Exhibit 25_AUSA Torrance Declaration-Court Order June 4, 2001

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

: 90 Civ. 5722 (CSH)
ORDER

DISTRICT COUNCIL OF NEW YORK CITY AND VICINITY OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, et. al,

Defendants.

HAIGHT, Senior District Judge:

This matter comes again before the Court, this time on a motion by the government for a disclosure order requiring the above-captioned District Council to provide it with the right to access and copy certain documents presently in the possession, custody or control of the District Council or its constituent locals. The District Council opposes this motion.

For the reasons set forth below, the motion is denied in part and granted in part. I.

The long history of this case, now spanning more than a decade, has been recounted in prior opinions. See, e.g., United States v. District Council, 972 F.Supp. 756, 757 (S.D.N.Y. 1997); Devine v. McCarron, 96 Civ. 5093, 1997 WL 379708 (S.D.N.Y. 1996) (related case). Familiarity with the Court's prior opinions is presumed. For present purposes, it is sufficient to recite the following facts.

This case began in September of 1990, when the government filed a civil RICO action for injunctive relief against the District Council and certain of its officers. The complaint alleged

UNITED STATES OF AMERICA,

Plaintiff,

-against-

that the individual defendants had engaged in labor racketeering, and that organized crime had infected both the District Council and its constituent locals. During trial, the parties entered into a Consent Decree dated March 4, 1994. "Since then, this Court has supervised the parties' conduct under and compliance with the Consent Decree." Lynch v. New York City District Council of Carpenters, 99 Civ. 11292, 1999 WL 1072471 at *1 (S.D.N.Y. Nov. 29, 1999). The Consent Decree imposes certain obligations on the District Council and its members, officers and employees. It also established an Investigations and Review Officer ("IRO") to, inter alia, oversee implementation of the Consent Decree on a regular basis. The tenure of the IRO, former Judge Conboy, came to an end some time ago. Since 1994 a number of disputes, some resulting in litigation, have involved the terms of the Consent Decree and the District Council's subsequent restructuring.

The current dispute involves allegations by the government that the District Council acted in violation of the Consent Decree, at ¶ 12, by amending its By-Laws without notice to or approval by the government.

The "Consent Decree, at 12, governs the manner in which District Council By-Laws may be amended." United States v. District Council of New York City, 90 Civ. 5722, 1999 WL 494121 at *3 (S.D.N.Y. July 12, 1999). Paragraph 12 provides, in toto:

Future Practices. The parties intend the provisions set forth herein to govern the District Council's practices in the areas affected by this Consent Decree, now and in the future. The District Council shall give prior written notice to the Government and to the Investigations and Review Officer of any proposed changes to the By-Laws. In addition, the District Council shall inform the Government and the Investigations and Review Officer of any changes in any rules or procedures adopted or implemented pursuant to paragraphs 4(g), 4(h), 4(i)(3), 5, 9(c), and 10 of this Consent Decree. For a period

of seven (7) years after the termination of the Investigations and Review Officer's term of office, the District Council shall continue

to give written notice of any such proposed change to the Government. If the Investigations and Review Officer or the Government objects to the proposed change as inconsistent with the terms or objectives of this Consent Decree, the change shall then not occur, provided that, upon such objection, the District Council may apply to the Court for a determination as to whether the proposed change is consistent with the terms and objectives of this Consent Decree.

The government claims that the District Council, "in clear violation of the Consent Decree," has "amended its By-Laws and implemented the amendments without notice to the Government or its approval." Government's Memorandum in Support of Its Application for a Disclosure Order ("Government's Memorandum") at 1-21

The strictures of ¶ 12 were first made relevant in September of 1998, when the District Council properly submitted proposed changes to its By-Laws to both the IRO and the government for their respective approvals. Since the District Council did not, at that time, seek judicial review of the single objection put forth by the government, the Court approved the revised By-Laws (save one rejected provision on indirect election procedures) in an Order dated February 16, 1999. District Council of New York City, 90 Civ. 5722, 1999 WL 494121 at *4. After proposing another set of revisions in April 1999, the District Council did seek judicial review of challenged amendments, pursuant to 12 of the Consent Decree. After approving one disputed change and rejecting another, the Court approved the By-Laws in an Order dated July 9,

