Laborers for JUSTICEŠ 1997-2006 All
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1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
3
4 COPY
5 UNITED STATES OF AMERICA,
6 Plaintiff,
7
8 VS. No. 90 CIV 5722
9 (CSH)
10 DISTRICT COUNCIL OF NEW YORK CITY
AND VICINITY OF THE UNITED
11 BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, et. al.,
12 RECEIVED
13 Defendants. JUN 20 2005
DOAR RIECK & MACK
14 INDEPENDENT INVESTIGATOR DEPOSITION
15
16
17
18 INTERVIEW OF MIKE GUERIN
19 New York, New York
20 Wednesday, June 8, 2005
21
22
23 Reported by:
24 Meredith Stoeckel
25 JOB NO. 4115
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1 Page 2
2
3 June 8, 2005
4 4:00 p.m.
5
6 Interview of MIKE GUERIN by the
7 Independent Investigator, Walter Mack,
8 Esq., held at the offices of Doar, Rieck &
9 Mack, Esqs., 217 Broadway, 7th Floor, New
10 York, New York, 10007-2911, before Meredith
11 Stoeckel, a Notary Public of the State of
12 New York.
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1 Page 3
APPEARANCE S:
3
4 DOAR RIECK & MACK, ESQS.
5 217 Broadway, 7th Floor
6 New York, New York 10007-2911
BY: WALTER MACK, ESQ.
8 Independent Investigator
9
10 O'DWYER & BERNSTIEN, LLP
11 Attorneys for District Council of Carpenters
12 Paul O'Dwyer Way
13 52 Duane Street, 5th Floor
14 New York, New York 10007
15 BY: RAUL GARCIA, ESQ.
16
17 DINO J. LOMBARDI
18 Attorney for Witness
19 52 Duane Street, 7th Floor
20 New York, New York 10007
21 BY: DINO J. LOMBARDI, ESQ.
22
23 ALSO PRESENT:
24 DONALD SOBOCIENSKI
25 ELAINE WONG
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Page 4
1 MR. MACK: I am going to go
2 through all your rights and remedies and
3 any questions that occur to you you feel
4 free to raise. And so as I'm sure you
5 know I am the independent investigator
6 for whatever time remains appointed by
7 the Judge -- Judge Haight. And I am an
8 agent of the court and I function under
9 an order and stipulation which is a
10 public document.
11 And I know from the past Mr.
12 Lombardi has a copy of and you may have
13 read it or not. If you want a copy you
14 as any carpenter can have it. And in
15 essence it imposes certain obligations
16 upon me and also limits my authority.
17 And just to summarize I am in power to
18 gather facts and write reports but I have
19 no disciplinary authority of any kind. I
20 can make recommendations but in essence
21 the Judge is my boss and he determines
22 what I do and what authority I have.
23 And as I know you know from our past
24 discussions the Judge has agreed with the
25 district council's position that my
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1 service as independent investigator
2 terminates.
3 However, the Judge issued an order
4 which basically said I should continue in
5 my job until he appoints a successor
6 which at least as I know as of yesterday,
7 because I was with the Judge yesterday,
8 basically has not happened as yet. And
9 knowing the district council as I do they
10 are doing their very best to get me
11 replaced but they have not been
12 successful so far. And I leave that to
13 the parties the government and the
14 district council to resolve that and when
15 that happens I will no longer have that
16 title.
17 However, I still have a number of
18 duties as to assist my successor and in
19 doing so whatever happens I can't predict
20 I don't know who that will be. I don't
21 know what their position will be. But
22 the reason I say that is that my
23 authority continues and I'm not bashful
24 at all about going back to the Judge
25 should a question arise as to what I
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Not for republication on the internet without permission. Page 6 1 should be doing or not. And that doesn't 2 happen infrequently and he is not at all 3 bashful about telling me what he expects 4 me to do. So I believe I am acting 5 consistently with what he expects me to 6 do today. 7 And as such what I have done is 8 when a particular individual has come up 9 as a subject of the hotline calls I 10 frequently decide and I have deposed or 11 questioned many individuals in your 12 position as shop steward as to which 13 complaints or issues have been filed. 14 Now, let me be the first to state 15 that virtually all of the complaints that 16 mention you are anonymous. And in my 17 viewpoint and I certainly know the 18 district council's perspective on 19 anonymous complaints but that is an issue 20 for the court and I happen to believe in 21 hotlines. 22 And there are people who you know 23 who you would never think would call the 24 hotline who call the hotline whom I know 25 by name who asked to be anonymous for
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Not for republication on the internet without permission. Page 7 1 whatever reasons of their own. And I 2 don't probe that, that's their choice 3 whether they are anonymous or not. 4 So then I conduct my own 5 evaluation to determine whether or not I 6 think it's important for me to talk to 7 that particular individual because I 8 think I could learn something that could 9 be of value in my examination. And 10 that's why you are here today, that's 11 what it boils down to. 12 I know it may not be the most 13 pleasant place to be after a hard days 14 work. I will try to be efficient and go 15 about my duties in a way. And I will be 16 the first to say that what is not at 17 issue here is whether you are a good shop 18 steward or a good union person or you do 19 your job well, and whether you are an 20 honorable human being and whether you 21 take your union responsibilities. Those 22 are not issues that I am probing into. I 23 assume all of those things and I know 24 from past experience and interaction with 25 your peers and friends and maybe enemies
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Not for republication on the internet without permission. Page 8 1 that you are an excellent shop steward. 2 So I don't want you to think that the 3 reason you are here is because I think 4 you lack skills or knowledge as a shop steward. 6 What is at issue is how certain 7 things that may have occurred on a job or 8 certain methodologies which resulted in 9 you being assigned to particular jobs at 10 particular times. And you are among 11 about 30 individuals, I think is the last 12 number, around 30 people who are shop 13 stewards who have been shop stewards or 14 have shop steward skills who have come in 15 to describe and explain what has 16 happened, how certain things happen, all 17 right. 18 I would also say that I write 19 reports but whether or not anybody ever 20 does anything about them is certainly a 21 question in my mind, all right. And so I 22 can't predict. 23 And I think the most important 24 thing I will say to you tonight is that 25 you will be under oath in a few moments
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Not for republication on the internet without permission. Page 9 1 is listen to the question and answer it 2 truthfully and completely. And the only 3 real way that you and I can have an 4 antagonistic position is if you lie to 5 me. And some people have questioned, you 6 know, why I refer -- I referred a couple 7 of shop stewards for criminal 8 prosecution, I'm referring other people 9 for obstruction of justice from time to 10 time, I actually have another criminal 11 referral under way. 12 My view is for the most part 13 whatever things happen are for the others 14 to resolve and if it can be resolved 15 fairly to the carpenter's union by the 16 payment of money meaning if back benefits 17 are to be paid and cash situations and 18 what have you I don't look to put people 19 in jail. I have had that job in my day 20 and, you know, my own feeling is 21 virtually any dispute as to wage and 22 proper benefit and what have you should 23 be able to be resolved by financial 24 sanction or some other sanction not by 25 sending someone to jail.
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Not for republication on the internet without permission. Page 10 1 Where I differ on that is if 2 somebody comes in and I ask him a 3 question and they lie to me under oath 4 and mislead me. And the people I have 5 referred in general have been people who 6 have come in, heard what I am saying now, 7 seen a video tape or something, or know 8 what the evidence is and then choose to 9 intentionally deceive me or lie to me. 10 And those people I do make a criminal 11 reference on. But again I am not a 12 prosecutor, I have been a prosecutor, I 13 am not a defense lawyer, you have a fine 14 defense lawyer at your side. So 15 basically I'm a fact gatherer. 16 So the best advice anybody could 17 give you including me is when you are 18 under oath as you will be in a few 19 moments listen to the question tell me 20 the truth. My own view is that there are 21 many things that have happened and 22 happened in the past, may have been 23 different situations that have occurred. 24 I have written a very strong 25 report about the request system but the
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Not for republication on the internet without permission. Page 11 1 district council has taken the view that 2 that was a legitimate change and I 3 certainly am not going to predict the 4 Judge as to whether he is going to agree 5 with that or not or as to whether he will 6 ever decide. So I just want to reiterate 7 the importance of telling me the way it 8 is and direct. I have had shop stewards, 9 I think I have even had shop stewards 10 represented by Mr. Lombardi, who have 11 simply said yes, I was told to do this or 12 I did that or that's what everybody did 13 at the time and it may not have been 14 right. My feeling is it's far better to 15 be truthful than give me a story that is 16 not accurate. 17 I will tell you in the two years 18 plus I am not a person of coincidences 19 and I have learned a lot. There's a lot 20 more I have to learn but in a sum it's 21 best just to be direct and say this is 22 what I did, this is what happened and 23 that's it. You will be far better off 24 than trying to tell me that something 25 happened that I know didn't happen or
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Not for republication on the internet without permission. Page 12 1 couldn't have happened or is unlikely to 2 happen. So is that reasonably clear? 3 THE WITNESS: Yes. 4 MR. MACK: Now, because I am an 5 agent of the court I would also tell you 6 that even if you don't lie to me but you 7 send me down something which you know is 8 untrue or unlikely or in essence mislead 9 me or deceive me you are in a sense 10 misleading or deceiving Judge Haight 11 whose clerk or himself will read this 12 transcript. So basically because I am an 13 agent of the court, as long as I am, if 14 you try to deceive me that can be 15 considered an obstruction of justice 16 which basically means that, hey, I knew I 17 was speaking to the Judge through his 18 agent Walter Mack and rather than telling 3.9 him straight what really happened here I 20 made up some BS story to overcome what it 23. is. And if the Judge agrees or a 22 prosecutor agrees it is also a federal 23 crime and can result in conviction and 24 incarceration. 25 But the simple lesson is this is
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1 not a Grand Jury, you're not being Page 13
2 investigated for criminal violations.
