UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA, Plaintiff,
v. 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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90 Civ. 5722 (CSH) |
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THE GOVERNMENT’S REPLY MEMORANDUM OF LAW IN FURTHER
SUPPORT OF ITS MOTION CONCERNING THE REQUEST SYSTEM
MICHAEL J. GARCIA
United States Attorney for the
Southern District of New York
Attorney for Plaintiff
EDWARD SCARVALONE
SEAN H. LANE
BENJAMIN H. TORRANCE
Assistant United States Attorneys
86 Chambers Street
New York, New York 10007
Telephone: (212) 637-2734
Fax: (212) 637-2686
– Of Counsel –
Table of Contents
Point I—The District Council Is In Contempt Of The Consent Decree
A. Paragraph 12 of the Consent Decree Requires Advance Notice of Changes to the Job Referral Rules
C. IRO Conboy’s Experience With the Javits Center is Inapposite. . . . . . . . . . . . . . 10
Point II—The Relief Sought By the Government is a Necessary and
Appropriate Remedy for The District Council’s Violation of the Decree. . . . . . . . . . . . .11
A. Relief is Necessary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Plaintiff United States of America, by its attorney, Michael J. Garcia, United States Attorney for the Southern District of New York, respectfully submits this reply memorandum of law in further support of the Government’s motion for civil contempt, and in response to the District Council’s opposition papers.
In 1994, the parties to the Consent Decree negotiated a set of job referral rules requiring that carpenters be referred to jobs based on length of unemployment. Former IRO Kenneth Conboy vigorously policed those rules during his tenure, recognizing that length of unemployment was not only a fair, neutral way of allocating job opportunities, but one that minimized the potential for cronyism and corruption. The limited exceptions to the principle of referral based on length of unemployment were carefully monitored by the IRO because of what he termed their potential for abuse.
One of these exceptions is found in Job Referral Rule 5(B), which is among the referral rules that were agreed upon by the parties and incorporated into the Consent Decree. Rule 5(B) allowed contractors to request specific carpenters “employed by the employer within the previous six months,” notwithstanding the length of time that carpenter had been unemployed relative to other carpenters on the out-of-work list. The IRO was sufficiently concerned about possible abuse of this requesting power that he not only required the requesting contractor to submit corroborating documentation when requesting a specific carpenter, but he also required the administrator of the out-of-work list to maintain data concerning each such request. (See Moving Br. 5-6). The purpose of these documentation requirements was to facilitate the monitoring of contractors’ exercise of the request power, since it was an exception to the general principle of referral based on length of unemployment. (See id.).
In 2001, however, the District Council undermined this principle of referral based on length of unemployment by eliminating Rule 5(B)’s provision limiting requests to those carpenters who had previously worked for the contractor within the previous six months. By so doing, the District Council also eliminated the requirement, previously imposed by the IRO, that the contractor submit documentation corroborating that the requested carpenter had worked for the contractor during that time period.
The effects of the District Council’s elimination of the six-month restriction have been dramatic. In the absence of that restriction, as well as the corroboration requirements imposed by IRO Conboy, the Consent Decree’s job referral rules have been subverted. Association contractors now routinely hand-select all of the carpenter workforce at the job site (with the exception of the shop steward), regardless of how long the carpenter has been unemployed. As documented by former Independent Investigator Walter Mack, the unbridled “requesting” system that has resulted not only works an unfairness on the carpenters who are consigned to lengthy waits on the out-of-work list (while carpenters who have an “in” with a contractor go from job to job), but has also facilitated corruption of the job site, particularly through contractors who pay their workers cash, off the books.
The District Council concedes that it eliminated the six-month restriction, as well as the corroboration requirements imposed by the IRO, without seeking approval of this Court or the consent of the Government. Indeed, not only did the District Council fail to provide any prior notice, but the union concealed its actions for more than four years thereafter. The District Council is therefore in contempt of the Consent Decree, which requires that the union provide advance written notice of contemplated changes to the job referral rules.