1 Though the District Council disputes the government's claim that it improperly amended its By-Laws, it "does not materially differ with the chronology of its By-Laws and amendments and proposals for future changes set forth in the Government's memorandum at pages 2-7 and the exhibits to the Declaration of Assistant United States Attorney Marla Alhadeff, dated April 4, 2001." District Council's Memorandum in Opposition to the Government's Application for a Disclosure Order ("Defendants' Memorandum") at 3.

1999. This July 9 version of the By-Laws is the last version known to the Court.2

The District Council most recently submitted to the government "a draft of proposed changes to the DCC by-laws" on June 1, 2000. Declaration of Marla Alhadeff, Exhibit B. Among numerous other proposals not presently at issue before the Court, the District Council sought in its draft to amend § 21(G) of the "Working Dues (Dues Check-off); Special Assessments and Per Capita Tax" category in the By-Laws. In its present form that provision states, in toto, that 101 members of all affiliated local unions shall volunteer for picket duty for two days annually." The proposed amendment changes that requirement by providing that each member shall give "one day or seven hours of mandatory union activity...when called upon by the [District Council]" and provides for a fine of $250 for a member's failure or refusal to meet this obligation "when requested." June 1, 2000 By-Laws draft, Declaration of Marla Alhadeff, Exhibit C at 11.

No proposal was made by the District Council to amend § 21(A) which states, in relevant part, "[t]he Council shall receive working assessments in the amount of 1% of the members total package rate as reflected in the current collective bargaining agreement covering the members for each hour worked." July 1999 By-Laws, Declaration of Marla Alhadeff, Exhibit A at 15.

On June 22, 2000 the government wrote to the District Council in response to the proposals, interposing certain questions and seeking further clarifications. Declaration of Marla Alhadeff, Exhibit D. Another exchange of correspondence on the proposals occurred in July.

2 By-Laws for the District Council for New York and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as promulgated pursuant to the Court order dated July 9, 1999, is attached as Exhibit A to the Declaration of Marla Alhadeff, submitted to the Court on April 4, 2001 in support of the government's motion.

Declaration of Marla Alhadeff, Exhibits E & F. In its July 27, 2000 letter to the District Council the government sought further clarification from the District Council and advised that it "reserves all rights to object until after it receives a complete draft of the By-Laws, containing the actual text of all proposed amendments." Id. Exhibit F at 5. At no time did the government ask questions about or express an opinion as to the proposed amendment to § 21(G) quoted above.

Six months passed without any response from the District Council to the July 2000 letter from the government. On January 30, 2001 the government again wrote to the District Council, informing the Council that "Maving received no response for over six months, we have concluded that the District Council no longer wishes to amend its By-Laws." Declaration of Marla Alhadeff, Exhibit G at 2. The government further stated that "any change whatever to the By-Laws since the Court approved them in July, 1999," should be brought to the government's attention, since the implementation of such would "violate[] the Consent Decree." Id. at 2. The District Council responded on February 8, 2001 with what it claimed was "the actual text of all proposed amendments." Declaration of Marla Alhadeff, Exhibit H at 4; full text at Exhibit I.

On March 1, 2001 the government wrote to the District Council and expressed concern that the draft version sent on February 8, 2001 contained "newly-made revisions to the June 1, 2000 draft" which were not explained elsewhere, and with which the government had new concerns. Declaration of Maria Alhadeff, Exhibit J at 2. The government states that it has received no response from the District Council to its March 1, 2001 letter. The District Council contends that a conversation did occur between counsels concerning "an apparent error in