3 You are here because there had been
4 questions raised about certain of your
s assignments and I'm trying to figure out
6 what were the methods and what is
7 actually happening out there that affects
8 the job referral rules. And is it the
9 way it should be and should it be
10 different or should it stay the same. Is
11 the way it's functioning the way it
12 should stay.
13 I am going to report the facts as
14 I find them but others are going to
15 decide and the district council who is
16 ably represented here today will have
17 their position before the Judge and the
18 government who is represented here as
19 well may have their position. And
20 believe me I will never predict what
21 Judge Haight will do or say. So in the
22 simplest form it's important to listen,
23 answer truthfully and get this evening
24 over with and everybody will move on.
25 And I will be long gone before anybody
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1 decides what is to happen. Page 14
2 Now, there are a number of things
3 that I need to talk to you about which
4 every witness has. And by the way
5 there's nothing I am saying to you that I
6 haven't said to every witness who has
7 been here. You are not being singled out
8 for a harsher or starker or different --
9 the concepts are all the same for
10 everybody. And I go through this long
11 spiel because I know the Judge wants me
12 to ensure that every carpenter and every
13 witness understands the stakes and the
14 importance of being truthful and direct.
15 Should I ask a question tonight in
16 which you feel could personally
17 incriminate you you have the right as any
18 witness in court would have to take the
19 fifth amendment. And what that means
20 basically is, hey, it's a possibility
21 here that this could incriminate me
22 personally. I'm not going to ask you a
23 question like this but if I say have you
24 ever something like -- have you ever
25 smoked marijuana on the job and I'm
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1 picking this solely out of the air -- I'm Page 15
2 not going to ask you a question anything
3 like that -- but should I ask a question
4 and you say gee whiz, I know smoking
5 marijuana is a crime. The Supreme Court
6 just decided this week that even under
7 states that permit it the Feds can
8 prosecute it you have a right to say I
9 respectfully refuse to answer that
10 question because it might incriminate me.
11 Every witness gets this warning.
12 My suggestion is Mr. Lombardi is
13 certainly a well-informed individual. If
14 I ask a question that you think could
15 involve that you should say I would like
16 to talk to Mr. Lombardi and go outside
17 the room and discuss it with him and
18 decide whether it's worthwhile.
19 Mr. Lombardi has had clients who
20 assert the fifth and the district council
21 has yet to develop a policy which in my
22 view deals with that subject in a clear
23 fashion so I can't predict what the
24 district council will do. They certainly
25 haven't done what I thought they should
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1 do but that's for them to deal with. Page 16
2 But the point remains in this
3 setting tonight you have the right to
4 assert the fifth to any question which
5 you believe you should and that's why you
6 have a lawyer with you and I'm glad you
7 have a lawyer with you. Mr. Lombardi I
8 am sure is excellent and has proven his
9 excellence in deciding whether that's a
10 prudent thing for you to do or not to do.
11 And I would encourage you to listen to
12 his advice and decide whether you wish to
13 assert it.
14 From my perspective I don't think
i5 I am going to ask any question which you
16 will feel that need but it's not what I
17 think it's what you think that counts.
18 Do you understand what I have just said?
19 THE WITNESS: Yes.
20 MR. MACK: Finally, Mr. Lombardi
21 at least I believe as many of his peers
22 and etcetera who have appeared for
23 carpenters from time to time may in fact
24 have a portion or a significant portion
25 of his fees paid by the district council.
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1 I can tell that that is not an Page 17
2 unusual subject, right?
3 THE WITNESS: No way I could
4 afford a lawyer.
5 MR. MACK: So let me tell you --
6 let me try to explain to you the
7 significance of that.
8 MR. LOMBARDI: I will state for
the record exactly what it is. The
10 district council pays my fee for
11 representing --
12 MR. MACK: Your entire fee?
13 MR. LOMBARDI: For representing
14 Mr. Guerin or anybody else for this
15 deposition.
16 MR. MACK: So that having been
17 said let me tell you why I as an agent of
18 the court need to talk to you about this
19 subject which I do in every case.
20 THE WITNESS: Okay.
21 MR. MACK: His job here today even
22 though his fee is paid by the district
23 council is to represent you Michael
24 Guerin and you alone. And basically some
25 of my questions could in fact expose the
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1 district council to criticism or at least Page 18
2 question. So the way the law looks at it
3 Mr. Lombardi sits at your side with his
4 fee paid by some other party who may have
5 an interest that you don't talk about
6 certain subjects which could be critical
7 of the organization that's paying him.
8 In other words if -- and I will
9 give a hypothetical -- if some
10 representative of the district council
11 said to you, hey Mike, when you come and
12 talk to that bozo Mack one way or the
13 other basically don't tell him this. Or
14 if you need to blame somebody blame this
15 person but don't blame that person.
16 Now, if somebody was stupid enough
17 to say that, well, that's a crime, that's
18 a federal crime talking to a witness
19 telling him what to say knowing it's not
20 the truth -- that's one issue. But the
21 issue I am talking to you about today is
22 no matter what the district council tells
23 you to do or not to do the way the law
24 looks at it is it's Michael Guerin whose
25 got the obligation to tell the truth.
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1 And Mr. Lombardi sits at your side Page 19
2 professionally and ethically obliged to
3 say to you you have to tell the truth
4 even if it hurts the people who are
5 paying my fee. And if he doesn't do that
6 he has breached his professional
7 obligation and himself could run into
8 difficulties not only from the bar
9 associations but also in practice.
10 Because he knows, and I'm not in any way
11 thinking he would do this, but there have
12 been attorneys that I have prosecuted who
13 have done this in cases where their fees
14 are paid by one person and they basically
i5 tell the other person that they are
16 sitting beside in the courtroom do this
17 do that. And even though they know it's
18 not the truth or even though they know
19 it's not what should happen those people
20 often or unoften occasionally get
21 prosecuted and the often get disbarred
22 for doing that.
23 Now, I have great respect for Mr.
24 Lombardi and so I have not moved to
25 disqualify any lawyer who has sat and
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1 been paid by the district council. I Page 20
2 don't intend to now or even think about
3 it because you have the right as the
4 witness to select any attorney you wish
5 to represent you. But I'm telling you
6 that I need to ask Mr. Lombardi and he
7 understands this and that he feels he has
8 no problem in representing you. And then
9 I'm going to say to you are you prepared
10 knowing of this potential conflict to
11 recognize that your obligation whether it
12 helps the district council or hurts the
13 district council is to tell the truth to
14 me and through me to the Judge.
15 So let me ask Mr. Lombardi having
16 heard that before but I just want to make
17 certain that you have thought about it
18 and you feel that you can proceed given
19 that fee arrangement and represent Mr.
20 Guerin without conflict?
21 MR. LOMBARDI: Yes, I can and
22 that's the fee arrangement that has been
23 in place for some time which I think
24 the --
25 MR. MACK: I know that but I raise
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1 this conflict warning every time -- Page 21
2 MR. LOMBARDI: First time you
3 thought to ask me so thank you.
4 MR. MACK: No, I usually ask or
5 you usually say but if I haven't maybe I
6 should revisit all the --
7 MR. LOMBARDI: No, I am unaware of
8 any apparent or potential conflict of
9 interest that would prevent me from
10 representing Mr. Guerin in this
11 deposition.
12 MR. MACK: And obviously should
13 something happen during today that
14 changes that you should tell me so we can
15 get other counsel for Mr. Guerin if
16 that's necessary.
17 Mr. Guerin, let me just tell you
18 why this could be of importance to you.
19 Generally the courts feel once you are
20 informed of a potential conflict that you
21 have the ability to choose and decide to
22 proceed. And my guess is that you will
23 tell me in a few moments that you're glad
24 and privileged to have Mr. Lombardi at
25 your side and that's fine and I think you
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1 are. I mean Mr. Lombardi is certainly Page 22
2 capable and competent and will do a good
3 job for you.
4 But what you should understand is
5 if some day down the road you give me an
6 answer tonight which is untruthful and
7 somebody figures it out and that untruth
8 basically protects the district council,
9 you say something that should have been
10 said in truth that would have been
11 critical but you don't say it for some
12 reason, all right -- if you went in and
13 said gee, it's unfair for me to be
14 charged because I had the district
15 council lawyer sitting at my side what do
16 you expect me, how do you expect me to
17 tell the truth about the district council
18 when I have the district council paying
19 the fees of the handsome gentleman
20 sitting to your right.
21 If you made that argument as a
22 defense, and I am talking about Mr.
23 Garcia, the point is that defense would
24 not be availing to you because they go
25 back to this very few moments here. They
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1 will say listen Mr. Guerin Mack did his Page 23
2 very best to point out to you that just
3 because Mr. Lombardi's fees were being
4 paid by the district council you still
5 have to tell the truth whether it helps
6 or hurts the district council, all right.