In response, the District Council offers a series of post hoc justifications for eliminating Rule 5(B)’s six-month restriction and the corroboration requirements imposed by IRO Conboy. These justifications are both untimely and irrelevant. Plainly, the time for raising policy arguments for amending the Decree’s job referral rules was four years ago, in the spring of 2001, when the District Council negotiated away the six-month restriction without seeking a modification of the Decree. Moreover, as will be seen below, the policy arguments raised by the District Council are irrelevant to the Decree’s terms and objectives.
Point I
The District Council Is In Contempt
Of The Consent Decree
There is no dispute that all of the elements for a contempt finding have been met here. These elements are: (i) that the Court’s order is “clear and unambiguous”; (ii) that the proof of non-compliance is “clear and convincing”; and (iii) that the defendant has not “diligently attempted in a reasonable manner to comply.” (See Moving Br. 19).
First, the Court’s order is clear and unambiguous. Consent Decree paragraph 12 plainly requires that the District Council provide “prior written notice” of any proposed changes to the job referral rules. (See id. at 19-20; infra at 4-7).
Second, proof of noncompliance is clear and convincing. The District Council does not dispute that it failed to provide the Government with prior written notice of its elimination of the six-month restriction imposed by Job Referral Rule 5(B). (See Moving Br. 8-10, 20-22; see also Defendants’ Memorandum of Law in Opposition (“Opp. Br.”), passim).
Third, the District Council has not diligently attempted in a reasonable manner to comply.
Not only did the District Council fail to provide prior written notice, but it did not even notify the
Government after the fact.
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Because the lack of advance notice is conceded, the only real dispute as to contempt is a legal one – one that can be resolved without the need for an evidentiary hearing. That dispute is whether the Consent Decree requires the District Council to provide advance notice of changes to the Decree’s job referral rules. The District Council contends that paragraph 12 of the Decree requires advance notice only of changes to the union’s by-laws, and that job referral rule changes effected by collective bargaining agreement do not require prior notice to the Government. (Opp. Br. at 5). The District Council’s arguments are not only undercut by the text of paragraph 12,
but they are futile as well.
A. Paragraph 12 of the Consent Decree Requires
Advance Notice of Changes to the Job Referral Rules.
Paragraph 12 of the Decree undercuts, rather than supports, the District Council’s argument.
Paragraph 12 provides as follows:
12. Future Practices. The parties intend the provisions set forth herein to govern the District Council’s practices in the areas affected by this Consent Decree, now and in the future. The District Council shall give prior written notice to the Government and the [IRO] of any proposed changes to the By-Laws. In addition, the District Council shall inform the Government and the [IRO] of any changes in any rules or procedures adopted or implemented pursuant to paragraphs 4(g), 4(h), 4(i)(3), 5, 9(c), and 10 of this Consent Decree. For a period of seven (7) years after the termination of the [IRO]’s term of office, the District Council shall continue to give prior written notice of any such proposed change to the Government. If the [IRO] or the Government objects to the proposed change as inconsistent with the terms or objectives of this Consent Decree, the change shall then not occur, provided that, upon such objection, the District Council may apply to the Court for a determination as to whether the proposed change is consistent with the terms and objectives of this Consent Decree.
(Emphasis supplied). The District Council argues, by reference to the paragraph’s second and third sentences, that the requirement of “prior written notice” is limited to By-Law amendments, and that, with regard to changes of rules or procedures “adopted or implemented” pursuant to the enumerated Decree paragraphs, after-the-fact notification is sufficient. (Opp. Br. 5-6). This argument ignores entirely the fourth and fifth sentences of Paragraph 12. The fourth sentence requires prior written notice “of any such proposed change” during the seven-year period after the IRO’s term of office; the fifth sentence provides that in the event of an objection by the Government or the IRO then the change shall not go into effect, absent Court approval. Plainly, the “prior written notice of any such proposed change” provision of the fourth sentence refers to the “changes” referred to in the third sentence, which immediately precedes it – that is, “changes in any rules or procedures adopted or implemented” pursuant to enumerated paragraphs 4(g), 4(h), 4(i)(3), 5, 9(c), and 10 – as well as to the “changes to the By-Laws.” If the parties had intended to limit the “prior written notice” requirement (set forth in the fourth sentence) to changes in the By-Laws (referred to in the second sentence), the parties would have had the one sentence follow the other immediately.
