726
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 December 8, 2003
1:00 PM
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
727
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
728
1 THE INDEPENDENT HEARING OFFICER: Ladies and
2 gentlemen, let's bring the hearing to order.
3 My name is Peter Vaira, and I'm the Hearing
4 Officer for the Laborers' International Union of North
5 America. My associate lawyer, Miss Kathy Nagle, is
6 sitting beside me.
7 This is a continuation of a hearing we had
8 last month. Representing the International Union is --
9 MR. THOMAS: Bob Thomas.
10 THE INDEPENDENT HEARING OFFICER: Mr. Robert
11 Thomas.
12 Representing Local 1001 is Mr. Matthias
13 Lydon.
14 MR. MENDENHALL: Samuel Mendenhall.
15 THE INDEPENDENT HEARING OFFICER: Samuel
16 Mendenhall.
17 MR. FARACI: Peter Faraci.
18 THE INDEPENDENT HEARING OFFICER: Peter
19 Faraci.
20 All right. Gentlemen and ladies, there is
21 coffee back there, I understand, and if you want, go
22 right ahead. Don't feel constrained to go up while
23 there's -- things are going on. You can go right back
24 there. It doesn't bother me if you're moving back and
25 forth.
729
1 Okay. So this is the fourth day of this
2 hearing. And while we have cross examination, am I
3 correct?
4 MR. THOMAS: Yes. Mr. O'Rourke is going to
5 finish his testimony. We finished his direct and Mr.
6 Lydon ask that we defer his cross.
7 THE INDEPENDENT HEARING OFFICER: Okay.
8 MR. LYDON: We're ready to proceed.
9 THE INDEPENDENT HEARING OFFICER: Come on up,
10 Mr. O'Rourke.
11 Mr. O'Rourke, I believe you were sworn the
12 other day and you're still under oath.
13 THE WITNESS: Yes, sir.
14 THE INDEPENDENT HEARING OFFICER: Mr. Lydon?
15 MR. LYDON: Is that microphone okay?
16 THE WITNESS: I believe so, yes.
17 THE INDEPENDENT HEARING OFFICER: Can you
18 folks back there hear Mr. O'Rourke back there?
19 Move a little closer, Mr. O'Rourke.
20 MR. LYDON: How is that?
21 THE WITNESS: That's all right.
22 JOHN O'ROURKE,
23 called as a witness herein, having previously been duly
24 sworn, was examined and testified as follows:
730
1 BY
2 MR. LYDON:
3 Q. Now again your name is John O'Rourke; is that
4 right?
5 A. Yes, sir.
6 Q. And you've been working as an investigator
7 with the Laborers' International Union of North America
8 since May of 1996. Is that what your testimony was?
9 A. Yes, sir.
10 Q. And in particular you've been investigating
11 since May of 1996 allegations of organized crime
12 associations within the Chicago area Locals of the
13 Laborers' International Union of North America,
14 correct?
15 A. Yes, sir.
16 Q. When did you begin investigation of any
17 allegations of organized crime influence in Local 1001?
18 A. I don't recall the exact time, but it was the
19 investigation and then the hearing of Bruno Caruso and
20 James DiForti and Leo Caruso.
21 Q. So with respect to 1001 itself, it wasn't
22 until the year 2000 that you undertook any
23 investigation of Local 1001?
24 A. Yes, sir.
25 Q. That's correct.
731
1 A. I don't recall the exact date, but --
2 Q. But in and around that period of time?
3 A. Yes, sir. That's right, Mr. Lydon.
4 Q. Now how did you go about doing that?
5 Procedurally what did you do?
6 A. With Mr. Caruso?
7 Q. No. Local 1001. Looking into these
8 allegations of organized crime associations within
9 Local 1001, what did you do?
10 A. My primary job was to contact informants and
11 inquire into the association of certain individuals
12 with organized crime.
13 Q. Did you restrict it only to certain
14 individuals within Local 1001?
15 A. No, sir.
16 Q. Tell us who did you include and how did you
17 go about deciding who to include in the investigation.
18 A. We included the former officers up to and
19 including the current officers.
20 Q. And you started doing that in the year 2000;
21 is that correct?
22 A. Yes, sir.
23 Q. Eventually there was a complaint filed
24 charging organized crime influence within Local 1001;
25 is that right?
732
1 A. The first one was involving Bruno Caruso,
2 yes, sir.
3 Q. That was a disciplinary proceeding against
4 Mr. Caruso.
5 A. Yes, sir.
6 Q. And ultimately there was the complaint that's
7 been filed over which we're hearing Trusteeship
8 proceedings today, correct?
9 A. Correct.
10 Q. Did you read that complaint?
11 A. Yes, sir.
12 Q. Did you provide information in that
13 complaint?
14 A. Yes, sir.
15 THE INDEPENDENT HEARING OFFICER: We're
16 talking about today's hearing.
17 MR. LYDON: Today's complaint. The complaint
18 that concerns the Trusteeship for Local 1001.
19 THE WITNESS: Some of the information was
20 supplied by me, yes, sir.
21 BY MR. LYDON:
22 Q. Was anyone else involved in providing that
23 information?
24 A. There may have been. I do not know, sir.
25 The complaint was prepared by the attorneys.
733
1 Q. Okay. But who else other than yourself was
2 involved in investigating these allegations of
3 organized crime influence in 1001?
4 A. Mr. Scigalski.
5 Q. And Mr. Scigalski is a person like you who is
6 a former Federal Bureau of Investigation agent?
7 A. Yes, sir, that's correct.
8 Q. In fact you and he have been investigating
9 various Locals in the Chicago area since May of 1996.
10 A. Yes, sir.
11 Q. Did Mr. Scigalski provide information that
12 found its way into the complaint?
13 A. Again I'm not sure if he did or not. It was
14 prepared by the attorneys based on information that was
15 supplied to them.
16 Q. Did anyone else provide information other
17 than you and Mr. Scigalski.
18 A. The section having to do with the Fund was
19 amassed by, I believe, other individuals.
20 Q. Well were there any other investigators of
21 organized crime allegations other than you or Mr.
22 Scigalski?
23 A. No, sir.
24 Q. And when did you begin that -- that
25 investigation, just as to Local 1001, did that precede
734
1 -- or start, I should say, in the year 2000?
2 A. Targeting Local 1001?
3 Q. Yes, sir.
4 A. I believe it was 2000. I don't recall the
5 exact beginning date.
6 Q. And over what months -- was this a continuous
7 project between 2000 and the present time?
8 A. I don't remember -- no, it was not -- yes, it
9 was. It was more or less continuous, right.
10 Q. Eventually you indicated you relied upon,
11 principally, as I recall, the testimony of four
12 informants whom you numbered 2, 5, 12 and 17
13 confidential informants, right?
14 A. Yes, sir.
15 Q. And a man named Granata?
16 A. Yes, sir.
17 Q. Those were the principal people who provided
18 information to you regarding Local 1001?
19 A. Yes, sir.
20 Q. Now were you getting information from them
21 beginning in the year 2000?
22 A. Yes, sir, all along.
23 Q. And how did you go about checking names or
24 getting names of people whom you thought might be
25 associated with organized crime?
735
1 A. We concentrated primarily on the officers
2 going back to approximately 1969. In addition, we were
3 doing other investigations. For instance, the Chicago
4 District Council in which Bruno Caruso was a member,
5 and the investigation by the Monitor having to do with
6 Tony Solano and having to do with Joey Lombardo, Jr.
7 Q. That was your earlier investigation, correct,
8 of the Chicago District Council you're talking about?
9 A. Well it encompassed individuals that were,
10 for instance, past officers of Local 1001.
11 Q. With respect to current officers of 1001.
12 A. Right, sir.
13 Q. When did that investigation begin? Was that
14 in the year 2000?
15 A. Against Bruno Caruso, yes, not against the
16 others.
17 Q. And the investigation that you've referred to
18 regarding the District Council, that was at an earlier
19 point in time, wasn't it?
20 A. Yes, sir. I believe it was '97.
21 Q. And the '97 investigation related to Bruno
22 Caruso and previous officers of Local 1001?
23 A. Encompassed in the hearings was testimony
24 regarding prior officers.
25 Q. Not current officers.
736
1 A. Correct.
2 Q. Now do you have a copy of that complaint? Do
3 you have a copy of the complaint before you?
4 THE INDEPENDENT HEARING OFFICER: Today's
5 complaint?
6 MR. LYDON: Today's complaint.
7 MR. THOMAS: I don't think he does.
8 THE INDEPENDENT HEARING OFFICER: We may have
9 one over here.
10 BY MR. LYDON:
11 Q. This is Local 1001 Exhibit 49.
12 A. Right, sir.
13 Q. Just take a look at that and tell me if that
14 isn't a copy of the complaint that we're at hearing
15 over.
16 A. Yes, sir.
17 Q. The question for you is: Does that appear to
18 be the complaint?
19 A. It does, yes, sir.
20 Q. Is this a complete copy of the complaint as
21 signed by Mr. Luskin at the end, right?
22 A. Yes, sir, right.
23 Q. And that's the copy -- and the information
24 that's contained in this complaint regarding organized
25 crime allegations, you provided information and you
737
1 investigated concerning those allegations, right?
2 A. Yes, sir.
3 Q. Now if we look at page 11 of the complaint,
4 paragraph 41 and paragraph 42, do you see there the
5 allegation that of 33 members for whom allegedly
6 improper pension contributions were made, 13 are
7 organized crime associates? Do you see that?
8 A. Yes, sir.
9 Q. Was that information that you provided?
10 A. I would have to count them. I'm not sure,
11 sir. I was provided with a list of names by the GEB
12 Attorney and then provided information on those
13 individuals. Whether it was 13 or less or more, I'm
14 not sure.
15 Q. The list that you were provided by the -- by
16 whom?
17 A. By the GEB Attorney.
18 Q. Mr. Luskin?
19 A. Individuals under Mr. Luskin.
20 Q. Do you remember who it was?
21 A. It was the attorney that handled it prior to
22 Mr. Bob Thomas.
23 THE INDEPENDENT HEARING OFFICER: The
24 attorney prior to him.
25 THE WITNESS: Yes.
738
1 BY MR. LYDON:
2 Q. But working under Mr. Luskin. And the list
3 that was provided was of 33 people, right?
4 A. I don't recall right now, sir. I would have
5 to count them up.
6 Q. Well the complaint refers to 33 people,
7 correct?
8 A. Yes.
9 Q. And do you recall in your previous testimony
10 you said you had a list of 33 names when you testified
11 here --
12 A. I had a list of names. I never counted them.
13 Q. Okay.
14 A. There may have been more than that. Let's
15 see. I have 30 here.
16 Q. 30 there. But do you recall being asked this
17 question and giving this answer on November 12th, the
18 question being: "So of 33 recipients there listed on
19 Exhibit Number 7 -- do you have Exhibit 7 of the GEB
20 before you?
21 I think this is your Exhibit 7, isn't it?
22 A. It's a copy. The number of names I was
23 supplied with was 33 names.
24 Q. 33 names. Okay.
25 So you were given a list of 33 names, and
739
1 that's the same number that appears in paragraphs 41
2 and 42 as being persons who received -- for whom
3 Pension contributions and Health and Welfare
4 contributions were made; is that right?
5 A. Yes, sir.
6 Q. Now, at the time that this complaint was
7 filed, do you see in paragraph 41 that only 13 people
8 are indicated as organized crime associates according
9 to the allegations of the Trustees -- of the complaint
10 for Trusteeship.
11 A. Yes, sir.
12 Q. Do you have an explanation as to how you got
13 from that number to the higher number that you
14 testified to on November 12th?
15 MR. THOMAS: Mr. Vaira, I would object to the
16 underlying assumption that Mr. O'Rourke is responsible
17 for paragraph 41. The GEB Attorney's Office drafted
18 the charges.
19 THE INDEPENDENT HEARING OFFICER: I realize
20 that, but the question is what he -- he gave a higher
21 number, am I correct?
22 MR. LYDON: Yes, 22.
23 BY MR. LYDON:
24 Q. How do we get from -- my question is: How do
25 we get from 13 to 22 between the time the complaint was
740
1 filed and the time when you testified.
2 A. I debriefed the informants about the specific
3 names -- when the complaint was filed, they had certain
4 information that had been supplied previously. After
5 the complaint was filed I began to debrief and zero in
6 on the names specifically with the informants, and the
7 informants identified additional individuals.
8 Q. Well you had the list of 33 names before the
9 complaint was filed, did you not?
10 A. Not all of them, no, sir.
11 Q. Which names didn't you have?
12 A. I don't recall now, to be honest with you,
13 but essentially the same. It was a different list
14 supplied by Mr. Thomas' predecessor.
15 Q. How many people were listed?
16 A. I don't recall, but it was approximately the
17 same.
18 Q. Approximately 33.
19 A. Yeah.
20 Q. Did you check those 33 names with the sources
21 of information you've previously identified?
22 A. Not at that time, no, sir, not all of them.
23 Q. Well with whom did you check prior to the
24 filing of the complaint for Trusteeship?
25 A. With whom did I check?
741
1 Q. Yes.
2 A. With the informants, but I didn't have all
3 the names.
4 Q. Which informants, all of them?
5 A. All of them, yes, sir.
6 Q. So prior to September of 2003 when this
7 complaint was filed, you did go over a list of
8 approximately 33 names with the same people you've
9 identified as the source of the information regarding
10 organized crime association, right?
11 A. Not all of them, no, sir. I concentrated on
12 the officers and supplied information to the GEB
13 Attorneys on memos regarding what I had.
14 Q. And before you had that list -- when did you
15 get that list of 33 names?
16 A. I don't recall.
17 Q. Was it in 2003?
18 A. Yes.
19 Q. So sometime this year -- are you able to
20 approximate when it was in 2003?
21 A. This list was supplied, I believe, right
22 before or right after the complaint was filed, this
23 detailed list, with a request that they be checked with
24 the informants, the names.
25 MR. THOMAS: Just for the record he's
742
1 referring to Exhibit 7.
2 THE INDEPENDENT HEARING OFFICER: I was just
3 about to ask that. You were referring to 7?
4 THE WITNESS: Yes, sir.
5 BY MR. LYDON:
6 Q. Now had you done any investigation prior to
7 your taking that list and checking it with the
8 informants.
9 A. Very little. I constantly contact the
10 informants about activities of the officers, what they
11 know about the Laborers' Union 1001, and some of the
12 names have come up before, and I've supplied that
13 information to the GEB Attorney. Not until the
14 complaint was filed was I requested to immediately
15 contact the informants and debrief them extensively
16 concerning the individuals on the list.
17 Q. Well at least for some of the individuals on
18 the list, and we've got 13, there was information
19 contained within the complaint, correct?
20 A. Yes, sir.
21 Q. And so what you're saying is that there was
22 information about other individuals that you developed
23 after the complaint was filed?
24 A. Yes, sir.
25 Q. And the list that you had, just so we're
743
1 clear, you didn't get that list until shortly before
2 the complaint was filed, the list of 33 names.
3 A. This list, yes, sir, that's correct. Some of
4 the names may have been on the other list, but they
5 were retired individuals or individuals that were
6 deemed not to be immediately appropriate.
7 Q. Well if we look at page 12 of the complaint,
8 that contains names of people who are retired, right?
9 A. What was that again, sir?
10 THE INDEPENDENT HEARING OFFICER: Page 12.
11 BY MR. LYDON:
12 Q. Page 12, beginning at the top. Page 12.
13 A. Page 12 of what?
14 Q. Of the complaint.
15 A. Which is tab what?
16 Q. 49. Local 1001 Exhibit 49. Okay?
17 A. Yes.
18 Q. Page 12. Got it?
19 A. All right.
20 Q. Going to page 12 again. Do you see page 12
21 before you?
22 A. Yes, sir.
23 Q. And particularly these eight additional
24 supposed or alleged organized crime associates, do you
25 see those list of names?
744
1 A. Yes.
2 Q. Those are people no longer with Local 1001?
3 A. That's right, sir.
4 Q. Isn't that correct?
5 A. Yes.
6 Q. That name Briatta, your informants told you
7 about Joseph Briatta; is that right?
8 A. Yes, sir.
9 Q. What about the other Briatta names that you
10 testified about on November 12th? Weren't those names
11 brought up at that time? Look at your Exhibit 7.
12 A. No, I understand.
13 Q. Do you have that in front of you too?
14 A. I didn't prepare this, so I don't know the
15 answer to that. They were all indicated that they were
16 all organized crime. All the informants stated that
17 the Briattas were members of organized crime --
18 associates.
19 Q. So you provided information to the GEB
20 Attorney about all the Briattas prior to the complaint
21 being filed.
22 A. As far as I know, yes, sir.
23 Q. And for reasons that you can't explain, the
24 only name that was suggested was Joseph.
25 A. Yes, sir.
745
1 Q. But in any event, you must have checked with
2 your informants, did you not, about persons other than
3 current officers prior to the filing of the complaint,
4 right?
5 A. Yes, sir.
6 Q. How did you determine who to include and who
7 not to include?
8 MR. THOMAS: Same objection.
9 THE INDEPENDENT HEARING OFFICER: What's your
10 objection?
11 MR. THOMAS: That Mr. O'Rourke didn't draft
12 the document.
13 MR. LYDON: I'm asking him who he --
14 MR. THOMAS: He said who to include in the
15 charges, and --
16 MR. LYDON: That's not the question I asked.
17 THE INDEPENDENT HEARING OFFICER: Ask him
18 that question again. I think you're right. I think
19 you have enough basis, but go ahead.
20 MR. LYDON: Could you read that question back
21 please?
22 (Record read.)
23 BY MR. LYDON:
24 Q. In your investigation.
25 A. I included the individuals whose names I was
746
1 supplied with.
2 Q. Which were approximately the 33 that we have
3 before you in Exhibit 7.
4 A. Yes, sir, right.
5 Q. All right.
6 And then would it be fair to say that your
7 informants gave you information about some people but
8 not all of the people at that time that they had
9 information on?
10 A. No, sir. They provided the same information
11 whenever I talked to them.
12 Q. So the information you received was
13 consistently about, I believe last time you testified,
14 22 names.
15 A. Yes, sir.
16 Q. And you got 22 names right from the
17 beginning.
18 A. Yes, sir.
19 Q. And that's the information that you gave to
20 the GEB Attorney, correct?
21 A. Yes, sir.
22 Q. Now when you asked informants about the 33
23 names on your list and you got a response that a person
24 was "connected" or "with those people" -- I believe
25 that's your testimony, right?
747
1 A. Yes, sir.
2 Q. As to what they said.
3 When you ask informants about the 33 names on
4 your list and you got a response that a person was
5 "connected" or "with those people", did you ask for
6 more specific information?
7 A. Yes, sir.
8 Q. For example, did you ask them who as an
9 organized crime person they were associated with?
10 A. Yes, sir.
11 Q. And in what manner they were associated. Did
12 you ask a question along those lines?
13 A. Yes, sir.
14 Q. And did you ask whether these individuals on
15 the list were engaged in any illegal activity at any
16 time?
17 A. Yes, sir.
18 Q. Did you ask when this occurred?
19 A. Yes, sir.
20 Q. And did you ask when it was that they had
21 these associations?
22 A. Yes, sir.
23 Q. Did you provide all of that information in
24 your testimony?
25 A. No, sir.
748
1 Q. Why not?
2 A. I wasn't asked, sir.
3 Q. Well when you were asked, for example, about
4 -- let's take James Capasso as an example. What you
5 said you said -- the question was asked of you, "What
6 if anything have your informants said about James
7 Capasso?" And your response was, "Informants 2, 5, 12,
8 and Joey Granata all indicated that they knew Jimmy
9 Capasso and that he was associated with the Elmwood
10 Park Crew of the Chicago Mob and that he was an
11 organized crime associate." Do you remember?
12 A. Yes, sir.
13 Q. Is that all of the specifics that they had
14 for you?
15 A. Yes, sir.
16 Q. They didn't provide you with a name of an
17 individual?
18 A. No, sir.
19 Q. That Elmwood Park Crew, I believe you would
20 testify and have previously testified, was a shifting
21 group.
22 A. Yes, sir.
23 Q. With different individuals coming and going
24 over time, correct?
25 A. Yes, sir.
749
1 Q. Did you ask for any particular person within
2 the so-called Elmwood Park Crew?
3 A. Yes, sir. I was told by these informants
4 that Mr. Capasso was closely associated with Rudy
5 Fratto, who is a lieutenant to Joseph Andriacci and
6 that crew and DiFronzo.
7 Q. He's closely associated with Rudy Fratto?
8 A. Yes, and Joseph Andriacci who was associated
9 with the Elmwood Park Crew.
10 Q. Did you find out what, for example, with Mr.
11 Capasso he was to have done in the course of this close
12 association.
13 A. No, sir.
14 Q. Did you get any information about what the
15 association concerned?
16 A. It concerned his job with the Union and that
17 he was beholding to the Elmwood Park Crew who was
18 associated with organized crime.
19 Q. And was there any time period put on this?
20 A. Several years. No specific --
21 Q. Did you determine what several years were
22 involved?
23 A. They indicated that for many years that he
24 had been associated with the Elmwood Park Crew.
25 Q. And was it suggested that -- was it stated
750
1 that this is a continuing association?
2 A. Yes, sir.
3 Q. Did they identify any illegal activity that
4 James Capasso was involved in?
5 A. No, sir, they were not aware of any.
6 Q. Any other information that they provided you
7 regarding James Capasso.
8 A. They all recognized the name and stated that
9 he was a Chicago Mob associate with the Elmwood Park
10 Crew. That's what they indicated.
11 Q. And that was something you heard from each of
12 the people you identified? That is to say,
13 confidential informants, 2, 5, 12 and Joey Granata?
14 A. Yes, sir.
15 Q. They all said this.
16 Now if we were -- while we're talking about
17 time, if we're talking about Joey Granata, it has to be
18 some time ago, doesn't it?
19 A. Yes, sir.
20 Q. It couldn't be continuing to the present
21 because Mr. Granata has been long gone from the scene,
22 correct?
23 A. Yes, sir, since 1991.
24 Q. In 1991 he decided to cooperate and testify
25 for the government, so he severed his associations with
751
1 these people; isn't that correct?
2 A. Yes, sir.
3 Q. So any information that he would have
4 provided would have been earlier than 1991.
5 A. Yes, sir.
6 Q. What about the rest of them, 2, 5 and 12,
7 anything specific that you recall there?
8 A. Specific other than they identified him as a
9 member -- as an LCN associate.
10 Q. How about Bates again? Anything that they
11 provided you, 2, 5, or 12, in that regard?
12 A. Continuing to the present time.
13 Q. And anything more than the names of Fratto
14 and Andriacci?
15 A. No, sir. One informant indicated Fratto and
16 Andriacci? That's informant number 2.
17 Q. That came from informant number 2.
18 A. Yes, sir.
19 Q. Now you've testified, you know, about the
20 information that was provided to you by these various
21 informants. And -- let me back up.
22 You spent 32 years in law enforcement I
23 believe you said; is that correct?
24 A. Yes, sir.
25 Q. And you had 26 years with the FBI, right?
752
1 A. Yes, sir.
2 Q. And you were involved as an FBI agent in
3 several hundred investigations?
4 A. Yes, sir.
5 Q. I believe you've testified that you were
6 involved in the convictions of 75 organized crime
7 figures over the course of time?
8 A. Approximately, yes, sir.
9 Q. And in connection with your work in the FBI
10 and in law enforcement for 32 years, some of those
11 investigations involved surveillances, did they not?
12 A. Yes, sir.
13 Q. Would it be fair to say that you probably
14 have been engaged in hundreds of surveillances?
15 A. Yes, sir.
16 Q. And some of those investigations involved
17 electronic surveillance, did they not?
18 A. Yes, sir.
19 Q. The electronic surveillance included things
20 like wire taps?
21 A. Yes, sir.
22 Q. Eavesdropping equipment of some sort.
23 A. Yes, sir.
24 Q. Cameras sometimes employed?
25 A. Yes, sir.
753
1 Q. Pen registers?
2 A. Yes, sir.
3 Q. And the pen registers, just so we're clear,
4 are registers that would record the telephone numbers?
5 A. Yes, sir.
6 Q. What would they record?
7 A. They record the telephone numbers called or
8 incoming.
9 Q. To a targeted phone number.
10 A. That's correct, yes, sir.
11 Q. And you also reviewed phone records in
12 addition to reviewing the records of these pen
13 registers, correct?
14 A. Yes, sir.
15 Q. Now in all of these surveillances that you
16 conducted, did you ever pick up in any of these
17 surveillances any of the current officers of Local
18 1001?
19 A. Nick Cataudella.
20 Q. And you testified about that last time,
21 right?
22 A. Yes, sir.
23 Q. Anybody else?
24 A. I believe that's -- as far as I can recall,
25 that's the only person, yes.
754
1 Q. And when was that with Mr. Cataudella?
2 A. It was approximately 19 -- early 1980's. He
3 was meeting with various individuals at the Body Shop
4 on Grand, and also he was working, I believe, or had an
5 interest in a bar/restaurant on Grand Avenue.
6 Q. That's additional information now that you
7 didn't testify to about before, right?
8 A. You're probably right, yes, sir.
9 Q. You did mention the Body Shop before.
10 A. Yes, sir.
11 Q. So we've heard about that.
12 A. Yes.
13 Q. Were you here when he testified?
14 A. No, sir, I was not.
15 Q. Of the current officers of Local 1001, none
16 of them has ever been convicted of a crime, right?
17 A. As far as I know we didn't check criminal
18 arrest records.
19 Q. You didn't check any arrest records?
20 A. No, sir.
21 Q. During your 32 years of law enforcement were
22 any of these current officers ever a target of a
23 criminal investigation which you were involved?
24 A. No, sir, not that I'm aware of.
25 Q. To your knowledge has there been any public
755
1 report, prior to the filing of the complaint for
2 Trusteeship against Local 1001, describing any of the
3 current officers as an associate of organized crime or
4 the Mob or the Outfit?
5 A. I don't believe so, no, sir.
6 Q. Now by comparison, Granata himself was
7 convicted of a crime, was he not?
8 A. Yes, sir.
9 Q. More than one?
10 A. I'm not sure. I believe he was, yes.
11 Q. He certainly admitted to many more than one,
12 right?
13 A. He's admitted to many, yes, sir.
14 Q. Is that right?
15 A. Yes, he has.
16 Q. What about informants 2, 5, 12 and 17?
17 A. They've all been convicted of crimes in the
18 past.
19 Q. Okay. And they don't want to share their
20 names.
21 A. No, sir.
22 Q. During your 32 years of law enforcement, are
23 you aware of any surveillance report that placed any of
24 the current officers in the presence or having contact
25 with a member of organized crime?
756
1 A. I'm not aware of any, no, sir.
2 Q. And by comparison it would be fair to say
3 that you probably have surveillance that would show
4 Granata, Cooley and 2, 5, 12 and 17 all in the presence
5 of organized crime figures, right?
6 A. Yes, sir.
7 Q. That's one of the ways that you would
8 corroborate the reliability of the information that you
9 got or that they gave you? Is that the idea?
10 A. Yes, sir.
11 Q. And when I use that word about surveillance
12 and your answer was that you're not aware of any of the
13 current officers being picked up in any surveillance,
14 I'm talking about, just so we're clear, physical
15 surveillance none, right?
16 A. That's correct.
17 Q. And nothing like wire taps or overhears or
18 pen registers, nothing connecting any of these
19 individuals that you're aware of, right?
20 A. Not that I'm aware of. They could have been
21 picked up and I wouldn't be aware of it because we
22 concentrated on certain individuals.
23 Q. I'm only asking what you recall and --
24 A. I don't recall seeing anything on any of
25 those persons.
757
1 Q. All right.
2 Now there was a surveillance that you were
3 involved in concerning one of the officers here,
4 correct?
5 A. I don't recall.
6 Q. Weren't you involved in a surveillance -- and
7 it wasn't in connection with your duties as a law
8 enforcement official, it's since you began doing work
9 with the Laborers' Union. Didn't you testify that you
10 were involved in a surveillance of Mr. Gironda?
11 A. I don't recall that, no, sir.
12 Q. Well didn't you -- maybe it was you picked
13 him up. Remember this? You don't remember a
14 surveillance of Mr. Caruso and Mr. Gironda that you
15 testified about?
16 A. Oh, yes. It wasn't me that was involved. It
17 was not myself that was involved in the surveillance.
18 Q. You didn't do the surveillance.
19 A. It was an FBI surveillance as I recall.
20 Q. An FBI surveillance?
21 A. I believe so, yes, sir.
22 Q. You were involved -- when I asked you if you
23 were involved, didn't you have something to do with
24 what prompted the surveillance?
25 A. I don't recall being involved in it, no, sir.
758
1 Q. Well Mr. O'Rourke, didn't you testify about
2 certain papers for the District Council of the
3 Laborers' being served on Mr. Caruso?
4 A. Yes, sir, correct.
5 Q. And in the course of those -- that service of
6 papers, there was a surveillance conducted, was there
7 not?
8 A. Yes, there was. That's correct.
9 Q. And that surveillance of Mr. Caruso involved
10 Mr. Gironda, did it not?
11 A. Yes, it did.
12 Q. And the occasion was when you personally
13 served Trusteeship papers for the District Council on
14 Bruno Caruso, correct?
15 A. That's correct.
16 Q. And at the time you served these papers it
17 was at a golf course?
18 A. Yes, sir.
19 Q. And present with Mr. Caruso was Mr. Gironda.
20 A. Yes, sir. I had forgotten that, that's
21 correct.
22 Q. Now Mr. Caruso was an officer of Local 1001?
23 A. That's correct.
24 Q. Mr. Gironda at that time was also an officer
25 of 1001?
759
1 A. Yes, sir.
2 Q. And so this service of papers also concerned
3 Union business, did it not?
4 A. Yes, sir.
5 Q. And you didn't physically do the surveillance
6 after the papers were served; is that correct?
7 A. That's correct.
8 Q. It was done by others.
9 A. Correct, sir.
10 Q. Including a Peter Dignan I believe is his
11 name.
12 A. Yes, sir.
13 Q. He was a police officer for the Chicago
14 Police?
15 A. Yes, he was.
16 Q. And they followed the two cars, one
17 containing Mr. Bruno Caruso and the other containing
18 Nick Gironda, correct?
19 A. Yes, sir.
20 Q. And you testified about that on November
21 12th, I believe it was, and probably the day before
22 too, right?
23 A. Yes, sir.
24 Q. And you said, did you not, that they
25 eventually got to an address in the 200 block of West
760
1 25th Place in Chicago, correct?
