508
1
2 -----------------------------------X
3 In the Matter of
4 The Trusteeship Proceeding
Of Local Union 1001
5 Chicago, Illinois.
6 Docket Number 03-21T
7 -----------------------------------X
8
Hilton Palmer House
9 17 East Monroe Street
Chicago, Illinois 60603
10
11 November 13, 2003
9:30 AM
12
13
14
15 B e f o r e:
16 PETER F. VAIRA, ESQ.
Messrs. Vaira & Riley, P.C.
17 1600 Market Street - 2650
Philadelphia, Pennsylvania 19103
18
19 INDEPENDENT HEARING OFFICER.
20
21
22
23
24
25
509
1 APPEARANCES:
2 Messrs. THOMAS & ASSOCIATES
Office of the GEB Attorney
3 LIUNA
Federal Reserve Building
4 600 Atlantic Avenue
12th Floor
5 Boston, Massachusetts 02210-2211
6 By: ROBERT M. THOMAS, JR., Esq., of Counsel
7
Messrs. WINSTON & STRAWN
8 Attorney for Local Union 1001
35 West Wacker Drive
9 Chicago, Illinois 60601-9703
10 BY: MATTHIAS A. LYDON, Esq., of Counsel
SAMUEL MENDENHALL, Esq., of Counsel
11
12 Messrs. FARACI & FARACI
Attorney for Local Union 1001
13 203 North LaSalle Street
Suite 2350
14 Chicago, Illinois 60601
15 BY: PETER S. FARACI, Esq., of Counsel
16
17 PRESENT:
18 KATHLEEN M. NAGLE, Esq., Messrs. Vaira & Riley
19
20
21
22
23
24
25
510
1 THE INDEPENDENT HEARING OFFICER: Gentlemen,
2 ready to go? I believe we are now hearing from Mr.
3 Thomas.
4 MR. THOMAS: Yes. At this time, assuming
5 she's here, we would like to call Debra Chianelli.
6 THE INDEPENDENT HEARING OFFICER: Miss
7 Chianelli, if you're here.
8 Right over there, ma'am. Miss Chianelli, the
9 court reporter will administer an oath.
10 (Witness duly sworn.)
11 THE INDEPENDENT HEARING OFFICER: Good
12 morning, Miss Chianelli.
13 This is a labor arbitration to determine --
14 on the complaint to determine whether or not Local 1001
15 should be put into Trusteeship. I'm the Hearing
16 Officer. And you're being questioned by Mr. Robert
17 Thomas, who is from the International Union. He's
18 called the GEB Attorney. And there's a collection of
19 lawyers, a whole team, representing 1001. One is Mr.
20 Lydon, Mr. Mendenhall, and Mr. Faraci, and his father,
21 Mr. Faraci. So we'll hear from somebody.
22 MR. LYDON: I don't think his father is here.
23 THE INDEPENDENT HEARING OFFICER: In his
24 honor I just recognize him.
25 THE INDEPENDENT HEARING OFFICER: Gentlemen,
511
1 let's go.
2 DEBRA CHIANELLI,
3 called as a witness on behalf of the Petitioner, having
4 been first duly sworn, was examined and testified as
5 follows:
7 BY
8 MR. THOMAS:
9 Q. Good morning. Miss Chianelli, you and I have
10 never met or spoken, have we?
11 A. No.
12 Q. Are you a member or an employee of 1001 or
13 both?
14 A. I'm employee.
15 Q. An employee but not a member?
16 A. No.
17 Q. How long have you been employed at 1001?
18 A. Four years.
19 Q. Four years?
20 A. Yes.
21 Q. So that would be since 1999?
22 A. Yes.
23 Q. Any particular day in 1999 do you remember
24 starting?
25 A. It was May 12th, 1999.
512
1 Q. What were you doing prior to that time?
2 A. I worked as the Director of Operations in an
3 investigative background screening company. We do
4 background screenings for the Nuclear Regulatory
5 Commission.
6 Q. Here in Chicago?
7 A. Yes.
8 THE INDEPENDENT HEARING OFFICER: Go a little
9 closer to the mike. Okay.
10 BY MR. THOMAS:
11 Q. If I heard you correctly, you did background
12 screenings?
13 A. Yes. Security clearances for the Nuclear
14 Regulatory Commission.
15 Q. That was for prospective employees coming in?
16 A. Yes.
17 Q. What caused you to change your employment?
18 A. It was a very stressful job.
19 Q. And how did you come to be looking for a job
20 in the Labor Union?
21 A. I had heard that Shirley Esposito was looking
22 for an assistant, and I applied.
23 Q. Okay. I don't know his relation to you.
24 Robert Chianelli is what relation to you?
25 A. He's my husband.
513
1 Q. So presumably you heard about it through your
2 husband?
3 A. Yes.
4 Q. Shirley Esposito had what position or has
5 what position at 1001?
6 A. She had the position of Office Manager, and
7 she was also Recording Secretary.
8 Q. So you applied to be her assistant?
9 A. Yes.
10 Q. And that's the job you got and took in the
11 middle of 1999.
12 A. Yes.
13 Q. How many clerical people were there when you
14 started in '99?
15 A. There was two other girls and Shirley. So
16 there was three total.
17 Q. So let's -- Shirley, there was you, and two
18 other --
19 A. And two other people.
20 Q. Who were they?
21 A. Angela Coglienese.
22 Q. You have to help us with the spelling.
23 A. C-o-g-l-i-e-n-e-s-e.
24 Q. And the other one?
25 A. Kelly Canchola.
514
1 Q. Kelly Canchola?
2 A. Yes. C-a-n-c-h-o-l-a.
3 Q. So of the four Shirley was the most senior?
4 A. Yes.
5 Q. What were the other positions? Did they have
6 titles, secretaries, Administrative Assistant?
7 A. One was a receptionist and the other one was
8 a dues clerk.
9 Q. Which was which?
10 A. Kelly was the dues clerk and Angela was the
11 receptionist.
12 Q. Your title would have been Assistant to the
13 Office Manager or something like that?
14 A. Yes.
15 Q. Between the two of you, Shirley and yourself,
16 what was the breakdown in actual work responsibilities?
17 A. I assisted her in typing duties, answering
18 the phone at that point and things like that.
19 Q. Is Shirley still employed there?
20 A. No.
21 Q. Did she step down?
22 A. Shirley retired.
23 Q. When did she retire?
24 A. August of 2000.
25 Q. And presumably you then became the Office
515
1 Manager?
2 A. I assumed part of her duties, yes.
3 Q. Has there been a shift in how all that's
4 divvied up?
5 A. Some of it.
6 Q. Could you explain?
7 A. I did some of the work with the death benefit
8 claims, and things like that, which now Angela does,
9 the receptionist. But I assumed most of Shirley's
10 duties.
11 Q. Thank you.
12 When you first got there, who was doing the
13 remittance reports to the Fund?
14 A. Shirley.
15 Q. And did that continue through August of 2000
16 when she retired?
17 A. Yes.
18 Q. So at any point did you become involved in
19 doing the remittance reports?
20 A. Yes, I did.
21 Q. And about when was that?
22 A. I would say sometime in April of 2000.
23 Q. April of 2000? So shortly before she
24 retired.
25 A. Yes.
516
1 Q. Prior to April of 2000, had you had any role
2 at all in the preparation of the remittance reports?
3 A. No.
4 Q. So what did you -- how did you learn to do
5 remittance reports?
6 A. Shirley became ill, had to go in for surgery.
7 So that was around the end of April. And she sat me
8 down and in a half hour's time told me what to do with
9 the sheets, to copy from the month before.
10 Q. Um-hum.
11 A. That the totals were the same.
12 Q. Okay. So you had a previous month's example
13 in front of you as she was explaining this to you?
14 A. Yes.
15 Q. And your instructions were to simply copy
16 those numbers?
17 A. Yes.
18 Q. Did you have any other conversations with
19 anyone else about how to handle those reports?
20 A. No.
21 Q. Who would ultimately sign them before they
22 would go to the Funds?
23 A. Nick Gironda.
24 Q. And you would present them to Mr. Gironda for
25 his signature?
517
1 A. Yes.
2 Q. And then were they mailed to the Funds?
3 A. Yes.
4 Q. Did the hours ever change for the listed
5 employees?
6 A. No.
7 Q. So in the approximately three years that
8 you've been doing that the names and the hours have all
9 remained the same?
10 A. Yeah.
11 Q. Certainly by summer of 2002 there were some
12 changes, weren't there?
13 A. If someone -- for example, Shirley, if she
14 came off -- she retired, so she would come off of it.
15 Q. Right.
16 A. So it would be minus those hours.
17 Q. Did you ever in the summer of 2002 or
18 thereafter get instructions from the Funds that some of
19 this paperwork was not proper and needed to be changed?
20 A. No.
21 Q. If you could, let's take a look at Exhibit 8
22 which is -- I'll make sure you get it. These go from
23 oldest to newest. And just so there's no confusion,
24 what we have here in Exhibit 8 is one remittance report
25 for every July for each year. We didn't obviously put
518
1 in each report all the way back. So if you would go
2 back to the back of this exhibit, the last page you'll
3 see 2003. And then as you go in you'll see 2002 and so
4 forth.
5 A. Um-hum.
6 Q. So if you page in if you could, to 2001. Do
7 you have that one?
8 A. Yes.
9 Q. By the way, you were full-time all these
10 years that you've -- these four years you worked at the
11 Union, correct?
12 A. Yes.
13 Q. That's a 40 hour work week?
14 A. Yes.
15 Q. And the other people who are full-time like,
16 let's say, Mr. Gironda, he's full-time and 40 hours a
17 week also, right?
18 A. Yes.
19 Q. So just as we look at this one, 2000 -- the
20 year 2000 -- excuse me. 2001. We have a number of
21 people who are listed there, and some of these people
22 are listed at 160 hours and some are listed at 120.
23 What's your understanding of why there was a difference
24 between 120 and 160?
25 A. I have no idea.
519
1 Q. So this is an example of your just putting
2 the numbers down as were on the previous month?
3 A. Yes.
4 Q. So other than the instruction from Shirley to
5 simply repeat the same numbers, you had no additional
6 instructions on what numbers to fill in in that right
7 column?
8 A. No, I didn't.
9 Q. With respect to your own time entry, did it
10 ever strike you as odd that you were listed as 120?
11 A. No.
12 MR. FARACI: Object.
13 BY MR. THOMAS:
14 Q. Did you have any understanding why Mr.
15 Caruso, for example, would be listed as 160 and you
16 would be listed as 120.
17 A. No.
18 Q. Then on the following page it lists a couple
19 more names, and down at the bottom it has Mr. Gironda's
20 signature. Could you just walk us through how this
21 happens? In other words, you finish the paperwork and
22 then did you hand this to Mr. Gironda or did you --
23 A. Yes.
24 Q. And then he signs it and gives it back to
25 you?
520
1 A. Yes.
2 Q. And then you mail it to the Funds.
3 A. Yes.
4 Q. Is there anything else other than what we
5 just described?
6 A. No.
7 Q. So let's go down these names if we could.
8 Mr. Capasso? You know Mr. Capasso?
9 A. Yes.
10 Q. What position does he have with the Local?
11 A. He's an Auditor.
12 Q. How often do you see Mr. Capasso on the
13 premises?
14 A. It varies. Maybe once a month.
15 Q. Okay. And would that be for a meeting?
16 A. Yes.
17 Q. Floyd Grogan? What position does he have
18 there?
19 A. I believe he's an Auditor.
20 Q. How often do you see Mr. Grogan there?
21 A. I'm sorry. He's not an Auditor. He's Vice
22 President.
23 Q. Okay. How often do you see Mr. Grogan there?
24 A. A couple times a week.
25 Q. For what purpose typically does he come in?
521
1 A. Meetings.
2 Q. Craig Kumerow, was he full-time?
3 A. Yes.
4 Q. What was his position if you know?
5 A. Business Agent.
6 Q. Mr. Bates, do you remember what his position
7 was?
8 A. At this time?
9 Q. Either now or then.
10 A. Right now he's a Business Agent.
11 Q. And back then?
12 A. I believe he was Sergeant-at-Arms.
13 Q. Okay. So back when he was Sergeant-at-Arms,
14 how often was he there?
15 A. Once a month.
16 Q. For the meeting?
17 A. Yes.
18 Q. Mr. Cataudella back at the time, do you
19 remember what position he had?
20 A. He was a Business Agent.
21 Q. If I told you he was an Auditor, would that
22 sound right?
23 A. Yes.
24 Q. So that's a different role from Business
25 Agent, right?
522
1 A. Yes.
2 Q. So as an Auditor back in 2001, how often was
3 Mr. Cataudella there?
4 A. Once a month.
5 Q. For the same meeting?
6 A. Yes.
7 Q. Mr. Roa, was he on the Executive Board back
8 at that time?
9 A. I don't recall.
10 Q. He was not one of the full-time people at the
11 Union itself though, was he, Victor Roa?
12 A. No.
13 Q. Did you see him once a month?
14 A. Yes.
15 Q. Same meeting?
16 A. Yes.
17 Q. Your husband, Robert Chianelli, if my
18 information is correct, he was a Delegate to the
19 District Council; is that right?
20 A. Yes.
21 Q. What was his work at the time, his actual
22 job?
23 A. He worked for the City of Chicago.
24 Q. Streets and Sanitation?
25 A. Yes.
523
1 Q. So his only position at 1001 was Delegate to
2 the District Council; is that right?
3 A. Yes.
4 Q. And he would be there once a month for the
5 meeting?
6 A. Yes.
7 Q. Otherwise he was working at Streets and
8 Sanitation.
9 A. It's the Department of Transportation for the
10 City of Chicago.
11 THE INDEPENDENT HEARING OFFICER: He would
12 also have to be -- to attend meetings in District
13 Council probably once a month, right?
14 THE WITNESS: Yes.
15 MR. THOMAS: Thank you.
16 BY MR. THOMAS:
17 Q. Okay. Then if we go forward to the next
18 year, July of 2002, at least as initially typed, the
19 names and numbers remain the same, right?
20 A. Well the form changed.
21 Q. Okay. How did it change?
22 A. There's just one total count for hours --
23 actually it got easier.
24 Q. Help us out. What do you mean by that?
25 A. If you look back on 2001, you had to list
524
1 each week separately.
2 Q. Yes. I see. So now you just have the
3 monthly totals.
4 A. Yes.
5 Q. But the monthly totals, at least as
6 originally typed, appear to be the same. Does that
7 sound right?
8 A. Yes.
9 Q. So that's again an example of taking the
10 previous information and simply carrying it forward.
11 A. Yes.
12 Q. The handwritten notes where it says for Mr.
13 Capasso: "Do not post hours per KMG, Floyd Grogan, do
14 not post hours per KMG, Victor Roa, do not post hours
15 per KMG." That's not your handwriting I take it.
16 A. No.
17 Q. Did there come a time when you got
18 instructions to make changes to how you were doing
19 things in this 2002 time frame?
20 MR. LYDON: What did you say?
21 BY MR. THOMAS:
22 Q. Did there come a time when you were given
23 instructions to change how you were completing these
24 forms.
25 A. Yes.
525
1 Q. What were the circumstances.
2 A. Just not to report certain names on there.
3 Q. Which names were those?
4 A. I believe it was James Capasso, Floyd Grogan,
5 and Victor Roa.
6 Q. Who gave you those instructions?
7 A. Nick Gironda.
8 Q. Did Mr. Gironda indicate where he got that
9 information from?
10 A. No.
11 Q. And if you'll notice, by July of 2002 the
12 numbers for your hours had gone up to 160 reflecting
13 full-time employment. Do you see that?
14 A. Yes.
15 Q. At what point did you switch recording your
16 own hours from 120 to 160?
17 A. It would have to be around the same time
18 frame. I don't recall exactly.
19 Q. So when Mr. Gironda started receiving
20 information from the Funds about changes --
21 MR. LYDON: Objection. Assumes facts not in
22 evidence.
23 MR. THOMAS: She said --
24 MR. LYDON: She -- he says from the time Mr.
25 Gironda got evidence from the Funds. She doesn't know
526
1 that.
2 THE INDEPENDENT HEARING OFFICER: That's
3 true. Rephrase it.
4 BY MR. THOMAS:
5 Q. I think your previous testimony was that
6 around this time of July, 2002, you got information
7 from Mr. Gironda indicating don't write down any hours
8 for Mr. Capasso, Mr. Grogan, and Mr. Roa, right?
9 A. Yes.
10 Q. And your understanding was that he got that
11 information from the Funds.
12 A. I don't know that for certain.
13 Q. But it was approximately that same time, if I
14 understood your answer correctly, that you got
15 instructions to put your hours at 160.
16 A. Yes.
17 Q. Who else had been listed at 120 who was
18 increased to 160?
19 A. Kelly Canchola and Angela Coglienese.
20 Q. They were the two people that you've
21 identified as clerical people there?
22 A. Yes.
23 Q. Did you have any understanding of why their
24 numbers were to be increased from 120 to 160?
25 A. No.
527
1 THE INDEPENDENT HEARING OFFICER: May I
2 address Miss -- I'm -- when you first started, Miss
3 Esposito was the Office Manager and she was the elected
4 Recording Secretary, correct?
5 THE WITNESS: Yes.
6 THE INDEPENDENT HEARING OFFICER: How long
7 did she hold both those positions at the same time?
8 THE WITNESS: Just until she got sick, which
9 would have been from -- the time when I got there that
10 I knew of. So that would be from May of '99 until
11 April.
12 THE INDEPENDENT HEARING OFFICER: It could be
13 longer than that.
14 THE WITNESS: Yes.
15 THE INDEPENDENT HEARING OFFICER: Now, who is
16 -- at the present time are there any office personnel
17 holding offices such as Recording Secretary?
18 THE WITNESS: No.
19 THE INDEPENDENT HEARING OFFICER: She was the
20 last one.
21 THE WITNESS: Yes.
22 BY MR. THOMAS:
23 Q. Miss Chianelli, from the time you started in
24 1999, you've always worked a full-time schedule, right?
25 A. Yes.
528
1 Q. 40 hours a week?
2 A. Yes.
3 Q. Do you have any understanding, going back to
4 the 2001 remittance report, why it was the remittance
5 reports would list you under actual hours worked as 30
6 hours a week rather than 40.
7 A. No.
8 MR. THOMAS: Nothing further, Mr. Vaira.
9 THE INDEPENDENT HEARING OFFICER: Thank you.
10 Gentlemen, anything?
11 MR. LYDON: No questions.
12 THE INDEPENDENT HEARING OFFICER: Thank you,
13 ma'am.
14 (Witness excused.)
15 THE INDEPENDENT HEARING OFFICER: Okay.
16 MR. THOMAS: If Mr. Capasso is here, we would
17 call Mr. Capasso to the stand.
18 THE INDEPENDENT HEARING OFFICER: Mr.
19 Capasso.
20 Mr. Capasso, you can take that up there with
21 you. All right, sir, the young lady will swear you in.
22 (Witness duly sworn.)
23 JAMES CAPASSO,
24 called as a witness on behalf of the Petitioner, having
25 been first duly sworn, was examined and testified as
529
1 follows:
2 DIRECT EXAMINATION
3 BY
4 MR. THOMAS:
5 Q. Good morning, Mr. Capasso.
6 A. Good morning.
7 Q. You and I have never met or spoken, have we?
8 A. No, sir.
9 Q. My name is Bob Thomas. I work on a contract
10 basis for the International.
11 Let me first understand your professional
12 background. Do you have a college degree?
13 A. No. I did go, but I didn't graduate.
14 Q. Okay. When did you attend college?
15 A. Back in '61, '62.
16 Q. So I take it then you didn't get any degree.
17 There is no post graduate degrees.
18 A. That's correct.
19 Q. Could you summarize for us your employment
20 history from that time period?
21 A. Yeah. Of course I was working summers while
22 I was in school in the Streets and Sanitation for the
23 what's now called the Asphalt Section. And I worked,
24 after I got out of school, and I got a job in the
25 office at 15th and Ashland at approximately June of
530
1 1963.
2 Q. At where?
3 A. The Asphalt Section main office, and that was
4 approximately 1963. From that point on I became
5 Supervising Timekeeper. We moved over to the Bureau of
6 Equipment building in 1966. We moved over there on
7 Good Friday, 1966. And there I worked until -- at that
8 particular office until I left in '86. But I rose from
9 different positions, from Civil Service, Supervising
10 Timekeeper, to Civil Service or Career Service
11 Administrative Assistant III, to Career Service
12 Director of Administration. And then during the
13 Washington Administration they came in and created
14 Finance Officers because I was doing both operations in
15 Finance. So at that time I was given the title by the
16 Washington Administration of Supervisor of
17 Administrative -- Supervisor of Administrative
18 Services/Finance Officer because at that time they made
19 Finance Officers in every bureau of the department, and
20 I was one of them.
21 Q. And that took you up to 1986; is that right?
22 A. That's correct. And then in 1986 -- in June
23 of '86 I went over to the Pension Fund as Executive
24 Director because I was a Trustee there from, I believe,
25 December of '67, '68, right around that time, through
531
1 until I became the Executive Director.
2 Q. Let me back up for a second. When you first
3 became a Trustee, 1967, you would have been in your mid
4 20's?
5 A. That's correct.
6 Q. How did you get that job?
7 A. I was appointed by the Board, and then
8 subsequent to that every two years I had to be elected
9 by the membership.
10 Q. Membership of what?
11 A. The City of Chicago employees who belonged to
12 the Laborers' Annuity Benefit Fund of Chicago.
13 Q. Was it a particular Union that voted you to
14 that position?
15 A. No, not the Union, the Board of Trustees had
16 to vote me into -- as a Trustee.
17 Q. And the initial appointment was how? Who
18 appointed you initially?
19 A. The Trustees.
20 Q. So first it's an appointment and then it's an
21 election.
22 A. That's correct.
23 Q. Okay.
24 A. And just as though if someone dies or
25 something, the Board was able to then appoint someone
532
1 else to fill the unexpired term, and then he has to go
2 or she has to go and go up for election every two
3 years.
4 Q. Do you recall who the Trustees were when you
5 were first appointed? Do you remember any of those
6 names?
7 A. James Jardine, he was the -- Jardine
8 Filtration Plant is named after him today.
9 Q. He was an employer of the Trustees?
10 A. No. He was one of the City Trustees. He was
11 the Commissioner of Water at the time. Then there was
12 the City Treasurer, who was ex officio, then there was
13 a City Comptroller, which is ex officio. I want to say
14 at the time I came on the City Treasurer was Otto
15 Loeser, and the -- I'm sorry. The City Comptroller was
16 Otto Loeser and the Treasurer was Marshall Korshak.
17 Q. You were a timekeeper for Streets and
18 Sanitation at the time?
19 A. Supervising Timekeeper; that's correct.
20 Q. Supervising timekeeper. And you were 25, 26?
21 A. Somewhere around there. I believe I got the
22 title probably in '65, somewhere around there.
23 Q. And the Pension Fund that you became Trustee
24 of in 1967, what's the full title of that?
25 A. Laborers' and Retirement Board Employees'
533
1 Annuity and Benefit Fund of Chicago. Because the
2 police and the fire fund office employees are not
3 uniformed employees, so they can't belong to those
4 uniform Pension Funds. They belong to our Fund.
5 Q. And just so we're clear here, there's a
6 Pension Fund that Mr. Jorgensen currently is head of --
7 A. That's correct.
8 Q. -- and there's a Pension Fund that you're
9 currently head of.
10 A. That's correct.
11 Q. And they're different things.
12 A. They're different venues. Let me explain
13 that for a minute.
14 Q. Please. That was my next question.
15 The venue that Mr. Jorgensen works under is a
16 Taft-Hartley Fund who is basically run -- I mean is
17 conducted under the laws of ERISA. Now that was -- the
18 Employee Retirement Income -- in the Retirement Income
19 Security Act and John Eirlinborne (Urlinbor) (Phonetic) from Illinois
20 in the early 70's was the Illinois Congressman that
21 brought that to the Congress. So that started here in
22 Illinois.
23 So Jorgensen and the Health and Welfare out
24 in Westchester, they run under the auspices of ERISA.
25 We are a public employee Pension Fund. We are defined
534
1 Benefit Employee Pension Fund who runs not under ERISA.
2 We run under -- we mirror it, because there's good
3 government initiatives in it, but we run under the
4 State of Illinois Statutes. Our planned document is
5 based on the written and governed by Illinois Statutes,
6 the City of Chicago, and our Trustees cannot change
7 anything administratively or benefit wise unless they
8 go down to Springfield and get the General Assembly,
9 both the senators and the House of Representatives in
10 Springfield and change the law.
11 Q. Okay.
12 A. That's it.
13 Q. The City of Chicago laboring employees, let's
14 say rank and file employee at Streets and Sanitation,
15 their retirement benefits would go to which Fund?
16 A. The City of Chicago employees has nothing to
17 do with Health and Welfare. All of their contributions
18 come to my Fund, Laborers' Annuity Benefit Fund of
19 Chicago.
20 Q. The answer to that is they go to your Fund?
21 A. Absolutely.
22 Q. And what's your understanding of what
23 employees would have retirement benefits --
24 contributions rather, go to Mr. Jorgensen's Fund as
25 opposed to the rank and file Streets and Sanitation?
535
1 A. I would assume that the contractors -- I
2 believe that Mr. Jorgensen is a Multi-Employer Pension
3 Fund. And all of the contractors that have collective
4 bargaining agreements in the, I want to say District
5 Council, if I've got this right. That all of the
6 employers pay into the Health and Welfare out in
7 Westchester for their employees. It's quite different
8 because that's a Multi-Employer Pension Fund. Whereas
9 in the City of Chicago and in my Fund there's only one
10 employer.
11 Q. So if I'm getting you right, your Fund deals
12 with City of Chicago employees.
13 A. Only.
14 Q. Only.
15 THE INDEPENDENT HEARING OFFICER: Non
16 uniform.
17 THE WITNESS: Absolutely. Yes, sir.
18 MR. LYDON: I couldn't hear.
19 THE INDEPENDENT HEARING OFFICER: Non
20 uniform.
