHO Ruling: Charge dismissed, does not apply to charged parties.

Charge 72: Allowing Reggie Robinson to run for secretary treasurer on their slate when they knew or should have known that Reggie Robinson was incompetent and did not possess the skills or financial intelligence to perform competently as secretary treasurer. Trustee Dalton fired Reggie Robinson for incompetence in October 2000 for depositing checks in the safe and not the bank. –

IHO Ruling: Charge dismissed as to all parties, failure to state an offense. Subject matter purely political and does not support the grounds for a disciplinary offense.

Charge 73: Failed to provide to members requesting information essential to the exercise of their right of self governance. Failed to provide at the October 2001 meeting or subsequent meetings a report from convention delegates on constitutional amendments enacted and to provide a report of the convention despite McGough’s request to do so.

IHO Ruling: Charge dismissed, does not apply to charged parties. Charged parties were not delegates to the convention.

Charge 74: Failed to retain legal counsel that had no conflicts of interest in representing Local 2. Counsel to Local 2, Hogan, Marren, and McCahill is counsel to the Chicago Laborers District Council whose interests are different than and in conflict with Local 2’s. Hogan, Marren, and McCahill is also counsel to laborers Local 152 whose jurisdiction encroaches on Local 2’s. Hogan, Marren, and McCahill did not provide Local 2 with information on its representational conflicts so as to obtain the informed consent of Local 2 after complete and full disclosure.

IHO Ruling: Charge dismissed as to all parties, parties cannot be charged as a matter of law. Legal conflict of interest is a matter to be determined by legal counsel, not laymen.

Charge 75: Failed to inform and obtain membership approval for convention trips, and other expenditures, actions requiring the approval of the membership.

IHO Ruling: Charge dismissed as to all parties, allegations too vague to substantiate grounds for charge.

Charge 76: Applied LIUNA rules, regulations, and policies in a discriminatory, arbitrary fashion so as punish political opponents economically, politically, and socially. (McGough suspension and denial of rights to speak at union meetings)

IHO Ruling: Charge dismissed as to all parties, no just cause to assess a penalty against charged parties for the breach of parliamentary procedure.

Charge 77: Failed to protect the democratic rights of LIUNA members to participate fully, without fear, abuse, or intimidation in all union affairs.

IHO Ruling: Charge dismissed as to all parties, no just cause for penalty against charged parties on one time infraction as described orally by McGough.

Charge 78: Deprived member McGough to his full share in Union self-government and attempted to extort late payment fee from McGough for unfair and malicious suspension.

IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties.

Charge 79: Deprived members of Local 2 of the right to participate in the democratic decisions of the Union by allowing suspended members to vote at union meetings. (see newsletter of April/May where policy of allowing suspended members to attend union meetings is published)

IHO Ruling: Charge dismissed as to all parties. Subject matter does not give rise to trial board jurisdiction.

Charge 80: Deprived Local 2 members of the right to participate in free, fair, and honest elections. An examination of Francisco Perez’s phone records for Jan thru April 2001 will show he called Latino members who voted on Mar 10, 2001, utilizing union assets obtained in the course of union business as business agent.

IHO Ruling: Charge dismissed as to all parties. Election procedures are solely within the jurisdiction of the LIUNA Election Officer and not within the jurisdiction of trial board proceedings. See Constitution, Article XII, Section 8.

Charge 81: Failed to conduct local unions meetings in an atmosphere of fairness. (see minutes of June 2001 meeting where members discussed openly tactics to eliminate McGough as a member of Local 2)

IHO Ruling: Charge dismissed as to all parties. Exercise of freedom of speech during a union meeting does not give rise to trial board charges.

Charge 82: Failed to apply fairly and uniformly all union rules and laws. McGough was singled out for retaliation because of his web site and criticism of LIUNA officials and his allegations about organized crime influence in Local 2 and the Laborers Union.

IHO Ruling: Charge dismissed, does not apply to charged parties.