2 A. I don't recall the specific address, but
3 that's approximately correct, yes, sir.
4 Q. But in the course of your testimony did you
5 make a mistake about what else may have been picked up
6 in that surveillance? Do you know or do you remember?
7 A. I don't recall, no, sir.
8 Q. Well do you recall that you testified that
9 before proceeding to the address on West 25th Place,
10 which incidentally you said was the residence of former
11 Alderman Roti. Do you remember that?
12 A. That's what the officers told me, yes, sir.
13 Q. That's what you were told.
14 A. Yes, sir.
15 Q. But you reported to the Hearing Officer, Mr.
16 Vaira, that before going to that residence they made a
17 stop at Barbara Trucking. Do you remember that?
18 A. Yes, sir.
19 Q. The truth is that there was no surveillance
20 that ever put Nick Gironda or Bruno Caruso in Barbara
21 Trucking on June 16th, 1997; isn't that right?
22 A. I was advised that that's where they went
23 first.
24 Q. Who told you that?
25 A. The officers.
761
1 Q. You're aware of the fact that they've
2 previously testified in the Caruso proceeding and in
3 the Trusteeship proceeding regarding the District
4 Council?
5 A. I don't recall that, but they may have.
6 Q. Did you ever review the testimony?
7 A. Their testimony, no, sir.
8 Q. Did you ever review the report of the
9 surveillance?
10 A. At the time I may have. I don't recall now,
11 sir.
12 Q. When did you last review it?
13 A. Right before I testified.
14 Q. Right before you testified --
15 A. Yeah.
16 Q. -- in November of 2003.
17 A. Yes, sir.
18 MR. LYDON: Well, I'm going to have to -- I
19 have one copy which I'll have to have it marked.
20 THE INDEPENDENT HEARING OFFICER: We'll wait.
21 We'll wait. We'll wait. Sure. Go ahead. I'll look
22 over your shoulder.
23 MR. THOMAS: Could I see it?
24 BY MR. LYDON:
25 Q. 52. I guess we do have it as an exhibit.
762
1 52? See that? Take a look at that. Is that
2 the report of the surveillance that was conducted by
3 one of the officers, looks like Scaramella?
4 A. Yes, sir. Gene Scaramella, right.
5 Q. And it reports on the surveillance of both
6 Gene Scaramella and Sergeant Peter Dignan, right?
7 A. Yes, sir.
8 Q. Were you present when Sergeant Peter Dignan
9 testified previously about that surveillance?
10 A. No, sir.
11 Q. That would have been in January of 2000. You
12 were involved, of course, in the Bruno Caruso
13 disciplinary proceeding, right?
14 A. Yes, sir.
15 Q. And did you ever review the testimony of
16 Peter Dignan who actually was involved in the
17 surveillance?
18 A. No, sir.
19 Q. Where did you get this information about
20 Barbara Trucking?
21 A. I was advised by the officers that they lost
22 them on Damen Avenue but they found them -- they had
23 stopped at Barbara Trucking. And I recall that clicked
24 with me because I had arrested Fred Bruno Barbara,
25 along with Mr. Scigalski, one of the FBI agents, back
763
1 in approximately 1980.
2 Q. Well aside from the clicking with you because
3 you had a previous connection or -- aside from it
4 personally clicking with you, Mr. O'Rourke, that you
5 knew who Barbara was, I want to know who told you that
6 on June 16th, 1997 there was any stop made at Barbara
7 Trucking.
8 A. I was told this by Investigator Tom Bohling,
9 with the Cook County Sheriff's Police, who was a part
10 of that surveillance.
11 Q. Now Bohling's name doesn't appear anywhere on
12 this report of surveillance, does it?
13 A. No, sir.
14 Q. And you've reviewed this surveillance report
15 previously, have you not?
16 A. I looked at it, yes, sir.
17 Q. Nowhere in this surveillance report is there
18 any mention of Barbara Trucking, is there?
19 A. No, sir. Surveillance was conducted jointly
20 by the Chicago officers and some officers from the Cook
21 County Sheriff's Police, and their names do not appear
22 on it.
23 Q. This -- Scaramella was involved in the
24 surveillance.
25 A. Yes, sir.
764
1 Q. And Dignan was involved in the surveillance,
2 right?
3 A. Those two, yes, sir.
4 Q. And Investigators Doyle and Van Horn too,
5 right?
6 A. Yes, sir.
7 Q. Not one of them ever mentioned Barbara
8 Trucking, correct?
9 A. Not on the report, no, sir.
10 Q. So is there a -- in nowhere -- well is there
11 any other report that you've ever seen?
12 A. I can't recall. There may have been a Cook
13 County Sheriff's Police report, but I don't recall now,
14 sir. But I was advised that they had stopped when they
15 were looking for them at Barbara Trucking, and they
16 were lost until they picked them up pulling onto the
17 street at 25th Street.
18 Q. Are you familiar with what Sergeant Dignan
19 had to say about the surveillance?
20 A. I was not there when he testified, no, sir.
21 Q. Did you talk with Peter Dignan at any time
22 about what happened in that surveillance?
23 A. No, sir. I talked with Tom Bohling from the
24 Cook County Sheriff's Police.
25 Q. What about the surveillance as it continued
765
1 to what you believed to be the address of Fred Roti?
2 A. According to Tom Bohling and according to the
3 report, Sergeant Dignan observed both vehicles turning
4 eastbound on 25th Place, double parking their vehicles
5 in front of the residence at 231 West 25th Place,
6 Chicago.
7 Q. Okay. Now, you're reading from the report
8 that we've just referred to; is that right?
9 A. That's correct.
10 Q. Which is our Exhibit 52.
11 A. Yes.
12 Q. What about the actual testimony. Have you
13 heard any actual testimony in any case about this
14 surveillance and what happened when the vehicles went
15 onto West 25th Place?
16 A. Any testimony? There was some testimony
17 about -- I think there was -- there was an allegation
18 that it was not Fred Roti's home that they went into.
19 Q. What did you read in that respect?
20 A. Pardon me?
21 Q. What did you read in that respect or who
22 reported that to you?
23 A. I think it was a discussion after the
24 testimony as I recall. I don't believe I was present
25 for it.
766
1 Q. You're aware, are you not, that there was a
2 common walkway between the home of Fred Roti at 231
3 West 25th Place and 233 West 25th Place where Bruno
4 Caruso's mother resided.
5 A. I recall that was the discussion afterwards,
6 yes, sir.
7 Q. Do you recall that the person who saw or made
8 -- who testified regarding what occurred when the --
9 when Gironda and Caruso left their vehicles at that
10 common walkway, do you recall that the person who
11 testified was Sergeant Peter Dignan regarding the
12 surveillance?
13 A. No, I was not present, no, sir.
14 Q. My question was: Do you recall that he was
15 the one who testified about what was observed.
16 A. I learned of that, yes, sir. He was the
17 author of the report.
18 Q. And do you recall that he also said that he
19 did not see and no one actually saw either Bruno Caruso
20 or Nick Gironda actually enter or exit either 231 or
21 233 West 25th Place.
22 A. I don't recall that, no, sir.
23 THE INDEPENDENT HEARING OFFICER: That's the
24 testimony. I recall it.
25 MR. LYDON: I have the testimony. We'll
767
1 offer it at a later time.
2 THE INDEPENDENT HEARING OFFICER: I recall.
3 They didn't see them go in.
4 BY MR. LYDON:
5 Q. And didn't see them come out.
6 A. There was a discussion after the testimony,
7 but I wasn't present so I don't know.
8 Q. And during the first 30 minutes after the two
9 vehicles arrived at that address of 231 or 233 West
10 25th Place, approximately 30 minutes after the arrival
11 Mr. Fred Roti was observed outside at the curb smoking
12 a cigarette; is that correct?
13 A. I don't recall that, no, sir.
14 Q. You don't recall that. And you don't recall
15 that no one was observed with him 30 minutes after the
16 arrival.
17 A. No, sir, I don't.
18 Q. And you don't know anything about that at
19 all.
20 A. I wasn't present for the testimony, so I
21 don't know.
22 Q. So the testimony that you provided on the
23 11th and 12th of November was based on what in total?
24 A. A briefing on the results of the surveillance
25 by the police officers, specifically Tom Bohling from
768
1 Cook County Sheriff's Police who was part of the
2 surveillance.
3 MR. THOMAS: Mr. Vaira, just for the record,
4 you've already made findings with respect to that both
5 in the CDC case and in Bruno Caruso.
6 THE INDEPENDENT HEARING OFFICER: The
7 testimony was nobody saw them talking to Fred Roti.
8 Whatever the findings were, the findings were. Go
9 ahead.
10 BY MR. LYDON:
11 Q. And just to sum up. On the Barbara Trucking,
12 are you aware of any official report of any kind, any
13 writing or any testimony, that previous to your
14 testimony in November of this year, placed Nick Gironda
15 and Bruno Caruso at Barbara Trucking in June --
16 specifically on June 16th, 1997.
17 A. No, sir, I'm not aware of any.
18 Q. And the conversation that you had with the
19 Sheriff's Officer Bohling was when?
20 A. Immediately after the surveillance.
21 Q. And you did not file any written report that
22 included the stop at Barbara Trucking; is that right?
23 A. No, sir.
24 Q. Am I correct?
25 A. That's correct.
769
1 Q. Now while we're on the subject of Bruno
2 Caruso and Nick Gironda, when you testified in November
3 -- on November 11th of 2003, you said, did you not, or
4 testified that all of the informants told you that Nick
5 Gironda replaced Bruno Caruso because he was a member
6 of the 26th Street Crew, and as a way of continuing the
7 influence of that group; is that correct?
8 A. Yes, sir.
9 Q. That's what you testified to.
10 A. Correct.
11 Q. Yet it's a fact, is it not, that the person
12 who made the motion to elect or appoint Bruno Caruso --
13 excuse me. Nick Gironda to replace Bruno Caruso was
14 Nate Gibson; is that right?
15 A. I don't know that, no, sir.
16 Q. Do you have our Exhibit 15 in front of you?
17 THE INDEPENDENT HEARING OFFICER: Does he
18 have it?
19 MR. LYDON: He has it.
20 BY MR. LYDON:
21 Q. And 15 is a meeting of Local -- it's the
22 minutes of a meeting of Local 1001 on September 14th of
23 2001; is that right?
24 A. Yes, sir.
25 Q. An Emergency Special Executive Board Meeting,
770
1 correct?
2 A. Yes, sir.
3 Q. Do you see, it would be the third page in --
4 well let me give you a minute. You read those minutes
5 over so that in fairness to see what is involved here
6 is that Mr. Caruso has been expelled. Do you see that
7 on the second page? And then on the third page there
8 was a question of nominations for the office of
9 Business Manager, the office previously held by Bruno
10 Caruso.
11 A. Yes, sir.
12 Q. And the motion was made by Nate Gibson,
13 right?
14 A. Yes, sir.
15 Q. The fact is that all of your -- none of your
16 informants had any information whatsoever suggesting
17 that Mr. Gibson was in any way connected with organized
18 crime, right?
19 A. Yes, sir.
20 Q. That's what you testified to.
21 A. Yes, sir.
22 Q. Now let's go to the Capasso allegations if we
23 can. And you've given me some more information this
24 afternoon that -- information that wasn't contained in
25 your testimony previously, right?
771
1 A. Yes, sir.
2 Q. And it wasn't in the complaint either,
3 correct?
4 A. That's correct. Yes, sir.
5 Q. The complaint was what number again? 49. Go
6 to 49, the complaint, and I want you to go to page 9.
7 Do you have page 9 in front of you?
8 A. Yes.
9 Q. And specifically I'm going to direct your
10 attention to the middle of the page regarding James
11 Capasso and paragraph 33 which concerns connection to
12 organized crime. Do you see that?
13 A. Yes, sir.
14 Q. Now the allegation there is that "Capasso was
15 involved in bookmaking activities for the Chicago
16 Outfit with James "Little Jimmy" Marcello." Is that
17 information that you provided to Mr. Luskin?
18 A. Yes, sir, I believe so.
19 Q. Where did that information come from?
20 A. From the informants.
21 Q. So when you testified a short while ago, this
22 is something you overlooked about what they told you
23 specifically about James Capasso?
24 A. Yes, sir. This was from an old report.
25 Q. Who told you this?
772
1 MR. THOMAS: Objection.
2 BY MR. LYDON:
3 Q. Who told you what is contained in paragraph
4 33?
5 THE INDEPENDENT HEARING OFFICER: I'll
6 overrule the objection.
7 MR. THOMAS: He clarified it. Thank you.
8 THE WITNESS: I don't recall which of the
9 informants told me that, sir. I believe it was number
10 2, but I'm not sure.
11 BY MR. LYDON:
12 Q. Number 2 is the guy who also told you about
13 Rudy Fratto and Joseph Andriacci?
14 THE INDEPENDENT HEARING OFFICER: Did you say
15 that was from an old report you said?
16 THE WITNESS: I received this in the mail and
17 didn't know what had gone into it, but I was providing
18 information all along.
19 BY MR. LYDON:
20 Q. What did you receive in the mail?
21 A. A copy of the complaint.
22 THE INDEPENDENT HEARING OFFICER: What do you
23 mean by "old report"? Old FBI report?
24 THE WITNESS: I had debriefed these
25 informants over the years and had supplied that
773
1 information over a period of time to the GEB Attorney.
2 BY MR. LYDON:
3 Q. Beginning when?
4 A. Beginning when we began our investigation.
5 But in this particular case probably sometime in late
6 2002, early 2003.
7 Q. Okay.
8 THE INDEPENDENT HEARING OFFICER: When you
9 say "old report", would that be -- when I was back in
10 the business we used to refer to it as a 92 Report
11 with the Bureau, which is purely intelligence?
12 THE WITNESS: Yes, sir.
13 THE INDEPENDENT HEARING OFFICER: Purely
14 intelligence.
15 BY MR. LYDON:
16 Q. But in any event, somewhere in late 2002 or
17 early 2003, just so we're clear, informant number 2
18 provided you this information regarding James Capasso,
19 this information being the information that's contained
20 in paragraph 33 of the complaint --
21 A. It's either 2 or 5. I don't recall off the
22 top of my head, sir.
23 Q. What about your notes? Do they tell you?
24 A. I'm sure they would, but I don't have them
25 handy right now.
774
1 Q. Where are your notes?
2 A. In the office.
3 Q. So I assume you would be able to overnight,
4 we're going to be continuing tomorrow anyway, go back
5 and gather your notes and find out more about the
6 source of this information, right?
7 A. Yes, sir.
8 MR. LYDON: Mr. Hearing Officer, I would ask
9 that he do that.
10 THE INDEPENDENT HEARING OFFICER: They would
11 refresh his recollection?
12 MR. LYDON: Yes.
13 THE INDEPENDENT HEARING OFFICER: Would you
14 do that for me please?
15 THE WITNESS: Sure.
16 MR. THOMAS: Just procedurally. If we need
17 to get him on the phone, that may be necessary. He's
18 not available tomorrow.
19 THE INDEPENDENT HEARING OFFICER: We'll get
20 him one way or the other.
21 MR. THOMAS: Right. Exactly.
22 BY MR. LYDON:
23 Q. Now while we're on the subject of this James
24 "Little Jimmy" Marcello, he's described in paragraph 33
25 as "a high-ranking LCN figure who is currently in
775
1 federal prison," correct?
2 A. Yes, sir.
3 Q. Do you agree with that description that he's
4 "a high-ranking LCN figure"?
5 A. Yes, sir, and he's just gotten out of prison.
6 Q. Do you agree with the description that he's
7 "a high-ranking LCN figure"?
8 A. Yes, sir. He was the underboss of the
9 Chicago Mob.
10 Q. For how long was he in federal prison?
11 A. He was convicted with Sam Carlisi and his
12 crew in approximately 1991, '92, and --
13 THE INDEPENDENT HEARING OFFICER: Who are you
14 talking about?
15 THE WITNESS: James Marcello.
16 BY MR. LYDON:
17 Q. And would it be fair to say that James
18 Marcello being described as "a high-ranking LCN
19 figure," was someone, for example, that the Chicago
20 Crime Commission alleged was a member of organized
21 crime, right?
22 A. I assume that they would have, yes, sir.
23 Q. In contrast, the Chicago Crime Commission has
24 never alleged that one of these current officers of
25 Local 1001 is an associate or a member of organized
776
1 crime; is that correct?
2 A. I believe that's correct, yes, sir.
3 Q. Now there have been newspaper reports about
4 the connection of Mr. Marcello to organized crime,
5 correct?
6 A. Yes, sir.
7 Q. With respect to the specific allegations of
8 paragraph 33, the allegation is that Capasso was
9 involved in bookmaking activities, right?
10 A. Yes, sir.
11 Q. Bookmaking activities are illegal activities,
12 right?
13 A. Yes, they are.
14 Q. And where were the informants -- one of the
15 informants told you that he was engaged in bookmaking
16 activities. It's either 2 or 5 we've determined,
17 right?
18 A. Yes, sir. And it was in his earlier life.
19 It wasn't recently.
20 Q. And the other informants had no knowledge of
21 his doing anything illegal, right?
22 A. Not specifically as I recall, no, sir.
23 Q. That's what you testified to a short time
24 ago.
25 A. Yes, sir, that's right.
777
1 Q. This Rudy Fratto, he's also a person
2 prominently known as an associate or member of
3 organized crime, right?
4 A. Yes, sir.
5 Q. Joseph Andriacci is also prominently known as
6 a member of organized crime, right?
7 A. Yes, sir.
8 Q. Joseph Andriacci, some people might accuse
9 him of being currently the head of organized crime in
10 the Chicago area, right?
11 A. Yes, sir, that's true.
12 Q. Now are you aware of any surveillance of any
13 sort -- let me back up.
14 There was no doubt surveillance done over the
15 years by the FBI and by law enforcement people of James
16 Marcello, correct?
17 A. Yes, sir.
18 Q. Likewise, there has been surveillance of Rudy
19 Fratto?
20 A. I'm not sure if there has been on Fratto.
21 Q. Joseph Andriacci?
22 A. Yes, sir.
23 Q. When we talk about Andriacci and Marcello,
24 you're confident, are you not, that given the
25 prominence that they have, that there was a lot of
778
1 surveillance conducted by many different law
2 enforcement officers of these individuals over a time.
3 A. Probably, yes, sir.
4 Q. Probably over the last 25 years, there's been
5 surveillance of them, correct?
6 A. Probably, yes, sir.
7 Q. And how about you yourself? In your 32 years
8 of investigating organized crime were you involved in
9 any surveillances of Marcello or Fratto or Andriacci.
10 A. No, sir.
11 Q. Did you review surveillance reports that
12 concerned any of these individuals.
13 A. Yes, sir, I did.
14 Q. And again we're talking about all forms of
15 surveillance, physical in terms of pictures or cameras,
16 moving camera, pictures, physical reports, wire tap
17 kinds of transcripts. You've seen a lot of that,
18 right?
19 A. Yes, sir.
20 Q. In any of that surveillance do you recall
21 ever seeing the name or picking up that James Capasso
22 was in any way associating with these individuals.
23 A. I don't recall that, no, sir.
24 Q. He was never seen socially with any of these
25 individuals so far as you know, right?
779
1 A. So as far as I know, yes, sir.
2 Q. And so although you got information from
3 Granata and 2, 5, and 12, there's nothing that you have
4 that corroborates that information except the word of
5 these individuals, right?
6 A. Yes, sir.
7 Q. That's correct, is it not?
8 A. That's correct.
9 Q. Now let's go to another individual. How
10 about Robert Chianelli. Do you have the complaint in
11 front of you?
12 A. Yes, sir.
13 Q. And if you go to page 7, you see the
14 information there?
15 A. Yes, sir.
16 Q. Where did that information come from?
17 A. Informant number 5.
18 Q. Informant number 5, is he the fellow who
19 referred to Robert Chianelli as "Bobby Chi"?
20 A. Yes, sir. Two informants did that.
21 Q. Two informants referred to him as "Bobby
22 Chi"?
23 A. Yes, sir.
24 Q. And you testified about that on November
25 12th; is that correct?
780
1 A. I believe I did, yes, sir.
2 Q. On November 12th -- let me refresh your
3 recollection. You said one informant referred to him
4 as "Bobby Chi".
5 A. It was two, both 2 -- informant number 2 and
6 informant number 5.
7 Q. So both informants 2 and 5 you're saying now
8 referred to Robert Chianelli as "Bobby Chi".
9 A. Yes, they did, yes, sir.
10 Q. And you do recall that your testimony was
11 that one informant, number 5, referred to him as "Bobby
12 Chi" when you testified on November 12th.
13 A. Yes, sir.
14 Q. When did you have this conversation with
15 number 2?
16 A. The last -- last week.
17 Q. And was it specifically to talk about Robert
18 Chianelli?
19 A. No, sir.
20 Q. How did the subject "Bobby Chi" come up?
21 A. I asked him -- I wasn't specifically about
22 Chianelli, but I was going through the names again, and
23 I said, "Did you know any other names for Chianelli,"
24 and he said, "Bobby Chi", which was the same as the
25 other informant said.
781
1 Q. And this procedure, when you're going through
2 the names again, basically you're taking a list of
3 names and you're asking him, "What about this guy?
4 What about this guy?" Right?
5 A. Yes, sir.
6 Q. How many times have you gone over that list
7 with these informants?
8 A. Several times.
9 Q. What's several?
10 A. I don't recall exactly. I usually try and do
11 it whenever I see them.
12 Q. And evidently each time you go and ask them
13 about these names again and again and again, you get
14 more information, is that it?
15 A. Sometimes, not always.
16 Q. At least in this instance you claim you got
17 additional information?
18 A. I got additional information that he knew him
19 also as "Bobby Chi", yes, sir.
20 Q. What else did he tell you about him other
21 than "Bobby Chi", number 2?
22 A. He reiterated what he had previously said.
23 Q. What did he previously say?
24 A. That he knew him as a member of organized
25 crime.
782
1 Q. As a member of organized crime now.
2 A. An associate.
3 Q. Which was it?
4 A. An associate.
5 Q. What specifically did he tell you about him?
6 A. That he was affiliated with the Elmwood Park
7 Crew.
8 Q. Who in the Elmwood Park Crew?
9 A. Rudy Fratto.
10 Q. Anybody else?
11 A. That's all I recall, sir.
12 Q. Incidentally, what did he say his association
13 was with Rudy Fratto? What did he do with Rudy Fratto?
14 A. Just that he was an associate of his.
15 Q. Did he claim that he engaged in any illegal
16 activities with Mr. Fratto?
17 A. Not specifically, no, sir.
18 Q. What kinds of activities -- illegal
19 activities is Mr. Fratto associated with?
20 A. Bookmaking, loan sharking. He's a lieutenant
21 to Joe Andriacci.
22 Q. And I take it that Mr. Andriacci is involved
23 in the same activities then.
24 A. Well he's the overseer or the boss. They
25 report to him.
783
1 Q. Okay.
2 When you were talking about James Capasso and
3 said that he was closely associated with Rudy Fratto
4 and Joseph Andriacci, that number 2 said this, was that
5 also related to bookmaking and loan sharking with
6 regard to James Capasso?
7 A. Chianelli?
8 Q. No. Capasso.
9 A. Excuse me. Early in his career, yes, sir.
10 They said they knew him.
11 Q. When is early in his career?
12 A. When he was younger and not in a position as
13 Executive Director of the City Pension Fund.
14 Q. How much earlier? Did you ask him about
15 that?
16 A. Yes, sir.
17 Q. What did he tell you?
18 A. When he was much younger. I don't recall
19 anything specific.
20 Q. Did you ask him how much younger?
21 A. Yes, sir. He said he knew him for most of
22 his life, and he identified him as Jimmy Capasso and
23 said that he knew him when he was a bookmaker, and he
24 was a member of -- an organized crime associate.
25 Q. When? Some approximate time.
784
1 A. 1980's, 1970's.
2 Q. Coming back to Robert Chianelli. Now you got
3 this recent information about him, and now we've got 2
4 and 5 that call him "Bobby Chi". Did anybody explain
5 why he's called "Bobby Chi"?
6 A. No, sir. Just a nickname, according to them.
7 Q. Turn to page 7 of the complaint in this case
8 if you would please, paragraph 25. Do you have it in
9 front of you?
10 A. Yes, sir.
11 A. Did you play any role in providing the
12 information that's contained or alleged in paragraph 25
13 to the GEB Attorney?
14 A. Regarding Chianelli?
15 Q. Yes, sir.
16 A. Yes, sir. It's probably based on information
17 I provided.
18 Q. So this too is additional information about
19 information you previously testified about in this
20 hearing, correct?
21 A. The section about "Bobby Chi" is.
22 Q. There's nothing about "Bobby Chi" that I see
23 in paragraph 25.
24 A. You just asked me what's --
25 Q. No. I'm asking you about paragraph 25.
785
1 You've not previously testified about anything that's
2 contained here in paragraph 25 previously, correct, in
3 this proceeding?
4 A. I've not testified?
5 Q. You've not testified about the allegation in
6 paragraph 25, have you?
7 A. No, sir. Oh, I see what you mean. No, I
8 have not.
9 Q. In paragraph 25 there's an allegation that
10 "Chianelli is or was involved in organized crime
11 bookmaking activities," and you testified about that,
12 correct?
13 A. Yes, sir.
14 Q. Here you say he's "associated with LCN
15 bookmaker Bobby Garippo."
16 A. Yes, sir.
17 Q. Who gave you that information?
18 A. Informant number 5.
19 Q. So 5 gave you more than the Rudy Fratto
20 connection -- or wait. 2 was the one who gave you Rudy
21 Fratto, right?
22 A. Yes, sir.
23 Q. So 5 had this information.
24 Now about Bobby Garippo. Who is Bobby
25 Garippo?
786
1 A. He's a bookmaker.
2 Q. Is he identified in any publication that's
3 open that the public sees? Have you ever seen anything
4 that alleges that Bobby Garippo is a bookmaker?
5 A. I've seen a lot of things, but they're not
6 open to the public. The Bureau files, the Chicago
7 Police intelligence files, the Cook County Sheriff's
8 Police intelligence files.
9 Q. What does this guy do for a living, Bobby
10 Garippo?
11 A. He's a bookmaker. I don't know what else he
12 does. I never worked on him.
13 Q. Do you know anything more about him?
14 A. I believe he's a distant relative of Judge
15 Garippo.
16 Q. Cousin?
17 A. Cousin. Could be. I'm not sure. He's a
18 relative. But he's considered to be a Chicago Mob
19 bookmaker.
20 Q. By whom?
21 A. FBI, Chicago Police intelligence, Cook County
22 Sheriff's Police intelligence.
23 Q. In any event, one of the informants that was
24 -- 5, I guess, gave you this information?
25 A. Yes, sir.
787
1 Q. What specific information did 5 tell you
2 about Mr. Chianelli's association with Bobby Garippo?
3 A. That he had acted as a bookmaker with and for
4 Garippo.
5 Q. When?
6 A. Years ago.
7 Q. How many years ago?
8 A. He didn't say, sir. He said he recalled that
9 he was associated with Bobby Garippo as a bookmaker.
10 Q. You're not aware of any arrests ever of Bobby
11 Chianelli -- Robert Chianelli, I should say, or James
12 Capasso for bookmaking, right?
13 A. I'm not aware of any, no, sir.
14 Q. You're not even aware of any list that would
15 indicate that they were involved in bookmaking or
16 identified within any paperwork that was ever seized of
17 bookmaking activities, right?
18 A. Garippo?
19 Q. I'm sorry. Chianelli or Capasso.
20 A. That's correct. Yes, sir.
21 Q. Now the allegation in the second sentence of
22 paragraph 25 is that "Chianelli is known to have
23 associated with LCN figures," meaning organized crime
24 figures, right?
25 A. Yes.
788
1 Q. "At Dappers Restaurant on Belmont and
2 Cumberland Avenues in Chicago."
3 A. Yes, sir.
4 Q. Where did that information come from?
5 A. Informant number 5.
6 Q. Who were the LCN figures that he was known to
7 have associated with at Dappers Restaurant?
8 A. Number 5 said he had seen him there talking
9 with individuals known to the source as LCN bookmakers
10 and their associates, no specific names.
11 Q. No names. Okay.
12 And then finally, "Sources within the Chicago
13 Outfit have identified Chianelli as an associate of the
14 Elmwood Park Crew." Who?
15 A. Informant number 2, informant number 5, and
16 informant number 12.
17 Q. And specifically who within the Elmwood Park
18 Crew?
19 A. Bobby Garippo would be one, Rudy Fratto would
20 be the other, and other than that they indicated that
21 he was affiliated with the Elmwood Park Crew, no
22 particular names.
23 Q. And again was there a time period put on this
24 association with Elmwood Park Crew?
25 A. No, sir, there was not.
789
1 THE INDEPENDENT HEARING OFFICER: What do you
2 associate "with the Crew? I mean, hang around? They
3 meet? There's various degrees of association. Do
4 something for them? Was there anything more definite
5 than that?
6 THE WITNESS: No, sir. They were vague about
7 it. They indicated they knew him to be an associate of
8 the Elmwood Park Crew. One informant had seen him at
9 Dappers talking with individuals in the Elmwood Park
10 Crew, and that had also known that he was a bookmaker
11 early on associating with Bobby Garippo. Other than
12 that they had no specific information.
13 THE INDEPENDENT HEARING OFFICER: What do you
14 mean by "bookmaker"? Take bets?
15 THE WITNESS: Yes, sir.
16 THE INDEPENDENT HEARING OFFICER: Carry them
17 in and what?
18 THE WITNESS: Bookmaking, you know, that he
19 would take bets as a bookmaker. And then as part of
20 the Elmwood Park Crew, they would be beholding to the
21 crew that they're involved in. Often times they paid
22 street tax to continue as a bookmaker.
23 THE INDEPENDENT HEARING OFFICER: Okay. Go
24 ahead.
25 BY MR. LYDON:
790
1 Q. Are you aware of any surveillance at any time
2 that ever picked up Robert Chianelli in the presence or
3 involved with any member of organized crime?
4 A. I'm not aware of any, no, sir.
5 MR. LYDON: I have no other questions.
6 THE INDEPENDENT HEARING OFFICER: I'm going
7 to take a ten minute break.
8 (Whereupon a break was taken in
9 the proceedings after which the
10 following proceedings were had:)
11 THE INDEPENDENT HEARING OFFICER: Ladies and
12 gentlemen, let's go back on the record.
13 MR. LYDON: Just a couple of cleanup matters
14 if I can, Mr. Vaira.