21 BY MR. THOMAS:
22 Q. Okay. Thank you.
23 And it's your understanding as well that the
24 employees of a LIUNA Local would also have their
25 benefits go to Mr. Jorgensen's Fund. They're not --
536
1 A. Oh yeah. Yeah. Right, exactly.
2 Q. They're not City of Chicago employees.
3 A. No, absolutely not.
4 Q. So while you say ERISA may not technically
5 apply, there still are certainly fiduciary issues --
6 A. Absolutely.
7 MR. LYDON: He's talking about -- he said
8 ERISA didn't apply to the Fund he runs.
9 MR. THOMAS: That's right.
10 THE INDEPENDENT HEARING OFFICER: That's what
11 he's saying.
12 Finish your question. I think you were
13 correct in saying --
14 BY MR. THOMAS:
15 Q. So while you indicate that ERISA technically
16 doesn't apply to your Fund, there's still fiduciary
17 principles at work in your job, right?
18 A. Absolutely.
19 Q. Part of your job formerly as Trustee and
20 currently as Executive Director is to safeguard the
21 assets of these Funds for the benefit of the --
22 A. Participants.
23 Q. Participants.
24 A. Absolutely.
25 Q. And it's your understanding and expectation
537
1 that Mr. Jorgensen has the same responsibilities with
2 respect to his Fund, right?
3 A. Yes.
4 Q. Are there systems in place at your Fund to
5 determine that the City is doing its job correctly in
6 terms of making sure that the actual contributions that
7 are supposed to be paid are paid and collected and so
8 forth?
9 A. It's a very important point.
10 Q. How does that work?
11 A. The City of Chicago every two weeks e-mails
12 us a rundown of every single employee that pays into
13 our Pension Fund. They send us basically their entire
14 process where the employee has his entire check. We
15 can see his gross. We can see his deductions. And of
16 course we look at the pension deduction. We get that
17 every two weeks. We call it a ledger card.
18 Q. Okay.
19 A. That ledger card every two weeks is -- when
20 we do audit it, we audit that card and every card so
21 that every two week pay period that the correct
22 deductions are taken for -- the eight and a half per
23 cent of his gross salary is taken exclusive of
24 overtime.
25 Q. How do you audit that? You say you audit
538
1 that.
2 A. We're doing a system now that will help us
3 audit that, but that was done by hand.
4 Q. Okay.
5 A. For each -- each employee for each pay
6 period, so that we can make sure that pension
7 deductions are taken for each pay period and that there
8 is no either over, where they might have taken out
9 money on overtime, because the pension deduction is
10 exclusive of overtime, or maybe the timekeeper missed
11 the deduction and they're short. If they're short, we
12 create a receivable. If they're over, we create a
13 payable.
14 Q. Okay. So you have a staff of people that
15 does that.
16 A. Absolutely.
17 Q. Approximately how many people is that?
18 A. About 19 altogether. And then these -- and
19 then this is done pay period by pay period by pay
20 period. At the bottom of that card are all the
21 deductions, eight and a half per cent, of the employee
22 is broken up into lines. Six and a half per cent for
23 his own annuity, one and a half per cent for his spouse
24 annuity, and a half a per cent for a post-retirement
25 three per cent compounded interest -- three per cent
539
1 compounded interest COLA, Cost of Living Adjustment,
2 and then of course then the City contributions come
3 into play. Those ending balances become the opening
4 balance for the next year and so on and so on, until a
5 man or lady retires, and their pension is based on the
6 highest four consecutive years of the last ten years of
7 service based on age, service, and salary.
8 Q. I don't want to cut you off, I really don't,
9 but please try to just answer the question that I ask
10 because --
11 MR. LYDON: I think he did his best.
12 MR. THOMAS: But he went quite a bit further.
13 THE INDEPENDENT HEARING OFFICER: That's
14 okay. He's demonstrating the system they have. That's
15 all right.
16 BY MR. THOMAS:
17 Q. All right. And it's important to you, is it
18 not, to have the Funds get these numbers right.
19 A. Absolutely.
20 Q. Both with respect to whether the City is
21 recording the names and numbers correctly, as well as
22 that the correct amounts of money come to your Funds;
23 is that right?
24 A. Absolutely.
25 Q. So you were a Trustee -- as you rose up
540
1 through the ranks with the City, your City employment,
2 you were a Trustee for that entire 19 year period; is
3 that right?
4 A. Yes.
5 Q. Okay.
6 A. Until '86, June of '86.
7 Q. Right. And at that point you became the
8 Executive Director.
9 A. That's correct.
10 Q. So you stepped down from your City employment
11 and took a full-time job with the Funds.
12 A. Yes.
13 Q. By the way, is it more than Pension -- your
14 Fund, is it just Pension or is it Pension plus Welfare
15 or --
16 A. Just Pension. The Health comes from the City
17 of Chicago. They have an active and retiree Health
18 Care Program.
19 Q. So just Pension then.
20 A. We are not Health and Welfare.
21 Q. Got it. What were the circumstances of your
22 applying for that position?
23 A. Because the Executive Director that we hired
24 a year and a half before was asked to go downstairs to
25 the Municipal Fund because the Executive Director down
541
1 there died going home one night on the elevated tracks,
2 and they wanted to make sure it was someone from
3 Chicago, so they asked him if he would not come down,
4 and I took over the position at Laborers'. It was
5 because of a death.
6 Q. I understand. But the -- what I'm really
7 getting at is did the Trustees appoint you or were you
8 asked to run? How did that work?
9 A. I was recommended by one of the Trustees. It
10 was -- I was recommended for the position, and the
11 Board approved and voted to allow me to take the
12 position.
13 Q. And was that in effect a permanent
14 appointment?
15 A. Yes.
16 Q. It's not like you had to --
17 A. No.
18 Q. -- you know, run or anything like that. You
19 got the position and that's what you've been doing.
20 A. No longer a Trustee. So you're out of that.
21 You're an employee of the Fund.
22 Q. Your pension contributions during that period
23 -- let me break this into two pieces. Prior to 1986
24 your pension contributions from the City on your behalf
25 went to the Fund that you're now head of; is that
542
1 correct?
2 A. Correct.
3 Q. 1986 forward your pension contributions from
4 your current employment go to this -- the very same
5 Fund that you're head of as well, correct?
6 A. Yes.
7 Q. So at the Fund --
8 A. That is a condition of employment. You have
9 to. No matter if you're a City employee or in the
10 Fund, you have to pay into it, since 1935 when we were
11 created, as a condition of employment.
12 Q. So from 1963 to now your pension
13 contributions have gone to your Fund.
14 A. That's correct.
15 MR. LYDON: The initial date, '63 you said?
16 THE WITNESS: I worked summers. That goes
17 back to 1958.
18 BY MR. THOMAS:
19 Q. Okay. So it --
20 A. If you have to look at the record --
21 Q. Let's put it this way so we don't quibble
22 over dates. From whenever you first started at the
23 City --
24 A. Yes, sir.
25 Q. -- your contributions have gone to that Fund.
543
1 A. Yes, sir.
2 Q. Could you describe in general terms your job
3 duties as Executive Administrator?
4 A. Yeah, I can. The best way I can put it on
5 the table is that I will probably somewhat quote the
6 International Foundation. I think we all know what the
7 International Foundation is. The Trustees have the
8 fiduciary responsibility to run the day to day -- I
9 mean the fiduciary responsibility to run the Fund. But
10 the day to day operation of the Fund is left to the
11 Deputy -- to the Executive Director, or in your case,
12 Jorgensen, the Administrator. The day to day
13 operations of the Fund. And that's -- you can look
14 that up in the International Foundation Employee
15 Handbook.
16 Q. I'm sure it's right.
17 How large is your staff?
18 A. About 19. Staff? My office staff.
19 Q. Yes.
20 A. Approximately 19 people.
21 Q. So all 19 are working on this audit function?
22 In other words, let me --
23 A. Well no. There's --
24 Q. Do you have -- are there other people other
25 than the people who do that audit function who work?
544
1 A. These people -- all of the people are broken
2 up into Administration, Payroll, Accounting, and
3 Benefits. So different --
4 Q. For a total of 19?
5 A. Yeah. Including me.
6 Q. But all 19 of them, even though they're in
7 different departments, play a hand in that audit
8 function you just described?
9 A. No. Just in Benefits and one particular lady
10 in Accounting.
11 Q. Okay.
12 A. And these are all ladies that are very
13 dedicated to what they do.
14 Q. Your employment as Executive Director since
15 1986 has been continuous, has it not?
16 A. Yes, sir.
17 Q. So there's been no interruptions in your
18 service?
19 A. Never.
20 Q. And that's a full-time position.
21 A. Yes, sir.
22 Q. Is it 9:00 to 5:00 or a little more than 9:00
23 to 5:00?
24 A. Sometimes I get there -- I have been getting
25 there years ago, a few years back at a quarter to 7:00
545
1 and would work to approximately a quarter to 5:00, 5:00
2 o'clock. Recently I've been getting there 7:30, 8:00
3 o'clock. Our hours don't start until 8:30, but I'm
4 always there early and I'm always there late.
5 Q. If you were actually to calculate the real
6 hours, it would be more than 40 hours.
7 A. Absolutely. We work a seven hour day.
8 Q. Officially, right?
9 A. Yes. 8:30 to 4:30.
10 Q. Unofficially you work --
11 A. Oh, me, yes. But the office is open for
12 seven hours.
13 Q. Are any of your employees at the Funds
14 members of Local 1001?
15 A. No.
16 Q. Are you a member of Local 1001?
17 A. All my life.
18 Q. So other than you, no one else.
19 A. No, sir.
20 Q. Perhaps this is obvious, but there's -- to
21 your knowledge, there's no collective bargaining
22 agreement or anything of the sort between Local 1001
23 and your Fund, correct?
24 A. Absolutely not.
25 Q. Completely separate entities?
546
1 A. Completely separate entities.
2 Q. Your membership in Local 1001 relates back to
3 your prior employment with the City, right?
4 A. Absolutely, when I first started as a
5 youngster.
6 Q. You joined Local 1001 as soon as you started
7 working for the City?
8 A. Yes.
9 Q. And that would have been in the 50's?
10 A. '58 is my first time as a youngster, yes. I
11 hate to give away my age.
12 Q. I haven't asked.
13 MR. LYDON: You're younger than I am.
14 Could we go off the record for one second?
15 THE INDEPENDENT HEARING OFFICER: Yes?
16 (Whereupon a discussion was had
17 off the record after which the
18 following proceedings were had:)
19 BY MR. THOMAS:
20 Q. When you first started in 1986 as Executive
21 Director, what was your level of compensation annually?
22 A. About 50.
23 Q. $50,000 a year?
24 A. Um-hum.
25 Q. What is it today?
547
1 A. 106.
2 Q. Now I assume from your position that you
3 don't have any active -- you're fully employed in your
4 current job, correct?
5 A. Yes.
6 Q. I mean it's a serious job, right?
7 A. Absolutely.
8 Q. You do not on a daily or ongoing basis have
9 any functional role that you play at Local 1001, do
10 you?
11 A. On a daily basis it depends on when I have to
12 contact them. You must understand that maybe not on a
13 daily basis, but certainly on a weekly basis because I
14 represent their participants. I am one of their
15 members.
16 Q. So you might call them for some reason.
17 A. I have, since I moved over to the Pension
18 Fund, still have a lot of issues that I could help them
19 with.
20 Q. As Executive Director of the Funds.
21 A. Yes. But as I became Executive Director, my
22 focus became more on Pension issues, issues that I
23 could talk with them about in terms of budgeting, as I
24 always did. Because before '86 there was a lot of
25 issues that I dealt with, with asphalt staffing,
548
1 lay-offs, new hires. So there's a lot involved in just
2 running the Asphalt Department and the finances of the
3 Asphalt Department. But once I became over -- to your
4 question, but once I came over as their Executive
5 Director I wasn't there on a day to day basis, but with
6 my expertise and my knowledge, it goes back so many
7 years, first of all, operations, and then secondly
8 about finances. There's where my expertise came in to
9 help them. And that has gone on ever since. But on a
10 day to day or a week to week basis I would talk to them
11 about their membership -- I deal with their membership
12 everyday. They come into my office, they ask me
13 questions. Nick or Sam or Bobby, they call me up about
14 questions about our participants.
15 Q. Let me -- I don't want to cut you off, but
16 let's make sure we're focused on the same question
17 here. When you call them or take their calls, you are
18 acting in your capacity as head of the Fund, right?
19 A. I walk a line between -- yes, basically, but
20 you have to let me answer the question.
21 Q. Please.
22 A. I walk a fine line between both the Union and
23 the Pension Fund. I represent the Pension Fund and
24 their participants. But I'm also a Union member and
25 I'm also an Auditor. So where I can help them with
549
1 their participants, or whatever I can help them with, I
2 do. I've always done that. I never --
3 Q. When you're helping them --
4 A. Yes, sir.
5 Q. -- when you're helping them --
6 A. Yes, sir.
7 Q. -- in what capacity are you helping? What
8 title?
9 A. Both.
10 Q. Both.
11 A. Yes, sir. Because how could you distinguish
12 what is a Pension benefit that I'm helping them as
13 Executive Director, or if they ask me something, "Okay,
14 Jim, how many sidewalk crews did you have out? How
15 many hole plugging, how many street repair crews did
16 you have out? The City is trying to reduce patch
17 crews. They only want to put one crew in each
18 district." "Wait a minute, Nick," or "Wait a minute,"
19 to whoever would call me. You know, there is a
20 scenario where the City has a right to protect the
21 right away in Streets and San. So they may ask me
22 questions. So how do I divide that question into--
23 Q. When someone calls you out from 1001 with a
24 question, and you answer that question and you help
25 them, you're telling me that you're acting not as the
550
1 head of the Pension Board --
2 A. No, I am not saying that. I am not saying
3 that.
4 Q. Let me finish the question.
5 Are you saying that you're really not acting
6 as head of the Pension, but you're acting as an Auditor
7 for Local 1001?
8 A. No, I did not say that. What I'm saying is
9 that I know I'm a Union member. I know I have this
10 affiliation. But I'm answering them with my knowledge
11 as an Executive Director with the idea that I have this
12 relationship with them. That's all. You didn't ask --
13 you didn't relate to me what was the question. If it's
14 a question on pension issues or my -- or how we run our
15 business at our place, that's one thing. How do I
16 answer them if they call me up about past experiences
17 at the City? How would I answer that? Under what
18 capacity? Let me ask you that question.
19 Q. Mr. Capasso, you are fully employed --
20 full-time employed with the Pension.
21 A. Yes, sir.
22 Q. You have an officer position with Local 1001,
23 correct?
24 A. Yes, sir.
25 Q. That is not full-time employment, is it?
551
1 A. That's correct.
2 Q. It's not close to full-time employment, is
3 it?
4 A. That's correct.
5 Q. How often do you actually physically go to
6 the premises of Local 1001?
7 A. Whenever I'm called upon.
8 Q. How often would that be approximately?
9 A. Could be a month, once a month, it could be
10 once every three months, two months, it could be three
11 times in a month. It depends on when they call me.
12 Q. Your title there is Auditor, right?
13 A. Yes.
14 Q. What's the function of an Auditor?
15 A. The function of the Auditor is to make sure
16 that there's an audit every year.
17 Q. And you don't do that audit, do you?
18 A. No, I do not.
19 Q. So there's nothing actually for you to do as
20 an Auditor in that, right?
21 A. That's correct.
22 Q. They farm that out to a CPA firm, right?
23 A. Yes, sir.
24 Q. So that's taken care of, right?
25 A. Yes, sir.
552
1 Q. So your position as Auditor is really -- it's
2 a title, but there's no real auditing work for you to
3 be doing, right?
4 A. Accounting work, no.
5 Q. And so the calls you get from Local 1001 are
6 most typically pension related calls, are they not?
7 A. Both. Pension and operations.
8 Q. Operations. But operations is not the same
9 as auditing, is it?
10 A. No.
11 Q. So your title as Auditor at the Local is --
12 that's an officer position that does not require a
13 substantial amount of your time, correct?
14 A. That's correct.
15 THE INDEPENDENT HEARING OFFICER: Mr.
16 Capasso--
17 THE WITNESS: Yes, sir.
18 THE INDEPENDENT HEARING OFFICER: -- to
19 become an Auditor you have to either be appointed and
20 then run. So eventually you had to run for office over
21 there, right?
22 THE WITNESS: Yes, sir.
23 THE INDEPENDENT HEARING OFFICER: And you had
24 to be in good standing to do so.
25 THE WITNESS: Yes, sir.
553
1 THE INDEPENDENT HEARING OFFICER: That means
2 your dues have to be paid and there can't be a break.
3 I'm asking you all these questions -- you pay your
4 dues.
5 THE WITNESS: Yes, sir.
6 THE INDEPENDENT HEARING OFFICER: Is that --
7 how do you pay them? Do you just check off --
8 THE WITNESS: No. I was never on the dues
9 check off. Dues check off started after I left the
10 City.
11 THE INDEPENDENT HEARING OFFICER: You pay by
12 yourself.
13 THE WITNESS: By check, yes, sir.
14 BY MR. THOMAS:
15 Q. I just want to follow up on that and make
16 sure I understand it.
17 You write a separate check to the Local for
18 your dues?
19 A. Yes, sir.
20 Q. The term "dues check off", are you familiar
21 with that term?
22 A. Only when I hear it from the gentleman there.
23 It's -- a dues check off is that the City collects the
24 dues, as I understand it, out of the employee's check
25 and then remits that to the Union.
554
1 Q. As an Auditor you're required by the
2 Constitution to cooperate with the CPA firm that's
3 doing the actual audits for the Local, right?
4 A. Yes.
5 Q. Have you done that?
6 A. Yes.
7 Q. So for example, in the 1990's that was Thomas
8 Havey, right?
9 A. Right.
10 Q. And to your knowledge they checked the dues
11 check off issues with respect to members of the Local,
12 right?
13 A. I did not get that finite with Thomas Havey,
14 I did not.
15 Q. But your understanding is that their work in
16 that regard means to actually look at the payroll
17 records to see that there's an appropriate deduction
18 from those paychecks, right?
19 A. I would assume so, yes.
20 Q. But in your case there's no dues check off
21 because you've written a separate check.
22 A. Yes, sir.
23 Q. So even assuming that -- let me back up and
24 ask a prior question.
25 Do the Trustees of the Pension understand
555
1 what you've just said to us which is that part of your
2 job is acting as a Local 1001 representative?
3 A. What Pension?
4 Q. The Pension you're head of. Did the
5 Trustees--
6 A. That I'm an officer?
7 Q. No. The question is more specific.
8 You've just described that a large part of
9 your interaction with Local 1001 members --
10 A. I did not say a large part.
11 Q. I think it would be best if you waited until
12 the end of the question, okay, so we have the same idea
13 in mind.
14 To the extent that you interact with Local
15 1001 members, you indicated that part of that
16 interaction as head of the Pension Fund and part of
17 that is as an officer of 1001, right?
18 A. I would say yes.
19 Q. Okay. Do your Trustees know that you view
20 part of your role while you're working at the Pension
21 40 hours plus a week is actually wearing the 1001 hat?
22 A. I don't think that's a fair assessment of
23 what I think.
24 Q. Well the question was do your Trustees know?
25 A. My Trustees know that I'm an officer of Local
556
1 1001, yes.
2 Q. Do they know that when you talk to Local 1001
3 members you view yourself as acting as an officer of
4 1001 separate from your Pension position.
5 MR. LYDON: I object. That was a misleading
6 question. Go ahead. It sounds like -- he's capable of
7 answering it.
8 THE INDEPENDENT HEARING OFFICER: I think he
9 understands, and if you don't understand, tell us.
10 THE WITNESS: You can't put me in a situation
11 to say that every time I talk to them on the phone I am
12 relating as an officer of Local 1001.
13 BY MR. THOMAS:
14 Q. I didn't say that.
15 A. Well I think you inferred it.
16 Q. I was trying to repeat back to you what you
17 said to me and say however you would characterize those
18 interactions, do your Trustees know that you're
19 speaking to participants in a way that is somehow not
20 purely as the Executive Director of the Pension Fund.
21 MR. LYDON: I'll pose an objection. I think
22 it's a misleading question.
23 THE INDEPENDENT HEARING OFFICER: Yeah.
24 THE WITNESS: You can --
25 THE INDEPENDENT HEARING OFFICER: Time out.
557
1 Time out. Let me deal with that. Your objection is?
2 MR. LYDON: It's misleading.
3 THE INDEPENDENT HEARING OFFICER: The issue
4 here, gentlemen, is this -- just to keep us on track.
5 I understand you want to develop this. The issue here
6 is what does he do for 1001. And in doing so you're
7 indicating that is he derelict in his duties to his
8 full-time job? Is that what you're saying?
9 MR. THOMAS: I wouldn't necessarily put it as
10 aggressively as you just did. I'm simply trying to
11 understand his answer when he says that he's actually
12 doing real work for 1001 as an officer because he's
13 taking all these phone calls when he's at the Pension
14 Board and he views that as part of his job, and I'm
15 trying to distinguish between his full-time job and
16 this other job that he's describing.
17 THE INDEPENDENT HEARING OFFICER: I'm sitting
18 here as a finder of fact. I'm not too concerned if
19 he's on bad paper or not with his own Fund. My concern
20 is what's going on with this Union. Now he may be on
21 good paper or they may not be crazy about what he's
22 doing, but I'm only concerned with 1001.
23 MR. LYDON: And they may be in full approval.
24 THE INDEPENDENT HEARING OFFICER: They may be
25 in full approval. Whatever it is. But my concern is
558
1 what he does for 1001.
2 BY MR. THOMAS:
3 Q. How many hours a week are you physically at
4 1001?
5 A. Not very many hours during the week. Usually
6 not --
7 Q. Usually zero, right?
8 A. Yes, that's correct.
9 Q. And maybe once a month you go to a meeting?
10 A. Yes.
11 Q. And of your, let's say, 40 to 50 hours at the
12 Pension Fund, how many of those hours do you think,
13 honestly, you are actually handling 1001 inquiries --
14 1001 specific inquiries.
15 A. I could never quantify that. They're
16 inquiries maybe about a particular person or a
17 particular problem, but basically, you know, a lot of
18 our participants are Local 1001.
19 Q. Okay. Let me rephrase it then. Your title
20 at 1001 is Auditor, right?
21 A. Yes, sir.
22 Q. So of the calls you get relating to 1001
23 matters or 1001 members, how much -- how much of those
24 are auditing calls?
25 A. Purely auditing?
559
1 Q. Yes.
2 A. When you say you should have an audit within
3 the year?
4 Q. Yeah. In other words, that would be within
5 the title of that job description.
6 A. To be honest, nothing -- mostly -- not at
7 all.
8 Q. Okay.
9 A. These are about issues that affect
10 participants of both my Fund and members of Local 1001.
11 Q. So it might be a call from a member saying,
12 "I'm not getting enough credit," or, "The numbers seem
13 to be wrong," that type of thing.
14 A. Among others of course.
15 Q. And you'll handle those and you'll deal with
16 those.
17 A. Or the Union may call and say, "We've got a
18 guy on disability," because we have ordinary disability
19 and duty disability. They have to keep track of the
20 guys that are on special duty disability. So there's a
21 lot of issues that they call about that are pension
22 issues because we pay eight and a third per cent of the
23 75 per cent.
24 Q. But on the auditing issues you're comfortable
25 with what the outside auditors have done and you don't
560
1 get those calls, do you?
2 A. No, sir.
3 THE INDEPENDENT HEARING OFFICER: Mr.
4 Capasso--
5 THE WITNESS: Yes, sir.
6 THE INDEPENDENT HEARING OFFICER: -- when you
7 were first elected Auditor, I assume somebody appointed
8 you before you ran, am I right?
9 THE WITNESS: Yes, sir.
10 THE INDEPENDENT HEARING OFFICER: Who was
11 your sponsor?
12 THE WITNESS: The President of the Local
13 asked me to serve.
14 THE INDEPENDENT HEARING OFFICER: Who was
15 that?
16 THE WITNESS: Ernie Kumerow.
17 THE INDEPENDENT HEARING OFFICER: And
18 successively after that there are no contested
19 elections but you still have to be nominated. Who's
20 been your nominator or nominators over the years?
21 THE WITNESS: Various. Various of the
22 members who got up and nominated us.
23 THE INDEPENDENT HEARING OFFICER: Okay. But
24 I'm realistic.
25 THE WITNESS: No one in particular.
561
1 THE INDEPENDENT HEARING OFFICER: I know how
2 unions run.
3 THE WITNESS: No, sir.
4 THE INDEPENDENT HEARING OFFICER: Who is your
5 sponsor? Who is your power base?
6 THE WITNESS: Pardon?
7 THE INDEPENDENT HEARING OFFICER: Who is your
8 power base? Who is your sponsor? There's got to be a
9 party and somebody's got to give you the nod. Who was
10 it?
11 THE WITNESS: To come onto the Board as an
12 Auditor?
13 THE INDEPENDENT HEARING OFFICER: Yes.
14 THE WITNESS: Ernie Kumerow.
15 THE INDEPENDENT HEARING OFFICER: Okay.
16 THE WITNESS: He was the President. And when
17 -- we're all members of the Local, and when the Local
18 asks you to serve, you're proud to serve. This is your
19 Local.
20 THE INDEPENDENT HEARING OFFICER: I'm just --
21 I know that unions are political. Somebody has to have
22 a sponsor. There's nothing wrong with it. That's the
23 way the unions are, all the way up to the
24 International.
25 THE WITNESS: You see one thing, sir -- may I
562
1 make a statement?
2 THE INDEPENDENT HEARING OFFICER: You may
3 make a statement.
4 THE WITNESS: One thing that I think is lost
5 in this whole situation is that when you look at the
6 people that serve Local 1001, you have to ask yourself,
7 why do they serve? For what reasons did they serve?