7 And I have dealt with that in one
8 of my earlier lives and I realize courts
9 will hold you, you would not have that
10 defense. You don't have that defense
11 today, you wouldn't have it in the
12 future. But I don't, you know, my
13 feeling is this -- this is not a
14 difficult concept, you tell the truth.
15 If it hurts the district council Mr.
16 Lombardi is not going to try to persuade
17 you not to say it. If he did he would be
18 breaching his obligation. And if you did
19 it and didn't tell the truth you would
20 still be chargeable for perjury or
21 obstruction.
22 So let me ask you the question.
23 Are you prepared to proceed with Mr.
24 Lombardi today?
25 THE WITNESS: Yes, I am.
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1 MR. MACK: Okay, fine. I think Page 24
2 that just about does it. Just let me
3 make sure if there is anything else.
4 Obviously any question that you don't
5 understand just say I don't know what
6 you're asking me, basically rephrase it
again or something like that.
8 My job and the Judge would be very
9 harsh on me if I try to trick you or
10 deceive you or do something which he
11 thought is unfair. He is a very fair man
12 and I try to emulate his direction to me
13 to ask simple questions and get the
14 answers and move on. But if anything
15 isn't clear then you just say I don't
16 understand it.
17 Any time you want to leave and
18 discuss any question with Mr. Lombardi
19 all you have to do is ask and you will be
20 excused and given whatever time. We take
21 breaks especially if the room is going to
22 heat up here every 45 minutes, 50 minutes
23 depending on how our reporter is holding
24 up on the situation. She seems to be
25 doing fine so far. She is the hardest
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1 working person in here and basically we Page 25
2 try to give her time to recover from
3 having to deal with us. Any time you
4 need to take a break or need some more
5 water we will do that.
6 I will try to proceed with
7 expedition but it is a detailed
8 presentation going over some period of
9 time. I have a series of questions so we
10 will be here for a little while. We will
11 have probably a least two or three
12 sessions. When I say sessions I mean
13 breaks and then we continue. So I am
14 going to try to be efficient and get you
15 out of here. I know you had a hard day
16 and probably worked harder than anyone
17 here in the room and I will try to
18 respect that and make use of your time.
19 Mr. Lombardi is your counsel. He
20 will have an opportunity to say object,
21 raise questions, and what have you and
22 I'm going to give him in a few minutes an
23 opportunity to say anything he wishes to
24 say. Mr. Garcia is here. He is the
25 handsome gentleman I was discussing
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1 before, he represents the district Page 26
2 council and he is not your lawyer. You
3 are represented by Mr. Lombardi today,
4 however, he does represent the district
council. He is here as my guest because
6 as your lawyer knows that I leave it and
7 my current policy has been it's up to the
8 carpenter as to whether or not they wish
9 representation from the district council
10 to be present or not and the district
11 council is present. I always invite the
12 government and the government is
13 represented by Ms. Wong here tonight.
14 And she and Mr. Garcia will have the
15 right if they so choose to ask some
16 questions. They are here as my guests so
17 they can follow what's happening. My
18 hope has been if an issue arises they
19 need to follow up on or provokes them to
20 answer they cannot blame me for
21 withholding that data from them. The
22 gentleman here is the brains of
23 independent investigator team is Don
24 Sobocienski who is the chief investigator
25 and basically he also has a right to
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Page 27
remind me that I forgot something to ask
2 and he may ask a question from time to
3 time. And he is the individual who
4 basically oversees our investigation,.
5 gathers facts, and talks to a lot of
6 people from time to time. People that
7 may surprise you as to who calls and who
8 doesn't call is what it boils down to.
9 And so he is here and that's the
10 situation.
11 I will be asking most of the
12 questions. And I will ask you just so
13 you know about it some time before we end
14 tonight other than being upset that you
15 had to be brought in here and asked these
16 questions which I know about and I
17 understand, believe me I do, what I think
18 is appropriate and I try to do it
19 professionally and I don't take remarks
20 personally one or the other. A lot of
21 people don't enjoy coming in to speak to
22 me and I can understand why not but
23 that's neither here nor there.
24 I am going to ask you because I do
25 and I have said that I respect you as a
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1 shop steward, as a carpenter, as a person Page 28
2 of reputation, I am going to ask you a
3 question near the end of the evening.
4 Which says even though I am a lame duck
5 and about to go do you have suggestions
6 about things that Judge Haight or his
7 agents need to do in order to improve the
8 lot of the union carpenter on job sites
9 in the city? So if there's a positive to
10 your time with us tonight it is that you
11 will have an opportunity to speak your
12 mind. Actually it doesn't do you a lot
13 of good to be cranky with me and say
14 again what you said already. That's my
15 feeling because I have already raised the
16 subject not directly about you but I am
17 doing what the Judge believes me I should
18 do. But I'm talking about which I think
19 is much more important that you will know
20 much more about the jobs and what's
21 happening and how union carpenters are
22 dealt with and what it's like to be a
23 shop steward in the construction industry
24 and within the jurisdiction of the
25 district council.
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1 I ask you before we leave tonight Page 29
2 to seize the moment which I am giving you
3 to speak directly through me to the Judge
4 about what needs to be done to make life
better for union carpenters today in the
6 city. So that question will come and it
7 will come near the end and I urge you to
8 speak your mind and speak what you think
9 needs to be done perhaps to improve
10 things.
11 And I'm actually going to ask you
12 a question right up front about the
13 request system and see where you come out
14 on that because it's a question I ask
15 every shop steward and that comes pretty
16 early on is what it boils down to.
17 I think I have been through
18 everything that the Judge requires me to
19 tell you about what's happening tonight
20 and what's going on.
21 First question, do you have any
22 questions for me? Anything you would
23 like to say or ask before I go around the
24 room here?
25 THE WITNESS: No.
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Page 30
1 MR. MACK: Anything you would like
2 to add or subtract or state here before
3 we start tonight?
4 MR. LOMBARDI: No.
5 MR. MACK: Mr. Garcia?
6 MR. GARCIA: No, Mr. Mack.
7 MR. MACK: Ms. Wong?
8 MS. WONG: No thank you.
9 MR. MACK? Mr. Sobocienski?
10 MR. SOBOCIENSKI: No.
11 MR. MACK: Great. What I ask is
12 that we put the witness under oath.
13 MIKE G U E R I N, called as a witness,
14 having been duly sworn by a Notary Public,
15 was examined and testified as follows:
16 EXAMINATION BY
17 MR. MACK:
18 Q. Please state your name for the record.
19 A. Mike Guerin.
20 Q. Mr. Guerin, forgive me if I have called
21 you and not pronounced your name correctly. I
22 will try to do better in the future. One of the
23 things -- I will go through the routine here and
24 just sort of tell you what we will be doing.
25 Which is I have collected as I do for every person
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2 in your position a number of exhibits. And I
3 don't know whether Mr. Lombardi has secured that
4 information for you beforehand but I'm going to
5 give you now a number of exhibits which basically
6 are a roadmap to what will happen tonight is what
it boils down to and that includes your benefit
8 fund remittances.
In other words when a contractor pays
10 into the benefit funds for you there's a record of
11 every payment that comes in. I'm also going to be
12 giving you your job referral history which goes
13 through this computer printout. It goes through
14 every interaction you've had with the district
15 council job referral list. There are other
16 exhibits that will come up from time to time that
17 I have questions about.
18 I did not pick you at random. I don't
19 want you to think we sit here and throw darts on
20 the wall and let's bring in Mr. Guerin. You have
21 been the subject of a number of complaints
22 basically dealing -- and the general statement is
23 -- how does Mike Guerin get all these great jobs
24 and we are sitting out there without any. That is
25 the gist of what they are. And I have had, you
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2 know, virtually that's true of 80 to 90 percent of
3 the shop stewards I bring in.
4 And virtually every one of them as you
5 know I think indicated you know certain techniques
6 they had or certain things that happened or
7 whatever helped and what have you. What we do is
8 go through and take a look at things that occur.
9 You know, job skills being added, jobs being
10 deleted, hold calls going on, going off, immediate
11 dispatches, all kinds of little indicia.
12 Now, some shop stewards say that's just
13 coincidence Mr. Mack. I reject the coincidence.
14 I have great respect for the intelligence of
15 carpenters and their advisers in terms of how to
16 deal with the job referral list is what it boils
17 down to. So I go back and I look and one of the
18 things that frequently or not so frequently
19 anymore but some carpenters say just because I
20 received benefits on a particular day doesn't mean
21 that the employer doesn't report him late or
22 report him for a time different than is on the
23 benefit record.
24 I will tell you then any situation
25 where you think you have a legitimate complaint
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2 that you weren't working at the time I will
3 subpoena the company for their own employment
records and I'm not afraid to do that. What I
would ask you is that in your heart of hearts if
6 you know you were working at the time you save
everybody a lot of trouble by my not doing so.
8 And in the one situation when that was done, you
know, if I was really a tough son of a gun I would
10 have said to the lawyer your client -- it wasn't a
11 failure of recollection he was just thinking I
12 wasn't going to get the records because in every
13 situation he was working when the reports came in.