15 BY MR. LYDON:
16 Q. Mr. O'Rourke, you mentioned notes that you
17 were going to go back and check. Could you just
18 describe what you're talking about physically, what it
19 is, how many pages -- or what is it? Handwritten
20 notes?
21 A. Handwritten notes, yes.
22 Q. When did you make these handwritten notes?
23 A. Right after I talked to the informant or
24 during.
25 Q. I'm sorry?
791
1 A. While I'm talking to the informant or right
2 afterwards.
3 Q. And how many informants are covered by these
4 notes? Or is this notes going all the way back, or
5 what is it?
6 A. Notes going all the way back, yes, sir.
7 Q. So these are all of your notes regarding
8 1001?
9 A. Regarding everything.
10 Q. All of your notes regarding -- what do you
11 mean by "everything"?
12 A. Investigations of various Locals including
13 1001.
14 Q. I take it we're talking about a volume of
15 materials?
16 A. Yes, sir.
17 Q. How much?
18 A. Quite a bit. I'm not -- I couldn't guess.
19 THE INDEPENDENT HEARING OFFICER: Something
20 as big as this volume here which is about three inches
21 thick?
22 THE WITNESS: Bigger than that, sir.
23 THE INDEPENDENT HEARING OFFICER: Six inches
24 thick.
25 THE WITNESS: Yeah.
792
1 BY MR. LYDON:
2 Q. So you have a six inch volume of notes.
3 THE INDEPENDENT HEARING OFFICER:
4 Handwritten.
5 BY MR. LYDON:
6 Q. Handwritten notes.
7 A. Yes, sir.
8 Q. And you maintain them what? Chronologically?
9 Or how do you organize them?
10 A. Chronologically, yes, sir.
11 Q. And which ones are you going to go back and
12 look at now?
13 A. Specifically what you asked.
14 Q. Yeah. And I'm asking what is it -- what is
15 in your notes that you're going to go back and check
16 on?
17 A. As I recall, which one said that Chianelli
18 was a bookmaker; is that correct?
19 MR. THOMAS: The transcript will obviously
20 have it, as I recollect it, whether it was 2 or 5 that
21 identified him in that matter.
22 THE WITNESS: That's correct.
23 BY MR. LYDON:
24 Q. And likewise I think you had the same
25 information regarding Capasso, wasn't it?
793
1 A. Yes, sir.
2 Q. So you were going to check your notes
3 regarding both Capasso and Chianelli apparently, right?
4 A. Yes, sir.
5 Q. So this is something that was recent, right?
6 A. Fairly recent, yes, sir. I don't recall
7 exactly when.
8 THE INDEPENDENT HEARING OFFICER: If I
9 remember, you said one of it was an old report, and I
10 asked him if it was an old 92 report, those old things
11 that used to pass them out.
12 MR. LYDON: It's actually something else
13 we're talking about.
14 BY MR. LYDON:
15 Q. The association with Fratto and Andriacci
16 with respect to Capasso, and the association with
17 Fratto regarding Chianelli, right?
18 A. Yes, sir.
19 Q. It was specifically with one of the
20 informants.
21 A. Yes, sir.
22 Q. Which one was it? You talked to him
23 recently, right, since the last --
24 A. I talk with them all the time, sir.
25 Q. All of them?
794
1 A. Usually weekly, sometimes monthly. Usually
2 weekly.
3 Q. Not all of them -- all of them?
4 A. Yes, sir.
5 Q. Granata?
6 A. Yes, sir. Not as often with him. On the
7 telephone usually.
8 Q. Granata's been gone from the scene for more
9 than ten years, right?
10 A. Yes.
11 Q. What could he tell you?
12 A. Things that happened ten years before.
13 Q. And how many pages of notes are you going to
14 have regarding these guys to look at regarding number
15 2?
16 A. Well I'll look in all of number 2 notes.
17 I'll find it.
18 Q. And is it going to tell you when?
19 A. It will tell me when he said it.
20 Q. And it's going to tell you what specifically
21 he said?
22 A. Yes, sir.
23 Q. You write down word for word what they say?
24 A. No, sir, not word for word. Sometimes I'll
25 put quotes when they make certain statements.
795
1 Q. Are you able to produce a copy of the note
2 for Mr. Vaira to look at?
3 A. I understand that that's not required, no,
4 sir.
5 MR. THOMAS: We would object to that
6 obviously, Mr. Vaira. I don't know whether that was
7 asked or not, but we would object.
8 THE INDEPENDENT HEARING OFFICER: You want a
9 ruling on that?
10 MR. LYDON: Fine.
11 MR. THOMAS: If I may be heard.
12 The specific request -- let me rephrase that.
13 The request was made specifically to refresh
14 his recollection. And Mr. Lydon knows completely well
15 how refreshing a recollection is supposed to work. You
16 look at a document and refresh your recollection and
17 you say, "I've looked at this document. Now my
18 recollection is refreshed. I'm prepared to testify."
19 This is not any kind of a discovery tool or a
20 device to see if we can get additional information to
21 cross examination Mr. O'Rourke with. He can refresh
22 his recollection, that's what he's been requested to
23 do, and there's nothing that he needs to do other than
24 look at the document and say it either refreshes his
25 recollection or it doesn't.
796
1 THE INDEPENDENT HEARING OFFICER: What's your
2 request, Mr. Lydon?
3 MR. LYDON: I was going to ask you to take a
4 look at the most recent notes that contain additional
5 information that hadn't been testified to at the time
6 of his direct examination a couple weeks ago.
7 THE INDEPENDENT HEARING OFFICER: And what
8 would occur if I did?
9 MR. LYDON: I'm asking you to examine them
10 and to determine that they comport with what the
11 testimony is.
12 MR. THOMAS: And -- well, that is something
13 very different from what he requested the first time
14 which was that he refresh his recollection.
15 THE INDEPENDENT HEARING OFFICER: I
16 understand that. But I'm sitting here waiting for
17 this. As this is evolving, I'm sitting here waiting
18 for somebody to make this request. I knew it was
19 coming.
20 MR. THOMAS: But what, Mr. Vaira, is he now
21 doing is asking you to weigh in to see in an in camera
22 process as to whether there's anything of impeachment
23 value that Mr. Lydon would really like to have his
24 hands on. That's a very different request and also
25 totally improper because there's been no showing here
797
1 that he's been untruthful in any way. He has shown
2 that there is more in the testimony that is in the
3 charges, and that's not unusual in any way. But that
4 doesn't mean that the witness can't simply look at the
5 documents and say, "My recollection has been
6 refreshed."
7 THE INDEPENDENT HEARING OFFICER: There's
8 been a ruling of -- I have ruled in the past, based
9 upon an agreement between the Department of Justice and
10 this Union, that the notes -- the prior notes of the
11 agents are not to be treated as -- and not be turned
12 over, and that's for sure. But it never reached a
13 point, the issue of showing something to me in camera
14 to see for whatever purpose. And my question is: What
15 am I looking for? That there is no reference? Or the
16 reference isn't exactly as he says? And I'm trying to
17 figure out where I am and what kind of slippery slope
18 this might be.
19 MR. THOMAS: That's exactly my point. The
20 genesis of this was an answer the witness gave, "I'm
21 not sure whether it was 2 or 5." And he said, "Would
22 that be in your notes?" And he said, "It probably
23 would be." "If you saw your notes, would that refresh
24 your recollection?" "Yes, it would." Well the remedy
25 for that is absolutely clear. You look at the notes,
798
1 and it either refreshes or it doesn't refresh and it
2 doesn't go any further.
3 THE INDEPENDENT HEARING OFFICER: And Mr.
4 Lydon is saying that he wants to go one step further
5 and saying, "Here it is, Mr. Vaira, for you in camera
6 to look at."
7 My question is: What do I do once I look at
8 it? What do I do? Do I come back and say, "It's
9 confirmed that he spoke to him," or what?
10 MR. THOMAS: The rules on refreshing
11 recollection are as clear as can be. It could be the
12 phone book. There's nothing for the Hearing Officer to
13 do.
14 THE INDEPENDENT HEARING OFFICER: I realize
15 that, but I think he's somewhat changed his request.
16 Refreshing his recollection, obviously he can refresh
17 it by looking at the wall, whatever. I'll just think
18 about this until the end of this. I'm not too sure
19 what the --
20 MR. LYDON: We can revisit it later.
21 THE INDEPENDENT HEARING OFFICER: We'll
22 revisit it. I don't want to put myself in a -- if I
23 looked at it and says, "Yes, it does exist there," I
24 don't want to get myself in the position of giving any
25 more credibility, or whatever, by sitting here saying
799
1 what it says. Let's think about that and we'll revisit
2 that at the end of the day. Go ahead.
3 MR. LYDON: I don't have any other questions
4 for Mr. O'Rourke.
5 THE INDEPENDENT HEARING OFFICER: Okay.
6 REDIRECT EXAMINATION
7 BY
8 MR. THOMAS:
9 Q. Mr. O'Rourke, Mr. Lydon asked you a number of
10 questions about surveillances and whether you've done
11 and whether you've been aware of surveillances on
12 different individuals. Do you recall that line of
13 questioning?
14 A. Yes, sir.
15 Q. As an inspector for the -- as an officer in
16 the Inspector General's Office, do you have authority
17 to do surveillances of members of LIUNA?
18 A. No, sir. Ordinarily we do not.
19 Q. All right. So if Mr. Lydon asks you, you
20 know, "Gee, how come you don't have surveillances," one
21 answer at least is that you don't have the authority
22 from Mr. Gow to do that.
23 A. Yes, sir, that's correct.
24 Q. There was another line of questioning
25 concerning whether you were aware of law enforcement
800
1 surveillances on different people. When Bruno Caruso
2 was Business Manager of Local 1001, to your knowledge
3 were there any law enforcement surveillances of Mr.
4 Caruso?
5 A. Yes, sir.
6 Q. Could you give us the details of that please.
7 A. Yes, sir. The FBI Organized Crime Task Force
8 conducted a surveillance at Palermo's Restaurant on
9 95th Street in Oak lawn to cover an alleged meeting
10 between Union officials and members of organized crime.
11 And during the surveillance they observed Bruno Caruso,
12 Frank Caruso, James DiForti, and Leo Caruso meet with
13 John Monteleone at that time, who was the boss, the
14 underboss of the Chicago LCN.
15 Q. And Mr. Caruso held what position at Local
16 1001 at the time?
17 A. As I recall he was the Business Manager.
18 Q. What year was that if you recall?
19 A. Approximately 1994 I believe.
20 Q. There was testimony concerning Dappers
21 Restaurant, an observation that someone had been at
22 Dappers Restaurant. Who was that that you were
23 referring to in that testimony?
24 A. Mr. Chianelli.
25 Q. What's the significance of Dappers Restaurant
801
1 based on your training and experience in law
2 enforcement? Is there any significance that attaches
3 to Dappers Restaurant?
4 A. It's known to law enforcement as a meeting
5 place for bookmakers and mobsters, both Dappers.
6 There's one on Cumberland Avenue about 5400 north, and
7 a second one at Cumberland and Belmont Avenues. It's
8 also, of course, frequented by regular people, honest
9 people, and police officers and a whole variety of
10 people.
11 Q. Mr. Lydon asked you about the transfer from
12 Bruno Caruso to Nick Gironda after Mr. Caruso was
13 removed. Do you recall that?
14 A. Yes, sir.
15 Q. And he went to great lengths to show you a
16 document indicating that Nate Gibson actually made the
17 motion and that your testimony was that you had no
18 information that Mr. Gibson was connected in any way
19 with organized crime. Do you recall that?
20 A. Yes, sir.
21 Q. What significance, if any, do you attach to
22 the fact that a non-outfit person, a non-connected
23 person actually made that motion. Is there any
24 significance to that?
25 A. None as far as I know, sir.
802
1 Q. And the fact that a non-outfit or a
2 non-connected person made that motion, would that
3 necessarily mean that the person -- the other people
4 that we're talking about are therefore not connected?
5 A. No, sir.
6 Q. There were quite a few questions concerning
7 the -- what you heard from the officers who did the
8 surveillance of the service of the Trusteeship papers
9 on Bruno Caruso specifically about Barbara Trucking --
10 a stop at Barbara Trucking. I wanted to ask you about
11 that. First of all let's establish, were you doing
12 anything other than serving papers that day?
13 A. No, sir.
14 A. So you were not involved in the surveillance
15 itself.
16 A. That's correct.
17 Q. So whatever it is that you learned, you
18 learned through conversations with other officers who
19 were involved?
20 A. Yes, sir.
21 Q. In your experience is it unusual or out of
22 the ordinary for there to be a surveillance report that
23 doesn't list every single name of the officers
24 involved?
25 A. I really can't answer that. I believe the
803
1 officers listed were Chicago Police Intelligence
2 Division officers, but the surveillance was jointly
3 conducted with the Cook County Sheriff's Police as
4 well.
5 Q. If Bohling's name is not listed on the
6 surveillance report, would you read anything into that?
7 A. No, sir.
8 Q. And how about the reference that Mr. Bohling
9 made to you that they stopped at Barbara Trucking or
10 that they lost them in that area? Would there be any
11 reason why that wouldn't be in the surveillance report?
12 A. It's been my experience that often times if
13 an individual stops someplace and it's not significant
14 to the officers, then they don't mention that, specific
15 addresses and so on.
16 Q. If you had been the surveillance officer and
17 you had seen them stop at Barbara Trucking, would you
18 have included it in the surveillance report?
19 A. Yes, I would have. Yes, sir.
20 Q. And to your mind is there anything unusual
21 that the officers may not have made that connection in
22 their own minds.
23 A. No, sir. I was advised that that was not
24 included in the report, but it was mentioned to me.
25 Q. Verbally from Mr. Bohling?
804
1 A. Yes, sir.
2 Q. Mr. Lydon asked you, and indeed there was
3 even some reaction in the room to this question. He
4 said, "Did you check their arrest records." Are you
5 allowed to check arrest records as part of your duties
6 with the Inspector General's Office?
7 A. No, sir. We're not law enforcement officers
8 anymore, so we don't have access to criminal records.
9 Q. What do you have access to? Can you check
10 for convictions?
11 A. We can check for convictions through the
12 computers in the state, local and federal courts.
13 Q. Okay. So when Mr. Lydon asked you, "Did you
14 bother to check their arrest records," you're saying
15 that that's not something that you have the ability to
16 do under your current job.
17 A. That's correct, yes, sir.
18 Q. The first portion of Mr. Lydon's cross
19 examination had to do with the fact that the complaint
20 indicates that 13 of the 33 pension names are organized
21 crime associates. Do you recall that line of
22 testimony?
23 A. Yes, sir.
24 Q. We went on for some time with that -- with
25 that line of testimony. And that he then pointed out
805
1 that your live testimony was that there were -- in your
2 view 22 of the names were connected to the Chicago
3 Outfit.
4 Let me ask you this: Is it at all unusual
5 for the GEB Attorney's Office in making charging
6 decisions or charging language to use less of the
7 information than you actually provide to them?
8 A. Yes, sir, that's correct.
9 Q. That it's unusual or not unusual?
10 A. That's not unusual.
11 Q. So is there any particular significance to
12 the fact that the charging documents that Mr. Luskin
13 put together say 13 of 33 and your testimony is that
14 it's 22 of 33.
15 A. No, sir.
16 Q. Is there anything further you wish to
17 elaborate on how that came about?
18 A. No, sir.
19 Q. Mr. O'Rourke, is it your experience in law
20 enforcement and since you've been retired from law
21 enforcement, that everyone in -- who is involved in
22 organized crime has either an arrest record or a
23 conviction record?
24 A. No, sir.
25 Q. Is it your experience that quite a few of
806
1 them do not?
2 A. Yes, sir. I think probably most of them do
3 not.
4 Q. So the fact that -- what significance, if
5 any, do you attach to the fact that some of the names
6 that we've gone over here are people who don't have
7 either arrest records or conviction records. Is there
8 any particular salience to that point?
9 A. No, sir.
10 MR. THOMAS: Nothing further, Mr. Vaira.
11 THE INDEPENDENT HEARING OFFICER: Mr. Lydon?
12 RECROSS EXAMINATION
13 BY
14 MR. LYDON:
15 Q. You testified about the awareness of arrest
16 records and surveillances, and you testified in cross
17 examination earlier today about not being aware of any
18 concerning these existing current officers of Local
19 1001. You included within your testimony, did you not,
20 the experiences and things you learned during the
21 course of your 32 years as a law enforcement officer,
22 correct?
23 A. Yes, sir.
24 Q. So you weren't restricting this just to the
25 period of time that you've been an investigator for the
807
1 Laborers' International, right?
2 A. We conducted no surveillances ourselves.
3 Q. I understand.
4 A. And I was not aware of any particular
5 specific surveillances conducted where their names came
6 up.
7 Q. But you asked, right?
8 A. Pardon me?
9 Q. Did you ask?
10 A. Did I ask?
11 Q. Yes.
12 A. No.
13 Q. But again, when you do know -- when you are
14 asked about surveillances and the surveillances you've
15 been involved in, we're talking about all of your years
16 with law enforcement, right?
17 A. Yes, sir.
18 Q. And I'm not sure you got a chance to finish
19 this answer. When you were talking about Dappers
20 Restaurant as being known as a meeting place for
21 bookmakers, you did add, did you not, that it's also
22 frequented by ordinary folks I think was the word?
23 A. Yes, sir.
24 Q. Including police officers.
25 A. Yes.
808
1 Q. So it's a regular restaurant.
2 A. That it is, yes, sir.
3 Q. Nothing exclusive about it.
4 A. No, sir.
5 MR. LYDON: I don't have any other
6 questions.
7 MR. THOMAS: Can I on that last question?
8 THE INDEPENDENT HEARING OFFICER: Okay. You
9 get one question.
10 FURTHER REDIRECT EXAMINATION
11 BY
12 MR. THOMAS:
13 Q. The places that you know from your training
14 in law enforcement and your experience in law
15 enforcement you know to be organized crime hangouts,
16 are they all ordinary restaurants?
17 A. Yes, sir, they are.
18 MR. THOMAS: Nothing further.
19 THE INDEPENDENT HEARING OFFICER: There was a
20 substantial amount of testimony from New York that
21 there's certain places that only the boys can go. And
22 if you go there, you're one of the boys. That's not
23 one of these. This is a public place.
24 THE WITNESS: It's a public restaurant, yes,
25 sir.
809
1 MR. LYDON: That's all I was trying to get
2 across.
3 THE INDEPENDENT HEARING OFFICER: I got that
4 point about fifteen minutes ago. All right, fellows.
5 Thank you, Mr. O'Rourke.
6 THE WITNESS: Thank you, sir.
7 (Witness excused.)
8 MR. MENDENHALL: At this time, Mr. Vaira, we
9 would like to call John Rea.
10 THE INDEPENDENT HEARING OFFICER: John Rea.
11 Mr. Rea, would you be sworn in and give the
12 young lady your full spelling of your name.
13 THE WITNESS: Yes, sir.
14 (Witness duly sworn.)
15 THE INDEPENDENT HEARING OFFICER: Ladies and
16 gentlemen, I know Mr. Rea. And a lot of years ago I
17 was in private practice and he was associated with
18 another fine investigator named James McCarthy. He did
19 some work for me as an investigator, about 1992, out in
20 Pittsburgh. So I'll let you know that I know him and
21 he once worked for -- that that was his business and he
22 had many other clients. All right.
23 JOHN D. REA,
24 called as a witness herein, having first been duly
25 sworn, was examined and testified as follows:
810
1 DIRECT EXAMINATION
2 BY
3 MR. MENDENHALL:
4 Q. Good afternoon, Mr. Rea.
5 A. Good afternoon.
6 Q. Please state your full name.
7 A. Yes. John D. Rea, R-e-a.
8 Q. How are you currently employed, Mr. Rea?
9 A. I'm a private investigator.
10 Q. Approximately how long have you worked as a
11 private investigator?
12 A. Since 1985, approximately 18 years.
13 Q. Can you tell us your educational
14 background.
15 A. Yes. I graduated from St. Rita High School
16 here in Chicago and then got an undergraduate degree
17 from the University of Illinois at Circle in Criminal
18 Justice.
19 Q. And can you just briefly walk us through your
20 employment history going back from UIC to the present
21 and just explain for us a little bit about the nature
22 of each particular job.
23 A. Certainly. In 1977 when I was in college I
24 began working at the U.S. Attorney's Office as a clerk
25 doing basically administrative type work. Then was
811
1 supervisor of the administrative staff. And then I
2 became a legal assistant there. I was working with the
3 prosecutors on various cases that were going to trial.
4 Subsequent to that in 1983 I joined the
5 Secret Service. I was a Special Agent for a year, and
6 then in 1984 or '85, I'm not sure, I returned to the
7 U.S. Attorney's Office, but I was actually appointed as
8 an inspector with the Illinois State Police and I
9 worked out of the U.S. Attorney's Office, for the most
10 part, exclusively on the Greylord project, the judicial
11 corruption case. Since that time I've been doing
12 private investigative work.
13 Q. Can you just briefly walk us through your
14 background in the private investigative field.
15 A. Yes. When I left the government, as Mr.
16 Vaira alluded, I was working with a fellow named James
17 McCarthy, and I worked for his company, Attorney's
18 Information Services. About 1989 I obtained my own
19 license as a private investigator, so from that point
20 on I've had my own business. And for the most part I
21 work for law firms and corporations conducting internal
22 investigations for sole practitioners and doing
23 investigation on -- usually in criminal defense or
24 commercial litigation, products liability defense,
25 pretty much the entire gamut.
812
1 Q. You mentioned you were a U.S. Secret Service
2 Agent. What did you do in that regard?
3 A. I was -- our Charter mandates that we protect
4 the president, current president, any former president,
5 any head of -- Foreign Head of State as well as
6 investigate violations of counterfeiting laws, threats
7 against the president, things of that nature.
8 Q. And when you say "the president," you mean
9 the president and former presidents of the United
10 States?
11 A. Yes, sir.
12 Q. Mr. Rea, now I would like to turn your
13 attention to the 1999 time frame, okay?
14 A. Yes, sir.
15 Q. In early 1999 were your services retained by
16 Local 1001?
17 A. Yes, they were.
18 Q. Who retained your services at Local 1001?
19 A. The Board or Council. I'm not certain how
20 they're referred to.
21 Q. Does the Local Executive Board sound correct
22 to you?
23 A. Yes, that sounds correct.
24 Q. What did the Local 1001's Executive Board
25 hire you to do?
813
1 A. They wanted me to investigate some
2 allegations that were made against Bruno Caruso who my
3 understanding was the head of the Local at that time.
4 Q. And when you say asked you to investigate,
5 they wanted you to determine basically whether or not
6 there were any substance or validity to the
7 allegations. Would that be correct?
8 A. That's correct.
9 Q. And once the decision was made by the
10 Executive Board to retain you, were you given any
11 direction from the Board as to how you should proceed
12 with your investigation?
13 A. No, not really, sir.
14 Q. You were free to proceed any way you deemed
15 fit; is that correct?
16 A. Yes, sir.
17 Q. Okay. And did anyone from the Executive
18 Board ever try to prevent you from pursuing certain
19 lines of your investigation.
20 A. No, absolutely not.
21 Q. Did anyone on the Executive Board ever tell
22 you not to interview certain people.
23 A. Absolutely not.
24 Q. Did anyone on the Executive Board ever try to
25 impede your investigation in any way?
814
1 A. No. No, sir.
2 Q. So in short, you had totally free reign to
3 proceed however you deemed appropriate.
4 A. Yes, sir.
5 Q. And did the Executive Board cooperate with
6 you fully during this investigation.
7 A. Yes, sir, they did.
8 Q. Turning now to the specifics of the
9 investigation of Mr. Caruso. Can you describe for Mr.
10 Vaira the investigation you undertook with regard to
11 Mr. Caruso.
12 A. Well I was given the, and I'm not certain
13 it's the right, charges or allegations, the document
14 that enumerated certain charges against Mr. Caruso, and
15 was asked to see if I could confirm or refute what was
16 presented in that document.
17 Q. And did you make any requests for information
18 from certain agencies?
19 A. I did contact numerous agencies, whether it
20 was telephone or letter, to see if we could get
21 information on these people. Most of the individuals
22 -- well a number of them were not named, and then those
23 that were I think were either deceased or were in the
24 Witness Protection Program, so obviously they weren't
25 accessible to me.
815
1 Q. When you say "not named", you mean
2 confidential informants?
3 A. Yes, as I recall.
4 Q. If I'm correct, you contacted the FBI for
5 information, correct?
6 A. We sent them a letter, yes, sir.
7 Q. And did you receive any documents from the
8 FBI?
9 A. I did not, sir.
10 Q. And you conducted different interviews, am I
11 correct?
12 A. Yes.
13 Q. Can you just walk us through briefly some of
14 the interviews you conducted.
15 A. Well as far as interviewing -- I interviewed
16 people who worked with Mr. Caruso, some City Council
17 members, some business -- people in business, maybe
18 even a priest as I recall. As far as the individuals
19 from the allegations, I really wasn't able to speak to
20 any of them, so my investigation for the most part
21 consisted of just digging -- not digging up, wrong
22 word, but developing information regarding him because
23 most of them had some history, whether it was criminal
24 or in the court system, and so I would gather that
25 information and review it and try to maybe make a
816
1 judgment as to whether they're being credible or not.
2 Q. And when you say you weren't able, that was
3 -- strike that.
4 I believe one of your requests you tried to
5 interview one of the informants who was in prison in
6 Wyoming, am I correct?
7 A. Yes. I think it was the Wyoming Department
8 of Corrections. I think I asked, and I don't even know
9 if they responded to me to be honest, sir.
10 Q. And approximately how long did you spend on
11 this investigation?
12 A. I think it was a better part of a year, from
13 January of '99 through the end of '99, perhaps into
14 2000. I'm not certain.
15 Q. And after you concluded your investigation,
16 what did you do next?
17 A. I had a meeting with the Board and pretty
18 much told them that I -- I presented them the -- a lot
19 of the documentation that I had come up with regarding
20 this individual, and I told them that I really couldn't
21 make a -- come to a conclusion one way or the other. I
22 just felt that I didn't have the information to say
23 that these people were being truthful or that the
24 information was accurate. So I pretty much said that I
25 couldn't go beyond that.
817
1 Q. And the reason you couldn't reach this
2 conclusion was because of your inability to get this --
3 MR. THOMAS: Objection.
4 THE INDEPENDENT HEARING OFFICER: Let him
5 finish. Let him finish it.
6 MR. THOMAS: Hold the answer.
7 MR. MENDENHALL: I would ask for the courtesy
8 to be allowed to finish my question before Mr. Thomas
9 objects and interrupts.
10 MR. THOMAS: It was clear on the face of the
11 question that it had to be leading because he was
12 completing the "because" part of the question.
13 MR. MENDENHALL: I would still like to have
14 professional courtesy, and I will extend the same to
15 him.
16 THE INDEPENDENT HEARING OFFICER: Gentlemen,
17 I can recognize a speech when I see one. Go ahead.
18 Ask your question.
19 BY MR. MENDENHALL:
20 Q. And Mr. Rea, what were the reasons you were
21 unable to report to the Executive Board with a
22 definitive conclusion as to Bruno Caruso.
23 A. Again, because the witnesses were unavailable
24 through one form or another, not knowing their
25 identity, or they were protected witnesses or they were
818
1 probably deceased.
2 MR. MENDENHALL: Thank you. I have nothing
3 further, Mr. Rea.
4 CROSS EXAMINATION
5 BY
6 MR. THOMAS:
7 Q. Good afternoon, Mr. Rea. How are you?
8 A. I am fine, sir. How are you?
9 Q. Just so I understand. Are you testifying
10 here today in any way concerning the Local 1001
11 Trusteeship?
12 A. Not to my knowledge. I don't know.
13 Q. So you've been called by the Local to talk
14 about what you did in preparation for the Bruno Caruso
15 hearing.
16 A. Yes, sir.
17 Q. But you have nothing to say about the
18 allegations of the pending complaint.
19 A. I do not.
20 MR. THOMAS: No questions then.
21 MR. MENDENHALL: You may be excused, Mr. Rea.
22 THE INDEPENDENT HEARING OFFICER: Thank you,
23 Mr. Rea.
24 THE WITNESS: Thank you, sir.
25 (Witness excused.)
819
1 MR. MENDENHALL: Mr. Vaira -- never mind.
2 Never mind.
3 THE INDEPENDENT HEARING OFFICER: You may
4 tell me the relevance of the testimony.
5 MR. MENDENHALL: I want to make sure he
6 leaves before Mr. Thomas tries to call him back. Mr.
7 O'Rourke sat on that -- Mr. O'Rourke sat on that --
8 never mind.
9 THE INDEPENDENT HEARING OFFICER: I think I
10 get the relevance of it. You can give it to me later.
11 MR. MENDENHALL: Okay.
12 THE INDEPENDENT HEARING OFFICER: Every now
13 and then occasions occur, and there are famous stories
14 of lawyers summing up the jury and saying, "Now when
15 Mr. Jones testified when I brought him here, I bet you
16 wondered why I called him," and the jury went like
17 this, you know. And he says, "Now I'm going to tell
18 you why." I pretty much know what you're talking
19 about. Go ahead.
20 MR. THOMAS: But his answer stands that he
21 has nothing to say about this complaint.
22 THE INDEPENDENT HEARING OFFICER: His answer
23 stands. I mean that's it. His answer stands.
24 MR. THOMAS: I'm trying this case, not that
25 one.
820
1 THE INDEPENDENT HEARING OFFICER: I hope so.
2 All right. All right. Where are we going now?
3 MR. MENDENHALL: At this time we would like
4 to call Kitty Kurth.
5 THE INDEPENDENT HEARING OFFICER: The young
6 lady will swear you in here.
7 (Witness duly sworn.)
8 KITTY KURTH,
9 called as a witness herein, having first been duly
10 sworn, was examined and testified as follows:
11 EXAMINATION
12 BY
13 MR. MENDENHALL:
14 Q. Good afternoon, Miss Kurth. Can you please
15 state your full and spell your last name for the court
16 reporter?
17 A. Yes. My given name is Kathryn Kurth, but
18 professionally I use Kitty Kurth. And my last name is
19 spelled K-u-r-t-h.
20 Q. And how are you currently employed, Miss
21 Kurth?
22 A. I am the president of Kurth Lampe Political
23 Consulting and Public Relations Firm here in Chicago.
24 Q. When was Kurth Lampe founded?
25 A. In 1996.
821
1 Q. And what kind of work does your company do?
2 A. We do a lot of campaign and election
3 training. We work with candidates. We work with a lot
4 of non-profits and Labor Unions and environmental
5 groups, women's groups.