8 The dynamics in the public arena is a lot different
9 than at the Taft-Hartley arena. The Taft-Hartley arena
10 you have union stewards out there that look after the
11 employees. But they are -- but they answer ultimately
12 to the contractor, and the contractor pays into the
13 Fund. There's a Multi-Employer Taft-Hartley, where the
14 City is one employer. And there's political dynamics
15 going on. The men that have served are probably all
16 union stewards, and it was important to have these
17 people in strategic spots around the City to help in
18 working conditions and problems in staffing, and a lot
19 of different areas. So the dynamics still go on in the
20 public arena, and the reasons for probably or asking me
21 or anybody else to serve on the Board was very
22 important to them to have someone that could work in
23 this political process, sir.
24 THE INDEPENDENT HEARING OFFICER: I
25 understand that. All right.
563
1 BY MR. THOMAS:
2 Q. Mr. Capasso, you said Mr. Kumerow at the time
3 was President of what?
4 A. Local 1001.
5 Q. And he was the one who asked that you become
6 was it a Trustee; is that right?
7 A. No, I never was a Trustee.
8 Q. What was the position?
9 A. Auditor.
10 Q. Auditor of the Local. Okay.
11 How did you know Mr. Kumerow?
12 A. Just as being in there. He was a Business
13 Agent for a long time before he became the President.
14 I never knew him before. I never knew of him since he
15 left, I mean in terms of ever meeting or anything like
16 that.
17 Q. Did Mr. Kumerow know that you were a Trustee
18 with the Pension Fund when you were recommended to be
19 Auditor?
20 A. Of course -- no wait. I became an Auditor in
21 '84. And I was a Trustee in '84 and Director in '86,
22 yeah. So he knew, of course. For sure he knew, of
23 course.
24 Q. That was my question. When you first got a
25 job at Streets and Sanitation, did you have any
564
1 contacts that helped you get that job?
2 A. Yes.
3 Q. Who were they?
4 A. My aunt.
5 Q. Who was she?
6 A. My Aunt Edith.
7 Q. Edith --
8 A. D'Avoilo.
9 Q. Did you have to go through any Ward officials
10 to get that job?
11 A. No.
12 Q. Going back to the hours issue. If you could
13 take a look at Exhibit Number 8. I'll help you find
14 this.
15 THE INDEPENDENT HEARING OFFICER: All right.
16 We'll take a break.
17 (Whereupon a break was taken in
18 the proceedings after which the
19 following proceedings were had:)
20 THE INDEPENDENT HEARING OFFICER: Okay folks,
21 back on the record.
22 BY MR. THOMAS:
23 Q. Mr. Capasso, I wanted to follow up with a
24 couple of your other answers.
25 Your aunt's name was Edith D'Avoilo?
565
1 A. (Indicating.)
2 MR. LYDON: You're nodding. You have to
3 answer orally.
4 THE WITNESS: Yes.
5 BY MR. THOMAS:
6 Q. And would that be D-i-v-o --
7 A. No. D-'-A-v-o-i-l-o.
8 Q. Thank you.
9 You said she was your contact to get the job
10 initially at the City?
11 A. Yes.
12 Q. And was she employed at the City?
13 A. No.
14 Q. So how was that that she was able to help you
15 with respect to contacts?
16 A. Because she was employed at Local 1001.
17 Q. Was there somebody that she told you to go
18 talk to?
19 A. She told me to come into the office.
20 Q. To Local 1001.
21 A. Right.
22 Q. But that's not going to get you a job at the
23 City, is it?
24 A. In those days -- no, it's not going to, but
25 in those days the City would -- the unions worked very
566
1 close with the City, and in those days that -- those
2 were the days before the Shackman Decree, if you know
3 what the Shackman Decree is here in Chicago. And in
4 those days was -- were the days of a different type of
5 system for hiring and firing. Hiring and firing was at
6 the will, and the unions in Chicago had an ability to
7 send a request to City Hall to get a position.
8 Q. Do you know -- is that what happened in your
9 case?
10 A. Yes.
11 Q. So someone from the Union sent a request to
12 City Hall?
13 A. Correct.
14 Q. Who would the Union send a request to whom at
15 at City Hall?
16 A. Probably my Aunt Edith.
17 Q. Let me make sure I understand that. She was
18 an employee there?
19 A. That's correct.
20 Q. Not an officer.
21 A. Not an officer, an employee.
22 Q. She was office assistant?
23 A. Yes. Well she wouldn't have handled it.
24 Probably someone within the office of the -- an officer
25 of the Local probably would handle it. I don't
567
1 remember. I wouldn't know.
2 Q. So you went to the Local and you talked to
3 your aunt?
4 A. Yes.
5 Q. And you don't know who she talked to?
6 A. No, I don't.
7 Q. But your understanding is that someone at the
8 Local put in a request at City Hall?
9 A. I would imagine so, yeah, sure.
10 Q. Do you have any understanding to whom at City
11 Hall that was directed?
12 A. No, I don't.
13 Q. Did you know what type of job you were
14 applying for?
15 A. Yes, labor.
16 Q. And I think you indicated your first job was
17 as a timekeeper, correct?
18 A. No, no. My first job would have been as that
19 laborer, as I told you, years ago in '58.
20 Q. The part-time period.
21 A. The part-time period as a laborer on repair.
22 That's what the title was at the time, laborer on
23 repair. Which evolved into what is today called
24 asphalt helper.
25 Q. So you got a job as an asphalt helper?
568
1 A. In today's terms, yes.
2 Q. But so far as you know, it was really just
3 your Aunt Edith talking to some officer at the Local
4 who talked to someone at City Hall.
5 A. That's correct.
6 Q. So you never actually went to City Hall
7 yourself and applied for a job.
8 A. No. I had to go for screening.
9 Q. After the paperwork had started.
10 A. That's correct.
11 Q. I want to go back to the conversation we were
12 having a few minutes ago about the 1001 calls, the
13 occasional calls you get from 1001 members.
14 A. Members, sir? 1001 members?
15 Q. Yes.
16 A. My participants you're speaking of.
17 Q. Yes.
18 A. Okay.
19 Q. I think we've established that of the 40 to
20 50 hours that you work at the Funds, none of that time
21 is actual auditing time in the classic sense, right?
22 A. That's correct.
23 Q. So whatever hat you're wearing for 1001, it's
24 not the Auditor hat that's your official title at 1001,
25 correct? Let me rephrase it. That was a poor
569
1 question.
2 You indicated in one of your earlier answers
3 that you got, I think your word was, "operational
4 calls" from the Local; is that right?
5 A. Operations.
6 Q. Operations.
7 A. Meaning what happens on the street.
8 Q. What happens on the street.
9 So are those calls coming from the Union or
10 from your participants or what?
11 A. No. Those would -- you know, the -- some of
12 the officers would have called and said, "What happened
13 in your time with," could be with a resurfacing crew.
14 "Or what would have happened to a -- how would you
15 assign a sidewalk crew?" Or, "How did you -- what did
16 you do with pouring?" Which is pouring cracks on the
17 street with liquid tar. Operations. See when I say
18 operations, I mean what goes on with the men on the
19 street when they do their work. Operations is field
20 operations.
21 Q. Okay. I just wanted to understand that now.
22 So with that explanation you might get a call
23 from, let's say, Nick Gironda or Sam DeChristopher
24 saying, I think your words were, "How would you handle
25 this back in your day," something like that.
570
1 A. Yeah.
2 Q. Okay. And that's a reference to your time
3 when you were employed by the City, right?
4 A. Absolutely.
5 Q. Okay. So that's not a call that is related
6 to a pension issue, right?
7 A. That particular call, no.
8 Q. Okay. So the -- the ones that you're
9 referring to as operations calls, are not pension
10 calls, right?
11 A. That's correct.
12 Q. And neither are they auditing calls, right?
13 A. That's correct.
14 Q. Now of these operations type calls that you
15 get, how much of your time, the 40 to 50 hours a week
16 that you're there, would you say that you get
17 operations calls?
18 A. Could be once a week, could be once every
19 three weeks, could be once a month.
20 Q. So in percentages, percentage time, it would
21 be a low number.
22 A. I can't give you a percentage. Sure it would
23 be a low number.
24 Q. Okay. Just before the break we were about to
25 look at Exhibit 8, and I've opened it up to 1984,
571
1 perhaps it's '85. It's hard to read that number.
2 A. You can't read anything.
3 Q. Well if you don't mind, could I look over
4 your shoulder so we can read it together?
5 A. Sure.
6 MR. LYDON: Which one are you on?
7 MR. MENDENHALL: Let us get there, Mr.
8 Thomas.
9 MR. THOMAS: Under your numbering it's 0446.
10 MR. MENDENHALL: 0446.
11 BY MR. THOMAS:
12 Q. So it's hard to say whether that's a -- it
13 looks to be 1985 up at the top and there's a second
14 entry, July 1 to July 31, 1985. And certainly in
15 sequence that would make sense. Do you see your name
16 up at the top there?
17 A. Um-hum.
18 Q. Indicates 30 hours a week?
19 A. Um-hum.
20 Q. And hard to read, but a total over in the
21 right says 120.
22 A. Um-hum.
23 MR. LYDON: Wait. You have to again answer
24 the --
25 THE WITNESS: Yes.
572
1 BY MR. THOMAS:
2 Q. And then as we go forward, at least on the
3 bate numbers to 0448, we get to 1986. Your name's at
4 the top of the list. 30 hours a week under the heading
5 "Actual Hours Worked," right?
6 A. Um-hum, yes.
7 Q. And total hours for the month 120, right?
8 A. Yes.
9 Q. And then we go forward -- I believe we're
10 looking at bate number 0449 for 1987. Your name at the
11 top of the list, 30 hours, 120, and so forth, correct?
12 A. Yes.
13 Q. Have you ever actually seen these documents
14 before?
15 A. I don't think so, no.
16 Q. Okay.
17 A. No. No, I didn't ever.
18 Q. But you first said you don't think so and
19 now--
20 A. No, I have not seen these documents --
21 internal documents, no.
22 Q. Have you ever seen 1001 remittance reports to
23 the Funds before?
24 A. No.
25 Q. So today's the first time you've seen that?
573
1 A. Yes.
2 Q. Is today the first time that you've known
3 that Local 1001 was writing down 120 hours --
4 A. No.
5 Q. -- under your name?
6 A. No.
7 Q. When did you first learn that?
8 A. Every single quarter that I got a report from
9 the Health and Welfare stating what 1001 contributed on
10 my behalf.
11 Q. Well -- again, not to quibble with you.
12 That's a slightly different issue. That's money in,
13 right? You would get a statement indicating how much
14 money they put into the Funds, right?
15 A. That's correct. Not money, hours.
16 Q. Hours.
17 A. That's right. Not money. I never knew it
18 was money they were putting in.
19 Q. Okay. Let's deal with that then.
20 So you got a statement that would say -- it's
21 not that piece of paper. Some other piece of paper
22 that would say that the Local had reported 120 hours
23 for a period of -- for a month.
24 A. Yeah. Those are quarterly statements, I
25 believe, would be sent to every participant so that the
574
1 participant had knowledge of it.
2 Q. Okay.
3 A. Yeah.
4 Q. And then would it also have your total over
5 those --
6 A. Just for that quarter, no.
7 Q. Just for that quarter?
8 A. Right.
9 Q. So your typical quarterly statement would
10 show 360 hours?
11 A. I don't recall that. I don't have that in
12 front of me. I don't remember what it says.
13 Q. What's your best recollection?
14 MR. LYDON: Are you talking about the
15 quarterly report?
16 MR. THOMAS: Yeah.
17 MR. LYDON: Do you want some help with it?
18 MR. THOMAS: Let me see if he recollects it
19 first.
20 BY MR. THOMAS:
21 Q. Before I show you anything to refresh your
22 recollection, what's your best recollection of what --
23 A. I would imagine if it's a hundred and a
24 quarter, 120 hours, it would be for whatever months
25 there are in a quarter, and then they would total it
575
1 for that quarter.
2 Q. Okay. Let me -- I won't mark this yet. I'll
3 let you do that later. I'll show you this to refresh
4 your recollection. These are documents from the Fund
5 addressed to you. Is this what you're referring to?
6 A. Yes, sir.
7 Q. And as you look at it, it looks actually to
8 be a six month tally, right?
9 MR. LYDON: You can mark them if you want.
10 Whatever way --
11 MR. THOMAS: Make it Defense 2?
12 THE INDEPENDENT HEARING OFFICER: If you're
13 giving it to refresh his recollection, we don't have to
14 mark it.
15 MR. THOMAS: I don't need to. If you want
16 to--
17 MR. LYDON: Okay, fine.
18 THE WITNESS: If you look at some of the
19 other reports, they're for different time periods.
20 Maybe whenever the Local -- I mean the Health and
21 Welfare decided to send it out, that there is, you
22 know, that they put the total hours --
23 THE INDEPENDENT HEARING OFFICER: The
24 question would be: Does that refresh your
25 recollection?
576
1 THE WITNESS: That is absolutely correct,
2 sir.
3 THE INDEPENDENT HEARING OFFICER: What --
4 after having your recollection refreshed, what is it
5 you believe you were credited for per month or per
6 quarter?
7 THE WITNESS: Whatever that says.
8 THE INDEPENDENT HEARING OFFICER: All right.
9 MR. LYDON: The report's always quarterly,
10 but the number of hours change by quarter.
11 THE INDEPENDENT HEARING OFFICER: Okay. Well
12 gentlemen --
13 MR. THOMAS: I can clear this up.
14 MR. LYDON: It's a quarterly report. It
15 comes out quarterly but it shows months within the
16 quarter.
17 MR. THOMAS: I think we can simplify this.
18 BY MR. THOMAS:
19 Q. Mr. Capasso, the statements you got, which
20 you just refreshed your recollection with, would have a
21 certain number of months on them whether it was three,
22 four, five, or six.
23 A. That's correct.
24 Q. And it would have a list of 120 hours per
25 month.
577
1 A. Right.
2 Q. And so you would get a statement, in effect,
3 saying you've been credited with this number of hours.
4 A. That's right.
5 Q. And you've been getting those statements since
6 1984, correct?
7 A. That's correct.
8 Q. And so when you've been -- let's deal with
9 first from 1984 to 1986. In those years you were
10 working at the City, right?
11 A. Yes.
12 Q. And you were working full-time with the City?
13 A. Yes.
14 Q. I think it was that Finance job you were
15 talking about?
16 A. Yes.
17 Q. There you were getting full-time pension
18 credits at the Fund where you're currently employed,
19 right?
20 A. I was paying for it, yes.
21 Q. It was coming out of your paycheck?
22 A. That's correct.
23 Q. And the City also made a contribution?
24 A. Yes.
25 Q. Like most those --
578
1 A. I'm sorry. Employer contributions.
2 Q. Employer contributions.
3 A. Absolutely. That's right.
4 Q. They both go into your account?
5 A. That's right.
6 Q. At the same time though, from 1984 to 1986,
7 you were getting credited with 1001 hours, right?
8 A. That's correct.
9 Q. From 1984 to 1986 were you actually working
10 120 hours at the Local?
11 A. No.
12 Q. Okay.
13 A. That's my form of compensation. When I was--
14 Q. We'll get to that. But the answer to the
15 question is you were not working 120 hours?
16 A. No.
17 Q. So to save us some time, from 1984 to when
18 you first were elected Auditor, to 2002, when you
19 retired from that position, you never worked 120 hours,
20 did you?
21 A. That's correct.
22 Q. And your understanding, particularly since
23 you're Executive Director of the Pension Fund, is that
24 the eligibility for these contributions is based upon
25 actual hours worked, correct?
579
1 MR. LYDON: Object to the form of the
2 question. He's basing it upon employment at another
3 job.
4 MR. THOMAS: No, I'm not.
5 MR. LYDON: That's the way the question is
6 phrased.
7 THE INDEPENDENT HEARING OFFICER: You may
8 answer that question.
9 MR. THOMAS: Could you read it back?
10 (Record read.)
11 THE WITNESS: How they work it into Health
12 and Welfare particularly, I was not aware of.
13 BY MR. THOMAS:
14 Q. Okay. So you had no knowledge that the 120
15 hours a month, for which you were getting a statement
16 every quarter, was actually being reported to the Funds
17 as 120 hours a month?
18 A. I was unaware did you say?
19 Q. Yeah. Is that what you said?
20 A. No, no. I was aware that I was getting it,
21 but I didn't know what the format was over at the
22 Health and Welfare because I never had any contact with
23 the Health and Welfare in all those years until I went
24 to apply.
25 Q. What did you mean by "format"?
580
1 A. In regards to what you asked me about hours
2 worked. And you talked about what they do out there
3 for hours worked. I'm saying I don't know exactly what
4 the scenario is out there during the years that I was
5 getting those reports.
6 Q. Okay. So but you got these reports --
7 A. Absolutely.
8 Q. Wait for the question mark at the end of the
9 question please.
10 You got these reports --
11 A. Right.
12 Q. -- that said you've been working 120 hours a
13 month.
14 A. That's right.
15 Q. Okay. Did that ever strike you as odd that
16 there was a formal piece of paper that said you had
17 been somewhere for 120 hours when obviously you had
18 been not there 120 hours?
19 A. That was my form of compensation as far as I
20 was concerned.
21 Q. Well that's your answer to a different
22 question.
23 A. No, that's the answer to that question.
24 Q. Did it strike you as odd that the Pension --
25 A. The way they did it?
581
1 Q. No. Wait for the question part please.
2 Did it strike you as odd that the Pension
3 Fund and the Welfare Fund had in its database a record
4 that said that you had been there and actually worked
5 for 120 hours each of these months for 16 years?
6 A. No, because I thought that that was the
7 agreement.
8 Q. You thought that that was the agreement?
9 A. That's correct.
10 Q. What agreement are you referring to?
11 A. Any relationship between Local 1001 and
12 Health and Welfare that allowed them to accept these
13 contributions for someone that was not on salary.
14 Q. And are you saying you had specific knowledge
15 of such an agreement?
16 A. Specific knowledge of an agreement that was
17 in existence at the time. I am not saying I have
18 specific knowledge. But when I came on board as an
19 Auditor, and I as a young man have been going to these
20 union meetings since I was about 19, 20 years old, I
21 have always heard from Sam Shapiro back when he was the
22 lawyer of Local 1001, when they would start to talk
23 about Christmas gifts and whatever the case may be,
24 bonuses, and then he would strike the gavel and say,
25 "This is usual and customary practice of Local 1001 at
582
1 this time of the year." And then when we would have
2 elections he would say, "This is the usual and
3 customary things that we would do at the -- for the
4 officers we do this, and for the other officers that we
5 don't pay a salary we pay into the pension." So there
6 was people that came before me that went through their
7 tenure, went on pension, and were receiving pensions
8 that I would never think that there was anything wrong
9 with this.
10 Q. Because other people were doing it?
11 A. Because it was past practice, and past
12 practice is allowed within your documents.
13 Q. I'm sorry?
14 A. Past -- customary practice is allowed within
15 your documents.
16 Q. What are you referring to?
17 A. I don't know if I'm saying it right in terms
18 of your planned description or the documents of the
19 plan. In your documents that were sent to me --
20 Q. That you have reviewed?
21 A. Yes. That was sent to me from the Health and
22 Welfare, there is one particular point that talks about
23 the customary practice.
24 Q. And what is that in relationship -- in what
25 context?
583
1 A. What would that mean to me that there --
2 Q. No. In what context does it come up in the
3 paperwork?
4 A. The relationship between the -- and how the
5 relationship between the Union and the Health and
6 Welfare existed and how they would recognize that
7 relationship, I'm assuming it's internal relationship
8 on payments into the Fund. I'm just assuming. I can't
9 remember now. It's a long -- two years ago I read
10 that.
11 Q. Do you have that still, that paperwork?
12 A. I probably have it somewhere.
13 Q. I welcome you to bring that here if you'd
14 like.
15 THE INDEPENDENT HEARING OFFICER: I want to
16 step back. You made a statement earlier someplace
17 along the line you began to get these reports.
18 THE WITNESS: Yes, sir.
19 THE INDEPENDENT HEARING OFFICER: The first
20 time you got one --
21 THE WITNESS: Yes, sir.
22 THE INDEPENDENT HEARING OFFICER: -- you
23 looked at it and said, "Oh, there's a report and they
24 are crediting me with so many hours."
25 THE WITNESS: Yes, sir.
584
1 THE INDEPENDENT HEARING OFFICER: What went
2 through your mind that said, "Oh, what does that mean,"
3 or, "What are they doing," or, "What does that mean to
4 me?"
5 THE WITNESS: Both. I saw that and I said,
6 "Well, okay." I didn't question them about it because
7 I thought that that was -- when they tell you that, "We
8 would like you to serve, we cannot pay you a salary,
9 but we pay into the Pension for you."
10 THE INDEPENDENT HEARING OFFICER: So you're
11 assuming that that is --
12 THE WITNESS: My compensation.
13 THE INDEPENDENT HEARING OFFICER: A form of
14 pay.
15 THE WITNESS: Absolutely, sir.
16 THE INDEPENDENT HEARING OFFICER: That's what
17 I thought I heard you say earlier.
18 THE WITNESS: Yeah. You know, and that was
19 what -- if I may make a statement. You know, coming on
20 in 1984 and they say they'll pay into the Pension, you
21 say, "Yeah, that's fine. I'll be here until 65 years
22 old and collect a pension." You never thought that
23 this would go on that long. But the years started to
24 pile up and all of a sudden I reached a crossover point
25 where all of a sudden you're entitled to it. And then
585
1 when I looked back and said, "This may be something
2 important for me." Because I never thought I would
3 collect. If they want to pay into the pension for me,
4 that's fine, but I never thought I would be around that
5 long.
6 BY MR. THOMAS:
7 Q. Well let me follow up on that if I could.
8 You say you never thought you would collect?
9 A. Because I never thought I would be on the
10 Board that long.
11 Q. On what Board?
12 A. On 1001's Board.
13 Q. Well regardless of how long you were on the
14 Board, the credits would go in for whatever period of
15 time, right?
16 A. Yes, sir. But in any case wherever you're
17 at, if you don't spend enough time as a contributor you
18 may not be entitled to any benefits.
19 Q. Okay. But once you realized you had enough
20 time, then you realized that your rights are vested,
21 right?
22 A. Yes, sir.
23 Q. And that was quite some time ago, correct?
24 A. I would -- yeah, I would imagine it would be
25 some time ago, yes.
586
1 Q. Well when your rights vested, did you ever
2 then think when you got these monthly or quarterly
3 statements that, "I better straighten this out."?
4 A. Straighten what out?
5 Q. The fact that you initially
6 just a minute ago said you didn't think it was much of
7 an issue because you never thought you'd actually
8 collect, once you realized --
9 A. No, no, I didn't say that.
10 Q. Put it in your words then.
11 A. I said that I didn't think that the statement
12 that "They will pay into the Pension Fund for you," you
13 know, was that important to me at the time. I said,
14 "If you want to do that, that's fine." Back in '84
15 when I was put on, when I was told that, "We can't pay
16 you a salary, but we do pay into the pension," well I
17 was glad to serve my Local. It's my Local. It's where
18 I come from. I didn't forget where I came from. And I
19 was glad. "Fine. If you pay into the pension, that's
20 fine." That relationship was fine with me.
21 Q. Okay. Let me --
22 MR. LYDON: Let him finish.
23 THE WITNESS: It didn't become important to
24 me as a factor until I realized, "Boy, I'm staying
25 there long enough to be vested. So this is something."
587
1 And the question is, did I ever question it
2 even after -- in terms of your question, after I knew I
3 was vested? No. Because this was the routine that was
4 going on since day one. I would never have questioned
5 it.
6 MR. THOMAS: Please, Mr. Vaira. There are
7 about six things I want to follow up. I don't want to
8 interrupt the witness, but if we can take this in bite
9 size things so we can follow up on some of these
10 points.
11 THE INDEPENDENT HEARING OFFICER: Where are
12 you going with this? We pretty much know his
13 understanding, what came about, how much he got paid,
14 and what he did or did not do.
15 MR. THOMAS: With all due respect, he said a
16 number of things in that statement that I want to
17 follow up on.
18 THE INDEPENDENT HEARING OFFICER: I'm not
19 sure I want to follow up on it. I'll give you your
20 chance.
21 BY MR. THOMAS:
22 Q. Mr. Capasso, you said initially -- and again,
23 I'm not trying to put words in your mouth. Initially
24 you didn't appreciate what this might -- you're waving
25 me off.
588
1 A. When you say -- I said that when it initially
2 started, I probably thought that I wouldn't be around
3 that long to be 60 or 65 and collect a pension. That's
4 my point.
5 Q. Fine. So you didn't say anything then
6 because that was your thinking, right?
7 A. Yes.
8 Q. At some point long ago your pension rights
9 vested under this program, right?
10 A. (Indicating.)
11 THE INDEPENDENT HEARING OFFICER: Yes or no?
12 THE WITNESS: Yes. I'm sorry.
13 BY MR. THOMAS:
14 Q. And did your thinking change once your
15 pension rights vested?
16 A. It changed to the point where I realized I
17 was entitled to something, but my other -- your other
18 question about did I question anything about how it was
19 being done, absolutely not.
20 Q. Stay with the question please. Did your
21 thinking change --
22 A. No.
23 Q. -- when your -- okay.
24 MR. LYDON: Let them finish the question. We
25 don't know what --
589
1 BY MR. THOMAS:
2 Q. You just said the first phase was you didn't
3 think you were ever going to get there, so it wasn't
4 really something you were thinking about. Now you
5 realize you're going to get there, you have this right.
6 What was your thinking then?
7 A. It's nice to be vested.
8 Q. Did you think it was a problem that the Union
9 was reporting for you 120 hours a month?
10 A. Absolutely not.
11 Q. And because it was usual and customary?
12 A. Yes, sir.
13 Q. Are you familiar with the requirement under
14 federal law that Local Unions certify in remittance
15 reports to Funds, Pension Funds, the accuracy of the
16 hours they're reporting? Are you familiar with that?
17 A. No, I'm not.
18 Q. You've never heard of Section 1027?
19 A. I'm not familiar with it.
20 Q. With respect to the City of Chicago, if they
21 file false reports to your Fund, materially false
22 information --
23 A. The City?
24 Q. Yes. There is some paperwork that goes from
25 the City to your Fund indicating these are the people
590
1 and these are the hours, right?
2 A. Yeah, their whole check comes to us, the
3 whole line item.
