UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------x
UNITED STATES OF AMERICA,
Plaintiff,
90 CIV 5722
-against- (CSH)
DISTRICT COUNCIL OF NEW YORK CITY
AND VICINITY OF THE UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, et.al.,
Defendants.
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Independent Investigator Deposition
April 7, 2005
8:10 o'clock a.m.
CONTINUED DEPOSITION of MANFRED
DORSCHUG, taken by the Independent Investigator,
Walter Mack, Esq., pursuant to letter subpoena,
at the offices of Doar, Rieck & Mack, Esqs., 217
Broadway, 7th Floor, New York, New York
10007-2911, before Stewart Nissenbaum, a Shorthand
Reporter and Notary Public of the State of New
York.
147
1
2 A P P E A R A N C E S :
3
DOAR RIECK & MACK
4 217 Broadway, 7th Floor
New York, New York 10007-2911
5
BY: WALTER MACK, ESQ.
6 Independent Investigator
7
ALSO PRESENT:
8
DONALD SOBOCIENSKI
9
10
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25
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2 MR. MACK: Let's go on the
3 record.
4 I'm going to have you resworn,
5 again, if only because there's some law
6 that some wily defense lawyer might say
7 that the oath doesn't continue from one
8 session to the other, and you have to
9 make a point of it; so I know that
10 doesn't bother you, and is not an
11 indication of my not trusting that to
12 happen.
13 In fact, as I've told you before
14 we started, I appreciate your candor,
15 and I accept at your word that you are
16 doing your very level best to be
17 accurate and truthful, and that's really
18 all that the oath requires. I
19 appreciate that, and I appreciate your
20 returning here today to permit me and
21 Mr. Sobocienski to be as precise as
22 possible in our conduct of the
23 investigation that involves Prince, to
24 some extent. But my main focus is not
25 on your company; it is on the District
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2 Council and things that have occurred
3 around jobsites in which Prince worked.
4 I want to put you at ease there.
5 I also want to acknowledge that
6 you've said a number of things to us
7 over the week, that I want to go through
8 today, and just make sure that I
9 understand the significance of them and
10 whatever wisdom we can gain from them.
11 Is there anything that you said
12 last time that you feel, in light of
13 your research, should be corrected
14 and/or amended?
15 MR. DORSCHUG: No, I don't think
16 so.
17 MR. MACK: So it would be fair
18 for me to rely upon what you said last
19 time, combined with this, in drawing
20 whatever conclusions Don and I believe
21 are appropriate; would that be fair?
22 MR. DORSCHUG: That would be
23 fair.
24 MR. MACK: Anything you would
25 like to say, or any question you would
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2 like to ask, before we resume our work
3 today?
4 MR. DORSCHUG: No. Just ask me
5 the questions and I'll answer them.
6 MR. MACK: Let me ask
7 Mr. Nissenbaum to readminister the oath
8 to Mr. Dorschug before we begin today.
9 M A N F R E D D O R S C H U G , the
10 witness herein, was duly sworn by Stewart
11 Nissenbaum, a Notary Public of the State of
12 New York.
13 EXAMINATION BY
14 MR. MACK:
15 Q What I want to do, and I'm going
16 to use my little exhibit tags today, is to
17 make sure I understand some of the things
18 that you have sent to me or Don, on topics
19 that were of significance to me.
20 I think before I forget, I want
21 to pass on to you the likelihood that members
22 of the New York City Police Department may be
23 discussing, maybe not with you, but with
24 individuals associated with the jobsite at
25 225 Chrystie, or whatever the site is on
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2 Chrystie here, because of information passed
3 on by us, by me, to them; and at least so
4 that you are at least alerted to the fact
5 that although I understand your discussions
6 and commentary last week about the benefits
7 and your theorizing on it, as is my habit
8 when there's at least another side of the
9 matter; and we did discuss Mr. Williams,
10 Calvert Williams last week, and the fact that
11 he had reached out to me for assistance; and
12 my view that if anything had backfired on
13 him, and in fact sends a signal that his
14 calling me not being in your best interest
15 with respect to what happened to him, I've
16 taken it on myself, based upon my own
17 perceptions, that the coalition's presence on
18 the jobsite, at least as it affected him, was
19 something that law enforcement should
20 evaluate.
21 And that's been my
22 recommendation, and I've passed that
23 information on to the Police Department, and
24 I presume they will take some action on that,
25 if not other topics dealing with coalition's
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2 presence on the jobsite.
3 A Right.
4 Q I say that to you if only to at
5 least alert you to the fact that as far as
6 I'm concerned, the matter as to Mr. Williams
7 is not over. And second of all, the issue as
8 to whether coalitions should be on the
9 jobsite, should be referred by the general
10 contractor to whether it is laborers or
11 carpenters, and whether or not they truly are
12 being -- they are competing in the
13 marketplace in an appropriate way or not.
14 I have my own views on that
15 subject, which may have arisen because of
16 past incidents in which violence or
17 threatened violence or destruction of
18 property was the result of failure to put
19 coalition people on. I'm not suggesting that
20 occurred here, although there are indications
21 that you were concerned about keeping peace
22 on the jobsite. Those I think are your
23 words; pretty close to them, anyway?
24 A Yes.
25 Q So rather than my being the
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2 arbiter of the wisdom, I passed it on to law
3 enforcement, and I'll pass it on to the judge
4 when I write my report. I'm telling you that
5 to alert you that the coalition issue is one
6 I've transferred on, and may arise in the
7 course of the law enforcement investigation;
8 and I would expect you to furnish me with
9 information.
10 A topic that we touched on last
11 week was your interactions with the shop
12 steward, John Gaffney, the shop steward at
13 your site at 106th and Central Park West that
14 we discussed last time.
15 A Right.
16 Q Okay. I'm going to show you a
17 number of things which came from you, and ask
18 for your help in interpreting them for me.
19 So I'm going to mark what I
20 believe to be the packet that I received from
21 you, as FD-10, recognizing that "FD-10" means
22 absolutely nothing, except an effort by me to
23 keep track of pieces of paper. I'm going to
24 put this in front of you; I dont want to
25 scare you, but I'm going to come over and sit
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2 next to you. All right?
3 A That's all right.
4 (Packet of documents produced by
5 Mr. Dorschug, re Mr. Gaffney, marked
6 Exhibit FD-10.)
7 Q So other than the "Received"
8 stamp that my office put on it, indicating
9 that we received it on April 4th, 2005, is
10 that the documents you sent or you had sent
11 to me concerning Mr. Gaffney?
12 Take a look at it. Take a
13 moment; look at it.
14 A Yes, that's the one.
15 Q Now, I want -- on the top page,
16 it has a number of yellow Post-Its that are
17 attached to it; okay?
18 A Right.
19 Q And let's start with the top one.
20 I'm not talking about the indication that my
21 office received it by hand at 9:00 a.m. on
22 April 4th.
23 A Yes.
24 Q On the very top, there's a
25 writing with an arrow saying, "Fred: You
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2 faxed this to me," with the initials JJ?
