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                      UNITED STATES DISTRICT COURT
                      SOUTHERN DISTRICT OF NEW YORK
                                                                x
                      UNITED STATES OF AMERICA,
                                           Plaintiff,
                                 -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
                                          September 14, 2005
                                          2:25 p.m.

                                   DEPOSITION OF MICHAEL MITCHELL, taken
                      by Walter Mack, Esq., pursuant to Notice, 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
             ORIGINAL York.



                               TANKOOS REPORTING COMPANY, INC.
                      305 Madison Avenue          142 Willis Avenue
                      Suite 449                   P.O. BOX 347
                      New York, N.Y. 10165        Mineola, N.Y. 11501
                          (212)349-9692             (516)741-5235

               1                                                                2
                           APPEARANCE S:
               2
               3           DOAR RIECK & MACK,    ESQS.
                                  217 Broadway - 7th Floor
               4                  New York,   New York 10007-2911
               5           BY:    WALTER MACK,   ESQ.
               6
               7           KOEHLER & ISAACS,    LLP
                           Attorneys for Witness
               8                  61 Broadway - 25th Floor
                                  New York,   New York 10006
               9           BY:    STEVEN ISAACS,    ESQ.
               10
               11
               12
               13
                           ALSO PRESENT:
               14
                                   Donald Sobocienski
               15
               16                                   *    *
               17
               18
               19
               20
               21
               22
               23
               24
               25

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              1                                                            3
              2                        MR.  MACK:  On the record.
              3                        Mr.  Mitchell,  I want to go over a
              4                number of things with you,    and I would
              5                like you to listen carefully to what I
              6                have to say,   and then you or Mr.   Isaacs
              7                will be able to ask any questions you
              8                have in mind.    I want to bring you
              9                up-to-date as to what's going on,     and
             10                respond to your questions.
             11                        I know one of the things in your
             12                mind is what I am doing,    although I'm no
             13                longer the Independent Investigator.       I
             14                want to answer that question.      I am no
             15                longer the Court-appointed Independent
             16                Investigator;   that person is Mr.   William
             17                Callahan.    However,  I'm operating under
             18                his request and the direction of the
             19                Court with respect to working through
             20                investigations and trying to complete
             21                 investigations that have begun under my
             22                watch.    I sent a Notice to you,   because
             23                 I wanted to see you directly and tell
             24                 you what  I'm going to tell you today;    I
             25                was the Independent Investigator,     I had
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               1                                                                4
               2                  the authority to do so,     and I'm
               3                  operating today with Mr.     Callahan's
               4                  authority and request that I proceed on
               5                  a number of investigations,      one of which
               6                  concerns On Par Construction.
               7                          Now, the reason that I wanted to
               8                  talk to you directly,     is that when you
               9                  testified before me back a year ago,        in
               10                 August,   I went at considerable length to
               11                 ask you questions about my concerns,        and
               12                 indicated to you that there was an
               13                 ongoing investigation,     and that if there
               14                 was anything that you felt needed to be
               15                 corrected,   that you would have the
               16                 opportunity to come in and provide or
               17                 correct your testimony.      I mentioned
               18                 that indirectly to Mr.     Isaacs several
               19                 times.    I'm quite sure he communicated
               20                 my ever-increasing skepticism and doubt
               21                 as to the accuracy of what you told me
               22                 under oath.
               23                         I would say within the last four
               24                 to five months,    we have obtained,     I
               25                 don't want to overstate it,      but very
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               1                                                                5
               2                  direct proof that On Par has failed to
               3                  pay the Benefit Fund in excess of $10
               4                  million for the carpenters,      and we are
               5                  going through thousands and thousands of
               6                  On Par checks,   which are paid in cash
               7                  amounts;  in other words,    known
                                  Collective Bargaining Agreement amounts,
               9                  without benefits being paid.       And we
               10                 are,  I would say,   maybe a quarter of the
               11                 way through of bringing in those
               12                 carpenters who were paid in these
               13                 amounts.