4 Q. As a contribution report, right?
5 A. No. The contribution is in the line item
6 from his gross down to his net, so we see everything.
7 Q. But that comes to you, I think you indicated,
8 by E-mail?
9 A. It used to come -- I'm trying to think
10 before. It would come in hard copy before but now it
11 -- with the electronic age it comes by E-mail.
12 Q. They get in trouble if they lie to you,
13 right?
14 A. I would assume we would -- there's always
15 mistakes. And I would assume that if there was a
16 mistake on a contribution, as there sometimes --
17 sometimes they're over or sometimes they're under, and
18 we would call them back and say, "There's something
19 wrong with this contribution," because in every payroll
20 that we get we get corrections.
21 Q. But in addition to your office raising
22 questions, the government or other third parties could
23 raise questions, right?
24 A. I never heard of that.
25 Q. Well suppose the City is writing names down
591
1 for people that haven't actually worked.
2 A. That would be the City's problem.
3 Q. Right. And you might go after them, but the
4 federal government or the state government may go after
5 them too, right?
6 A. I couldn't say.
7 Q. You're not familiar with that?
8 A. I couldn't say who goes after them. I don't
9 think it's ever happened.
10 Q. So you're unfamiliar with any requirement
11 under federal law --
12 A. That's correct.
13 Q. Let me finish the question.
14 You're unfamiliar with any requirement under
15 federal law that requires the employer be truthful in
16 contribution reports. That's yes or no.
17 A. To your Health and Welfare I am not aware.
18 Q. So you're not aware of that.
19 So it wouldn't have been on your, if I can
20 use the term, radar screen, to think when you got those
21 monthly or quarterly statements that, "Boy, if the
22 Local is reporting this to the Funds, it might be a
23 problem."
24 A. It was not on my radar screen as you
25 suggested.
592
1 Q. And so, for example, if you'll turn to
2 Exhibit 9. All those years that the Local was filing
3 contribution reports on your behalf indicating 120
4 hours a month, correct?
5 A. That it says here? Yes.
6 Q. And over the years it looks like that equals
7 1440 hours a year, right?
8 MR. MENDENHALL: Can we get a page, Mr.
9 Thomas?
10 MR. THOMAS: You're right there, guys.
11 THE WITNESS: I never saw this report until I
12 went to apply. I never saw anything like this.
13 BY MR. THOMAS:
14 Q. Well wait a minute though. You may not have
15 seen that report --
16 A. Together, right.
17 Q. -- but you saw the underlying data on a
18 quarterly basis?
19 A. Absolutely.
20 Q. And every time you saw it, it said 120 hours a
21 month.
22 A. Yes, sir.
23 Q. So it wouldn't surprise you to learn that the
24 Funds had an internal document that tallied up the same
25 numbers.
593
1 A. Of course.
2 Q. And because you have seen all those papers,
3 you know the tallies would be 1440 hours per year,
4 right?
5 A. Yes.
6 Q. So by the time you decided to retire from
7 your Auditor position in 2002, the total number of
8 hours that you had accumulated were 25,991 hours,
9 correct?
10 A. If you're reading it. Isn't it on the last
11 page?
12 Q. Last page of your --
13 A. I see it there.
14 Q. You see that?
15 A. Um-hum.
16 Q. Okay.
17 Now this goes back to 1984. How many actual
18 hours -- if you had to estimate, how many actual
19 hours--
20 A. I couldn't estimate.
21 Q. -- do you think you worked?
22 A. I have no idea. You knew you were -- as Mr.
23 Pagano (Phonetic) from the International who called
24 me, soon after I applied, and we talked over the phone.
25 Basically I was an Auditor with Local 1001 and you were
594
1 basically available seven days a week 24 hours a day.
2 Q. So that equals actual hours worked?
3 A. I didn't say that. I didn't say that. I
4 just said that you were available at all times. How
5 many hours I worked, I have no idea.
6 Q. It would be substantially less than 25,000
7 hours.
8 A. It may be.
9 Q. It may be?
10 A. It may be. I don't know.
11 Q. You don't know.
12 A. I don't know.
13 Q. So this could be right. Is that what you're
14 saying?
15 A. Rephrase your question.
16 Q. This could be right. You might have actually
17 worked 25,000 hours for Local 1001?
18 A. I cannot say that because -- these are
19 contributions, not hours worked. I mean as far as when
20 in terms of -- when you talk about the -- these are
21 hours contributed and hours worked as you're trying to
22 say to me. But what you're trying to say what total --
23 I mean we have established the fact that -- earlier you
24 established the fact that the period and time that I
25 was spending at Local 1001. Now you're rephrasing the
595
1 question to me about these total hours and you try --
2 you're trying to back me into a question here.
3 Q. I'm not trying to be anything other than
4 straight with you, Mr. Capasso. I'm just trying to
5 understand this. So let's take a look --
6 A. And I am here to tell you the truth and
7 nothing but the truth.
8 Q. Great.
9 So let's just take an example. There are
10 obviously 18 examples in Exhibit A. But on all these
11 remittance reports to the Funds you're the first name
12 listed, and unsurprisingly it says 30 hours a week, 120
13 hours, right?
14 A. Yes.
15 Q. And that's the case through all of them,
16 right?
17 A. That's correct.
18 Q. And under the category where you're listed at
19 30 hours a week, could you read into the record what
20 that category is.
21 A. "Actual Hours Worked."
22 Q. Okay. So that was not truthful, was it, Mr.
23 Capasso?
24 A. How the Union scheduled my compensation and
25 how they applied their payments for compensation to me
596
1 has to be this.
2 Q. My question is not whether you think it's
3 right or whether you think it's fair. My question is:
4 That document is not truthful, is it?
5 A. In terms of time that I put in per week?
6 Q. Yes.
7 A. No.
8 Q. Thank you.
9 And all the other ones that list you having
10 actually worked 30 hours a week, 120 hours a month,
11 those too were not truthful, were they?
12 A. I don't like using the word "not truthful",
13 because this was the form of compensation that we were
14 entitled to as Auditors. And as they, "they" being the
15 lawyers for every election, stated to our membership
16 that this was the form of compensation.
17 Q. So did you get a W-2 for this?
18 MR. LYDON: Why would he get a W-2? I
19 object.
20 BY MR. THOMAS:
21 Q. This is compensation?
22 THE INDEPENDENT HEARING OFFICER: I think --
23 you may object to the legal reasoning. He can ask him
24 if he gets a W-2 form.
25 BY MR. THOMAS:
597
1 Q. Did you get any document -- wait for the
2 question. Did you get any document reflecting that you
3 had received something of value reportable to the IRS
4 as compensation during these years?
5 A. Reportable to the IRS?
6 Q. Yes.
7 A. No.
8 Q. In fact --
9 A. I never received a penny.
10 Q. But what you did receive was credit for
11 25,000 hours, right?
12 A. That's what this document says.
13 Q. And on the LM-2's, all those --
14 A. What's the LM-2's?
15 Q. I think you may have answered my question.
16 You're unfamiliar with what the Union reports to the
17 Department of Labor in terms of --
18 A. That's correct.
19 Q. -- in terms of compensation to people.
20 A. That's correct.
21 Q. So would it surprise you to know that all
22 those years that the Union was filing LM-2's, your name
23 was listed as an Auditor and compensation was listed as
24 zero.
25 A. Would it surprise me?
598
1 Q. Yes.
2 A. No.
3 Q. Because you got no compensation, right?
4 A. That's correct.
5 Q. And you viewed this as your form of
6 compensation.
7 A. That's correct.
8 Q. And the form of compensation that you -- to
9 use your words, received, required the Local to make
10 certain representations to the Funds, right?
11 A. When you say "representations", would you
12 explain that to me?
13 Q. The contribution reports. If you're going to
14 get this form of compensation, the Local, in order for
15 you to get it, had to fill out paperwork, right?
16 A. Yes.
17 Q. And the paperwork that the Funds require,
18 that they fill out, says you have to give us this data,
19 right?
20 A. Yes.
21 Q. Just like the City of Chicago with your Fund,
22 right?
23 A. Absolutely.
24 Q. So for you to get this, they had to fill out
25 paperwork that gave them the information they would
599
1 need to give you those credits, right?
2 A. The Pension Fund.
3 Q. Yes.
4 A. Yes.
5 Q. So it just so turns out that the form
6 required them to put down something called "Actual
7 Hours Worked," right?
8 A. Yes.
9 Q. So I guess what you're saying is you didn't
10 know that the Union was writing down actual hours
11 worked for you?
12 A. In the documents that left the Union office
13 to go to the Health and Welfare, no, I wasn't aware of
14 those.
15 Q. And the ones that you saw that would list 120
16 hours a month, what did you understand that to mean?
17 A. Part of my compensation.
18 Q. I know --
19 A. It was building up.
20 Q. What did you think 120 was?
21 A. Paying into the Pension Fund for me.
22 Q. $120?
23 A. No.
24 Q. 120 what?
25 A. Hours.
600
1 Q. And what were those 120 hours? What did they
2 relate to in terms of your work.
3 A. That goes to the whole question of the
4 agreement between the Health and Welfare and the Local
5 in terms of the Health and Welfare accepting these
6 payments for all those years.
7 Q. Well I understand that you may feel that they
8 accepted it and that may mean something, but the
9 question was: What did those 120 hours relate to in
10 terms of your actual work?
11 A. That was my compensation.
12 Q. What were the 120 hours?
13 MR. LYDON: I think he's answered the
14 question.
15 THE INDEPENDENT HEARING OFFICER: Mr. Thomas,
16 you can't pound this guy anymore. I understand what's
17 going on. There were documents filed that said 120
18 hours. He didn't work 120 hours, but he said it was
19 some form of compensation and something the Union did
20 with some kind of ratio that came up with it, but he
21 said that was his compensation. And compensation was
22 worth something, all right? And -- but for which he --
23 there was -- it was or was not a taxable event.
24 BY MR. THOMAS:
25 Q. During the years that you were getting these
601
1 quarterly statements and the Union was making these
2 remittance reports and contributions to the Funds, did
3 you have any contact with anyone at the Pension and
4 Welfare Funds?
5 A. No.
6 Q. No contact at all.
7 A. No.
8 Q. So you simply got a statement in the mail
9 periodically just like you would from your own Fund.
10 A. I would have no reason to contact them, yes.
11 Q. So it was just a question of your receiving
12 information.
13 A. Yes. Absolutely.
14 Q. So your first contact with the Pension and
15 Welfare Funds is when you went to apply for benefits?
16 A. Not necessarily. I'm going to back to when
17 they were in Forest Park. When I first came on board I
18 got a call from -- or a letter from one of the ladies
19 over there that said my marriage certificate didn't
20 come out in the Xeroxing, would I please come into
21 Health and Welfare and bring my marriage certificate.
22 So I went -- I said, "I'm coming that way. I come from
23 the south side. I'll stop over." So I stopped over at
24 their office on Harlem Avenue and gave them my marriage
25 certificate. And then of course subsequent to that
602
1 they moved out to Westchester and -- wait a minute.
2 Wait a minute. I did have contact with the Health and
3 Welfare because when they were doing a big computer --
4 they had a new computer system going on, and I called
5 out there and I can't remember, it might have been
6 Jorgensen, or who I talked to out there. I don't know
7 if Jorgensen was there at the time. He may not have
8 been out there at the time. And they had this new
9 jukebox type of system whereby I think there was a lot
10 of cassettes. It would spin around. And when an
11 employee within the Health and Welfare or the Health
12 Care side would ask for information, they could go
13 onto their PC and that particular tape would come out
14 and they would retrieve maybe a claim --
15 THE INDEPENDENT HEARING OFFICER: I get the
16 picture.
17 THE WITNESS: Wait a minute. So --
18 THE INDEPENDENT HEARING OFFICER: Stop.
19 Stop, okay? I know more about this than I want to
20 know. Just move on.
21 MR. THOMAS: I'm waiting for him to finish.
22 THE WITNESS: We went out there. My staff
23 went out there.
24 THE INDEPENDENT HEARING OFFICER: He asked
25 him did he have contact and he said, "Yes, he did,"
603
1 and gave you an explanation. Now move on.
2 BY MR. THOMAS:
3 Q. And the Health and Welfare Fund you're
4 referring to --
5 A. (Indicating.)
6 Q. -- prior to applying for pension benefits,
7 did you have any contact with the Pension Fund? Yes or
8 no?
9 A. Yes.
10 Q. What was the nature of that contact?
11 A. Took my staff members over there to take a
12 look at their computer system and my actuary.
13 Q. Any contact concerning your account?
14 A. No.
15 Q. So the first contact with the Pension Fund
16 concerning your account was when you applied for the
17 benefits.
18 A. Yes.
19 Q. And that was in the spring of 2002, correct?
20 A. Yes.
21 Q. When you went out there, how did you know
22 what steps were required to apply for compensation?
23 You made a call first?
24 A. I made a call to one of the counselors. She
25 told me what documents I had to bring. She was very
604
1 nice and gave me an appointment. And I came into the
2 appointment, brought all my documents, and filled out
3 all the required necessary paperwork.
4 Q. Did you make arrangements to say hello to Mr.
5 Jorgensen while you were there?
6 A. No.
7 Q. Why not?
8 MR. MENDENHALL: Object to relevance.
9 THE WITNESS: I didn't go there to see him.
10 I went there for my own reasons.
11 THE INDEPENDENT HEARING OFFICER: We do know
12 that he applied for the pension and it was turned down.
13 And we do know that he appealed and it was turned down.
14 That's on the record. We know that. Now what else are
15 you going to put in? I'm not trying to take away your
16 case, but I'm just curious as to where we're going with
17 this.
18 MR. THOMAS: Not much further on this issue.
19 In fact I may not have much more at all.
20 BY MR. THOMAS:
21 Q. So you went to the Funds?
22 A. Yes, sir.
23 Q. And you filled out the paperwork which is
24 reflected in Exhibit 10.
25 A. Right.
605
1 Q. Can you take a look at Exhibit 10? Does that
2 look familiar to you?
3 A. Yes.
4 Q. So that's the paperwork you filled out back
5 then?
6 A. Yes.
7 Q. And did you hear back from the Funds?
8 A. Yes. When it was all said and done I
9 received a letter back from them that everything was in
10 order and just had to go and wait to go to the Trustees
11 for approval.
12 Q. And then eventually you got some
13 correspondence.
14 A. I got a correspondence in regard to the 415
15 limits.
16 Q. What are the 415 limits?
17 A. 415 limits are where you don't get more than
18 compensation is available through the IRS limits on
19 pension. As far as the 415 limits, it allows you to
20 not get more than a certain amount as your regular
21 compensation.
22 Q. Let me make sure I understand you there.
23 Had this ultimately gone through, which we
24 all know it didn't, but had it gone through, you would
25 have received up to the IRS limits?
606
1 A. No, nowhere near. It's a formality that they
2 would ask, and, "Are you getting any other pensions so
3 that we can check and see how much the other pensions
4 are and who you're getting them from and if it exceeds
5 IRS limits." So it was just a formality that -- that I
6 thought I should just call up and talk to them
7 personally.
8 Q. So had it gone through, what was your
9 expectation of what you would have actually received?
10 A. I want to say about $1600, something like
11 that, a month.
12 Q. $1600 a month?
13 A. Yeah. I don't remember exactly.
14 Q. Now with respect to the Health and Welfare
15 contributions over the years, you actually did make
16 claims from 1984 to 1992 on the Health and Welfare, the
17 health insurance card, right?
18 A. Just very minor.
19 Q. Didn't you have health insurance from your
20 current employer?
21 A. Yes.
22 Q. Under what circumstances would you use the
23 1001 --
24 A. Go ahead. I'm sorry.
25 Q. Under what circumstances would you use the
607
1 Jorgensen Fund Health and Welfare card as opposed to
2 the health insurance card you had from your current
3 employer.
4 A. My current employer was primary. That was
5 secondary, coordination of benefits.
6 Q. So you would use that as back-up. So --
7 A. It's your secondary insurance because it was
8 available to you.
9 Q. So if --
10 A. "They" being the Health and Welfare, of
11 course without me requesting, sent me cards that I
12 didn't use for years, never used it.
13 Q. What caused you to start using it?
14 A. Because you look around and you say, "Well I
15 have this insurance," and I think at the time -- I
16 don't know what the claim was, and I said to myself,
17 "Why am I not using it? It's available to me."
18 Q. Did you always use it in the secondary
19 capacity?
20 A. No, I didn't.
21 Q. Sometimes you used it in a primary capacity.
22 A. No, I never did. I only used it as a
23 secondary towards, you know, the last few years.
24 Q. I thought that's what I asked you.
25 A. I believe documents sent to me said that over
608
1 the 18 years it was $3,000 in payments.
2 Q. Would six sound more accurate?
3 A. No. I thought it was three. But again, it's
4 been so long ago since I looked at the letters.
5 THE INDEPENDENT HEARING OFFICER: I believe,
6 Mr. Capasso, when you say "secondary", you mean it's a
7 secondary source. You didn't use one as primary and
8 then have to get something else done and then use the
9 Laborers'. You made an election. Sometimes you used
10 one and sometimes you used --
11 THE WITNESS: No, sir. No, sir. In the
12 health care business, because I'm close to it with our
13 participants, when you have two insurances, one
14 insurance has to be deemed to be primary. That was my
15 Pension. And the other one then is secondary. The
16 secondary insurance isn't going to pay anything until
17 they get an EOB. An EOB is an Explanation of Benefits
18 to show that your primary carrier made its full
19 payment, and if there's anything residual left, then
20 you normally will be able to send, any one of us, to
21 your secondary insurance and they'll take it under
22 consideration to see if they're going to make any
23 payments.
24 THE INDEPENDENT HEARING OFFICER: So you used
25 it sometimes --
609
1 THE WITNESS: As a secondary.
2 THE INDEPENDENT HEARING OFFICER: Okay.
3 BY MR. THOMAS:
4 Q. So for example, if you go to a health care
5 provider and the bill is a hundred dollars and your
6 primary insurance from your employment covers $80 of
7 it, you would on occasion use this other card to try to
8 recoup the other $20.
9 A. Yeah. If it wasn't that much I would pay it
10 myself.
11 Q. But you did use it in that capacity.
12 A. Yes, sir.
13 Q. Have you paid any of those monies back? Have
14 you been requested to pay any of the monies back?
15 A. I have not been requested to pay it back.
16 Q. If you are requested, will you pay those back
17 if it turns out you were ineligible to make that?
18 A. I think I would have to take that up at that
19 time.
20 Q. Now there was initially an issue between you
21 and the Pension Funds about whether your current
22 employment would have any disqualifying effect. Do you
23 remember that?
24 A. Not a disqualifying effect. Miss McCarthy
25 told me that -- when I called about the 415 she asked
610
1 me if I was going to retire from my position. I said,
2 "You know, I'm not sure. I really don't know when I'm
3 going to do that." She said, "Oh, by the way, you're
4 working in the industry and you can't accept our
5 pension." I said, "Wait a minute. I'm not working in
6 your industry. I'm on the public side. You're on the
7 Taft-Hartley side. There is no connection between the
8 two of us."
9 Q. So take a look at Exhibit 12 if you would.
10 That's your letter back to Miss McCarthy, correct?
11 A. That's correct.
12 Q. And you express your opinion in this letter
13 that "It really shouldn't be a bar because I'm not in
14 a" quote, unquote "laboring industry," right?
15 A. Yes. She told me also that, "You will get
16 your pension, but when you retire from there."
17 Q. I understand. That's a separate issue.
18 Then shortly thereafter you got a letter from
19 Mr. Jorgensen, did you not?
20 A. If you say so. I mean I don't know exactly
21 the --
22 Q. Take a look at Exhibit 13.
23 A. Okay. Okay. Yes.
24 Q. Do you remember getting this letter?
25 A. Yes.
611
1 Q. This raised a separate issue, didn't it?
2 A. You know what, you have to read it to me and
3 tell me what the issue is. I can't remember with all
4 these letters that I went through. Go ahead.
5 Q. If we just turn to the second page of that
6 letter.
7 A. Yeah, go ahead.
8 Q. Down at the bottom he says, "In order to
9 determine whether you are eligible for pension benefits
10 from the Laborers' Pension Fund, the Trustees of the
11 Pension Committee request that you provide them with
12 the following information: Evidence of the nature and
13 extent of your employment by Local 1001 since July of
14 1984, including positions of employment held, hours
15 worked, compensation received for such employment,
16 evidence of the extent of your employment by the
17 Laborers' and Retirement Board Employees' Annuity and
18 Benefit Fund of Chicago, including dates of employment
19 and hours of employment." And then it goes on to ask
20 for other information, right?
21 A. Okay.
22 Q. Did you respond to this letter?
23 A. I believe I did.
24 Q. And what did you say?
25 A. I don't remember what I said, but I
612
1 responded. I think there was a number of four or five
2 questions that I responded to.
3 Q. So you have a specific recollection of
4 answering this letter?
5 A. I believe so, yeah.
6 Q. You believe so or yes?
7 A. Yes.
8 Q. What --
9 A. I need help. I know there's somewhere around
10 here that there's an answer to that, yeah.
11 Q. If you have it, that would be great.
12 Let me ask you, since we don't have the
13 letter before us, how did you respond to this first
14 item listed where they asked you for evidence of
15 employment held, hours worked, and compensation
16 received? How did you respond to that?
17 A. I think if there's a letter around, I rather
18 respond with the letter that I sent.
19 THE INDEPENDENT HEARING OFFICER: Give us
20 your best recollection. How would you respond to it
21 now? How would you respond to it now?
22 THE WITNESS: "Evidence and the nature of the
23 extent of the employment." Oh, I would have said
24 normally that there was no compensation involved, that
25 the pension was my compensation, and that I would
613
1 reflect all the things that I did, which we discussed
2 today, about whatever I did for them in terms of the
3 operations, budgetary issues, staffing issues, and so
4 on and so forth.
5 BY MR. THOMAS:
6 Q. What about hours worked?
7 A. I think -- in that letter I think I referred
8 in that letter that this was a part-time position.
9 Q. But that's not the question. The question
10 is: What --
11 A. I don't know.
12 Q. Did you respond to the request that you
13 produce evidence of actual hours worked?
14 A. I don't recall.
15 Q. Let me make a specific request to you that if
16 you have a copy of the letter you believe you sent --
17 MR. LYDON: Mr. Thomas, you may want to know
18 -- some of this maybe was in the records of the Health
19 and Welfare Fund.
20 MR. THOMAS: Believe me, Mr. Vaira --
21 MR. LYDON: Wait. Let me just finish.
22 There's correspondence, there's a lawsuit, and he
23 actually appeared before the Trustees. So there's all
24 sorts of records.
25 THE INDEPENDENT HEARING OFFICER: I don't
614
1 know how probative it is for me to know what he said.
2 I got a pretty good idea. He gave the same answers
3 he's been giving here.
4 MR. THOMAS: Mr. Vaira, there -- just so
5 we're clear on that. He's entitled to say whatever he
6 would like to say either today or in any
7 correspondence, but I want it to be very clear that
8 there is no response to this at the Funds. And if he
9 has it and they didn't receive it, then that's -- we'll
10 sort that out. But --
11 MR. LYDON: Mr. Vaira, let me tell you
12 something. The man's appeared before the Trustees.
13 Now if they didn't make a record of it or if they
14 didn't produce a record -- he was there at a full
15 meeting of Trustees.
16 MR. THOMAS: In 2003.
17 THE INDEPENDENT HEARING OFFICER: Gentlemen,
18 here's my point. So what? He's been denied. He gave
19 an answer. He gave the reasons. It didn't fly.
20 MR. THOMAS: Mr. Vaira, he says he gave them
21 reasons, and I'm simply saying --
22 THE INDEPENDENT HEARING OFFICER: So what? I
23 mean what if he did give the reasons?
24 MR. THOMAS: Well I would like to know what
25 the answer was. That's why I'm asking.
615
1 THE INDEPENDENT HEARING OFFICER: I think he
2 pretty much gave it. It's not going to change the
3 complexion of what it is. He said what he said. We
4 have his explanation. He gave it to them I guess in
5 person and it didn't fly, right? So here we are.
6 MR. THOMAS: Okay. One final question.
7 BY MR. THOMAS:
8 Q. Mr. Capasso, do you have a specific
9 recollection of responding in writing to this letter of
10 Mr. Jorgensen's of April 5th, 2002?
11 A. Yes.
12 Q. You have a specific recollection of that.
13 A. Yes.
14 Q. Have you kept a copy of it?
15 A. I believe I have a copy.
16 Q. I make a request that you please produce
17 that.
18 A. Through counsel I will give you a copy.
19 Q. Terrific. Thank you.
20 A couple more questions, Mr. Capasso, and
21 then we're done.
22 You indicated that when you were first asked
23 to be an officer of Local 1001, someone said to you,
24 "We would like you to serve," words to that effect?
25 A. Yes. Asked if I would like to serve, yes.
616
1 Q. Who was that?
2 A. Ernie Kumerow.
3 Q. And the President of the Local at the time?
4 A. That's correct.
5 Q. And had you known Mr. Kumerow prior to that
6 time?
7 A. I think I said earlier in my statement that I
8 knew Ernie Kumerow because he was a Business Agent for
9 Local 1001 for a number of years before he became the
10 President. He came off of being a Business Agent, I
11 believe, to be President. So there was no question as
12 to -- I had it know him because he was the President of
13 our Local.
14 Q. In the time that you've been a member of
15 1001, have you had any sense or understanding that
16 there has been any influence of organized crime at the
17 Local?
18 A. I have never been a part of that and I have
19 never been privy to any information like that. As far
20 as I was concerned, this Local, and I may say this --
21 first of all I would like to make a statement to you,
22 sir. That I have served with the City and this Local
23 with honesty, integrity and loyalty. And what you
24 people have done to me in these false statements that
25 you have created about me, I had to get this out. I am
617
1 well respected by the City, by the investment community
2 in the City and around the country at the various
3 conferences I go to. And what you have done to me is a
4 travesty of justice. And that smut that you wrote out,
5 or whoever wrote this about me -- I have lived an
6 exemplary life to my family, to the employees that I
7 represent, and in the workplace with the City of
8 Chicago. I come here today not to hide, but to give
9 you all that you need to know about me and to
10 understand that I represent all that's good and not the
11 dirty accusations that were put about me. I'm only
12 here to clear my name.