Charge 83: Corruption, discrimination, and anti-democratic procedures were permitted. –

IHO Ruling: Charge dismissed as to all parties, allegations too vague to substantiate grounds for charge and lacks specificity to enable a party to defend against charge. In addition, charge does not apply to charged parties.

Charge 84: Failed to reasonably inform the membership as to how union funds were invested or used.

IHO Ruling: Withdrawn by Plaintiff.

Charge 85: Defamed John Burke when they knowingly distributed as campaign literature altered documents they knew to be false and libelous.

IHO Ruling: Charge dismissed as to all parties, failure to state an offense. In addition, parties cannot be charged as a matter of law. The falsity of campaign literature cannot be the basis of disciplinary charges. See, e.g., In the Matter of Local 703, IHO Order and Memorandum 00-45P (February 22, 2001).

Charge 86: Failed to obtain competitive bids on major expenses and did not inform Local 2 members whenever they sought the approval of LIUNA’s Inspector General for expenditures.

IHO Ruling: Charge as to Chapman and Gonzales only is presumptively time-barred pending a showing of good cause; Charge dismissed to all other parties.

Charge 87: Permitted union funds to be invested in a manner which resulted in the personal profit or advantage of Terry Bohne and Reggie Robinson, both of whom received loans from Local 2 at below market interest rates when the money could have received a higher return if invested elsewhere.

IHO Ruling: Charge dismissed, does not apply to charged parties. McGough admitted that the Executive Board had no knowledge of the loans, therefore, the Executive Board members may not be charged.

Charge 88: Permitted contracts for rendering service that resulted in the personal profit or advantage of union officers. Caravetta benefited by the hiring of his non-union Cicero cronies and increased his stature with organized crime bosses in Cicero by so doing.

IHO Ruling: Charge dismissed, does not apply to charged parties.

Charge 89: Permitted officers Bohne and Robinson to accept personal profit or special advantage from the action of officer Richard Caravetta in receiving loans at below market interest rates.

IHO Ruling: Charge dismissed, does not apply to charged parties.

Charge 90: Permitted the local union to make loans to officers for the purpose of financing the private business of Reggie Robinson and Terry Bohne.

IHO Ruling: Charge dismissed, does not apply to charged parties.

Charge 91: Allowed Organized Crime to influence the selection of delegates to the constitutional convention when the allowed Caravetta to slate Johnny Retondo as a delegate instead of other elected members. (See confidential District Council Court Monitor report and hearings on Anthony Solano)

IHO Ruling: Charge dismissed as to all parties. Issues relating to organized crime are outside the capacity of the trial board process.

Charge 92: Permitted Richard Caravetta, acting as an agent of the International Union with influence in the placement of insurance contracts , to have compromising personal ties with Union Life Insurance Company insurance broker Pam Spano.

IHO Ruling: Charge dismissed, does not apply to charged parties.

Charge 93: Permitted the publication of the April/May 2002 union newsletter that announced decisions that had not yet been approved by the members.

IHO Ruling: Charge dismissed, unclear whether charge applies to charged parties. Moreover if charge does apply, no just cause for penalty against charged parties.

Charge 94: Fraudulently operated the out of work list so as to reward friends and punish political opponents. Eddie Anderson was kept off the out of work list for 90 days in January 2002 as punishment for being “whistle-blower” Bridget Gaskill’s boyfriend.

IHO Ruling: Charge dismissed, does not apply to charged parties.

Charge 95: Retaliated against member Anderson because of his association with whistle-blower Bridget Gaskill. Eddie’s employer was instructed by someone at the union not to rehire or call Eddie back to work, a subject now under investigation by the LIUNA Inspector General’s office. [Note: Correction made by Plaintiff should state Williams not Anderson]

IHO Ruling: Withdrawn by Plaintiff, does not apply to charged parties.,

Charge 96: Failed to provide the outside auditor’s report to members requesting. Rather than give the members what they are entitled to receive and see, Local 2 member and LIUNA V.P Terrence Healy advised Local 2 at the April 2002 meeting to obtain LIUNA’s approval for providing members with a copy of the auditor’s report, less a precedent for openness and transparency be established. The refusal to provide the auditor’s report was an effort to cover-up and keep hidden financial irregularities and mismanagement in Local 2.