               14                         On virtually every jobsite in
               15                 which you were the shop steward,       there
               16                 are witnesses who swear that you carded
               17                 them,  you checked their cards,     or
               18                 facilitated their membership;      and yet
               19                 did not record them on your shop steward
               20                 reports on every jobsite.     That's the
               21                 evidence that will be submitted to the
               22                 Court.
               23                         Basically, what I wanted to say,
               24                 I want to do this,    I want to reach out
               25                 to you -- let me deal with one reason,
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              1                                                         6
              2               the reason that the District Council is
              3               not here is because I have decided that
              4               certain witnesses,  many witnesses,
              5               especially on this On Par investigation,
              6               have indicated to me that they do not
              7               wish the District Council to be aware of
              8               what they are saying,   even though I tell
              9               them eventually they will hear what they
             10               are saying.   Whether you want to
             11               disclose to them that you were here --
             12               have you told anybody that you're here
             13               today,  Mr. Mitchell?
             14                       MS. MITCHELL:   Have I told
             15               anyone --
             16                       MR. MACK:  That you are here
             17               answering questions for me today?
             18                       MR. MITCHELL:   Yes.
             19                       MR. MACK:  Whom have you told;
             20               anyone at the District Council?
             21                       MR. MITCHELL:   No.
             22                       MR. MACK:  I'm going to follow up
             23               with those questions,   but the way I have
             24                looked at it, and the way a number of
             25               people,  and I would say I talk to shop
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                1                                                               7
                2                 stewards and eventually I will talk to
                3                 all shop stewards and all of the foremen
                4                 who are on primarily these On Par
                5                 jobsites as to which I am focusing my
                6                 attention at this time. Many of them
                7                 have not appeared before me before,       most
                8                 of them, I won't say every one, here by
                9                 counsel, have acknowledged what has
               10                 happened on the jobsites in which they
               11                 worked.
               12                         What I say to them, and I'm going
               13                 to say it to you, is that I have
               14                 referred On Par to the U.S.      Attorney's
               15                 Office for criminal investigation. As I
               16                 say,  the numbers that Mr. Sobocienski
               17                 and I are estimating, recognizing we've
               18                 only seen perhaps half,      two-thirds of
               19                 the checks for all the various
               20                 nonpayroll accounts that were being used
               21                 by On Par, it is going to be in excess
               22                 of $10 million of defrauding the Benefit
               23                 Fund, which is a major federal crime, if
               24                 proven, and carries with it very severe
               25                 sanctions for Mr. Murray and the various
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      1                       8
      2      people associated with On Par.
      3         The position I'm taking, and I
      4      want to take it with you, you are in a
      5      slightly different position, that if the
      6      stewards and the foremen on these sites
      7      on which these carpenters worked and
      8      were paid nonappropriate collective
      9      bargaining rates, cooperate and tell me
     10      the truth, my referral -- and again I
     11      want to reiterate, I'm not a prosecutor
     12      here, things would be different if I
     13      were a prosecutor. I'm simply a
     14      fact-gatherer and a report-writer and a
     15      person who makes recommendations. My
     16      recommendation will be, for those
     17      individuals who cooperate and tell me
     18      the truth and acknowledge what happened,
     19      and help me write an accurate report
     20      about the amount of funds and what
     21      happened on the sites, who were the
     22      people responsible and how it went on,
     23      those people I will not include in my
     24      recommendation for criminal prosecution.
     25         For those people who lie to me,
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             1                                                    9
             2              don't tell me the truth, or seek to void
             3              my ability to find out what the facts
             4              are, and those people who engineered or
             5              participated directly in permitting this
             6              to occur, those people will be included.
             7                     And the reason I wanted to speak
             8              to you directly, is because I went at
             9              considerable length when I talked to
            10              you, asking you questions to which you
            11              were giving me answers, which I now
            12              believe to be untrue, and I think I have
            13              important, valuable, reliable, credible
            14              evidence to that fact; and I think that
            15              will only continue. Because basically
            16              during the time period of all the On Par
            17              jobsites you were at, with possibly one
            18              exception, the carpenters working at
            19              those sites were paid by check, and
            20              those checks are available to me, and
            21              those carpenters are coming in, I would
            22              say virtually every one of them, and
            23              indicating to me who the shop stewards
            24              were, conversations they had with them;
            25              you are in this category, the fact that
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                1                                                              10
                2                  even when they became members, you would
                3                  check their cards to make sure that
                4                  their dues were paid, even though they
                5                  were not on the shop steward reports.