6 Q. And prior to you founding -- being one of the
7 co-founders of Kurt Lampe, how were you employed?
8 A. In 1996 I worked for the LIUNA election
9 office for Professor Steven Goldberg.
10 THE INDEPENDENT HEARING OFFICER: What year?
11 THE WITNESS: '96.
12 BY MR. MENDENHALL:
13 Q. And at some point in time did you own any
14 other --
15 A. Yes. Since 1983 I've had basically the same
16 sort of business. I changed the name in '96 when my
17 husband joined the business.
18 Q. And what is your educational background, Miss
19 Kurth?
20 A. I went to the University of Virginia in
21 Charlottesville, Virginia.
22 Q. Did you obtain a degree?
23 A. Yes, in History.
24 Q. Would that be a Bachelor's?
25 A. Bachelor's, yes.
822
1 Q. Since owning Kurt Lampe and its predecessors,
2 have you had the opportunity to work on Labor Union and
3 election matters?
4 A. Yes.
5 Q. We're going to take them individually. Let's
6 start first with election matters. Can you briefly
7 describe for us your election experience.
8 A. In -- since my -- my entire professional
9 career I've worked on campaigns and elections first as
10 a poll watcher, then consultant. I've done election
11 and campaign training for groups ranging from the
12 Independent Voters of Illinois, the Democratic National
13 Committee, Women's Campaign Fund, National Women's'
14 Political Caucus, state parties of a couple of states,
15 and the Center for Campaign Leadership hired me to
16 teach ethical practices in campaigns.
17 I've been sent by the State Department to
18 both India and Uganda to talk about campaign and
19 election procedures and free and fair and democratic
20 and transparent elections.
21 Q. Have you had the opportunity to work on any
22 presidential campaigns?
23 A. Yes. I first worked on the Dukakis campaign
24 in 1988. Then in 1992 on the Songas and Clinton/Gore
25 campaigns, and in '96 and 2000 for Clinton and for
823
1 Gore, and Ron Brown's campaign for Democratic National
2 Committee Chair.
3 Q. What positions were you serving in in those
4 capacities? Can you just give us a brief synopsis.
5 A. Sure. I've worked on everything from press
6 secretary to fund raiser to field organizer to campaign
7 manager, general consultant, media consultant.
8 Q. What I would like to do now, ma'am, is direct
9 your attention to your experience with Labor Unions in
10 particular. Okay?
11 A. Um-hum.
12 Q. What Labor Unions have you worked with?
13 A. I've worked for LIUNA in 1996. As I said, I
14 worked with the LIUNA election office for Professor
15 Goldberg. I was Executive Director hired by Professor
16 Goldberg but with the approval of the GEB Attorney and
17 the Department of Justice.
18 Q. Okay. Any other Labor Unions you have worked
19 with?
20 A. Yes. I've worked with the Steel Workers, the
21 Chicago Federation of Labor, SAGAFTRA.
22 Q. And what is SAGAFTRA?
23 A. Recently we worked with -- it's the Screen
24 Actors Guild and the American Federation of Television
25 Radio Artists. And recently we worked with them here
824
1 in Chicago when Channel 5, WMAQ, bought Channel 44, the
2 Telemundo station, which is the Hispanic station. And
3 despite the fact that they were combining the news
4 rooms, they did not want the Hispanic employees to be
5 represented by the Union. And we worked with the
6 Hispanic employees on organizing for their right to
7 have an election and to finally get an NLRB, National
8 Labor Relations Board, election so that they could
9 indeed organize.
10 Q. I would like to direct your attention now to
11 LIUNA specifically. And I believe you stated you were
12 first -- your first work you performed on behalf of
13 LIUNA was in 1996 as the Executive Director; I'm I
14 correct?
15 A. Yes, the LIUNA election office.
16 Q. And you were hired, I believe you said, by
17 Professor Goldberg?
18 A. Yes.
19 Q. And what his position?
20 A. He was the Election Officer.
21 Q. And did anyone have to approve Professor
22 Goldberg's decision to hire you?
23 A. It was my understanding that both the GEB
24 Attorney and the Department of Justice had to approve
25 my hiring.
825
1 Q. And what were your primary responsibilities
2 as the Executive Director of the LIUNA election office?
3 A. I organized and sort of oversaw all of the
4 election office activities. We had executive directors
5 -- I'm sorry. Election Officers regionally and adjunct
6 Election Officers. I worked with Professor Goldberg to
7 write the rules and the Local Election Office handbook.
8 We conducted elections in every Local Union for a
9 delegate to the International convention and then
10 worked at the convention on the International -- on the
11 election of officers at the International level.
12 Q. And were you -- and were part of your duties
13 to ensure that the election process was free, fair, and
14 transparent?
15 A. Yes, that was our duty.
16 Q. And also to make sure that the process was
17 open?
18 A. Yes.
19 Q. And that the membership was able to vote
20 freely?
21 A. Yes. To vote freely and also to understand
22 the process. We conducted trainings across the country
23 for Local Unions so that they would know how to conduct
24 a free and fair election. We also had an 800 number so
25 that any Union member who had questions about the
826
1 process would have a place to call.
2 Q. And did you have occasion to prepare any
3 rules relating to the election.
4 A. I worked with Professor Goldberg on the rules
5 for the election and for the convention.
6 Q. Have you had occasion to work for LIUNA since
7 1996, Miss Kurth?
8 A. Yes. In 2001 I served as a consultant to the
9 Election Office.
10 Q. And what were your duties and
11 responsibilities in that regard?
12 A. I worked with them to help set up the
13 processes and go through how the Election Office was
14 going to be managed and used, and then consulted with
15 them from time to time throughout the election on
16 questions that arose about elections, about how we had
17 done things in the past, and then worked with them to
18 -- on the convention and the -- we thought -- the
19 possibility that there would be an election at the
20 convention.
21 Q. And directing your attention now to Local
22 1001. Have you had occasion to work for Local 1001,
23 Miss Kurth?
24 A. Yes.
25 Q. And when was your company Kurt Lampe retained
827
1 by Local 1001?
2 A. In the spring of 2003. I believe it was
3 April.
4 Q. And what was your company retained to do,
5 ma'am?
6 A. To work with them to oversee their election,
7 the same way that the election office did for the
8 International, to make sure it was a free and fair
9 process.
10 Q. And prior to being retained by Local 1001,
11 did your firm make a presentation to Local 1001's
12 Executive Board?
13 A. Yes.
14 Q. And if you could, ma'am, if you could take a
15 look at the group of exhibits marked Local 1001
16 Exhibits. If you can take a look at Exhibit 16 and let
17 me know when you got there.
18 A. I've got it.
19 Q. Can you please turn to page bate stamped L87?
20 A. Yes.
21 Q. Do you have that, ma'am?
22 A. Yes.
23 Q. And is this a true and correct copy of your
24 proposal?
25 A. Yes.
828
1 Q. And can you just walk us through very briefly
2 the scope of the work you were proposing for the Board.
3 A. The scope of the work that we proposed was to
4 work with the Election Judges at the Local and conduct
5 the election in a free and fair and open process and to
6 ensure that everything that we did was within the
7 guidelines of the Local Union Constitution provisions
8 for the election and the handbooks that the judges had
9 been given at previous trainings.
10 Q. And was this proposal -- strike that. You
11 were subsequently hired by the Local, correct?
12 A. Yes.
13 Q. And if you would turn with me to Exhibit 20
14 and let me know when you have made it there.
15 A. I'm there.
16 Q. And is Exhibit 20 a true and correct copy of
17 the agreement between your company and Local 1001 for
18 your services?
19 A. Yes.
20 Q. What I would like to do now, Miss Kurth, is
21 turn specifically to your duties and responsibilities
22 regarding work you've done for the Local.
23 From your prior testimony it appears that
24 your primary duty was to ensure that the elections were
25 free, fair, and in a Democratic process I believe you
829
1 stated?
2 A. Correct.
3 Q. And who from your company was responsible for
4 fulfilling these obligations?
5 A. I was primarily responsible, but I also
6 engaged the services of Mary Eileen Sullivan who had
7 been -- who had worked in the LIUNA election office in
8 2001, Vasyl Markus, who is an election attorney that we
9 work with here in Chicago, and Kevin Lampe who works
10 for Kurt Lampe and served as an observer for the
11 election in 19 -- for the LIUNA election in 1996.
12 Q. So two thirds of your staff that assisted
13 with this -- with Local 1001's election had also
14 assisted with the International election.
15 A. Yes, either in '96 or 2001.
16 Q. And then a third individual was actually an
17 elections lawyer I believe you testified.
18 A. Yes.
19 Q. In preparing yourself to run Local 1001's
20 election, did you review any materials concerning Local
21 1001's prior elections?
22 A. Yes, we reviewed the minutes of previous
23 elections.
24 Q. And did you notice anything unusual about
25 those minutes.
830
1 A. No.
2 Q. Did you notice anything in the minutes that
3 led you to believe that the elections were not free,
4 fair, or transparent.
5 A. No.
6 Q. Did you notice anything within these minutes
7 that would lead you to believe that these elections
8 were somehow influenced by organized crime?
9 A. No.
10 Q. I would like to turn now, ma'am, to
11 specifically the work you did in preparing for the
12 nomination meeting. Can you please walk us through
13 that?
14 THE INDEPENDENT HEARING OFFICER: What year?
15 MR. MENDENHALL: This is still Local 1001
16 2003 election.
17 THE INDEPENDENT HEARING OFFICER: Go ahead.
18 BY MR. MENDENHALL:
19 Q. Go ahead, ma'am.
20 A. We first went through and read the Local
21 Union Constitution sections with respect to elections
22 and the Local Union handbook to get all the guidelines
23 and rules and timelines that we had to meet and then
24 prepared a timeline for the election. And we next met
25 with the Election Judges to go over the rules and the
831
1 timeline and then worked on -- do you want me to keep
2 going or --
3 Q. Continue. And when you're done I have a
4 couple of follow-up questions. But go ahead.
5 A. I believe the next step was we prepared the
6 nomination meeting notice and then we worked with the
7 Local Union to examine their membership list and labels
8 and make sure that every paid member -- that a label
9 was printed out for them so that the nomination meeting
10 notice could be mailed to them.
11 Q. If you would, Miss Kurth, can you turn with
12 me to Exhibit 21? And let me know when you're there.
13 A. I'm there.
14 Q. And is Exhibit 21 a true and correct copy of
15 your memo to the Local outlining the tasks you were to
16 perform that you just mentioned for us?
17 A. Yes, the timeline.
18 Q. You also testified that in order to get out
19 the notice, you worked with Local 1001 in terms of
20 retrieving records to get the list for the members; am
21 I correct?
22 A. Yes.
23 Q. And during that process did you have a chance
24 to become familiar with Local 1001's computer records.
25 A. Yes.
832
1 Q. And how so?
2 A. We visited the Local and were shown on
3 computer the way that the membership records were kept
4 and how the lists were going to be created, who -- what
5 members were on the lists.
6 Q. And what if any impressions did you get from
7 that?
8 A. Actually I was really surprised and impressed
9 because their membership was in much better shape than
10 most of the Local Union membership lists that I had
11 seen in the past.
12 Q. And did you find the information available
13 computer user friendly?
14 A. Very.
15 Q. Directing your attention now to the specific
16 nomination meeting on May 11th, 2003, okay?
17 A. Um-hum.
18 Q. Before the nomination meeting began, can you
19 explain to us some of the tasks your staff was doing?
20 A. We met with the Election Judges again that
21 morning to go over the rules of the election per the
22 handbook, and then I asked my staff to just sort of
23 hang around the parking lot and the entrance to the
24 meeting to make sure that everyone was being allowed
25 in, to see that there was no obstructing people going
833
1 in for balloting.
2 Q. And did they notice any obstruction?
3 A. No.
4 Q. Everybody who wanted to come in were -- was
5 free and did in fact come in, correct?
6 A. To the best of my knowledge.
7 Q. Once inside the meeting did you have an
8 opportunity to observe the atmosphere?
9 A. Yes.
10 Q. What can you tell us in that regard?
11 A. I was -- there was a good turnout. Members
12 seemed to be enthusiastic about being there and being
13 able to vote.
14 Q. What was your best approximation of the
15 number of members that attended that nomination
16 meeting.
17 A. I would say approximately 250. It was a full
18 room in the -- the first floor area and then there was
19 also a full balcony.
20 Q. And how did this meeting start?
21 A. I believe President Gibson called it to order
22 and went through the routine business of the meeting.
23 And then the first -- my first duties were to read
24 aloud the referendum relative to salaries of the
25 officers.
834
1 Q. And after this was done, what was the next
2 step you took.
3 A. Well the members voted on it, and then we --
4 I believe the next step was to read the eligibility
5 requirements for officers and the eligibility
6 requirements for nominators.
7 Q. And then what happened next?
8 A. And then we went through the nomination
9 process.
10 Q. And can you walk us through how the
11 nomination process occurred.
12 A. We went through, in the order provided by
13 LIUNA, of asking for nominations for each office. We
14 asked for nominations several times. I tried to look
15 around the room to make sure that anyone who had their
16 hand raised or looked like they wanted to make a
17 nomination was called on.
18 Q. And so everyone present at the meeting was
19 free to in fact nominate a candidate for a particular
20 office?
21 A. Yes.
22 Q. And it sounds as if you particularly scanned
23 the room just to ensure that.
24 MR. THOMAS: Object to the leading, Mr.
25 Vaira.
835
1 THE INDEPENDENT HEARING OFFICER: You may ask
2 it.
3 THE WITNESS: I tried to make sure, since it
4 was such a crowded room and since there were people in
5 the balconies, that I tried to look -- and since the
6 nominations were by voice rather than another process,
7 I tried to make sure that everyone who wanted to be
8 recognized was recognized.
9 BY MR. MENDENHALL:
10 Q. And during this entire process did you
11 observe any intimidation or restrictions during the
12 process.
13 A. No.
14 Q. So can you now walk us through what happened
15 at the next step.
16 A. We went through nominations for each office,
17 and then the people that were -- both the people that
18 were nominated and the people that were the nominators
19 came up to the front. We had a copy of the membership
20 database available on laptop computer so that their
21 eligibility to nominate and their eligibility to hold
22 office could be checked at the meeting.
23 Q. And after that was done what happens next?
24 A. We verified the eligibility. There were four
25 candidates that did not have their -- copies of their
836
1 birth certificate with them which is one of the
2 requirements for eligibility. So the Election Judges
3 conferred and the membership voted that the candidates
4 should be allowed to have a brief period to fax the
5 birth certificates into the Local, and then we went
6 over -- later that week we went over to the Local to
7 examine the birth certificates and make sure that --
8 with Election Judges to make sure that they met the
9 eligibility requirements.
10 Q. So these birth certificates were in fact
11 faxed to the Local.
12 A. To the Local.
13 Q. And after these birth certificates were
14 faxed, you were able to confirm and check the
15 information on them, correct?
16 A. Yes.
17 Q. Okay. And after the candidates' eligibility
18 was --
19 A. I'm sorry. Just for the record it could be
20 either a birth certificate or a passport according to
21 the Constitution.
22 Q. Thank you for clarifying that.
23 And after the candidates' eligibility was
24 confirmed, what happened next?
25 A. Then the -- per LIUNA rules the election is
837
1 to take place at the next scheduled membership meeting.
2 And in our case since the candidates that were
3 nominated were uncontested, then it was, what we call
4 it at the election office, an uncontested election. So
5 the nomination meeting became the election and then the
6 results were announced and officers were sworn in at
7 the next membership meeting.
8 Q. Miss Kurth, can you please take a look at
9 Exhibit 19 and let me know when you're there.
10 A. I'm there.
11 Q. And can you take as much time as you need and
12 just flip through Exhibit 19 and let me know when
13 you're done.
14 Miss Kurth, while you're reviewing that. My
15 question is going to be simply is that a true and
16 correct copy of a transcript of the meeting.
17 A. Yes.
18 Q. And Miss Kurth, during this entire meeting
19 did you observe any evidence of organized crime
20 influence over this nomination process.
21 A. No.
22 Q. Did anyone on your staff report to you any
23 evidence of alleged organized crime influence over the
24 process.
25 A. No.
838
1 Q. After this nomination meeting did any of the
2 observers prepare reports or letters with their
3 observations of the meeting?
4 A. Yes. I asked Vasyl Markus, our attorney, to
5 prepare a report and then I also prepared a report.
6 And -- I'm sorry. I neglected to mention that we had
7 -- in keeping with the practices of Local 1001, we had
8 a representative from the Illinois Department of Labor
9 attend the meeting and he also prepared a report.
10 Q. And was that gentleman's name -- would the
11 name of Wesley James refresh your recollection?
12 A. Yes, that's correct.
13 Q. And was that the gentleman from the Illinois
14 Department of --
15 A. It was.
16 Q. That was the gentleman?
17 A. Yes, it was.
18 Q. And if you would turn with me to Exhibit 24.
19 And can you please let me know whether that is the
20 letter you referenced that Mr. James prepared
21 concerning the election.
22 A. Yes.
23 Q. And could you now turn with me to Exhibit 25
24 and let me know whether or not that is the report
25 prepared by Mr. Marcus.
839
1 A. Yes, it is.
2 Q. And did Mr. James or Mr. Markus ever report
3 to you that they saw any evidence of any organized
4 crime influence over the election.
5 A. No.
6 Q. Miss Kurth, in your opinion were Local 1001's
7 2003 elections open elections?
8 MR. THOMAS: Mr. Vaira, if I may. Is she
9 being asked as a fact witness or an expert witness?
10 She's never been proffered as an expert. Is this the
11 opinion of a fact witness?
12 THE INDEPENDENT HEARING OFFICER: I'll let
13 her answer. She's been the Executive Director for two
14 International elections, and she can do it as a lay
15 person.
16 You may do it based upon your experience as
17 the Executive Director of two International elections.
18 MR. MENDENHALL: Can you repeat my question,
19 Madam Court Reporter?
20 (Record read.)
21 THE WITNESS: Yes.
22 BY MR. MENDENHALL:
23 Q. Were the members free to run for any office
24 they chose?
25 A. If they were eligible.
840
1 Q. That's a yes?
2 A. Yes.
3 Q. And did the elections follow democratic
4 processes?
5 A. Yes.
6 Q. Was the election free, fair and transparent?
7 A. Yes.
8 Q. What are your observations on the
9 participation rate for Local 1001's 2003 election?
10 A. Based on my previous experience with LIUNA
11 Delegate elections, it was a pretty high rate of
12 participation.
13 MR. MENDENHALL: That's all I have, Mr.
14 Vaira.
15 THE INDEPENDENT HEARING OFFICER: May I ask
16 you a question?
17 When you were overseeing this election, you
18 said persons who could run if they were eligible. Who
19 determined the eligibility of the candidates?
20 THE WITNESS: The Election Judges and
21 observers from my staff.
22 THE INDEPENDENT HEARING OFFICER: Do you know
23 the terminology, this is a rhetorical question, working
24 at the calling?
25 THE WITNESS: Yes.
841
1 THE INDEPENDENT HEARING OFFICER: Did all of
2 the candidates -- were all of the candidates working at
3 the calling?
4 THE WITNESS: Well according to the LIUNA
5 Constitution if you're a member --
6 THE INDEPENDENT HEARING OFFICER: That's not
7 answering my question. Were they working at the
8 calling.
9 THE WITNESS: According to the LIUNA
10 Constitution.
11 THE INDEPENDENT HEARING OFFICER: You made an
12 observation and examined each one of them?
13 THE WITNESS: Yes, that they were dues paying
14 members.
15 THE INDEPENDENT HEARING OFFICER: That
16 doesn't mean they were working at the calling.
17 THE WITNESS: That's what the LIUNA
18 Constitution says.
19 THE INDEPENDENT HEARING OFFICER: Okay. All
20 right. Go ahead.
21 CROSS EXAMINATION
22 BY
23 MR. THOMAS:
24 Q. Miss Kurth, you and I have not met or spoken
25 before, have we?
842
1 A. I don't think so.
2 Q. My name is Bob Thomas and I'm representing
3 the International in these proceedings.
4 In response to Mr. Vaira's question you said
5 that you found all of the officer nominees to be
6 eligible, correct?
7 A. Um-hum.
8 Q. And specifically, as Mr. Vaira put it, you
9 found, as a matter of fact, that they were all working
10 at the calling; is that right?
11 A. According to the standard that we had used in
12 the International Delegate elections, that if they were
13 a member, they were working at the calling.
14 Q. And what's your understanding as it would
15 apply to a Locals like Local 1001?
16 A. According to the rules in the judge's
17 handbook and the Local Union Constitution, someone has
18 to be a dues paying member. And in order to be a
19 member you have to be working at the calling according
20 to another section in the Constitution. And I'm sorry,
21 I don't have my Constitution.
22 Q. And in the Local Union Constitution how does
23 it define working at the calling?
24 A. It says that you have to be a paid member.
25 Q. And is that all?
843
1 A. That's my recollection.
2 Q. Would you like to look at it? Did you look
3 at it at the time?
4 A. Yes.
5 Q. Okay. Do you realize that it requires that
6 the person be actively employed either in the trade or
7 as an employee of the Local Union?
8 A. Yes, and they have to be a dues paying
9 member.
10 Q. Um-hum. So let me ask you: With respect to
11 -- does the name James Capasso mean anything to you?
12 A. I remember that he was one of the people
13 elected.
14 Q. So he was one of the people nominated and
15 elected, right?
16 A. Yes.
17 Q. And you made a finding before his being
18 nominated and elected, you and your staff, that he was
19 eligible, correct?
20 A. To the best of our ability.
21 Q. To the best of your ability.
22 A. Which is by looking at the membership lists.
23 Q. All right. But other than the fact that he
24 paid dues, how was he working at the calling?
25 A. The only way in the Local Union elections for
844
1 a Delegate and for this election that we have as
2 election officers, is if someone is a dues paying
3 member. And I also remembered seeing him as a Delegate
4 in 1996 and 2001.
5 Q. A Delegate to what?
6 A. The convention.
7 Q. A Delegate to the convention.
8 A. Correct.
9 Q. What does that mean with respect to --
10 A. That --
11 Q. Wait a minute. Wait until the end of the
12 question.
13 What does that mean with respect to his
14 working either as an employee at Local 1001 or as a
15 laborer?
16 A. It means that the International found him to
17 be an eligible candidate for Delegate.
18 Q. For Delegate to that election process you
19 talked about.
20 A. Correct.
21 Q. I'm talking about his eligibility to be an
22 officer of Local 1001. Do you understand that they're
23 different?
24 A. No, actually they're not different in that
25 for a Delegate you have to be working at the calling
845
1 and be a dues paying member is my recollection of our
2 election rules.
3 Q. Those are two different things, aren't they?
4 A. How can you be a dues paying member if you're
5 not working at the calling? I'm sorry. I don't
6 understand your question.
7 THE INDEPENDENT HEARING OFFICER: Is that
8 your answer?
9 THE WITNESS: I don't understand the
10 question.
11 THE INDEPENDENT HEARING OFFICER: Your answer
12 is that if you're a dues paying member, then you're
13 working at the calling.
14 THE WITNESS: It says that in order to be a
15 member you have to be working at the calling. I'm
16 sorry. I don't understand.
17 THE INDEPENDENT HEARING OFFICER: I accept
18 your answer. Thank you.
19 MR. MENDENHALL: Mr. Vaira, I think the
20 record is clear on this and we can move on past this
21 point.
22 THE INDEPENDENT HEARING OFFICER: Gentlemen,
23 I was an Election Officer for this Union for a number
24 of years. I handled your appeal that came from Mr.
25 Goldberg's office and I understand what working at the
846
1 calling is.
2 MR. MENDENHALL: Exactly.
3 BY MR. THOMAS:
4 Q. Did you actually read the Local Union
5 Constitution before this election?
6 MR. MENDENHALL: Objection. Asked and
7 answered, Mr. Vaira.
8 BY MR. THOMAS:
9 Q. Did you read it?
10 A. Yes.
11 THE INDEPENDENT HEARING OFFICER: I think
12 he's entitled to ask this question, gentlemen. Working
13 at the calling, it's there and it's pretty much spelled
14 out. If he wants to pursue it, he wants to pursue it.
15 She has one definition and I think he disagrees with
16 it.
17 BY MR. THOMAS:
18 Q. Did you talk to the nominees -- you or your
19 staff talk to any of these people to determine whether
20 they were working at the calling.
21 A. No.
22 Q. So you didn't speak to Mr. Capasso about what
23 he was doing to be eligible to be considered working at
24 the calling.
25 A. No. I just knew him to be somebody who
847
1 worked for the Union.
2 THE INDEPENDENT HEARING OFFICER: Where do
3 Judges of Election come in? Where did the Judges of
4 Election come in in this process?
5 THE WITNESS: The Judges of Election were
6 working checking the eligibility of the candidates and
7 they judged them to be eligible.
8 THE INDEPENDENT HEARING OFFICER: Then you
9 accepted that.
10 THE WITNESS: Yes. Do you mean physically or
11 procedure wise?
12 THE INDEPENDENT HEARING OFFICER: In the
13 rules of a Local election, the Judges of Election have
14 to qualify. You have to walk over and somehow or
15 another you have to decide -- give them your book or
16 whatever else. And they'll say yeah or nay. Now, when
17 you found that out, when somebody said, "This person is
18 working at the calling," did you inquire any further?
19 THE WITNESS: No.
20 THE INDEPENDENT HEARING OFFICER: Okay. All
21 right.
22 THE WITNESS: And just to clarify. Just to
23 explain how we did it. We had the Judges of Election
24 with the membership lists and a member of our staff
25 checking each nominator and candidate.
848
1 THE INDEPENDENT HEARING OFFICER: Okay.
2 BY MR. THOMAS:
3 Q. Miss Kurth, did any of the judges interview
4 any of these people to your knowledge.
5 A. Yes.
6 Q. So someone actually spoke, for example, to
7 Mr. Capasso?
8 A. Yes. Each candidate and nominator came up
9 person by person to meet with the judges.
10 Q. Do you know -- were you there when Mr.
11 Capasso was interviewed by the judges?
12 A. I was actually -- they were sort of at a
13 table down here and I was up on the stage.
14 Q. Do you know what he was asked on this
15 question?
16 A. No.
17 Q. So if I got your answer correctly a moment
18 ago, you said you understood him to be working for the
19 Union or words to that effect?
20 A. Yes.
21 Q. Why did you understand that? What was the
22 basis of that?
23 A. Because he had been present at the meetings
24 that I had been to. He was on the -- I believe he was
25 on the District Council, and like I said, he had been a
849
1 Delegate in the past.
2 Q. Did you know that he was working full-time
3 for a third party?
4 A. No.
5 Q. Is that the first -- is today the first time
6 you've heard that?
7 A. Yes.
8 Q. Would it surprise you to know that he was the
9 full-time Administrator for the City of Chicago Pension
10 Fund and had been for well over ten years?
11 A. Yes.
12 Q. When you chatted with the attorneys prior to
13 your testifying here today, did anyone mention that
14 fact to you?
15 A. No.
16 MR. MENDENHALL: Objection.
17 THE INDEPENDENT HEARING OFFICER: He may seek
18 to determine the basis of her evaluation.
19 MR. MENDENHALL: I just object to the form of
20 the question.
21 THE INDEPENDENT HEARING OFFICER: That's
22 fine. That's fine.
23 BY MR. THOMAS:
24 Q. Miss Kurth, you were hired in, I think you
25 indicated, the spring of 2003; is that right?
850
1 A. Yes.
2 Q. And specifically you were hired to oversee
3 the upcoming election, right?
4 A. To work with the Election Judges and oversee
5 the election, yes.
6 Q. And how did the request actually come in to
7 you? Who made the call?
8 A. I believe that attorney Faraci called me.
9 Q. Um-hum. And did he or anyone else give you
10 any context as to why you were being called in for
11 this?
12 A. Yes. They were familiar with my work in the
13 election office in 2001 and '96.
14 Q. Just to be clear though, your prior work had
15 not involved anything specifically for Local 1001,
16 correct?
17 A. No, but I worked with every Local in the
18 Union in those two years.
19 Q. Understood. But not in the capacity of
20 overseeing their actual elections.
21 A. Working with the attorneys that oversaw their
22 actual election and because of proximity of the
23 election office being in Chicago, we had been observers
24 for pieces of the Presidential election in '96 and also
25 the Delegate elections.
851
1 Q. Okay. But I'm just trying to clarify the
2 role. This is the first time that you had actually
3 been called in to oversee a Local 1001 election,
4 correct?
5 A. Yes, sir.
6 Q. You had some contact with them in more of
7 the--
8 A. In the International elections.
9 Q. In the International level. Talking to all
10 the constituent Locals here in the area.
11 A. Correct.
12 Q. So you were not involved in the, if I'm right
13 on the dates, that any 1999 election -- I may have the
14 dates wrong.
15 MR. MENDENHALL: Mr. Thomas, I can help you
16 out there.
17 THE INDEPENDENT HEARING OFFICER: Gentlemen,
18 elections --
19 MR. MENDENHALL: It's every four years,
20 public employees. Three years otherwise, Mr. Vaira.
21 THE INDEPENDENT HEARING OFFICER: Okay.
22 BY MR. THOMAS:
23 Q. Do you know when the most recent election of
24 Local 1001 was?
25 A. Four years ago.
852
1 Q. 1999 or 2000?
2 A. Four years ago, '99.
3 Q. '99. You were not involved in that
4 specifically.
5 A. No.
6 Q. And then the previous one to that would have
7 been 1995; is that right?
8 A. Um-hum.
9 Q. Pre-dating your involvement.
10 A. Correct.
11 Q. So by definition you couldn't have been
12 involved in the '95 one and you were not involved in
13 the '99 one.
14 A. Correct.
15 Q. Did anyone tell you in preparing for your
16 role here that there had been conversations with the
17 International about putting the Local under supervision
18 or Trusteeship?
19 A. Well they said there was going to be a
20 hearing.
21 Q. No. I'm not talking about in the past few
22 days coming to testify. When you were hired in the
23 spring of 2003, had anyone told you that the
24 International was seeking to impose a Trusteeship or
25 supervision over the Local.
853
1 A. No.
2 Q. So no one gave you any background that there
3 had been conversations between Mr. Luskin, the GEB
4 Attorney, and the Local in that regard; is that right?
5 A. No.
6 Q. And no one told you anything about the fact
7 that those discussions involved allegations of
8 organized crime involvement and allegations of
9 undemocratic practices.
