Laborers for JUSTICEŠ 1997-2006 All
Rights reserved.
Not for republication on the internet without permission.
COPY
RECEIVED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK AUG I3 2004
ROAR RIECK & MACK
x
UNITED STATES OF AMERICA,
Plaintiff,
Index No.
-against- 90 CIV 5722
(CSH)
DISTRICT COUNCIL OF NEW YORK CITY
AND VICINITY OF THE UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, et.al.,
Defendants. x
Independent Investigator Deposition
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.
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1 2
2 APPEARANCE S:
3
4 DOAR RIECK & MACK
217 Broadway - 7th Floor
5 New York, New York 10007-2911
6 BY: WALTER MARK, ESQ.
Independent Investigator
7
8 O'DWYER & BERNSTEIN, ESQS.
Attorneys for Union
9 52 Duane Street
New York, New York 10007
10
BY: GARY SILVERMAN, ESQ.
11
12
KOEHLER & ISAACS, ESQS.
13 Attorneys for Witness
120 Broadway - 29th Floor
14 New York, New York 10271
15 BY: STEVEN ISAACS, ESQ.
16
17 BENJAMIN H. TORRANCE, ESQ.
Assistant United States Attorney
18 United States Department of Justice
86 Chambers Street
19 New York, New York 10007
20
21 ALSO PRESENT:
22 Donald Sobocienski
23
24 * *
25
NATIONAL REPORTING INC. (877) 733-6373 Laborers for JUSTICEŠ 1997-2006 All Rights reserved. Not for republication on the internet without permission.
1 3
2 MR. MACK: On the record.
3 Let's open the record. And let
4 me welcome you, Mike Mitchell, to what
5 hopefully will not be too painful or
6 long a proceeding, which is designed
7 really for me, as the Independent
8 Investigator, to get answers to a
9 variety of questions.
10 You may or may not know this, but
11 basically I am a Court-appointed
12 officer, I work for the Court, Charles
13 S. Haight, Jr., a Federal District Court
14 Judge who has been involved with the
15 carpenters since 1990. At the end of
16 2002, with the consent of the District
17 Council and the U.S. Attorney's Office,
18 there was an appointment of the
19 Independent Investigator with certain
20 authority and jurisdiction, and that is
21 myself, Walter Mack. And Don
22 Sobocienski, who sits beside me here,
23 works work with the investigative team,
24 amongst others.
25 We have a role that's pretty much
NATIONAL REPORTING INC. (877) 733-6373
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2 defined by the Court Order; and that
3 Order, in essence, determines my
4 jurisdiction and what my objectives are.
5 And among other things, we run a
6 hotline, a telephone 800 number in which
7 we have received now almost 2,000 calls
8 in the last, about a year and seven or
9 eight months.
10. In addition to writing certain
11 reports, I also have an obligation to
12 follow up on complaints that are made to
13 the hotline, and I pick and choose them,
14 based upon my assessment of a number of
15 factors, and to be frank, On Par
16 Construction has been the subject of
17 many, many complaints in the course of
18 my tutelage, for a variety of reasons.
19 So because of that, and because
20 of the number of times that your name
21 has come up as well, I have determined
22 to interact with and question a variety
23 of shop stewards who have served On Par
24 Construction for some time. That is a
25 fairly generic reason why you're here
NATIONAL REPORTING INC. (877) 733-6373
1 5
2 today, and I will go into greater
3 detail.
4 But I want to spend significant
5 time ensuring that you understand what's
6 happening today, what your rights are.
7 You're represented by counsel who has
8 been here before, but I want to make
9 sure, because my obligation is to act
10 consistent with the Order and to be
11 fair, as the judge would insist upon
12 that I be fair to you, during the
13 proceeding.
14 Let me take a few moments and
15 explain what your rights are, and what
16 will be happening today.
17 The gentleman sitting to your
18 left is a court stenographer, and it is
19 his job to take down whatever is said
20 here, and that transcript is designed to
21 permit me, because often these
22 investigations take some period of time,
23 to make sure that, one, that I've done
24 what I think I should be doing in making
25 sure that the proceeding is fair, and
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2 that the questions asked of you are
3 clear, and that the record is complete,
4 so that I know what you said at a
5 particular time to a particular
6 question.
7 There have been many individuals
8 who sat where you have. We sit at this
9 hour because we want to ensure that we
10 don't cost you a day of work. We've
11 decided after being here some nights
12 later than we wished to be, that we are
13 going to quit at 8:30, no matter where
14 we are, because of the importance, we
15 have busy work weeks, if we are not done
16 by that time tonight, we'll need to
17 complete.
18 We had another individual here on
19 Friday, we didn't finish, and basically
20 we decided to stop at that time, because
21 I don't think -- everybody needed some
22 time off.
23 It is my job to ensure that my
24 questions are clear and that you have an
25 opportunity to discuss any issue,
NATIONAL REPORTING INC . (877) 733-6373
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2 anytime you wish to, with your counsel,
3 who is sitting to your right, Mr. Steven
4 Isaacs. He has been here before. I'm
5 sure he's read the Order. He has
6 represented another individual or
7 individuals; there have been so many,
8 that I'm not sure how many he's
9 represented. But what's important today
10 is that he represents you and you alone,
11 and you should understand that.
12 Although, you know, you mentioned to me
13 previously that you didn't think you
14 needed a lawyer here today yourself, and
15 that the District Council, since they
16 are paying for it or having some
17 obligation to pay, I want to make sure
18 you understand, notwithstanding, or the
19 matter that Steven is representing other
20 carpenters, and even though his fees may
21 be reimbursed at some time by the
22 District Council, his obligation is to
23 you and to you alone today.
24 Therefore, for instance, these
25 are hypothetical situations, were there
NATIONAL REPORTING INC. (877) 733-6373
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2 information you had, that, shall we say,
3 was critical of the District Council,
4 your obligation would be to tell the
5 truth and answer the question
6 truthfully, and that would be the advice
7 you would have to get; and even though
8 his fees may be paid in part by the
9 District Council, if somebody looking at
10 this record determined that you
11 protected the District Council when a
12 truthful answer to the question would be
13 there was someone in the District
14 Council or something in the District
15 Council that occurred that was critical
16 and you did not say it, one, you would
17 be lying under oath because you did not
18 honor your oath of telling the full
19 truth, and Mr. Isaacs would have to be
20 questioning whose loyalties he was
21 protecting,because his sole job here is
22 to worry about you and you alone.
23 And as I say, frequently, to
24 every individual from the Carpenters who
25 appears before me, I am not a
NATIONAL REPORTING INC. (877) 733-6373
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2 prosecutor. In fact, I have no
3 disciplinary authority of any kind. All
4 I can do is make recommendations to the
5 District Council or to Judge Haight. I
6 do have the ability to refer matters to
7 prosecutors and take, or ask them to
8 take, law enforcement action. But
9 unless there's something that has
10 happened that I don't know about, which
11 is perfectly likely, my job is to seek
12 the truth and to find out exactly what
13 the truth is.
14 Therefore, unfortunately, I found
15 out somewhat the hard way, the most
16 important thing that I say to you
17 tonight and I say it to every witness,
18 is to tell the truth; because
19 notwithstanding, shall we say, my
20 fervent wish is not to be part of
21 putting carpenters in jail, I'm not a
22 prosecutor here, I'm a factfinder, a
23 truth-seeker, a writer of reports, and
24 to me, it would be a tragedy if in fact
25 the result of my inquiries were to
NATIONAL REPORTING INC. (877) 733-6373
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2 impact a hard-working carpenter and get
3 that person involved in the criminal
4 justice system. That's not my purpose.
5 My purpose is to find out what the facts
6 are, to write about them, and ask the
7 parties and the judge and other people
8 who do have authority to make changes,
9 to decide what's appropriate to be done.