                6                          In addition, in your situation, I
                7                  think we talked about this when you
                8                  testified, it was very clear to me that
                9                  there were efforts to get you at On Par
               10                  jobsites, for whatever reasons, I       can
               11                  speculate.
               12                          So what I am basically doing here
               13                  is saying, this is your decision, and,
               14                  you know, maybe the U.S. Attorney, maybe
               15                  the judge could care less what I have to
               16                  say and completely discount the evidence
               17                  that will be coming in in very detailed,
               18                  accurate fashion.
               19                          My plea to you is this: That by
               20                  leaving the record where it sits, and
               21                  not providing me what in my view is
               22                  accurate information, you are exposing
               23                  yourself to criminal prosecution. It        is
               24                  not going to be my decision, that
               25                  prosecution would be for lying to me
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     1                        11
     2       under oath, and specifically denying
     3       that these events occurred; two,
     4       obstructing justice, because I went out
     5       of my way when I read the testimony, and
     6       I read it this afternoon, I said, I need
     7       your help, need you to help me get
             through this information.
     9          Finally, by your taking those
     10      steps, which some day a criminal trial
     11      jury may have to conclude, and I never
     12      predict what a criminal jury would do,
     13      you helped Mr. Murray by not cooperating
     14      with me, and telling me the truth, by
     15      submitting shop steward reports which
     16      left carpenters on your sites off the
     17      sheets, which resulted in benefits not
     18      being paid; you agreed with or permitted
     19      On Par Construction to avoid paying
     20      benefits for those carpenters on your
     21      sites, and therefore, you bear some
     22      responsibility for defrauding the
     23      Benefit Fund.
     24         Whether a prosecutor would agree
     25      with that theory or not, my own feeling
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     1                       12
     2      is, having been a prosecutor, that if
     3      you act in such a way to permit a fraud,
     4      or a person to withhold payments, you
     5      have conspired and agreed with that
     6      person to permit him to do so, for
     7      whatever reason.
     8         That .decision will not be made by
     9      me. By not helping and by submitting
     10     false shop steward reports, you
     11     permitted Jim Murray to defraud the
     12     Benefit Funds of sums of money, and also
     13     fellow union members were not paid the
     14     appropriate wage under the Collective
     15     Bargaining Agreement.
     16        That's the theory, and that
     17     theory is based on what is now
     18     increasing evidence of documents which
     19     are very, very accurate. And human
     20     beings who are in a situation say what
     21     they did and didn't do. You may say
     22     that's a lot of crap. That's fine. You
     23     can persist in that view. All I would
     24     be able to say is that I did my level
     25     best to convince you that you are at
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                1                                                              13
                2                 risk,  and ask you to assist me to write
                3                 an accurate report. You can decide for
                4                 whatever reason.
                5                         One of the reasons I didn't
                6                 invite the District Council today, many,
                7                 many carpenters and shop steward have
                8                 said: I want to tell you the truth,        but
                9                 I want to be in some type of
               10                 relationship directly to the Court. I'm
               11                 acting an as agent of the Court here,
               12                 and that's an important thing.
               13                         So, you had a chance to read your
               14                 testimony, you have Mr. Isaacs here. I
               15                 want to make this as clear as I possibly
               16                 can; and what I'm saying to you, you are
               17                 in jeopardy, based upon the evidence
               18                 I've collected and what's there. And
               19                 what I basically beseech you to do, you
               20                 know what the truth is, and you know
               21                 what happened, and you know how it went
               22                 on, is to ask you to tell me what really
               23                 happened here; and to do so, I will be
               24                 able to hold those people primarily
               25                 responsible.
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       1                             14
       2            The person most responsible for
       3        this is Jim Murray and the other people
       4        at On Par who generated this situation.