14 And so in my old days as a prosecutor I
15 would have said the guy he recalled he was just
16 telling me he didn't recall but, you know, so if
17 you think legitimately a contractor has
18 misreported your benefit remittances I will get
19 any record necessary to probe that. I don't want
20 you to think I'm denying you an opportunity to
21 challenge anything but if you know that you were
22 likely working at the time what I would ask you to
23 do is not put everybody through that exercise,
24 fair enough?
25 A. Fair enough.
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2 MR. LOMBARDI: Do you understand
3 what he is saying?
4 THE WITNESS: I have done it.
5 MR. LOMBARDI: There's no question
6 yet.
Q. Having said all that I am going to give
8 you certain exhibits. The fact that it has MG and
9 a number on it doesn't mean anything other than it
10 tells me it's likely an exhibit in Mike Guerin's
11 deposition. The numbers mean nothing -- just a
12 way to keep track. So let me show you what has
13 been marked as MG-1 and just ask you if that is a
14 copy of the notice which obliged you to come visit
15 with me sooner or later?
16 A. Yes.
17 Q. Now, you will notice that in there I
18 have asked for records concerning your skill
19 certification. And are there any records other
20 than what you have provided me here because in the
21 quick look through them --
22 A. No, I don't think there's a skills -- I
23 mean skills of being a carpenter or, you know,
24 what we do for a living.
25 Q. I understand that and basically what
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2 many carpenters bring in to me is like an ID card
3 or a certificate from the school or something of
4 that nature. And you know my view is if I think
5 it becomes relevant because there are some times
6 on your job referral you will see a skill goes on
7 at one time and it goes off and then it comes back
8 on again.
9 I am going to start from the
10 proposition that you're entitled to whatever
11 skills you put on and that you're not putting a
12 skill on that you don't deserve. And believe it
13 or not there have been shop stewards who have put
14 skills on that they didn't deserve and you know
15 that has been uncovered. It doesn't make them
16 look as their most professional, put it that way,
17 but I'm going to start with the proposition that
18 when you add a skill you are entitled to add that
19 skill for whatever schooling has been necessary.
20 For instance there's a 32-hour
21 scaffolding skill that I am going to be talking to
22 you about. And one of the things I was going to
23 look for tonight is when you went and took that
24 course is what it boils down to. So that's a
25 question that's coming because it -- did you take
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2 a 32-hour scaffolding course at the district
3 council?
4 A. No.
5 Q. So that's one of the reasons I would
6 have liked to have seen that. But you have given
7 me an honest answer and if I get to a skill,
8 because I trust you Mr. Guerin, I start with the
9 proposition you're an honest man and you may not
n be happy to be here but you're not going to
11 compound the difficulty by lying to me which would
12 be a mistake.
13 If I talk about a skill which you know
14 you're not entitled to have just tell me direct up
15 because you're far better off demonstrating to me
16 and the court you are an honest and direct human
17 being and you're not going to play games with
18 anybody. Eventually the truth always comes out,
19 that has been my experience. Fair enough?
20 A. Fair enough.
21 Q. So this being said what I am going to
22 do is give you the exhibits that you can refer to
23 as we go through the situation, all right. And I
24 am going to have one for everybody here I think, I
25 hope. I am going to give you what is marked as
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2 MG-3 and this is a record of the benefit
3 remittance. Would you mind you and Mr. Lombardi
4 sharing?
s MR. LOMBARDI: It's easier that
6 way.
7 Q. I'm going to give you also MG-5 which
8 is what's maintained. These are the records of
9 the hold calls that have come in and if you guys
10 could share that would be -- Mr. Garcia and Ms.
11 Wong and Mr. Sobocienski if you wish. And if you
12 wish you can take some time to review what I am
13 giving to you before we proceed if you would like
14 to do so.
15 And I'm going to give you MG-2 which is
16 a record of the job referral computer printout as
17 to you. I'm giving that also to my colleagues
18 here. What I think I will do is once I give these
19 out I'm going to take a five minute break to allow
20 you to familiarize yourself with what I have given
21 you because there's a lot of data being
22 communicated here. I'm going to also give you
23 MG-7 which is basically a record of the dispatches
24 that have basically handwritten directions about
25 them.
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2 And finally last but not least because
3 this is going to be one of my first questions at
4 least this is what has been furnished to us by the
5 district council of the charges that at one time
6 were presented to you that's what was given to us
7 as a record of what you were charged with way
8 back.
9 And I know you have described already
10 your perception of what happened there and again I
11 reiterate I have no authority to charge anybody
12 with anything so I don't want you to feel that I'm
13 going to reiterate. The district council is the
14 only one that has the authority to charge. I have
15 a right though to raise questions about what the
16 charges were and what the results were. But I
17 have no authority, you know, to charge and I won't
18 to be perfectly honest because I have always said
19 I'm evaluating the district council's disciplinary
20 system based upon what they do. I have no
21 authority to do it, fair enough?
22 A. Fair enough.
23 Q. So what I would like to do is take five
24 minutes and allow Mr. Lombardi and Mr. Guerin to
25 just familiarize yourself with what I have given
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2 you. We are just going to go through them and you
3 will need to be -- and I will ask you to look at
4 this, what does that mean and you should at least
5 have some idea what I am talking about and let me
6 say this. I'm going to go slowly and one of the
7 things that I think is important for instance,
8 there are little idiosyncrasies Mr. Lombardi is
9 familiar with although he may have forgotten them
10 since he hasn't been here in some time.
11 For instance, the clock for the job
12 referral system is on California time so basically
13 the time that is being demonstrated you have got
14 to add three hours to know what is New York time,
15 all right?
16 A. Excuse me, this is the out of work list
17 referral system? And this is on California time?
18 Q. Yes, it is.
19 A. I got the same.
20 Q. That you brought as well --
21 A. I brought the same --
22 Q. So I have done my level best to provide
23 everything the district council has so that we are
24 all on the same playing field here in terms of
25 understanding what's there. The only idiosyncrasy
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2 is that timing and some of the entries you may not
3 understand.
4 So why don't we take five minutes or
5 seven minutes just to see what you have and then
6 we will get started.
7 (Recess taken.)
8 (Discussion off the record.)
9 Q. We have had a little discussion that I
10 want to make sure that my decision as independent
11 counsel independent investigator is clear with
12 respect to potential discipline of Mr. Guerin
13 based upon anything that comes out tonight.
14 What I have said is that I have strong
15 criticisms and I have had for many months maybe
16 even years of the district council's disciplinary
17 system because to me it is not transparent, it's
18 not clear to the carpenters. It's not uniformly
19 enforced and it is not something that most
20 carpenters understand or know about or can rely
21 upon or have confidence in.
22 And what is the most telling thing is
23 almost any discipline can be appealed to the
24 general convention which could occur every four
25 years. And the sanctions imposed are such that
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2 they would be stayed or not in effect and I have
3 found numerous cases when discipline has in fact
4 been imposed and the district council never did
5 anything about it. They didn't tell the
6 carpenter, they didn't suspend the privileges.
7 I have said very clearly to the
8 director of operations and council that I felt
9 significant work needed to be done to make the
10 disciplinary system functionable and useful to the
11 district council and I am saying it to you
12 tonight. So because of my lack of respect for the
13 disciplinary system as I understand it although I
14 will say in fairness to the district council that
15 they are seeking to improve it and it is evolving
16 and starting to gain some of the attributes
17 necessary for a good disciplinary system, one that
18 can be relied upon and that the union members
19 know.
20 I am not going to make a recommendation
21 for you or for any other carpenter on dealing with
22 riding the list let's say that way. I don't have
23 enough confidence that the result is one that I
24 can predict and is fair. And I say that to you
25 tonight I am not going to recommend it. I can not
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2 predict what the district council is going to do
3 with what they learn tonight or what has happened
4 in the past. Those questions are questions for
s counsel and the district council to answer
6 themselves.
7 So the only thing, and I will reiterate
8 this, is I will definitely recommend to the Judge
9 and to a prosecutor if you lie to me that you be
10 prosecuted for perjury and obstruction of justice.
11 I accept without question your commitment to tell
12 me the truth tonight and that's the way I am going
13 to proceed. So that is a summary of what I have
14 just said and that hopefully addresses your
15 concern. And if there's anything you would like
16 to further ask, Mr. Guerin, or you want to say I
17 think that's a recapitulation of what we said
18 before we went on the record, fair enough?
19 A. Yes.
20 Q. You don't have to say anything but my
21 position on that has been made clear to the
22 director of operations for a long time and I would
23 say this. When I learned that waivers were given
24 to many people initially based upon a lot of
25 efforts and a lot of people were riding the list
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2 routinely or regularly or more than once I
3 expressed what I felt was displeasure. There were
4 people in the same group one who had ridden the
5 list for the first time, just did it once, and
6 there were people who had ridden the list numerous
7 times and they got exactly the same results. That
just didn't seem fair to me.
That was my view then and it is my view
10 now. It didn't make any difference to the
11 district council and they continued to do what
12 they felt was appropriate and that's what they
13 should do run their own union. And if in fact
14 they change the disciplinary system I think they
15 should and if I were around a little bit longer I
16 would write a pretty direct report about what I
17 thought about the disciplinary system and that
18 could be a reason I will not be around. So maybe
19 they will find someone who has more positive
20 things to say about it but I wouldn't. Clear
21 enough?