3 A Yes.
4 Q Can you tell me what that Post-It
5 means?
6 A That Post-It means, I guess
7 normally Mr. Bogert is handling requests. He
8 leaves between 3:30 and 4:00. If anything
9 comes up after 4:00 o'clock and I need
10 something to be faxed out the following day
11 or in the morning --
12 Q That Post-It means what?
13 A This Post-It means that JJ had
14 contacted me and I faxed the document over to
15 JJ. That's what it means.
16 Q When you say the document, you
17 are referring to the top page of FD-10? What
18 is it that you faxed?
19 A The top document.
20 Q Now, there's an arrow over here.
21 What does that arrow mean, if anything? Why
22 is there an arrow there?
23 A I don't know.
24 Q And JJ is whom?
25 A JJ is the project manager in our
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2 company.
3 Q What's his full name?
4 A John J-a-s-i-o-n-i-s-k-i.
5 Q Very good. Now, the next Post-It
6 on the left-hand margin, has on the very top,
7 "Calls," and then four dates, with "JF" to
8 the right?
9 A Right.
10 Q Tell me what that Post-It means.
11 A That Post-It is my handwriting.
12 I looked through my phone records, I have
13 four dates on here, 10/28/04 -- JF means Joe
14 Firth. 11/11/04, Joe Firth. 11/12/04, Joe
15 Firth. 12/1/04, Joe Firth.
16 Q What is the significance of that
17 Post-It listing those four calls? That's
18 from Joe Firth or to Joe Firth?
19 A To.
20 Q To Joe Firth from you; is that
21 correct?
22 A Yes; well I have to refresh my
23 memory by looking at it. I think it's
24 outgoing calls, but I'm not sure.
25 Q I certainly don't want to deprive
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2 you of anything you need to be accurate.
3 A I forgot my eyeglasses.
4 Q That's a problem. Definitely you
5 forgot your glasses?
6 A Yes.
7 Q Should I get the magnifying
8 glass?
9 A That would be helpful.
10 I'm going to mark as FD-11, what
11 has been pointed out to me might be of some
12 value, because it includes more recent calls,
13 and if that exhibit which I've marked FD-11
14 can help you, I certainly want you to use it.
15 (Document with more recent phone
16 calls, marked Exhibit FD-11.)
17 MR. MACK: I would ask
18 Mr. Sobocienski, if he can help the
19 witness focus on what may be of value, I
20 ask that he feel free to do so.
21 Q Do you remember the question?
22 Why did you write down those four calls; what
23 are they, incoming or outgoing to Joe Firth?
24 A The reason I made this here, I
25 wanted to establish when Mr. Gaffney was laid
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2 off. Which was around -- it was actually a
3 day before Thanksgiving. I wanted to see if
4 I spoke with Joe Firth or not about the
5 layoff, that's why I filled these out, and
6 10/28 to 12/1, I wanted to see if I got a
7 call or Joe Firth called me, so that I can
8 substantiate that I was complaining about the
9 shop steward.
10 That's the purpose of me looking
11 at my phone records and substantiating what I
12 said. These four phone calls, they are
13 pertaining to the layoff.
14 Q Explain to me what you learned as
15 a result of your checking your phone call
16 records, and why you wrote that Post-It?
17 A So this all has to do with the
18 layoff of John Gaffney. The first one around
19 that time frame, let's say October, November,
20 December.
21 Q Of '04?
22 A Yes. These four phone calls are
23 from 10/28. 10/28, that was a call from my
24 cell phone, that's what --
25 Q From your cell phone?
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2 A From my cell phone. The way I
3 interpreted this, my phone, I made a call to
4 this number here, 917-376-55 --
5 Q 46?
6 A 46.
7 Q It is on Page 21 of the bill
8 dated November 1, 2004; and we are looking at
9 a call at 7:04 a.m. that day, for four
10 minutes, is the way I'm reading that
11 information. You see what I'm looking at?
12 A Yes. Four minutes.
13 Q It is Call No. 826 on October 28,
14 2004, at 7:04 a.m., four minutes. Home area
15 phone number 917-376-5546. That is Joe
16 Firth's cell phone?
17 A Yes.
18 Q You believe?
19 A Yes, it is.
20 Q Okay. What's the significance of
21 that fact, as far as you're concerned, Mr.
22 Dorschug?
23 A What that tells me is that I had
24 contacted Joe Firth and I had complained to
25 him about Mr. Gaffney, about taking him off
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2 the job, find another job, the job is almost
3 done, please help me.
4 Q Let me just ask a couple of
5 questions. You remember making that call;
6 and this call you believe to be the call that
7 referenced John Gaffney and your
8 dissatisfaction with his performance; would
9 that be fair?
10 A That would be fair to say.
11 Q What did you ask Joe Firth to do
12 for you in that call, if you remember?
13 A Like I said before, I had asked
14 Mr. Firth for help, help me, do something,
15 get the man off the job.
16 Q Did the word "lay off" come up or
17 what did you just say, help? And if you said
18 help, what does help mean; what did you mean
19 by that?
20 A Help means, if I'm at the end
21 stages of a job, I need somebody that can do
22 specific work that's left to be done, and
23 most of the cases it's trim work; it is not
24 sheetrock, it is not protection. That work
25 is basically all done. But at the later
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2 stages you need somebody that can really work
3 with the tools, woodwork, trim.
4 Q What did Mr. Firth say in this
5 call, if you remember, as best you can?
6 A I cannot tell you exactly what he
7 said, but I remember that he was saying that
8 he's going to talk to the man.
9 Q Now, you've listed after that, a
10 number of other calls on this yellow Post-It
11 here, one on November 11, one on November 12
12 an one on December 1, '04; correct?
13 A Yes.
14 Q What is the significance of those
15 calls, in your mind, in your recollection?
16 We are looking at the exhibit
17 that includes November records, the exhibit
18 denominated FD-11, billing date 2004, and I'm
19 looking for November 11th on the bill, Page
20 11. Look now at part of FD-11, bill date
21 December 1, Page 11.
22 Now, let's see if we can identify
23 the phone. There it is, it has the initials
24 JF. It has the same phone number, and this
25 looks like only a one-minute call, if I'm
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2 reading it correctly, 1:49. And then I see
3 another JF down here, a nine-minute call on
4 November 12, which is the next day?
5 A Right.
6 Q And then turning the page, let's
7 see if we can find December 1st.
8 Page 22. And I would note for
9 the record that on each of these calls, there
10 is a handwritten "JF." Is that handwriting
11 yours, Mr. Dorschug?
12 A That's my handwriting.
13 Q That makes it a lot easier for
14 me, that's December 1 at 2:02 p.m., a
15 two-minute call again to Joe Firth, or at
16 least to the number that's registered to him.
17 A Right.
18 Q So what does that tell you, Mr.
19 Dorschug, if anything, recognizing the
20 longest call is on November 12 and is a
21 nine-minute call.