10, So I guess, really, my purpose
11 tonight is that I'm going to ask pretty
12 direct questions. My purpose is to
13 gather the facts. When you're under
14 oath, and you will be shortly, the most
15 important thing to do is to listen to
16 the question, answer it truthfully to
17 the very best of your ability, and we
18 will get through the evening and move
19 on; and I'll write whatever reports are
20 necessary.
21 Unfortunately, there have been
22 shop stewards and others who have
23 appeared here whose view was that, in
24 essence, they could lie under oath. I
25 don't want to pick on anybody by name,
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2 but in one matter having nothing to do
3 with On Par or you, there were
4 videotapes of basically carpenters going
5 into a bar to receive cash; and yet a
6 whole number of those individuals, you
7 know, basically proceeded to lie under
8 oath. It is my commitment to all
9 individuals who appear before me, that
10 if you lie under oath, I am going to
11 refer the matter to the U.S. Attorney's
12 Office, Criminal Division, and recommend
13 to the judge that that person be
14 prosecuted for perjury.
15 The most important thing that I
16 say tonight is that, really, the only
17 way that you can become an adversary of
18 mine is if you lie under oath to me,
19 that's what it boils down to. And so
20 I'm sure your lawyer has spoken to you
21 about this, but since I am a Court
22 Officer and since I am seeking to find
23 out what the facts are at particular
24 jobsites and particular occurrences, it
25 is really important that you be careful,
NATIONAL REPORTING INC. (877) 733-6373
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2 listen to the question. If my question
3 isn't clear, speak out and say I don't
4 understand what you're asking here. If
5 you heed to take a few moments, take
6 whatever time is necessary to speak to
7 your lawyer, you should feel free to do
8 that.
9 We are going the take breaks
10 every so often to give Mr. Nissenbaum,
11 the hardest-working individual here, a
12 chance to take a break.
13 Whenever you need a break, you
14 should ask for it. It is really not
15 worth taking a risk. In the examination
16 that occurred on Friday, we took
17 frequent breaks in order to allow the
18 witness to get the benefit of counsel.
19 Not only is perjury a concern,
20 but if a carpenter or any witness sought
21 to prevent me from finding the facts, or
22 gave me false information or withheld
23 information from me, to make it more
24 difficult for me to find out really what
25 happened, that also can be an
NATIONAL REPORTING INC. (877) 733-6373
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2 obstruction of justice or a contempt of
3 court.
4 The only person I work for is
5 Judge Haight. I don't care what the
6 Government thinks, I don't care what the
7 District Council thinks about the
8 situation, because the person that I
9 represent is Judge Haight. I invite
10 them here. I'm going to talk to them,
11 and they are invited guests. The bottom
12 line, when I'm reading the transcript
13 and trying to decide what to do, I will
14 certainly consider their views, and I
15 invite their views; and in fact I give
16 at least the District Council a chance
17 to comment on my reports. But in the
18 end, it is really my commitment to Judge
19 Haight, and my relationship with him
20 that I want to honor to the best of my
21 ability.
22 So, again, and I don't want to
23 over-emphasize it, listen to the
24 question, tell the truth. I think, and
25 maybe others would disagree, that my
NATIONAL REPORTING INC. (877) 733-6373
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2 goals are exactly the goals that the
3 District Council should have in terms of
4 being able to see that jobsites are run
5 on the level, that the obligations of
6 union carpenters are honored, that
7 contractors are not permitted to get
8 away with things that they are not
9 permitted to get a way with.
10 So I may be wrong on this, but it
11 is my view that I'm really, in many
12 ways, trying to insist that the
13 obligation of union carpenters are in
14 fact enforced.
15 A couple of things. I've
16 mentioned the fact that your lawyer may
17 have his fees paid by the District
18 Council, and has represented others. I
19 will presume, because he knows his
20 ethical obligations, that he has
21 discussed that potential conflict with
22 you, meaning, as I said before, his job
23 tonight is to take care of Mike
24 Mitchell, and Mike Mitchell alone, no
25 matter who it helps or hurts.
NATIONAL REPORTING INC. (877) 733-6373
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2 Understanding that there's at least a
3 possibility of conflict, it is my
4 supposition, but I wish you to confirm
5 that you're prepared to proceed tonight
6 with Mr. Isaacs with as your counsel,
7 even though he may represent other
8 carpenters and his fees may be
9 reimbursed by the District Council.
10 MR. MITCHELL: Yes.
11 MR. MACK: Steve, you certainly
12 understand your ethical obligations to
13 see that he gets the best
14 representation.
15 MR. ISAACS: We've discussed
16 ethical issues that may or may not
17 arise. I don't see any concerns for
18 conflict of interest, but if they do
19 arise, I would ask you to stop the
20 interview and discuss whatever
21 appropriate action maybe be necessary.
22 MR. MACK: Let me go into another
23 area which is important and has become
24 important in the recent past. Since I'm
25 a Court Officer and I'm proceeding here
NATIONAL REPORTING INC. (877) 733-6373
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2 outside the normal disciplinary channels
3 of the District Council, you have --
4 although this is not an a criminal
5 proceeding, this is a civil
6 proceeding -- if I were to ask you a
7 question tonight which, in your
8 judgment, a truthful answer to that
9 question would tend to incriminate you,
10 you have the right to assert the Fifth
11 Amendment. The Fifth Amendment
12 basically means, it is not a sign of
13 disrespect, you simply say on the
14 benefit or advice of counsel, I choose
15 not to answer that question because it
16 may tend to incriminate me. It is a
17 right that every citizen has, and
18 basically you have that right here
19 today. I'm going to ask you some pretty
20 broad questions, and there have been
21 occasions when it was the advice of
22 counsel to take the Fifth Amendment; and
23 when that happens, that is your choice,
24 that is your right.
25 For instance, I will tell you,
NATIONAL REPORTING INC. (877) 733-6373
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2 there will be a series of questions that
3 deal with have there been carpenters on
4 jobsite that are not recorded
5 appropriately on the shop steward
6 reports. Has there been cash at all on
7 jobs, various jobs that you have been
8 on. I will tell you that it is far more
9 important for you in this proceeding, if
10 you wish to assert the Fifth on those
11 questions, it is far better to assert
12 the Fifth than to lie on the subject
13 matter.
14 Basically I guess the single most
15 important thing I say to you, listen to
16 the question, answer it truthfully, and
17 you'll be fine. But should there be a
18 question which you feel an answer to the
19 question might tend to incriminate you,
20 my first recommendation is that you
21, discuss that question with Steve, and
22 talk about it before you take it. But I
23 am far more encouraging you to take it
24 rather than lie under oath.
25 What has happened here to, I
NATIONAL REPORTING INC. (877) 733-6373
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2 think at the risk of some shop stewards
3 and others, is that they have chosen to
4 lie first, and then the data comes out;
5 and basically we speak to
6 many carpenters, we have many sources of
7 information, the contractors themselves
8 provide us information, we have subpoena
9 power and what have you. And what has
10 happened in a couple of cases, maybe
11 more than a couple, it has turned out
12 that the shop steward or carpenters have
13 lied and the proof has come forth, it
14 was either in my possession at the time
15 or was gathered subsequently, because I
16 check things out, I try to be careful, I
17 try to find out what the truth is. And
18 lo and behold, those carpenters have
19 found out that there's a case, a perjury
20 case for lying.
21 Sometimes I'm charitable, other
22 times I'm not charitable about
23 permitting them to come back and correct
24 their testimony. The lesson there for
25 all witnesses is, tell the truth for the
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2 first time. Once I find out and can
3 prove, for instance that there's cash or
4 that there are witnesses to the fact
5 that the shop steward reports are
6 inaccurate, and the shop steward has
7 already testified no cash, no one has
8 ever done anything wrong, the hours are
9 exact and correct, then that carpenter
10 has a real difficulty, because then
11 there's evidence that they have lied
12 under oath.
13 My view is, if you lie under oath
14 to me, I am going to recommend criminal
15 prosecution. I say that to everyone.