transmitting corrected proposed By-Laws." Defendants' Memorandum at 3, fn. 1.3

Then, on March 2, 2001, union member Michael Bilello sent a letter to UBC General President Douglas McCarron, inquiring about a "recent assessment imposed on the membership," to wit, a "$.30 assessment on the membership for every hour worked, effective July 1, 2000." Declaration of Marla Alhadeff, Exhibit K. Bilello's letter to McCarron questioned the legality of that assessment under the UBC Constitution and the LMRDA. This letter was also sent to the government and the Court. Upon receipt of Bilello's letter, the government wrote to the District Council on March 6, 2001 asking the Council to "advise us immediately whether any such amendment to the By-Laws was in fact made," as "such an amendment would be in clear violation of the Consent Decree. See Consent Decree ¶ 12." Declaration of Marla Alhadeff, Exhibit L. In a letter to the government dated March 19, 2001, the District Council disclosed that a "special convention" of the District Council had voted to impose a new $.30 assessment, in conformity with its By-Laws as approved by the Court in July 1999. Declaration of Marla Alhadeff, Exhibit M. The District Council asserted that it acted in full conformity with § 21(C) of the July 1999 By-Laws, which it argued does not require prior approval as per ¶ 12 of the Consent Decree. Id.. at 2. The District Council also disclosed that it had implemented, since July 2000, the essence of the proposed amendation to § 21(G), imposing a $250 fine for those members who refuse to comply with "one day of volunteerism instead of two." Id. at 3-4, fn. 3.

After a request by the Court that the parties submit filings with regard to these changes,

3 Regardless, the parties agree that the drafts submitted as exhibits to the Court are more than sufficient and accurate for purposes of this motion.

the government formally moved on April 4, 2001 for an order to compel disclosure, and the District Council filed papers in opposition on April 18, 2001.

II.

While the present submissions are elaborate, the core issue is narrow and preliminary in nature. "In the instant application, the Government seeks only a disclosure order to remedy the District Council's demonstrated failure to abide by the Decree. The Government does not at this time ask the Court to enjoin the collection of the assessments...". Government's Memorandum at 24.

The government also does not seek to challenge the $250 fine provision, rather, it asks the District Council to "explain its authority to depart from the usual procedural safeguards" in enacting the change. Id. at 23. With respect to both alleged violations, "the Government does not seek any ruling as to the propriety of the amendments." Government's Reply Memorandum ("Reply Memorandum") at 2-3. The government argues that "[w]hen the District Council provides the necessary information, the Government can then determine whether to approve the relevant By-Law amendments, or to object to them." Government's Memorandum at 23.

The justification for the motion to compel disclosure is the contention by the government that the District Council in fact violated the Consent Decree, at ¶ 12, and that the government needs more information in order to decide how to react to that violation. Of course, were the Court to decide that no such violation of the Consent Decree had occurred, the government's motion would, on that basis at least, be denied. If the Court were to decide that one, but not the other, of the changes to the By-Laws was in contravention of the Consent Decree, then an Order to compel would correspondingly be narrower than the government requests.

It is to the question of whether the Consent Decree was violated vel non that the Court now turns.

The government argues that the District's Council's action at a "purported 'special convention' held on June 22, 2000, imposing an additional $.30 assessment upon the members, was done in violation of ¶ 12 of the Consent Decree, insofar as it requires notice and approval from the government for any amendments to the Consent Decree. Government's Memorandum at 7. The District Council does not deny that it did not give notice to the government, but contends that the special convention itself and the $.30 assessment adopted at the convention were in conformity with the July 1999 By-Laws approved by the Court, which do not require notice of such matters, pursuant to § 21(C).4 The government responds that ¶ 12 of the Consent Decree applies to the action notwithstanding the language of the By-Laws at § 21(C).