10 A. No. There were articles in the paper here to
11 that effect.
12 Q. Understood. But no one from the Local said
13 anything that your role had anything to do with those
14 conversations.
15 A. No. They said my role was to hold a free,
16 open, and fair democratic election.
17 Q. And do you have any understanding of why you
18 were not asked to do that in 1999.
19 MR. MENDENHALL: Objection.
20 THE INDEPENDENT HEARING OFFICER: I don't
21 know if that's -- how relevant that is. I sustain that
22 objection.
23 BY MR. THOMAS:
24 Q. In the instructions that came to you in 2003,
25 were there any indications that part of the reason you
854
1 were being hired here is because the Local was under
2 specific scrutiny by the International.
3 A. I'm sorry. Instructions from whom?
4 MR. MENDENHALL: Objection.
5 BY MR. THOMAS:
6 Q. From your client, Local 1001.
7 A. No.
8 Q. Had you seen any of the prior draft,
9 Trusteeship complaints that the International had shown
10 to the Local?
11 A. No.
12 Q. Mr. Mendenhall asked you if you had looked
13 back at some of the old minutes of nomination meetings
14 and elections and whether you've reached any
15 conclusions on that. Do you recall that?
16 A. He asked me if I looked at them.
17 Q. And I think he asked you and you answered
18 whether you looked at those, whether anything in those
19 minutes that would suggest that they weren't free,
20 fair, free of organized crime influence, and you
21 indicated that everything seemed to be just fine as far
22 as you could tell.
23 A. Yes.
24 Q. Have you since learned or at any point have
25 you learned that the minutes that you looked back at
855
1 were minutes of a Local that was controlled by someone
2 who has been found to be an organized crime associate?
3 Did you know that?
4 A. Yes.
5 Q. Mr. Caruso?
6 A. Yes.
7 Q. So by your own observation then someone with
8 ties to organized crime can be head of a Local and the
9 paperwork relating to elections can still look
10 perfectly normal, right?
11 MR. MENDENHALL: Objection.
12 THE WITNESS: I can't answer that.
13 BY MR. THOMAS:
14 Q. Isn't that your direct experience?
15 THE INDEPENDENT HEARING OFFICER: I missed
16 that question.
17 BY MR. THOMAS:
18 Q. By your own observation -- let me ask you to
19 take it as a fact that Mr. Caruso has been found to be
20 an organized crime associate and kicked out of the
21 Union as a result, okay? That's a fact.
22 A. Yes.
23 Q. If minutes that you looked at were minutes of
24 elections that took place under his period of being
25 Business Manager at the Local, by that fact alone --
856
1 A. Um-hum.
2 Q. -- it can mean that election processes at a
3 Local that is lead by someone like that can appear to
4 be normal, right?
5 MR. MENDENHALL: Objection.
6 THE INDEPENDENT HEARING OFFICER: That's an
7 argument, and that's something for me to decide.
8 BY MR. THOMAS:
9 Q. Let me rephrase it if I could.
10 MR. MENDENHALL: Continuing objection to this
11 line of questioning.
12 THE INDEPENDENT HEARING OFFICER: Let me hear
13 the question.
14 MR. THOMAS: I haven't asked the question
15 yet.
16 BY MR. THOMAS:
17 Q. What would you expect to see in the minutes
18 if there were organized crime involvement?
19 MR. MENDENHALL: Same objection.
20 THE INDEPENDENT HEARING OFFICER: She may
21 answer. That's a fair question.
22 THE WITNESS: I looked at the minutes to see
23 how Judge Leighton had conducted the meeting. The
24 minutes seemed to be by the process outlined in both --
25 in the Constitution and in the -- I'm sorry, Mr. Vaira.
857
1 It's the Local Union's handbook. I don't know exactly
2 what it's called.
3 THE INDEPENDENT HEARING OFFICER: It's called
4 The Judges of Elections Handbook.
5 THE WITNESS: Thank you.
6 THE INDEPENDENT HEARING OFFICER: And that
7 was put out -- when did it come out?
8 THE WITNESS: It was very similar the Local
9 Union Election Guide that we had written for the
10 Delegate election.
11 THE INDEPENDENT HEARING OFFICER: Not quite.
12 Not quite.
13 THE WITNESS: But I get the name wrong. So
14 The Judges of Election -- it went by The Judges of
15 Election, by the guidelines, outlines.
16 THE INDEPENDENT HEARING OFFICER: There's a
17 book -- a Judge's Handbook put out by the International
18 Union that's put out at least in the last four years.
19 BY MR. THOMAS:
20 Q. I want to go back to what the question was.
21 If you're -- you're not one of these people
22 that says organized crime doesn't exist, are you?
23 A. No. I live in Chicago. I grew up in the
24 western suburbs. Every other kid in my high school was
25 alleged to be a known associate of organized crime.
858
1 (Applause.)
2 That doesn't mean everyone with an Italian name --
3 THE INDEPENDENT HEARING OFFICER: Come on.
4 Come on. Answer the question.
5 BY MR. THOMAS:
6 Q. And you're familiar with --
7 THE INDEPENDENT HEARING OFFICER: All right,
8 guys. Calm it down here. Go ahead.
9 BY MR. THOMAS:
10 Q. And you're familiar with the concept of labor
11 racketeering, right?
12 A. Yes.
13 Q. So the point -- one of the points of having
14 election supervisors and so forth is to make sure to
15 the extent possible you preserve the integrity of the
16 democratic process in the election process, right?
17 A. Yes. And one of the reasons I agreed to work
18 with Local 1001 was because during the 1996 election
19 when Bruno Caruso ran for president against Arthur Coia
20 at the International level, all of my dealings with the
21 members of Local 1001 they had been -- they had wanted
22 to participate by the rules. They were concerned with
23 doing everything by the rules, and by the way that
24 LIUNA set out for us to conduct the International
25 election.
859
1 Q. Okay. But just going back to what the
2 original question was. If you were to look at minutes,
3 old minutes from a time period when it's been found
4 that the Local was at least headed by an organized
5 crime associate, what would you expect to see in the
6 minutes that would say, "Ah, this must be an organized
7 crime Local."
8 MR. MENDENHALL: Objection. Assumes that she
9 would expect to see something.
10 THE INDEPENDENT HEARING OFFICER: Make it --
11 remove it from Local 1001. If you looked at anything
12 in this --
13 BY MR. THOMAS:
14 Q. Let me back up.
15 Mr. Mendenhall asked you very specifically,
16 and you answered the question, "Did you look at all
17 those old minutes?" You said, "Yes." And he said,
18 "Did you see anything in there that would suggest that
19 these weren't free and fair and free of organized crime
20 influence." Remember that?
21 A. I guess I would expect to see that there was
22 intimidation that had gone on, that there was some of
23 the kinds of dialogue that we had witnessed at other
24 Local Union elections in the -- during the
25 International for the Delegate elections.
860
1 Q. And in a controlled -- in a Local Union that
2 is controlled by organized crime, are you saying that
3 people would actually write that down in the minutes?
4 MR. MENDENHALL: Objection. Argumentative.
5 THE WITNESS: I don't know.
6 THE INDEPENDENT HEARING OFFICER: Time out.
7 You're asking her what would she look for. What
8 indicia would she look for. And your question is what?
9 BY MR. THOMAS:
10 Q. In a Local that has a history of organized
11 crime influence, what would you expect to see in the
12 minutes that would jump out in response to what Mr.
13 Mendenhall --
14 THE INDEPENDENT HEARING OFFICER: That's a
15 fair question.
16 MR. MENDENHALL: She spent about -- the past
17 five minutes answering that. Mr. Thomas is not happy
18 with the answer. He's not entitled to keep going on
19 and on with the same question until he gets a
20 satisfactory answer.
21 THE INDEPENDENT HEARING OFFICER: She may
22 answer it. Go ahead.
23 THE WITNESS: In the minutes of some of the
24 meetings that we had in '96 from Local Unions where
25 there was trouble, there were arguments, threats,
861
1 intimidation, physical and verbal threats. And these
2 minutes didn't reflect any of that.
3 BY MR. THOMAS:
4 Q. Which were those Locals?
5 A. I believe it was the Buffalo Local. I don't
6 remember what the number was.
7 Q. Did you ever see anything like that, Local 2
8 here in Chicago?
9 A. No.
10 Q. 225?
11 A. No.
12 Q. Local 5?
13 A. Actually there weren't -- during our --
14 during our Local Delegate elections I don't remember
15 seeing anything like that from the Chicago Locals.
16 Q. Okay. But -- and that's exactly where I want
17 to go with the question.
18 So the fact that the minutes alone don't
19 reflect that doesn't lead you to the conclusion, does
20 it, that therefore because the minutes don't reflect it
21 there can be no influence.
22 A. No.
23 Q. That's all I was getting at.
24 There was no evidence of contested -- there
25 was no contest in the 2003 election, was there?
862
1 A. No.
2 Q. And in the old minutes that you looked at
3 there was no contest either, right?
4 A. No.
5 Q. And in fact as far back as you looked there's
6 never been a contest, right, in Local 1001.
7 A. As far back as I looked, but that was sort of
8 in keeping with the LIUNA tradition. There is a lot of
9 -- about two thirds of our Delegate elections were
10 uncontested, so I didn't see anything unusual with
11 that.
12 Q. How far back did you go?
13 A. Just to the most recent past election.
14 Q. So to '99?
15 A. Yes.
16 Q. Okay. So the one you were looking at and the
17 one just prior.
18 A. Um-hum.
19 Q. And no evidence of any dissent in any of
20 those, correct, in any of those documents you looked
21 at?
22 A. No.
23 Q. And no evidence that anyone was questioning,
24 for example, the pension contributions that some of the
25 officers were getting, some of the unpaid officers.
863
1 A. No.
2 Q. And no evidence of any dissent from clerical
3 staff who may have had -- who may have had their
4 pension contributions underfunded during that time
5 period.
6 A. Not in the minutes.
7 Q. Miss Kurth, what is the remedy if it turns
8 out that someone's been elected who turns out not to be
9 eligible and you find out after the fact that they're
10 not eligible?
11 A. Then there's another election.
12 Q. And how does that take place?
13 A. According to the rules in the Judge's
14 Election Handbook.
15 MR. THOMAS: Nothing further, Mr. Vaira.
16 MR. MENDENHALL: No redirect.
17 THE INDEPENDENT HEARING OFFICER: Thank you,
18 ma'am.
19 (Witness excused.)
20 THE INDEPENDENT HEARING OFFICER: We'll take
21 a break.
22 (Whereupon a break was taken in
23 the proceedings after which the
24 following proceedings were had:)
25 THE INDEPENDENT HEARING OFFICER: Ladies and
864
1 gentlemen, back on the record.
2 Mr. Lydon, go right ahead.
3 MR. LYDON: We're calling as our next witness
4 James Capasso.
5 THE INDEPENDENT HEARING OFFICER: Mr. Capasso
6 was here a couple weeks ago and he was sworn, and we
7 don't need to swear you in again, Mr. Capasso. You're
8 still under oath.
9 THE WITNESS: Thank you, sir.
10 JAMES CAPASSO,
11 called as a witness herein, having previously been duly
12 sworn, was examined and testified as follows:
13 DIRECT EXAMINATION
14 BY
15 MR. LYDON:
16 Q. Mr. Capasso, I don't intend to go over the
17 things that were already covered at the last session,
18 but have different questions for you and -- particular
19 questions for you on this occasion.
20 First of all, would you look at our Exhibit
21 Number 49? Local 1001 Exhibit 49. And in particular
22 do you see that this is the complaint for the
23 Trusteeship for Local 1001.
24 A. Yes.
25 Q. Have you had the opportunity to see this in
865
1 the past? In particular, directing your attention to
2 page --
3 A. Yes, yes. Yes, I have.
4 Q. Page 9.
5 A. Yes, I have.
6 Q. And I want to direct your attention in
7 particular to the allegation that appears on page 9.
8 Do you see that? Your name, first of all, appears
9 James Capasso, Jr.
10 A. That's correct.
11 Q. Are you James Capasso, Jr.?
12 A. Yes.
13 Q. And there is reference immediately beneath
14 that paragraph 32 about positions that you held in
15 Local 1001, and then there's a paragraph 33 that
16 alleges connection to organized crime. Do you see
17 that?
18 A. Yes, sir.
19 Q. Specifically paragraph 33 alleges that you
20 were involved in bookmaking activities for the Chicago
21 Outfit with James "Little Jimmy" Marcello. Is that
22 true or false?
23 A. Couldn't be more false, sir.
24 Q. Have you ever been involved in any bookmaking
25 activities of any sort?
866
1 A. None whatsoever in my entire life.
2 Q. Are you -- so you've never engaged in taking
3 bets, correct?
4 A. That's correct.
5 Q. Have you ever been a bettor yourself?
6 A. Never.
7 Q. And James "Little Jimmy" Marcello is alleged
8 to be "a high ranking LCN figure," it says here, "who
9 is currently in federal prison," but according to Agent
10 O'Rourke who testified before he's now out. Do you
11 know anyone named James Marcello?
12 A. I had to know him because in the early 60's
13 he was an asphalt foreman for the City of Chicago, and
14 he --
15 Q. Let's just --
16 A. Okay. Go ahead.
17 Q. So you do know someone named James Marcello.
18 A. Yes.
19 Q. And you've just gone further to say that he
20 was what?
21 A. He was an asphalt foreman for the City of
22 Chicago.
23 Q. When did you last have any contact with James
24 Marcello?
25 A. Probably when he left the City in either the
867
1 fall of '69 or '70 when we separated him as a City
2 employee.
3 Q. What was the nature of or the interaction you
4 had with James Marcello prior to that time.
5 A. Prior to the time he was a City employee none
6 whatsoever. I didn't know the man.
7 Q. While he was a City employee, was that the
8 only contact you've ever had with him?
9 A. Yes, sir.
10 Q. While he was a City employee, can you explain
11 fully to Mr. Vaira all of the contacts you had with
12 this James Marcello.
13 A. Well he was an asphalt foreman for the
14 Department of Streets and Sanitation, Bureau of
15 Streets, Asphalt Section, and he supervised a number of
16 men on the street as an asphalt foreman. I was a
17 Supervising Timekeeper in the main office. I was doing
18 payrolls at that time. He would fill out a time sheet
19 with the stated hours that the men worked and he would
20 send that in to me. And he would call for various
21 information about the men on his -- in his charge. And
22 that's the only contact I had.
23 Q. What do you mean? What kind of calls about
24 the men in his charge?
25 A. First of all he would call for the men
868
1 because we used to be able to give them their vacation
2 for the year, or maybe they would call in the morning
3 that a man was absent, because I was in Operations
4 also, and they had to call the work force in every
5 morning as to who showed up for work. So those are the
6 calls, entirely business calls, that he would make to
7 the office and maybe not to me in particular.
8 Q. Did you have any other contact of any sort
9 with James Marcello.
10 A. Never.
11 Q. So you never socialized with him while he was
12 a City employee?
13 A. Absolutely not.
14 Q. And you've never socialized with him at any
15 time before or since.
16 A. Absolutely, sir.
17 Q. Now it's also alleged here that you've been
18 identified as an organized crime associate. Is that
19 true or false?
20 A. False.
21 Q. Now going further. This afternoon we heard
22 some further testimony supposedly about you. And the
23 allegation was that you were closely associated with
24 someone named Rudy Fratto. Do you know that name?
25 A. I don't know that, sir.
869
1 Q. You don't know anybody named Rudy Fratto.
2 A. No, sir.
3 Q. And to your knowledge never have?
4 A. No, sir.
5 Q. You have never known him.
6 A. I have never known him.
7 Q. What about someone named Joseph Andriacci.
8 Do you know anybody named --
9 A. No, sir, I do not.
10 Q. Have you ever known anybody by that name?
11 A. No, I do not.
12 Q. The allegation was also made this afternoon
13 that you were beholding to something called the Elmwood
14 Park Crew. Have you ever heard anything like the
15 Elmwood Park Crew before?
16 A. Absolutely not, sir.
17 Q. Now are you personally aware of any influence
18 of organized crime over Local 1001 during the time that
19 you've been associated?
20 A. Absolutely not.
21 Q. Let me ask you some questions about your
22 employment. Why don't you briefly run through with us,
23 if you would, your work history starting when you first
24 became a member of 1001.
25 A. I first became a member in the summertime
870
1 working on the City of Chicago as a laborer on repair.
2 And I worked the summers while I was in school, and
3 then in 1963 went full-time and went into the office at
4 the -- at 1533 South Ashland with the Asphalt Section,
5 Department of Streets and Sanitation, Bureau of
6 Streets. I went into the office as a -- because I had
7 passed the test and they finally posted the test, I
8 went in there as a civil service asphalt helper working
9 as an Assignment Clerk in charge of permits. These
10 permits are for street openings for base and top. When
11 contractors would open up the street, they would have
12 to put up a bond, take out a permit and put up the bond
13 and send that -- the City of Chicago would send that to
14 our office, permits, by permit number, addresses. I
15 would send them out, monitor the foremen that they had
16 to complete these in due process. They would send them
17 back to me. I would mark the sizes of the openings,
18 because it was either base or topping. Whether we had
19 to open it up, square it off a little better, and send
20 it back down to the City for processing because I
21 believe that some of those contractors, or whoever made
22 the street opening, would get a rebate on their bond.
23 At the same time I worked on the -- that's
24 when I started to break in on the Operations desk.
25 Q. Explain what you did in the Operations desk,
871
1 and when was this?
2 A. That was in 1963, at the same time, because
3 after my journal entries were made I was able to sit on
4 the Operations desk with another partner of mine, and
5 what we did is field -- in the early morning, at eight
6 o'clock in the morning, the foremen from the street
7 would call in on their work force. "I have a foreman,
8 rakers, smoother, tamper, three or four helpers." They
9 would bring in their force report. And they would have
10 a mid morning call and then have a three o'clock call,
11 and in that way -- you know, we didn't have a lot of --
12 what should I say? We didn't have a lot of two-way
13 radios at that time in the early 60's, so we depended
14 on the foremen calling up, calling up for more material
15 or calling up in -- at three o'clock when we had some
16 maybe important holes or street problems that we had to
17 talk to them about, or we would send out a supervisor
18 to go find them.
19 Q. What was the next position that you held?
20 A. In '64 there was -- my superintendent by the
21 name of Frank Kevel, he asked me to -- if I would
22 consider being a Supervising Timekeeper because the
23 timekeeper was leaving City service. I said yes.
24 Subsequent to that I took a civil service test, I think
25 it was at Crane High School, that the City held for
872
1 Supervising Timekeeper. I passed the test. I served
2 my probation and became a civil service Supervising
3 Timekeeper doing the payroll for the Asphalt Section as
4 well as all of the personnel and reporting that has to
5 be sent downtown, and as well as still staying close to
6 Operations. I never left Operations.
7 Q. And continue on. What was your next
8 position?
9 A. Supervising Timekeeper. So that was in '64,
10 on Good Friday of 1966. I remember that because it was
11 Good Friday. We went over to 306 West 37th Street
12 because it was a bigger office and it was in the Bureau
13 of Equipment building. At that time I still was in --
14 Supervising Timekeeper.
15 Basically there was another section called
16 the Mechanim (Phonetic) Department that dealt with WPA
17 Streets. We took them over. We went to 306 West 37th
18 Street because they had a bigger office, and we -- I
19 started there -- continued on as a Supervising
20 Timekeeper until such time as -- and I stayed with
21 Operations, took on more of reporting and
22 administrative until my title was changed.
23 Q. And when did that happen?
24 A. I want to say maybe in the very early 70's.
25 Q. What happened? What was your new title?
873
1 A. My new title was -- again there was a --
2 Administrative Assistant 3. And at that time I was
3 deemed qualified for that position by the City of
4 Chicago, and I served my probation and became a Career
5 Service Administrative Assistant 3. And at that time I
6 started to do more work on budgets and -- but my other
7 duties didn't wane. I still had those other duties,
8 but on top of it all of the reporting for personnel,
9 because I was the only one that did typing there, so I
10 had to do all of the reporting.
11 Q. What were these other duties that you're
12 talking about then?
13 A. They primarily focused on doing the payroll
14 for the Asphalt Department, doing the -- working with
15 Operations because I started at six o'clock in the
16 morning. And then after the crews were out, I went
17 back to my supervising duties -- Supervising Timekeeper
18 duties, and my partner and I, who shared an office for
19 20 years, would field questions from the field on an
20 ongoing basis all day long. But I took on more
21 responsibilities for the budget, working with the
22 Deputy Commissioner Robert Marzullo. I would do the
23 preliminaries and started to do budget work at that
24 time. And all of the reporting processes that had to
25 go downtown from our office to City Hall and that --
874
1 for personnel, whatever the case may be, paperwork, I
2 did.
3 Q. All right. How long did you continue in
4 that?
5 A. I did that probably until -- I can't remember
6 the exact dates. I probably did it until the late
7 70's, at which time my title was changed by the City
8 again.
9 Q. To what?
10 A. To Director of Administration.
11 Q. And how long did you -- although your title
12 changed, what about the duties?
13 A. The duties I was -- I then had the full
14 responsibility of budgets, the full responsibility of
15 all of the paperwork for personnel, assigning personnel
16 to start work, assigning them to go out in their first
17 position on the street, starting to work with the
18 Budget Department downtown in creating budgets, in
19 creating performance measurements, because our
20 performance measurements are standard within the
21 industry, square yard, square feet, lineal feet, cubic
22 yards, and so on and so forth. And with that the
23 Director of Administration made me responsible for
24 that. Administrative Assistant, it was taking on more
25 responsibility. But when I became the Director of
875
1 Administration, then it was on my shoulders and I
2 relieved the Superintendent to some degree.
3 Q. What about Operations?
4 A. Operations I never left. I was always in
5 charge with my partner, Sal Stillo, in Operations. We
6 never waned from that. Until the day I left the City
7 my hours were 6:00 to 4:30.
8 Q. Okay. Now did you also take on additional --
9 let me ask you this question: From the time that you
10 started as an asphalt helper to the present time, have
11 you continuously at all times remained a dues paying
12 member of Local 1001?
13 A. Absolutely. I never forgot where I came
14 from.
15 Q. All right. Now, did you take on other
16 responsibilities at some point in time -- let me back
17 up.
18 You say you left the City at some point.
19 A. I left June of 1986. But I had one more
20 title before that.
21 Q. All right. Would you tell us what that was?
22 A. When -- in 1984 when the Washington
23 Administration -- well when the Washington
24 Administration came in, what they did is they wanted to
25 have one person responsible for all processes within
876
1 each of the departments or bureaus. In 1984 the
2 Asphalt and Curb and Gutter Sections were made a bureau
3 unto themselves, and I was responsible for that bureau.
4 My title was Supervisor of Administrative
5 Assistant/Finance Officer/EEO Officer. I just had a
6 lot of hats that I wore. And I served in that capacity
7 for the Washington Administration until I left.
8 Q. And you said that was in '86?
9 A. June of '86 I left and I went to the Pension
10 Fund.
11 Q. Okay. And I think we talked about your being
12 a Trustee at some point as well.
13 A. For seventeen years before I became Director.
14 Q. And incidentally, in your current position
15 you're the Executive Director of the City Pension Fund?
16 A. That's correct.
17 Q. Do you have any Trustees that are members of
18 unions?
19 A. I have one of my Trustees. He's the
20 appointed Trustee representing the Local Labor Unions,
21 and he is a President of Laborers' Local 1092. He's a
22 Trustee on my Board.
23 Q. Who is that?
24 A. Charles LoVerde, III.
25 Q. Now when did you become an officer of Local
877
1 1001.
2 A. I believe it was June of '84.
3 Q. How did that happen?
4 A. Ernie Kumerow, who was the President of Local
5 1001 at the time, asked me if I would serve.
6 Q. And what office have you held since that
7 time.
8 A. I was appointed Auditor. I never had another
9 position, and I still am Auditor. So I have never ever
10 held any other position for Local 1001.
11 Q. Have you stood for election?
12 A. Yes, sir.
13 Q. Most recently when?
14 A. In May of 2003.
15 Q. All right. And you've continuously been an
16 officer since 1984?
17 A. Yes, sir.
18 Q. Now as an Auditor -- first of all, let me ask
19 you what you did just as an Auditor pursuant to the
20 title.
21 A. As an Auditor my responsibility is to make
22 sure that there is an audit done every year. And Local
23 1001 has a professional auditor that does the audit
24 every year. Of course I -- if I'm needed I'm always
25 there to help.
878
1 Q. What other services have you performed for
2 Local 1001?
3 A. On an ongoing basis I've helped them, and I
4 still do that until today, help them with budgets and
5 budgets, programs, staffing, entitles. Titled movement
6 is very important especially today because we're
7 undergoing an early retirement. We're undergoing some
8 layoffs. The budget isn't there for the City of
9 Chicago, and there's going to be a reduction in force.
10 So looking at titles and what's happening to them and
11 where they're going is very important today.
12 Q. And have you performed similar functions for
13 the Union over the years?
14 A. Absolutely.
15 Q. 1001. What else have you done for 1001?
16 A. Well on an ongoing basis I'm their liaison
17 for legislation. I interact with the members at all
18 the Union meetings. I get on the podium. Because in
19 my capacity at the Fund and working with the Local --
20 officers of Local 1001, 1092, and 76, who are looking
21 for benefits for their members, their members are my
22 participants at the Fund. So we work together along
23 with the City of Chicago. We had an agree to process.
24 And this agree to process is with the City of Chicago,
25 the Pension Funds, and the Union to go down to
879
1 Springfield to try to change any law.
2 Basically our plan is written in Illinois
3 law. And in order for the City of Chicago, the Pension
4 Fund to change anything about that law, we have to get
5 voted on by the General Assembly. So on an ongoing
6 basis when we have our Union meetings -- because I have
7 -- the process goes on all year long. We have a spring
8 session that the legislature goes in, and then we have
9 a fall veto session. So that's kind of -- that
10 legislative session goes along pretty much of the year.
11 And I interact with the members at our Union
12 meeting. I get up on the podium. I tell them what the
13 legislative agenda is. I tell them how it's going to
14 affect them, and I work with them to tell them what
15 their entitlements are. I field questions from the
16 floor and invariably -- and I take the minutes for
17 Local 1001 and I have been doing that for over 20
18 years.
19 So now at the end of the meeting they
20 invariably come up to my table and they will ask me
21 questions about the benefits. But most of all they
22 would ask me questions about themselves. They want an
23 estimate for -- of when, "Maybe I'm going to retire in
24 two years. Can I get an estimate?" Various questions
25 about maybe they have a service that they want to pay
880
1 for, that they want to get an estimate how much it's
2 going to cost them. And I field these questions. They
3 call me at the office. I give it to my staff, and we
4 sometimes give them personal service to call them back
5 to take care of them because my members are very close
6 to all of us, and they're dear to me, and, you know,
7 here they are here. They're my guys. And I respect
8 them and I work hard for them.
9 And let me say one thing if I may take the
10 liberty. What the charges are on these allegations
11 about these false lies that they have written about me,
12 Mr. Thomas, sir, these lies -- these are my peers.
13 They know me, some of them for over 40 years. You
14 don't, you don't, you don't --
15 (Applause.)
16 When you work with peers for forty years, they
17 know what you're about. They know what you do. They
18 know what you are and they know what you're not. And
19 Mr. Lydon, I am not what they have here, Mr. Thomas,
20 and with due respect, Mr. Vaira.
21 THE INDEPENDENT HEARING OFFICER: You asked
22 me a question?
23 THE WITNESS: No. That's not me.
24 THE INDEPENDENT HEARING OFFICER: Okay. All
25 right.
881
1 MR. LYDON: I have no further questions.
2 THE INDEPENDENT HEARING OFFICER: Let me ask
3 you a question. You take the notes.
4 THE WITNESS: Minutes, yes, sir.
5 THE INDEPENDENT HEARING OFFICER: Isn't that
6 the Recording Secretary's job?
7 THE WITNESS: You know why it was relegated
8 to me, sir? Because I can speed write.
9 THE INDEPENDENT HEARING OFFICER: Answer my
10 question. Isn't that the Recording Secretary's job?
11 THE WITNESS: Yes. But we work together on
12 this and I take them.
13 THE INDEPENDENT HEARING OFFICER: Okay. Go
14 ahead.
15 MR. THOMAS: Mr. Vaira, with all due respect
16 to Mr. Lydon, I didn't want to interrupt, but that was
17 almost entirely duplicative of Mr. Capasso's earlier
18 testimony. I'm not going to go over the same degree of
19 line by line that we did last time.
20 THE INDEPENDENT HEARING OFFICER: I know
21 you're not. I know you're not. Because that was
22 pretty much what he said last time. Not too much
23 difference. Some things are new.
24 MR. LYDON: There is some allegations that
25 hadn't even been made until this afternoon.
882
1 THE INDEPENDENT HEARING OFFICER: I
2 understand that. 80 per cent was duplicative.
3 MR. THOMAS: All the work history.
4 THE INDEPENDENT HEARING OFFICER: And there
5 was some denials and also some other jobs he put in.
6 So --
7 MR. LYDON: Yes.
8 THE INDEPENDENT HEARING OFFICER: Now Mr.
9 Thomas, why don't we -- what were you saying?
10 MR. THOMAS: I don't have much for Mr.
11 Capasso.
12 THE INDEPENDENT HEARING OFFICER: I didn't
13 think you did. Go ahead.
14 CROSS EXAMINATION
15 BY
16 MR. THOMAS:
17 Q. Concerning the questions about Mr. Marcello,
18 you indicated you knew him in the late 60's, early
19 70's?
20 A. While he was a City employee, sir.
21 Q. I'm just trying to get the time frame.
22 A. Yes, sir. Not the early 70's, just -- I
23 think he left at least 1970. It might have been 1969.
24 Q. Okay. So roughly how much time are we
25 talking about?
883
1 A. That he was a City employee?
2 Q. That you had any contact with him at all.
3 A. I couldn't say when he started with the City.
4 I don't remember that.
5 Q. Are we talking two years, three years?
6 A. Sure, at least. Because I believe he was a
7 -- I forget what his title was before he was a foreman.
8 Q. How old was he at the time and how old were
9 you at the time, roughly.
10 A. I was probably close to 30 years old.
11 Q. And how about him?
12 A. I don't know.
13 Q. Approximately.
14 A. Maybe the same age.
15 Q. And in terms of what you talked about on the
16 phone, that's just you and him on the phone, right?
17 A. That was -- it's a leading question, sir, but
18 I presume that anybody that's on the phone it's a
19 two-way conversation and it's not a conference call.