16 I'm not singling you out. It is my hope
17 and expectation that every carpenter who
18 appears, testifies to the truth
19 accurately and completely. That's the
20 best advice your attorney can give, and
21 that's what I'm basically saying, too.
22 I think I've covered most of the
23 rights that are important. I want to go
24 over who is here and why they are here.
25 Obviously, it is your choice to have
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2 counsel, I said so in the notice, it
3 makes it easier for me in the sense that
4 I know you're getting good legal advice
5 and that you have someone whose job it
6 is to work for you. Therefore, I don't
7 have to be quite as careful in ensuring
8 that you understand every right. Makes
9 no difference to me, I know Mr. Isaacs;
10 I'm sure he is going to do an
11 outstanding job. Listen to his advice,
12 he will have a chance to raise subjects
13 and questions himself, should that be
14 necessary. He is here as your champion
15 tonight, to make sure you're treated
16 fairly and that you comply with what
17 your obligations are to be here. The
18 mere fact you're here says nothing about
19 what's happening.
20 I am going to go over what are
21 the specific types of issues that have
22 come up with respect to your job and
23 jobsites at On Par. Gary Silverman has
24 been here on numerous occasions, he's an
25 attorney who represents the District
NATIONAL REPORTING INC. (877) 733-6373 Laborers for JUSTICEŠ 1997-2006 All Rights reserved. Not for republication on the internet without permission.
1 21
2 Council, he is not your attorney here
3 tonight, but basically his job is to
4 represent the District Council, but
5 should there be a time that you need to
6 speak to him or your attorney needs to
7 speak to him in order to find out
8 policies and questions, there have been
9 a number of questions that have arisen
10 in the past that I don't have the answer
11 to because they are policies of District
12 Council. But he represents them, he is
13 here at my invitation. He can
14 participate if he wishes to participate.
15 The purpose of his being here is so he
16 knows what's happening and can see that
17 these proceedings are fair and you're
18 being treated fairly; and also if there
19 are questions he wishes to ask, he can
20 ask them as well.
21 The gentleman to my left is Ben
22 Torrance; he is an Assistant United
23 States Attorney. He works for the Civil
24 Division, U.S. Attorney's Office. He is
25 one of a number of Assistants who
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1 22
2 represent the Government in this
3 proceeding. He is not a prosecutor, he
4 doesn't have criminal authority. He is
5 here also at my invitation so that if
6 the Government themselves have questions
7 to ask or so that they are aware of what
8 is happening. Sometimes they attend;
9 sometimes they don't attend. I haven't
10 been able to figure out the difference;
11 I don't try. They are here and welcome
12 on any occasion to participate and hear
13 what's happening. And they are a party
14 before Judge Haight, and they have the
15 right, at least in my view, to
16 participate in the proceeding.
17 The gentleman sitting to my right
18 is the most knowledgeable person in the
19 Independent Investigator's Office, Don
20 Sobocienski. He is the chief
21 investigator. His main job is to tell
22 me what to say and how to say it. He
23 can participate, especially when he
24 feels I've left out something; but in
25 essence he's been important in gathering
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1 23
2 documents and assisting me in pointing
3 out things to talk about.
4 Mr. Nissenbaum, the reporter, it
5 is his job to take down everything we
6 say here.
7 Having said all of that, I want
8 to make sure, first of all if you have
9 any questions you would like to ask me.
10 Please feel free to help yourself to
11 water as the evening goes on. Is there
12 anything on your mind or any question
13 you would like to ask, Mr. Mitchell?
14 MR. MITCHELL: No.
15 Mr. ISAACS: Ready.
16 MR. SILVERMAN: I don't know the
17 specific context in which this arose the
18 other evening, but in terms of the U.S.
19 Attorney not being a prosecutor with no
20 criminal authority, my understanding is
21 that Mr. Scarvalone reserved the right
22 to take certain actions resulting from
23 what goes on here, even if the
24 Independent Investigator does not. And
25 I think that perhaps the witness and his
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1 24
2 counsel ought to be aware of the U.S.
3 Attorney's position in that regard.
4 MR. MACK: I'll be glad to go
5 through that. The context of that is
6 not here, but I can briefly state the
7 situation so that you can consider it,
8 Steve, for whatever its value. But it
9 is not really inconsistent with the
10 Order, which is, I can refer and I can
11 recommend, and in the context of
12 basically an assertion of the Fifth
13 Amendment by a shop steward in which
14 questions were asked and the shop
15 steward asserted the Fifth Amendment, I
16 took a number of positions in saying --
17 dealing with what my recommendations
18 would be, what would be a waiver of the
19 Fifth Amendment under circumstances,
20 because I wish to go jobsite by jobsite
21 and ask questions, so I was dealing with
22 an experienced lawyer who is
23 representing a witness. And, you know,
24 basically, the Government made the
25 point, which is a fair point, and the
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1 25
2 District Council has the same right,
3 that notwithstanding whatever my
4 recommendations are, the Government can
5 take a contrary view in terms of what
6 the assessment of the law is.
7 There have been other situations
8 where I have said, and perhaps in a
9 better context, where a shop steward
10 lied under oath the first time that he
11 was here, and basically when it became
12 clear that there was evidence that he
13 had lied, I took the position that if he
14 came back with counsel and gave a sworn
15 statement and told the full truth, that
16 I would not recommend to the judge that
17 he be prosecuted for perjury the first
18 time.
19 I consider that within my
20 discretion as it is within the judge's
21 discretion, but the Government has taken
22 the view that, hey, that's your
23 recommendation, you know, that doesn't
24 mean the Government is going to go along
25 with that. So I don't think that's
NATIONAL REPORTING INC. (877) 733-6373
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2 inconsistent with anything. All I can
3 do is recommend and refer. The District
4 Council reads my reports and has a
5 chance to comment on them, and the
6 Government has taken the view that they
7 shove the same right; and that's
8 something that I'm thinking about at the
9 moment.
10 But the point is, I am simply an
11 agent of the Court, and Judge Haight is
12 an independent individual, and I'm sure
13 if the District Council felt that my
14 position was wrong, they wouldn't be
15 bashful about expressing it.
16 I say the same thing with the
17 Government, that they could very well
18 decide: We don't care what Mack thinks,
19 we think differently. That wouldn't
20 upset me a great deal, because I think
21 it is consistent with the parties'
22 rights.
23 MR. ISAACS: I've taken the
24 position that the Government will do
25 what the Government thinks is
NATIONAL REPORTING INC. (877) 733-6373
1 27
2 appropriate, regardless of what I think
3 anyone says. So, if there's a situation
4 where I believe it is Mr. Mitchell's
5 best interest to exercise the Fifth
6 Amendment, I guess I'll deal with that
7 issue as the questions come along.
8 I've advised Mr. Mitchell that by
9 exercising the Fifth, this is under the
10 jurisprudence of a civil proceeding,
11 that the Independent Investigator can
12 choose to draw whatever inference he
13 thinks is appropriate. We've discussed
14 all of that.
15 While I appreciate what
16 Mr. Silverman has brought forth at the
17 table, the issues of Fifth Amendment
18 have been discussed with my client, and
19 I guess we'll address those issues if
20 and when the question arises that I need
21 to discuss that with him.
22 MR. MACK: Fine. I'm glad you
23 did bring up that point about drawing an
24 inference, because it is certain, in a
25 civil proceeding, that I can listen to
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1 28
2 the Fifth Amendment being asserted, we
3 are talking hypothetically here, and
4 decide that because the individual is
5 unwilling to answer those questions, it
6 is within my discretion to decide
7 whether that's of significance in my
8 report or not. Those are things that I
9 have to think of and evaluate on a
10 case-by-case basis. So be it.
11 Gary, anything else?
12 MR. SILVERMAN: Nothing further,
13 thank you.
14 MR. MACK: Ben?
15 MR. TORRANCE: No, thanks.
16 Mr. Mack: Mr. Sobocienski?
17 MR. SOBOCIENSKI: No, sir.
18 MR. MACK: We go through this
19 with every witness, everybody has heard
20 this except you, in the room, several
21 times, but it is designed to tell you
22 what your rights are.