4 Minutes of the special convention were provided to the government and have been provided to the Court. Declaration of Marla Alhadeff, Exhibit 0. At that meeting a resolution was passed as follows:

Whereas pursuant to Section 45C of the Constitution of the UBC and Section 21C of the By-Laws of the District Council of New York City and Vicinity, a notice for a special convention of the Council delegates, dated May 16, 2000, was issued for the purpose of considering a $.30 an hour increase in working dues payable to the District Council and whereas the topic having been duly introduced to and discussed by the delegates to the Council, be it so resolved that section 21A of the By-Laws of the NYC District Council and Vicinity be hereby amended to provide that the Council shall receive the amount of one percent of the members total package rate as reflected in the collective bargaining agreement for each hour worked, plus $.30 for each hour worked. This money will be allocated to Organizing in the amount of $.20 an hour, $.05 for Communications, and $.05 for Civic Action. The Resolution shall become effective July 1, 2000.

Id.

The Court must examine both the By-Laws and the Consent Decree to determine which party's interpretation, if either, is correct. Although Consent Decrees "are a hybrid of contract and judicial pronouncement, they 'should be construed basically as contracts.'" District Council, 972 F.Supp. at 759 (the Court resolving a different dispute between the parties on an interpretation of the Consent Decree), quoting United States v. ITT Continental Baking Co., 420 U.S. 223, 236 (1975); United States v. Secretary of Housing and Urban Development, 239 F.3d 211, 216 (2d Cir. 2001)("consent decrees are...contracts between the parties").

The Court must "read and apply a decree 'within its four corners' and may not look beyond the document to satisfy one of the parties' purposes." E.E.O.C. v. New York Times Co., 196 F.3d 72, 78 (2d Cir. 1999), quoting United States v. Int'l Bhd. of Teamsters, 978 F.2d 68, 73 (2d Cir. 1992)(internal citations omitted). Although "courts have equitable powers to enforce consent decrees, such power exists only to ensure compliance with the decrees' terms." E.E.O.C., 196 F.3d at 78, citing United States v. Local 359, United Seafood Workers, 55 F.3d 64, 69 (2d Cir. 1995).

Reference to the canons of interpretation, allowing extrinsic evidence to bear on an understanding of the document, is not necessary where the Court perceives no difficulty in interpreting the document within its borders. E.E.O.C. v. Local 40, 76 F.3d 76, 80 (2d Cir. 1996)("Extrinsic evidence should only be considered when the decree itself is ambiguous").

The Court chooses to address first the $.30 assessment implemented last year by the District Council. Section 21 of the By-Laws, as approved by the Court in July 1999, concerns "Special Assessments and Per Capita Tax[es]." Section 21(A) states, in relevant part, the

"Council shall receive working dues in the amount of 1% of the members [sic] total package rate as reflected in the current collective bargaining agreement covering the members for each hour worked." Section 21(B) deals with the Council's power to levy a special assessment at a time when there exists a deficit of funds. Section 21(C) reads, in toto, "[t]he Council may establish monthly dues or increase working dues payable to the Council by a majority vote of the Delegates voting at a Special Convention of the Council held upon not less than 30 days' written notice to the principal office of each Local Union."

In relevant part, ¶ 12 of the Consent Decree reads "[t]he District Council shall give prior written notice to the Government and to the Investigations and Review Officer of any proposed changes to the By-Laws."

The question to resolve is whether ¶ 12 requires the District Council to give notice and get approval from the government before it "establish[es] monthly dues or increase[s] working dues payable to the Council" pursuant to § 21(C), since establishing or increasing the dues changes the assessment language in the By-Laws § 21(A). To be sure, the $.30 assessment amends the language of § 21(A), and in that respect amends the By-Laws. The question is whether such a change offends the dictates of the Consent Decree. The Court determines that it does not.

As the District Council correctly states, "Section 21...specifically contemplates modifications to the amount of the working dues, authorizes the elected Delegates to take such action and prescribes the special procedures for doing so." Defendants' Memorandum at 4. To be sure, the resolution the District Council delegates passed at the June 22, 2000 special conference recited that Section 21(A) of the By-Laws "be hereby amended" to implement the

$.30 per hour assessment increase. But the District Council is correct that "modifications to the working dues" differ conceptually from "[a]mendments to the By-Laws," which are themselves covered by § 32 of the By-Laws 5, incorporating ¶12 of the Consent Decree. Id. The Court has approved the language of By-Laws § 21(C), which explicitly provides for the Council's ability to increase the assessment of its members. It is worth recalling that the Consent Decree, at ¶ 12 or elsewhere, does not give the government veto authority, nor even a right to be advised of, any and all actions taken by the District Council. The Consent Decree is a document establishing limited governmental powers and limited judicial review.