22 A The 11/11 would indicate to me,
23 since it is one minute, that I did not get in
24 touch with Mr. Firth, and I left a message.
25 That would make sense to me.
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2 Q Let's go to the next one.
3 A 11/12.
4 Q A nine-minute call?
5 A A nine-minute call, it was also
6 done by me, and also to Mr. Firth.
7 Q What, as best you can remember,
8 was the substance of this call on November 12
9 that lasted for nine minutes. As best you
10 can recall?
11 A Well, Mr. Mack, this has to
12 relate to Mr. Gaffney again, and I would say
13 the gist of the conversation was the same as
14 before: I need help.
15 Q Are you discussing at that time,
16 and providing information to Mr. Firth, that
17 you're having problems with Mr. Gaffney; that
18 he is in fact either not working; or what, if
19 anything, are you telling Joe Firth about Mr.
20 Gaffney's performance?
21 A I know I mentioned to Joe Firth
22 that I personally saw Mr. Gaffney playing
23 cards, and it may not be the exact words, but
24 I didn't want him on the job.
25 Q Did you ever mention to Joe
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2 Firth, either in these phone calls, or in any
3 other contact with Mr. Firth, that Mr.
4 Gaffney had either been paid for days or
5 hours he wasn't there, or that he had been
6 paid for instances for Saturdays, and
7 demanded to be paid for Saturdays when he was
8 not present on the jobsite?
9 A No, I don't think I mentioned
10 that to Joe Firth.
11 Q Why not?
12 A No, I did not mention it.
13 Q Why not? I mean, those are
14 facts, aren't they?
15 A Those are facts, right.
16 Q Right.
17 A There was no reason for it. For
18 me, it was good enough that I asked Joe, the
19 man is there long enough, enough is enough;
20 now get him off the job. Help me.
21 Q I understand that philosophy.
22 A Okay.
23 Q Given the breadth of knowledge on
24 the jobsite, of Mr. Gaffney's work habits and
25 his failure to be present, in the testimony
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2 or in reality, and your knowledge of that, I
3 am having a hard time understanding why you
4 would not have, at some time, mentioned to
5 the business agent for this job, that there
6 were issues on attendance or work performance
7 and presence, which is the job of a shop
8 steward to be present all the time.
9 We went through last time, to
10 cover this directly, the fact how much it
11 concerned you that you felt the need to sign
12 or have signed or pay John Gaffney for days
13 he wasn't even on the site at all.
14 A That's correct.
15 Q And that this was something that
16 you felt strongly about, that it wasn't
17 right. And in fact, you know, the terms you
18 used were strong terms, about what had
19 happened. Yet you're telling me that at no
20 time you mentioned to Joe Firth that Gaffney
21 was being paid for days he was not present on
22 the jobsite; is that your testimony to me?
23 A I might have said something about
24 that, that he is not there all the time, or
25 he's late. I know for a fact that I
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2 mentioned that he was playing cards. And,
3 for me, that's enough.
4 Q So, let me just capsulize what
5 you've said to me here; you correct me if I'm
6 wrong.
7 You may have told Joe Firth that
8 he was late or that he was not present on the
9 jobsite, but that's a possibility that you
10 did. But you're absolutely clear you told
11 Joe Firth that the person was not working on
12 the jobsite, and you had personally observed
13 it; is that correct?
14 A That is correct.
15 Q You certainly discussed those
16 topics with your foreman?
17 A That's right.
18 Q No question about that?
19 A There's no question about that.
20 Q And there's no question in your
21 mind that John Gaffney was in fact being paid
22 for days and hours he wasn't there; isn't
23 that correct?
24 A That is correct.
25 Q I'm not going to revisit the
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2 situation. What you're not clear about is
3 whether or not you told Joe Firth all of
4 those things, but you may have. Is that the
5 way it is?
6 A That's correct.
7 Q You just don't remember whether
8 you did or didn't?
9 A I cannot remember exactly. The
10 only thing I know for a fact, I have to tell
11 you again, about playing cards.
12 Q Now, I don't want to lose sight
13 of this topic. You also sent me in the week
14 since you have been here, a series --
15 Let me mark this, which I'm going
16 to mark FD-12, these documents, which I will
17 say speak for themselves, but I just want to
18 show them to you and make sure you recognize
19 then and those are documents that you sent to
20 me, FD-12 is the exhibit.
21 (Grievance documents marked
22 Exhibit FD-12.)
23 Q Take a moment and look through
24 it. I just want to make sure you recognize
25 that those are the ones you sent.
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2 A Those are the Grievance notices.
3 Q The Grievance notices and letters
4 from other personnel at Bovis, acknowledging,
5 I would say, failure of performance of Mr.
6 Gaffney; would that be fair?
7 A That would be correct.
8 Q Did you ever tell, before the
9 Grievance in which these letters were brought
10 to you to the Grievance or submitted on the
11 Grievance -- letter from Bovis, I'm talking
12 about -- I haven't finished the question yet.
13 I want to make sure you're with me before I
14 finish it. I'm going to ask you again. You
15 sent to me, as compiled in FD-12, the Notice
16 of Grievance Hearing?
17 A Right.
18 Q As you told me last time, this in
19 essence had been sent from the District
20 Council concerning Mr. Gaffney's complaint
21 that he had been laid off without proper
22 notice and compliance with the CBA for
23 specific days, and it is at this project, the
24 very project we are talking about at Central
25 Park West?
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2 A Yes.
3 Q Signed by Joe Firth?
4 A Yes.
5 Q I think you testified last time,
6 and you got from me, as I asked, you told me
7 that at the Grievance itself, you submitted
8 letters from individuals attesting or
9 corroborating the fact, in your mind, that
10 Mr. Gaffney had in fact performed misconduct
11 at the site, and you sent me as part of this
12 exhibit, or had sent to me, three letters or
13 memoranda, all of which bear Bovis Lendlease
14 letterhead?
15 A Yes.
16 Q Which some are dated, the first
17 one, January 12, 2005. They are all in
18 January, to be exact, 12th, 13th and 14th,
19 2005, those three days in January, the 12th,
20 13th and 14th.
21 Were these the letters that were
22 submitted by Prince or by you, at the
23 Grievance concerning John Gaffney?
24 A I had these letters on me at the
25 time of the Grievance.
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2 Q Were they presented at the
3 Grievance?
4 A I showed them to Joe Olivari.
5 Q Right. Right. You didn't show
6 them to the District Council?
7 A They didn't come into play; it
8 didn't matter.
9 Q Why not?
10 A It did not matter to Mr. Gaffney
11 what was there. He was stubbornly demanding
12 his pay. And even though myself and
13 Mr. Olivari had stated, well, he shouldn't
14 get paid, there was one time when Joe Firth
15 went outside with Mr. Gaffney and they were
16 talking privately, and of course myself and
17 Mr. Olivari, we were pushing for no pay,
18 because the man was not there.
19 Q Did you say that at the
20 Grievance?
21 A I did say that.
22 Q Who was in the room when you said
23 that?