13 THE INDEPENDENT HEARING OFFICER: Okay. We
14 understand that. And you spoke it out and we heard
15 you.
16 THE WITNESS: Thank you.
17 MR. THOMAS: Could you read the last question
18 back please.
19 THE INDEPENDENT HEARING OFFICER: I think he
20 answered that question. He said he doesn't know any --
21 about any influence. I mean after that he made the --
22 he said he knows of no organized crime influence in
23 Local 1001.
24 BY MR. THOMAS:
25 Q. Mr. Capasso, you said you're here to answer
618
1 questions truthfully and not to hide and so forth. A
2 few days ago Mr. Scigalski came to see you, right?
3 A. I don't remember his name. Two men caught me
4 in the hallway, threw something in front of me which I
5 didn't even look at or read, I just glanced at, and
6 says, "Do you know we want to talk to you? We're under
7 -- because Local 1001 is under investigation."
8 Well certainly when somebody puts something
9 in your -- and these were two big guys, very tall in
10 stature. And I backed up on them very -- as soon as he
11 brought this paper out I backed up and I said, "Where
12 are you from?" And they said, "The International." I
13 said, "Well I was -- if this is about 1001," I said, "I
14 was told by 1001's counsel, Peter Faraci -- and first
15 of all let me say I was very taken with this and scared
16 to a degree because I have never had anything to do
17 with police in my entire life or any type of
18 investigation like this in my life. I've never been in
19 a police station.
20 Q. So --
21 A. So these two men asked me to answer some
22 questions for them because Local 1001 -- I said, "Wait
23 a minute." I said, "I was told by Peter Faraci that if
24 you would like to talk to me, you contact them -- you
25 contact Peter Faraci." One man said, "Do you mean to
619
1 tell me that you don't want to talk to me?" I said, "I
2 didn't say that, sir. I said I was told to call Peter
3 Faraci because he would make an appointment." And he
4 said to me, "This is about your future. Have a nice
5 life." Is he threatening me, Mr. Smith? Is that your
6 name? I'm sorry.
7 MR. THOMAS: No.
8 THE INDEPENDENT HEARING OFFICER: Anyway,
9 that's okay. We got the picture.
10 MR. THOMAS: This will go a lot more smoothly
11 if you wait for a question.
12 THE WITNESS: I'm sorry. I get emotional
13 about this.
14 THE INDEPENDENT HEARING OFFICER: I think I
15 heard -- I know the question. Did he know. He told
16 him --
17 MR. THOMAS: Actually no, that wasn't what I
18 was going to ask him.
19 BY MR. THOMAS:
20 Q. The papers he had for you was a subpoena to
21 testify here, right?
22 A. I really don't know what it said because I
23 didn't read it. I just backed away from them.
24 Q. Are you saying that the two of you didn't
25 read it together?
620
1 A. No.
2 Q. That didn't happen.
3 A. No.
4 Q. And did you refuse to take the papers?
5 A. He never gave them to me. I just backed away
6 from him because it was two guys, I didn't know really
7 who they were. They didn't take any, what you call it,
8 identification.
9 Q. Just focus on the question.
10 A. Yes, sir.
11 Q. Did they extend the papers to you?
12 A. Yes, sir.
13 Q. Did you take the papers?
14 A. No.
15 Q. Did you put your hands back away from the
16 papers?
17 A. No. I was just standing there in front of
18 them looking at what they had in front of them. I
19 didn't read it. I backed away from them because of who
20 -- they were big guys and I backed away from them
21 because I didn't know who they were.
22 Q. Did they tell you it was a subpoena to
23 testify?
24 A. I don't think they said -- no, they didn't
25 say it was a subpoena. They said they would like to
621
1 talk to me about 1001. "Local 1001 is under an
2 investigation and we would like to talk to you about
3 it." That's all they said.
4 Q. Did they say words to the effect of, "We have
5 some papers signed by Mr. Vaira to have you come down
6 and testify."
7 A. Not at all.
8 Q. You didn't understand that?
9 A. They never said that.
10 Q. And there was nothing they said that gave you
11 that understanding.
12 A. No, sir.
13 Q. Why wouldn't you take the papers from them?
14 A. First of all, I told you I was very taken
15 with the fact that they were even there at my office
16 in the hallway. And I was told by Peter Faraci that if
17 they wanted to talk with me, that they were to call
18 him. So I felt that there was nothing for me to do
19 other than direct them to Mr. Faraci.
20 Q. By the way, Mr. Faraci was not your personal
21 attorney, was he?
22 A. No. He's Local 1001's attorney.
23 Q. So he wasn't representing you in that
24 capacity, right?
25 A. No.
622
1 Q. He was representing the Local.
2 A. But I'm an Auditor with the Local, aren't I?
3 Q. I understand. But he wasn't representing you
4 in your personal capacity.
5 A. No.
6 Q. Nor in your capacity as a Pension officer.
7 A. Where at?
8 Q. At the City of Chicago.
9 A. Oh, no. No, sir.
10 Q. Did you get any telephone calls from Mr.
11 Raymond Maria --
12 A. I did.
13 Q. -- in the weeks prior?
14 A. I did.
15 Q. You returned none of those calls, did you?
16 A. I got a couple of calls when I was in budget
17 meetings, and I left a note when I went into another
18 meeting -- first of all I called Mr. Faraci and Mr.
19 Faraci says, "Give me his telephone number. I will
20 call him." And I assumed that he would do that. But I
21 got one more call from him when I was in the budget
22 hearings. I think the first call, I remember it
23 vividly, and I kept in my head the times that he
24 called. I think he called three times. One my staff
25 member bumped him off, you know, knocked him off the
623
1 phone.
2 Q. Thank you for clarifying that.
3 A. He calls back. Then -- oh, my God. Then he
4 called back and I wasn't able to take that, and the
5 third call I had left a message for her after the third
6 call for him to call Peter Faraci if it's involving the
7 Local 1001 issue. But he never called back.
8 Q. But you personally never returned any of
9 those phone calls.
10 A. No, sir.
11 Q. Mr. Capasso, to be eligible to be an officer
12 of the Local, what are the eligibility requirements?
13 Do you know?
14 A. I would imagine you have to be a Union
15 member.
16 Q. And is there anything else that you're aware
17 of?
18 A. You have to be a respected union member.
19 Q. Would it surprise you to know that to be
20 qualified to be an officer of a Local, you have to have
21 been regularly working at the calling?
22 A. At the calling?
23 Q. At the calling? Is that the first you heard
24 of that?
25 A. What do you mean by that?
624
1 Q. Let's back up for a second.
2 THE INDEPENDENT HEARING OFFICER: Working at
3 the calling I think for one year prior to the election.
4 I think it's one year.
5 BY MR. THOMAS:
6 Q. Let me make sure I understand this. You were
7 first appointed as an Auditor in 1984, right?
8 A. Yes.
9 Q. Mr. Capasso, you first became an Auditor by
10 appointment in 1884, right?
11 A. 1984.
12 Q. Did I say --
13 A. 1984.
14 Q. What did I say?
15 A. 1884.
16 Q. I meant 1984.
17 A. Yes, sir.
18 Q. And thereafter you were elected on a periodic
19 basis, right?
20 A. Whenever they had an election, yes, sir.
21 Q. Which is usually every three years?
22 A. Something like that.
23 Q. So for example, in 1991, 1995, 1999, does
24 that sound right?
25 A. Yeah.
625
1 Q. Every three or four years?
2 A. Yes, sir.
3 Q. So each time that would happen you would be
4 part of a slate of nominated officers that would be
5 voted upon by the membership, correct?
6 A. Right.
7 Q. And there were -- there was a process there
8 where people would review qualifications and so forth,
9 right?
10 A. Oh, yes.
11 Q. And in the review of the qualifications there
12 is a requirement, is there not, that the person who
13 runs for office having -- have worked at the calling.
14 Are you familiar with that?
15 A. You have to explain that to me. I'm not
16 familiar with that.
17 Q. Let me show you the Local Uniform
18 Constitution, Article 5. It says, "Qualifications for
19 Office."
20 MR. MENDENHALL: Mr. Thomas, if you can hold
21 on one minute while we get our copy out.
22 MR. THOMAS: Sure. Take your time. Take
23 your time.
24 BY MR. THOMAS:
25 Q. So under Section 4 it indicates that, "No one
626
1 shall be eligible to hold office in the Local Union if
2 the person has not been regularly working at the
3 calling of the International Union during the entire
4 year immediately prior to the nomination. Working at
5 the calling shall be defined to include," and then it
6 goes on to list a number of things such as employment
7 for which the Union serves, or is actively seeking to
8 serve, is the exclusive collective bargaining
9 representative, employment in a full-time official
10 capacity for the Local Union, employment by a
11 government or a Trade Union movement," and so forth.
12 Under D, "Periods of unemployment where the member was
13 available," so forth. "Members who can prove that they
14 were unable to work because of temporary illness," and
15 so forth. I'll leave that in front of you if you want
16 to refer to it.
17 But once you became the head of the Pension
18 Fund and you were full-time employed at the Pension
19 Fund, you were no longer working at the calling, were
20 you?
21 A. I can't say that. I don't know what -- how
22 you come to that conclusion.
23 Q. As you look at those listed criteria there --
24 THE INDEPENDENT HEARING OFFICER: Let me
25 interpose an objection. As you know, I have been the
627
1 Election Officer of this Union for a lot of years, and
2 that particular issue could have come before me. I
3 don't know if he's able to answer that. That's
4 something the Election Officer would have to wrestle
5 with. And it's very possible -- it's -- possibly he
6 claimed it. I'm not sure.
7 BY MR. THOMAS:
8 Q. Let me ask it a different way then.
9 Once you became the full-time Executive
10 Director of the Pension Fund for the City of Chicago
11 employees, you were no longer working in the laboring
12 industry, were you?
13 A. Define laboring industry.
14 Q. How do you define it?
15 A. No, I think you have to define it for me.
16 Q. Well I would define it as the Constitution
17 defines it. But so that we don't chase our tail here.
18 You weren't working in any full-time capacity for Local
19 1001, were you?
20 A. No.
21 Q. And you weren't working in the other ways
22 that are listed Under Article 5, Section 4 as a
23 collective bargaining representative of employees,
24 right?
25 A. As a --
628
1 Q. You were working full-time as a Pension Fund
2 Administrator.
3 A. I would like to know where you're going so I
4 can answer the question.
5 THE INDEPENDENT HEARING OFFICER: Let me stop
6 this. If you think that he wasn't working in the
7 calling, you may attempt to demonstrate it. I don't
8 have to hear answers from him. And every now and then
9 these issues used to come up when I was the Election
10 Officer that somebody would come out of the blue from
11 someplace else and said, "I'm working in the capacity
12 over there and it's in the labor movement, therefore I
13 should qualify." I don't think that issue ever hit
14 there, and he very well may not have qualified. But
15 that's something you can argue to me. Whether -- his
16 answers aren't going to shed anymore light on it.
17 MR. THOMAS: One final question if I may, Mr.
18 Vaira.
19 BY MR. THOMAS:
20 Q. On Exhibit Number 12, you've got that.
21 That's your letter to Miss McCarthy, right?
22 A. Yes, sir.
23 MR. THOMAS: And Mr. Vaira, I'm going to
24 focus on the next to the last paragraph.
25 BY MR. THOMAS:
629
1 Q. Miss McCarthy, in order to determine your
2 eligibility for the pension benefits you were
3 requesting, wanted to know whether you would be
4 disqualified by any current employment in a laboring
5 industry, right? And that's the letter -- and you
6 responded back, correct?
7 A. She did not say "disqualified". She said
8 that, "If you're working within the industry, that you
9 cannot collect a pension right now until you retire
10 from your Pension Fund."
11 Q. Okay. Fair enough.
12 A. So there's a distinct separation of what I
13 talked with her, and this is what this letter means,
14 that I am not in the Taft-Hartley arena. I'm in the
15 Public Fund arena.
16 Q. You're in a completely different line of
17 employment is what you were saying, right?
18 A. If you want to put it that way, go ahead.
19 Q. Do you agree with that?
20 A. That I wasn't working in their industry, yes,
21 that's correct.
22 Q. Okay. And you clearly weren't working
23 full-time for the Union, right?
24 A. That's right.
25 Q. So in your own words in the letter, to make
630
1 the point as clearly as you could to Miss McCarthy, you
2 said, "If I was asked do I work in the laboring
3 industry, I would have to answer absolutely not."
4 A. Because she was referring to the Taft-Hartley
5 area.
6 Q. But you would also agree that you certainly
7 weren't working full-time for a union. You were
8 working for a Pension Fund, right?
9 A. I think we established that.
10 THE INDEPENDENT HEARING OFFICER: We've gone
11 over this a couple times before, counsel.
12 BY MR. THOMAS:
13 Q. And that was the case from 1986 to the
14 present, right?
15 A. That's correct.
16 MR. THOMAS: Okay. Thank you. Nothing
17 further at this time.
18 THE INDEPENDENT HEARING OFFICER: Mr. Lydon?
19 MR. LYDON: What I was going to say is that
20 in light of our need to -- I'm going to have to call
21 him back in any event because I don't know yet what Mr.
22 O'Rourke may have to say more about him, and I
23 understand he's going to want to address that as well.
24 MR. THOMAS: Wait a minute, Mr. Vaira. We're
25 going to break up this witness' --
631
1 MR. LYDON: I can call him in our case.
2 That's what I'm saying. That's all I'm saying. And I
3 think that -- I'm going to have to call him in any
4 event.
5 THE INDEPENDENT HEARING OFFICER: He never
6 spoke to O'Rourke --
7 MR. THOMAS: He did.
8 MR. LYDON: Oh yes, he did. And so I'm
9 thinking -- and particularly when I heard him today
10 express himself, he should have an opportunity to
11 confront whatever is going to be said about him.
12 THE INDEPENDENT HEARING OFFICER: Did
13 O'Rourke say something?
14 MR. THOMAS: I would certainly welcome, and I
15 have no objection to Mr. Lydon --
16 THE INDEPENDENT HEARING OFFICER: That's
17 fine.
18 MR. THOMAS: -- addressing it in cross
19 examination whatever O'Rourke covered with respect to
20 this witness. But I guess I have an issue about
21 delaying the cross for two or three weeks. That seems
22 to me unnecessary.
23 THE INDEPENDENT HEARING OFFICER: He can call
24 him back. I'm not concerned about that.
25 MR. LYDON: What difference does it make?
632
1 THE INDEPENDENT HEARING OFFICER: You have to
2 refresh my recollection what O'Rourke said about him.
3 MR. THOMAS: I can tell you.
4 MR. LYDON: He said --
5 THE INDEPENDENT HEARING OFFICER: Apparently
6 it's enough to cause you to want to rebut or --
7 MR. LYDON: He said he was known to be an
8 organized crime associate of the Elmwood Park Crew.
9 In addition to that, there are these
10 allegations, which I don't know if they're going to be
11 expanded on or not, they're saying he's an associate of
12 "Little Jimmy" Marcello.
13 THE INDEPENDENT HEARING OFFICER: I remember
14 that. Fine. You can call him back. So that you want
15 to delay whatever -- we can call it cross.
16 MR. LYDON: Because I don't know -- his -- I
17 don't have issues -- I suppose I could ask him a couple
18 of questions about his -- to clarify some points, but I
19 doubt there's anything material here.
20 THE INDEPENDENT HEARING OFFICER: He's going
21 to give the same answer as far as that goes.
22 Now based upon that let me just tell you.
23 Gentlemen, what I see coming up is -- I think we can
24 streamline some of it. The rest of the workers, the
25 officers are not in the same position as him.
633
1 MR. LYDON: Absolutely right.
2 MR. THOMAS: Well some of them have similar
3 issues, but we don't need to go in the same level of
4 depth.
5 THE INDEPENDENT HEARING OFFICER: So I'm
6 going to ask you to streamline that because I think we
7 can go right to the heart of the matter. Did you work?
8 What was the form of compensation, et cetera, et
9 cetera, not a lot more than that. So I think we could
10 streamline this. I'm just warning you, if you don't, I
11 will.
12 MR. THOMAS: I hear you.
13 THE INDEPENDENT HEARING OFFICER: All right.
14 You're excused. Thank you very much.
15 THE WITNESS: Thank you.
16 (Witness excused.)
17 THE INDEPENDENT HEARING OFFICER: Mr. Lydon
18 at some period of time is going to call you back.
19 We are now at ten after 12:00 and we've
20 exhausted the reporter I think. So let's get our start
21 at one o'clock and give it hell. All right.
22 (Whereupon a lunch break was taken
23 in the proceedings after which
24 the following proceedings were
25 had:)
634
1 MR. THOMAS: At this time we would call Nick
2 Cataudella if he's here.
3 THE INDEPENDENT HEARING OFFICER: The young
4 lady will swear you in.
5 (Witness duly sworn.)
7 called as a witness on behalf of the Petitioner, having
8 been first duly sworn, was examined and testified as
9 follows:
10 DIRECT EXAMINATION
11 BY
12 MR. THOMAS:
13 Q. Good afternoon.
14 THE INDEPENDENT HEARING OFFICER: Probably
15 have his spelling. Ask him to spell his last name for
16 the record.
17 THE WITNESS: C-a-t-a-u-d-e-l-l-a.
18 BY MR. THOMAS:
19 Q. Good afternoon.
20 A. Hello.
21 Q. Mr. Cataudella, what is your current
22 employment?
23 A. Local 1001.
24 Q. You're an officer there?
25 A. Business Agent.
635
1 Q. So that's a full-time position?
2 A. Yes, it is.
3 Q. How long have you been -- you need to be
4 close enough to the mike so we can hear you.
5 How long have you held that position?
6 A. About a year and a half.
7 Q. What were you before that?
8 A. I was a laborer for Transportation.
9 Q. City of Chicago?
10 A. City of Chicago, asphalt helper.
11 Q. So it would have been 2001, 2002 you became a
12 Business Agent?
13 A. Yeah, about 2002.
14 Q. So prior to that time you -- did you have any
15 positions at Local 1001?
16 A. Yes.
17 Q. What was that?
18 A. I was an Auditor.
19 Q. You were an Auditor. Did you perform any
20 actual functions as an Auditor, or was that really just
21 a title?
22 A. It depends on what you consider functions.
23 Q. If you could put it in your own words.
24 A. I was basically like a representative of the
25 Local.
636
1 Q. What did you understand your job duties to be
2 as an Auditor?
3 A. Basically to represent the Local.
4 Q. Okay. To do what?
5 A. What capacity?
6 Q. Yeah.
7 A. Like get people to come to the meetings, do
8 political work, people have problems in the yards they
9 come to us and we refer them to one of the officers in
10 the -- in the Local.
11 Q. The actual job description of an Auditor is
12 to assist in the auditing of the books. You didn't do
13 that, did you?
14 A. No, we didn't. They had an accountant.
15 Q. So in the years when you were an Auditor
16 prior to becoming a Business Agent, your primary work
17 day to day was your work for the City of Chicago.
18 A. Yes.
19 Q. And your Auditor position was unpaid,
20 correct?
21 A. Correct.
22 Q. When you -- did you accrue Pension and Health
23 and Welfare benefits with the City of Chicago?
24 A. Did I get pension?
25 Q. Yes. When you were working for the City.
637
1 A. Yes.
2 Q. And that was credited to an account at the
3 Fund that Mr. Capasso is head of?
4 A. I'm assuming. I don't know much about them,
5 yes.
6 Q. Did you know -- let me back up.
7 When did you first become an Auditor at Local
8 1001?
9 A. I'm guessing maybe a year and a half before I
10 became a Business Agent roughly.
11 Q. So maybe around 2000?
12 A. Yeah, maybe around 2000, 2001. Somewhere in
13 that area. I really don't know.
14 Q. How did you come to do -- be interested in
15 that position?
16 A. I heard there was an opening and somebody --
17 members approached me.
18 Q. When you say that you heard there was an
19 opening, there's nothing actually really to do in that
20 job, is there? Because the CPA firm that the Union
21 hires actually does the auditing, right?
22 A. As far as I know, yes.
23 Q. So was there anything particularly attractive
24 about this job?
25 A. Well I mean I like doing stuff for --
638
1 political work and stuff for the City, and it was an
2 opportunity for me.
3 Q. Who told you about it?
4 A. I really don't recall who told me because a
5 lot of us worked in the same department.
6 Q. You have no recollection of who alerted you
7 to the opening?
8 A. No.
9 Q. Did you know when you applied for it that it
10 had zero compensation?
11 A. Zero compensation, yes.
12 Q. Did you know that it had Pension and Health
13 and Welfare benefits associated with it?
14 A. Yes.
15 Q. How did you know that?
16 A. I'm sure someone told me.
17 Q. You don't recall who?
18 A. No. I'm sure one of the officers told me. I
19 don't recall who.
20 Q. In terms of actual hours working as an
21 Auditor while you were working your real job with the
22 City of Chicago, how many actual hours did you put in
23 as an Auditor?
24 A. There's no say in how many actual hours,
25 because you're on call 24 hours a day, seven days a
639
1 week, so. I mean where do you get actual hours from
2 that?
3 Q. That's my question to you. Assuming that
4 you're on call, you're not getting called 24 hours a
5 day, right?
6 A. No.
7 Q. You're actually doing your another job for
8 the City of Chicago for at least eight hours, correct?
9 A. Correct.
10 Q. If you were to say -- if Mr. Vaira were to
11 ask you how many hours did you actually work as an
12 Auditor during that period of time, what would you say?
13 A. I couldn't give you a definite time. I mean
14 really the stuff we did was like dealing on hands. If
15 someone came to me with a problem --
16 Q. You would answer the question?
17 A. Answer the question or call somebody from the
18 office or the Local.
19 Q. And that might take fifteen minutes, half
20 hour?
21 A. Could be a half hour, yeah.
22 Q. Would you agree with the statement that at no
23 point did you work 120 hours a month as an Auditor.
24 A. I don't agree with it. I don't know.
25 Q. You don't agree with it?
640
1 A. I don't know.
2 Q. Are you saying you might have worked 120
3 hours a month as an Auditor?
4 A. I don't know. I really couldn't give you an
5 idea.
6 Q. Bear in mind I'm talking about --
7 A. I know what you're talking about.
8 Q. -- a period of time when you're working for
9 the City --
10 A. Um-hum.
11 Q. -- where you're working --
12 A. There's times we did political work. There's
13 days I was working everyday. I couldn't give you a
14 definite answer.
15 Q. Bear with me for a moment.
16 When you were working for the City, you were
17 working roughly 160 hours a month, right?
18 A. Correct.
19 Q. Are you saying it's possible that you might
20 have worked an additional 120 hours as an Auditor on
21 top of that 160?
22 A. In a certain month maybe.
23 Q. So you might have -- on a certain month you
24 might have worked 280 hours.
25 A. I couldn't say for sure. I mean I really --
641
1 you know. I mean I was consistent. I was looking to
2 represent the Local. That was it.
3 Q. I understand.
4 A. Okay.
5 Q. But I'm staying with the issue of hours.
6 A. Okay. Go ahead.
7 Q. You worked 160 hours for the City of Chicago?
8 A. Right.
9 Q. Are you saying it's possible that in a given
10 month you might have actually worked an additional 120
11 hours for Local 1001?
12 A. No. I'm saying I don't know or I don't
13 remember.
14 Q. And if that ever happened, would that have
15 happened every month?
16 A. No.
17 Q. What work originally brought you to LIUNA?
18 A. I worked for the Department of
19 Transportation.
20 Q. And by virtue of that you signed up with
21 LIUNA? Or did you sign up with LIUNA first and then go
22 to --
23 A. I was a member of Local 1001.
24 Q. Before you applied to the City?
25 A. No.
642
1 Q. Okay.
2 A. When I applied for the City and I was working
3 for the City I became a member of Local 1001.
4 Q. Okay. How did you get the job with the City?
5 A. I put in an application down at City Hall.
6 Q. What was the specific job you applied for?
7 A. Asphalt helper.
8 Q. Did anyone sponsor you or put in a good word
9 for you?
10 A. No.
11 Q. Who is your supervisor in the City?
12 A. Who was my supervisor?
13 Q. In your first job with the City.
14 A. Okay. If you want to go way back, I worked
15 for the City originally in the '80's.
16 Q. How many different supervisors do you think
17 you've had over the years?
18 A. A lot. I mean there's no one particular
19 supervisor. There's a foreman, there's a supervisor,
20 there's a general foreman, so I mean you got to make it
21 specific with that.
22 Q. What are the different jobs you had with the
23 City before you became a Business Agent?
24 A. I was a garbage man and I was an asphalt
25 helper and acting asphalt foreman.
643
1 Q. So that's three.
2 A. Basically, yeah.
3 Q. Do you remember your supervisors in those
4 three categories?
5 A. When I worked as a garbage man I worked for
6 the 43rd Ward. But I was on different -- sometimes I
7 worked on snow, sometimes -- so it varied.
8 Q. Okay. Do you own The Body Shop on Grand?
9 A. No.
10 Q. Do you have any affiliation with The Body
11 Shop on Grand?
12 A. What do you mean by affiliation?
13 Q. Do you know of it?
14 A. Yes, I do.
15 Q. What do you know of it?
16 A. I know a friend of mine owns it.
17 Q. Who is the friend?
18 A. He's a Polish kid, Bill. It used to be Bill
19 and my nephew Nick.
20 Q. Bill and your nephew Nick?
21 A. Nicholas.
22 Q. You don't know Bill's last name?
23 A. It's a long Polish name.
24 Q. A long Polish name. Did you used to own The
25 Body Shop on Grand?
644
1 A. Yes, I did.
2 Q. Okay. When did you sell the Body Shop on
3 Grand?
4 A. Years ago, probably in the 80's.
5 Q. In the 80's?
6 A. Yes.
7 Q. When did you first buy The Body Shop on
8 Grand?
9 A. I want to say -- I don't know. Guessing
10 maybe '86.