Neither in its most recent approval in July 1999, nor at any previous time, did the Court find any conflict between § 21(C) of the By-Laws and ¶ 12 of the Consent Decree, and it does not discern such a conflict today. Other provisions of the By-Laws give the District Council authority to take actions, in conformity with procedures articulated therein, which result in changes to the By-Laws. For example, § 21(E) allows the Council, under specified circumstances, to "impose a per capita tax on each Local in the amount of $5.00 per member." It also provides that the Council "may increase the amount of the per capita tax by majority vote of the delegates voting at a special convention held by the Council upon not less than thirty days' writ-ten notice to the principal office of each local union." If the District Council succeeded in increasing the per capita tax, the $5.00 amount would increase, both in practice and in the

5July 1999 By-Laws, Section 32(A) "Any amendments to these By-Laws must be accomplished by a two-thirds vote of the Delegate Body at a Special Meeting of the Delegate Body convened exclusively for such purpose." Section 32(C) "Any notice required pursuant to Paragraph 12 of the Consent Decree...shall be given by the Executive Committee before any amendment is submitted to the Delegate Body."

language of the By-Laws. Such a change, however, would not be the type of change contemplated by 12 of the Consent Decree. The most logical interpretation of the language in both documents suggests that Sections 21(C) & (E) imposed specific procedural safeguards on the District Council's implementation of fee increases in the place of requiring the approval contemplated in the Consent Decree at 12.6

I conclude that, while the District Council's assessment increase, specifically authorized by Section 21(C) of the By-Laws, necessitated a change in the assessment amount provided for by Section 21(A), that change was procedural, technical, and ministerial, not substantive, and did not implicate ¶ 12 of the Consent Decree.

In view of the forgoing, the Court concludes that prior notice to and approval from the government was not required with respect to the $.30 assessment.

Iv.

The District Council's changes to § 21(G), however, are not similarly justified. Section 21(G) in the approved July 1999 By-Laws consists of one brief sentence: "All members of all affiliated local unions shall volunteer for picket duty for two days annually."

In both the June 2000 and February 2001 By-Laws drafts sent to the government, the following replaced the above stated language in § 21(G):

It shall be mandatory that each active member provide at least

1 day and/or 7 hours of Union activity (picketing, etc.) per calendar year when called upon by the New York City District Council of

6 The Court need not consider the debate between counsel as to the propriety of invoking the rule of contract law that suggests a specific provision controls over a general one. See Edmond v. United States, 520 U.S. 651, 657 (1997). This is because the language and logic of the By-Laws and the Consent Decree speak for themselves.

Carpenters. Active members who fail to participate when requested shall be assessed $250.00. This assessment shall be used to defray the expenses of organizing and shall not be used for any other purposes."

Though the government, in its correspondence with the District Council, did not explicitly object to this proposed revision, it explicitly reserved the right to do so. Declaration of Marla Alhadeff, Exhibits F & J. In its March 19, 2001 letter to the government, the District Council conceded that it made the change to § 21(G) without the government's consent (effective July 1, 2000), but contended "the implementation of its member participation program is merely an aggressive application of the approved Section 21(g) [sic], limited to one day of volunteerism instead of two." Declaration of Marla Alhadeff, Exhibit M at 4, fn. 3.