24 A There was Mr. Gaffney, Mr. Firth,
25 Joe Olivari, and another person from the
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2 District Council, which I don't know his
3 name.
4 Q A tall, thin gentleman?
5 A I believe so.
6 Q We can find out who that was.
7 The point I'm making is, did you, or Mr.
8 Olivari on your behalf, at this Grievance
9 hearing, specifically state that John Gaffney
10 had been paid for hours he wasn't there?
11 A That was said.
12 Q No question about that?
13 A There's no question about it.
14 Q Was the comment -- did you or
15 your representative, Mr. Olivari, tell the
16 people at the Grievance hearing, that Mr.
17 Gaffney had demanded to be paid for Saturday
18 work when he wasn't there?
19 A That did not come up at the
20 Grievance hearing.
21 Q What did come up at the Grievance
22 hearing about being paid for non-presence on
23 the jobsite?
24 A Only the Grievance, whatever is
25 listed on the Grievance. I think it was
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2 eleven working days after the layoff. That
3 was the only topic that was discussed on that
4 day. Eleven days of pay.
5 Q That's what he wanted?
6 A That's what he wanted.
7 Q He wasn't on the job?
8 A He wasn't on the job, and my
9 response was, that, well, Joe Firth, I had
10 called you and I had asked to let -- how can
11 this go on, this isn't right, something like
12 that is going to happen. He says, well,
13 there will be a Grievance hearing.
14 Q Let me make sure I'm clear. I
15 did not conclude what you were telling me.
16 That may be my fault. I want to make sure
17 the record is clear. I'm trying to find out
18 who you told, at any time on this job, that
19 John Gaffney was being paid for hours he
20 wasn't on the jobsite.
21 First of all, there's no question
22 that's true. I mean, we have been through
23 that; I don't want to go through it again
24 unless I have to, that John Gaffney was
25 frequently absent, that he came in late, that
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2 he left early, and that he demanded, on
3 Saturdays when he wasn't there, to be paid
4 for those Saturdays. Correct?
5 A That's correct.
6 Q And you told me last time,
7 reluctantly, you decided although against
8 your deepest principles, which you expressed
9 to me last time, you got to work the time to
10 get the pay. Didn't you tell me that?
11 A Yes, sir.
12 Q And yet in this case, with John
13 Gaffney, you violated that principle and you
14 told me last time you did so willingly,
15 although reluctantly; would that be fair?
16 I'm asking, I think there's testimony on this
17 before, -- obviously you complained about
18 this to John Gaffney, you said or told him
19 that basically you were unhappy with his
20 demands for being paid hours that he didn't
21 work; wouldn't that be fair?
22 A Yeah, I'm sure that happened.
23 Q Now what I'm trying to find out
24 is, who above John Gaffney, learned from you,
25 as far as you know, that this was occurring,
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2 that John Gaffney was being paid for hours he
3 was not present at the jobsite? And then
4 I'll ask the next question, because you've
5 already answered this under oath once;
6 there's no question you told Joe Firth that
7 he was being paid for hours in which he was
8 playing poker or playing cards on the site;
9 right?
10 A That's correct.
11 Q I'm trying to find out now on the
12 topic of being paid for hours he wasn't
13 there, was that ever communicated to the
14 District Council?
15 A Not to the District Council.
16 Q Why not?
17 A There's no reason for me to go to
18 the District Council, I'm dealing with the
19 business agent that is responsible for that
20 jobsite.
21 Q So I may have misunderstood you
22 when you told mow that at the Grievance
23 hearing, you had described that John Gaffney
24 had been paid for hours that he didn't work.
25 You never made that point at the Grievance
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2 hearing?
3 A Not at the Grievance. The only
4 point discussed was what was on the Grievance
5 documents.
6 Q Did you ever tell Joe Olivari,
7 either in confidence, outside the earshot of
8 the District Council, or at any time, hey,
9 Joe, I have been paying this guy for
10 non-showing on the job for weeks? Did you
11 ever communicate what you've communicated to
12 me under oath in this proceeding, about John
13 Gaffney's receiving pay for hours he wasn't
14 even on the site, to anybody else outside of
15 Prince? That includes Joe Olivari. As to
16 Joe Firth, you told me you might have and you
17 might not have, you just don't remember.
18 Correct?
19 A That's correct.
20 Q But now I'm asking you, did you
21 ever tell Joe Olivari, hey, Joe, it is not
22 just this Grievance we are talking about, how
23 about these days when he certainly wasn't on
24 the jobsite, this guy was frequently paid for
25 days or hours that he wasn't there; did Joe
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2 Olivari know that from you, or not?
3 A Joe Olivari knows, because I
4 showed him the letters.
5 Q The letters deal with another
6 topic.
7 A Okay.
8 Q Which we are going to cover in a
9 moment. They are important. I'm now talking
10 about what I consider a no-show situation
11 where -- let's pick Saturdays, that's the
12 easiest one.
13 You told me last time, that Mr.
14 Gaffney demanded to be paid for days that he
15 wasn't on the jobsite; and he in fact told
16 you that if he wasn't paid, things could
17 happen to Prince at Seven World Trade, or
18 other things; correct?
19 A He did not tell me direct.
20 Q Who did he tell? Forgive me if
21 I'm overstating.
22 A I got that from Phil, the
23 foreman.
24 Q But at least that had been
25 communicated to you by Phil; correct?
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2 A That's correct.
3 Q So I'm asking, who did you
4 communicate that information to now, besides
5 me and maybe to Joe Firth? Did you transmit
6 that information to Joe Olivari at some time?
7 A I was talking to Joe Olivari,
8 yes.
9 Q Did you tell him about that?
10 A I did not mention specific dates,
11 but in general, that the man is absent, and I
12 paid him in the past.
13 Q What did Joe say about that?
14 A Joe was telling me the same thing
15 that you are telling me, that's not right,
16 why did you do that.
17 Q That's good. And so that's not
18 right. But what was done about it when it
19 wasn't right?
20 A What was done about it was maybe
21 a little bit delayed on my part; I tried to
22 get the man off the job.
23 Q You tried to get him off the job
24 by calling Joe Firth during this time period
25 in which you asked Joe to help you. But did
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2 it go beyond that; did you say, I want to lay
3 this guy off?
4 A I did not tell him to lay him
5 off.
6 Q Why not?
7 A I asked him to get him off the
8 job and bring somebody else that can do
9 specific work.
10 Q What did Joe say in response to
11 that request to get him off the job and give
12 you someone else? What was done by the
13 District Council?
14 Let me state that again. What
15 did Joe Firth say when you made that plea for
16 help?
17 A Joe Firth told me, I am working
18 on it. He said the job was almost finished
19 anyway, give me some time, I'm working on it.
20 It was good enough for me. When
21 nothing happened after, I made two phone
22 calls to the man, I took matters in my own
23 hands. And that's how the Grievance came
24 about. I just let Mr. Gaffney go.