23 MICHAEL MITCHELL, the
24 witness herein, being first duly sworn by
25 Stewart Nissenbaum, a Notary Public of the
NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 29
2 State of New York, was examined and testified
3 as follows:
4 EXAMINATION BY
5 MR. MACK:
6 Q Mr. Mitchell, let me tell you how
7 we are going to proceed here, so you get some
8 idea what the situation is here tonight. I
9 alluded to that briefly.
10 There have been a number of
11 complaints, again, complaints, let me stress,
12 that have come in through a variety of ways,
13 most of them come in calls, we have had many
14 calls;- just because there's a complaint
15 doesn't mean there's any truth to the
16 complaint. As I have been told frequently by
17 st District Council, they may themselves be
18 someone who is trying to make trouble or who
19 has their own motive to lie. I don't take
20 any particular wisdom from the fact that
21 there is a complaint.
22 Since I'm only able to undertake
23 certain investigations and do certain things,
24 given the time that is available to me, I
25 pick and choose, and have decided because of
NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 30
2 the nature of the complaints, to undertake
3 taking a look at On Par Construction, because
4 many of the complaints. And there have been
5 some investigative findings, where carpenters
6 are not on the sheets and there's a failure,
7 at least in the words of maybe a deputy
8 foreman or a shop steward, that it was an
9 oversight, or people should have been there,
10 or they should have called it in, or this was
11 a mistake.
12 Certainly On Par has been a high
13 visibility recipient of complaints. There
14 have been measures taken.
15 With respect to you, there have
16 been allegations that there have been cash
17 workers on your jobsite and that there have
18 been nonunion carpenters on your jobsite; and
19 also a direct criticism of your dispatch as a
20 shop steward, at 600 Washington Street, I
21 think is the address, basically as being
22 outside the run-of-the-mill type of
23 situation, an unusual dispatch that deserved
24 my scrutiny.
25 So, that's the general subject
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1 Mitchell 31
2 matter. Just because those are allegations,
3 all that means is that I am undertaking some
4 effort to look into those subjects.
5 One of the things I should point
6 out, in the time period that I have been
7 around, which is a little over a year and a
8 half, sometimes the results of my
9 investigations are simply to describe very
10 accurately or more accurately what the actual
11 process is. And just because, for instance,
12 one of things we'll go into today, if we have
13 the time, will be the request system and
14 50/50 and how it worked on your jobsites and
15 what happened.
16 There have been shop stewards,
17 and I certainly don't want to suggest your
18 answer, who basically said: I don't know; I
19 don't understand. And basically I'm
20 recommending changes. So it doesn't simply
21 mean because I ask the questions that there's
22 anything necessarily wrong with the subject
23 matter, it may simply be an effort to ensure
24 that I understand what's actually happening
25 on the jobsite, because frequently I have
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1 Mitchell 32
2 found what has been described to me as what's
3 happening when you go down to the jobsite and
4 find out what's actually happening, sometimes
5 there's a difference. And sometimes that
6 difference is meaningful, sometimes it isn't.
7 I do want you to understand that
8 I want to proceed in a way that may simply
9 result in my understanding the process and so
10 that I can better describe it in a way that I
11 think is consistent with reality of the
12 jobsite, rather than other person's views of
13 how it is happening.
14 recognize that that may very well be a major
15 part of what we do this evening,is simply
16 asking questions so I understand the process.
17 Now, have you ever been
18 questioned, let's say in the last two years,
19 yourself, about a dispatch of yours as a shop
Be patient with me and
20 steward, by anybody from the District
21 Council?
22 A No.
23 Q Basically, has anyone questioned
24 your determination -- this may not be an
25 entirely fair question -- as to how the 50/50
NATIONAL REPORTING INC. (877) 733-6373 Laborers for JUSTICEŠ 1997-2006 All Rights reserved. Not for republication on the internet without permission.
1 Mitchell 33
2 is working? In other words, has anyone gone
3 through your shop steward reports and
4 basically tried to say, was this person a
5 company man or a union man; has that process
6 happened, or has it happened, in your mind,
7 on a weekly basis with a business agent?
8 A As regards the business agent,
9 you have to see them once a week, so the
10 report is there for them, they get the
11 dispatches every day, so they know who is
12 requested and who is not. If there's any
13 other scrutiny of the reports, I'm unaware of
14 it. If they do it at the Council,no one has
15 confronted me with questions.
16 Q Other than what I will describe
17 as generally a weekly process, going through
18 with the business agent, the 50/50, there's
19 nothing beyond that? Anyone ever taken you
20 aside and said is this person a company guy
21 or not, and gone through their work history
22 with you?
23 A No.
24 Q Did you understand the question?
25 A Yes.
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1 Mitchell 34
2 Q Let me ask you this sort of very
3 broad question here. Let me withdraw that.
4 We'll proceed here, I think, a little more
5 carefully.
6 What I want to do is hand out a
7 series of what I call exhibits, which have a
8 number; letters and a number. The letters
9 and number mean nothing, they help me to try
10 to keep track of what is going on. They will
11 include, and I think I'm going to do that
12 right now, because it allows everyone to sort
13 of follow along with my questioning, I'm
14 going to give you a copy, but all the
15 originals will stay with me, you can look at
16 that.
17 The first is what I will call
18 MMCH-1. Don't ask me why those initials are
19 there.
20 A Okay.
21 Q I'm going to give copies here to
22 my colleagues.
23 (Subpoena, Notice to Appear,
24 marked Exhibit MMCH-1, this date.)
25 A CH for Charles Haight?
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1 Mitchell 35
2 Q That's good. The person who puts
3 it on there probably has her own reason, I
4 follow her instruction.
5 Is this a copy, MMCH, of the
6 notice you received for your attendance?
7 A Yes.
8 Q As we talk briefly outside, you
9 have brought with you copies of your
10 certifications for carpentry-related skills
11 and training?
12 A Yes.
13 Q I think you told me there was --
14 you tell me what you brought and what you
15 didn't bring.
16 A I was photocopying all the
17 certificates and licenses I possess, and I
18 noticed I didn't have an asbestos removal
19 handlers license; I had it at one time. I
20 must have thrown it out and didn't renew it.
21 It expired some years ago, I did possess one
22 at one time.
23 Q Can you give me an idea of the
24 dates that the asbestos removal certificate
25 was in effect? When did you get it and when
NATIONAL REPORTING INC. (877) 733-6373 Laborers for JUSTICEŠ 1997-2006 All Rights reserved. Not for republication on the internet without permission.
1 Mitchell 36
2 did it expire, if you remember?
3 A God. I had it for a lot of
4 years. I'm going -- excuse me, I'm going to
5 say that it probably expired maybe two years
6 ago.
7 Q If they become of significance, I
8 can go back to your counsel and say I need to
9 see a copy of that. But in the meanwhile --
10 A I actually thought I would have
11 went to the Council to pull it, I thought it
12 might be present here today.
13 Q That's something that we can
14 achieve or obtain, if it's necessary.
15 A Okay.
16 Q But in the meanwhile, I just want
17 to show you the exhibit, and have you take a
18 look at it, because we just had it copied to
19 make sure that is an accurate copy, MMCH-10,
20 on the certificates that you brought.
21 A Yes.
22 (Certificates provided by Mr.
23 Mitchell marked Exhibit MMCH-10, this
24 date.)
25 Q Why don't you give that one back
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1 Mitchell 37
2 to me. I'm going to give this to my
3 colleagues so that they have a copy as well.
4 MR. MACK: Steve, you want a
5 copy?
6 MR. ISAACS: I have it.
7 Q Now, I also want to hand out
8 something that we may be referring to, likely
9 be referring to today, and I'm going to go
10 through them piece-by-piece.MMCH-2 is a
11 copy of your job referral history and your
12 work history. And so you may have one with
13 you,but my suggestion is that you use the
14 one that's the exhibit so we are all looking
15 at the same piece of paper.