IHO Ruling: Charge dismissed, does not apply to charged parties.

Charge 97: Failed to provide accurate, reliable financial reports to members despite promises to do so. At the April 20002 meeting, Robinson admitted that all reports previously furnished were inaccurate and that new reports would have to be issued, which he has failed to do.

IHO Ruling: Charge dismissed, does not apply to charged parties.

Charge 98: Failed to install financial controls to assure members that union funds were not stolen, misused, or badly invested (see supervision agreement) (See outside auditor’s cover letter on 2001 audit for Local 2)

IHO Ruling: Charge dismissed as moot, subject addressed by imposition of supervision.

Charge 99: Failed to inform the members of the voluntary supervision agreement they entered into on May 1, 2002, 13 days prior to the May 14, 2002 union meeting at which the members ratification will be sought.

IHO Ruling: Charge dismissed, failure to state an offense. The Supervisor had the responsibility to ensure the membership received notice.

Charge 100: Maliciously and deliberately failed to correct McGough’s admission date into Local 2 so as to unfairly and fraudulently deprive him of eligibility for union office in June 2003.

IHO Ruling: Charge dismissed, does not apply to charged parties.

CONCLUSIONS

1. Charges 1, 4-7, 13-19, 21-31, 33-39, 41-48, 52-60, 62-68, 70-77, 79-83, 85, 87-94, and 96-100 are dismissed in their entirety as to all parties.

2. Charges 2, 3, 9, 10, 40, 49, 50, 51, 78, and 86 against Chapman and Gonzales are presumed time-barred; Charge 51 against Hernandez is presumed time-barred; Charge 12 against Zarate is presumed time barred. At the hearing on March 6, 2003, McGough should demonstrate good cause why these charges should not be dismissed pursuant to Article XII, Section 1, of the Uniform Local Union Constitution. These charges are dismissed as to all other parties.

3. Charges 8, 11, and 32 against the auditors are presumed time-barred. At the hearing on March 6, 2003, McGough should demonstrate why these charges should not be dismissed pursuant to Article XII, Section 1, of the Uniform Local Union Constitution. These charges are dismissed as to all other parties.

4. Charges 20, 61, 69, 84, and 95 were withdrawn by Plaintiffs own motion.

DECISION

Charges 1, 4-7, 13-19, 21-31,33-39, 41-48, 52-60, 62-68, 70-77, 79-83, 85, 87-94, and 96-100 are dismissed in their entirety as to all parties. Charges 20, 61, 69, 84, and 95 are dismissed as being withdrawn by McGough.

At the hearing on March 6, 2003, McGough will be given the opportunity to demonstrate to the IHO why Charges 2, 3, 9-12, 32, 40, 49-51, 78, and 86

should not be dismissed as being time-barred pursuant to Article XII, Section 1, of the Uniform Local Union Constitution. Only these charges remain outstanding. The hearing originally set for March 6, 2003, will pertain only to the determination of whether there is good cause to retain these charges.

There is no appeal of this Order as it is not a final order. Appellate rights do not arise until a final order on all charges is issued by the IHO.

PETER F. VAIRA

INDEPENDENT HEARING OFFICER

APPENDIX B

IHO MARCH 12,2003 ORDER

Local Union 2, Brookfield, IL

Laborers’ International Union of North America Independent Hearing Officer

Docket No.: 03-04TB

Decided: March 12, 2003

ORDER AND MEMORANDUM

PROCEDURAL HISTORY

This Order and Memorandum addresses whether James McGough, the Charging Party, has demonstrated good cause why certain trial board charges should not be dismissed for failure to file them within 90 days, as required by Article XII, Section 1 of the Uniform Local Union Constitution (Constitution). James McGough originally filed omnibus charges against current and former members of the Executive Board of Laborers’ International Union of North America (LIUNA) Local Union 2 (Local 2) with General Executive Board (GEB) Attorney Luskin in May 2002. The charges were subsequently amended and refiled on November 12, 2002. The General President referred the charges to the Independent Hearing Officer (IHO) for a trial board hearing because the Charged Parties were disqualified to serve on the Trial Board. See letter from Terence M. O’Sullivan, General President, to Peter F. Vaira, Independent Hearing Officer, of 1/24/03 (IHO Dkt. tab 2).