22 A. Clear enough.
23 MR. MACK: Anything else to be
24 said, Mr. Lombardi?
25 MR. LOMBARDI: Nothing.
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2 MR. MACK: Mr. Garcia?
3 MR. GARCIA: No.
4 Q. Let's proceed here. Now, let's turn
5 right to what has been marked as Exhibit MG-4.
6 And this is what has been furnished to me as a
7 collection of the various charges that were at
8 least presented to you and I don't need to go
9 through them but let me ask this.
10 Does this appear to be the full
11 collection of charges that you received copies of?
12 A. Yes.
13 Q. Now, in your own words and whatever
14 help you need from Mr. Lombardi tell me what was
15 the result of these charges?
16 A. Of these charges?
17 Q. Yes.
18 A. I agreed -- I admitted that I did ride
19 the list and I signed the waiver basically giving
20 me amnesty from these so-called charges or the
21 slap of discipline and promised to never do it
22 again and I haven't.
23 Q. Let me just go over this. Do you as we
24 are here today in each one of these they refer to
25 specific times and there's one hold call charge as
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2 well. I can point that out to you where basically
3 you say you were working at a time you placed a
4 hold call in. Do you remember that?
5 A. Probably on more than one occasion I
6 have done that.
7 Q. What I am asking here is did you in
8 fact ride the list and be working when you put the
9 hold call in as these charges are? In other words
10 I want to make certain you're not telling me, hey,
11 the only reason I plead guilty here was because I
12 was going to get a good result and they are not
13 true and I want to challenge them.
14 A. No, these are true. I worked and I put
15 my name on the out of work list. I continued to
16 work knowing that after I put my name on the out
17 of work list to ensure a steady pay check, pay
18 bills and food and what not.
19 Q. We're going to cover that and I want to
20 say this -- every single carpenter who has said
21 this to me has said exactly what you have and I
22 respect that. I don't want you to think that if
23 the out of work list with its rules is something
24 that should not continue to affect carpenters that
25 is something that the Judge needs to resolve. I
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2 have had no role in designing the job referral
3 list, recommending it, and that's one of the
4 things that is nice about my job.
5 I can analyze it and find out facts
6 about it and whether it should continue to exist
7 and whether it serves its purposes. So you're not
8 hurting my feelings if you tell me the way in
9 which I think most people are, including myself,
10 that people work hard to take care of those they
11 love and have responsibilities and do the very
12 best they can to maximize those qualities and
13 those attributes. And I don't disrespect you for
14 that and I hope you can understand my views on
15 that.
16 A. I understand.
17 Q. Explain to me perhaps in a little
18 greater detail who presented the benefits or the
19 description of the waiver to you, how did that
20 come?
21 MR. LOMBARDI: Let's go off the
22 record.
23 MR. MACK: Tell me why you want to
24 go off.
25 A. This is -- we already discussed the
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2 waiver. We thought it was a non-issue, took it
3 off the table and now you're bringing it back to
4 the table.
5 MR. LOMBARDI: I have an objection
6 to the question.
7 Q. I want to understand what the terms of
8 the waiver are and who presented them, that's all.
9 I'm not changing my --
10 MR. LOMBARDI: Do you have the
11 waiver?
12 MR. MACK: I don't have a waiver.
13 MR. LOMBARDI: Can you get the
14 waiver?
15 MR. MACK: I don't know, I have
16 asked for the waiver. I do not have the
17 specific waiver. Just tell me the terms
18 of the waiver that's all.
19 MR. LOMBARDI: I think he already
20 has.
21 MR. MACK: Then you state it.
22 MR. LOMBARDI: No, I think he has.
23 MR. MACK: Which are what?
24 MR. LOMBARDI: I think he already
25 has.
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2 MR. MACK: To me I missed it.
3 MR. LOMBARDI: With all due
4 respect we're here almost two hours now
5 and we have had a lot of statements made
6 for the record about your disapproval of
7 the district council and the handling of
8 the disciplinary system yet you have no
9 power to discipline.
10 So we are here I think to ask some
11 questions of Mr. Guerin about his
12 referral history, about his skill set,
13 about the additions and deletions and
14 benefits history. I am not going to have
15 him interpret legal policies of the
16 district council and I'm not going to do
17 it either. And he has given you his
18 understanding of what the waiver
19 entailed.
20 By counsel Mr. Guerin has already
21 responded to the question. And my
22 understanding of his response and of the
23 waiver itself is that so long as Mr.
24 Guerin agrees to abide by the union rules
25 and bylaws in their entirety with respect
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2 to the proper maintenance of the list and
3 things related thereto that he would not
4 be sanctioned in any way for the charges
5 identified in the June 9, 2004 charge
6 form.
7 MR. MACK: All right, so all the
8 charges that are contained in MG-4 is
9 that what you are referring to?
10 MR. LOMBARDI: He received a
11 waiver with respect to those charges.
12 Q. And a waiver means that there is no
13 sanction either in terms of fine or anything of
14 that nature; is that correct?
15 A. That is correct.
16 MR. MACK: Now, what I would like
17 to do and let me ask this question to
18 counsel -- what is your client's
19 understanding if there were additional,
20 if any, charges that were not covered
21 specifically by these would that affect
22 the waiver or not?
23 MR. LOMBARDI: I'm not sure if I
24 understand your question.
25 MR. MACK: In other words if there
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2 were charges of riding the list that were
3 not specifically mentioned in the
4 exhibits --
5 MR. LOMBARDI: In MG-4.
6 Q. Was there any understanding that it
7 included not only what was there but any possible
8 other violations up to a certain date?
9 MR. LOMBARDI: Do you understand
10 his question?
11 A. I understand it. If you don't mind --
12 when I signed the waiver I admitted it from that
13 day back.
14 Q. I see.
15 A. With any charge that they did not bring
16 or bring I admitted to when I signed the waiver.
17 Yes, I rode the out of work list, I did change my
18 skills to obtain a job.
19 Q. Okay.
20 MR. LOMBARDI: So within the time
21 period covered.
22 A. But since that day until today I have
23 not done that infraction.
24 MR. LOMBARDI: What Mr. Mack is
25 asking you is in the time period covered
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2 by MG-4.
3 A. 1998 through 2004.
4 Q. I don't have a copy of the waiver.
5 A. I don't have a copy of it either and I
6 did ask and it's hard to come by as of yet.
7 Q. Can you give me an estimate. I think I
8 know because I remember sometime it was in the
9 winter of 2004. But do you have any recollection
10 of what month it was that this waiver was signed
11 by you?
12 A. Not in particular, no.
13 MR. LOMBARDI: It wasn't on
14 June 9, 2004 the date on the charges or
15 was it after?
16 Q. Even a season would be fine.
17 A. It was in the spring so it was right
18 around that time, might have been right around up
19 to that time.
20. Q. Around spring of 2004?
21 A. Yes.
22 Q. Let me just state this just so that I
23 understand that in your mind because I don't have
24 the document. I have asked for the document the
25 waiver and I would if I were your lawyer I would
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2 certainly want to ensure that this was in writing
3 to protect you.
4 MR. LOMBARDI: I'm going to ask
5 you to refrain further from telling him
6 what you would do if you were his lawyer
7 or what I should do as his lawyer.
8 MR. MACK: I think it's important.
9 MR. LOMBARDI: We are not here
10 specifically to record what you think is
11 important. We are here for a deposition
12 but pretty soon we are going to have to
13 start asking him questions.
14 MR. MACK: I don't know what that
15 means but --
16 MR. LOMBARDI: Very plain what
17 that means. This has been one long
18 political statement since we have got
19 here, more than usual. Please, I think
20 we have on the record that from the time
21 he executed the waiver in approximately
22 June 2004 back to --
23 MR. MACK: Is it June 2004?
24 MR. LOMBARDI: Sometime in the
25 spring of 2004 sometime around the time
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2 of the plea form.
3 A. Yes.
4 MR. LOMBARDI: Back to the
5 earliest charge I see here is August 1998
6 that for that entire period of time there
7 was an amnesty conferred upon you for the
8 waiver for any charges that are in here
9 or anything else.
10 MR. MACK: Or anything else?
11 MR. LOMBARDI: Or anything else.
12 A. That is my understanding.
13 MR. LOMBARDI: That's my client's
14 understanding.
15 Q. So that will at least affect the
16 questions I ask you but there are some questions
17 in that time period. I'm not affected by that
18 amnesty in terms of asking questions about
19 specific jobs. It not only affects you but also
20 affects other individuals so let me ask some
21 series of questions some of which Mr. Lombardi has
22 heard before types of questions.
23 And then we're going to go over some
24 specific instances that I am interested in finding
25 out more data about. You don't have a copy of the
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2 amnesty?
3 A. No.
4 Q. Do you recall was there a written
5 document prepared at the time that you signed?
6 A. Yes.
7 Q. And you were not furnished a copy of
8 that?
9 A. I might have been I'm not too organized
10 in paperwork.
11 Q. Let me ask some general questions. At
12 any time, and I don't need to go all the way back
13 to 1998, I would like to start in 2000, has any
14 contractor on any job site in which you were on
15 offered to cause you or ask you to change your
16 shop steward report to be inaccurate or to record
17 carpenters in an inaccurate way?