16 (Job referral and work history
17 marked Exhibit MMCH-2 for
18 identification, this date.)
19 Q I'm going to also show you what
20 was marked MMCH-3, which is your benefit
21 history, we'll be referring to that from time
22 to time. That's MMCH-3.
23 (Benefit history marked Exhibit
24 MMCH-3, this date.)
25 Q Again, all of these records are
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1 Mitchell 38
2 records furnished to me by the District
3 Council at my request. I'm going to give you
4 MMCH-4, which are copies of the various
5 requests and dispatches of you as the shop
6 steward
7 (Requests and dispatches marked
8 Exhibit MMCH-4, this date.)
9 Q While I'm giving out copies here,
10 I think I also want to cease the moment,
11 because we'll be referring to this later on,
12 so I might as well do so, MMCH-7, which are
13 ,copies of your shop steward reports at, I
14 guess 600 Washington Street.
15 A Okay.
16 (Shop steward reports, Washington
17 Street, marked Exhibit MMCH-7, this
18 date.)
19 Q Let me give that to you. One of
20 the questions that occurs, and I want to be
21 fair to you here about this, is whether or
22 not there have been occasions, and we'll
23 start there with your job referral history,
24 because I want to hear your view of some of
25 these, where at least it appears to me that
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1 Mitchell 39
2 there have been occasions wear you have been
3 working and receiving benefits as being on
4 the out-of-work list at the same time. I
5 don't know whether in the process of your
6 getting ready for today, that you found those
7 occasions, I don't know if you had the
8 benefit history available to you, but if you
9 did, we'll save time tonight if you've
10 already figured out when those occasions
11 were, or you should go through them.
12 A If I was here on the original
13 date, I wouldn't have had access to them. I
14 didn't feel it was necessary. Once you spoke
15 to Steve and said you might as well have
16 them, I have them.
17 Q Let's go through the ones you
18 went through. It would make it a lot easier
19 for me. Although I have the benefit fund
20 records, I have learned from some experience
21 that sometimes they are reliable and other
22 times they have some question, and I do have
23 the ability to subpoena directly from the
24 individual contractors, your actual
25 employment record. But if you know
NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 40
2 particular occasions when you were on the
3 out-of-work list or put yourself on the
4 out-of-work list at a time you were working,
5 I suggest we go through those now, and you
6 can point those out to me.
7 A If it saves time.
8 Q It saves time.
9 A I'm relying on what the paperwork
10 I got from the Council was. If I was asked
11 last week, I actually didn't think I had left
12 myself on the list while I was working; but I
13 think it is apparent that I did.
14 Q It appears that way. You're the
15 most expert on this. Why don't you go
16 through where it is true, and we'll look at
17 them and try to deal with them. And if there
18 are others that I have in mind, I'll raise
19 those.
20 A I think I found two instances.
21 Q Why don't you point them out, and
22 if I have others, --
23 A I found November 1st of 2000, I
24 went on the out-of-work list.
25 Q Just bear with me for a moment so
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1 Mitchell 41
2 we can follow you.
3 A Actually I can give you the page
4 number, I think.
5 Q I'm all set. I'm slow, if you're
6 patient with me, I'll get there. November 1,
7 2000, you're there?
8 A Yes. Reviewing the records, I
9 see that in November, December, November and
10 December, I was -- I had benefits paid into
11 my account from Eurotech.
12 Q What was the situation there that
13 that occurred; how did that happen?
14 A I think what happened there was,
15 I guess the out-of-work list was relatively
16 new, well, not that new, but I guess I saw
17 that the job I was on was coming to an end,
18 so at the time I believe it was taking three
19 months to get off the out-of-work list after
20 you were on it. I guess, thinking ahead, and
21 at that time you didn't hear of any system of
22 checks and balances, that I probably said I'm
23 going to be out of here in two months, I'll
24 put my name on the out-of-work list now. I
25 believe that's what transpired.
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1 Mitchell 42
2 Q We are going to go back over
3 these in the sense of, you know, being
4 referred to jobs and what have you, but do
5 you remember what jobsite you were actually
6 working on when you added your name to the
7 list?
8 A Well, at that particular time,
9 the jobsite I would have been on there would
10 be the W Hotel.
11 Q We are going to go through that,
12 because of some questions I have about skills
13 added and deleted, and things of that nature.
14 That's one instance, around November 1st,
15 2000. That was certainly one I was going to
16 ask you about.
17 A Okay. Keep going?
18 Q Yes.
19 A I found one instance there, it
20 looks like the dates -- that's not relevant
21 to this. I have an instance here, I see from
22 11/30 of '99, I didn't write down the -- let
23 me double-check something.
24 Q Take your time.
25 A Okay.
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1 Mitchell 43
2 (Pause.)
3 A Yes, I see that on August 11 of
4 1999, I was added to the out-of-work list.
5 Q Right.
6 A And I was dispatched off that
7 list on January 19 of 2000.
8 Q Yes.
9 A In between that period in
10 November, December and early January, I had
11 benefits paid into my account.
12 Q Right. What was the story there?
13 A Something very similar, I guess.
14 I can't exactly recall; but I'm going to have
15 to say that I had to put myself on the
16 out-of-work list and I couldn't afford to sit
17 home. So I solicited my own jobs, found a
18 job, and kept working.
19 Q The jobs that we have during that
20 time period are A&M Wallboard?
21 A Yes, and AOF Installations, they
22 were a furniture outfit which I had done
23 throughout the years, nice clean work if you
24 can get it. And A&M Wallboard I had worked
25 on and off for them over the years; they were
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1 Mitchell 44
2 good to me, any time I called them they put
3 me to work.
4 Q Was this a time period in 1999
5 and early 2000, that the out-of-work list,
6 the rules of out-of-work list were unclear?
7 What was the reason that you were on the
8 out-of-work list during that time period?
9 A Well, I guess the reason would
10 have been that, you know, to become a
11 certified steward, I can't just call a guy up
12 or get requested. You have to be dispatched.
13 That would be the reasoning to get a job
14 where you would be designated a steward.
15 Q Basically, you were working, you
16 were on the out-of-work list, but you wanted
17 to retain your eligibility for shop steward;
18 is that what you said?
19 A Yes, pretty much.
20 Q Are there any other time periods
21 where you felt that you may have been on the
22 list when you were in fact working?
23 A No; because I guess it was -- did
24 I do this one, now.
25 Q Take your time here. You might
NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 45
2 take a look at early 2001.
3 A Yeah, February 6th of '01, I went
4 on the out-of-work list.
5 Q Right.
6 A I got dispatched on May 2 of
7 2001. Again, in that period, I worked for
8 A&M Wallboard. I believe any time after
9 that, any time I was on the out-of-work list,
10 I was legitimately out of work, and that was
11 that.
12 Q Is that another situation that
13 would be fairly described as one in which you
14 wanted to retain your eligibility as a shop
15 steward, but you also wanted to make some
16 money during time period, you needed to work
17 in order to deal with your responsibilities?
18 A Feed the family, yes.
19 Q I take it you're married and have
20 a family that you need to support?
21 A Yes. And I think at that
22 particular time, like I said, the intention
23 of the out-of-work list as we knew it, was
24 never there, and it was a little vague, and
25 it was common practice I believe with a lot
NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 46
2 of people; I believe everybody did it because
3 they would say there's 3,000 guys on the
4 out-of-work list, 300 are out of work. It
5 became clear that you couldn't manipulate it,
6 if you will, so I know after that, any time I
7 was out of work, I was legitimately out of
8 work. And if there was charges brought from
9 the District Council for stuff like that, so
10 then any time if you solicited your own work
11 you would have to notify them, which would be
12 the right thing to do, otherwise you would be
13 susceptible to charges or whatever. I guess
14 that practice with myself stopped back at
15 that time.