The IHO ruled that McGough’s trial board charges did not meet the specificity requirements of the Labor Management Reporting and Disclosure Act (LMRDA) for disciplinary charges filed against a union member. See IHO Order of January 30, 2003 (IHO Dkt. tab 3). Given the number of charges involved, on February 13, 2003, the IHO held a pretrial hearing for demonstration of probable cause for the 100 charges filed. At the hearing, the IHO reviewed each charge with McGough for sufficient particularity and probable cause. The Charged Parties were permitted to attend the hearing and make arguments regarding McGough’s probable cause presentation. The IHO dismissed all charges against all parties except for Charges 2, 3, 9-12, 32, 40, 49-51, 78, and 86. See IHO Order of February 25, 2003 (IHO Dkt. tab 6).

2 In the Matter of James McGough v. Terry Bohne, et al. 2003

On March 6, 2003, the IHO held a hearing in which McGough was given the opportunity to demonstrate to the IHO why Charges 2, 3, 9-12, 32, 40, 4951, 78, and 86 should not be dismissed as time-barred pursuant to Article XII, Section 1, of the Uniform Local Union Constitution. The Charged Parties were permitted to attend the hearing and make arguments regarding McGough’s presentation of good cause.

DISCUSSION

Timeliness of Charges

The LIUNA 2001 International Convention amended Article XII, Section 1 of the Constitution as follows:

Except for good cause shown [trial board] charges must be filed within ninety (90) days of the time the charging party knew or reasonably should have known of the relevant facts and circumstances giving rise to the charge(s); otherwise, charges filed beyond ninety (90) day calendar time period shall be time barred.

The IHO has previously addressed the application of the amendment in In the Matter of Rex Eaton v. Richard Yost, IHO Order and Memorandum, 02-07TB (August 21, 2002). At the hearing on March 6, 2003, McGough averred that he first had knowledge` or reason to know of certain alleged fiscal improprieties after the outside auditor’s report given to the membership in March or April 2002. Therefore such related charges were timely filed as they were filed within 90 days of the date when McGough could have had knowledge of the alleged incident. McGough also averred that with regard to other allegations, he reported the incidents to the Inspector General or the GEB Attorney and he was instructed to not file trial board charges regarding the Local 2 Executive Board during the then ongoing investigation„ of former officers Terry Bohne, Reggie Robinson, and Richard Caravetta. Such related charges were also timely filed as McGough had just cause for not bringing the charges within 90 days of the alleged incidents.

Charges Against Auditors

McGough presented several charges against the auditors of Local 2. These charges present a problem of constitutional interpretation. Article IV, Section 4, G of the Constitution states as follows:

3 In the Matter of James McGough v. Terry Bohne, et al. 2003

The Auditors shall at the end of the year audit the books of the Secretary-Treasurer and check the entries with bank deposits, statements and other data or memoranda. They shall render a detailed report annually to the Local Union, showing financial transactions and condition of the Local Union for the preceding year.
The Auditors shall have the right to require the production of books, records and other data or memoranda from all officers, officials or employees who participated in any financial transaction and to request their appearance for the purpose of making such report or explanation as may be deemed necessary by them.
When a Local Union has retained a Certified Public Accountant to prepare its annual audit, then the foregoing subsections shall not apply. The Certified Public Accountant shall be retained by the Executive Board. The Auditors shall cooperate with the Certified Public Accountant in the preparation of such audit.