In its defense, the District Council argues that because it "could require two days of Union service with a potential fine of $300 under Sections 21(G) and 28 of the approved By-Laws, surely it could require a less onerous one day of duty and clearly state to its members that they will face a $250 assessment in lieu of that service and still be acting within the parameters of these provisions." Defendants' Memorandum at 7. Section 28 of the July 1999 By-Laws is silent on the matter of fines. It reads, under the heading "Charges and Trials," "[t]he charges and trial procedures shall be as set forth in the Constitution of the United Brotherhood. Any officer or member who shall be guilty of improper conduct, or who wrongs a member or defrauds him, or who commits an offense discreditable to the United Brotherhood shall be fined, suspended or expelled." There is no obvious connection between this provision and § 21(G), but the District Council suggests the connection with reference to the UBC Constitution which provides, at § 51B, that any member in violation of the By-Laws in their respective localities can be charged and

fined in an amount not greater than $300. Defendants' Memorandum at 7, fn. 4. Even assuming that § 21(G) comes within the ambit of that provision in the UBC Constitution, the revised version, as discussed below, goes beyond the language of the Constitution as well.

The District Council is at best inaccurate in describing the substantive amendments made to § 21(G) as "merely an aggressive application" of the existing, Court approved, provision, and its reliance upon the UBC Constitution is unpersuasive. The new § 21(G) changes "shall" to "shall be mandatory," at least suggesting that a less stringent requirement existed in the July 1999 By-Laws. Perhaps more dramatic a change then the others, while the July 1999 version requires members to volunteer annually for picketing duty, the revised version requires "Union activity (picketing, etc...)...when called upon by [District Council] (emphasis added). Also, the permissive language in the UBC Constitution itself; which reads, "may be fined," is not used in the § 21(G) revision. Instead the mandatory phrase "shall be assessed $250" is used. It is also unclear what due process rights are extended to members alleged to have violated the revised § 21(G).

The District Council was wise to include this substantive revision in its draft proposals to the government over the course of the past year or so. It was a clear violation of 11 12 of the Consent Decree to fail to get the government's approval before implementing the proposed revision to the By-Laws at § 21(G).

Aside from its belief that the changes made by the District Council to its By-Laws were in violation of ¶ 12 of the Consent Decree, the government also suggests that the changes may violate, variously, the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001

et seq., the Labor Management Reporting and Disclosure Act. ("LMRDA"), at 29 U.S.C. § 441b(b)(3), and federal election laws (e.g. 2 U.S.C. § 441b(b)(3)(A) (regulating election funds and labor organizations)).

The government, under a section of its brief ominously titled "Serious Questions Surround the Propriety of the Assessments," begins by introducing the idea that the District Council may be acting in violation of ERISA. Government's Memorandum at 17. The District Council collects its assessment of $.30 per hour worked through deductions from the members' benefits in the District Council Vacation Fund, a fund subject to ERISA, at 29 U.S.C. § 1002(1)(defining "plans" subject to ERISA), and created in the collective bargaining agreements with various employers. Under ERISA, such funds typically cannot be transferred to a "party in interest," including a labor organization. 29 U.S.C. § 1002(14)(defining a "party in interest"). However, as the government recognizes, an exception to this rule applies, and could very well apply in this instance. Insofar as, (1) the District Council provides reasonable compensation for the Vacation Fund's services, (2) the arrangement allows the multi-employer plan to terminate the relationship on short notice, (3) adequate records are kept, and (4) the District Council is permitted to take such monies from the Vacation Plan pursuant only to written authorization from its members, and takes funds only when benefits would go otherwise to such members, the government concedes the exception to ERISA would seem to apply. 29 C.F.R. § 2509.78.1 (the prohibitions of Section 406(a) & (b)(2) of ERISA do not apply under certain conditions); citing Prohibited Transaction Exemptions 76-1, Part C, 41 Fed. Reg. 12740 (1976), and 77-10, 43 Fed. Reg. 33918 (1977). Nevertheless, the government argues that because it does not know if the District Council is complying with the requirements of ERISA in this regard, it cannot approve

of the $.30 assessment.