25 Q When you say "let him go," how
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2 did you let him go?
3 A He got laid off.
4 Q Who laid him off?
5 A Ronnie Hutzel.
6 Q Who is Ron Hutzel?
7 A Ron Hutzel is one of our foremen,
8 and he took over from Phil, Phil had left to
9 go to another job, and since there was not
10 much left, Ron Hutzel, I put Ron Hutzel there
11 to finish up the job.
12 Q Then what did you do, what did
13 you tell Ron Hutzel to do concerning John
14 Gaffney?
15 A When I delivered the payroll, I
16 gave him the layoff check.
17 Q You gave who?
18 A I gave Ron. The layoff check was
19 included in the rest of the payroll, which
20 was not that big at the time, probably less
21 than ten, or around ten.
22 Q Ten carpenters on the site?
23 A Something like that, on the site.
24 Q Right.
25 A What happened -- Ron called me
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2 later, and I said: Did you lay off the man?
3 He said, well, he was not there; he was there
4 9:00 o'clock, and he asked me for the check
5 and I didn't give it to him.
6 Q Did or did not?
7 A Did not, he did not give it to
8 him, because for the simple fact it was a
9 layoff, and you wait until -- I get one hour.
10 In that case, we worked till 2:30, normal
11 working hours ending at 2:00, so I would have
12 to give the man an extra hour, an extra hour
13 to wash up and get his tools together. At
14 that time, Mr. Gaffney was not present.
15 Q Then what happened?
16 A Then what happened, the following
17 Monday, I remember because it was after
18 Thanksgiving, so we didn't work Thursday,
19 Friday; it was a very long weekend. Mr.
20 Gaffney came in, I don't know what time it
21 was, and Ron Hutzel gave him his check and
22 the layoff check. Mr. Gaffney did not accept
23 the layoff check. All right?
24 Q Now, let me make sure. On the
25 Friday that you had provided to Mr. Hutzel a
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2 layoff check for Mr. Gaffney, was Mr. Gaffney
3 on the site at all that day, or had he come
4 in and left when he knew that a layoff check
5 was -- I don't know, I didn't understand what
6 you told me, on the Friday that Hutzel had
7 the layoff check, you intended to lay Gaffney
8 off by giving him the check, was Gaffney on
9 the site?
10 A That was not Friday. It was a
11 Wednesday, it was the day before
12 Thanksgiving; that's why I remember. So it
13 was a Wednesday when this happened.
14 Q Let me ask the question. On the
15 Wednesday that you have in mind here, in
16 which John Gaffney was to be laid off, at
17 your decision, based upon your evaluation of
18 his performance, where you had given the
19 layoff check to Mr. Hutzel, the foreman who
20 had replaced Phil, was Mr. Gaffney on the
21 site that day at all, if you know?
22 A As I said, when I called that
23 day, that Wednesday, I don't know exactly
24 what time, I spoke to Ron Hutzel, and I asked
25 him what happened. He told me, he says, he
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2 was here at 9:00 o'clock, he asked for the
3 check, I didn't give him the check, and he
4 left. Mr. Gaffney left. So if I remember,
5 that was around 9:00 o'clock in the morning.
6 Q Does that mean, do I take that to
7 mean that Mr. Gaffney had been there from
8 7:00 until 9:00, or that he had walked onto
9 the site at 9:00 o'clock?
10 A That's hard to say. It could
11 mean that he was on the jobsite and just
12 asked for his check at 9:00 o'clock, or it
13 could also be that he walked in at 9:30 or
14 so, looking for the foreman.
15 Q To get his check?
16 A To get his check.
17 Q His normal payroll check?
18 A Yes.
19 Q That's when you were paying, that
20 day, correct?
21 A Yes.
22 Q How do I get the answer to that
23 question, meaning how do I find out from
24 Prince Carpentry whether Mr. Gaffney had been
25 there and was simply asking for his check
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2 earlier than he should, or that he had walked
3 onto the jobsite at 9:00 o'clock or about
4 that, and asked for his check? How do I find
5 out which of those two it was?
6 A The only one that could testify
7 and answer this here, if he remembers, would
8 be Ron Hutzel.
9 Q I'm going to ask you, so that I
10 don't have to bring Mr. Hutzel in here, and
11 make it more difficult for Princes to do its
12 job because I'm dragging a foreman in off the
13 job, which I will do if I have to --
14 A I understand.
15 Q -- I would like you to telephone
16 Mr. Hutzel at a time that's convenient, ask
17 him those questions, and telephone me or
18 Mr. Sobocienski and provide the answer to
19 that question. Fair enough?
20 A Fair enough.
21 Q You know, I would like to know on
22 that Wednesday, what the facts were. And if
23 Mr. Hutzel had other interactions with Mr.
24 Gaffney on that day, I would like to know
25 what they are, and if I don't think -- I want
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2 him -- I would like to save Prince and Mr.
3 Hutzel the inconvenience of sitting in this
4 lovely room here and being sworn. But if I
5 feel that I'm not getting a straight answer
6 or an accurate answer, I'm going to bring him
7 down here.
8 So I'm going to ask you to do
9 that for me, Mr. Dorschug, and I know you
10 will do so in good faith.
11 A I would do it right now,
12 Mr. Mack, but Ron Hutzel took off for three
13 days, he will be back on Monday. Monday I
14 will talk to him.
15 Q Do you need to keep a piece of
16 paper of things you want to do?
17 A I am disorganized.
18 Q I'm also disorganized.
19 Now, we understand one of your
20 chores here?
21 A Right.
22 Q I have to tell you, Mr. Dorschug,
23 I am -- I want you to think very hard about
24 whether your answers to me that in your
25 actions with Joe Firth; and you are a direct
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2 man, you may be a nice man, you may want to
3 be soft-spoken, or you may not want to be a
4 rabble-rouser, it is hard to accept, given my
5 evaluation of your character, that you would
6 have not at least alluded, when I say
7 alluded, mentioned in your trying to convince
8 Joe Firth that Mr. Gaffney should be
9 considering other locations of employment,
10 that he was demanding or asking for pay on
11 hours and days when he wasn't there. That's
12 for you to wrestle with.
13 You told me you mate have and you
14 might not have. But it is hard for me to
15 understand why, in that private conversation
16 with a business agent that you're trying to
17 convince to help you, to help you with a
18 problem, that when you're talking about
19 playing cards on the jobsite, that a part of
20 that conversation would not have also
21 included a reference to, if not a description
22 of, the fact that he was demanding to be paid
23 for days and hours that he wasn't on the
24 site.
25 That's yours to wrestle with, but
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2 that issue is one that I want to make certain
3 I have your best answer on, because I have a
4 real difficulty. I can understand it may be
5 at a Grievance, although I don't really
6 understand, but that's because I don't
7 understand the Grievance procedure, and if
8 I'm still around, I intend to look at it
9 pretty closely.