In this matter, the Local Union has consistently employed an outside certified public accountant for at least the past ten years. Thus, the auditors are relieved of their duties by the Constitution.

McGough contends that notwithstanding the foregoing constitutional provisions, because the auditors were receiving $200 per month, they should have been required to perform some audit services, and should have caught the improprieties alleged by McGough, otherwise they were holding no-show jobs. There is little guidance on the role of the auditors in the policy statements of the LIUNA General Presidents, nor are there any decisions on the subject by the GEB Hearings Panels. The position of auditor is an anachronism of LIUNA, adopted into the Constitution when the local unions operated as fraternal brotherhoods, with little or no professional outside assistance. The evolution of the labor movement and the passage of the Labor Management Reporting and Disclosure Act effectively rendered the auditor position far different than originally intended. Although it appears that funding a position which has no power or duties is not a good use of funds, the IHO holds that auditors are not required to perform any functions once the local has retained a certified public accountant. Hence, the auditors cannot be faulted for not discovering the items listed in this charge.

Page 4 is being rescanned and will be added later.

5 In the Matter of James McGough v. Terry Bohne, et al. 2003

IHO Ruling: Charge as to Chapman, Gonzales, and Hernandez stands. The auditors are dismissed pursuant to the Discussion, supra. Charge dismissed as to any other parties. McGough is directed to file a statement of full disclosure on the specifics of this charge. The statement should include the date and amount of the contributions, the recipients, and what role Chapman, Gonzales, and Hernandez played in authorizing the contributions.

Charge 10: Caused an employee to become indebted in excess of $2000 as prohibited by Sec 503 of LMRDA. (see outside auditor’s report for 2001) and LM-2 for 2001.

IHO Ruling: Charge stands as to Chapman and Gonzales only. The auditors are dismissed pursuant to the Discussion, supra. Charge dismissed as to any other parties. McGough is directed to file a statement of full disclosure on the specifics of this charge. The statement should specify the person to whom the loan was made, the amount, the date of the loan, and how Chapman and Gonzales were responsible for approving the loan.

Charge 11: Allowed Reggie Robinson to use his union credit cards for personal business. See $400 cash advance on union credit card on Christmas eve at 8p.m. at Marshall Fields.

IHO Ruling: The auditors are dismissed pursuant to the Discussion, supra. Charge as to all other parties dismissed for failure to state an offense.

Charge 12: Attacked John Burke while speaking at a union meeting. Ramon Zarate had to be physically restrained from physically attacking John Burke at the November 2001 union meeting.

IHO Ruling: Charge stands against Zarate only. Charge dismissed as to all other parties.

Charge 32: Did not require the auditors to perform their duties and facilitated “no show jobs”. The auditors of Local 2, (Wimberly, Maxwell, and Buccini) each received $200/mo and made no attempts to audit from March 2001 through March 2002 in dereliction of their duties to detect financial fraud and unauthorized loans.

IHO Ruling: Charges as to all parties are dismissed. McGough asserts that the Executive Board created no-show jobs by permitting the auditors to be paid $200 per month without assigning them duties. The Constitution requires that the auditor position be filled. Their salary is set by the membership. The Constitution relieves the auditor of any

6 In the Matter of James McGough v. Terry Bohne, et al. 2003

duties if the local retains a certified public accountant. The IHO cannot find a disciplinary violation on the part of the Executive Board members and the auditors in acting in conformance with the Constitution. See Discussion, supra.

IHO Ruling: Charge is dismissed as to all parties for failure to state an offense. Conduct complained of in Charge 40 is in compliance with current LIUNA policy. The Local Union has no duty to notify a member that he or she is suspended for failure to pay dues on time. The individual member is required to keep informed as to his or her status, and to insure that dues are paid on time. The decision of In the Matter of Local 2 (Wendell Hawkins), IHO Order and Memorandum, 01-02P (February 23, 2001) does not require the member to be notified of his or her suspension.