16 Q So, I guess I would like you to
17 take a look at the middle of 2002, around
18 June, if you would.
19 A I see that. I made a notation.
20 Q Tell me.
21 A I went on the out-of-work list
22 from April 17, 2002. I was dispatched on
23 June 26, and there was no benefits paid
24 during that time. There was -- 4/17 I went
25 on the list, that was a benefit paid buy On
NATIONAL REPORTING INC. (877) 733-6373 Laborers for JUSTICEŠ 1997-2006 All Rights reserved. Not for republication on the internet without permission.
1 Mitchell 47
2 Par on the 29th of April. I'm going to say
3 that was probably due to my previous job.
4 Sometimes the contractor pays their benefits
5 in, later than the following week.
6 Q You may be right. Basically, as
7 I read your work history, that you go on the
8 out-of-work list on April 17, you hold calls
9 from June 5 to July 5, there's a hold calls
10 on the out-of-work list there. You're adding
11 skills and then you're dispatched to an On
12 Par job on June 26th?
13 A Okay.
14 Q All right. So I see, you know,
15 at least some hours there that are reported.
16 A I notice that there was one
17 deposit, if you will, to my account, on April
18 29th, but that has to be hours that were owed
19 to me from On Par, because if you notice, the
20 previous page they paid their hours, every
21 months there was 120, 250, 199 hours at a
22 clip. I must have called them and said you
23 owe me 53 hours, I wasn't working for them at
24 the time, I guess it was deposited to my
25 account when I was on if out-of-work list.
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1 Mitchell 48
2 Q You didn't put your name on the
3 list until after that 250-hour deposit. That
4 was presumably on March 31. You may have
5 worked there sometime in early April, that
6 that 53 hours was meant to cover.
7 A Yes.
8 Q I don't know that to be true, but
9 it wouldn't surprise me if that were true.
10 A That would be the truth.
11 Q What you're telling me, that is
12 the truth?
13 A That is the truth, yes.-
14 Q Now, beyond those circumstances,
15 I want to make some inquiry about some of
16 your shop steward dispatches. And I guess my
17 first question is: Is there any situation
18 where you felt that you were getting
19 information, whether from a company, business
20 agent, or other individuals, very broad, in
21 which you were getting assistance in
22 determining what skills to put on or put off
23 in order to increase your chances of being
24 assigned as a shop steward to a particular
25 job? Do you understand my question?
NATIONAL REPORTING INC. (877) 733-6373
i Mitchell 49
2 A I do. I will have to say, how
3 would I put this, assistance, possibly. Did
4 I investigate what skills the company may
5 have been looking for through various ways,
6 maybe the BA or the owner or a foreman or a
7 project manager or one of their own guys?
8 Yes. Because when you're out of work, you
9 make phone calls, you call guys you worked
10 for before. You go to the union meeting, you
11 talk, how are they, are they busy? Yes, they
12 are busy, they are starting a new one next
13 week. Where?
14 I'm not a guy to sit at home. I
15 need to get a job, I have to work. Yes, I'm
16 sure I thoroughly made phone calls and did my
17 own interviews to see where could I make
18 myself marketable. I need a job, and if
19 you're looking for a guy, I mean, in
20 fairness, I do possess a lot of skills, and I
21 don't think I ever deviated from the
22 Council's guidelines. Anything that I put
23 down, I'm competent to do. And I possessed
24 all those licenses and certifications.
25 So, I made a point to make myself
NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 50
2 marketable. I used to take all the courses I
3 could. I called around project managers, you
4 would see them in the bar or up at the
5 meeting? What's going on? I'm sure I asked,
6 of course that's what one would do.
7 Q What I would like to do is take
8 about a five-minute break to give
9 Mr. Nissenbaum a little time, and a little
10 time for me to organize. And we'll pick up
11 with that, because I do want to go through
12 some specific dispatches, recognizing that,
13 at least in my view, you know, the shop
14 steward position is obviously an extremely
15 important position. And one of the issues
16 that I want to explore is your history with
17 On Par. It is very long, but one of the
18 questions raised is how is it that you are
19 frequently an On Par shop steward; and that
20 may be perfectly proper as to how it is done,
21 but there are some questions about a number
22 of them that you can, I'm sure, shed some
23 light on. Why don't we do that when we get
24 back?
25 A Sure.
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1 Mitchell 51
2 (Whereupon, a short recess was
3 taken).
4 MR. MACK: Back on the record.
5 Q You're still under oath. We are
6 going to keep going, and we are going to
7 pretty much function chronologically.
8 What I think is most important,
9 now that you have before you MMCH-2, which is
10 your job referral history, and also have with
11 you MMCH-4, which are the dispatches. So,
12 often they will be tied together.
13 Let's go to 11/15/99, and I see
14 you change your phone, you add a skill,
15 sealed ceilings, and then you change your
16 phone number on November 15, and then you
17 change it back the next day. I wonder if you
18 could just explain to me what was happening
19 there, if you remember/.
20 A The number was my house number.
21 I see the number I changed it to. I'm not
22 quite sure, but I think it may have been a
23 cell number.
24 Q Can you tell me which is the
25 cell?
NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 52
2 A 588-6613. I actually don't
3 really -- it sounds familiar, but I can't
4 recall exactly where it is from.
5 Q Can you explain to me, in other
6 words, if you can remember --
7 A Obviously, I wouldn't have been
8 at home to get the phone call, so I changed
9 it to somewhere else, or a cell phone.
10 Q As you sit here today, you can't
11 remember what that change was?
12 A I recognize the number, but I
13 can't say 100 percent where it is from,
14 actually. But I did notice some other phone
15 change, I recognize it as a friend's house in
16 Brooklyn, and I remember I was giving him a
17 hand, putting his kitchen in for his mother,
18 in the basement. If the District Council
19 call me at home, I wouldn't be there, so I
20 changed it to his house number.
21 Q We'll deal with that. As you
22 see, we go down to November 16, and you are
23 dispatched as a shop steward to Sanjon, Inc.,
24 80 Broad Street. You might want to take a
25 look at your dispatch so you can follow along
NATIONAL REPORTING INC. (877) 733-6373
1 Mitchell 53
2 with me. The job is complete, you're back on
3 the list the next day. I wondered if you
4 could tell me what happened there.
5 A I don't actually recall this job,
6 but it could have been either they wouldn't
7 put me on or the job had finished. Sometimes
8 in those days, you would get dispatched to a
9 job and you get there and the job was
10 finished already, done like two days before
11 that, or whatever. I know sometimes the VBA
12 would put in a request, you're getting a guy
13 tomorrow, and they put it in, and the job is
14 done by that day. I'm assuming that there
15 was no job. Obviously, for me.
16 Q Now, I don't want you to assume
17 there is no job, because, you know, -- unless
18 that's true, because there have been
19 instances in the past where a shop steward
20 dispatched to a location, doesn't want to go
21 to that location, doesn't want to be on that
22 job, they are there for a short period of
23 time and then they leave the job. So I'm
24 don't know that you have done that, but --
25 A I don't believe I have.
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1 Mitchell 54
2 Q Okay. I guess the first question
3 would be: You don't specifically remember,
4 and again it is November 1999, but you don't
5 remember why that was only a one-day job?
6 A No. I don't believe there was
7 any benefits paid in for me, was there, from
8 Sanjon? No, I would have to say that the job
9 was not there.
10 Q All right. Now I see in that
11 time period an AOF installation; I think
12 we've just talked about that in that November
13 '9 period.
14 A Okay.
15 Q We just covered that as work that
16 was ongoing at the time. You added your name
17 back on November 30th, and then you added a
18 skill on December 30th, 1999.
19 A Okay.
20 Q I guess my first question is: Do
21 you recall that course?
22 A I do.
23 Q Is there a record of your taking
24 that course, that you brought today?
25 A Yes, it is there; it is a federal
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1 Mitchell 55
2 license, actually. It was a forty-hour
3 course, so I had to spend the whole week at
4 the District Council to get that certificate.
5 Q Would you take your copy of that
6 exhibit, and just tell me what page it is on,
7 so I can follow you?