20 Q. Just so you know, I'm supposed to, on cross
21 examination, ask leading questions.
22 So the phone calls that you had with Mr.
23 Marcello, that was just you and he and no one else,
24 right?
25 A. Business.
884
1 Q. Understood. You and he and no one else,
2 correct?
3 A. That's correct.
4 Q. You indicated that -- in response to Mr.
5 Lydon's question that you had no sense whatsoever that
6 there had ever been any organized crime influence on
7 Local 1001, right?
8 A. Yes.
9 Q. And is it also true that you've had no sense
10 whatsoever that Bruno Caruso had any association with
11 organized crime.
12 A. Sir, I don't pretend to sit here and know
13 what people do. All I can tell you about is my
14 dealings with Local 1001. That's all I can tell you
15 about.
16 Q. I understand that. And those have been
17 extensive dealings, are they not?
18 A. That's correct.
19 Q. You knew Mr. Caruso, correct?
20 A. Yes.
21 Q. And you still know him, right?
22 A. I have not seen Mr. Caruso since he left.
23 Q. But you certainly knew him when he was head
24 of Local of 1001.
25 A. Sure.
885
1 Q. And you didn't have any sense at the time
2 that he was associated with organized crime, right?
3 A. No.
4 Q. It turns out, unbeknownst to you, that he had
5 associations. You've heard that, right?
6 A. All I know is what I read in the paper.
7 Q. In the paper?
8 A. That's right.
9 Q. What paper?
10 A. And what you've had here.
11 Q. Prior to the exhibits being put together, you
12 understood why Mr. Caruso was being asked to leave,
13 right?
14 A. Yes.
15 Q. So did that come as a surprise to you?
16 A. I think the manner in which he was let go was
17 a surprise to me, yes.
18 Q. What do you mean by that?
19 A. Well, you know, I don't want to get into that
20 how you -- how this body proves things. I don't know.
21 Q. So you're saying it was an unfair process?
22 A. I don't know. I wasn't privy to the process.
23 Q. What is it about it that makes you think --
24 A. You're asking me questions that I can't
25 answer about your process or what I think of your
886
1 process. All I know is that -- what happened to Mr.
2 Caruso was in the Chicago Tribune.
3 Q. The fact that he stepped down.
4 A. No. The allegations of Mr. Caruso were in
5 the Chicago Tribune.
6 Q. And also in the Laborer Magazine, right?
7 A. I don't recall.
8 Q. You don't recall?
9 A. No.
10 Q. You don't recall seeing the charges and the
11 result?
12 A. When you say -- you mean the one that comes
13 every quarter or something?
14 Q. Yes.
15 A. Yes, I get that.
16 Q. And you saw Mr. Caruso's charges and you saw
17 the result of that, right?
18 A. Sure.
19 Q. So that's something independent of the
20 Chicago Tribune, right?
21 A. Yeah.
22 Q. And are you saying that you knew something
23 about that case that --
24 A. No, I don't. I didn't.
25 Q. You have to wait for the question mark at the
887
1 end of the question, okay?
2 Are you saying that you knew something about
3 that case that caused you to question the fairness of
4 that proceeding?
5 A. No, I am not.
6 Q. So -- let me repeat the question. If you
7 hadn't known him to be an associate of organized crime
8 in your prior dealings with him, were you surprised at
9 the outcome?
10 A. Yes.
11 Q. Thank you.
12 Mr. Capasso, you've been an Auditor since I
13 think approximately 1984; is that right?
14 A. Correct.
15 Q. And based on your earlier testimony several
16 weeks ago, I think you indicated that that's been
17 mostly a perfunctory title in that the Local has
18 outside auditors, right?
19 A. Yes.
20 Q. And so the work that you've described doing
21 for the Local has been more general, if I can use that
22 word. It's not been really auditing work per se,
23 right?
24 A. Yes.
25 Q. Was there any work as an Auditor that you did
888
1 for Local 1001 during the years that you've had that
2 title?
3 A. Probably looking at the membership that was
4 working in the Asphalt Department would try and make
5 sure that they were in fact 1001 members and that.
6 Q. So checking the membership list to make sure
7 that they jived with what?
8 A. With the people that were at the Asphalt
9 Section.
10 Q. I'm not following you.
11 A. They would call me and I would go there and I
12 would check the list that they have of people that were
13 working that were paying dues. They wanted to make
14 sure that they -- there was no computers then.
15 Q. Let me stop you for a second. When you say
16 they would call you, you mean members would call you?
17 A. No. The ladies that ran the office.
18 Q. So the staff at the Local --
19 A. Right.
20 Q. -- would call you over at the Pension Fund.
21 A. No, no. This is going back many years now.
22 Q. So pre 1984?
23 A. Sure.
24 Q. I'm asking you post 1984. You've now left
25 the City --
889
1 MR. LYDON: He didn't leave until '86.
2 BY MR. THOMAS:
3 Q. Or '86. You left the City and you're head of
4 the Pension Fund. From '86 forward have you done any
5 auditing work?
6 A. No, not per se.
7 Q. Did you ever read financial statements?
8 A. Sure.
9 Q. In what capacity?
10 A. They mail them out to --
11 Q. To everyone?
12 A. Yeah.
13 Q. All the members?
14 A. Yeah.
15 Q. So there was no -- other than doing what
16 every other member had the right to do, which is read
17 that in the mail, there was no actual work that you
18 performed.
19 A. Wait a minute. The financial statements I
20 might be getting mixed up with the Health and Welfare.
21 They sent them out.
22 Q. Let's back up.
23 A. The financial statements that I'm used to
24 seeing coming through the mail are the Laborers' Health
25 and Welfare in Westchester.
890
1 Q. I'm not talking about that. I'm talking
2 about the Local's finances. The title of Auditor for
3 the Local means Auditor for the Local, right?
4 A. Right.
5 Q. In that capacity, from 1986 forward, did you
6 ever do any actual auditing work?
7 A. Just looking at the book that they used to
8 keep the Union dues in, and looking at the -- if there
9 was anybody that was delinquent or anything like that.
10 But there was no hard line of work doing that, no.
11 Q. So just the dues issue.
12 A. Yeah, right.
13 Q. So you had no interaction with Thomas Havey
14 in the years they were doing the firm's -- the Union's
15 auditing?
16 A. Not unless I was asked, no.
17 Q. Were you ever asked?
18 A. No.
19 Q. And the various things that you've described
20 doing for the Local since 1986 when you've been with
21 the Pension Fund, those things, while numerous, have
22 not been anything close to full-time work, right? Your
23 full-time job is with the Pension Fund, correct?
24 A. That's correct.
25 Q. And we went through that last time.
891
1 THE INDEPENDENT HEARING OFFICER: We went
2 through it in great length last time.
3 MR. THOMAS: Nothing further.
4 MR. LYDON: I have nothing further.
5 THE INDEPENDENT HEARING OFFICER: Thank you.
6 THE WITNESS: Thank you, Mr. Vaira.
7 (Witness excused.)
8 MR. MENDENHALL: Mr. Vaira, we would like to
9 call Robert Redd.
10 (Witness duly sworn.)
11 ROBERT REDD,
12 called as a witness herein, having first been duly
13 sworn, was examined and testified as follows:
14 DIRECT EXAMINATION
15 BY
16 MR. MENDENHALL:
17 Q. Good afternoon, Mr. Redd. Can you state your
18 full name and spell your last name for the benefit of
19 the court reporter?
20 A. Robert E. Redd, R-e-d-d.
21 Q. And where do you live, Mr. Redd?
22 A. 10223 South Vernon, Chicago, Illinois.
23 Q. Is that on the far south side of Chicago?
24 A. Yes.
25 Q. And Mr. Redd, where did you attend high
892
1 school?
2 A. Harlam High School.
3 Q. And that's spelled H-a-r-l-a-n?
4 A. L-a-m.
5 Q. L-a-m?
6 A. Yes.
7 Q. And what year did you graduate?
8 A. 1975.
9 Q. And Mr. Redd, are you currently a member of
10 Local 1001?
11 A. Yes.
12 Q. And how long have you been a member?
13 A. Over 27, 28 years.
14 Q. So since around 1975?
15 A. Yes.
16 Q. And how are you currently employed, sir?
17 A. I work refuse truck, 17th Ward, Streets and
18 Sanitation.
19 Q. Mr. Redd, can you walk us through -- and when
20 did you first join the City of Chicago?
21 A. Full-time it was June of '75.
22 Q. And can you walk us through quickly your
23 positions that you've had with the City of Chicago
24 since 1975 to the present?
25 A. In 1972 it was in the summer, I worked
893
1 asphalt as a helper, and every year I come back. I
2 started working presently full-time in 1975. I worked
3 with the Building Department of Demolition wrecking
4 garages. And in 1980 I started in the Refuse doing
5 garbage collection.
6 Q. Okay. And so your period of time from 1972
7 to 1975, that was part-time employment.
8 A. Yes.
9 Q. Strictly going for summers.
10 A. For summer.
11 Q. And during this entire time from when you
12 first started with the City in 1975 to the present, you
13 were and are a member of Local 1001.
14 A. Yes.
15 Q. And Mr. Redd, during this time from 1975 to
16 the present, did you regularly attend Local 1001
17 membership meetings?
18 A. Yes, 87 per cent of the time.
19 Q. And generally what time do you arrive at
20 these meetings?
21 A. I would be there pretty early, before they
22 start.
23 Q. What did you generally observe going on
24 before these meetings start, sir?
25 A. A lot of the members come and talk to their
894
1 friends, people they worked with before in different
2 departments.
3 Q. And what do you observe the officers doing?
4 A. They come in, they speak, they shake
5 everybody's hand, talk to the people that, you know,
6 might have called them before. It's a -- get a feeling
7 of people for that day, see how they're doing.
8 Q. And approximately sir, how many people would
9 you say -- members attend these meetings?
10 A. About 175, 200 people.
11 Q. And that's on a consistent basis since
12 approximately 1975?
13 A. Yes.
14 Q. During these membership meetings have you
15 seen the members regularly voice their opinions?
16 A. Yes.
17 Q. And have you personally, sir, raised issues
18 at these meetings?
19 A. Yes.
20 Q. And how have these issues been addressed?
21 A. Well if they can answer the question at the
22 time we have the meeting, they would do so. But if
23 they couldn't, they ask the member to stay after the
24 meeting and they'll try to solve the problem.
25 Q. When you say "they", you're in reference to
895
1 Local 1001 officers.
2 A. Local 1001 officers, yes.
3 Q. During your 28 years membership in Local
4 1001, have you attended nomination or election
5 meetings?
6 A. Yes.
7 Q. And have you attended those regularly as
8 well?
9 A. Yes.
10 Q. How do you typically find out that there's
11 going to be a nomination/ election meeting?
12 A. We will receive something in the mail. The
13 meeting before they would let us know that something of
14 that nature would be coming up.
15 Q. And during your attendance at these
16 membership -- strike that.
17 During your attendance at these nomination
18 meetings are members free to nominate anyone they
19 choose for the position?
20 A. Yes.
21 Q. And what typically happens when someone is
22 nominated?
23 A. They either accept or they decline.
24 Q. And have you ever seen someone decline the
25 nominations?
896
1 A. Yes.
2 Q. And have you ever personally nominated
3 anyone.
4 A. Yes, I have.
5 Q. And who was that, sir?
6 A. Willie Bates.
7 Q. And what did you nominate Mr. Bates for? Was
8 that the Executive Board?
9 A. Executive Board, yes.
10 Q. There's been a fair amount of discussion
11 today about uncontested elections. During your 28
12 years at the Local did you find there anything unusual
13 about the uncontested elections?
14 A. No.
15 Q. Why not?
16 A. Because I mean from the present and past --
17 from the time I've been a member of the Union and
18 whatnot, we have came forward from a long way.
19 I remember a time when we had to work 15
20 years just to get three weeks vacation. And the people
21 that come now is much better for them. You don't have
22 to wait no 15 years. And there has been a lot of
23 improvement. We have gained a lot, and the -- be it a
24 standstill, gets more than 20 years back.
25 Q. What do you attribute those gains to, the
897
1 leadership at the Local or what?
2 A. Yes. The people they have working for us,
3 they do their best to get all that they can for us as
4 far as benefits, health, because at one time we didn't
5 have dental care or eye care and we have that now.
6 Q. Who negotiated that for you?
7 A. The Business Manager, the President.
8 Q. And do you feel the current leadership are
9 doing a good job on behalf of the members of Local
10 1001?
11 A. I believe they are.
12 Q. Um-hum. And are you happy with the
13 leadership?
14 A. Yes.
15 Q. Um-hum. Do you feel the leadership is out
16 there on a daily basis fighting for the best interest
17 of Local 1001?
18 MR. THOMAS: Objection to the leading.
19 THE INDEPENDENT HEARING OFFICER: He may ask
20 that question. The guy's entitled to talk about his
21 own Union. Go ahead.
22 THE WITNESS: Well I know if we call, you
23 know, they would get back to us and whatnot. It's just
24 like family. I mean if you have a problem and if they
25 can't get back to you, someone would come and see you,
898
1 someone would call you before the day is out. You
2 would get some kind of justice.
3 BY MR. MENDENHALL:
4 Q. So if you call one of the officers of the
5 Local 1001 with a problem, by the end of the day
6 someone will get back to you and try to resolve your
7 situation?
8 A. Yes.
9 MR. THOMAS: Same objection.
10 THE INDEPENDENT HEARING OFFICER: That's all
11 right. Go ahead. You may answer that.
12 BY MR. MENDENHALL:
13 Q. Can you talk a little bit about the different
14 ways you've seen the officers help members on a
15 personal basis if you have any such knowledge.
16 A. Well they strive in the Union meeting to go.
17 They push people to be on time. If a person have a
18 drug problem or anything like that, alcohol problem,
19 they ask them to call them or they'll try to seek help
20 for them. If you have personal problems, they'll try
21 to, you know, work things out with the family and stuff
22 like that.
23 Q. So, for instance, if an individual has a drug
24 or an alcohol problem, you would see -- the officers
25 would try to get that person into rehabilitation.
899
1 A. Yes.
2 Q. If they're having a family problem, the
3 officers would also try to intervene to the extent they
4 can in that regard.
5 A. Yes.
6 Q. And based on your observations, have you
7 observed the membership feeling comfortable with
8 bringing their problems to the current leadership?
9 A. Yes.
10 Q. Have you personally had any problems in which
11 you brought issues to the leadership?
12 A. Yes, I have.
13 Q. Can you please tell us about that.
14 A. Okay. One time the Superintendent tried to
15 put me out of the Ward, and I called the Union and they
16 went and talked to the Division Superintendent and
17 talked to the Superintendent and got things
18 straightened out.
19 Q. Who did you call in that regard?
20 A. I called the Union.
21 Q. And what individual from the Union came out?
22 A. Well Mr. Bates came out and also the
23 President came out.
24 Q. Okay. And so when you say "Mr. Bates",
25 you're in reference to Willie Bates who you mentioned
900
1 earlier.
2 A. Yes.
3 Q. And this was fairly recent I take it then?
4 A. Yes.
5 Q. And so the current leadership at the Union
6 came out and fought for you and your rights to stay
7 within the Ward.
8 A. Yes.
9 Q. And how was everything resolved?
10 A. Everything is fine as to date.
11 Q. You stayed within the Ward.
12 A. Yes.
13 Q. Have you ever felt any of the decisions Local
14 1001 made on behalf of their membership was influenced
15 by organized crime.
16 A. No.
17 Q. Have you ever felt in your 28 years at the
18 Local that the Local was being compromised due to
19 influence of organized crime.
20 A. No, I never experienced that.
21 Q. During your 28 years at the Local you've seen
22 a steady progression forward in terms of benefits?
23 MR. THOMAS: Objection.
24 THE INDEPENDENT HEARING OFFICER: You may
25 answer it. Go ahead.
901
1 BY MR. MENDENHALL:
2 Q. Benefits and other efforts to move the Union
3 forward, correct?
4 A. Yes.
5 Q. Mr. Redd, will you please tell us how you
6 would feel if the current leadership was replaced and
7 removed.
8 A. Well, I mean it's just -- if we go back and
9 we be at a standstill, it would be a great loss. I
10 mean, because someone new come in, who we going to
11 call? We can't call them and bring our problems. They
12 don't know our problems. A lot of them won't even
13 accept our problems. And they can't call downtown
14 because nobody know 'em.
15 Q. And when you say "downtown", you're in
16 reference to?
17 A. City Hall.
18 MR. MENDENHALL: That's all I have, Mr.
19 Vaira.
20 THE INDEPENDENT HEARING OFFICER: Mr. Thomas?
21 MR. THOMAS: No questions. Thank you.
22 THE INDEPENDENT HEARING OFFICER: I have a
23 question, Mr. Redd.
24 THE WITNESS: Yes.
25 THE INDEPENDENT HEARING OFFICER: Let's
902
1 assume out there -- there's got to be some young fellas
2 and young women now want to get into the management of
3 this Union. They want to move up. What do you do?
4 How do you get to somebody to notice you to say, "Look,
5 I'm a hotshot here and I think I want to move up here
6 and get on the ticket. I want to be accepted." What
7 do you do?
8 THE WITNESS: Well if a person feel they want
9 to do something like that, they should come to a Union
10 meeting first of all. You got a lot of people don't
11 come.
12 (Applause.)
13 THE INDEPENDENT HEARING OFFICER: There's a
14 young hotshot out there and say, "Look I'm a hotshot.
15 I can work up here. I got the stuff." What do you do?
16 Is there an informal process? Has anybody ever done
17 that?
18 THE WITNESS: No, not that I know of.
19 THE INDEPENDENT HEARING OFFICER: How is the
20 Union -- how is the new guys coming up, how do they get
21 noticed?
22 THE WITNESS: You have -- I mean you have to
23 attend meetings. You got to -- but see, okay, but you
24 have to show some incentive. I mean when I say attend
25 meetings, you got to come and do some work. You got to
903
1 come and show that you are concerned, and maybe take
2 initiative at the position that you're trying to go
3 for. You just can't walk off the street and say, "I
4 want to be a heart surgeon," and you going to operate
5 on someone.
6 THE INDEPENDENT HEARING OFFICER: I
7 understand. But I'm a hotshot young man, young woman.
8 "I'm looking good and I got the stuff." What's he or
9 she do?
10 THE WITNESS: Well if they talk to some of
11 the members and they can persuade the members that they
12 qualified and they sincere in what they want to do,
13 then I would look at it. I would look at what they're
14 talking about.
15 THE INDEPENDENT HEARING OFFICER: Anybody
16 ever done that in the last five years?
17 THE WITNESS: No. Because we never had --
18 we've got -- our last contract was a good contract, and
19 it was a lengthy contract because we had to wait for
20 our back pay and stuff like that which -- I mean it
21 took a long time, because a lot of things that they
22 didn't want to give us we ended up getting. Like we
23 don't have no -- like Sanitation, for example, we don't
24 have no sick days. We work out in the rain, cold
25 weather. I mean they put -- I remember one time they
904
1 put the trucks in the garage to keep them warm and they
2 wanted us to go out and clean off the -- but a lot of
3 stuff happens, I mean, stuff that people don't even
4 know. They sit up in the office and whatnot. They
5 don't know the conditions out there. They don't know
6 what people go through or they don't know what people
7 do out there in the alleys.
8 (Applause.)
9 A month ago I'm picking up some bags on 79th
10 and Ashland, a car ran right up behind the truck. A
11 lady was standing getting on the bus and she done
12 hollered. I probably would have got hurt. I ended up
13 getting my finger sprung with the basket bouncing up.
14 There's all kind of dangers out there.
15 THE INDEPENDENT HEARING OFFICER: Thank you
16 very much. Thank you, sir.
17 (Witness excused.)
18 (Applause.)
19 MR. LYDON: We need a break for our next
20 witness. He isn't here yet.
21 THE INDEPENDENT HEARING OFFICER: All right.
22 Their next witness isn't here. He needs a break. Tell
23 us when you're ready.
24 (Whereupon a break was taken in
25 the proceedings after which the
905
1 following proceedings were had:)
2 THE INDEPENDENT HEARING OFFICER: Okay.
3 We're going to swear the witness.
4 (Witness duly sworn.)
5 Okay. Go right ahead, sir.
7 called as a witness herein, having first been duly
8 sworn, was examined and testified as follows:
9 DIRECT EXAMINATION
10 BY
11 MR. FARACI:
12 Q. Please state and spell your name for the
13 record.
14 A. Marvin Gittler.
15 Q. What is your occupation, Mr. Gittler?
16 A. I'm an attorney.
17 Q. And how long have you been an attorney for?
18 A. 40 years.
19 Q. And where are you licensed to practice law?
20 In which particular states?
21 A. Illinois, all the Circuits but one, and the
22 United States Supreme Court.
23 Q. Please give us your educational background
24 where you went to law school and college.
25 A. I graduated from the University of Syracuse
906
1 in 1960, I think, yeah. And I graduated University of
2 Chicago Law School in 1963.
3 Q. And are you a member of any professional
4 organizations?
5 A. Yes. All of the major Bar Associations and a
6 few minor Bar Associations.
7 Q. Do you teach any courses in Labor Law?
8 A. Not this year, but I have in the past.
9 Q. Can you please describe those to us and where
10 you taught them?
11 A. I've taught at Loyola. I've taught at
12 Chicago Kent Law School. They had a Master's program
13 focusing on the duty of fair represent -- well my
14 section had to do with the duty of fair representation
15 and Landrum-Griffin. It's sometimes referred to as the
16 Labor Management Reporting and Disclosure Act.
17 THE INDEPENDENT HEARING OFFICER: LMRDA.
18 THE WITNESS: I've also -- I guess a
19 consultant is the word rather than teacher for the
20 American Arbitration Association, and a significant
21 number of ad hoc lectures.
22 BY MR. FARACI:
23 Q. Have you received any awards in the area of
24 Labor Law?
25 A. You mean other than winning a case now and
907
1 then?
2 Q. Yes.
3 A. Last -- earlier this year I was honored by
4 receiving the Peggy Browning Activist Award. Two years
5 ago I was inducted into the Illinois Labor History
6 Society, not something that attorneys often do, but it
7 was an honor for me.
8 THE INDEPENDENT HEARING OFFICER: Miss
9 Browning is the Philadelphia --
10 THE WITNESS: Was, yes.
11 THE INDEPENDENT HEARING OFFICER: She passed
12 away. I once represented her and her Union. An
13 untimely death.
14 THE WITNESS: It was, and she was a good
15 friend. I don't think that had anything to do with it,
16 but they've established a fund in her name.
17 THE INDEPENDENT HEARING OFFICER: I know
18 that. I know.
19 THE WITNESS: And it's become somewhat
20 prestigious to be recognized by that fund.
21 BY MR. FARACI:
22 Q. Mr. Gittler, have you written any articles in
23 the area of Labor Law?
24 A. Yes.
25 Q. Can you just describe a few of those to us?
908
1 A. The range of Labor Law I've written on
2 Affirmative Action, I've written on the responsibility
3 to deal with recognition situations, picketing
4 situations, just the range of subjects that are of
5 interest at the particular time.
6 Q. And how much of your current practice is
7 devoted to Labor Law issues?
8 A. If one includes ERISA issues, a hundred per
9 cent.
10 Q. How many years has that been the case for?
11 A. In the sense of Labor being my major focus,
12 from 1963, from the time of graduation.
13 Q. Have you ever been qualified as an expert in
14 the area of Labor Law.
15 A. I was qualified as a witness if that's what
16 you mean.
17 Q. Yes.
18 A. In one case before the Illinois Educational
19 Labor Relations Board in a dispute between the Chicago
20 Teacher's Union, which I did not represent, and the
21 Chicago Board of Education, which I did not represent.
22 MR. FARACI: Thank you. At this time I would
23 offer Mr. Marvin Gittler as an expert attorney in the
24 area of Labor Law.
25 MR. THOMAS: I guess I would want to know,
909
1 Mr. -- I would want a proffer, Mr. Vaira, concerning
2 where we're going with the testimony. Because if what
3 he's going to express opinions on is ERISA issues or
4 some of the criminal issues in the pension allegations,
5 that's very different from Labor Law. So --
6 THE INDEPENDENT HEARING OFFICER: Yes. But
7 tell me where you're going anyway so we'll know as to
8 when your hypothetical comes up as to --
9 MR. FARACI: We will be addressing some of
10 the opinions that Mr. Maria testified to a few weeks
11 ago.
12 MR. THOMAS: In that case can I voir dire the
13 witness on those issues?
14 THE INDEPENDENT HEARING OFFICER: Okay.
15 EXAMINATION
16 BY
17 MR. THOMAS:
18 Q. Mr. Gittler, my name is Bob Thomas. How are
19 you?
20 A. Fine.
21 Q. In writing your articles and on, you said, a
22 range of Labor subjects, have any of those articles
23 been on ERISA issues per se?
24 A. I don't recall any on ERISA, no.
25 Q. Any on eligibility criteria for Pension or
910
1 Health and Welfare Funds.
2 A. Well if you include the definition of the
3 term "employee", it may arguably have some of that in
4 there.
5 Q. You have written an article on that?
6 A. Some of the articles I've written had to do
7 with the definition of what an employee is.
8 Q. Uh-huh. And in what larger context?
9 A. Primarily in the context of entitlement to
10 protections under the National Labor Relations Act.
11 That act only protects employees. Independent
12 contractors, for example, are not considered employees,
13 and the distinction between contractors and employees
14 is sometimes determinative of employee rights.
15 Q. But these articles were not pertaining to
16 analysis of the term "employee" as defined in the Trust
17 Agreements of the governing documents of particular
18 unions, were they?
19 A. If I understand your question, no. I've
20 written on that subject in briefs, but not in --
21 Q. All right. The areas in which you've written
22 or taught have not included Criminal Law, have they?
23 A. That's correct.
24 Q. Including the criminal provisions of the
25 Labor laws, right?
911
1 A. In the experience at Kent, while the criminal
2 impact of some of the Landrum-Griffin position was not
3 primarily a focus, you cannot void but note them. In
4 that sense I've dealt with them. I've not dealt with
5 them to hold myself out or instruct anyone in the
6 criminal procedures relating to them.
7 Q. Um-hum.
8 A. But I have noted what I thought were the
9 unique aspects of this piece of legislation which,
10 although designed primarily as a piece of civil
11 litigation, does have criminal overtones to it, in fact
12 more than overtones. Criminal sanctions attendant to
13 it, and I note that.
14 Q. Would it be fair to say that your areas of
15 expertise have to do mostly with substantive Labor Law
16 as opposed to ERISA or the criminal components of the
17 Labor Laws, collective bargaining, rights of
18 representation, and the like.
19 A. Yeah, yeah, I think that would be fair to
20 say.
21 MR. THOMAS: Nothing further.
22 THE INDEPENDENT HEARING OFFICER: Nothing
23 further. I'm not so sure how much the criminal part
24 impacts this at all.
25 MR. THOMAS: If I may respond to that. I
912
1 mean that was a large part of Mr. Maria's testimony.
2 If he's being proffered as a response to Mr. Maria's
3 testimony, that's what a lot of it was.
4 THE INDEPENDENT HEARING OFFICER: All right.
5 I'll be pretty liberal on this, and he has practiced a
6 long time in this particular area. And maybe
7 technically in front of a jury I might voir dire
8 somemore and ask somemore questions, but I'll qualify
9 him. You may question him and give us just -- let us
10 know when your questions are --
11 MR. FARACI: I'll direct you to each and
12 every opinion we're going to talk about.
13 THE INDEPENDENT HEARING OFFICER: -- so we
14 have some warning where we're going.
15 BY MR. FARACI:
16 Q. Mr. Gittler, have you ever been retained by
17 either LIUNA or Local 1001 in the past?
18 A. I've been retained by both.
19 Q. Can you describe the retention for both.
20 A. For Local 1001 I've been directly retained to
21 handle two or more pieces of federal litigation here in
22 the Northern District of Illinois. Those matters were
23 concluded. More recently the Local 1001 had some
24 substantive problems with the right of the City of
25 Chicago to subcontract work which they claim were
913
1 theirs, that is work which Local 1001 claimed was its
2 work. I was asked to assist in the filing and
3 processing of an unfair labor practice charge, actually
4 several charges, before the Illinois Labor Relations
5 Board. We did so and that matter settled out I think
6 before the summer. As far as direct representation is
7 concerned, that's pretty much my recollection.
8 As far as the LIUNA is concerned, that is the
9 International Union, I was retained, if my recollection
10 is correct, about two or three years ago. There was a
11 lawsuit brought against LIUNA by an ex-employee of the
12 Laborers' Pension Fund, the District Council Pension
13 Fund. A fellow named Became (Phonetic) was the
14 plaintiff. I represented the International Union,
15 which was the defendant, and as a result of depositions
16 and other discovery undertaken the case was withdrawn.
17 And other than -- I know -- I know several folks in the
18 Legal Department. I'm just trying to remember if I've
19 had any other specific cases. None come to mind.
20 Proximately those are the ones I recall.
21 MR. THOMAS: Mr. Vaira, I guess I have an
22 additional concern. I had not realized that that
23 answer was coming concerning prior representation of
24 the Local. I think that that's additional aspects of
25 his qualifications as an expert -- as an independent
914
1 objective expert that would need to be examined. If
2 he's been hired as an advocate for 1001 in the past,
3 and now it's in effect with that prior history he's
4 coming in with the mantle of an objective expert,
5 that's different.
6 THE INDEPENDENT HEARING OFFICER: You don't
7 represent them at the present time; am I correct?
8 THE WITNESS: That's correct.
9 THE INDEPENDENT HEARING OFFICER: It's been
10 -- three years have passed?
11 THE WITNESS: No. The unfair labor practice
12 to which I referred was earlier this year I think.
13 THE INDEPENDENT HEARING OFFICER: That's the
14 International Union.
15 THE WITNESS: No. The International was
16 about three years ago. And it was for the Local that I
17 did their unfair labor practice.
18 MR. THOMAS: But I mean -- sorry. But to me
19 that seems something akin to Mr. Faraci coming in and
20 saying, "I'm a labor lawyer. I'm an expert in this.
21 I've represented them in the past. I've been an
22 advocate. But today I want you to hear me as an
23 objective expert."
24 MR. FARACI: Isn't it the same as Mr. Maria
25 testifying he works for the Inspector General's Office
915
1 part-time? He came in here and testified as an expert
2 a week ago. Actually the only difference is he still
3 works for them and he was allowed to give expert
4 opinions.