11 Q. 1986?
12 A. I'm guessing, yes, in that time period.
13 Q. And what is The Body Shop on Grand?
14 A. It's a body repair shop for cars, fix cars.
15 Q. Did you have employees when you owned it?
16 A. Yes.
17 Q. How many employees?
18 A. I don't know. I don't really recall. It's
19 so long ago.
20 Q. Are we talking --
21 A. Maybe ten. Maybe. I'm just guessing. I
22 really don't know.
23 Q. And how long did you own and run The Body
24 Shop on Grand?
25 MR. LYDON: Object to the form of the
645
1 question. I don't think he said he ran it. He said he
2 had ownership.
3 BY MR. THOMAS:
4 Q. Did you have a role?
5 A. Occasionally. Basically like a financial
6 thing.
7 Q. What does that mean?
8 A. I mean not everyday, everyday.
9 Q. But some days?
10 A. Some days.
11 Q. Okay. How much of your time were you
12 involved in The Body Shop?
13 A. I don't recall. It's been -- I don't recall.
14 It's been so long ago.
15 Q. Well give us your best recollection of how
16 much of your week was devoted to running that shop.
17 MR. LYDON: Object to the form of the
18 question. He says "running the shop". He's never said
19 he was running the shop.
20 BY MR. THOMAS:
21 Q. Involvement in the shop.
22 A. Day, two days, I don't know. I really don't
23 recall. I'm not going to give a definite answer if I
24 don't recall.
25 Q. I'm just asking for your best recollection.
646
1 A. Maybe a couple of days.
2 Q. Okay. When you weren't there, who was
3 running it?
4 A. At the time I think Tony Fountas.
5 Q. Who is Tony Fountas?
6 A. He was one of my partners then.
7 Q. So not an employee but one of your partners?
8 A. Right. I think he ran the day to day
9 operation, correct.
10 Q. So based on your earlier answer is it fair to
11 say that at least one or two days a week you were on
12 the premises of The Body Shop on Grand?
13 A. I would say that's fair.
14 Q. Did you know anyone by the name of Mike
15 Sarno?
16 A. Yes, I do.
17 Q. Who is Mike Sarno?
18 A. Just a friend -- or acquaintance I should
19 say.
20 Q. How do you know him?
21 A. Basically he kind of grew up in the same area
22 or hung out in the same areas.
23 Q. Do you know anyone by the name of Salli
24 Cataudella?
25 A. Yes.
647
1 Q. Who is that?
2 A. That's my brother.
3 Q. Do you know anyone by the name of Sam Lewis (Louis)?
4 A. Yes, I do.
5 Q. Who is Sam Louis?
6 A. He grew up in the neighborhood. He's
7 actually Tony's brother-in-law.
8 Q. Tony being?
9 A. Tony Fountas.
10 Q. Tony's brother-in-law. Did he go to The Body
11 Shop on Grand as well?
12 A. I'm sure he stopped in.
13 Q. Do you know Rocky Infelise?
14 A. No.
15 Q. You never heard that name?
16 A. I heard it from the newspapers.
17 Q. But you never met anyone by that name?
18 A. No, not to my recollection.
19 Q. Have you ever been involved in bookmaking
20 activities?
21 A. Have I ever been involved in bookmaking
22 activities?
23 Q. Yes.
24 A. Not that I recall.
25 Q. What does that mean?
648
1 A. I mean I was charged with something, but I
2 wasn't involved.
3 Q. Were you convicted of something?
4 A. No.
5 Q. What were you charged with?
6 A. I think they charged me with -- I'm assuming
7 -- this is going back 20 years ago, bookmaking or
8 something or syndicated booking or something.
9 Q. Are you saying you were acquitted of those
10 charges?
11 A. I think I was.
12 Q. You think you were?
13 A. You're going back 20 years. I really don't
14 remember what I did when I was a kid.
15 Q. Well approximately how old were you when you
16 were charged with this?
17 A. Maybe my 20's.
18 Q. And you don't remember whether you were
19 acquitted or convicted?
20 A. I'm assuming I was acquitted.
21 Q. Why are you assuming that?
22 A. I really don't do nothing wrong in my life.
23 I don't know. I'm just assuming I was acquitted. I
24 think I was acquitted. It's been so long ago I really
25 don't think about it.
649
1 THE INDEPENDENT HEARING OFFICER: If somebody
2 asked you, do you have a record?
3 THE WITNESS: No.
4 BY MR. THOMAS:
5 Q. Did you have any understanding -- let me back
6 up.
7 From the middle of 2000 to the middle of
8 2002, you were still working for the City but you had
9 an unpaid Auditor position with the Local, right?
10 A. Correct.
11 Q. Okay. And do you know what the Local wrote
12 down on its LM-2's concerning your compensation?
13 A. Not really, no.
14 Q. Would it surprise you to know that they wrote
15 zero as your compensation in their annual reports?
16 A. It wouldn't surprise me and I wouldn't really
17 care.
18 Q. Did you have any knowledge that the Local
19 while it was writing zero for compensation to the
20 Department of Labor was telling your Pension and
21 Welfare Funds that you were working 120 hours at the
22 Local?
23 A. Was I aware of it?
24 Q. Yes.
25 A. I don't know what they tell them.
650
1 Q. Did you get quarterly statements from the
2 Funds?
3 A. I'm sure I did.
4 Q. And said you were working there 120 hours,
5 right?
6 A. Truthfully I really don't read it, but I'm
7 assuming, yes.
8 Q. And is it your testimony that during that
9 period of time that you were still working for the City
10 and had the unpaid Auditor position, that you were
11 actually doing 120 hours of work at the Local?
12 A. No. I just thought it was compensation for
13 work we did for the Local.
14 Q. So did you have any understanding of what
15 this 120 figure was that you would get in the mail?
16 A. I just thought it was compensation from what
17 we were doing for the Local.
18 Q. When you first came into the position of
19 Auditor, how did that happen? Were you elected?
20 A. I think I was appointed.
21 Q. Who appointed you?
22 A. The E Board.
23 Q. The E Board. And why was this not an
24 election?
25 A. I don't know.
651
1 Q. Was there -- did someone die?
2 A. I don't know if someone died or someone left
3 or stepped down or what.
4 Q. So there was a vacancy in between elections?
5 A. I'm assuming. I don't know.
6 Q. And when you became a Business Agent, did you
7 -- were you appointed to that job? How did you get
8 that job?
9 A. I was appointed.
10 Q. By whom?
11 A. By the E Board.
12 Q. And what is your current salary?
13 A. Current salary I think is about $68,000.
14 Q. One second. Just very briefly, Mr.
15 Cataudella. Let me show you a couple of documents and
16 ask you if you've ever seen these.
17 A. I need my glasses. They're in my jacket.
18 Q. Okay. Mr. Cataudella, am I pronouncing that
19 right?
20 A. Yes.
21 Q. Have you seen this document before?
22 A. No.
23 MR. MENDENHALL: Can we get an exhibit
24 reference?
25 MR. THOMAS: Exhibit 8. And if you want your
652
1 bate number -- we're looking at the 2001 remittance
2 report.
3 BY MR. THOMAS:
4 Q. The 2001 time period would be when you were
5 working for the City but also working in an unpaid
6 capacity as an Auditor, right?
7 A. Correct.
8 Q. So on this form you're listed as one of the
9 employees, correct?
10 A. Correct.
11 Q. Okay. I think you indicated you've never
12 seen this before?
13 A. No.
14 Q. Did you have any role in the preparation of
15 this document?
16 A. Not to my knowledge.
17 Q. Until now have you ever seen -- have you
18 reviewed this or had any role in the information that
19 went into this?
20 A. No.
21 Q. Did anyone ever ask you how many hours you
22 actually worked so this form could be filled out?
23 A. No.
24 Q. Now you're listed as 120 hours per week, see
25 that -- per month.
653
1 A. Per month.
2 Q. 30 per week. Do you have any idea how that
3 number was arrived at?
4 A. No, I don't.
5 Q. Do you know who was responsible for putting
6 that number down?
7 A. No, I don't.
8 Q. Some of the other people here like Debra
9 Chianelli, she's full-time, right?
10 A. I don't know.
11 Q. What's your understanding?
12 A. I'm assuming she is.
13 Q. And the other clerical people like Kelly and
14 Angela, they're full-time, right?
15 A. I'm assuming.
16 Q. But you've never seen anything about this
17 form.
18 A. No.
19 Q. Okay. Did you have any knowledge that the
20 Union was telling the Funds that you were working --
21 the actual category here is "Actual Hours Worked in the
22 Period --
23 A. May I --
24 Q. Let me finish the question and then you can
25 answer.
654
1 Did you have any knowledge that the Union was
2 telling the Funds that you were working actual hours of
3 120 per month?
4 A. I used to get letters in the mail, but I
5 never paid attention to them.
6 Q. Okay.
7 MR. THOMAS: Nothing further, Mr. Vaira.
8 THE INDEPENDENT HEARING OFFICER: Gentlemen?
9 MR. LYDON: I don't have any questions.
10 THE INDEPENDENT HEARING OFFICER: Thank you.
11 (Witness excused.)
12 MR. THOMAS: If Victor Roa is here.
13 THE INDEPENDENT HEARING OFFICER: Mr. Roa,
14 the young lady will administer an oath.
15 (Witness duly sworn.)
16 VICTOR ROA,
17 called as a witness on behalf of the Petitioner, having
18 been first duly sworn, was examined and testified as
19 follows:
20 DIRECT EXAMINATION
21 BY
22 MR. THOMAS:
23 Q. Good afternoon, Mr. Roa.
24 A. Good afternoon.
25 Q. You're a member of 1001?
655
1 A. Yes, I am.
2 Q. And are you employed by 1001 at this time?
3 A. No, sir.
4 Q. Do you have any positions with 1001?
5 A. I'm on the E Board. I work for the City of
6 Chicago.
7 Q. So your full-time work is City of Chicago?
8 A. Yes, sir.
9 Q. And you have an unpaid E Board position at
10 1001?
11 A. Yes, sir.
12 Q. And you've been in the room during some of
13 the testimony, so you're familiar with some of these
14 questions?
15 A. Yes, I am.
16 Q. When did you first become a member of 1001?
17 A. Let's see. I got in the City in 1989. I
18 started out as a watchman.
19 Q. And --
20 A. From that point on I was affiliated with 1001
21 as a member.
22 Q. Okay. So you've been a member since that
23 time.
24 A. Yes, sir.
25 Q. How long have you had any officer positions
656
1 at 1001?
2 A. I think it started in 2000.
3 Q. Okay.
4 A. 2000, 2001.
5 Q. You're right. At least according to my
6 records it looks like 2001. And that's when you were
7 elected to the E Board?
8 A. I was elected as an Auditor.
9 Q. You were elected as an Auditor?
10 A. Right.
11 Q. Okay. Do you also have an E Board position?
12 A. I do now.
13 Q. I see. Does it sound right that you might
14 have been elected as an Auditor in 2000 and E Board in
15 2001?
16 A. I think it was a little past 2001, like 2002
17 -- in between there sometime.
18 Q. So do you actually currently have both
19 positions?
20 A. No. I'm just on the E Board. I gave up the
21 Auditor.
22 Q. I see. You gave up Auditor when you went on
23 the E Board?
24 A. Right. Yes, sir.
25 Q. Thank you. Got it.
657
1 Both of those positions were unpaid, correct?
2 A. Yes, sir.
3 Q. Except for the Pension and Welfare
4 contributions we'll talk about.
5 A. Yes, sir.
6 Q. So from the late 80's to roughly 2000,
7 actually from the late 80's to the present you've had a
8 job with the City?
9 A. No, sir. I got on the City in 1989.
10 Q. Okay. I thought I said late 80's. But 1989
11 to the present City of Chicago.
12 A. '89. 1989 to the present time I'm employed
13 by the City.
14 Q. Got it. Thank you. That was what I thought
15 I asked. I'm sorry if I was confusing.
16 And that is -- what is your current job with
17 the City of Chicago?
18 A. I'm a laborer in the Electrical Department.
19 Q. Now for those 14 years or so both you and the
20 City have made contributions on your behalf to a
21 Pension Fund, right?
22 A. Wait. You know what? Let's start all over
23 again. '98. That's what it is, '98.
24 Q. We're getting our 8's and 9's mixed up.
25 A. '98. I'm sorry. Sam was getting nervous
658
1 over there. '98. I'm sorry. '98.
2 Q. So you first became a 1001 member in '98?
3 A. Right. Yes, sir.
4 Q. So fairly recently then?
5 A. Right. Exactly.
6 Q. Got it. From '98 to the present you've had
7 pension contributions made on your behalf by the City
8 of Chicago, and then presumably some of your own money
9 has gone into that same Fund as well, right?
10 A. I put my own money into the deferred comp on
11 the City.
12 Q. And the City makes contributions?
13 A. To my Health and Welfare, my pension.
14 Q. So that goes to Mr. Capasso's Fund, the City
15 of Chicago, Fund.
16 A. I would assume so, yes, sir.
17 Q. Did anyone recommend to you that you apply
18 for or seek the Auditor or E Board positions?
19 A. No, sir.
20 Q. How did you hear about them?
21 A. Well I knew they were looking for an Auditor,
22 a position to fill on the Board, and they wanted
23 somebody Hispanic. So that's where I came in.
24 Q. Makes sense.
25 When you were an Auditor, the Local had a CPA
659
1 firm, right?
2 A. Yes, sir.
3 Q. So is it fair to assume you didn't do any
4 actual auditing work?
5 A. No, sir.
6 Q. So at least in that one year period before
7 you became an E Board member, how much actual work as
8 an Auditor was there to do?
9 A. Well as an Auditor the way you're saying it,
10 it would be like bookkeeping and taking care of
11 paperwork and stuff. I never did that. What they do
12 is represent the Union in the field like my department
13 -- the Electrical Department, you know, like if there
14 was new machinery coming in, and before like a
15 different Local like 150 tried to take it over, let
16 1001 do it, the Laborers'.
17 Q. Right. So you -- stop me if I'm putting
18 words in your mouth. So you felt that by virtue of the
19 officer position you had some increased authority to
20 speak for the membership out in the field.
21 A. Yes, sir.
22 Q. But in terms --
23 A. I represented the Laborers' out in the field,
24 just look out for the Union, you know.
25 Q. Understood. But in terms of actual hands-on
660
1 officer work as an Auditor, that's really not what
2 you're talking about?
3 A. No, sir.
4 Q. And then you gave that up to be on the E
5 Board which is what you are now, right?
6 A. Yes, sir.
7 Q. When did you come to understand that there
8 was a form of compensation other than salary that was
9 associated with these positions?
10 A. When I got this packet at home.
11 Q. The charges?
12 A. Yes, the charges. Exactly.
13 Q. A welcome surprise?
14 A. Yes, it was.
15 Q. So had you any knowledge that the Union was
16 making contributions in your name to the Funds?
17 A. I knew I was being compensated, but I didn't
18 know how they were doing it, you know. I didn't know
19 that they were putting it into a pension for me which
20 is beautiful, but, you know.
21 Q. How did you know you were being compensated?
22 A. I mean everybody knew if you're doing work
23 for the Union, which I would have done for free, you
24 know, just to represent 1001, because that's how
25 strongly I feel about the job they're doing, and just
661
1 word of mouth, just, you know.
2 Q. What was the word of mouth? What were you
3 hearing?
4 A. That, you know, you get compensated for this,
5 you know, but they didn't tell me how, you know. I
6 wasn't actually getting any money for this, but they
7 were putting it into the pension for me.
8 Q. Were you getting statements in the mail?
9 A. You know what? I might have been getting
10 them but my wife handles all of that and --
11 Q. So you never read those?
12 A. I might have looked at them, but I just, you
13 know, figured it was something from the City, to be
14 truthful with you.
15 Q. Did you ever see 120 hours listed in any of
16 those mailings?
17 A. No.
18 Q. Did you know that the Union was telling the
19 Funds that you were working as an Auditor for 120 hours
20 a month?
21 A. When I seen the package that came to my
22 house.
23 Q. So only in these proceedings.
24 A. Yes, sir.
25 MR. THOMAS: Nothing further.
662
1 THE INDEPENDENT HEARING OFFICER: Mr. Roa, in
2 your job with the City --
3 THE WITNESS: Yes, sir.
4 THE INDEPENDENT HEARING OFFICER: In the
5 Electrical Department, whatever, you have to carry a
6 Union book to hold that job?
7 THE WITNESS: Do I have to carry a Union
8 book?
9 THE INDEPENDENT HEARING OFFICER: Yeah.
10 THE WITNESS: As a laborer?
11 THE INDEPENDENT HEARING OFFICER: Yeah.
12 THE WITNESS: I pay my dues.
13 THE INDEPENDENT HEARING OFFICER: You don't
14 have to be a Local 1001 member to hold that job.
15 THE WITNESS: Wait. Rephrase that again
16 please.
17 THE INDEPENDENT HEARING OFFICER: The job
18 that you're holding for the City, you have to be a
19 Local 1001 member to hold that job.
20 THE WITNESS: Yes, sir.
21 THE INDEPENDENT HEARING OFFICER: Okay.
22 THE WITNESS: That's it?
23 MR. THOMAS: That's it. All done.
24 THE WITNESS: Thank you.
25 MR. THOMAS: Thank you.
663
1 MR. LYDON: No cross.
2 (Witness excused.)
3 MR. THOMAS: Mr. Chianelli, Robert Chianelli
4 if he's here.
5 THE INDEPENDENT HEARING OFFICER: The young
6 lady will swear you in.
7 (Witness duly sworn.)
8 ROBERT CHIANELLI,
9 called as a witness on behalf of the Petitioner, having
10 been first duly sworn, was examined and testified as
11 follows:
12 DIRECT EXAMINATION
13 BY
14 MR. THOMAS:
15 Q. Good afternoon.
16 A. Good afternoon.
17 Q. Mr. Chianelli, it looks like you're Recording
18 Secretary of 1001?
19 A. Currently, yes.
20 Q. As of about 2001?
21 A. Yes.
22 Q. What are your job duties as Recording
23 Secretary?
24 A. Recording Secretary -- I'm also a Business
25 Agent. I don't know if you're aware of that.
664
1 Recording Secretary duties are outlined pretty clearly
2 in the Constitution. My duties as Business Agent, both
3 in the field and in the office, is to assist our
4 members with whatever problems that may occur during
5 the course of the day.
6 Q. So maybe I'm inferring too much, but tell me
7 if I am. It sounds like most of your job is in the
8 Business Agent capacity?
9 A. Yes, sir.
10 Q. And the Recording Secretary is more with
11 respect to making sure that minutes are done properly,
12 that type of thing?
13 A. Correct.
14 Q. Which is more of a monthly thing.
15 A. Yes, sir.
16 Q. And if my information is correct, you're also
17 a Delegate to the District Council?
18 A. That's correct.
19 Q. Prior to 2001, how were you employed?
20 A. I worked for the City of Chicago.
21 Q. And that was full-time work?
22 A. Yes, sir.
23 Q. Did you have any unpaid positions at 1001
24 prior to 2001?
25 A. Yes, sir.
665
1 Q. What was that?
2 A. I was elected an Auditor in 1999 at the
3 election. And in 2000 -- I want to say 2000, right
4 after Shirley got sick, I was appointed to the
5 Executive Board.
6 Q. Okay. Bear with me. So Auditor in the late
7 '90's?
8 A. 1999.
9 Q. 1999. And what was the position that came
10 when Shirley got sick?
11 A. Executive Board.
12 Q. Executive Board. Thank you.
13 So for approximately, let's call it, two
14 years, you had unpaid positions at the Local while you
15 also had your City employment?
16 A. That's correct.
17 Q. And does it sound approximately right that
18 those time periods might be June of '99 to September of
19 2001?
20 A. That's correct.
21 Q. Okay. Good. When you got those -- withdraw
22 that.
23 When you were working for the City, you
24 understood that you had a City pension that was --
25 A. Yes, sir.
666
1 Q. -- that was part of the package?
2 A. Yes, sir.
3 Q. That was Mr. Capasso's Fund that we heard
4 about this morning.
5 A. Yes, sir.
6 Q. When you first got the unpaid officer
7 positions at Local 1001, what was your understanding
8 with respect to whether they were compensated or not.
9 A. My understanding, and which was announced at
10 the election and passed by membership, was that
11 compensation for the office of Auditor, which I ran for
12 and was elected to by the membership, would be
13 compensated by Health and Welfare and Pension
14 contributions made on my behalf to the Westchester
15 Fund.
16 Q. Are you saying -- was this discussed at all?
17 A. It was discussed and passed by the membership
18 at the election.
19 Q. What was the discussion?
20 A. That officers elected to non-paying positions
21 such as Auditors, Executive Board, would be compensated
22 by contributions being made on their behalf to the
23 Pension and Welfare Fund.
24 Q. Perhaps I misspoke. That was the topic.
25 Were there any views expressed for or against, or was
667
1 it simply voted yes?
2 A. After it was announced it was voted yes I
3 believe.
4 Q. Did you have any understanding during that
5 approximately two year period of time that the Union
6 was representing to the Funds that you were working
7 for, I believe, 120 hours a month?
8 A. No.
9 Q. Did you get those statements in the mail
10 indicating 120 hours in the month?
11 A. Yes, sir, I believe I did.
12 Q. What did you understand that to mean?
13 A. I thought it was the way of -- I understand
14 that when you make a contribution on someone's behalf,
15 that you may have to -- to enter it into any kind of
16 system that they would have to give you credit hours.
17 And I would imagine that that figure that was on that
18 sheet was a way for the Pension and Welfare Fund to
19 keep track of what your credit hours were.
20 Q. Okay. Did you have any understanding that
21 the Local was required to be accurate in actually
22 reporting the right number of hours actually worked.
23 A. No.
24 Q. And in that approximately two year period
25 your actual hours at the Local were substantially less
668
1 than 120 a month, right?
2 A. Yes, sir.
3 MR. THOMAS: Nothing further, Mr. Vaira.
4 THE INDEPENDENT HEARING OFFICER: Thank you.
5 MR. LYDON: No questions.
6 THE INDEPENDENT HEARING OFFICER: Thank you.
7 (Witness excused.)
8 What else do you have?
9 MR. THOMAS: Thank you.
10 THE WITNESS: Thanks.
11 MR. THOMAS: Mr. DeChristopher please.
12 (Witness duly sworn.)
14 called as a witness on behalf of the Petitioner, having
15 been first duly sworn, was examined and testified as
16 follows:
17 DIRECT EXAMINATION
18 BY
19 MR. THOMAS:
20 Q. Good afternoon, Mr. DeChristopher.
21 A. Hello.
22 Q. Let's see. At present you have what position
23 in the Union?
24 A. Secretary-Treasurer.
25 Q. How long have you been Secretary-Treasurer?
669
1 A. The latter part of 2001.
2 Q. Replacing Mr. Gironda?
3 A. Replacing Mr. Gironda, yes.
4 Q. Who moved up to Business Manager?
5 A. Yes.
6 Q. Prior to 2001, you have been on the Executive
7 Board and also been Recording Secretary; is that right?
8 A. I was Recording Secretary, and I'm trying to
9 think back of these dates. I believe it was around
10 2000, right around that year. And prior to that I was
11 Executive Board member.
12 Q. Okay. And when did you first get those
13 positions?
14 A. I want to say I was Executive Board member --
15 and this is -- it's been quite awhile, '94.
16 Q. Okay. And it looks like -- were you
17 Sergeant-at-Arms for a period of time?
18 A. Yes, I was also a Sergeant-of-Arms in '94. I
19 believe it was the same year, yes, '94.
20 Q. So it looks like in the early 90's is when
21 you first got these unpaid officer positions; is that
22 right?
23 A. Yes.
24 Q. While you had those unpaid officer positions,
25 did you have full-time employment elsewhere?
670
1 A. Yes, I did.
2 Q. Where was that?
3 A. City of Chicago.
4 Q. When did you first start working for the City
5 of Chicago?
6 A. Gee, I have trouble remembering all the
7 dates. '74, '75.
8 Q. In any particular capacity?
9 A. I started off as a laborer.
10 Q. Which department?
11 A. Streets and Sanitation.
12 Q. Did you keep working as a laborer, or did you
13 move up to more of a supervisory position?
14 A. I was a laborer for all of the 70's I would
15 imagine. I think maybe 1980 -- you're asking me some
16 questions I can't remember. 1980, mid 80's, I would
17 say, maybe a couple of years give or take, somewhere
18 around there.
19 Q. What was the supervisory position that you
20 took on at that point?
21 A. I believe in the 80's I became a foreman.
22 Q. And for any particular type of activity at
23 Streets and Sanitation?
24 A. Yes. I worked street repair, mostly street
25 repair.
671
1 Q. All right. And then I take it during that
2 entire period of time you were a member of Local 1001.
3 A. Yes.
4 Q. How did you first get a job with the City?
5 A. It was probably in the early 70's. I put in
6 a few applications at the City.
7 Q. Did anyone help you with that?
8 A. Not to my knowledge, no.
9 Q. Did anybody tell you about it?
10 A. No. I mean I was just seeking employment at
11 that time. So, you know, I was working -- you know,
12 when you're young you work a lot of jobs. I was
13 seeking employment. I might have just put in an
14 application with the City. I put applications in quite
15 a few places.
16 Q. Did Mr. Caruso -- Bruno Caruso or Leo Caruso
17 or any other member of that family tell you this would
18 be a good idea?
19 A. I didn't know them at that time.
20 Q. When did you first come to know the Carusos?
21 A. I did meet Bruno Caruso. He was a foreman on
22 an asphalt crew. That's how I met Bruno.
23 Q. Did anybody help you get a job with the City?
24 A. No, sir, not that I'm aware of.
25 Q. All right. So you worked for the City
672
1 through the 70's and 80's, and then in the -- sometime
2 in the early 90's, '93, '94 time frame, you also took
3 on unpaid officer positions at 1001. Does that sound
4 right?
5 A. I think that was '93, '94, right around
6 there, yeah.
7 Q. But you kept working for the City, right?
8 A. Oh yes, sir.
9 Q. And it was only in the 2000, 2001 time frame
10 that you actually shifted your employment, your actual
11 paid employment to 1001, right?