18 A. No.
19 Q. Have you ever received any type of cash
20 or things of that nature or even offered cash in
21 order to do something which you knew not to be
22 consistent with union rules?
23 A. Excuse me one minute please.
24 MR. LOMBARDI: You're talking
25 about since 2000?
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2 MR. MACK: Since 2000.
3 A. No.
4 Q. Was there a time within this amnesty
5 period and let me say in which I want you to
6 understand that even though you took the position
7 get out of my face with this, or I don't want to
8 hear it, what have you, my question is broader
9 than that. It's saying the contractor come to you
10 and try to get you to do something which you
11 refused to do, that question would also call for
12 that answer.
13 A. No.
14 Q. So it never happened?
15 A. No.
16 Q. Now, have there been any occasions in
17 which a business agent has recommended or provided
18 guidance or direction to you that would assist you
19 at your assignment as a shop steward to a job
20 site?
21 A. Repeat the question again.
22 Q. I'm going to go through specific ones
23 but I want to ask the broad question. Have there
24 been any occasions and let me again limit my
25 question to from 2000 going forward and not
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2 withstanding the amnesty, I don't recognize any
3 amnesty, so I don't want you to feel that the
4 district council gave me amnesty, I don't have to
5 answer it. I am asking you the question.
6 Has there been an occasion in which a
7 business agent or business manager, let me be that
8 broad, has advised you or given you advice that
9 would have the effect to increase your chances or
10 did in fact assist you in getting a job?
11 MR. LOMBARDI: Do you understand
12 the question?
13 THE WITNESS: Can we step out a
14 minute?
15 Q. It's a broad question. I can ask the
16 question more than once.
17 (Discussion off the record.)
18 Q. So just take me through it if you would
19 and so I can listen carefully and tell me what the
20 answer is.
21 A. Yes.
22 Q. When, with whom, where, what occasion?
23 A. On a couple occasions when I was
24 working with Jerry Philbin. He was my agent and I
25 would work closely with Jerry and Jerry would
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2 mention he had something coming up. Maybe I
3 should add a few skills or delete a few skills to
4 ensure or maybe you might be able to get that job
5 and work with Jerry again and I did.
6 Q. I just lost you -- work with Jerry?
7 A. As a business when you work with a
8 business agent he relies on you to be up front
9 with him and help him, let him know what is going
10 on with the job. And he trusted me to tell him
11 what was going on with the job and we worked well
12 together, we had a good rapport and yeah, he
13 helped me get some work.
14 Q. Now, do you remember specific jobs that
15 he assisted you in getting work? We can go
16 through some because I would like to get the
17 benefit of your recollection to start.
18 A. Yes, there are two -- 2002.
19 Q. So are there others before 2002?
20 A. There might have been a few occasions
21 where he helped me to secure some employment, yes.
22 MR. MACK: Let me ask and I know
23 this is a dangerous thing but let me ask
24 Mr. Lombardi what is the most efficient
25 way for me to cover each one? Do you
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2 want me to start or does your client --
3 can he specify based upon what I have
4 provided or what his preparation today to
isolate the job because you know what --
6 where was the job, who said what, all of
7 that detail, what is your suggestion?
8 MR. LOMBARDI: I suggest we let
9 Mr. Guerin attempt to direct you to the
10 individual instances and then not go over
11 them again afterwards.
12 MR. MACK: Well, if I have further
13 questions.
14 MR. LOMBARDI: Further questions.
15 MR. MACK: I will try to do my
16 best listening.
17 Q. You fire away if you would and identify
18 -- if you could start at the earliest point and
19 take me forward.
20 A. There was an office tower 745 Seventh
21 Avenue. That was Jerry's job, it was a concrete
22 job, a goulash job, meaning that it was a steel
23 job with, you know, concrete form made around the
24 steel for fireproofing and structural strength. I
25 had done that back in the day when I broke into
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2 the business as a goulash carpenter doing concrete
3 work. So he said we have a nice job coming up.
4 Put down that you do concrete work and protection
work and we will see if we can stay on the list as
6 long as possible and then when your number drops
7 low enough you'll submit the job to the district
8 council.
9 Q. Okay, now what I would like to do just
10 so that I can be specific I would like to find the
11 job the dispatch. Do you remember the
12 contractor's name?
13 A. Century Max.
14 Q. So let's find that dispatch and that
15 will make it easier for me. If you know what
16 approximately was the date of that?
17 A. It was right around -- right after the
18 winter so March.
19 MR. LOMBARDI: What year?
20 THE WITNESS: 2000.
21 Q. I'm looking at MG-7.
22 A. That's right.
23 Q. So let me look at that. So what I'm
24 looking at here is a dispatch which appears to be
25 May 3, 2000; is that correct?
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2 A. Yes.
3 Q. And that's a Century Max job. The
4 location is at 49th and Broadway. Is that the job
5 we are talking about?
6 A. Yes.
7 Q. Now, what is the significance if any
8 of the fact that the request form which I am
9 looking at which is MG-7 has Maurice McGrath as
10 the caller?
11 A. There was only -- that's in the office.
12 I really couldn't tell you what this one is, you
13 understand, I didn't send that in, I never seen
14 this before until today. So I don't know any
15 names. I know I had a deal with Jerry Philbin so
16 when I got the phone call I called up Jerry and
17 that's who I dealt with, no other agent, any other
18 business on the job I dealt with Jerry and that
19 was it.
20 Q. Now, when you say you got the phone
21 call just tell me what that phone call is -- from
22 whom?
23 A. District council.
24 Q. And the district council assigned you
25 to the job?
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2 A. Correct.
3 Q. So just if you would take me through
4 how Jerry assisted you in getting this job again
5 -- and be as precise as you can be.
6 A. There was a foundation job that was
7 going to be an office tower for Morgan Stanley
8 Dean Witter and it would have been a long time job
9 for four or five months and he said change your
10 skills set. Put down concrete, wood framing,
11 layout protection and when your numbers come down
12 low enough he will submit the job to the council.
13 Q. Jerry would?
14 A. Well, in this case it was Maurice. He
15 probably told me to hang on until the job was
16 ready, until my number came down. And when my
17 name came down low enough they sent it to the
18 council and that's how I got the phone call for
19 that job.
20 Q. So would it be fair to say you
21 anticipated --
22 A. I anticipated that job.
23 MR. LOMBARDI: Let him finish the
24 question.
25 Q. Now, did you have any conversations
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2 with Maurice McGrath about this job that you can
3 recall?
4 A. No.
5 Q. So you yourself had no interaction with
6 Maurice McGrath about getting this job?
7 A. No.
8 Q. Just bear with me for one moment. I
9 want to say one thing to you and I'm not
10 suggesting you do this or are doing this. But I
11 would say that there is some evidence in other
12 matters having nothing to do with you, all right,
13 and so I just want to raise it that it is a matter
14 under some consideration that some carpenters have
15 been advised. Since Jerry Philbin is no longer
16 around to defend himself that if there is someone
17 to blame for certain actions, and I'm just saying
18 this in the most courteous way, and I'm not in any
19 way suggesting that you are not telling the truth,
20 but I will tell you because I think I have the
21 duty to tell you. There is a hotline call,
22 several on this very point, obviously by people
23 whom have close relationships currently or in the
24 past with Jerry Philbin.
25 They are to the effect that either they
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2 were advised or some people have been advised that
3 if there is a choice to blame somebody pick on
4 Jerry because, you know, he is gone is what it
5 boils down to. And again let me say this in the
6 most positive and constructive way. I don't
7 accuse you of that but there are people who feel
8 that sometimes Jerry is unfairly blamed for things
9 that he didn't do. So I would ask you and I know
10 your lawyer has also said this is to blame, you
11 know, whatever happened. If it's Jerry it's Jerry
12 but if it's somebody else it's somebody else, fair
13 enough?
14 A. Yup.
15 Q. What was your relationship with Jerry
16 Philbin?
17 A. Jerry was like a mentor to me from back
18 in the day. He was one of the first big time shop
19 stewards with a few other gentlemen and as he
20 moved up the ranks he relied on certain
21 individuals and I had a lot of good times with
22 Jerry. I'm not going to shirk that but we were
23 good friends.
24 Q. Now, I have asked you this but with
25 respect to this particular job at Century Max you
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2 had no contact with Maurice McGrath but you can't
3 speak as to what Jerry did or anything concerning
4 Maurice McGrath, correct?
5 A. Correct.
6 Q. Why don't we go to the next occasion in
7 which you had assistance from a business. I'm not
8 going to assume it is Jerry. I'm going to wait
9 for you to tell me what happened and the specific
10 case.
11 A. The next job would have been --
12 Q. You may want to go through your
13 dispatch, that may be a more efficient way.
14 A. The other job was the Westin Times
15 Square.
16 Q. So can you give me an approximate time
17 period?
18 A. That was in December of 2000 through
19 October of 2001 -- Sorbara.
20 Q. Is that 660 Eighth Avenue?
21 A. Yes.
22 Q. So the time period that I am showing I
23 am going to look at what I consider to be the
24 dispatch and the request so I have that as being
25 November 24, 2000; is that correct?
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2 A. That's correct.
3 Q. If you would just tell me what happened
4 there. And I notice there were a whole series of
5 skills added and deleted and just take me through
6 that if you would.