10 But I don't understand why you
11 would not have used all of your arguments
12 with Mr. Firth when you were trying to
13 convince him that the best way to resolve
14 these issues was simply finding another job
15 for Mr. Gaffney, and removing him in a
16 courteous way, to allow you to get a
17 foreman -- excuse me, a shop steward that
18 could help you with the last minute at the
19 end; and at the same time, move Mr. Gaffney
20 out with a minimum of rancor.
21 Whatever that nine-minute
22 conversation concerned, and I would like you
23 to think some more about it, you certainly
24 lost on both fronts. One: The District
25 Council did not remove Mr. Gaffney,
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2 notwithstanding extremely good reasons; had
3 you been forthright on the matter completely,
4 that they would have, because a shop steward
5 being paid for hours or days he is not there,
6 is something that has to be reported to me.
7 That's wrongdoing on the jobsite.
8 Number two, you ended up paying
9 the Grievance for a shop steward who was, if
10 anything, close to an embarrassment to the
11 District Council, given what's there, and you
12 were advised by your own representative, that
13 rather than make a point of it, you should
14 just pay it; am I correct?
15 A There was a conversation that it
16 could go to arbitration. I didn't really
17 want to go to arbitration.
18 Q Why not?
19 A I'm wasting time. I have to take
20 time out for what?
21 Q You're taking time out for me.
22 A That's different, Mr. Mack.
23 Q It is different in my mind; but
24 the point is this: You were right.
25 Let me just cover the letters.
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2 You told me last time that Mr. Gaffney had
3 broken a light, that he had acted
4 disrespectfully, unprofessionally, and you've
5 submitted three letters from people who I
6 assume you would tell me, and I'm willing to
7 start from the assumption, are upstanding,
8 professional Bovis Lendlease human beings,
9 who wouldn't write letters -- I'm having a
10 hard time. The superintendent, Paul
11 Nierenberg, I assume he is a man whose
12 reputation is a good one, and a man that
13 wouldn't lie. This letter given to me on
14 January 12, anything inaccurate about that
15 letter?
16 A No. That's just observation.
17 Q You submitted two other letters
18 that you had with you, although you've told
19 me you did not submit them to the District
20 Council; is that correct? Did you refer to
21 these letters when you went to the Grievance?
22 A Like I said, I showed them to Joe
23 Olivari.
24 Q What did he say?
25 A And I think it came up in the
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2 conversation before the settlement, that we
3 do have letters that the man is absent from
4 the job, and I think that Joe read it out.
5 Q You think Joe Olivari read the
6 letters at the Grievance?
7 A Yes.
8 Q What was the District Council's
9 response to that?
10 A The reason that Mr. Gaffney got
11 paid was a simple one, that it violated the
12 bylaws by not calling for a conference on the
13 jobsite with Mr. Firth and Mr. Gaffney. And
14 I'm guilty of that. But my argument to Mr.
15 Firth was, listen, Joe, I called you twice
16 about the matter and I asked you for help.
17 And I keep on telling you that.
18 And that's the way it was.
19 Q You say "telling you." Are you
20 talking about me now, or telling Joe, I've --
21 A No, I'm telling you. I'm telling
22 you, Mr. Mack. That's the way it happened at
23 the Grievance.
24 Now, my position was, what am I
25 going to do? I know I was guilty of a
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2 technicality and I thought, Joe Firth, that
3 doesn't give you the right -- you could have
4 called me also on Monday or Tuesday the day
5 after the layoff, you did not have to wait
6 for eleven days to pass and nobody was on the
7 job. And then I get that Grievance notice.
8 Q What was the District Council or
9 Joe's response to those comments of yours?
10 A Joe said there was no conference
11 called, right, you did not call for a
12 conference, you didn't call me for a
13 conference. I said, that's absolutely
14 correct, but like I said, I called you twice
15 and I asked for help.
16 Q Did you tell Joe, in your
17 telephone calls that are detailed in your
18 little Post-Its we've talked about, in your
19 phone records, that John Gaffney needed to be
20 removed from the jobsite or replaced at the
21 jobsite?
22 A When I say I asked for help,
23 that's exactly what I mean, but I didn't put
24 it in words, and move him, layoff. Actually
25 Mr. Firth, he told me you never asked him to
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2 be laid off, why didn't you tell me you
3 wanted him laid off?
4 Q What was your answer to that?
5 A I said, Joe, I called you twice,
6 there's no reason to have a meeting, I'm
7 telling you what it is.
8 Q Did you tell Joe Firth, then or
9 at any time, that Mr. Gaffney was being paid
10 for days he was not on the jobsite?
11 A Are you talking about the
12 Grievance?
13 Q At any time.
14 A Or any time when I had a
15 conversation.
16 Q The testimony now is, you don't
17 remember whether you did or did not, right?
18 A Okay.
19 Q And I'm trying to push you hard
20 here, because I want the record to be clear
21 as to what happened.
22 You've told me that these letters
23 that are part of FD-12, that you sent to me
24 at my request, for which I commend you, were
25 cited or described during the course of the
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2 Grievance. And you believe that Mr. Olivari
3 referred to these letters, I don't know
4 whether they were made exhibits or not, but
5 that during the topic -- during the
6 discussion at the Grievance, the topic of Mr.
7 Gaffney's absence from the jobsite was
8 discussed; is that correct?
9 A Not at the Grievance.
10 Q It wasn't?
11 A Only the eleven days.
12 Q Only the eleven days. However, I
13 see letters which talk about reporting late,
14 leaving early, I'm referring to
15 Mr. Solimino's letter; I see a letter from
16 Mr. Palumbo saying what he was -- that he was
17 reading a book during working hours. I see a
18 letter from Mr. Nierenberg that when Mr.
19 Gaffney was directed to frame archways, he
20 broke a light bulb.
21 Are you telling me that at the
22 Grievance, these topics were not raised to
23 defend your position?
24 A No. Like I said, I showed them
25 to Joe Olivari.
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2 Q Right.
3 A I seem to remember that Joe said
4 we do have letters to the effect that Mr.
5 Gaffney was not there all the time.
6 Q Okay. What was the District
7 Council's response? Doesn't make any
8 difference, you laid him off without a
9 jobsite meeting; is that correct?
10 A That's correct.
11 Q Anything else they said in
12 response to that?
13 A That was the reason why Mr.
14 Gaffney asked for the eleven days.
15 Q That's why he got his eleven
16 days?
17 A Or he did not. How these letters
18 came about was -- when I say "we," Prince
19 Carpentry, I didn't make the phone calls, I
20 had Mr. Punis make the phone calls to these
21 individuals that are listed on here,
22 Mr. Nierenberg and two others.
23 Q Mr. Nierenberg, I'm looking at
24 your exhibit that you sent me, Mr. Nierenberg
25 Mr. Solimine, and finally Mr. Palumbo?
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2 A And Mr. Palumbo. Yes. So Prince
3 Carpentry, we had asked for assistance from
4 Bovis to bolster our --
5 Q Case?
6 A -- case. So we don't have to pay
7 the Grievance.