8 A Okay. It is Page 2.
9 Q MMCH-10 is the exhibit.
10 A Hazardous waste worker?
11 Q We should have exactly the same
12 exhibit.
13 A You know what, that was probably
14 my copy I was looking at. Page 2, column on
15 the right, third one down.
16 Q Hazardous waste worker training?
17 A Correct.
18 Q And so that course was taken
19 when, can you tell from the expiration date?
20 A I can't. If it was a -- if it
21 had been a three-year term, I would have did
22 the course in November of '99. It is quite
23 possible -- I don't think the Council was
24 allowing you to put on a skill until you
25 actually had the card in your hand, and then
1 Mitchell 56
2 you had to fax it to the out-of-work list so
3 it would be added. Probably I just got the
4 card, and sent it in to the District Council
5 to put that on as a skill.
6 Q But in any event, that course was
7 taken at the District Council school?
8 A Yes.
9 Q And it was a thirty-hour course;
10 thirty hours?
11 A Actually, this here, -- that's
12 not the original. This is the refresher. It
13 originally was a federal license, I believe,
14 forty hours.
15 Q Let me get it clear, at least in
16 my mind, which sometimes is difficult; these
17 are my own infirmities. This hazardous
18 material skill added on December 30, 1999, is
19 in fact health and safety program hazardous
20 waste worker training?
21 A Correct. There's also a --
22 (Witness confers with counsel.)
23 MR. ISAACS: What I was saying to
24 my client, Mr. Mack, is: He can tell
25 you for sure, as he has in his own
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2 words, that he's taken this refresher
3 course. I don't believe he can tell you
4 for sure what the District Council is
5 referring to as Hazmat CP is this
6 course. It might make sense, but I
7 don't want him to tell you something he
8 can't verify for himself.
9 THE WITNESS: You could be right
10 there. The District Council had a
11 hazardous communication course, which is
12 a different thing.
13 A I have them both. I can't say
14 for sure that's hazardous material training
15 or the hazardous communication, I'm not 100
16 per isn't sure on that.
17 Q Do you recall taking hazardous
18 material training in a particular time in
19 1999?
20 A I don't have the exact date of
21 it, but sometime prior to, obviously, me
22 adding it as a skill.
23 Q Whatever course it was, you
24 believe you took it at the District Council?
25 A It's a fact. And then the
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2 hazardous communication is also a course I
3 took at the District Council.
4 Q Do you recall the circumstances
5 of your adding that skill, hazardous
6 material, in December of 1999, in terms of
7 timing? The reason I point that out is that
8 less than a month later, not only is there a
9 phone change, but also hazardous material is
10 specifically requested for a Eurotech job.
11 I'm trying to figure out whether you're
12 adding the skill, and it being a specific
13 skill requested for a Eurotech dispatch, were
14 related.
15 A Possibly.
16 Q Do you understand the question?
17 A Yes. Rather than maybe adding it
18 just in hopes of getting the job, it could
19 have been I added it because I just received
20 it, I may have mentioned it, that that is
21 part of my criteria, my skills, and may have
22 assisted in getting the job. But I'm not
23 sure if I directly put it down just to get
24 the job. It could have went the other way,
25 that I put it down and said to the guy, what
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2 do you do, I got this, this and that.
3 Q That's one of my questions,
4 trying to come up with it. Why don't we turn
5 to the dispatch so that I can ask the
6 question. I want to make sure you're
7 listening to your lawyer.
8 (Witness confers with counsel.)
9 MR. MACK: I don't want to be
10 intercepting your communication. If you
11 need to talk, my suggestion is that you
12 take a moment and walk outside.
13 MR. ISAACS: No, we are okay. I
14 wanted to point Mr. Mitchell to this.
15 Q My first question was, you know,
16 why does the Sanjon last a day, and you say
17 it could very well have been over; you don't
18 recall specifically that job?
19 A No. I'm sure I didn't work it,
20 because I would have got benefits paid for
21 it. There was either no job to be got there
22 that day -- it was a wild goose chase, in
23 other words.
24 Q Let's turn to the dispatch to the
25 Eurotech job on January 13, 2000. What I
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1 Mitchell 60
2 would like you to do, look at the dispatch,
3 there are one, two, three pages in MMCH-4
4 that pertain to it, and look also at your job
5 referral history that leads up to that.
6 My question is, once you look at
7 the dispatch, you see the letter, and I would
8 like you to just read that letter which was
9 sent, theoretically, from Eurotech on January
10 19, 2000.
11 A Okay.
12 Q Just read it to yourself.
13 A I read it.
14 Q So the question then is: Do you
15 recall having any interaction either with
16 someone at Eurotech and/or an individual of
17 the District Council of Carpenters or a
18 business agent, about the need for particular
19 skills on this job?
20 A I can't recall any exact
21 communications with anyone, but I would say
22 it is safe to assume that I obviously did
23 speak to someone. And I remember this job,
24 it was a renovation job of a building that
25 was built in the 1900s, so I'm sure it was
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2 full every asbestos. And there was evidence
3 of that, there was a company there removing
4 it. I had the certification, and asbestos is
5 a hazardous material. The two of them went
6 together, and I guess I must have mentioned
7 it to one of their foremen or supers; I know
8 the owners, the supers, I know a lot of plane
9 guys for twenty years, so --
10 Q I notice that there's a
11 description of forty hours of hazardous waste
12 training in the actual letter. So does that
13 trigger any -- I think you also used the
14 term, forty hours of training.
15 A Yes. It was an intense course
16 with the full Hazmat suits, and all that.
17 Q Was that course given at night;
18 in other words, if you remember how that --
19 A No. That was an eight-hour -- a
20 full week.
21 Q It is at the District Council
22 school itself; that's where you received the
23 training?
24 A That's where I received the
25 training, yes.
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2 Q Do you have any specific
3 recollection of talking to anyone about, at
4 Eurotech, about the importance of having this
5 skill for this job?
6 A I don't; but I'm going to say I
7 probably, obviously, did speak to someone.
8 Q You know, I don't know whether
9 "obvious" is the right word. I don't want to
10 assume something that, in other words, that
11 may not be the truth. I mean, I don't know
12 if "obvious" would be a word I would choose.
13 I don't want you to concede something; I
14 don't want you to concede something that may
15 not be truth.
16 True, there's a question in my
17 mind why the skill goes on and then is
18 specifically requested, and as to whether
19 there was any communication between you or
20 someone on your behalf, and Eurotech; and
21 you're saying it is possible, but you don't
22 specifically recall it.
23 A I don't specifically recall.
24 Q Is there someone particularly at
25 Eurotech that you would have talked to about
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1 Mitchell 63
2 this, or are there a number of people that
3 you know?
4 A There's a number, like I said,
5 the owners down to the superintendents, one
6 of them is a neighbor of mine, he lived two
7 blocks away from me. I know most of their
8 foremen, most of the work force at the time,
9 I knew them all, I suppose, but --
10 Q Okay. Now, I'm going to ask you
11 this question with respect to almost every
12 jobsite afterwards. So it is a fairly
13 routine question, but I'm going to start it
14 now, and that is: During your work here as a
15 shop steward on this Eurotech job, were there
16 any occasions in which you felt that you had
17 been asked by anyone to either violate the
18 law or not record carpenters on the jobsite
19 accurately in the shop steward report?
20 A No.
21 Q To the best of your recollection,
22 are the shop steward reports that you
23 prepared as shop steward for the Eurotech
24 job, I guess at 201 Park Avenue South, were
25 they accurate?
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2 A Yes, to the best of my knowledge.
3 Q Let me ask this: When did you --
4 I only have for some period of time -- when
5 did you first undertake work for On Par
6 Construction? Withdrawn. How did you first
7 become acquainted with that company?
8 A I was dispatched from the
9 Council.
10 Q In essence, you had no
11 relationship with anyone from On Par until
12 you actually were dispatched to the site, to
13 a jobsite in which On Par was the contractor?