Charge 49: Increasing salaries unconstitutionally without the required approval of members at two consecutive meetings. The year-end bonus of 10% constitutes a salary increase and it was not voted on at two consecutive meetings as required by LLUC, Article X, Section 6.

IHO Ruling: Charge stands as to Chapman and Gonzales. Charge dismissed to all other parties. McGough is directed to file a statement of full disclosure on the specifics of this charge. The statement should include the date of the two increased salaries in 2001, proof that the increases were not voted upon as required by the Constitution, and how Chapman and Gonzales were involved in the approval of these increases.

Charge 50: Increased salaries more than once in one fiscal year.

IHO Ruling: Charge stands as to Chapman and Gonzales only. Charge dismissed to all other parties. McGough is directed to file a statement of full disclosure on the specifics of this charge. The statement required for Charge 49 may also incorporate this Charge.

Charge 51: Increased salaries without amending the bylaws that prohibited a salary increase before March 2002.(See Local 2 bylaws)

7 In the Matter of James McGough v. Terry Bohne, et al. 2003

IHO Ruling: Charge stands as to Chapman, Gonzales, and Hernandez only. Charge dismissed to all other parties. McGough is directed to file a statement of full disclosure on the specifics of this charge. The statement should include the date the salaries were increased, whose salaries were increased, what Local 2 by-law prohibited the increase, and what role Chapman, Gonzales, and Hernandez played in the salary increases.

Charge 78: Deprived member McGough to his full share in Union self-government and attempted to extort late payment fee from McGough for unfair and malicious suspension.

IHO Ruling: Charge stands as to Chapman, Gonzales, and Hernandez. Charge dismissed to all other parties. McGough may present evidence relating to this charge limited to the circumstances surrounding the July 21, 2001 meeting. Local 2 is directed to give McGough access to the Executive Board and General Membership meeting minutes for July 2001.

Charge 86: Failed to obtain competitive bids on major expenses and did not inform Local 2 members whenever they sought the approval of LIUNA’s Inspector General for expenditures.

IHO Ruling: The portion of the charge regarding failure to submit competitive bids stands only as to Chapman and Gonzales. All other parties are dismissed as to that portion of the charge. The remaining allegation pertaining to failure to inform the membership of consultation with the Inspector General is dismissed as to all parties. This charge is limited to the remodeling of the Local 2 union hall in 2001. The allegations made by McGough relating to the purchase of jackets and the Christmas party are not subjects of this count and are hereby dismissed.

CONCLUSIONS

1. Charges 2, 3, 10, 49, 50, 51, and 86 stand as to Chapman and Gonzales only and are dismissed against all other parties. Charges 9 and 78 stand as to Chapman, Gonzales, and Hernandez only and are dismissed against all other parties. Charge 12 stands as to Zarate only and is dismissed against all other parties.

2. Charge 40 is dismissed in its entirety as to all parties.

3. Charges 8, 11, and 32 against the auditors are dismissed in their entirety.

8 In the Matter of James McGough v. Terry Bohne, et al. 2003

DECISION

Charges 2, 3, 9, 10, 12, 49, 50, 51, 78, 86 stand. Charges 8, 11, 32, and 40 are dismissed.

McGough is directed to file his statement of full disclosure with the IHO and Chapman, Gonzales, Hernandez, and Zarate by April 15, 2003.

The hearing on the merits of the charges against Chapman, Gonzales, Hernandez, and Zarate is scheduled for May 1, 2003.

The Supervisor for Local 2 is requested to permit McGough to examine the Executive Board and General Membership meeting minutes for July 2001.

The Supervisor for Local 2 is requested to submit to the IHO the following documents: the outside auditor report for the year-end audit 2001; the Executive Board and General Membership meeting minutes for July 2001, November 2001, December 2001, March 2002, and April 2002.

This is not a final Order, and is not appealable to the Appellate officer. Appellate rights do not arise until a final order on all charges is issued by the IHO.

PETER F. VAIRA
INDEPENDENT
HEARING OFFICER

McGough v. Bohne

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