7 A. Same case scenario -- the office tower
8 was winding down and it was busy, a lot of work
9 around, there was a job coming up, a reinforced
10 concrete job at 43rd and Eighth Avenue.
11 Q. That was the Westin?
12 A. Yes, so I put my name on the out of
13 work list so I kept working at the hotel probably
14 added and deleted to play the game with the out of
15 work list and secured that job. And I did deal
16 with Maurice McGrath for a short period of time.
17 And then there was a switch with
18 business agents and Jerry was my agent again. So
19 when I had to bring down my time sheets I brought
20 a few down to Maurice they switched.
21 Q. Just say that to me again I didn't
22 understand what you told me. The business agents
23 switched?
24 A. They all switched their locations. I
25 was told to see Jerry again -- to deal with any
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2 business matters on the job to see Jerry Philbin.
3 Q. Now, let me just pull together because
4 I want to ask you some specific questions on this
5 job.
6 Now, with specific reference to this
7 job at the Westin here when you told me that you
8 originally dealt with Maurice McGrath --
9 A. Yes.
10 Q. Does that mean that you were just
11 simply bringing your reports to him or that he was
12 advising you what skills to have on your sheet?
13 A. I was to bring my time sheets to
14 Maurice McGrath. It was his area at the time and
15 that's what I did.
16 Q. Was he advising you -- was Mr. McGrath
17 advising you ever how to increase the likelihood
18 that you would get the Sorbara job?
19 A. No.
20 Q. Now, is it fair for me to believe that
21 you were working at the time that you went on the
22 out of work list?
23 A. That is correct.
24 Q. Now, what we see on your job referral
25 history is that you added skills, sexual
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2 harassment, power activated tool. And then if you
3 look with me --
4 MR. LOMBARDI: When was that?
5 MR. MACK: The actual add was
6 November 20, 2000.
7 Q. And basically two days later the
8 dispatch is out and I have the dispatch in front
of me and you can have it as well and it's part of
10 MG-7.
11 Are you telling me that it was Jerry
12 Philbin who recommended that you add those skills
13 for the jobs to increase your likelihood?
14 A. I had taken classes down at the
15 district council and they were part of the
16 requirements and, yes, he said add these to get
17 that.
18 Q. Okay, and the "he" in that sentence is
19 Jerry Philbin?
20 A. Yes.
21 Q. Had you taken the 10-hour OSHA course
22 at the school?
23 A. Yes.
24 Q. Now, again you will notice --
25 MR. LOMBARDI: Just for the record
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2 the 10-hour OSHA was not added on those
3 dates.
4 MR. MACK: The 10-hour OSHA was
5 added on November 13th.
6 MR. LOMBARDI: Before that we are
7 talking about two days before.
8 MR. MACK: Thank you for helping
9 me and basically --
10 MR. LOMBARDI: I want the record
11 to be accurate.
12 MR. MACK: Thank you for watching
13 the record on my behalf.
14 MR. LOMBARDI: You're welcome.
15 And also for the record demand and
16 request does not reference sexual
17 harassment but it does reference the
18 OSHA.
19 MR. MACK: The OSHA and the power
20 activated tool.
21 MR. LOMBARDI: Right but not
22 sexual harassment.
23 MR. MACK: As we say in the trade
24 the document speaks for itself.
25 Q. And what I do want to refer to now is
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2 the fact that again Maurice McGrath is identified
3 as the caller for that and I ask the same question
4 as before.
5 Do you understand or know why it would
6 be Mr. McGrath at least on this sheet who made the
call?
8 A. Yes, because at the time that was
9 Maurice's area to -- he had the jurisdiction of
10 that area so that building was in his location. I
11 got to the job a few weeks after I --
12 Q. Jerry switched?
13 A. Everything switched and I was told
14 Jerry said come see me.
15 Q. Okay, so were you on this job before
16 you became the shop steward, is that what you are
17 telling me?
18 A. No, I was on the office tower.
19 Q. So was Jerry the responsible business
20 agent on November 22, 2000 the date of the
21 assignment because you will notice that the
22 dispatch has Maurice McGrath?
23 A. Maurice was the responsible business
24 agent at the time and then there was a switch.
25 Q. But that occurred after --
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2 A. After I had landed on the job.
3 Q. Can you tell me if you know whether
4 Maurice in fact made the call on the Sorbara job
5 or not or in other words I have a record that
6 reflects Maurice as being the caller on this date
7 November 22, 2000.
8 MR. LOMBARDI: To the district
9 council.
10 MR. MACK: Right.
11 MR. LOMBARDI: Do you personally
12 know if he made that call?
13 THE WITNESS: No, I don't.
14 Q. Do you know if Jerry had in fact made
15 recommendations or had some role since I think you
16 just told me if I understand you correctly that
17 Jerry did not take over responsibility for several
18 weeks after the dispatch?
19 A. Correct.
20 Q. So I am trying to find out whether
21 Jerry had a hand in this specific request for
22 dispatch?
23 MR. LOMBARDI: Do you know?
24 THE WITNESS: Not particularly,
25 no, I don't know.
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2 Q. But was it Jerry or Maurice who gave
3 you the recommendation as to the skills to add?
4 A. I already had those skills so Jerry. I
5 just finished taking the power activated tool
6 class and he said put that on your skills. And
7 when I put that on the skills they must have
8 talked to each other, I don't know what they do.
9 Q. That's for me to find out.
10 But you don't have any knowledge of
11 that?
12 A. No.
13 Q. Take me to the next job in which you
14 had some assistance in increasing the likelihood
15 of you being assigned to it.
16 A. I went down to a job 200 Vesey Street
17 the American Express Tower right after 9/11. I
18 went down there, I got laid off from the hotel.
19 Jerry said put these down, delete these, you got
20 to get down there, that's what I did.
21 Q. So let's see if -- it was right after
22 September 11th so I am naturally going to turn to
23 September 20, 2001 which appears to be around the
24 time period.
25 When did you get laid off from the
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2 Sorbara job approximately?
3 A. Right around -- right after 9/11 --
4 right around that happened.
5 Q. So I have you going back on September
6 20, 2001. You're added to the OUL, the out of
7 work list, and you change your phone?
8 A. I just bought a phone. I was using my
home phone but then I have to be home to get the
10 phone call and it was an upstate number so I
11 bought a phone and started using a cell phone.
12 Q. The only reason I mention that is it
13 may assist you in remembering what happened. Then
14 as you will see and I will just read this briefly
15 to you. On September 26th you added acoustical
16 ceiling siding you deleted welding and
17 refrigeration.
18 A. That is correct.
19 Q. You did that at the suggestion of Jerry
20 Philbin?
21 A. Right away he said you got to get down
22 there, change your qualifications, and that's what
23 I did.
24 Q. So was this a recommendation by Jerry
25 on the phone or in person?
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2 A. Right in person. I went down to the
3 union hall -- he said right way -- he said do this
4 right now and that is what I did.
5 Q. Do you know whether or not he had a
6 role in seeing that this job was called in right
7 away?
8 A. I'm not particularly sure about that, I
wouldn't know that.
10 Q. Actually you have some help on this
11 because if you just turn you will see that there
12 is a call on September 26th directly there from
13 Jerry with specific skills.
14 A. Yes, that's what I did.
15 Q. So you basically were following Jerry's
16 advice to do what he told you?
17 A. Yes.
18 Q. Okay, let me ask you a general question
19 and it may save some time. There are a number of
20 occasions where I see you are referred to a job
21 and you stay on it almost very brief. This is
22 sort of the opposite, very brief period of time,
23 sometimes a matter of hours. So the question is
24 we can go through specific ones, but would it be
25 fair that if you are referred to a job which you
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2 believe not to be worth staying at you will simply
3 leave?
4 A. Yes.
5 Q. Is that correct?
6 A. That is correct.
7 Q. On some of those occasions you leave
8 because you know there's a better job coming down
or you would like at least a better job?
10 A. It would be more fair to say that after
11 sitting on the out of work list for three months I
12 can't take a three week job. I'm going to wait
13 another couple of days to get a decent job for
14 three months. I can't afford to sit home another
15 three months, work for three weeks, sit out for
16 three months, I would be --
17 Q. So you want to make sure you get --
18 A. A decent job, not a long term, a decent
19 job.
20 Q. Let me ask this. In your own words, I
21 know you alluded to it before, tell me what is a
22 decent job, what is a job that you wish to try
23 for, what are its components?
24 A. Anything for six months is a good job.
25 Anything longer than that is a little bonus but
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2 four to six months is a good job.
3 Q. And I think we have agreed that if
4 there is a job that doesn't appear to be in that
5 category you may stay a very short time with the
6 hopes that another job will come along?
7 A. That's correct.
8 Q. At the time period and I'll even say
9 during the waiver period so that you're not
10 getting nervous that I'm trying to fool or trick
11 you with a question again --
12 A. All right.
13 Q. When you know you're riding the list --
14 and I'm going to presume unless you tell me that
15 you know that the out of work list at least to
16 some means that you're not actually working and
17 you were working during the time period -- in
18 terms of your analysis of why you had to do that
19 or why it needed to be done or why people do it,
20 just go through it for me and the Judge. I have
21 heard it from many but just tell me why it's okay
22 or why you did it from time to time, let me put it
23 that way.
