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54EGDIS1

1   UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

2

3   UNITED STATES OF AMERICA,

4   v.   90 CV 5722 (CSH)

5   DISTRICT COUNCIL OF NEW YORK CITY AND VICINITY OF THE

6   UNITED BROTHERHOOD OF

CARPENTERS AND JOINERS OF

7   AMERICA, et al.,

8   Defendants.

9

10

11

12

Before:

New York, N.Y. April 14, 2005 9:45 a.m.

HON. CHARLES S. HAIGHT, Jr.,

District Judge

15

16   APPEARANCES

17   DAVID N. KELLEY

United States Attorney for the

18   Southern District of New York

EDWARD SCARVALONE.,

19   LISA ZORNBERG, BENJAMIN TORRANCE,

20   Assistant United States Attorneys

21   O'DWYER & BERNSTEIN, LLP

Attorneys for Defendants

22   GARY ROTHMAN GARY SILVERMAN

23   STEVEN KASARDA

24

25

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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14

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54EGDIS1

   1   (In open court)

   2   (Hearing resumes)

   3   THE COURT: When we broke off yesterday, Mr. Thomassen

   4   was on the stand. Cross-examination had begun but not

   5   completed. So I'll simply call him back again. Mr. Thomassen,

   6   would you be kind enough to return to the witness stand. Good

   7   morning, sir. Please be seated. Do you remember yesterday

   8   that you swore on oath to tell the truth in all things? THE WITNESS: Yes,-sir.

   10   THE COURT: That oath binds you still. Counsel may

   11   inquire.

   12   PETER THOMASSEN,

   13   continued as a witness by the Defendants,

   14   having been previously duly sworn, testified

   15   further as follows:

   16   CROSS-EXAMINATION CONTINUED

   17   BY MR. TORRANCE:

   18   Q. Mr. Thomassen, when we left off, I was asking you about the

   19   special request system for employers to request carpenters, and

   20   you testified about that on Tuesday. Right?

   21   A. Yes, I did.

   22   Q. Now, that request system exists under some of the District

   23   Council's collective bargaining agreements, but not all of

   24   them. Is that right?

   25   A. That is correct.

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54EGDIS1   Thomassen - cross

   1   Q. And you earlier testified that contractors that do not

   2   belong to an association, independent contractors, they do not

   3   have the ability to request carpenters?

   4   A. That is correct.

   5   Q. And, also, some of the associations, they also do not have

   6   special requests as part of their collective bargaining

   7   agreements. Is that correct?

   8   A. Some of the associations?

   9   Q. Right.

   10   A. Right. They don't have special requests or 50/50 or any

   11   hiring rules whatsoever.

   12   Q. But all contractors -- whether independent or whether they

   13   belong to an association or whether they can request carpenters

   14   or not, all contractors are required to pay the same wage to

   15   carpenters. Is that right?

   16   A. The wages and benefits have never been an issue in forms of

   17   requests. The construction business is a very cyclical

   18   business, and because it's a very cyclical business, we have

   19   times when we're very busy and every carpenter is working; and

   20   we have times when there are many carpenters who are out of

   21   work. And that's what causes the problems with the request

   22   system, to be honest with you. What happens in times when

   23   we're very busy, there are very few requests made, because the

   24   contractors have all the people that they know, and they're

   25   calling the union for any help they can get. And, generally

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54EGDIS1   Thomassen - cross

   1   speaking, everybody is very happy.

   2   When times are slow, what happens is the request

   3   system gets used more, because contractors that may have a

   4   hundred or 200 carpenters working for them steady are afraid to

   5   lose those steady carpenters, because they know good times are

   6   coming; and when those good time comes, they will have those

   7   carpenters. So they use the request system more but --

   8   THE REPORTER: Can you slow down a little bit, please?

   9   THE COURT: Yes. I was just going to say, before the

   10   reporter did, if you could slow down a little bit.

   11   THE WITNESS: Yes, sir.

   12   Q. Sir, my question was whether -- under all of those

   13   collective bargaining agreements, that those collective

   14   bargaining agreements require the same wage. Is that a correct

   15   statement?

   16   A. No, it's not.

   17   Q. It's not?

   18   A. No.

   19   Q. Okay. I believe you did testify on Tuesday that they do

   20   require the same wage. Do you recall that, or is that

   21   incorrect?

   22   A. Well, if we're talking about independent contractors that

   23   do carpentry, general carpentry work and association

   24   contractors that can request carpenters to do general carpentry

   25   work, that would be correct. But we also have other trades.

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54EGDIS1   Thomassen - cross

1   We have specialty agreements with Macy's department stores. We

2   have specialty agreements with Bloomingdales. We have

3   specialty agreements throughout our whole council, probably 25

4   specialty agreements that are -- some are maintenance

5   agreements. They're different wages, different benefits.

6   That's what I was talking about.

7   Q. All right. So the general -- except for those specialty

8   agreements, the wages are the same? A. On the general carpentry, yes.

10   Q. Okay. Thank you. Now, earlier you testified that before

11   the current set of collective bargaining agreements, an

12   employer could only request a carpenter if that carpenter had

13   worked for that employer in the past six months. Do you recall

14   that?