The District Council responds that its assessments through the Vacation Fund are "nothing new and should come as no surprise to the Government." Defendants' Memorandum at 10. The Council submits a declaration by Brian Francella, identified as a certified public accountant with Thomas Havey LLP, the auditor for the Vacation Fund. This declaration explains the process of transferring funds and provides, as Exhibit A, a copy of the "working assessment deduction authorization" given to the District Council members to provide the necessary written authorization. Though the District Council has not provided the Court with copies of all the authorizations from its roughly 20,000 union members, it supplies two samples signed by members in the late 1980's, and states that "authorization card[s] signed by each member and utilized by the Fund for over a decade" are illustrated by these samples. Defendants' Memorandum at 11. Though the District Council provides no further documentation, in the current posture of this matter before the Court, it is not obliged to do so.

I see nothing in the record which suggests to me that this Court ought to grant the government a disclosure order upon the speculative concern that the District Council is in violation of ERISA. As stated in Section II of this opinion, the $.30 assessment was not subject to government approval. Absent actual evidence that the District Council is in violation of ERISA, this Court will not grant the government the right to a fishing expedition on the question.

Similarly with respect to federal election laws, the government provides no evidence that the District Council is acting in violation of either the Consent Decree or any election laws. Again, the government is hopeful that mere speculation of wrongdoing will place a burden upon the District Council to explain behavior for which there is no good reason to believe anything

improper has been or is being done.

Title 2 U.S.C. § 441b(b)(3)(A) prohibits labor organizations from making election-related contributions or expenditures from union "dues, fees, or other monies" that are "required as a condition of membership in a labor organization." Far from suggesting there is any evidence to reach a belief that the District Council is violating this provision, the government asks permission to find out if the Council is doing so. The District Council argues that it is acting entirely consistent with election laws. The District Council claims that its CARPENTERS PAC only contributes to state and local elections, as per its PAC By-Laws at Article IV. Declaration of Gary Rothman, Exhibit B (erroneously listed on his Declaration as Exhibit A). The government seems to concede that any contributions to state and local races are in compliance with federal law, but asks the Council to provide "evidentiary support for its statement about how the $.05 [earmarked for 'civic action'] is being used...." Reply Memorandum at 14. Without evidence of a violation the Council need not so provide.

Lastly, the government is concerned that "the District Council has yet to address the absence of a membership vote concerning the $.30 assessment," especially in light of the fact that the original 1% assessment was subject to a membership vote in 1988.7 Government's Memorandum at 22. The government asks the District Council to "explain why it apparently believed a vote was necessary in 1988, but not in 2000, and why the Labor Management Reporting and Disclosure Act did not require a vote." Id., citing 29 U.S.C. § 411(a)(3).

7 The government also wants the District Council to "explain more fully how it will spend the millions of extra dollars it will receive each year." Government's Memorandum at 22. The District Council is under no obligation, under the Consent Decree or otherwise, to provide such explanation.

Again, the government relies on speculation that the District Council may have violated a federal statute, and it asks that the Court impose a burden on the District Council to explain how it has not done so. This is the equivalent of forcing persons to explain why they should not be charged with a crime before independently obtaining any evidence to suggest that they should be.

Not only does § 21(C) of the approved July 1999 By-Laws specifically provide for an increase in working dues without a vote of the membership, there is no evidence presented to suggest that the District Council has violated § 411(a)(3) of the LMRDA. Under § 411(a)(3)(A) a "local labor organization" may only increase assessments or dues by a majority vote of its members. By contrast, § 411(a)(3)(B) allows labor organizations "other than local labor organizations" to make such increases, inter alia, by a vote of its delegates at a special convention. Typically an organization such as the District Council is considered to be "other than" a "local labor organization." The term "intermediate labor organization" generally applies to entities such as the District Council. This is because a district council is an intermediary in labor union hierarchies between national and international unions on the one hand, and local labor organizations (e.g. Local 113) on the other hand 8. King v. Randazzo, 346 F.2d 307, 309 (2d Cir. 1965). This also appears to be a distinction recognized at § 21(C) of the By-Laws.

The District Council explains the discrepancy in voting procedures by pointing out that the By-Laws in effect at the time the vote was taken on the 1% assessment, in 1989, required a general membership vote, while the 1999 By-Laws, approved by the Court, do not so require.