24 A. Myself in general?
25 Q. Your own perspective on it.
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2 A. I do it to keep working because you
3 know that's the business so as being a carpenter
4 steward I take a lot of grief from the company. I
5 take a lot of grief from the contractors and from
6 my own people but, you know, I feel like maybe I
7 should be one-up on a regular guy. I extend
8 myself to do what I have to do, the right thing to
9 do by the union, but maybe they should extend
10 themselves for me to move on quickly without
11 waiting so long on the list, you know what I mean.
12 Q. I want to do justice to this. My
13 feeling is this -- that I want to make sure I
14 understand in your mind, you know, when you say
15 you did more than many -- in other words you are I
16 am sure an outstanding shop steward but when you
17 tell me that you do more or that you fight for the
18 union or do -- just set that forth to me. Why on
19 behalf of the district council is your presence on
20 a job site so important?
21 A. Well, my presence on a job is to
22 protect our jurisdiction, to make sure that the
23 contractor is on the legitimate end of the
24 business and that all the men get their benefits,
25 they have a safe working condition and to, you
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2 know, facilitate it is a clean working union job.
3 Q. Now, presumably that is the objective
4 of every shop steward, that is what the school
5 probably trains. But is it your view, and I
6 happen to know it is the view of a number that you
7 know, there are certainly different qualities,
8 some shop stewards are better than other shop
9 stewards. Do you see yourself in other words that
10 you are in that category of excellent shop
11 stewards?
12 A. I don't want to paraphrase you but I am
13 sure you would say some lawyers are better than
14 others, correct? I just want to be the average
15 guy. I'm not looking to be above and beyond I'm
16 no superman. I'm not going be taken advantage of
17 either, you understand?
18 Q. So if I understood you correctly before
19 and if I didn't then you should correct me but I
20 seem to sense that you were saying because of what
21 you do as a stop steward in your mind it was okay
22 for you to be riding the list on occasion. Did I
23 misunderstand that?
24 A. No, you're right.
25 Q. That's a hard thing to quantify for
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2 let's say a policy maker whether it's the district
3 council or the government. Or in other words are
4 there reasons that justify people being on the
5 list when they are working? I want to make sure I
6 have given you an opportunity to explain why you
7 say it that way.
8 A. Well, if you were sitting where I'm
9 sitting most company guys and foremen alike they
10 get to move around without impunity. They go to
11 all the good jobs and wherever the company is
12 working. And back in the day it would have been
13 evenly matched with the 50/50 that the local guys
14 would have gotten a lions share of the job but we
15 don't get that today. So in my case in general I
16 extend myself to the working guy and I try to keep
17 -- I expect -- not that I expect -- excuse me -- I
18 pretend in my own mind maybe that I should go out
19 above the regular guy.
20 Q. And therefore the rules of the out of
21 work list should not apply to you as stringently;
22 would that be fair?
23 A. That would be fair because we don't get
24 any extra moneys like a foreman gets extra moneys
25 for running the jobs. He gets holidays and
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11
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2 vacation we don't get that. We get the grief from
3 the working guy and the company and the super and
4 the general contractor and even sometimes from our
5 own, you know, because they see things. They are
6 not on the job. When you're on the job every day
7 that daily grind believe me it wears you down.
8 Q. I am sure that's true.
9 A. It's not an easy thing to do correctly.
10 Q. I'm sure that's true and as I have said
many times here I'm just a lawyer and not a
12 carpenter and that's why I do ask these questions.
13 And now that the topic has come up let me seize
14 the moment and ask you what is your opinion of the
15 request system as it currently functions?
16 A. It doesn't work.
17 Q. I have written about it but I would
18 like to hear your views on that subject.
19 A. It's unbiased, it's unbalanced, and it
20 doesn't work. The contractor has the whole pie
21 and is only giving you a sliver.
22 Q. Just explain that because the Judge
23 will be reading this or his clerk and he spends
24 less time thinking about these subjects than I do
25 so you need to be very clear about what you're
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1 Guerin Page 80
2 telling him.
3 A. When you have a job that is company
4 manned they don't care for the union because they
5 are relying on the company to keep them working,
6 you understand. So they will do whatever the
7 contractor asks them to do. You want to work
8 through lunch, you want to start early, you want
9 to work a little late without getting paid they
10 will do that. Do you understand?
11 Q. Yes.
12 A. I mean there are certain safety issues
13 that they skirt and violate because they need to
14 keep working. So they won't look for a harness to
15 put on, they'll just go do what they got to do.
16 Meanwhile I would say put a harness on and I'm a
17 bad guy and I don't want to be the bad guy. But I
18 want to make sure that guy goes home to his wife
19 and kids. So the out of work list is a means of
20 keeping the local guys out of work and the company
21 guys working because those guys go on the list,
22 off the list, on the list every day. But when
23 that local guy does it or a carpenter does it he
24 gets brought up on charges for violating the out
25 of work rules.
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2 Q. Just so that the Judge knows you're
3 lifting up the exhibit with your charges.
4 A. Right.
5 Q. What is that number?
6 A. MG-4.
7 Q. I just want to spell it out because I
8 do have opinions. You and I agree on this to be
9 perfectly honest. There are areas of agreement
10 and I have written about it and I have written a
11 report you should read it, it's pretty strong
12 about the 50/50 system.
13 In any event just to make sure spell it
14 out because the contractor not only picks the
15 company men he also by requesting people that are
16 on the list maybe just that instant or for a very
17 short time really in effect is picking 90 percent
18 or more of the work force on the site.
19 A. Correct.
20 Q. And in fact the shop steward is
21 theoretically the only individual who is coming
22 off the list?
23 A. From unemployment.
24 Q. Is there anything else about the
25 request system or your view that you want the
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2 Judge to have in mind?
3 A. To be fair the contractor shouldn't
4 have that kind of power, you know, because it's
5 all one sided.
6 Q. Let me give you the push back that the
7 district council as well as the contractors who
8 sat where you have come back. They say, hey,
9 listen Mr. Geurin and Mr. Mack -- what happens
10 when we take people off the list we get people in
11 the concrete world and concrete, especially
12 concrete, as you know is very arduous, you need
13 people to know what they are doing. We pay X
14 amount per hour so much per day and the people the
15 union sends us off the list are not competent to
16 do the work we ask them to do. And that's why we
17 have to have this right to pick and choose our
18 entire work force. What is your answer to that
19 argument?
20 A. That's insignificant because any guy,
21 any carpenter, should be able to walk on to any
22 job and do any aspect of that trade.
23 Q. I also add to that that if he doesn't
24 or she doesn't know that there are school and
25 other people who can train them in a short period
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2 of time to be adequate. Would that be fair?
3 A. That is fair.
4 Q. Let's move on to the next job in which
5 you had some assistance or guidance in being able
6 to be assigned to it. And you just keep moving
7 along and see if there are others.
8 A. I didn't really particularly care for
9 working down here after 9/11 so I asked to leave.
10 Q. I see -- you're going back. Now,
11 there's a time, let me see here, that you actually
12 were on that job and I see you back on the out of
13 work list on October 26, 2001.
14 A. That's right.
15 Q. That is because you were uncomfortable
16 as I was.
17 A. Right, that was November 26th.
18 Q. All right.
19 A. I was there exactly two months.
20 Q. So you were actually, all right -- and
21 so you went back -- so tell me again was there
22 another job or what is the next job in which you
23 had some guidance, or assistance in being assigned?
24 A. There was the Northside job at the
25 Trump.
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2 Q. Let's talk about that job because I
3 know a little bit about that job which I don't
4 understand.
5 A. Trump Building F.
6 Q. I know the building but I would like
7 you to take me through how you came to be assigned
8 to that job, what happened there?
9 A. When I stepped off the Ground Zero job
10 there were a few things working, you know, around
11 the city. At the time everybody was concentrating
12 down here, there was very little things going on.
13 Everybody like froze, all those jobs uptown
14 stopped, everybody was concentrating down here.
15 So then in the meantime before I went
16 to that Northside job I did one week at 96th
17 Street and West End Avenue with Oilean Concrete.
18 That job was a plank job meaning that they're
19 structural planks for the slab. So the concrete
20 work that we did on that particular job we were on
21 the second floor. There was only two walls and a
22 staircase wall and once that was formed and poured
23 and stripped brick layers would come and block the
24 exterior walls, a few hallway walls, and put the
25 planks on top of that and then we could come back.
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2 I didn't come back because the guy -- I was there
3 four days.
4 Q. What was the problem?
5 A. Because the guy told me I have no work
6 for you come back in two weeks. I said no I will
7 leave and get my money and I am leaving. I ended
8 up going to the Northberry job.
9 Q. Tell me what happened at the Northberry
10 job. I have heard a lot about that job. Did you
11 have some assistance or guidance in getting that?
12 A. Yes.
13 Q. Tell me about it.
14 A. Jerry believe it or not.
15 Q. Okay.
16 A. I work closely with Jerry and he said
17 yeah, we have something coming uptown with
18 Northberry. I never worked with these guys before
19 so we'll make some arrangements for you to go up
20 there.
21 Q. Say that last sentence to me again. We
22 will make some arrangements.
23 A. We discussed my out of work skills, my
24 work skills.
25 Q. Who is the we in that sentence?
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