8 Q Sounds like a good decision.
9 A It didn't help.
10 Q What was the result of the
11 Grievance?
12 A The Grievance was that Mr.
13 Gaffney got paid six days.
14 Q Six days out of the eleven he
15 claimed?
16 A Yes.
17 Q What was the justifications or
18 the so-called reason why he would be paid for
19 those six days?
20 A Well, like I said, we were
21 talking about, when I say "we," on the table
22 at the Grievance hearing, we were talking
23 about going to arbitration.
24 Q Right.
25 A So, I didn't think it was a good
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2 idea. Joe Olivari said, let's go to
3 arbitration, have an arbitration. And at
4 that point, if I remember correctly, that's
5 when Mr. Firth and Mr. Gaffney stepped
6 outside.
7 Q Right.
8 A Okay. Now, they had a discussion
9 outside, they came back and said, listen, six
10 days.
11 Q Then what happened?
12 A Then I was talking to Joe
13 Olivari, and I said I don't really want to go
14 to arbitration, doesn't make no sense to me.
15 Q The reason is, you don't want to
16 spend the time at an arbitration?
17 A Yes.
18 Q Is there any other reason?
19 A Get it over with.
20 Q Move on to the next job?
21 A Ane move on.
22 Q I don't want to put words in your
23 mouth, but that's what your thinking was?
24 A Yes.
25 Q Even though John Gaffney
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2 received -- and I'm going to ask you if you
3 ever estimated how much money Prince paid
4 John Gaffney for not working or for hours
5 that he wasn't on the jobsite. Did you ever
6 do that?
7 A No, I never bothered with it.
8 Q Well, you're going to have to do
9 it at some time, so you better be thinking
10 about it.
11 I'm just telling you that in
12 terms of the hours and the days that you paid
13 John Gaffney for his card-playing, or for his
14 wandering around, or doing nothing, whatever
15 it was, or his absence, is something that
16 eventually, sooner or later, somebody is
17 going to say to you, in a situation probably
18 more formal than this one: How much time,
19 how many hours, how much money did you pay
20 John Gaffney for not doing things either for
21 absence or for poker or some other use of his
22 time, reading a book, or what have you? You
23 should be thinking about that.
24 I'm surprised that the Grievance,
25 why your representative, Mr. Olivari, would
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2 not have asked you to either put it in some
3 type of financial terms, or would not have
4 raised, as I have raised with some
5 specificity, the fact that John Gaffney did
6 not honor his obligations as a shop steward.
7 And I'm trying to figure out why
8 that topic did not come up, except perhaps in
9 the presence -- you know, as raised by the
10 letters, why it wasn't an important part of
11 your position at the Grievance hearing.
12 Why wasn't it? Do you understand
13 my question?
14 A I understand.
15 Q You told me that the only topic
16 that came up with respect to his absence from
17 the jobsite, dealt with the eleven days he
18 was asking for at the Grievance; right?
19 A Yes.
20 Q If there was any reference to his
21 misconduct on the jobsite, it was in
22 description of letters which you've shown me;
23 isn't that correct?
24 A Right.
25 Q I'm asking why, at this
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2 Grievance, did you did not raise what to me
3 is a much more powerful argument, that Mr.
4 Gaffney had been demanding to be paid for
5 days, for Saturdays, for hours when he wasn't
6 even on the job; why didn't that topic come
7 up at the Grievance? Can you explain that to
8 me?
9 A The only thing I remember is that
10 I spoke to Joe Olivari, but that was in
11 private.
12 Q Did Joe Olivari say, well, we
13 better not raise that here, the District
14 Council won't accept it? Why wasn't it
15 raised?
16 A Joe left it up to me what I'm
17 going to do. He was just sitting there as
18 the Drywall Association President, which we
19 belong to the Drywall Association.
20 Q There's no question, then, Mr.
21 Dorschug, and I want to be -- I want to be
22 clear, because these are facts that mean
23 things to me and probably to the judge. Did
24 you tell Joe Olivari what you've told me
25 about Mr. Gaffney's conduct of playing cards,
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2 reading books, demanding pay for days that he
3 wasn't there, demanding pay for hours he
4 wasn't there? Did you communicate that to
5 Mr. Olivari in private?
6 A I told him about the playing
7 cards incidents. And I mentioned that, yes,
8 there were times when he's not there, comes
9 in late.
10 Q How about not coming in at all
11 and getting paid; how about the days you told
12 me that the Saturday work, he came in --
13 excuse me, he didn't come in, and he demanded
14 he be paid for?
15 A I didn't say that.
16 Q Why not?
17 A Mr. Mack, one experience is
18 enough, maybe not enough, but if I just tell
19 you the man is no good, here's the documents
20 to bolster my case; that's good enough. Why
21 go hash back two or three years, what
22 happened?
23 Q I'm trying to figure out whether
24 you were well-represented.
25 A To tell you the truth, I didn't
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2 care if Mr. Olivari was there or not. He was
3 notified and he showed up, but I didn't ask
4 for him to be at the Grievance.
5 Q I understand that. But the
6 question the judge will share with me, if I'm
7 to predict Judge Haight, and I never predict
8 him, except in the area of wanting to
9 understand why common sense would not apply.
10 We now hear from you and from
11 others, under oath, that John Gaffney
12 demanded to be paid for days and hours in
13 which he wasn't even on the jobsite. He was
14 going to real estate school, he was working
15 with his brother, and he was being paid by
16 you at the same time; right?
17 A Yes.
18 Q Yet you're telling me when it
19 came to try to hold him accountable, and to
20 demonstrate that you were paying this guy for
21 times he wasn't showing up even, on the
22 jobsite; you never raised it, you never
23 mentioned it at a time when it was most
24 important to you. I'm trying to find out why
25 not.
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2 A I thought I answered that
3 already, Mr. Mack.
4 Q We are talking about at the
5 Grievance.
6 A Oh, at the Grievance? Okay, I'm
7 sorry.
8 Q At the Grievance. I think you've
9 told me that you did tell Joe Olivari the
10 substance of those topics; would that be
11 fair?
12 A Yeah.
13 Q In private; correct?
14 A Yes. We are sitting around the
15 table, it is a round table, a square table.
16 Q I'm trying to figure out whether
17 you gentlemen ever discussed why those topics
18 shouldn't be raised at the Grievance.
19 Let's face it here, I'll make a
20 prediction, all right, that Judge Haight's
21 view of these facts, when a shop steward
22 breaks a light when told to work, when he's
23 playing poker on the jobsite, when he's
24 reading books on the jobsite, when he's
25 demanding to be paid for days and hours that
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2 he's not even on the site, the judge would be
3 thinking as I'm thinking, why couldn't you
4 lay this guy off in one phone call? The guy
5 is playing poker on the job.
6 I think this incident of
7 destruction of property dealing with breaking
8 a light bulb, assuming it occurred, would be
9 sufficient on its very own, putting you all
10 aside, to give a pretty good case for laying
11 off a shop steward.