8 Despite the government's suggestion that these designations within the union hierarchy must be analyzed by the Court for their substance and not their form, there is no evidence to suggest that the District Council is not a bona fide intermediate labor organization. Reply Memorandum at 14.

That explanation does not satisfy the government, which argues that "even if the LMRDA as a technical matter" (whatever that might mean) "did not require a membership vote, the District Council's decision to exclude the membership from the enactment and implementation of the $.30 assessment causes concern." Reply Memorandum at 16. But the By-Laws approved in 1999 specifically provide for this very method of increasing the assessments, so it should come as no surprise to the government, nor, by itself, should it cause concern.

The government seems to misunderstand the nature of the Court's role in this ongoing case. It is true that the Consent Decree "contemplates judicial interests apart from those of the litigants," since the Decree is an Order of this Court. E.E.O.C. v. Local 580, 925 F.2d 588, 593 (2d Cir. 1991). However, this Court's powers do not extend so far as to allow prosecutors vast powers to compel disclosure on the suspicion that certain actions taken by the District Council may violate federal statutes. There is no indictment, no information, no complaint, and no claim of probable cause presented by the government with respect to any actions of the District Council as they relate to the above-mentioned federal laws.

In the complete absence of evidence that the District Council is in violation of the LMRDA, federal election laws, or ERISA, the Court will not grant the government the requested disclosure order on the basis of these concerns.

Again, this Court's "equitable powers to enforce consent decrees" is limited only to "ensure compliance with the decrees' terms." E.E.O.C., 196 F.3d at 78. Aside from its failure to get approval for its change to § 21(G), addressed below, there is no present evidence that the District Council has otherwise failed to comply with the Consent Decree.

VI.

For the foregoing reasons, the government's motion for an order of disclosure is denied in part and granted in part.

The motion is denied insofar as it seeks disclosure by the District Council of documents relating to the imposition of an additional assessment of $0.30 for each hour worked.

The motion is granted insofar as it seeks disclosure by the District Council of documents relating to the amendment to Section 21(G) of the By-Laws that the District Council has implemented, as discussed in Part IV of this Opinion.

The District Council is directed to make the disclosure mandated by this Opinion and Order not later than July 6, 2001.

The Court expects the dialogue between the government and the District Council to continue with respect to any and all proposed amendments to the By-Laws. If a time comes when the government invokes ¶ 12 of the Consent Decree and objects to a particular amendment, and the District Council in turn invokes 12 and applies to the Court "for a determination as to whether the proposed change is consistent with terms and objectives of the Consent Decree," the Court will adjudicate the issue. But no such issue is presently before the Court; and this Opinion should not be read to intimate any view by the Court as to how any such issue would be adjudicated.

Similarly, while this Opinion discusses various additional questions the parties raise in their papers, no present opinion is intimated with respect to the Court's eventual ruling on any of them, should the need for such a ruling eventually come to pass.9

9 I note that Michael Bilello's letter dated March 2, 2001, to UBC General President McCarron, which apparently acted as the catalyst for the government's inquiries into By-Law

It is SO ORDERED.

Dated: New York, New York June 4, 2001

CHARLES S HAIGHT, JR.

SENIOR UNITED STATES DISTRICT COURT

amendments, see page 6, supra, was responded to by McCarron in a letter dated April 30, 2001. McCarron informed Bilello that, following an investigation, the UBC denied Bilello's "grievance" with respect to the $.30 per hour additional assessment. McCarron rejected Bilello's contentions that the assessment violated the UBC Constitution and the LMRDA.

I express no view as to whether such issues would fall within this Court's jurisdictional power, derived from 12 of the Consent Decree, to determine whether a By-Law amendment proposed by the District Council "is consistent with the terms and objectives of this Consent Decree." Nor do I express a view as to whether that provision in 12 would authorize this Court to consider the merits of any eventual government claim that a particular amendment violates the ERISA statute or federal election laws