The District Council’s argument is contrary not only to the plain language of paragraph 12,
but also to common sense. It is absurd to suggest that the Government would negotiate a set of
job referral rules, incorporate them into the Consent Decree, and provide that a court-appointed
officer (the IRO) would supervise their implementation, yet – at the same time – intend that the
District Council would be free to change or effectively abolish them without providing advance
notice. The absurdity of this contention is further illustrated by the importance of the other
Decree paragraphs enumerated in the “any changes in any rules or procedures” provision (see
Decree ¶12, third sentence), that is, paragraphs 4(g), 4(i)(3), and 9(c). These other enumerated
provisions, like the job referral rules, are of major importance to the Decree.
The District Council’s argument is also undercut by the District Council’s own practical
construction of that paragraph. The District Council has consistently sought the Government’s
prior approval for any number of proposed changes to the job referral rules. (See Scarvalone
Dec’n Ex. 36 at 3; Ex. 37 at 2; Ex. 38 at 2; Ex. 40 at 2; Ex. 41 at 1; Ex. 42 at 2; see also Ex. 39 at
1 (District Council letter reflecting that “Government has approved” particular change for which
union had sought Government approval)).
This recognition that prior notice to the Government
was required provides a more reliable indicator of the parties’ interpretation of Decree paragraph
12 than the post hoc explanations offered by the District Council in opposition to the
Government’s contempt motion, see United States v. Local 359, United Seafood Workers, 55
F.3d 64, 69 (2d Cir. 1995) (construing civil RICO consent decree by reference to prior “conduct
of the parties”), and thoroughly undermines any claim of ambiguity by the District Council. See
Drywall Tapers Local 1974 v. Local 530 of Operative Plasterers & Cement Masons Int’l Ass’n,
889 F.2d 389, 395 (2d Cir. 1989) (rejecting claim of ambiguity where prior court submission by
defendant had evidenced understanding of injunction provision).
Finally, even if the District Council’s interpretation of Decree paragraph 12 had merit, the Union’s arguments would be futile. For even assuming arguendo that the Government is not entitled to prior written notice of any changes to the job referral rules, the third sentence of paragraph 12 makes clear that the District Council, at a minimum, “shall inform the Government and the IRO” of any such changes after the fact. The District Council did not do so here. Indeed, that fact was not disclosed until Peter Thomassen’s testimony at the April 2005 evidentiary hearing. See supra at 4. Thus, even under the District Council’s self-exonerating interpretation of paragraph 12, the Union has violated the Decree.
B. There is No “Collective Bargaining Agreement” Exception
To the Requirement of Prior Written Notice.
The District Council argues that it can modify or eliminate job referral rules, without notice to the Government or Court approval, through the collective bargaining process. (Opp. Br. 7-10). This argument, too, is meritless.
As a matter of common sense, the Government should not be presumed to have intended that the job referral rules it carefully negotiated in the Consent Decree (and the fruits of IRO Conboy’s supervision over those rules) could be undone by the District Council unilaterally, through collective bargaining or otherwise. The District Council has identified nothing in the Decree that supports such an untenable interpretation.
Indeed, while paragraph 4(f)(1)(B) of the Decree may have exempted collective bargaining agreements from the IRO’s prior written notice authority (Opp. Br. 6), this paragraph does not remotely suggest that the Government intended that the District Council would be free to effect job referral rules changes through a collective bargaining agreement. Rather, paragraph 4(f)(1)(B) merely reflects that collective bargaining agreements, as a general matter, need not be provided to the IRO in advance. By contrast, collective bargaining agreements that purport to effect changes to the job referral rules are different: because they modify terms that were expressly agreed to by the parties in the Consent Decree, they are subject to the prior written notice requirement of Decree paragraph 12, as well as the general principle that consent decrees cannot be modified unilaterally absent a motion under Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367 (1992).