       5        Those are the people who should face
       6        criminal exposure, and they do. There's
       7        an ongoing investigation, Mr. Murray has
       8        asserted his Fifth Amendment, he has
       9        made admissions. He has a very big
       10       problem, criminal problem. And so the
       11       reason I wanted to see you about this is
       12       because I think you have a criminal
       13       problem at the moment; because of the
       14       evidence that's here. And basically
       15       what I'm saying is, at least I know that
       16       I will have taken the steps necessary to
       17       reach out to you and say, with counsel,
       18       that I would like you to assist me in
       19       finding out what the facts are. That's
       20       basically what's going on here today.
       21           What I intend to do is make sure
       22       that you understand you have all the
       23       same rights you had before. You read
       24       your transcript. You have a Fifth
       25       Amendment right; you can simply say,
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                1                                                              15
                2                 hey, what I said before, I      stand by it.
                3                 And my conscience will be clear that I
                4                 have done my level best to give you some
                5                 idea of the risk you face;      and you're an
                6                 intelligent person, and you make your
                7                 decisions, you live by them.
                8                         You can take the risk that
                9                 whatever I have to say is meaningless
               10                 and a waste of time, and nobody is going
               11                 the pay any attention to it. I think
               12                 that would be a big, big risk.
               13                         Having said all of that, let me
               14                 first ask you, do you have any questions
               15                 that you would like to ask me,       yourself?
               16                         MR.  MITCHELL:    No.
               17                         MR.  MACK:   Mr.  Isaacs?
               18                         MR.  ISAACS:    No; no questions,
               19                 thank you.
               20                         MR.  MACK:   Mr. Sobocienski and
               21                 I -- I want to ask you -- let me ask you
               22                 several basic questions. This will be
               23                 short, or I'm willing to take whatever
               24                 time is needed to make sure I have an
               25                 accurate record. It      is your choice.
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            1                       Michael Mitchell           16
            2         MICHAEL        MITCHELL,         the
            3         witness herein, being duly sworn by Stewart
            4         Nissenbaum, a Notary Public of the State of
            5         New York, was examined and testified as
            6         follows:
            7         EXAMINATION BY
            8         MR. MACK:
            9              Q      Have you had an opportunity to
           10         read your transcript when you testified here
           11         on August 2, 2004?
           12              A      Yes.
           13              Q      Is there anything in that
           14         testimony which you believe was or is
           15         inaccurate?
           16              A      No.
           17              Q      I just want to cover a couple of
           18         other areas. Do you swear that the shop
           19         steward reports that you have submitted to
           20         the District Council, record accurately the
           21         names and hours of the carpenters who worked
           22         on those jobsites?
           23              A      To the best of my knowledge.
           24              Q      As you sit here today, they are
           25         accurate shop steward reports?
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                     1                       Michael Mitchell
                     2              A      To the best of my knowledge.
                     3              Q      With respect to the hours that
                     4         you have recorded for yourself, do they in
                     5         fact record the hours that you spent on the
                     6         jobsite?
                     7              A      Probably not accurately.
                                    Q      Would you explain your answer,
                     9         please?
                    10              A      I stated before, there would be
                    11         times I would be paid for the day, and woulc
                    12         have left early, or something to that effect
                    13         So I won't say that for every 40 hours, that
                    14         I was actually on the job for 40 hours.
                    15              Q      Is there any way that I can
                    16         determine how many hours you actually spent
                    17         on the jobsite? In other words, did you cal
                    18         the BA?
                    19              A      I don't know that.
                    20              Q      On an average of a 35- or 40-hot
                    21         workweek for which you were paid, how many
                    22         hours would you not be on the jobsite?
                    23              A      That would have varied.
                    24              Q      From what to what, approximately
                    25              A      I don't know. From full 40 to
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              1                       Michael Mitchell             18
              2         something smaller. I  couldn't say.
              3         Depending what was going on in my personal
              4         life; if I was doing something at home, you
              5         know. It would depend on several things, the
              6         size of the job, your foreman. Some jobs you
              7         have to be there the full 40 hours; sometimes
              8         you wouldn't.          .
              9              Q      I'm trying to get some idea.
             10         Going back to your On Par jobs, can you give
             11         me some estimate of how many hours you were
             12         actually on the jobsite?
             13              A      I couldn't.
             14              Q      Would you ever be on the jobsite,
             15         shall we say, less than three-quarters of the
             16         time?