5 THE INDEPENDENT HEARING OFFICER: We've had
6 from time to time situations in this Union which -- if
7 this was a disciplinary matter I might be more
8 concerned with it. From time to time this Union where
9 attorneys, because there's not that many Labor
10 attorneys out there, would come in and then in the mix
11 and have represented -- and technically one would be
12 concerned about his objectivity having represented the
13 unions and before very recently. I'm going to let it
14 in and you may argue or you may tell me that it goes to
15 the weight. But he's here, and let's flush it out.
16 That's not a technical really -- as I say, if I were in
17 a situation where I had a jury and had to make some
18 decisions, I would make some other inquiries. But I'm
19 the guy you got to convince and I think I can sort it
20 out. So go ahead.
21 BY MR. FARACI:
22 Q. Mr. Gittler, did I ask you to review certain
23 material prior to your testimony today?
24 A. Yes.
25 Q. Did that include the testimony of Mr. Ray
916
1 Maria given in this proceeding?
2 A. Yes, certain portions of it.
3 Q. Did it also include remittance forms from
4 Local 1001?
5 A. Yes.
6 Q. Did it also include whatever we're going to
7 be referencing to, the GEB Exhibits 23, 24 and 25,
8 which were particular minutes of Local 1001's
9 membership meetings?
10 A. I looked at some minutes you gave me, yes.
11 Q. Those included particular officers' salary
12 resolutions, correct?
13 A. Yes.
14 Q. Mr. Gittler, first I would like to ask you
15 what are the fiduciary duties of an officer of a Local
16 Union under Title 29, Section 501(a). If you can just
17 give us a brief summary of them.
18 A. Insofar as financial dealings are concerned,
19 if I had to summarize the obligations, I would
20 characterize them as doing due diligence, not treating
21 with the organization as an adversary in any manner,
22 and being committed to the financial wellbeing of the
23 membership.
24 Q. In particular how does an officer of a Union
25 fulfill his or her fiduciary duties with the Union with
917
1 respect to officers' salaries?
2 A. The primary obligation would be to follow the
3 membership dictates as far as officers' salaries are
4 concerned, submitting those salaries to the membership,
5 and complying with the determination of the membership.
6 Q. I would like to turn your attention to Mr.
7 Maria's testimony. Earlier you testified that you
8 reviewed that, correct?
9 A. I did. I did review portions of it, yes.
10 Q. I've now handed you what has been -- or what
11 was the testimony of Mr. Maria. This is the transcript
12 of Maria.
13 MR. FARACI: 461.
14 THE INDEPENDENT HEARING OFFICER: Starting
15 461. Okay.
16 BY MR. FARACI:
17 Q. Mr. Gittler, can you please take a look at
18 that again, in particular pages 461 through 463?
19 A. Yes.
20 Q. Okay. In particular on page 462 lines one
21 through ten, Mr. Maria gives an opinion that Local
22 1001's contributions in lieu of direct salary for
23 certain Union officers, a practice of some 40 years was
24 due to the "inability of past and current officers of
25 Local 1001 to discharge their fiduciary
918
1 responsibilities" for the Union.
2 A. I see those words.
3 MR. THOMAS: Wait a minute, Mr. Vaira.
4 THE INDEPENDENT HEARING OFFICER: Go ahead.
5 MR. THOMAS: That was not -- the second half
6 of that question was from the testimony. The first
7 half was not. If he's going to read something to the
8 witness, I ask that he read it the way it is in the
9 transcript.
10 MR. FARACI: I'm asking him to review it. If
11 you like, we can read the whole portion in.
12 MR. THOMAS: Your question was not the same
13 as what's in the transcript.
14 THE INDEPENDENT HEARING OFFICER: Mr. Faraci,
15 you're going to read Mr. Maria's question and answer,
16 and then I presume then you're going to say to this
17 witness, "What is your opinion? Yes or no? Or do you
18 agree with it," or whatever.
19 MR. FARACI: Correct.
20 THE INDEPENDENT HEARING OFFICER: Then you
21 better put it in.
22 MR. THOMAS: The distinction is that the
23 question that he was -- in the actual testimony had to
24 do with underreporting of hours. What he asked in the
25 question had to do with compensation in lieu of salary,
919
1 which is different. So I just ask if you're going to
2 ask him about the testimony, stick to the testimony.
3 THE INDEPENDENT HEARING OFFICER: I'm going
4 to have him read it in.
5 MR. FARACI: Lines one through ten, 461 -- it
6 starts on -- we're going to leave on 462 lines one
7 through ten.
8 THE INDEPENDENT HEARING OFFICER: All right.
9 BY MR. FARACI:
10 Q. It reads: "Having reviewed the documents and
11 listened to the testimony, Mr. Maria, do you have an
12 opinion as to how this was able to happen for
13 approximately 40 years?"
14 "ANSWER: Yes, I do."
15 "QUESTION: What is that opinion?"
16 "ANSWER: This happened as a result of the
17 inability of past and current officers of Local 1001 to
18 discharge their fiduciary responsibilities with regard
19 to the management of business affairs and the monies of
20 members of Local 1001."
21 THE INDEPENDENT HEARING OFFICER: My
22 question, sir, is what are we talking about? Having --
23 do you have an opinion how this was -- what subject
24 matter are we talking about?
25 MR. THOMAS: It's the previous two
920
1 paragraphs.
2 MR. FARACI: The other two pages that I asked
3 him to review.
4 THE INDEPENDENT HEARING OFFICER: At least
5 get it in the record of some subject matter. Because
6 right now you could ask his opinion as to do they have
7 enough coffee.
8 MR. FARACI: We can start on page 461.
9 It says: "I can -- his answer was: "I can
10 explain. The underreporting is clearly important,
11 otherwise we wouldn't have a felony provision requiring
12 people to report properly. But the underreporting from
13 my analysis was -- for the approximately eight to ten
14 people was probably sufficient for those individuals to
15 fulfill pension credit and full welfare participation,
16 meaning the thresholds that were established and
17 testified to by Mr. Jorgensen.
18 But the Funds are harmed by the
19 underreporting because this is money, in some
20 instances, instead of contributing at 40 hours a week
21 actual hours for full-time employee, they're
22 contributing at 32. In effect you have a shortfall of
23 25 per cent of the hours depriving the Funds, both
24 Pension and Welfare Fund, of additional assets which
25 would in effect be invested and ultimately accrued to
921
1 the future benefit of the participants."
2 "QUESTION: Thank you."
3 And then it was the other section that I read
4 in, page 462, one through ten.
5 MR. THOMAS: Mr. Vaira, my problem is I think
6 this is not an accurate reflection of what the
7 antecedent is. The antecedent is the entire prior line
8 of testimony which encompasses two points: The
9 overpayment for ineligible participants and the
10 underpayment for eligible participants. And it's a
11 non-sequitor the way the question is being asked,
12 because, for example, the -- in line three on page 462
13 we're talking about something that happened for 40
14 years. The previous two paragraphs talk about the
15 underreporting for eligible participants. That didn't
16 happen for 40 years. The only thing that happened for
17 40 years was the funding for people that were
18 ineligible.
19 So I think Mr. Faraci's asking the witness
20 something that really isn't a true reflection of the
21 prior testimony on this, at least to encompass the
22 entire bit.
23 THE INDEPENDENT HEARING OFFICER: Let's see
24 if we can narrow this down without completely --
25 MR. FARACI: Let me ask him a question on
922
1 both then. I can ask him if he has an opinion with
2 regards to Local 1001's contributions in lieu of direct
3 salary for a practice of 40 years, was this due to the
4 inability of past and current officers of Local 1001 to
5 discharge their fiduciary responsibilities. That's the
6 first one that you asked me to address.
7 THE INDEPENDENT HEARING OFFICER: Was --
8 we're talking about two things. We're talking about
9 two concepts. One, the funding of the pension for
10 persons who were not -- weren't working.
11 MR. THOMAS: Correct.
12 THE INDEPENDENT HEARING OFFICER: Okay. And
13 two, the underreporting for the secretaries. Those are
14 two different concepts. Now what are you going to ask
15 him about that?
16 MR. FARACI: I'm asking him whether or not the
17 pension contributions that Local 1001 made in lieu of
18 salary for these officers of Local 1001 was a breach of
19 their fiduciary responsibilities in making these
20 payments.
21 MR. THOMAS: I have no problem with that
22 question.
23 THE INDEPENDENT HEARING OFFICER: No problem
24 with that question. I think you summed it up. Okay.
25 Now after having heard all that, you got the
923
1 question? Do you know what question is being asked?
2 THE WITNESS: If I'm being asked whether the
3 payment of pension contributions in lieu of salary for
4 employees, those who perform work for the Local, is in
5 my judgment a violation of Title 5. Is that the
6 question?
7 BY MR. FARACI:
8 Q. Yes.
9 A. If that is, no, I do not believe it is a
10 violation of Title 5.
11 Q. Can you explain why.
12 A. Well for several reasons. Assuming first
13 that services are being performed, what is being given
14 is sufficient amount of compensation to induce
15 continuation of those services. The notion of
16 providing Health and Welfare benefits or Pension
17 benefits is frankly a means of providing compensation.
18 That in and of itself is in no way imprudent that I can
19 think of.
20 Additionally, the fact that it's being done
21 over an extended period of time, given what I
22 understand the obligations are under Title 5, those are
23 -- those obligations don't run only to Local Unions.
24 They run, for example, to other subordinate bodies of
25 International Unions and the International Union
924
1 themself. I assume that was done after audits. Over
2 40 years it's got to turn up somewhere. I assume
3 audits can and should be performed by an International
4 Union. I think that a prudent individual would seek
5 professional assistance in making these judgments. I
6 mean hiring an accountant or CPA or auditor to do these
7 things. The mere fact that compensation is made
8 instead of putting dollars in an individual's pocket,
9 but making a contribution on behalf of that individual,
10 I don't think it even comes close to violating a
11 fiduciary obligation.
12 Q. Thank you.
13 Now with regards to underpayments, I'm going
14 to give you a hypothetical. If Local 1001 had been
15 making underpayments regarding certain contributions
16 for employees and this was picked up in an audit and
17 Local 1001 then paid the amount of money that was owed
18 to the Fund, do you believe their initial payments
19 prior to their knowledge of this underpayment would be
20 a breach of their fiduciary responsibilities?
21 A. No.
22 Q. Can you explain why?
23 A. The way Title 5 is structured and the history
24 of it, as I understand it, was intended to have it
25 operate for us to recognize that labor organizations
925
1 these days are fairly complex organizations. And in
2 running them one must make judgments with particular
3 reference to the unique obligations and duties of a
4 labor organization. Nobody expects a complex
5 organization to be run without any mistakes, without
6 any unintentional mistakes or in some cases even
7 intentional mistakes.
8 What Title 5 provides, however, is not a
9 strict prohibition on the making of mistakes. What
10 Title 5 provides, or more accurately Section 501
11 provides, again as I understand it, is if a mistake is
12 brought to the attention of the responsible officials,
13 usually, but not always, by a member, but it could be
14 brought to their attention by a whole range of folks
15 including professionals, institutionals, superiors and
16 all of that, it specifies what the official should do
17 when that mistake is discovered. And not necessarily,
18 you know, putting on a sack cloth and ashes and beating
19 himself and saying, "Mea culpa, Mea culpa." It's at
20 this point that the due diligence that the statute
21 mandates should be followed.
22 In a case such as you've described in
23 financial situations, if such a situation were brought
24 to the client's attention, the -- namely the official's
25 attention, I'm not sure what would come first, but one
926
1 or two of the first steps to be taken: First, seek
2 professional assistance, and two, stop what you're
3 doing. Stop what it is, assuming no irreparable harm
4 would result. Can't think of any offhand that might
5 result, but you ought to stop it.
6 Once it's stopped, investigations by
7 professionals, a range of professionals, may be
8 considered, and then judgments ultimately are made. It
9 is only where the Union through its officers refuses to
10 act, to respond to the claim of impropriety that the --
11 well that the law allows litigation to be instituted.
12 In fact, congress was so concerned, this is one of the
13 few statutes I'm aware of, particularly in Labor, in
14 fact it's the only one that I'm aware of in Labor, that
15 requires leave of Court to file a lawsuit. And that's
16 in the statute also.
17 So the mere commission of an alleged error
18 does not trigger a violation of Section 501. It is the
19 refusal to act prudently once that is brought to your
20 attention.
21 Q. Thank you.
22 I would like you to take a look at what has
23 been marked as GEB Exhibits 23, 24, and 25. These are
24 particular minutes of Local 1001's nomination meetings,
25 in particular 1991, 1995, and 1999. I think if you can
927
1 first take a look at Number 23 in particular, bate
2 stamped 0779. First we're looking at 23.
3 THE INDEPENDENT HEARING OFFICER: We're
4 talking about the May 1st, 1991.
5 MR. FARACI: Nomination meeting of Local
6 1001.
7 THE INDEPENDENT HEARING OFFICER: May 19th,
8 1991.
9 BY MR. FARACI:
10 Q. And in particular the section that's titled
11 "Compensation To Be Paid to Elected Officials."
12 A. I have two pages with that heading on it,
13 bate 778 and bate 779.
14 Q. Bate 0779, that's resolution number two.
15 This one right there, what's been circled by the GEB
16 Attorney.
17 A. I see what's been circled. I don't know who
18 circled it.
19 Q. If you could just read over again that
20 portion of -- these were documents you reviewed prior
21 to your testimony, correct?
22 A. Yes.
23 Q. Have you had a chance to review it, Mr.
24 Gittler?
25 A. Yes.
928
1 Q. Mr. Gittler, in your 40 years or so, I think
2 you testified to, of dealing in unions, have you had an
3 opportunity to work on a regular basis with a great
4 number of union members over the years?
5 A. Yes.
6 Q. In your experience with these members have
7 you gained an understanding of what the term "adequate
8 disclosure to a member" means?
9 A. I think I understand what a member would
10 expect by adequate disclosure, yes.
11 Q. Can you please define that for us.
12 A. Notice to the member, an opportunity to --
13 for the member to examine a document and an opportunity
14 for the members to express an opinion.
15 Q. Mr. Gittler, with regards to this
16 "Historically contributions for health and welfare and
17 pension benefits have been made for the following
18 positions: Sergeant-at-Arms, Auditors, and Executive
19 Board Members." Do you have an opinion within a
20 reasonable degree of legal certainty whether or not
21 that is adequate notice to the members.
22 MR. THOMAS: Objection.
23 THE INDEPENDENT HEARING OFFICER: I may
24 sustain that objection. I don't think there's enough
25 foundation on that. That particular statement alone
929
1 gives you nothing to indicate where the
2 Sergeant-at-Arms, Auditors, Executive Board members are
3 qualified. Are they working at the calling or what? I
4 think it's too vague.
5 BY MR. FARACI:
6 Q. Did you have a chance to read over Mr.
7 Maria's testimony where he talked about inadequate
8 disclosures to the members.
9 MR. THOMAS: Of what in particular?
10 MR. FARACI: In particular of this Exhibit
11 Number 23.
12 THE WITNESS: I remember reading an answer in
13 which that witness said "inadequate notice." No
14 particular explanation. It just said "inadequate
15 notice."
16 BY MR. FARACI:
17 Q. Do you agree with his opinion at that point
18 that it's inadequate notice this provision to the
19 members?
20 A. Well -- no, I don't agree with that. I don't
21 know what he was talking about.
22 Q. And if you could also take a look at GEB
23 Exhibit Number 24, and in particular bate stamp number
24 0783. Again it's another resolution of compensation to
25 be paid.
930
1 A. What number?
2 Q. 0783.
3 A. Yes.
4 Q. Okay. And again you registered Maria's
5 testimony when he said "This is inadequate disclosure
6 to the members."
7 A. If that's what he said yes, I read that.
8 Q. Do you agree with that?
9 A. No.
10 Q. And again if you could take a look at GEB
11 Exhibit Number 25, in particular bate stamp number
12 0803. Again this is a resolution, except this one is
13 two pages. And the portion we're looking at is at 0804
14 on the back, second page.
15 THE INDEPENDENT HEARING OFFICER: Now how
16 about reading that in. Read in the statement that you
17 believe is adequate notice.
18 MR. FARACI: Well in this particular one it
19 deals with the entire resolution.
20 THE INDEPENDENT HEARING OFFICER: Okay. But
21 go back to -- the question before.
22 MR. FARACI: Okay.
23 BY MR. FARACI:
24 Q. Well the portion that we're talking about
25 that Mr. Maria says is inadequate disclosure,
931
1 "Historically contributions for health and welfare and
2 pension benefits have been made for the following
3 positions since they do not receive a salary:
4 Sergeant-at-Arms, Auditors and Executive Board
5 Members."
6 THE INDEPENDENT HEARING OFFICER: That's all
7 you're asking him to give an opinion on.
8 MR. FARACI: I'm asking him to give an
9 opinion with regards to the entire resolution, whether
10 or not this entire resolution --
11 THE INDEPENDENT HEARING OFFICER: No, no, no,
12 not the entire resolution. You're talking about that?
13 MR. FARACI: The portion that Mr. Maria
14 testified is not adequate.
15 THE INDEPENDENT HEARING OFFICER: That's the
16 point -- we're not talking about the Vice President
17 gets this, the Secretary gets this, and so forth.
18 MR. FARACI: Correct. No. It's encompassed
19 in there.
20 THE INDEPENDENT HEARING OFFICER: No. What
21 you're asking him to talk about is that -- and that's
22 what this whole issue is about, not about -- there's no
23 allegations that the unions -- the officers -- the
24 notice for their salaries.
25 MR. FARACI: Correct.
932
1 THE INDEPENDENT HEARING OFFICER: We're
2 talking about the non-salaried officers and this
3 section here. So go right ahead.
4 MR. FARACI: Correct. Receiving the
5 contributions in lieu of salary.
6 THE INDEPENDENT HEARING OFFICER: Okay.
7 BY MR. FARACI:
8 Q. Do you agree or disagree with Mr. Maria's
9 opinion that that portion that I just read into the
10 record is inadequate disclosure to the members.
11 A. No, I don't agree. May I make an
12 observation, Judge?
13 THE INDEPENDENT HEARING OFFICER: He's going
14 to ask you someplace what you base that on.
15 MR. FARACI: Yes.
16 BY MR. FARACI:
17 Q. Tell us what you're basing that on.
18 THE INDEPENDENT HEARING OFFICER: Which part
19 now?
20 MR. FARACI: We're going to start with Number
21 23 and then we're going to go to 24 and then 25.
22 THE INDEPENDENT HEARING OFFICER: Okay.
23 THE WITNESS: If the question means -- well,
24 if the answer "inadequate notice" means that a working
25 person, a member of the Local, who either read or heard
933
1 these words being read did not understand that these
2 officers would be compensated with health, welfare and
3 pension benefits, I disagree with that. I think a
4 working person, people that could fill out the forms
5 required to hold employment these days, people who
6 assume obligations on a daily basis, particularly in
7 the trades where you have to have more than a minimal
8 education, I think they would clearly understand what
9 this meant.
10 BY MR. FARACI:
11 Q. And would your answer be the same for Number
12 24 and also Number 25?
13 A. Yes. In fact, in 24 --
14 THE INDEPENDENT HEARING OFFICER: They got to
15 point to what we're talking about.
16 MS. NAGLE: You have to say exactly in the
17 record.
18 MR. FARACI: Again in --
19 THE WITNESS: In 24 I'm looking at 0783.
20 MR. FARACI: Correct.
21 THE WITNESS: On 25 I'm looking at 0804. And
22 what I said originally --
23 THE INDEPENDENT HEARING OFFICER: Is that the
24 same language on each one?
25 THE WITNESS: No. These two have an
934
1 additional clause, which the first did not have, and I
2 was about to observe that as far as the two latter
3 paragraphs are concerned, 0783 and 0804, those
4 reinforce my conclusion even more --
5 THE INDEPENDENT HEARING OFFICER: What is
6 that language?
7 THE WITNESS: -- that a working person would
8 understand.
9 THE INDEPENDENT HEARING OFFICER: What's that
10 language?
11 THE WITNESS: The addition of the words,
12 "Since they do not receive a salary." To me it was
13 implicit, and I think to most working people that would
14 be implicit, even in the first one. This makes it even
15 more clear.
16 I suspect if somebody wanted to push it and
17 say, "Well instead of saying since they do not receive
18 a salary, it should say something like in lieu of
19 salary or instead of salary," I'm not sure in lieu of
20 -- these days I suspect in lieu of would be accepted.
21 I think there's no question but that a working person
22 would understand the meaning of this paragraph or these
23 paragraphs.
24 BY MR. FARACI:
25 Q. Mr. Gittler, earlier you had mentioned that
935
1 over the years you've done some work with a coalition
2 in negotiating contracts --
3 A. Yes.
4 Q. For the City of Chicago. Can you expand on
5 that for us?
6 A. The City of Chicago negotiates collective
7 bargaining agreements with about six major bargaining
8 units. One of the six is a coalition primarily but not
9 exclusively of trade unions whose members work for the
10 City of Chicago. There are approximately 28 to 30 such
11 Labor Unions that meet and negotiate with the City
12 together. That's called the Coalition. It's sometimes
13 referred to as the City Coalition. It is what I think
14 those of us who wear white shirts or blue shirts might
15 refer to as a Blue Collar Coalition.
16 The other major bargaining unit with whom the
17 City deals includes the Fraternal Order of Police for
18 the policemen, the firefighters, AFSME, American
19 Federation of State, County and Municipal Employees,
20 which if I had to define the work they do, it would be,
21 well, essentially clerical, although all unions do some
22 clerical work.
23 They also deal with two smaller labor
24 organizations. One is the INA, the Illinois Nurses'
25 Association, and the second is what's called Unit II,
936
1 Roman numeral two, which is a compilation of three
2 labor organizations that was certified -- when the
3 Illinois Labor Act became effective, they were
4 certified together. It's just the certification runs
5 to all three. The City's obligated to deal with them
6 on that basis. So it's referred to as Unit II because
7 that was its number on the ballot.
8 Q. Is Local 1001 a member of one of these
9 coalitions?
10 A. Local 1001 is a member of the City Coalition,
11 the Blue Collar Coalition, the Trade Coalition.
12 Q. Do they have a position working with you in
13 this coalition?
14 A. They have representatives at the bargaining
15 table as do the other 28 or 27 to 29 labor
16 organizations. Because of the number of City of
17 Chicago employees that Local 1001 represents, Local
18 1001 along with Local 726 of the Teamsters, who also
19 represent a very large number of City employees, are
20 the Co-Chairs of the Trade Coalition.
21 Q. So 1001 is one of the Co-Chairs of the Trade
22 Coalition?
23 A. Yes.
24 Q. And are you presently negotiating a contract
25 with the City of Chicago with this coalition?
937
1 A. I am presently trying to get the City of
2 Chicago to deal in good faith, which they've had a very
3 hard time coming to. But in the sense that you use the
4 term, yeah, we are meeting and trying to negotiate a
5 successor to the collective bargaining agreement which
6 expired June 30 of this year.
7 Q. And that would be for the benefit of the
8 members of Local 1001?
9 A. Local 1001 and -- well the other members of
10 the Coalition as well.
11 Q. Mr. Gittler, do you have an opinion --
12 A. Let me just make one other point because it
13 may be relevant. The Coalition negotiates with the
14 City at two levels. There's the Coalition level or the
15 Master level. This is where all of those coalition
16 unions that I mentioned deal with representatives in
17 the City of Chicago on issues of common interest,
18 issues which cut across the board. Health care, for
19 example, which affects all employees in the City,
20 grievance matters, no strike matters, a whole range of
21 matters which uniformly impact all the unions in the
22 coalition.
23 Each of the unions in the coalition, in
24 addition to dealing on a Master level, has the right
25 and must exercise the right to negotiate with the City
938
1 on what we refer to as the Local level where only that
2 union meets with City representatives, and they
3 negotiate issues which are unique to that Local Union.
4 The most obvious example of issues which are unique are
5 the means of dealing with transfers, promotions,
6 seniority issues I guess, how you use seniority to get
7 jobs, layoffs, bumping rights, those kinds of things.
8 So there's a dual approach to bargaining with the City.
9 Q. I've got a couple more questions for you.
10 Do you have an opinion as to what would
11 happen to the Coalition's negotiating power with the
12 City of Chicago if a Trustee were to be placed in Local
13 1001.
14 MR. THOMAS: Objection.
15 THE INDEPENDENT HEARING OFFICER: I'll
16 sustain that objection. That's not an expert opinion.
17 MR. FARACI: I'm asking him with regards to
18 his leading of the Coalition what would happen to his
19 negotiating power.
20 MR. THOMAS: Same objection.
21 THE INDEPENDENT HEARING OFFICER: Sustained.
22 BY MR. FARACI:
23 Q. Mr. Gittler, do you have an opinion as to
24 what would happen to the members' rights and benefits
25 if this current administration is not allowed to
939
1 continue negotiating with the City of Chicago if a
2 Trustee is placed in office here with regards to those
3 lower level Coalitions that you were talking about.
4 MR. THOMAS: Objection.
5 THE INDEPENDENT HEARING OFFICER: Sustain the
6 objection.
7 BY MR. FARACI:
8 Q. Mr. Gittler, if you could just tell us what
9 contributions has Local 1001 made to this Coalition
10 with regards to negotiating with the City of Chicago.
11 MR. THOMAS: I'm sorry. Excuse me. This is
12 a fact question, not an expert question.
13 THE INDEPENDENT HEARING OFFICER: I think
14 he's entitled to that.
15 MR. THOMAS: So long as that's clear.
16 THE INDEPENDENT HEARING OFFICER: I mean he's
17 entitled to that. He is in effect negotiating on
18 behalf to a certain extent, and they're entitled to
19 demonstrate what they've done for the Coalition.
20 MR. THOMAS: But you see the nature of my
21 objection is part of this testimony purports to be
22 expert testimony and part purports to be fact.
23 THE INDEPENDENT HEARING OFFICER: I recognize
24 that.
25 MR. THOMAS: Thank you.
940
1 THE INDEPENDENT HEARING OFFICER: Go ahead.
2 THE WITNESS: The individuals currently
3 representing Local 1001, particularly at the Local
4 level, because of their relationships with City
5 Managers, which has evolved over the terms of the
6 contract or however long they've had, are particularly
7 significant relationships. And their ability to --
8 that is the Union officials' ability to persuade or
9 otherwise obtain benefits at the Local level have in
10 the past and I think still would have significant
11 impact on the ability of the Coalition who look to
12 these unions because of their size primarily as
13 leaders. The ability -- I think because of the absence
14 of such relationships the ability to achieve
15 improvements would be severely affected adversely.
16 BY MR. FARACI:
17 Q. Who would that be -- who are you working with
18 at Local 1001 at the present time.
19 A. You mean the name of the individuals?
20 Q. Yes.
21 A. Nick Gironda. I'm trying to think who is at
22 the negotiations.
23 THE INDEPENDENT HEARING OFFICER: You may
24 suggest.
25 BY MR. FARACI:
941
1 Q. Would it be Mr. Chianelli, Mr. DeChristopher,
2 Mr. Gibson?
3 A. DeChristopher, yes. Mr. Gibson I haven't
4 seen at the negotiations as often.
5 Q. Mr. Chianelli, Bobby Chianelli?
6 A. Yes. I'm sorry --
7 MR. GIRONDA: Yeah, Bobby Chi.
8 (Voices from audience.)
9 THE INDEPENDENT HEARING OFFICER: Settle
10 down. There is a -- there is a private joke, but
11 there's some issue of contention here and you just
12 sparked it, and that's what that's all about. They're
13 not laughing at your testimony.
14 THE WITNESS: Feel free to laugh.
15 BY MR. FARACI:
16 Q. Go ahead.
17 A. These are the individuals who when problems
18 arise during the administration of the contract respond
19 to the members' requests, and these are the individuals
20 who are the advocates for the members.
21 Q. So their importance would be not only in
22 negotiating but also in making sure that the City
23 continues to follow its obligations pursuant to the
24 contract?
25 A. In so far as anybody could convince the City
942
1 of Chicago to follow its written commitments, yes.
2 MR. FARACI: Thank you. I have no further
3 questions.
4 THE INDEPENDENT HEARING OFFICER: I have one
5 question. I just want to clarify.
6 When you said that they -- that the sentence,
7 "Historically contributions for health and welfare and
8 pension benefits have been made for the following
9 positions since they do not receive a salary," and they
10 listed the three, you said that was an adequate notice.
11 Does that presume that those persons who are -- who are
12 in those offices are qualified to hold offices under
13 the Union Constitution.
14 THE WITNESS: I'm not sure I understand your
15 question.
16 THE INDEPENDENT HEARING OFFICER: The
17 question is: Is that notice? And you took that
18 statement -- said the statement that "Historically
19 contributions for health and welfare and pension
20 benefits have been made for the following positions
21 since they do not receive a salary: Sergeant-at-Arms,
22 Auditors, and Executive Board Members." And you said
23 that was adequate notice.
24 THE WITNESS: Yes, that was adequate notice.
25 And I think a member would understand what this
943
1 language means.
2 THE INDEPENDENT HEARING OFFICER: Now does
3 your opinion presuppose that those persons who hold the
4 position of Auditor, let's say for example, was
5 qualified to hold that position under the Union
6 Constitution.
7 THE WITNESS: The way this is written that
8 did not enter into the opinion I've expressed because
9 this doesn't use names.
10 THE INDEPENDENT HEARING OFFICER: Okay.
11 THE WITNESS: All this says is the folks that
12 hold these positions will receive, instead of a salary,
13 instead of an hourly wage, they will receive health,
14 welfare and pension contributions.
15 THE INDEPENDENT HEARING OFFICER: And that
16 presumes that the persons who hold them are qualified
17 to hold them, hold that position. Otherwise --
18 THE WITNESS: If they're not qualified, how
19 would they hold them?
20 THE INDEPENDENT HEARING OFFICER: Good
21 enough. Thank you. That's the answer I'm looking for.
22 When you talk about notice, are they qualified to hold
23 those positions under the Constitution. And if they're
24 not, that they -- that your opinion wouldn't follow.
25 THE WITNESS: Well if an individual's
944
1 qualifications is being contested after they hold the
2 position, what Landrum-Griffin says is that you have to
3 escrow the salaries until -- not salaries. Escrow the
4 compensation until that issue was resolved.
5 THE INDEPENDENT HEARING OFFICER: We
6 understand. Okay.
7 CROSS EXAMINATION
8 BY
9 MR. THOMAS:
10 Q. Good evening, Mr. Gittler. How are you?
11 A. So far I'm okay.
12 Q. Just following up on that topic briefly while
13 we're there concerning Exhibits 23, 24, and 25, is
14 there anything on those sheets of paper that would tell
15 the membership who the individuals are that are being
16 talked about?