12 Do you agree, if you break a
13 light, is that something that would give you
14 at least a good argument, that this shop
15 steward is not the right shop steward for
16 your jobsite?
17 A It is not normal procedure; I
18 will give you that. It's not right.
19 Q It's not right?
20 A No, it's not right. It is not
21 what normally happens. It is an exception.
22 Q It's an exception that speaks
23 volumes; right.
24 Were you there when the light
25 bulb was broken?
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2 A No.
3 Q Who reported the breaking of the
4 light bulb to you?
5 A Phil mentioned it.
6 Q What did Mr. Gaffney do after he
7 broke the light bulb? Did he go to work?
8 A I don't know.
9 Q I discern in you, and you have
10 told me that it is important to your
11 functioning in the business that your shop
12 steward reports be accurate, that they
13 reflect hours that people are there, the only
14 people you pay or have paid, as a practice,
15 are times when people are there, or your own
16 foremen for holiday time. And that as a
17 matter of principle to you, that you pay
18 people for the hours they are on the site;
19 isn't that correct?
20 A That's correct.
21 Q I see a violation of all of these
22 principles with respect to Mr. Gaffney, and
23 I'm trying to find out -- I see Mr. Gaffney,
24 after all of that, being paid for six days,
25 because you're telling me: It was my
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2 mistake, I should have had a jobsite meeting.
3 I'm the one at fault, Fred Dorschug; and
4 therefore, it is okay, in my mind, for paying
5 this guy who, in fact, should be fired for
6 his conduct, maybe prosecuted for his
7 conduct. That's my concern, not yours, but
8 you're saying it is my fault and you pay the
9 six days because you don't want to go to
10 arbitration. That's the record at the
11 moment.
12 A That's right.
13 Q And that's where it sits; is that
14 correct?
15 A That's right.
16 Q This is the last question I'm
17 going to ask on this whole thing: Can you
18 explain that to me, why are you blaming
19 yourself for Mr. Gaffney's removal from the
20 site, and telling me it was okay to pay Mr.
21 Gaffney for those six days? Why, in your
22 mind, was that the right thing to do?
23 Do you understand the question?
24 A Yeah. You want to know from me
25 why I let this happen?
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2 Q Yes.
3 A Okay. Why did I pay the man?
4 You're asking me, and rightly so. I want to
5 touch on this here.
6 Q Let me listen.
7 A It is one thing that you're
8 telling me, which is true, but needs
9 qualifications, I guess.
10 Q All right.
11 A I only pay for what gets done
12 from a regular worker. There's exceptions,
13 the foreman; and also an exception, my
14 discretion on the shop steward. Okay? If
15 the shop steward misses days, if there's a
16 sickness, sometimes I do pay; sometimes I
17 don't.
18 I used to pay holidays for a shop
19 steward; I don't do it no more. I do it once
20 in awhile; but that's it.
21 So there are exceptions, but they
22 only apply to foremen and shop stewards;
23 foremen get paid when they are not on the
24 jobsite, that's a company policy.
25 Q Why should Mr. Gaffney be in that
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2 group of exceptions that he should be paid,
3 explain to me, given everything you've told
4 me, why Mr. Gaffney should be the person who
5 is an exception?
6 A Mr. Gaffney is a shop steward
7 also.
8 Q I know he's a shop steward.
9 A He is a shop steward, so he falls
10 under that category, that outline.
11 Q He falls within it, but I haven't
12 heard an awful lot that would justify him
13 being a shop steward that might be entitled
14 to that discretion of yours. But you tell me
15 why you are paying him, given his conduct.
16 A I didn't feel guilty about laying
17 him off. I just didn't want to pay the
18 eleven days. I thought it was too much. I
19 could live with the time when he was not
20 there, whatever his excuses are.
21 Q Why? Why could you live with it?
22 A Mr. Mack, I go down with the shop
23 steward or without the shop steward. The job
24 does not depend if the shop steward works and
25 sweats, or he does very little. That does
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2 not --
3 Q Doesn't make any difference
4 whether he shows up or not; is that what
5 you're telling me?
6 A No, that's not entirely correct.
7 Q Explain it to me.
8 A If the man is on the job, it is
9 better. If he misses days and has an excuse,
10 then I may overlook it. In some cases I
11 don't overlook it, but most of the time I do.
12 Q Tell me why you overlooked it
13 this time.
14 A Because the man is the shop
15 steward on the job.
16 You don't buy it?
17 Q I don't buy it. I'm telling you
18 right now, that if I find you paying another
19 shop steward for a no-show job, you will be
20 an object of my investigation, not a witness.
21 A All right.
22 Q All right? I want to make
23 perfectly clear that for whatever reason you
24 pay a shop steward, I mean, I can understand
25 if he is sick, if he has -- we are going to
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2 be talking about another shop steward in a
3 few minutes, where you made that decision.
4 But the point is, I'm telling you
5 that if I find Prince paying another shop
6 steward who is threatening the foreman, who
7 was demanding to be paid for hours when he's
8 not even on the site, for no reason that I
9 can understand, and you feel that you need to
10 do it, I will be coming after him, or I will
11 cite Prince Carpentry for committing a crime;
12 the crime being that you are permitting
13 something you know to be wrongful conduct on
14 the jobsite to occur, without bringing it to
15 the judge's attention. All right?
16 My view is, that if you are --
17 and maybe the "victim," is the right word,
18 and you feel that you must, because the guy
19 is threatening you, or simply because the
20 guy -- and I'm still not clear on the
21 reason -- I have to pay him or I have a
22 problem, you are in fact part and parcel of
23 creating a business record that's untrue.
24 If I go through the stop
25 steward's reports and I see John Gaffney,
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2 seven hours on the site, and I see your
3 foreman and a carpenter signing that he was
4 present on that site, that's what that shop
5 steward report says, worked those areas, read
6 it. It is an agent of Prince who is signing
7 that document, telling all who look at it
8 that those carpenters are present on that
9 jobsite for those hours on that day; and that
10 would be untrue in the case of John Gaffney
11 on most Saturdays; correct?
12 A I would say that would be
13 correct.
14 Q I'm telling you, and I'm putting
15 you on notice, this is not the situation. I
16 see you as a victim of this issue. Don't get
17 me wrong here, I don't want to be unfair to
18 you, I appreciate your coming in, although I
19 don't accept some of your reasoning for
20 making the payments. That's for the judge to
21 conclude. I'm a fact-gatherer, and I want to
22 hear your position.
23 I take a look at shop steward Sal
24 Tagliaferro, as to whom I have sworn
25 testimony from your foreman that he was paid,
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2 or that a check was issued for him for times
3 that he was not on the jobsite. Okay? I'll
4 ask you about that later, maybe you don't
5 know that, and if so, we'll see.
6 I have knowledge of that from
7 your foreman, and what I'm saying to you is,
8 that I have made it very clear to the
9 District Council, and I want to make very
10 clear to Princes Carpentry, that whether it
11 is me or my successor or it's Judge Haight,
12 or what have you, your foreman, who is an