14 A Correct.
15 Q Do you recall the first time that
16 you actually were dispatched to an On Par
17 site?
18 A The American Express building, I
19 believe.
20 Q So that December 15th, 2000
21 dispatch was the first time?
22 A I believe so.
23 Q I think we've discussed your time
24 period here, you added your name on November
25 1st, 2000, and this was one of the periods
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1 Mitchell 65
2 where you actually were working at the time
3 you added yourself to the list, right? I'm
4 talking about the 11/1/2000 on which you
5 added yourself and you changed your phone
6 number, 11/1, 2000?
7 A Yes, I went on the out-of-work
8 list.
9 Q I think you told me that you were
10 in fact working for Eurotech for some time,
11 correct?
12 A Yes. I believe I was just -- the
13 job was coming to a close, I think.
14 Q Okay. I'm having some difficulty
15 understanding the entries -- let me start
16 with 11/1, 2000. Again you change your
17 telephone number. Take a moment and take a
18 look at that. I'm trying to understand. It
19 is not a major situation, but I would like to
20 at least get some idea what is happening
21 there. I know you were working --
22 A Yeah, that was the friend's house
23 in Brooklyn.
24 Q So the telephone change -- it
25 seems to me, if you take a look at 11/1,
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1 Mitchell 67
2 had just added that day.
3 A I know I added it, deleted it and
4 added it again.
5 Q You did. I'm trying to figure
6 out, if you can tell me, what's going on
7 there, because it certainly appears to the un
8 initiated, and that certainly means me, is
9 that obviously the protection skill had some
10 bearing on your being dispatched to On Par
11 that day. And you put it on, take it off,
12 you put it back on again; and you put it back
13 on the very day that-you're dispatched to On
14 Par. I wonder if you could think about that
15 and explain it.
16 A I can't recall exactly. It may
17 have been coincidental. Maybe it was very
18 cold, because protection, you're out in the
19 elements, stringing cable, and protecting the
20 stairway. That may have been an issue. I'm
21 not quite sure.
22 Q So I don't want to go too
23 quickly. Take your time and look at it. You
24 can assume that, you know, when I see skill
25 changes on the very day of a dispatch, that
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1 Mitchell 68
2 that is something that I note. So I would
3 like you to just go through that. I'll go
4 through it with you here, briefly.
5 A I see it there before me.
6 Q It is dispatch to a job which may
7 have been a desired job or not. I don't
8 know, do you remember the American Express
9 job on December 15th, that you went to?
10 A Yes. I was only there for two
11 weeks, I believe. So if I had -- I'm sure if
12 it entered my mind for a job to be desired, a
13 two-week job wouldn't be the most desirous of
14 jobs. So that could have been all purely
15 coincidental, I'm not sure.
16 Q I want you to understand why --
17 A I understand why you're asking.
18 Q December 6, I see -- in terms of
19 reading these job referral histories, you
20 should know that because these are on
21 California time, you need to add basically
22 three hours in order to get the actual time.
23 A Sorry?
24 Q Because it's been explained to me
25 that the actual time is three hours earlier,
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1 Mitchell 69
2 because it is on Pacific Coast time --
3 A Really?
4 Q So where it says 5:36, skill
5 added on December 6, it is actually 8:36 a.m.
6 I see you adding protection at 8:36 a.m. on
7 December 6.
8 A Yes.
9 Q And then basically five or six
10 hours later, you're taking it off, the same
11 day, it's actually at 2:49 p.m. you delete
12 protection. So I'm trying to understand, if
13 we can, what's happening there?
14 A I can't really actually recall.
15 In those days you could do that, you could
16 take it off and add it, if you changed your
17 mind, six times a day.
18 Q I'm not saying there's anything
19 necessarily wrong with that. It is just that
20 when that skill, as it later does, becomes
21 somewhat important in the dispatch, there's a
22 natural question on my part: Are you
23 receiving advise or counsel from anyone,
24 business agent, someone at On Par that it
25 would be a good idea to have protection.
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1 Mitchell 70
2 If you look at the dispatch you
3 have, please take a look at that, it is a
4 letter dated December 15th, and although it
5 is hard to read, you will see that the
6 specific requirement for this job is
7 protection.
8 A And wood framing.
9 Q And wood framing.
10 A Which I probably had on there for
11 quite some time.
12 Q I wouldn't challenge that. I'm
13 pretty sure you did. But it is the
14 protection skill, and the back and forth, on
15 and off, and then back again on just a few
16 hours before you get it, is really what I'm
17 asking about.
18 A It looks to me that it is
19 probably just a change of mind, because when
20 you -- protection, when you put that down as
21 a skill, more often than not it's obviously
22 going to be a new job; and then maybe, like I
23 said, it may have been cold, and I said,
24 screw that, I would rather go inside and do
25 furniture. And I said maybe there wasn't
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1 Mitchell 71
2 much out there, I really don't recall.
3 Q I'm taking it your answer is, you
4 don't really recall, I think is what you just
5 told me.
6 A Yes.
7 Q Did you know, at that time,
8 people from On Par? I notice there's a
9 letter signed by Debbie O'Keefe. Did you
10 know a person called Debbie O'Keefe in
11 December 2000?
12 A No, I wouldn't know her last
13 name, but I know there's a Debbie that was
14 there at one time.
15 Q A few moments ago, you told me,
16 maybe I'm wrong, you did not really know
17 anybody at On Par in the end of 2000?
18 A Prior to me getting sent to them,
19 no.
20 Q You don't recall having any
21 conversations with anyone, union, nonunion,
22 business agent, I don't really care, about
23 the importance of having protection as a
24 skill for that dispatch?
25 A No.
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2 Q I now want to move into 2001, and
3 I see you adding back on January 2nd, I see
4 skills going on, skills going off. You can
5 follow along with me.
6 A Yes.
7 Q I see on January 10th, 2001, you
8 add a finished woodwork skill at 8:25 a.m.,
9 you change your phone number --
10 A What was the date again?
11 Q Take a look, January 10th, 2001?
12 A Okay.
13 Q Old phone, new phone January 10,
14 2001 at 8:24 a.m.?
15 A Yes.
16 Q Do those numbers mean anything to
17 you?
18 A Yes. The old phone there was a
19 cell number and I changed it once again, back
20 to my home address.
21 Q Was that for any particular
22 reason, I mean, about your whereabouts or --
23 A I think the particular phone at
24 that time I remember, I don't know if it was
25 that occasion, but I do remember on occasion
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1 Mitchell 73
2 that the reception was bad and I had the cell
3 number as my contact number. And by the time
4 I got the message, I called back, the job was
5 gone, so I had to change it back to a land
6 line.
7 Q You don't really remember on this
8 day? I'm not trying to make life difficult.
9 But do you remember the circumstances of this
10 particular change on January 10th, '01,
11 recognizing there are other ways that may
12 help you remember, maybe they won't; but on
13 that very time, you're adding skills, you add
14 protection and finished woodwork, on January
15 10th, you can see that, you're bypassed at
16 9:51?
17 A What does that mean?
18 Q I think they can't get you, they
19 can't find you.
20 A All right.
21 MR. SOBOCIENSKI: All depends.
22 Is that a morning dispatch? The time
23 day is what?
24 MR. ISAACS: 9:51.
25 MR. SOBOCIENSKI: It could mean
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1 Mitchell 74
2 that he was contacted and did refuse the
3 job, too; it is immediate, you have the
4 right of refusal.
5 THE WITNESS: One time you had
6 that. Now you don't. Am I correct ?
7 MR. SOBOCIENSKI: You always have
8 the right to refuse an immediate
9 dispatch.
10 THE WITNESS: Oh, sorry. That's
11 possible.
12 Q You see January 10th, 9:51,
13 bypassed. Then you're phone is busy and then
14 you get a job referral. Take a look at the
15 referral, and you see that you added the
16 skill of finished woodwork at 8:25 a.m. that
17 day.
18 A Okay.