12 A. 2001, yes, latter part of the year.
13 Q. Did anyone encourage you to seek the unpaid
14 officer positions in 1993 or '94?
15 A. I remember being called to a meeting and
16 asked if I -- at the Local, you know. I was involved
17 quite a bit with the Local, with politics at that time.
18 And I remember -- you know what? I can't remember if
19 it was at the Local office or if it was just somebody
20 from Asphalt that may have come up to me because there
21 was E Board members on Asphalt also at that time, and
22 asked me if I would consider being an E Board member.
23 Q. And why did you feel that that was an
24 attractive idea?
25 A. I mean I worked for the City. I did tons of
673
1 political work. I was -- my heart and sole belongs to
2 the Union. If it wasn't for them I wouldn't be making
3 a living wage for my family at that time.
4 Q. So -- but it was unpaid. So I'm trying to
5 get at what was in it for you.
6 MR. LYDON: I think he's answered that.
7 THE WITNESS: Just the pride of being an E
8 Board member. You know, I mean, that's what was --
9 what was in it for me. I mean I was so thankful to the
10 Union for the wages that we received, you know. I
11 worked at Zayre and K-Mart before I came here. So that
12 would give you an idea of the difference in pay, you
13 know.
14 BY MR. THOMAS:
15 Q. Did you have any understanding in 1993 or '94
16 that the unpaid positions you were taking at the Union
17 had a non-salaried form of compensation?
18 A. Most certainly I did.
19 Q. What did you know?
20 A. I knew that you got a stipend for being an E
21 Board member. That's what it was at that time.
22 Q. When you say stipend, you mean an actual cash
23 payment?
24 A. No. The stipend that -- I felt it was a
25 stipend they paid into your Health and Welfare.
674
1 Q. So a contribution on your behalf.
2 A. I call it stipend. You call it a
3 contribution.
4 Q. We're not talking about something you can go
5 cash in the bank.
6 A. Absolutely not.
7 THE INDEPENDENT HEARING OFFICER: There's
8 some confusion. In some Locals you get a stipend for
9 showing up at the meeting. They give you 50 bucks.
10 THE WITNESS: I just called it a stipend. My
11 mistake. I'm not an attorney or --
12 THE INDEPENDENT HEARING OFFICER:
13 Sergeant-at-Arms gets 50 bucks or something for coming
14 in. Everybody comes, and some places they give them a
15 meal.
16 THE WITNESS: Sorry for the terminology.
17 BY MR. THOMAS:
18 Q. I just want to make sure we understand each
19 other.
20 So you had an understanding right in the very
21 beginning that this was part of the package.
22 A. Certainly.
23 Q. How was that communicated to you?
24 A. Let me think here for one minute.
25 Q. Sure.
675
1 A. I believe I was at the Union office. There
2 was a meeting of the E Board, and I was called in to go
3 to the E Board. And at that time I was appointed an E
4 Board member, and they told me that this is what comes
5 with appointment.
6 Q. They being the whole E Board?
7 A. Yeah.
8 Q. This was the same time that Mr. Caruso --
9 Bruno Caruso took over for Ernie Kumerow, right?
10 A. I don't believe so because Ernie was at that
11 meeting.
12 Q. So far as you can remember Ernie Kumerow
13 was still --
14 A. Ernie Kumerow was --
15 Q. Was Business Manager.
16 A. Yeah. I remember him at meetings that I
17 attended after I became an E Board member.
18 Q. I think you're absolutely right. I was
19 looking at the President line on the chart. But
20 Business Manager didn't switch over until 1995 it looks
21 like. So Ernie Kumerow was head of the Union, and the
22 other members of the E Board were there?
23 A. Yes, sir.
24 Q. And was it Mr. Kumerow who told you that this
25 was part of the package of benefits?
676
1 A. I am really unsure about that. I wouldn't
2 know whose voice I heard at the time. I mean, you know
3 -- at that time I was proud. You know, I was proud to
4 be there.
5 Q. Um-hum. I take it no one said to you, "As
6 part of this we're going to write down that you
7 actually worked here 120 hours," or anything that
8 specific, right?
9 A. No.
10 Q. Did you ever come to understand that the
11 Union was in fact telling the Funds that you were
12 working a specified number of hours?
13 A. After I became more and more involved over
14 the years with the Union I realized that it wasn't
15 specific hours. It was your compensation. It was your
16 compensation. I realized, as you say, it was your
17 compensation. I became Secretary-Treasurer.
18 Q. Okay. We'll talk about that when we get to
19 it.
20 A. You're talking about back then?
21 Q. In the period you were unsalaried, did you
22 have any understanding that the Union was representing
23 to the Funds that you were working 120 or 160 hours a
24 month?
25 A. I received some things at home.
677
1 Q. Things in the mail?
2 A. Yeah.
3 Q. And when you got those and you saw, let's
4 assume it was 120 hours a month for a series of months,
5 did that strike you as odd in any way?
6 A. Not at all. That was my -- as I say, my
7 stipend for being a Board Member working for the Union.
8 Q. But it wasn't a dollar amount listed, was it?
9 A. No.
10 Q. It was a number of hours, right?
11 A. Yes, sir.
12 Q. And in -- and taking that literally, you
13 didn't actually work 120 hours at the Union back then,
14 correct?
15 A. No. I wouldn't say I worked 120.
16 Q. You had your full-time job at the City.
17 A. Full-time job.
18 Q. So that pattern basically continued for
19 roughly eight years until you became a full-time
20 employee and officer of the Local, right?
21 A. If that's the math, I would say yes, that is.
22 Yeah, eight years -- '94 to 2001 or '93 to 2000,
23 somewhere around there, seven, eight years.
24 Q. So if you could turn to Tab 8 in the binders
25 there.
678
1 A. This exhibit, Exhibit 716?
2 Q. Yes. Right here. And then if we go towards
3 the back we'll get to more recent years. So for
4 example, we might be looking at 2001 -- we'll --
5 A. I made a mistake also because I'm going to
6 need some glasses here.
7 Q. That's fine.
8 Directing your attention to the remittance
9 report for the year 2000, four or five lines down,
10 there's an entry there for you indicating 30 hours a
11 week and 120 hours for the month. Do you see that?
12 A. Yes, I do.
13 Q. Does that correspond, as best you know, to
14 the statements you would get in the mail indicating 120
15 hours a month?
16 A. You know -- I mean you're asking me something
17 from July of 2000 on a form that I get at home that I
18 just glance at. Does it correspond? I would imagine
19 it does. To really say it does, it might be like the
20 other document next to me.
21 Q. Fair enough.
22 Is today the first time you've ever seen that
23 form?
24 A. No, I've seen this one.
25 Q. Because you're Secretary-Treasurer of the
679
1 Local and you see this coming in and out?
2 A. Yes.
3 Q. Back at the time before becoming a paid
4 officer of the Local, were you familiar with these
5 forms?
6 A. I may have seen these forms in the office. I
7 was in and out of the office quite a bit, and at that
8 time I may have seen these forms, yes.
9 Q. Did you know that what was being written down
10 for the various unpaid officers under "Actual Hours
11 Worked" was 30 hours a week?
12 A. I probably wouldn't have paid it any
13 attention at that time.
14 Q. Well whether or not you paid any attention to
15 it, do you know whether you knew about it?
16 A. No, I wouldn't have known about this form at
17 that time I don't believe.
18 Q. Specifically the 30 hour, 120 hour.
19 A. Specifically that, yeah. I mean this, you
20 know -- but you asked me first if I had seen the form,
21 and I may have seen it, so I don't want to say I didn't
22 see it. I may have seen it, you know.
23 Q. I think I understand you. Um-hum.
24 And is it your understanding that for
25 approximately seven or eight years these contributions
680
1 were made on your behalf and you would get these
2 mailing at home, and that's the way it went on a
3 monthly basis, right?
4 A. Pretty much so.
5 Q. There was never any deviation -- in terms of
6 what you received in the mail, there was never any
7 deviation in this, was there? It was just a steady
8 pattern, wasn't it?
9 A. To tell you the truth, I never -- you got it
10 from the Laborers' Fund and I looked at it briefly, and
11 I may have looked at it one month out of three years a
12 little bit more, but it was just take it, you put it in
13 the cabinet with the rest of the stuff that you receive
14 on a monthly basis.
15 Q. But ultimately in terms of what this meant to
16 the Pension Funds, do you agree that it looks like a
17 representation that you were working at the Local for
18 1440 hours a year?
19 A. No, I don't agree with that.
20 Q. Why don't you agree with that?
21 A. I believe that the Funds know that this form
22 and the compensation was paid to us as municipal
23 workers.
24 Q. Let me make sure I understand that.
25 You believe that the Fund knew that these
681
1 payments were being made on your behalf.
2 A. Most certainly.
3 Q. Do you believe that the Funds knew that the
4 hours that were reported were not accurate?
5 A. I believe they knew it was a stipend
6 compensation for the work that I did for the Union.
7 Q. Where are you getting the word stipend?
8 THE INDEPENDENT HEARING OFFICER: A type of
9 compensation.
10 THE WITNESS: I'm story. I'm used to saying
11 a stipend.
12 BY MR. THOMAS:
13 Q. What is it that you think the Funds knew?
14 A. I believe that there was an agreement between
15 the Funds and the Local.
16 Q. What's the basis for your believing that?
17 A. Well I mean it was announced at every
18 election.
19 Q. Was anyone from the Funds at the elections?
20 A. Yes.
21 Q. Who from the Funds was at the elections?
22 A. Hugh Arnold.
23 Q. Hugh Arnold?
24 A. Yes.
25 Q. Was he counsel to the Laborers' Pension and
682
1 Welfare Funds?
2 A. Yes, he was. In fact, Hugh Arnold read the
3 compensation to the membership because he ran our
4 election.
5 Q. Why was counsel to the Funds present at your
6 elections?
7 A. He was our counsel at that time also.
8 Q. So he was playing both roles.
9 A. Yes.
10 Q. As far as you know.
11 A. As far as I know. At that time as far as I
12 know he was, yes.
13 Q. So he was at 1001 as counsel to 1001?
14 A. He was one of the attorneys that 1001 had
15 hired.
16 Q. And he would read those minutes that we've
17 seen in the record, right?
18 A. He would read the election minutes, because
19 during -- when we had an election and I can go to -- I
20 mean, you know, you're asking me for some years here
21 that I'm trying to remember. You know, I really don't
22 know whether it was -- the mid or early '90 elections
23 were, but he would come up to the podium. I was a
24 member then. I would attend all the meetings. He
25 would come up to the podium. And I remember distinctly
683
1 at the meeting -- and I remember asking who he was, and
2 they said he was an attorney for the Local, and he
3 would chair the election meetings. We would have
4 somebody there from the Illinois Board of Labor. It
5 was like a big thing. There would be several hundred,
6 if not more, members there, and he would read the -- he
7 would be the Chair of the election. So he would read
8 all the compensations for every member including, if
9 I'm not mistaken, that all -- and I'm not mistaken at
10 this. All compensation for E Board members and
11 auditors as a non-paid position, and the Local will
12 compensate them with Health and Welfare. Now if he's
13 an attorney for the Fund, he certainly would have
14 knowledge of the Fund. I mean he's a Fund attorney.
15 Q. Let me make sure I understand that. Was it
16 -- he was there as the Local's attorney, right?
17 A. He was there -- you know, I mean I can't
18 really speak for the '91 election because I'm not
19 exactly sure, but he was there as an attorney
20 representing our election. Now I'm not sure in '91 or
21 '90 -- I believe that election might have been '90,
22 '91. '91. That he was an attorney full-time, you
23 know, like we have Mr. Faraci. He's an E Board -- I
24 don't know if he was an E Board attorney full-time. In
25 '95 I believe he was. And he was also the attorney for
684
1 the Fund. So why would I doubt what he said?
2 Q. You're getting ahead of my questions.
3 So the issue I'm trying to nail down is, Mr.
4 Arnold was -- the reason he was at the elections is he
5 was there to provide legal advice to the Local
6 concerning the election process, right?
7 A. In '91 -- you know I would assume that in
8 '91. In '95 -- you know what? Yes, he was in 1991,
9 because in 1991 I remember specifically, yes. And one
10 -- you know you're trying to blur all these years
11 together. And now I know that from my experience since
12 '91, that he would be there representing the Local on
13 the election policy. And one of the things in the
14 election policy is to read the compensation for all
15 offices of an election, including -- now I can't go to
16 every Local and say this. But in our Local including
17 the auditors and the Executive Board members.
18 Q. You're answering much more than I'm asking.
19 A. I'm very sorry. But you asked me a question
20 and that's the only way I can answer it.
21 Q. It's a very narrow question.
22 So his role was to help and represent and
23 assist the Local in that process. And I'm not taking
24 away your answer. I'm just saying he was there as the
25 Local's attorney.
685
1 A. You know in '91 -- you're asking me something
2 that I am not exactly positive exactly what his role
3 is, and I don't really want to get into that pigeon
4 hole where his role is because I would be answering for
5 something in '91 that I'm kind of unsure -- I'm going
6 back a considerable amount of years here.
7 Q. How about in '95 or '99?
8 A. '95 -- '95 I was an E Board member at that
9 time, and yes, the Local retained him to run their
10 election. So I would say in '95 he ran that election
11 for the Local. I mean he was up at the podium and
12 spoke, you know, "These are the compensations for all
13 members."
14 Q. And did that happen again in '99?
15 A. In fact I remember 1995 because it was on my
16 birthday. My birthday is April 23rd. And that was my
17 election of an E Board member, and I was -- it was my
18 birthday. I was like, "This is great. It's my
19 birthday." You're always a little anxious at
20 elections, so I remember that.
21 Q. Did Mr. Arnold supervise or participate in
22 the '99 elections?
23 A. 1999 elections were conducted by Faraci -- I
24 believe Judge Leighton conducted that election.
25 Q. If I'm hearing you correctly, the one you're
686
1 most certain about Mr. Arnold's role was 1995.
2 A. No. I'm also very certain about '91 because
3 I was -- I remember -- I remember being there. And if
4 I remember, I was also -- I remember looking at the
5 books to make sure that the members were -- the
6 membership was on there, so I think I was an election
7 judge for that election as far as I know.
8 Q. What was it that led you to believe that Mr.
9 Arnold was also counsel to the Funds?
10 A. I remember because I was interested in
11 election. I was a judge and I remember asking at that
12 time, you know, exactly what Mr. Arnold's position was.
13 And somebody said, "Well he's attorney for the Local."
14 I says, "Is he here just for the election?" And they
15 said, "Yes." And I remember them saying he had
16 something to do with the Funds. And you know, sort of
17 blurred together. So I don't know if later on in the
18 years that I learned they meant the Health and Welfare
19 Funds, but I'm sure in '95 and I'm almost dead bang
20 positive, because they did say Funds to me, "He's the
21 attorney for the Funds." Now he wouldn't be the
22 attorney for the City of Chicago Funds.
23 Q. I'm not focusing on that. I'm focusing on
24 Mr. Jorgensen's Fund -- what is now Mr. Jorgensen's
25 Fund.
687
1 Let me ask you this: Who told you -- was it
2 a Local 1001 member who said, "He's counsel to the
3 Funds."?
4 A. You know, that's -- that would be stretching
5 my memory.
6 Q. So you don't know who it was that told you.
7 A. It could have been another judge. It could
8 have been -- it could have been anybody.
9 MR. LYDON: I'm not sure he knows. It
10 doesn't --
11 THE INDEPENDENT HEARING OFFICER: Hugh Arnold
12 represented -- I remember that.
13 MR. THOMAS: This is the first time I've
14 heard of him wearing this hat.
15 MR. LYDON: It's of record.
16 THE INDEPENDENT HEARING OFFICER: He's been a
17 lot of places.
18 MR. LYDON: District Council and the Fund.
19 THE INDEPENDENT HEARING OFFICER: I remember
20 he testified before me once.
21 MR. THOMAS: He testified in the District
22 Council case.
23 THE INDEPENDENT HEARING OFFICER: And he was
24 -- I wouldn't call him an Election Officer, but he had
25 something to do with some elections.
688
1 BY MR. THOMAS:
2 Q. So again, stop me if I'm stating this
3 unfairly. If I'm understanding you correctly, you're
4 saying that in part because of Mr. Arnold's stature as
5 counsel to the Funds, you would have thought if there
6 was a problem with this Mr. Arnold would have alerted
7 people to it.
8 A. Well that's the conclusion that I drew at
9 that time, and that's the conclusion that I draw now.
10 Q. Okay. So you agree with that statement then.
11 That's how you would characterize it?
12 A. Repeat that one more time. Sometimes you
13 could be tricky.
14 Q. Wow. I guess I should take that as a
15 compliment.
16 Could you read it back?
17 (Record read.)
18 THE WITNESS: One hundred per cent I would
19 say.
20 BY MR. THOMAS:
21 Q. That wasn't a trick question, was it?
22 A. No. You know, half way through it I was to
23 think of what you were saying, and I watched you here.
24 You're an adequate attorney.
25 MR. THOMAS: I guess I should rest my case
689
1 then.
2 THE INDEPENDENT HEARING OFFICER: Are we
3 moving the ball down the field is my question?
4 MR. THOMAS: We're getting late in the day.
5 THE INDEPENDENT HEARING OFFICER: How about
6 moving the ball.
7 BY MR. THOMAS:
8 Q. Mr. DeChristopher, did you have any idea how
9 much actual money the Local was contributing to the
10 Funds on your behalf?
11 A. In what time frame?
12 Q. May '94, to September 2001.
13 A. No.
14 Q. If I told you it was over $50,000, would that
15 surprise you?
16 A. Over a nine year period doing the work that I
17 did for the Local? No.
18 Q. Did you ever make claims on the Welfare Fund
19 on the health insurance side of this?
20 A. As I got older.
21 Q. You had primary insurance from the City of
22 Chicago, didn't you?
23 A. Yes, I did.
24 Q. What were the circumstances that would cause
25 you to use this other card?
690
1 A. I used it as a secondary insurance. My -- I
2 had some heart problems and went into the hospital.
3 Prior to that I didn't really have any medical
4 problems. As you get older you get medical problems.
5 I went into the hospital and I gave them both insurance
6 cards.
7 Q. Both at the same time or --
8 A. Well yes. Certainly you do that because when
9 you go into a medical facility -- evidently you're a
10 lot younger than I am. You go into a medical facility
11 and they ask you if you have insurance, you know. And
12 you give them your insurance card and they asked me
13 then if I had a secondary insurance, and I said, "Yes,
14 I do." So I gave them both insurance cards. Then they
15 ask you what is your primary coverage, and you know, I
16 always use the City of Chicago. That was my primary
17 coverage. That's the first time I used that card when I
18 got ill, I believe, because my wife had died -- passed
19 away, and I didn't -- didn't even think about using
20 that card at that time. She had cancer and the bills
21 were quite extravagant.
22 Q. But your primary insurance covered all of
23 that?
24 A. Every -- yeah, my primary insurance covered
25 everything.
691
1 MR. THOMAS: Nothing further, Mr. Vaira.
2 THE INDEPENDENT HEARING OFFICER: Gentlemen,
3 while you're here. I remember -- I'm looking at the
4 nomination meeting for April 23rd, 1995.
5 THE WITNESS: That was my birthday.
6 THE INDEPENDENT HEARING OFFICER: Which was
7 Chaired by, for election purposes, attorney Hugh
8 Arnold. He was not identified as who he represented,
9 but he Chaired it, and he appointed as a Special
10 Secretary for that meeting to take notes Mr. James
11 Capasso. At the meeting he appointed a number of
12 judges. Robert Chianelli was one of the judges of
13 election. They did not -- and they came back in and
14 the judge -- or Arnold -- Hugh Arnold then proceeded to
15 finish it off. Okay.
16 (Witness excused.)
17 MR. THOMAS: Mr. Gironda.
18 (Witness duly sworn.)
19 THE WITNESS: Name?
20 THE INDEPENDENT HEARING OFFICER: Yes, sir.
21 THE WITNESS: Nicholas B. Gironda.
23 called as a witness on behalf of the Petitioner, having
24 been first duly sworn, was examined and testified as
25 follows:
692
1 DIRECT EXAMINATION
2 BY
3 MR. THOMAS:
4 Q. Hello again, Mr. Gironda.
5 A. Hello, Mr. Thomas.
6 Q. You are first cousins with Mr. Caruso?
7 A. Yes, sir.
8 Q. And let's see. You have -- who's related to
9 whom? In other words, one of your parents is related
10 to one of his parents. So what would that be?
11 A. My mother and his mother are sisters.
12 Q. Okay. Thank you.
13 How often do you see Mr. Caruso?
14 A. Hardly at all.
15 Q. Only at family functions?
16 A. Yeah. Some -- probably only family
17 functions.
18 Q. Do you receive any advice from Mr. Caruso
19 concerning the administration of Local 1001?
20 A. None whatsoever.
21 Q. You've been Business Manager of 1001 for how
22 long now?
23 A. 2001, 2000.
24 Q. When Mr. Caruso stepped down?
25 A. Yes.
693
1 Q. Was that an appointment or an election?
2 A. Appointment.
3 Q. So there was a special meeting of what? The
4 E Board it was called?
5 A. Yes.
6 Q. Who moved your nomination? Do you know?
7 A. Who nominated me?
8 Q. Yes.
9 A. Well the E Board met and we discussed
10 nominations. And we met for awhile, and I'm not sure
11 if it was Nate Gibson. It could have been. It could
12 not have been.
13 Q. So you've been Business Manager since 2001.
14 And prior to that time you were Secretary-Treasurer?
15 A. Yes, sir.
16 Q. And how long -- how many years were you
17 Secretary-Treasurer?
18 A. From 1994 to the time that I became Business
19 Manager.
20 Q. It seems that -- well let me rephrase that.
21 You took over in 1994 for Mr. Caruso who then
22 became Business Manager, right, or some other officer?
23 A. Yes. It was a vacancy when Mr. Caruso became
24 the Business Manager. Secretary-Treasurer spot was
25 vacant and I was selected to go in there.
694
1 Q. And he had been Secretary-Treasurer, right?
2 A. Yes, sir.
3 Q. Was that an appointment in between elections?
4 A. Yes.
5 Q. What was the event that caused Mr. Caruso to
6 be -- to step up from Secretary-Treasurer to Business
7 Manager?
8 A. Mr. Kumerow had resigned for ill health. He
9 had numerous operations and fittings of different
10 metals in his body, so he wasn't feeling too well.
11 Q. So that created the vacancy that allowed Mr.
12 Caruso to step up, and then you took Mr. Caruso's spot.
13 A. Correct.
14 Q. Prior to '94 had you held any positions at
15 the Local?
16 A. Prior to '94, yes. I was the
17 Sergeant-at-Arms and a -- I'm blank here. Field Rep --
18 not a Field Rep, a --
19 THE INDEPENDENT HEARING OFFICER: E Board
20 member?
21 MS. NAGLE: Auditor?
22 MR. THOMAS: Business Agent?
23 THE WITNESS: Business Agent. I drew a
24 blank.
25 THE INDEPENDENT HEARING OFFICER: Sometimes
695
1 they call them -- that's a paid position, right?
2 THE WITNESS: Yes.
3 BY MR. THOMAS:
4 Q. So that was -- and the Business Agent
5 position was full-time?
6 A. Yes.
7 Q. How long did you have that position? How far
8 back?
9 A. '88?
10 Q. And prior to that you had been with the City?
11 A. Prior to that I was with the City.
12 Q. Okay. When did you first get a job with the
13 City?
14 A. In the 60's, late 60's.
15 Q. In what capacity?
16 A. I was a laborer in Transportation for a
17 couple summers, and after that I became a Section
18 Foreman in Loop Sanitation.
19 Q. How did you get that first job? Did anybody
20 help you out?
21 A. Application.
22 Q. Did anybody --
23 A. They had a Summer of Opportunity type deal.
24 I applied and I was put on.
25 Q. You became a 1001 member at that time?
696
1 A. Yes. 1001 was the bargaining unit for that
2 title.
3 Q. So you were a laborer from the 60's to the
4 early 80's; is that right?
5 A. No. I was a laborer from '66, '67, to '69.
6 In '69 I became the Section Foreman.
7 Q. Still employed by the City of Chicago.
8 A. Yes.
9 Q. And then it was, I think you indicated,
10 sometime in the 80's that you became employed by 1001.
11 A. Yes.
12 Q. Full-time, correct?
13 A. Full-time. You're not getting tricky now,
14 are you?
15 Q. I'm going to try not to.
16 You were present for much of the proceedings
17 in the Chicago District Council case. Do you remember
18 that?
19 A. Yes, sir.
20 Q. Do you remember the issue coming up about you
21 and Mr. Caruso going to Mr. Roti's house when papers
22 first got served?
23 A. They assumed we went to Mr. Roti's house.
24 Q. Well Mr. Caruso testified that he went to his
25 mother's house I believe.
697
1 A. Right.
2 Q. And let me ask you -- let me back up first.
3 You were with Mr. Caruso that day, right?
4 A. We were at a golf outing.
5 Q. And somebody came up and served you the
6 Trusteeship papers?
7 A. Someone came up and served him. We -- yes.
8 Q. Tell us what happened from there.
9 A. We were ready to tee off and didn't feel too
10 much like teeing off after that time. He says he was
11 going to his mother's. I says, "I'm not golfing
12 either. I'll meet you by your mother's." We took off
13 on the highway --
14 Q. Separate cars?
15 A. Separate cars. Drove to where his mother
16 lives. We went through this. And we walked down the
17 gangway and we went right into his mother's house.
18 Q. And was there any particular reason you were
19 going to his mother's house?
20 A. He wanted to go over the papers that he got
21 served in peace and quiet, because his mother was
22 almost 80 something, 90 years old, so we knew we can go
23 there, sit down and read them and try to digest them.
24 Q. Why his mother's house as opposed to his
25 house or your house or some other place?
698
1 A. His mother is like our mother, all our
2 mothers. It's a focal point for us.
3 Q. And she lived next door to Mr. Roti, right?
4 A. She lives next door to her brother.
5 Q. Her brother is Mr. Roti?
6 A. Yes.
7 Q. So there was no -- are you saying there was
8 no meeting with Mr. Roti?