15   A. That was one of the requirements, yes.

16   Q. Now, the collective bargaining agreements that are now in

17   place, they were negotiated in 2000 or 2001. Is that correct?

18   A. I believe it was 2001. It was a five-year agreement.

19   Q. And so those negotiations occurred after Judge Convoy had

20   left his job as investigation and review officer. Is that

21   right?

22   A. Yes. I believe he left in '99.

23   Q. In those negotiations, the District Council gave up that

24   six-month limitation on the request system. Is that right?

25   A. Yeah. We got a lot of money for it.

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54EGDIS1   Thomassen - cross

   1   Q. Now, sir, have you read the consent decree between the

   2   government and the District Council in this case?

   3   A. As my tenure has gone on at the council, I have read it,

   4   yes.

   5   Q. So you're aware that that six-month limitation on the

   6   request system is part of the consent agreement?

   7   A. I'm not aware of that. It was in our collective bargaining

   8   agreement, is what I understood. When we sat down to

   9   negotiate, we have to talk about what's going on in our

   10   industry and what we need to move forward for our members and

   11   what our contractors need.

   12   MR. TORRANCE: May I approach, your Honor?

   13   THE COURT: Yes.

   14   MR. TORRANCE: Your Honor, I'm refraining from handing

   15   up a copy of the consent decree, I believe.

   16   THE COURT: I have it.

   17   MR. TORRANCE: Thank you.

   18   Q. Mr. Thomassen, I just handed you a copy of that consent

   19   decree, and let me ask you to turn to the third to last page,

   20   which is numbered 3. It's No. 3 -- page 3 to Exhibit A. Have

   21   you found that page?

   22   A. I have page 3. It starts at the top of B. Should I go to

   23   the previous page?

   24   Q. No. I'm looking at paragraph B, as in bravo.

   25   A. Okay.

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54EGDIS1   Thomassen - cross

   1   Q. And you see a request by an employer if specific members

   2   employed by the employer within the previous six months shall

   3   be fulfilled as required by applicable collective bargaining

   4   agreements. Do you see that?

   5   A. I see that.

   6   But when the District Council negotiated the six-month

   7   limitation away, the District Council never asked the government if the union could change those job referral rules

   9   from the consent decree, did they?

   10   A. I didn't.

   11   Q. And you're not aware of anyone else asking the government,

   12   are you?

   13   A. To be honest with you, I'm not aware of anybody asking if

   14   we could change that. We entered into collective bargaining

   15   with an open mind that we were going to do the best we could

   16   for our members.

   17   Q. And, to your knowledge, nobody from the District Council

   18   ever came to this court and asked to change that part of the

   19   consent decree on the job referral rules?

   20   A. Not that I know of.

   21   THE COURT: What have you been reading from,

   22   Mr. Torrance? is it the job referral rules which were attached

   23   to and made a part of the consent decree?

   24   MR. TORRANCE: That is correct, your Honor.

   25   THE COURT: All right.

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54EGDIS1   Thomassen - cross

   1   MR. TORRANCE: So page 3 of that job referral rules.

   2   THE COURT: I put the question to you only because the

   3   copy of the consent decree that I have doesn't have those

   4   attached to it. But don't be concerned with it. Make your

   5   record, and I'll get a copy later on.

   6   MR. TORRANCE: All right. In a few minutes I should

   7   be able to hand up a copy.

   8   THE COURT: All right.

MR. SCARVALONE: Your Honor, you have the Scarvalone

   10   declaration in front of you.

   11   THE COURT: Oh, yes.

   12   MR. SCARVALONE: It's Exhibit 1.

   13   THE COURT: Yes. That's fine, and there it is.

   14   Exhibit 1 to that affidavit contains the job referral rules.

   15   We're all back together again.

   16   THE WITNESS: I'd like to say, as far as your rules

   17   are concerned here, though, you obviously are not saying that

   18   these are the same rules we're following today, because they're

   19   not. We have tweaked the job referral rules under Walter

   20   Mack's tenure over the last two years. We have tweaked the job

   21   referral rules before that and during Judge Convoy's tenure.

   22   So it's not that we got these rules and they've been in place

   23   and nothing has changed since then. That whole system has been

   24   changing over the course of the years from things that we found

   25   that we thought could be better. And they were wrong and we

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54EGDIS1   Thomassen - cross

   1   changed them, through the government and through Walter Mack.

   2   Q. But, to your knowledge, those changes you were just

   3   referring to came --

   4   THE COURT: The particular change you're talking about

   5   when we negotiated, I don't recall going before the government

   6   or instructing counsel to do that. You're correct in that

   7   matter. I just wanted to make the point that that's not the

   8   only thing that was changed. The rules have changed

   9   considerably.

   10   Q. Mr. Thomassen, you discussed the cost of Mr. Mack's

   11   services. Do you recall that discussion in your --

   12   A. Yes, I did.

   13   Q. And I believe you testified that as of January of 2004,

   14   there was a $60,000 per month cap on Mr. Mack's billing?

   15   A. Yes. It was $20,000 for the first three months. Then I

   16   think -- when I went back last night, I wanted to look. I