             17              A      I can't recall, you know,
             18         specifically what weeks I was there or for
             19         how many hours.
             20              Q      Are there any periods of time
             21         which you can identify, that you weren't
             22         there for, let's say, a period more than an
             23         hour a day, based on illness or a family
             24         situation, or a period that you were doing
             25          something else and you weren't serving as a
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                1                            Michael Mitchell                  19
                2           shop steward?
                3                 A       Not at this moment, no.
                4                 Q       Is there any way, in other words,
                5           is there any way, either by a record or by
                6           having called concerning your absence or
                7           where you were at the time, that we can
                8           determine what hours you actually worked,
                9           were present on these On Par jobsites?
               10                 A       I wouldn't think so.
               11                 Q       Other than your lawyer and your
               12           family, who else have you told about your
               13           presence here today?
               14                 A       I don't see the relevance of
               15           that.
               16                 Q       It is relevant; it's certainly
               17           relevant. The question is, it may not mean
               18           anything, but it is certainly relevant. Have
               19           you discussed your presence here with anybody
               20           who works at On Par?
               21                 A       No.
               22                 Q       Have you discussed your presence
               23           here with anybody who is assigned to 608 or
               24           is a member of    608?
               25                 A       I may have.
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                1                            Michael Mitchell                  20
                2                 Q       You know, you can say: I'm not
                3           going to answer.
                4                 A       I'll  answer the question.
                5                 Q       Who might you have discussed it
                6           with?
                7                 A       I don't know; but I've met some
                8           of my business agents the last week or two; I
                9           probably did say I was called down to Walter
               10           Mack's   office again.
               11                 Q       Do you remember the business
               12           agents you discussed this with?
               13                 A       No. I met a bunch of them one
               14           evening; don't know who I may or may not
               15           have said it to.
               16                 Q       You know they were business
               17           agents   from 608?
               18                 A       I have met business agents from
               19           608 in the last couple of weeks. Whether or
               20           not I told them about it, I'm not        sure.
               21                 Q       You're not sure whether you
               22           discussed your coming down here today?
               23                 A       I more than likely did. I'm not
               24           going to say definitely I remember telling
               25           them, or whatever.
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         1               Michael Mitchell   21
         2         Q    Did you discuss your appearance
         3      here today and what the topic was?
         4         A    No, no. I may have mentioned I
         5      was called down here again; but I didn't know
         6      what the topic would be, so I couldn't be at
         7      liberty to discuss that.
         8         Q    You know, my hope was that I
         9      communicated that it would have to do with On
        10      Par. You didn't discuss with them that it
        11      had to do with On Par Construction?
        12         A    No.
        13         Q    Were you given any advice, other
        14      than by your lawyer or by a family member,
        15      about what you should do when you are down
        16      here?
        17         A    No.
        18         Q    Let me ask you, on any On Par
        19      jobsite that you worked on, did anyone ask
        20      you to do something which you knew to be
        21      either a violation of the law or a violation
        22      of your obligation as a carpenter shop
        23      steward?
        24         A    Could you repeat that?
        25         Q    Sure. On any On Par jobsite or
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                1                            Michael Mitchell                  22
                2           at any time in which you were a steward on an
                3           On Par jobsite, did anyone ask you to do
                4           something, to take an action or not take an
                5           action, which you knew either to be a
                6           violation of the law or a violation of your
                7           obligation as a union shop steward?
                8                         MR.  ISAACS: Before you answer
                9                 that question, come with me.
               10                         MR.  MACK: Sure.
               11                          (Mr. Isaacs and the witness left
               12                 the room, then returned.)
               13                         MR. MACK:     Did you have enough
               14                 opportunity to consult?
               15                         THE WITNESS:     Yes.
               16                 A       I believe I answered that
               17           question before.
               18                 Q       You did. It doesn't make any
               19           difference. I'm asking it again because I
               20           have reason to believe that you didn't answer
               21           it truthfully. I want to make sure I've
               22           asked it again, and I asked it a little bit
               23           differently.
               24                 A        I have nothing to alter my last
               25           statements to you.
