COPY RECEIVED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK AUG 13 2004 x UNITED STATES OF AMERICA, DOAR RIECK & MACK Plaintiff, -against- DISTRICT COUNCIL OF NEW YORK CITY AND VICINITY OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, et.al., Defendants. Independent Investigator Deposition Index No. 90 CIV 5722 (CSH) x August 2, 2004 4:35 o'clock p.m. DEPOSITION of MICHAEL MITCHELL, a witness herein, taken by the Independent Investigator, Walter Mack, Esq., pursuant to letter subpoena, held at the offices of Doar, Rieck & Mack, Esqs., 217 Broadway, 7th Floor, New York, New York 10007-2911, before Stewart Nissenbaum, a Shorthand Reporter and Notary Public of the State of New York. NATIONAL REPORTING INC.
1 Mitchell 151 2 Q All right. He went on the 3 out-of-work list at 2:49 p.m.? 4 A And he was requested -- 5 Q He was requested approximately 6 three hours later. And he also, as you can 7 look, as you go to the very next sheet 8 starting June 3rd, he's the foreman.' And yet 9 you have him listed as a union person. I'm 10 trying to understand how that could occur. 11 A No, he's always a union person. 12 He became the -- 13 Q - When I say a union person, I mean 14 a person that you count the union's side of 15 the 50/50. I realize all these people are 16 members. 17 A He was dispatched from the 18 out-of-work list. 19 Q How can a foreman ever be a union 20 part on the 50/50? Because he's a designee 21 of the employer. 22 A It is ridiculous, but I believe 23 the way the 50/50 is in place, that it can 24 occur. I mean, if On Par requested Steve 25 Isaacs to a job, technically, he is NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 152 2 dispatched, and they make him the foreman. 3 Q Did you ever discuss with Mr. 4 McGrath, who was the business agent, how a 5 foreman could be considered on the union side 6 of the 50/50? Was that ever a topic? 7 A No. I don't believe so. 8 Q In terms of reviewing the 50/50, 9 did you review the 50/50 with Mr. McGrath 10 while he was the business agent assigned to 11 the site? 12 A Yes, any time you go to your 13 union haul, it is typical that your business 14 agent would look at your ratio, or ask you 15 how is your ratio. 16 Q In terms of your determining that 17 in fact a particular carpenter should be 18 considered on the 50 percent, that is 19 considered union, how would you go about 20 that? 21 A These old sheets, we are looking 22 at a different sheet. It was a Y or an N, 23 now it is a C or a U. 24 Q The Y at least in your mind, if 25 I'm correct here NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 153 2 A They were dispatched from the 3 out-of-work list. 4 Q That meant to you it was a union 5 person; is that correct? 6 A Yes. It is ridiculous. 7 Q It is, we agree on that. One of 8 the reasons that it is particularly 9 ridiculous with Mr. Reilly, is that he is the 10 foreman and he is carried as a union person. 11 A Like I said, he was the one 12 signing -- this other guy was taken away, and 13 he was there, and he was the man that signed 14 the sheets. Someone had to sign them. 15 Q Right. Again, this may be one of 16 those issues that there's no fault as far as 17 you're concerned. I'm just trying to see how 18 you applied the system. 19 Let me give you some examples, of- 20 which I have many. A carpenter comes to your 21 jobsite, he is selected by On Par with a long 22 history of On Par. He basically arrives as a 23 company man and yet within weeks becomes 24 transformed into a union man. How does that 25 happen? NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 154 2 A I hear it with them all the time. 3 What they will say to a guy on a Friday, put 4 your name on the out-of-work list, and then 5 they request hum that afternoon to go to a 6 job on Saturday; and then Saturday tell him 7 for Monday morning, put your name back on the 8 out-of-work list, and request him back to the 9 job he just came from. 10 Q Each time, because he has come 11 off the out-of-work list, officially he is 12 dispatched? You consider him a union person 13 as being dispatched? Correct? 14 A Yes, yes. 15 Q Now, here's a particular -- I'm 16 coming up with some particular wrinkles on 17 this. One, we have a foreman who is being 18 carried as a union person. 19 A Which is ridiculous. Well, 20 shouldn't say a union person. A dispatch. 21 Q He is a dispatch, but he is 22 counted under your computation, as well as 23 everyone, as a union person, he's either a Y 24 or an N or a U? 25 A Here it was a Y or N, whether NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 155 2 they were dispatched or not. He was 3 dispatched from the list and, yes, he was the 4 acting foreman. 5 Q But the Y was -- I mean was 6 supposed to signify that that was on the 7 union side? 8 A That he was a hold guy. 9 Q A union guy? 10 A Yes, they are all union guys. 11 Q No. But in other words, when 12 you're considering the 50/50 obligation under 13 the Collective Bargaining Agreement, as long 14 as the carpenter goes on the out-of-work list 15 at some time and gets requested, you felt it 16 was appropriate to characterize him either as 17 a Y or as a union person? 18 A Yeah, dispatched or Y, yes, 19 dispatched. 20 Q What about an individual who 21 arrives as a company man on your jobsite, 22 okay, comes as a company person, all right, 23 shows up, I'll give an example of that; 24 Claudius Peters, he arrives as a company man 25 on July 16th, 2003. NATIONAL REPORTING INC. (877) 733-6373
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