9 A. None at all. There's a common gangway. And
10 there was nobody behind us, so no one can see where we
11 went, and we went into Mrs. Caruso's house.
12 Q. I want to ask you -- so in that regard you
13 are, for lack of a better term, echoing the testimony
14 of Mr. Caruso when you describe this.
15 MR. LYDON: I object to that. That's a
16 little bit -- no echoing.
17 MR. THOMAS: I was trying not to make it a
18 loaded term.
19 MR. LYDON: Just ask him what his own
20 recollection is.
21 THE INDEPENDENT HEARING OFFICER: Own
22 recollection. I'll figure out if it was the same or
23 not.
24 BY MR. THOMAS:
25 Q. Do you a degree or disagree with what your
699
1 cousin testified about this transaction?
2 MR. LYDON: I'll object to that too. What
3 his cousin may have testified to at some other time is
4 another story. I object to that. Plus it assumes he
5 can remember, he's seen it, or whatever. I object to
6 that.
7 MR. THOMAS: He's heard the testimony.
8 THE INDEPENDENT HEARING OFFICER: I have the
9 story. I know what it is. And I remember what Bruno
10 Caruso said. I've been through this about four times.
11 So --
12 BY MR. THOMAS:
13 Q. Mr. Gironda, at what point did you come to
14 understand that the unpaid officers at Local 1001 were
15 being compensated in a non-salaried way?
16 A. At what point?
17 Q. Um-hum.
18 A. I don't know when it was, but I had talked to
19 Shirley Esposito off and on for years, and different
20 pieces of documents came up. And then in -- I don't
21 know if it was '94. I'm not sure when. But there was
22 a recording document about the hours, so she explained
23 it to me.
24 Q. What did she explain?
25 A. She explained that the unpaid positions --
700
1 that the people who are what, auditors and E Board
2 members, instead of getting a salary would get -- I'm
3 looking for the words. Would get compensated through
4 contributions to the Fund. And I says, "How can that
5 be?" She said, "Because it's a long-standing with the
6 Fund. There is an agreement with the Fund," that, "The
7 Fund okayed it, and the Fund knows about it."
8 Q. So Shirley, the Office Manager --
9 A. Yes.
10 Q. -- is telling you this.
11 A. Yes.
12 Q. This is when you first came on as
13 Secretary-Treasurer.
14 A. Or before. It could have been before.
15 Q. So sometime in that early '90's time frame?
16 A. Yes. 80's or 90's.
17 Q. When you heard this from Shirley, did you
18 say, "Well what is the agreement? Can I see it," or
19 anything like that? Did she reference a document?
20 A. She just referenced an agreement to where it
21 could have either been a document or verbal. I did not
22 know.
23 Q. And did she say specifically what the
24 agreement with the Funds was?
25 A. That the people who did not collect a salary
701
1 would be compensated by contributions to the Fund.
2 Q. Let me try to be as specific as I can. It's
3 not a trick question.
4 A. Okay, sir.
5 Q. In what she said to you, was there anything
6 that suggested involvement or participation of
7 personnel at the Funds as opposed to persons at 1001.
8 A. She explicitly said that the Fund knew about
9 it and was -- yes, they had participated in it.
10 Q. Did she say who in the Funds had approved
11 this?
12 A. Never said, never asked. Because it was an
13 ongoing historical practice. It didn't start in the
14 90's, it's probably 40 years old. She may not even
15 know. So it's something that had been passed on.
16 Q. So again, not to argue or quibble --
17 A. I'm not.
18 Q. -- she may have -- she may not have known
19 what this agreement was when she said this to you,
20 correct?
21 A. She had been there for thirty years, so did
22 she know exactly verbatim? I can't tell you that. I
23 don't know.
24 Q. As the current Business Manager and having
25 been an officer for quite some time now, have you ever
702
1 seen a document between the Funds and the Local that
2 says in effect that the Funds agrees to this?
3 A. No. But also the Funds didn't -- did not
4 disagree with it. They've paid out pensions.
5 Q. They've accepted the money.
6 A. They've accepted the money and paid pensions
7 to people who have been in these positions.
8 Q. Why do you think they paid them?
9 A. Why did they pay them?
10 Q. Why did they pay pensions?
11 A. We made the contributions.
12 Q. And what do you think the Funds were assuming
13 in paying those contributions?
14 A. They were assuming the guy was ready to
15 retire.
16 Q. Do you think they were also assuming that
17 these were eligible participants?
18 A. Well according to us and the agreement they
19 were eligible. We had no reason to think not. And
20 especially, like Mr. DeChristopher said, when we had
21 two elections in '91 and '95, and the lawyer for the
22 Fund is there and he makes the announcement that these
23 people would be getting a compensation for these
24 positions, wouldn't you think it's okay?
25 Q. Was there any representation made -- any
703
1 analysis from Mr. Arnold or anyone else that you heard
2 as to the legality of this -- specifically the legality
3 of it.
4 A. Any announcement?
5 Q. Any analysis?
6 A. Analysis. None.
7 Q. It was never explained, "This is okay and
8 here's why it's okay."
9 A. I never heard it.
10 Q. And you've never seen any documentation?
11 A. I have never seen any.
12 Q. At what point did you start signing the
13 remittance reports to the Funds?
14 A. I think that's when the Board took action and
15 put Bruno Caruso on administrative leave.
16 Q. After the opinion came down?
17 A. After the opinion came down or before the
18 opinion came down? It may have been before the opinion
19 came down because we were investigating him to see if
20 any of the things that they said about him were true.
21 So instead of leaving him there, the Board voted to put
22 him on administrative leave, and that's when I started
23 taking over the signature of the documents.
24 Q. So would it be fair to say sometime in the
25 2001 time frame?
704
1 A. Fair.
2 Q. Okay. Well actually I think the documents
3 will speak for themselves.
4 If you could turn to Tab 8.
5 A. This?
6 Q. Yes.
7 A. I think it's on it.
8 Q. So these are from oldest to most recent. So
9 if you go to the back and work backwards, you'll see
10 2003, 2002, 2001. And it looks like in 1999 Mr. Caruso
11 was still signing them, and it looks like after that
12 you started signing them. Does that sound right?
13 A. That could be right. I may have been off by
14 a little bit.
15 Q. But the documents obviously speak for
16 themselves.
17 A. Here's his and then I started.
18 Q. So in 1999 it looks like Mr. Caruso was still
19 signing.
20 A. Yes.
21 Q. And by 2000 you're signing.
22 A. Yes.
23 Q. Okay. Explain, if you will, what
24 instructions you received when you took over the
25 responsibility for signing these remittance reports.
705
1 A. They had come in with the -- and the figures
2 were there, and that's what we paid on.
3 Q. The question goes to instructions. Did
4 anybody sit down and say, "Nick, I need to explain to
5 you how this works."?
6 A. No.
7 Q. So how did you know what it was you were
8 signing when you took over this?
9 A. Well I talked to Shirley, who mainly did a
10 lot of this, or, you know, instructed on what to do.
11 She said, "These are the forms for the Health and
12 Welfare. Bruno's not here. You'll have to sign these.
13 The numbers are the numbers."
14 Q. "The numbers are the numbers."?
15 A. Yes.
16 Q. Did you actually read this document before
17 you signed it?
18 A. At the beginning -- you mean this here little
19 section? I eventually came to read it, yes, sir.
20 Q. No, I'm not talking --
21 A. Or the whole thing?
22 Q. The whole thing. Did you look at the
23 document before you signed it?
24 A. Yes.
25 Q. What did you look at? Did you look at the
706
1 names?
2 A. Looked at the names and then the amount of
3 hours.
4 Q. Okay. And did you read that warranty and
5 certification or not first time around?
6 A. Probably not.
7 Q. Eventually you did though?
8 A. Yes.
9 Q. Okay. When you looked at the names and the
10 hours, did any of these strike you as unusual?
11 A. Not at the beginning, no.
12 Q. Let's just take this year as an example. I
13 think the first year you signed looks like 2000, right?
14 A. Yes.
15 Q. We got Bruno Caruso down there. He's listed
16 at 160 hours, right?
17 A. Yes.
18 Q. That's because he was full-time, right?
19 A. Yes, sir.
20 Q. Craig Kumerow, 160 hours. He was full-time,
21 right?
22 A. Yes, sir.
23 Q. Shirley Esposito, full-time at 160, right?
24 A. Yes.
25 Q. Nick Gironda, full-time, 160, right?
707
1 A. Yes.
2 Q. Then did you notice when you signed this that
3 some of the clerical people who were full-time were not
4 listed as full-time?
5 A. Maybe not the first time, but eventually yes.
6 Q. Was there anything that caused you to come to
7 understand that later?
8 A. I had talked to Shirley about it, and she
9 said that the girls were paid on 30 hours. That's the
10 agreement with the Fund.
11 Q. With the Fund?
12 A. Right.
13 Q. So --
14 A. Someone at the Fund told them that that was
15 what they would base this on, 30 hours.
16 Q. According to Shirley.
17 A. Yes.
18 Q. So Shirley says that someone at the Funds has
19 told her to write down 30 for those people.
20 A. Yes.
21 Q. But she didn't say who.
22 A. No.
23 Q. And did she say why they were told to write
24 down 30?
25 A. Not that I recall.
708
1 Q. Okay. And how about with respect to the
2 people that were unpaid officers like, let's say, Mr.
3 Capasso up at the top there. When you first saw that
4 and you saw the 120 hours --
5 A. Right. And that was part of the compensation
6 and the agreement with the Fund.
7 Q. No, I understand. But the specific question
8 is: Did it strike you as odd that the paperwork to the
9 Funds actually said 120 hours a month?
10 A. No, because they said that was the agreement
11 with the Fund.
12 Q. That's Shirley?
13 A. Yes. And that's the way it would go in.
14 Q. By the way, Shirley is no longer with us?
15 A. She has passed on.
16 Q. Do you agree, Mr. Gironda, that -- sorry.
17 Do you agree that to someone who didn't know
18 anything about any such agreement, if they were to just
19 read this piece of paper and take it at face value,
20 they would look at it and they would say, "Well it
21 looks like Mr. Capasso worked 120 hours a month, and it
22 looks like Shirley worked 160, and Nick worked 160, and
23 Bruno worked 160, and a couple of these clerical people
24 worked 120."
25 MR. LYDON: I object as an argumentative
709
1 question. It's up to you as the fact finder.
2 THE INDEPENDENT HEARING OFFICER: You may ask
3 him that question, you know. What is the question
4 you're asking?
5 MR. THOMAS: The question is: Do you agree
6 for anyone reading this who didn't know about any
7 agreement, if you just took this at face value, it
8 would look like these are the people and these are the
9 actual hours worked.
10 THE WITNESS: I don't know if anyone would
11 understand it. I think it would have to be a Union
12 person to understand what you're putting down here.
13 You says if anyone would look at it. Well if I would
14 show it to this lady here, she may and she may not
15 understand it. I don't know. I can't speak for anyone
16 is what I'm saying.
17 BY MR. THOMAS:
18 Q. Well the category -- see the four categories
19 that say 30, 30, 30, 30?
20 A. Yeah.
21 Q. What does the top of that say?
22 A. "Extra Hours Working Period." Now would
23 someone say them are the actual hours worked? Yes.
24 Okay, yes.
25 Q. Okay, fine.
710
1 Now you said initially you didn't focus on
2 that Employer's Warranty and Acceptance but eventually
3 you did.
4 A. Yes.
5 Q. When you saw that, what did you understand
6 that to be putting you on notice of?
7 A. That the hours that were put down here were
8 accurate and truthful.
9 Q. Did that give you any cause for concern with
10 respect to two things: The clerical people who were
11 working full-time who were being reported at 120, and
12 the unpaid officers who were getting zero compensation
13 who weren't actually working 120 hours.
14 A. Did it give me a concern?
15 Q. Yes.
16 A. It would have given me a concern if I didn't
17 know that this was a long-standing practice and it was
18 the compensation for -- which they had set up with the
19 Funds. So, you know, that's what I was told and that's
20 what it was. Am I going to come in and say, "Let's
21 change it?" I haven't seen the agreement.
22 Q. Let me just ask you this: If you wanted to
23 be totally, let's use the word transparent, clear,
24 okay?
25 A. Okay.
711
1 Q. Clear with the Funds about what's going on,
2 it would have been possible, would it have not, to have
3 submitted this with some explanation saying, "These are
4 the numbers we're writing down, but by the way, this is
5 the real story."
6 A. These numbers have been going on for 40
7 years. How do I know that didn't happen?
8 Q. I understand that they've been going on for
9 40 years.
10 A. Just because I came in on an interim basis
11 would I question it?
12 Q. No. Here is the question: When you're
13 signing off on this and you came to understand that
14 this warranty at the bottom had at least some meaning--
15 A. Yes.
16 Q. -- it would have been possible for you if you
17 were -- if what you really meant by this is, "Well this
18 is the custom and practice." That you could have
19 attached something saying, "We're putting these numbers
20 down just by custom and practice. They're not the
21 actual hours." Do you agree that could have been done?
22 And then the Fund would have been in a position to say
23 either yeah or nay.
24 A. Like I say, I don't know. It may have been
25 done. But by me, no, I didn't do that. I didn't think
712
1 of that. Like I say, I was just coming in there. I
2 was thrust into this. This is what I was told. This
3 is how it's been done. It's been past practice for 40
4 years. I mean I'm Joe the new guy on the block. I
5 mean how much can I question?
6 Q. Have you ever seen any correspondence from
7 the Local to the Funds, correspondence from the Local
8 to the Funds saying, "Just to be clear, here's our
9 understanding. Here's what we're doing. And we assume
10 you're okay with this."
11 A. Have I ever seen any?
12 Q. Yes.
13 A. We got a lot of boxes.
14 Q. Have you ever seen it?
15 A. No, but there's a lot of boxes there. I mean
16 I never really went in to look.
17 Q. Mr. Gironda, if we can turn to Exhibit 22 to
18 a different binder. These are minutes of the Pension
19 and Welfare Funds, so it's obviously not something you
20 would necessarily have been privy to.
21 A. No. I was never a Trustee.
22 Q. If you could take a look at the second page.
23 A. Second page? Okay.
24 Q. Which is -- this document is in excerpts.
25 The second page is actually page 15 of the actual
713
1 document. Down at the bottom there, you see that?
2 A. Yes.
3 Q. It says, "Mr. Riley stated that the District
4 Council and Local Unions had agreed last summer to
5 adopt a uniform policy providing for contributions of
6 40 hours per week for all full-time Union employees and
7 actual hours worked for part-time office staff." Do
8 you see that?
9 A. Yes.
10 Q. Now at the time in 1999 you were
11 Secretary-Treasurer of Local 1001, were you not?
12 A. Yes.
13 Q. Did the District Council -- you were a
14 Delegate to the District Council at the time as well,
15 right?
16 A. In -- yes. In 1999, yes.
17 Q. You were on the District Council in addition
18 to being Secretary-Treasurer of Local 1001.
19 A. Yes.
20 Q. Do you recall the District Council issuing
21 this policy?
22 A. No.
23 Q. You do not?
24 A. No.
25 Q. And do you recall there being any discussion
714
1 about this?
2 A. No. I may have not been at this meeting.
3 Q. Do you remember any communication between the
4 District Council and the Locals, as is reflected here,
5 concerning how these hours are to be actually --
6 A. I've never seen it.
7 Q. Okay. So is this news to you, this paragraph
8 here, that there was a policy from the District
9 Council?
10 A. Yeah. Looks like they're doing some
11 housekeeping.
12 Q. Well let's -- perhaps -- but if they were
13 doing housekeeping and this was communicated to the
14 Local, then --
15 A. But I never saw it.
16 Q. Okay. Fine. If you never saw it, you never
17 saw it.
18 A. Right.
19 Q. If this was a policy that you had known about
20 as Secretary-Treasurer of 1001, then at least from that
21 time forward the clerical staff should have been really
22 reported at 40 hours a week, not 30, right?
23 A. Right.
24 Q. And the second part is for the other people,
25 the non-salaried people, you were required to actually
715
1 write down their actual hours worked, right?
2 A. Right.
3 Q. But that wasn't done because you didn't know
4 about this?
5 A. Yes.
6 Q. Do you think you might have missed the
7 District Council meeting where this was discussed?
8 A. I might have because besides being
9 Secretary-Treasurer I'm a Business Agent. We're all
10 Business Agents. We all have areas to check, people to
11 see. We just -- it's not a sit in the office and wait
12 for a call.
13 Q. You're busy in other words?
14 A. Right. We're negotiating lay-offs now,
15 contracts now, and I wish I wasn't here. I'm sorry to
16 say that.
17 Q. I understand that.
18 Does working at the calling, is that a phrase
19 that you understand?
20 A. Somewhat.
21 Q. Is it your understanding that to be an
22 officer of a Local you have to have been working at the
23 calling in the previous year?
24 A. Yeah.
25 Q. That's in the Constitution, isn't it?
716
1 A. I think it is, yes.
2 Q. Mr. Capasso has been elected year after year
3 and --
4 A. Right.
5 Q. -- and indeed Miss Esposito was elected
6 Recording Secretary for a period of years, right?
7 A. Yes.
8 Q. And the E Board as well, right?
9 A. Yes.
10 Q. Were they always eligible for that office by
11 having worked at the calling prior?
12 A. State that -- say that again.
13 Q. Were they always eligible to be elected to
14 those offices by having been working at the calling
15 prior?
16 A. Prior to what?
17 Q. Prior to their being elected.
18 A. Oh. As far as I knew yes, they were paid up
19 members.
20 Q. But let me ask you this --
21 A. No. No.
22 THE INDEPENDENT HEARING OFFICER: A simple
23 question. Of all the times that you knew that they
24 were elected, were they eligible to run?
25 THE WITNESS: As far as I knew, yes.
717
1 THE INDEPENDENT HEARING OFFICER: His
2 question is by being eligible to run, had they been
3 working at the calling for one year prior to that. And
4 your answer to both of those questions is yes.
5 THE WITNESS: Yes.
6 BY MR. THOMAS:
7 Q. You assumed that to be the case.
8 A. Yes.
9 Q. Did anyone ever actually check that issue?
10 A. Well we had judges of election.
11 Q. Mr. Arnold?
12 A. Mr. Arnold. And the elections had to be
13 certified. We had State Labor Board people at our
14 elections. They wrote letters that our elections were
15 fine. So according to everybody that we had to
16 scrutinize our elections, our elections were fine.
17 Q. Well did anyone, and not singling you out,
18 did anyone check that issue to your knowledge?
19 MR. LYDON: I object. I think he just
20 answered that, hasn't he?
21 MR. THOMAS: He said people were there.
22 THE INDEPENDENT HEARING OFFICER: He said he
23 assumed, and I'm just looking at the -- looking at the
24 notes of some of the elections done by Hugh Arnold, by
25 the way who was not an election judge. He could not
718
1 be. You have to be appointed. He was the Chairman of
2 the elections.
3 THE WITNESS: Right.
4 THE INDEPENDENT HEARING OFFICER: And they
5 said, "Judges of election, here are three of you.
6 These are not contested elections. Go out in the hall
7 and check the qualifications." And there's a blank
8 space and came back in and said, "Judge of election,
9 what do you find?" And says, "Everybody is literate.
10 Everybody's qualified." That's it. I just read that.
11 I just read through it. So I assume that's kind of the
12 forum they followed. I think the judge -- Hugh Arnold
13 had a program. He went through it.
14 BY MR. THOMAS:
15 Q. Okay. So you agree with that comment I take
16 it.
17 A. Yes. Because that's how it's done.
18 THE INDEPENDENT HEARING OFFICER: Judges of
19 election went outside in the hall, conferred, I don't
20 know if they spoke to them or not. They're supposed to
21 interview everybody.
22 THE WITNESS: Interview and check the books.
23 THE INDEPENDENT HEARING OFFICER: I don't
24 know if they interviewed everybody or showed tickets or
25 whatever. I can't tell from the record.
719
1 BY MR. THOMAS:
2 Q. But is it possible in your mind that the
3 judges of the election are human and might have missed
4 something?
5 MR. LYDON: Objection. What's the point in
6 that?
7 THE WITNESS: Well they are human.
8 BY MR. THOMAS:
9 Q. Do you have any basis to know whether Mr.
10 Capasso was eligible to be elected Auditor year after
11 year.
12 MR. LYDON: I object. I think that that's a
13 matter beyond anything he's testified to in terms of
14 when Capasso came on versus when he came on, and -- and
15 whether he's qualified or not, whether --
16 MR. THOMAS: He's the Business Manager of the
17 Local currently.
18 THE INDEPENDENT HEARING OFFICER: Let's put
19 it this way. Gentlemen --
20 MR. LYDON: But when they came on it's a
21 different story.
22 THE INDEPENDENT HEARING OFFICER: You may ask
23 him about it now since he's been the Business Manager
24 and it's come to his attention. Working at the calling
25 is something that he may or may not be able to catch.
720
1 The time before it came before him.
2 BY MR. THOMAS:
3 Q. You've been Business Manager since 2001,
4 right?
5 A. Yes, sir.
6 Q. And according to the Constitution, one of the
7 job descriptions, the Business Manager, is to, quote,
8 "It shall be the duty of the Business Manager of a
9 Local Union to see to it that the affairs and business
10 of the Local Union are being properly conducted in
11 accordance with Constitutions and the rules,
12 regulations, policies, practices, and lawful orders and
13 decisions." No beef with that statement, right?
14 A. No beef. It's in the book.
15 Q. Also in the book is Article 5 concerning
16 qualifications for office which says, among other
17 things, that, "Anyone who is going to hold a Local
18 office have to have worked at the calling for at least
19 a year prior to standing for an election." And then it
20 goes on to define working at the calling.
21 A. Aren't there other things in there too?
22 Q. There's the whole book, and you're as welcome
23 as anyone to read it.
24 My question is, without us going through the
25 whole book obviously, did you have an understanding,
721
1 when Mr. Capasso stood for election year after -- or
2 cycle after cycle, that he was in fact eligible by
3 having worked at the calling.
4 A. Say it again.
5 Q. Did you have an understanding that he was
6 eligible by having worked at the calling?
7 A. Yeah, I would assume he was eligible.
8 Q. And to your knowledge did anyone actually
9 check that issue?
10 A. The only thing I could say is that the
11 judges, when we had an election -- and that's why you
12 have the judges of election to check their
13 qualifications to see if they are.
14 Q. Let me make sure I understand you correctly.
15 Are you saying they know they check that or that you
16 assume they checked that?
17 A. They checked it. They walked out. There
18 were files there for them to check, and they checked
19 it.
20 Q. You're sure they checked that issue.
21 MR. LYDON: I object.
22 THE WITNESS: I don't know if they --
23 THE INDEPENDENT HEARING OFFICER: Gentlemen,
24 I don't know where we're going with this because the
25 judges of election are supposed -- there's a book put
722
1 out by the International. It's called Elections. And
2 there's things for the judges of election to follow.
3 And maybe they did, maybe they didn't. I don't know if
4 it's in the knowledge of this witness if they did. If
5 something came to his attention that they're sleeping
6 on the job, that's another story. But as it stands
7 right now, as it looks, the judges of elections were
8 supposed to check and supposed to do something like
9 that. I think the record is what the record is. I
10 don't think you're going to find more in asking him.
11 He said he was he -- when did you run? When was the
12 last time you ran? Most recent election, did you run?
13 THE WITNESS: Last year.
14 THE INDEPENDENT HEARING OFFICER: And there
15 was an election. It was not contested but you ran,
16 right?
17 THE WITNESS: It was uncontested. Kitty
18 Kurth ran it, and we won -- I hope we won.
19 THE INDEPENDENT HEARING OFFICER: What
20 happened -- take this here. Here is a nomination. Who
21 ran for you -- I don't know -- who was the -- who was
22 running the nomination meeting?
23 THE WITNESS: Kitty Kurth.
24 THE INDEPENDENT HEARING OFFICER: What did
25 Kitty Kurth do when it came to charging the judges of
723
1 election and asked if anybody had their qualifications?
2 THE WITNESS: She brought everybody up who
3 was nominated. There was a panel, and checked all
4 their qualifications, and --
5 THE INDEPENDENT HEARING OFFICER: What did
6 they do to you? You're running. What did they say or
7 do to you? Here comes Mr. Gironda, and he's nominated
8 to be the Business Manager?
9 THE WITNESS: I gave them my card.
10 THE INDEPENDENT HEARING OFFICER: What did
11 you give her?
12 THE WITNESS: Gave her my union card to show
13 I was paid up. She checked the files in the computer.
14 THE INDEPENDENT HEARING OFFICER: That your
15 dues had been paid.
16 THE WITNESS: Right. And then I think she
17 turned that information over to the judges.
18 THE INDEPENDENT HEARING OFFICER: Did the
19 judges talk to you?
20 THE WITNESS: They asked me my name and asked
21 me for my card, and then they discussed whatever they
22 discussed.
23 THE INDEPENDENT HEARING OFFICER: That pretty
24 much is your procedure.
25 MR. THOMAS: Nothing further.
724
1 THE WITNESS: Thank you. Thank you
2 everybody. Come on back.
3 (Witness excused.)
4 THE INDEPENDENT HEARING OFFICER: I think
5 you've re-scheduled your witness, correct?
6 MR. THOMAS: Yes. I have a couple of
7 housekeeping things, but they can be done either by
8 mail or --
9 THE INDEPENDENT HEARING OFFICER: Well I'm
10 talking about witnesses here for me to hear.
11 MR. THOMAS: I think so, unless somebody
12 wants to come up who I didn't call.
13 THE INDEPENDENT HEARING OFFICER: All right.
14 Now, let's go off the record.
15 (Which were all the proceedings
16 had in the above-entitled cause
17 on this date.)
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725
1 STATE OF ILLINOIS )
) SS:
2 COUNTY OF COOK )
3
4 I, DAWN M. LOMBARDO, C.S.R., do hereby
5 certify that I reported stenographically the
6 proceedings had at the hearing of the aforementioned
7 cause; that I thereafter caused the foregoing to be
8 transcribed, which I hereby certify to be a true and
9 accurate transcript of the proceedings.
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13 _________________________________
Dawn M. Lombardo, C.S.R.
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