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       1              Michael Mitchell 23
       2        Q    It is broader than that. I
       3      looked at it, and I actually changed it to be
       4      broader.
       5        A    Okay.
       6        Q    My feeling is, I want to make
       7      sure you answer the question I ask you today.
       8        A.   Could you repeat the question?
       9        Q    Sure. On any jobsite in which
       10     you were acting as an On Par shop steward,
       11     did anyone ask you to do anything which you
       12     knew or believed to be a violation of the law
       13     or to be a violation of your obligation as a
       14     Carpenter's Union carpenter shop steward?
       15       A    I think I told you before,
       16     members had asked me on different occasions
       17     to leave them off the sheet.
       18       Q    You said only two had, and you
       19     couldn't remember who they were; and there
       20     were other things, but I'm asking -- that's
       21     all there was?
       22       A    Other than that, no.
       23        Q   Nothing else?
       24       A    No.
       25        Q   Did anyone, outside of being an
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               1                           Michael Mitchell                24
               2           operator of the job referral    system, act in
               3           any way to increase the likelihood of your
               4           being assigned as a shop steward to an On Par
               5           jobsite?
               6                 A       Repeat that. I'm sorry.
               7                 Q       Sure.  Did anyone, other than an
               8           operator of the District Council job referral
               9           system, ever act in any way, that means give
              10           you suggestions, give you an idea of what
              11           skills to add or delete, with the purpose of
              12           increasing the likelihood of your assignment
              13           as a shop steward to an On Par jobsite?
              14                 A       Not that  I can recall, no.
              15                 Q       Other than that, you're standing
              16           on your testimony of before; is that correct?
              17                 A       Yes.
              18                         MR. MACK:   Anything you would
              19                 like to ask, Mr.   Sobocienski?
              20                         MR. SOBOCIENSKI   no.
              21                 Q       I wish you luck, Mr. Mitchell.
              22                         My feeling is this: That
              23           notwithstanding your views here today, and
              24           what you've said, that if at some time you
              25           would like to perhaps reconsider or find some
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        1             Michael Mitchell 25
        2     way to overcome my perception, which I don't
        3     think is wrong, but I'm wrong frequently, I
        4     would suggest you talk to Mr. Isaacs about
        5     it, and I hope things work out for you, one
        6     way or the other.
        7            I can't predict what the judge or
        8     prosecutors would do; I think you've taken
        9     some risk, and for reasons that I perhaps can
       10     speculate as to, but I'm not going to
       11     speculate as to. I'm going to gather my
       12     facts and submit my report and see what the
       13     result is. And I wish you luck in the
       14     future.
       15            Let's conclude.
       16            (Time noted: 2:55 o'clock p.m.)
       17
       18                 * 
       19
       20
       21
       22
       23
       24
       25
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    1                                               26
    2     CERTIFICATE 
    3
    4                    STATE OF NEW YORK        )
    5                    COUNTY OF ROCKLAND       )              ss:
     6
    7              I,     STEWART NISSENBAUM, a Shorthand
     8         Reporter and Notary Public within and for the
     9         State of New York, do hereby certify:
    10        That the within is a true and
     11        accurate transcript of the testimony taken on the
     12        14th day of September, 2005.
    13         I further certify that I am not
     14       related to any of the parties to the proceeding by
     15       blood or marriage, and that I am in no way
     16       interested in the outcome of this matter.
     17       IN WITNESS WHEREOF, I have hereunto
     18    
     19
      20
      21     set my hand this 20 day of September, 2005. 
      22
      23
      24              STEWART NISSENBAUM
      25

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             1                                                    27
             2                           ERRATA SHEET
             3        WITNESS: 
             4        TESTIMONY DATE : 
             5        PAGE  LINE   FROM                              0
             6
             7        ___   ___
             8        ---   ---
             9        ___   ___
            10        ___   ___
            11        ---   ---
            12        ___   ___
            13        __    ___ 
            14        ---   ---
            15        ___   ___
            16        ___   ___
            17        ---   ---
            18        ---   ___
            19        ___   ___
            20        ---   ---
            21        ---   ___
            22        ___   __
            23        ---   ---
            24        ---   ___
            25         By:  Name                                 Date
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