17 A. The officers.
18 Q. No. But who? Who? For example, it says
19 "Sergeant-at-Arms, Auditors, Executive Board Members."
20 A. Well you don't know that until after the
21 election.
22 Q. Understood. But --
23 A. The basic concept, and this is true of not
24 all but many unions, is that the terms and conditions
25 attendant to an office should be set before -- at or
945
1 before nominations so that an individual choosing to
2 run for office, while I'm sure many run for office for
3 non-material reasons, will at least know what their
4 compensation is going to be. So you really never know
5 at the time you're approving salaries who is going to
6 receive them.
7 Q. Understood.
8 As you look at that document, if you're a
9 member just reviewing this, you come into this
10 nomination meeting and you want to figure out what's
11 going on.
12 A. Or you come to the Union Hall and read it,
13 yes.
14 Q. And you read this document. Can you tell,
15 without asking further questions, how many people are
16 going to get this benefit?
17 A. Just by looking at this?
18 Q. Yes.
19 A. Probably not.
20 Q. Okay. How about the amount of money? If
21 you're the member and you want to know whether your
22 dues money is being spent appropriately or not and
23 whether to voice an objection or not, is there anything
24 here that tells you how much money they're actually
25 giving to these people.
946
1 A. In this resolution?
2 Q. Yes.
3 A. Obviously not. But if you're asking whether
4 that information is available, it's available through a
5 myriad of resources.
6 Q. Well if the member knows where to look for it
7 or to ask for it, right?
8 A. Well in this particular case, counsel, if the
9 member is working for the City of Chicago, that member
10 knows contributions are being made on his or her
11 behalf. Now they're not identical to these, but you
12 can find that out.
13 Q. Mr. Gittler, please listen to the question.
14 A. Yes.
15 Q. If the member comes to the meeting --
16 A. Right.
17 Q. And this, by the way, is a document prepared
18 after the fact; isn't that right?
19 A. I don't know what you mean.
20 Q. These are minutes, right?
21 A. This is a resolution, as I understood it,
22 that was presented to the membership. The minutes --
23 the minutes, I assume, are "after the fact" to use your
24 term, but the resolution I would not assume was after
25 the fact.
947
1 Q. So let's assume that resolution number two is
2 actually on the table. People can look at it if they
3 want to see it, okay?
4 A. Okay.
5 Q. Is there anything on that resolution that
6 would give the membership any idea how much money, how
7 many dollars we're actually talking about before they
8 vote on it?
9 A. There are no numbers on the resolution,
10 counsel, that's clear.
11 Q. Okay. And --
12 A. But if you're asking whether --
13 THE INDEPENDENT HEARING OFFICER: Go ahead.
14 THE WITNESS: If you're asking whether a
15 member of a union would have a sense as to how much is
16 involved in the contributions, I would say yes, that
17 member would have a very keen sense even if it doesn't
18 have -- he or she doesn't have the exact amount. I
19 think they would have a very keen sense as to what was
20 being paid at the time.
21 BY MR. THOMAS:
22 Q. Well you do understand, I believe, that
23 pension credits are based on hours worked, right?
24 A. I don't know. If you're telling me that's
25 the case -- I mean I know -- I know unions where
948
1 pension credits are not only based on hours worked, or
2 are based on -- I shouldn't say unions. I know Funds
3 or Trust Agreements where pension credits are based on
4 factors other than hours worked.
5 Q. All right. So how is a union member going to
6 have such a keen sense if there are all these different
7 factors that impact what the actual numbers are. You
8 said a union member would have a keen sense of this.
9 A. Yes.
10 Q. How would a union member looking at this
11 document have a keen sense of what the actual dollars
12 are that he's voting for?
13 A. I think a union member would have a sense as
14 to what contributions are for a pension, what
15 contributions are for a Health and Welfare Fund.
16 Q. So if you were a member coming in and looking
17 at this resolution, would you know whether you were
18 looking at voting for ten thousand dollars a year,
19 fifty thousand dollars a year, a hundred thousand
20 dollars a year? How would you tell?
21 A. If I came in without any experience, without
22 any predicate, I guess I wouldn't know.
23 Q. And if you had the experience how would you
24 tell?
25 A. Well you know what's being paid on your
949
1 behalf.
2 Q. And --
3 A. You have a fair sense that that's what's
4 being paid on behalf of the Sergeant-at-Arms, Auditors
5 and Executive Board.
6 Q. And suppose the Trust Agreement says that the
7 laborer is going to get pension and contributions based
8 on actual hours worked, okay, that's way the Trust
9 Agreement is set up. You would assume then, if you
10 have this keen sense as a laborer, that these other
11 guys who were getting pension and welfare benefits are
12 -- it's going to be based on the same criteria, right?
13 A. Not necessarily.
14 Q. You would not assume that?
15 A. I'm saying a keen sense. For example, the
16 City of Chicago. If you work for the City of Chicago,
17 and it's my understanding, although I haven't looked at
18 any books or anything, it's my understanding that most
19 if not all of the members of Local 1001 are employed by
20 the City of Chicago. If you work for the City of
21 Chicago and work 52 hours every week, the only thing
22 the City will pay on your behalf is 40 hours. They
23 don't pay for overtime.
24 Q. Understood.
25 MR. FARACI: Objection. If he can let Mr.
950
1 Gittler answer instead of interrupting.
2 THE INDEPENDENT HEARING OFFICER: He said he
3 understood. Go ahead.
4 THE WITNESS: All I'm saying is your focus on
5 the number of hours worked as the criteria, even where
6 the numbers about -- excuse me. Even where the number
7 of hours worked may be a function of the Trust
8 Agreement is not always the reality. If the collective
9 bargaining agreement says that pension shall be paid
10 only on base salary, pension shall not be paid on
11 holiday pay or other premiums, that's what controls the
12 employer.
13 BY MR. THOMAS:
14 Q. So have you actually looked at the governing
15 documents in this matter?
16 A. No.
17 Q. So when you talk about this not being
18 adequate disclosure or this being adequate disclosure,
19 you're doing it in the context of not actually having
20 read what the criteria are, correct?
21 MR. FARACI: Objection. The testimony was
22 with regards to fiduciary responsibilities pursuant to
23 Section 501, not the Trust Agreements.
24 THE INDEPENDENT HEARING OFFICER: That's a
25 fair question. You may answer it.
951
1 BY MR. THOMAS
2 Q. Did you get the question?
3 A. No.
4 Q. In -- you have given an opinion that this is
5 adequate disclosure, but you've given -- you've given
6 that opinion without having read and reviewed the
7 governing documents that would determine whether these
8 credits are eligible or not, whether these people are
9 eligible or not.
10 A. No. I said before the eligibility of a
11 particular individual is not something I consider
12 because I don't know who the individual is.
13 Q. But in this case --
14 A. It's not specified here. The specific
15 amount, I said before, is not reflected in here.
16 Separate from the fact that if that information was
17 sought, it would be readily available from several
18 sources. What I said or what I meant to say, was that
19 a working person reading this paragraph would
20 understand that these three offices are being
21 compensated not by a weekly salary, not by an hourly
22 wage, but by Pension contributions and Health and
23 Welfare contributions without knowing the amount.
24 Q. Thank you, but that wasn't the question I
25 asked you.
952
1 A. I thought that was the question.
2 Q. The question I asked you was: How can you
3 determine that this is adequate disclosure without
4 having even read the eligibility criteria.
5 A. I said again, and unless we're
6 misunderstanding each other, you're asking whether a
7 particular individual --
8 Q. No.
9 A. -- might be eligible.
10 Q. I'm asking how you can express an expert
11 opinion as to the adequacy of this disclosure when you
12 haven't even read the governing documents that
13 determine how these Funds are run.
14 A. The disclosure that I said was adequate was
15 notice to the membership that anyone who was elected to
16 these offices would receive pension and health and
17 welfare contributions instead of a weekly salary or an
18 hourly wage, that anybody looking at this would know
19 how much just by looking at this, I said, I think this
20 will be the third time, no, you wouldn't know what the
21 dollars are, which dollars I assume will be changing
22 during the course of -- I think the officials are
23 elected three years? That will probably change during
24 that period of time.
25 Q. Would there be anything in this document that
953
1 would tell you whether or not the Union was doing this
2 in a way that was legal or not legal.
3 A. Was doing what?
4 Q. The matter that's circled right there.
5 They're making contributions to the Pension and Health
6 and Welfare Fund. Is there anything there that gives
7 you any indication of whether they're doing it in a way
8 that's legally proper or not.
9 A. I think unless you want me to assume that
10 somebody whose been attending union meetings for, let's
11 see, going back to '91 at least, that's 12 years.
12 Anybody who has been attending union meetings for over
13 a decade is not going to assume that a practice which
14 is so open and notorious is illegal. I mean if an
15 assumption is going to be made, counsel, I would say
16 that a practice of this historical value would be
17 assumed to be lawful.
18 Q. Okay. Well let's pursue that.
19 If this is "open and notorious", to use your
20 term, you would expect there to be similarly open and
21 notorious paperwork that would flow from this, right?
22 There would be -- are remittance reports to the Funds,
23 there would be LM-2's that would be filed?
24 A. Remittance reports again, unless there's
25 something unique here, are from the Funds, not to the
954
1 Funds. The Funds prepare remittance records.
2 Q. The Union generates a document for the Funds,
3 correct?
4 A. At some point, yes. And the Funds will send
5 the employer -- in this case the Union is the employer.
6 The Funds -- again, unless there's a different
7 operation here, the Funds will send to the employer
8 what the Funds say is owed and they will specify the
9 hours.
10 Q. The baseline though for that information is
11 provided by the Union itself, correct?
12 A. It's provided by the Fund.
13 Q. So your understanding is that the Funds are
14 simply going to know without any data from the unions
15 who these people are and how much they're working?
16 A. To a very large extent many funds do that,
17 but also many funds have their own auditing procedures
18 where they will send Fund auditors out to verify what
19 the employer says. Whether the employer is Local 1001,
20 whether the employer is the XYZ Paving Company, whoever
21 it is, the Fund will accept the information that the
22 employer provides up to a point. Now there is --
23 excuse me. Go ahead.
24 Q. I didn't mean to cut you off. I thought you
25 were finished.
955
1 A. I'm done. I'm just going on. Lawyers tend
2 to do that.
3 Q. Have you read the complaint in this case?
4 A. The complaint?
5 Q. The complaint.
6 A. What is the complaint?
7 Q. The operative charging document here.
8 A. I have a recollection of -- well actually --
9 I can't say I have a specific recollection of it, but I
10 believe I did read it at one point.
11 Q. And when would that have been? I just want
12 to make sure we're talking about the same document
13 here.
14 A. I don't know. I'll tell you Judge Leighton
15 asked me to review some material months ago, maybe
16 more.
17 Q. Before September?
18 A. Of this year?
19 Q. Yes.
20 A. I can't recall. So I don't want to say -- I
21 thought I had read what you've called the charge.
22 Q. Okay.
23 A. But I have no specific recollection of it.
24 Q. And you've not read the Trust Agreements that
25 govern the Fund?
956
1 A. No, I have not.
2 Q. Have you reviewed any of the correspondence
3 or reports between the Union and the Funds themselves
4 about these contributions?
5 A. I have been shown I think some remittance
6 forms, one or two remittance forms.
7 Q. Have you seen any provisions either in the
8 Trust Agreement -- you said you haven't read the Trust
9 Agreement. In any of these documents indicating that
10 the way Local 1001 and the Funds operate is that the
11 pension contributions are based on actual hours worked.
12 Are you familiar with that?
13 A. The remittance forms I believe talk in terms
14 of -- there's a provision on the bottom I think that
15 has two purposes. One, it is to bind the employer to
16 the governing documents, which is a Taft-Hartley
17 requirement, and the other is to establish the accuracy
18 of hours, yes.
19 Q. And who's got the obligation to establish the
20 accuracy of hours.
21 A. According to that note the employer.
22 Q. The person?
23 A. If I remember it correctly, the person
24 filling it out for the employer, yes.
25 Q. The person filling out the form and signing
957
1 it, basically certifying "These hours are real and I
2 worked it," or --
3 A. Well it says, if I remember them correctly,
4 the actual hours worked.
5 Q. Right. Did you look at those documents in
6 this instance?
7 A. Which documents? The remittance forms?
8 Q. Yes.
9 A. I said I saw one or two of them, yes.
10 Q. And did you compare them to any of the other
11 documents in the case.
12 A. No.
13 Q. As a Labor lawyer are you familiar with the
14 fact that there's a federal felony provision that
15 governs -- criminal felony provision that governs the
16 transmittal of that information from the employer to
17 the Fund?
18 A. Yeah. 18 -- Title 1027, somewhere around
19 there.
20 Q. Exactly. So you're familiar with that
21 statute.
22 A. I know it exists and we try to avoid it as
23 much as possible.
24 Q. That's good news.
25 And the way you try to avoid that is you put
958
1 truthful information down on the form, right?
2 A. You put information that is required by the
3 Fund, yes.
4 Q. You were changing the phraseology of the
5 question there a little bit. Was there something wrong
6 with the word "truthful"?
7 A. Truthful as that term is known to by the --
8 if you're equating truthful with precise, then I don't
9 agree that's what's required.
10 Q. Keep going.
11 A. Well I said, that form, as I recall, requires
12 a certification or some statement that the --
13 THE INDEPENDENT HEARING OFFICER: Gentlemen,
14 can we agree that you're asking for accurate
15 information?
16 THE WITNESS: That's it. Accurate usually
17 means to the Fund that enough hours are reported to be
18 consistent with the monies paid by the employer.
19 BY MR. THOMAS:
20 Q. So you don't --
21 A. If the most number of hours for which you can
22 get credit is 40 and you work 58 hours a week or 41
23 hours a week, there is no value in putting down 41 or
24 52 or 68 hours because the Fund doesn't care about
25 that.
959
1 Q. How about the other way?
2 A. In what sense?
3 Q. Suppose the real hours are zero and what's
4 written down is 40.
5 A. You mean an employer is going to pay more
6 than is required?
7 Q. Yes.
8 A. Usually the audits and all, when we send them
9 out for employers we're looking for employers that are
10 trying to chisel us, not that are trying to pay us
11 money.
12 Q. But in this instance -- the employer is Local
13 1001 in this instance, right?
14 A. Whether they're a Labor Union or whether
15 they're the ABC Paving Company or the City of Chicago,
16 they're an employer. They have a certain self
17 interest. And their self interest is to, I think --
18 I'm trying to think of a nice way to say chisel. But
19 the employer's self interest is to minimize that
20 financial obligation.
21 Q. Hold that thought, that thought right there.
22 If the employer -- we're looking at people
23 that are trying to chisel us.
24 MR. FARACI: If I could. He's gone well
25 beyond the scope of what his examination -- I let it go
960
1 on for a little while, but he's continuing further and
2 further off.
3 THE INDEPENDENT HEARING OFFICER: We're
4 talking about -- this is a factual demonstration of the
5 employer's self interest to minimize financial
6 obligations.
7 MR. THOMAS: Hold that thought right there.
8 MR. FARACI: I object if I could real quick.
9 He's going well beyond the scope of what this
10 examination was, and I let it go on for a little while.
11 He's continuing further and further off.
12 THE INDEPENDENT HEARING OFFICER: We're
13 talking about some credibility. We're talking about
14 subject matter. I have a hard time -- this is not a
15 person that comes in and gives a factual demonstration
16 that he saw seven persons leave, and the question is
17 whether it's seven or eight. This is an expert. And
18 if I thought it was going too far I would stop it, but
19 this isn't going that far so you may continue. I give
20 you a warning though that there are some limits here.
21 THE WITNESS: I think the answer was, I was
22 looking for a euphemism for the word chisel.
23 BY MR. THOMAS:
24 Q. Before that colloquy and that objection you
25 gave an answer that's essentially saying that the usual
961
1 scenario is that the employer is trying to save some
2 money and underfund things. Is that the gist of what
3 you were saying?
4 A. The employer I think sometimes has to be
5 reviewed to ensure that he is paying what the employee
6 expects, what the Fund expects, yeah.
7 Q. And in this instance -- what we're talking
8 about in this case is the Local Union as employer.
9 A. Yes.
10 Q. So in that sense it's a little different from
11 the typical bargaining situation with a contractor,
12 correct?
13 A. I don't see how, but if you -- I mean an
14 employer is an employer. And if the fiduciary
15 obligation of a labor official is under 501 different
16 somehow, then I don't know if an employer has a
17 fiduciary obligation to a Fund. I've never known any
18 employers to be brought up under 1027. It's usually
19 the unions that get it.
20 Q. Let me ask you this.
21 A. Sure.
22 Q. The amounts -- strike that.
23 In a situation where an officer has zero or
24 close to zero actual hours worked and the Trust
25 Agreement stipulates that pension credits are based on
962
1 hours worked, what you would expect to see then in a
2 situation like that is that the employer can report
3 only the hours that they've actually worked, right?
4 A. Well the hours for which they are responsible
5 to pay. For example, and I'm not playing games. All
6 I'm trying to say is that the word "actual" in my
7 experience does not always mean the same as the word
8 "precise". I've got collective bargaining agreements
9 which obligate an employer to pay, for example, if an
10 individual is injured on the job and unable to work,
11 for the duration or in many cases a defined period of
12 time while the employee is off the job, he still has to
13 pay health and welfare benefits. He still has to pay
14 pension benefits.
15 Best example of that recently is FMLA, the
16 Family Medical Leave Act. A person can be off the job,
17 not working any hours, yet the employer's obligated to
18 pay health and welfare contributions.
19 Q. Take a look at Exhibit Number 8 if you would.
20 THE INDEPENDENT HEARING OFFICER: What is 8?
21 MR. THOMAS: GEB Attorney 8.
22 And the last page of that. Do you see that?
23 THE WITNESS: Do I see what you've just shown
24 me? Yes.
25 BY MR. THOMAS:
963
1 Q. And down at the bottom there's a
2 certification, right, where it says "Employer's
3 Warranty and Acceptance"?
4 A. Yes, I see that.
5 Q. It says, "The undersigned employer hereby
6 warrants that this report accurately states all hours
7 worked by all Laborers in its employ."
8 A. Okay.
9 Q. You see that?
10 A. Yes, I do see that.
11 Q. Does that mean anything other than what it
12 says?
13 A. If you're reading all hours worked as
14 something different than hours required for pension
15 credit or health and welfare credit, whatever this is--
16 Q. What does that mean what you just said?
17 Hours required to be eligible? What does that --
18 A. I'm looking at the name Willie Bates.
19 Q. Okay.
20 A. They've got 160 hours for Willie Bates.
21 Q. Right.
22 A. The expectation is that the employer in this
23 case, Local 1001, will pay the value of 160 hours
24 worked. It may very well be that Willie Bates -- 160
25 hours, I'm assuming, is four weeks. May very well be
964
1 that Willie Bates may have injured himself and been off
2 work for a week. If the employer is obligated to pay
3 for that time off, this is an accurate reflection of
4 the employer's obligation even though Willie Bates may
5 not have worked 160 hours. He may have worked three
6 weeks and been off for a week.
7 Q. Let me ask you --
8 A. It is possible, because of what's involved --
9 I have no idea how many hundreds or thousands of these
10 forms the Fund has to deal with. What one could
11 assume, that from the employer's point of view there
12 are fewer because the employer is dealing only with its
13 employees. The Fund is dealing with all of the
14 employees. To make the kind of changes, each reporting
15 period would be a staggering increase, I suspect, in
16 the Fund's obligation.
17 Q. I'm sorry, Mr. Gittler --
18 MR. FARACI: Objection. Just let him finish.
19 THE INDEPENDENT HEARING OFFICER: Let me ask
20 -- I think that Mr. Faraci was somewhat on point.
21 We're getting a little too far. He did --
22 MR. THOMAS: Mr. Vaira --
23 THE INDEPENDENT HEARING OFFICER: He did come
24 and testify and gave an expert opinion on a couple
25 things and --
965
1 MR. THOMAS: But he's -- I ask a straight
2 forward question and he's going 20 miles beyond it.
3 And I just want to get an answer to a straight
4 question.
5 THE INDEPENDENT HEARING OFFICER: But I'm
6 trying to narrow the issue down.
7 MR. FARACI: He's going well beyond where we
8 started.
9 THE INDEPENDENT HEARING OFFICER: And he gave
10 an answer on several other things, but the main part
11 was this adequate disclosure which we, I believe, have
12 exhausted. Now you have repeated and come back with
13 several other hypothetical questions along that same
14 line, but I don't know how much further we can explore
15 this.
16 MR. THOMAS: I'll do my best, but if you can
17 ask the witness to please try to confine his answer to
18 the question, then I think we will --
19 THE INDEPENDENT HEARING OFFICER: You see
20 where I'm going.
21 MR. THOMAS: I do.
22 THE INDEPENDENT HEARING OFFICER: Now just
23 give me some idea of where you're heading here.
24 MR. THOMAS: I want to get a straight answer
25 from the witness as to whether he thinks this warranty
966
1 and acceptance means what it says. And we got a lot of
2 words, but I didn't get an answer to that question.
3 THE INDEPENDENT HEARING OFFICER: But I mean,
4 how does this factor into his -- the scope of his
5 direct on his expert testimony?
6 MR. THOMAS: He has said that it's totally
7 fine for these people to make contributions in lieu of
8 salary to the benefit of the Funds and the Health and
9 Welfare Funds. And I'm asking him questions -- he's
10 talked about it all being open and notorious and so
11 forth, and I'm saying if it's open and notorious, one
12 would expect the paperwork associated with it to be
13 clean and open and notorious as he well, and that's
14 where I am right now.
15 THE INDEPENDENT HEARING OFFICER: Okay. Ask
16 him that.
17 BY MR. THOMAS:
18 Q. Mr. Gittler, on that same page down at the
19 bottom, "Employer's Warranty and Acceptance," if I'm
20 hearing you correctly you're saying that when the
21 employer warrants that this report actually states all
22 hours worked, what that really means is all hours as to
23 which the person is eligible.
24 A. No. All hours for which the employer is
25 responsible.
967
1 Q. Okay. Now, suppose the person works zero
2 hours and the employer says --
3 MR. FARACI: Objection. He's asking a
4 hypothetical question that's not even one of the issues
5 in this case. He's asking about someone working zero
6 hours. It's not even alleged anywhere that he was
7 working zero hours.
8 THE INDEPENDENT HEARING OFFICER: Well I
9 thought he answered the question. You may ask one
10 follow-up, but I believe that's simply a -- he said
11 that he's obligated to pay, all right, if the
12 employer's obligated to pay, all right?
13 Follow-up with a question. Go ahead.
14 BY MR. THOMAS:
15 Q. Mr. Gittler, if the person in question worked
16 zero hours and the Fund writes down 120 -- excuse me.
17 The employer writes down 120 or 160 hours here because
18 they voted to make this form of compensation, is that
19 an accurate certification in your view if the
20 discrepancy is zero versus 160.
21 A. Is the employer obligated to pay? If the
22 employer is obligated to pay, I don't see that as
23 inconsistent with the Employer's Warranty and
24 Acceptance.
25 Q. Okay. Let me ask you this: Who reads this
968
1 document?
2 A. Who reads it?
3 Q. Who gets it.
4 A. Well both -- well the Fund at some point gets
5 it and then the employer gets it.
6 Q. And why does federal criminal law require --
7 MR. FARACI: Objection. You asked him to ask
8 one follow-up question. Now he's on --
9 THE INDEPENDENT HEARING OFFICER: We're
10 almost done. We're almost done.
11 BY MR. THOMAS:
12 Q. Why is this important that this be signed and
13 certified, because someone's relying on it?
14 A. I'm sorry. I wasn't listening.
15 Q. Is someone relying on this document?
16 A. This document being this exhibit? Yeah, I
17 assume someone is relying on it.
18 Q. The Funds are relying on it, correct?
19 A. Yeah, the Funds are relying on it and the
20 employer's relying on it, yes.
21 Q. And you're saying that the Funds would know
22 that actual hours worked doesn't really mean actual
23 hours worked.
24 A. I'm saying that the Fund would know that
25 actuarially what's important is not the hours worked
969
1 but that the proper payment is made. As far as the
2 actuaries are concerned, the people that determine what
3 the benefits are, they want to be sure that the proper
4 contribution is made for the hours that are required.
5 If Mr. Bates -- yeah. Mr. Bates did not work
6 an hour because of an on-the-job injury and the
7 collective agreement says the employer in that
8 circumstance is obligated to pay four weeks, from the
9 Fund's point of view when you put down 160 -- as long
10 as you put down 160, it's fine even if he didn't work a
11 day.
12 Q. Okay. And if I understood your testimony
13 earlier, you're saying basically it's okay to do this
14 as a form of compensation; is that right? That the
15 membership can vote -- in lieu of a salary they can
16 vote for a form of compensation that can take this
17 form, correct?
18 A. Yeah.
19 Q. And if it's compensation, it should be
20 reported as compensation, correct?
21 A. I'm not sure I understand that.
22 Q. Well, there are at least two ways in which
23 compensation needs to be reported, right? One is
24 income taxes, right? If you receive income you have to
25 report that, right?
970
1 A. I've been told, yeah, you got to do that.
2 Q. And the second is that if the Labor Union --
3 MR. FARACI: Objection again.
4 MR. LYDON: This is beyond the scope.
5 THE INDEPENDENT HEARING OFFICER: Gentlemen,
6 gentlemen, look, look. I know where we're going here.
7 I understand the issue. I understand his answers. I'm
8 the guy you got to convince. I understand what he's
9 saying. And I understand what he said, and it's -- and
10 this is not about was somebody injured and they had to
11 pay 160 hours. Did he work, and are they required to
12 pay that money, and are they truthful? Isn't that the
13 issue?
14 MR. THOMAS: That's one of several issues,
15 but it seems to me --
16 THE INDEPENDENT HEARING OFFICER: Okay. And
17 you asked him and he didn't answer it. We are arguing
18 about something that is beyond what his -- what his
19 expert opinion was. Now we're going back and forth and
20 trying to cut this cake a little thin. I understand
21 what the issue is and understand what those documents
22 are supposed to mean. It has nothing to do with
23 somebody who has been injured on the job and the
24 employer's entitled to pay for three weeks but he only
25 paid for two or something like that. All right? So I
971
1 get the picture.
2 MR. THOMAS: What can I say? You've got the
3 picture.
4 MR. LYDON: Respectfully I think that you may
5 have put something in there that I don't think is -- he
6 gave that as an example.
7 THE INDEPENDENT HEARING OFFICER: He gave an
8 example.
9 MR. LYDON: With the guy who's unemployed.
10 THE INDEPENDENT HEARING OFFICER: He gave the
11 example ten times, ten times. I heard that example ten
12 times.
13 MR. LYDON: But his opinion is it's the
14 obligation to pay. That's the important thing.
15 THE INDEPENDENT HEARING OFFICER: That's
16 true. It's the obligation to pay.
17 MR. LYDON: Without regard to whether
18 somebody is sick. The point is, is there an obligation
19 to pay.
20 THE INDEPENDENT HEARING OFFICER: And was
21 there an obligation to pay here is what becomes the
22 issue. He doesn't know that. He doesn't know that.
23 He has no idea if these guys are dead or alive. And
24 then we're talking about hypothetical, and to beat
25 this dead horse --
972
1 MR. THOMAS: Respectfully if I could just
2 close the loop on that. I was on a --
3 (Voices from audience.)
4 THE INDEPENDENT HEARING OFFICER: Gentlemen,
5 I'll clear the room if you don't -- go ahead.
6 MR. THOMAS: The question we were stopped on
7 had to do with the LM-2's, and it seems to me that
8 this witness is being proffered as a Labor lawyer
9 expert. And if I can't be -- and he says this is
10 compensation and it's okay to do this as compensation
11 in this way. If I can't ask him a question about the
12 reporting requirements of compensation with LM-2's --
13 THE INDEPENDENT HEARING OFFICER: But the
14 difficulty is they never proffered that. They never
15 went that far. It would be very interesting to go
16 question him to further your case, but they didn't
17 question him. Their proffer was somewhat narrow. It
18 was like three hypothetical questions, which I denied
19 their -- two of them anyway.
20 Now the opportunity to go and get your feel
21 of him and what he says and the case might be
22 interesting, but it's gone too far. And I -- and we
23 are going back and forth with a lot of examples that
24 are not necessary.
25 MR. THOMAS: Well I'm not going to argue with
973
1 the Hearing Officer. Do you want me to stop? I'll
2 stop.
3 THE INDEPENDENT HEARING OFFICER: Okay. I
4 think you've exhausted this subject matter. They put
5 him on for three questions and I denied two of them.
6 And then he gave some equitable issues and you explored
7 his -- I don't want to say his bias, but his position
8 in proximity to --
9 MR. THOMAS: May I at least make an offer of
10 proof on that question?
11 THE INDEPENDENT HEARING OFFICER: Make an
12 offer of proof.
13 MR. THOMAS: The offer of proof is that he
14 has testified that this is an acceptable form of
15 compensation. And if it's an acceptable form of
16 compensation, it should be accurately reflected on the
17 LM-2's, and I wanted to ask him that question. Because
18 if in fact it's all above board, you write it down on
19 the LM-2's. We have all the LM-2's in evidence in
20 Exhibit 6, and not a dime of this money ever shows up.
21 THE INDEPENDENT HEARING OFFICER: You may ask
22 that question.
23 BY MR. THOMAS:
24 Q. Mr. Gittler, if this is legitimate
25 compensation that the membership evaluates, weighs,
974
1 votes on, and says, "We want to do this as a form of
2 compensation," you agree, do you not, that that should
3 be reflected -- those payments should be reflected on
4 LM-2's, correct?
5 A. The accountant should put it on there, yes.
6 Q. Whoever puts it there, it should be there,
7 right?
8 A. I can't think of a reason why not to.
9 MR. THOMAS: Thank you. Nothing further.
10 THE INDEPENDENT HEARING OFFICER: Thank you,
11 gentlemen. All right. Thank you, sir.
12 THE WITNESS: Thank you.
13 (Witness excused.)
14 THE INDEPENDENT HEARING OFFICER: Now,
15 tomorrow morning counsel tells me that they're in
16 pretty good shape and can start at 9:00 rather than
17 8:00, and that will be much better.
18 I'm sorry gentlemen, this is the biggest room
19 we have. We had one last time where we could play
20 basketball in, but this is the best we have. So
21 tomorrow nine o'clock. Thank you.
22 (Which were all the proceedings
23 had in the above-entitled cause
24 on this date.)
25
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