The District Council’s arguments concerning Job Referral Rule 5(B) are similarly misplaced. (Opp. Br. 7-8). Rule 5(B) provides:
Requests by an employer for specific members employed by the employer within the previous six months shall be fulfilled, as required by applicable collective bargaining agreements.
By its plain terms, the Rule authorizes requesting under one limited circumstance – where the member had been “employed by the employer within the previous six months.” The District Council’s construction turns this provision on its head by arguing that the “as required by applicable collective bargaining agreements” clause evidences an intent to authorize whatever requesting system is adopted by a future collective bargaining agreement. (See Opp. Br. 7-8). This construction, if adopted, would effectively render the “within the previous six months” restriction a nullity, however. The construction must therefore be rejected.
By contrast, the Government’s construction of Rule 5(B) gives meaning to both clauses.
The “prior six months” clause (which the District Council’s brief ignores) means what it says:
requests for specific carpenters employed by that employer within the previous six months will
be fulfilled. The “as required by” clause makes clear that such requests will be honored only to
the extent that an “applicable collective bargaining agreement” requires it. The word
“applicable” reflects the fact that in 1994, not every collective bargaining agreement allowed
contractors to request specific carpenters previously employed within the previous six months.
Some, like the Building Contractors Association agreement, did so provide (see Moving Br. 5);
some, like the Drywall Association agreement did not (see Agreement with Association of Wall-Ceiling & Carpentry Industries, 7/1/93-6/30/96 (Defendants’ Exhibit Supplement Ex. J) at 16,
art. VI, § 2).
Finally, the Government’s construction of Rule 5(B) does not presume that collective bargaining agreements are frozen in time, as the District Council contends. (Opp. Br. 7-8). Rather, to the extent a collective bargaining agreement adopts a request system inconsistent with the six-month restriction, such an agreement requires a modification of the Rule – either through stipulation or a motion under the Rufo standard. Absent such a modification, the inconsistent collective bargaining agreement provision is voidable. See United States v. Int’l Bhd. of Teamsters, 954 F.2d 801, 810 (2d Cir. 1992) (“[W]here they differ, collective bargaining agreements yield to the Consent Decree . . . .”).
Accordingly, this Court should adopt the construction of Rule 5(B) that gives meaning to both clauses, and reject the construction that would give the District Council a blank check to unilaterally modify the Rule through the expedient of collective bargaining.
C. IRO Conboy’s Experience With the Javits Center is Inapposite
The District Council invokes IRO Conboy’s response to a prior instance of the union unilaterally modifying the referral rules, with respect to the Javits Center, to argue that its conduct was not in violation of the Consent Decree. (Opp. Br. 10-13). This reliance upon IRO Conboy’s experience is unavailing.
As we noted in our moving papers, IRO Conboy moved to invalidate the collective bargaining agreement the District Council entered with Javits Center exhibitors shortly after the Consent Decree was entered. (Moving Br. 22 n.4). Because IRO Conboy was notified of the potential agreement in advance of the District Council’s signing it (see IRO Second Interim Report, March 13, 1995 (Torrance Dec’n Ex. 5) at 13-15), the prior written notice provision of Decree ¶ 12 was never at issue. The Javits Center motion therefore sheds no light on the appropriate judicial response to a violation of the prior notice requirement.
Nor can IRO Conboy’s response to the Javits Center agreement be fairly characterized as an endorsement of “returning hiring rights to the employers,” as the District Council contends. (Opp. Br. 12). No doubt the IRO would be surprised to be characterized as an advocate of “returning hiring rights to the employers,” given the instances in which the IRO advocated scrutiny of construction contractors’ hiring practices. (E.g., Sixth Interim Report, March 4, 1997 (Torrance Dec’n Ex. 8) at 9 (viewing the 50/50 rule “with concern” because hiring of contractor’s fifty percent is not subject to Consent Decree and “is subject to abuse”)). In any event, the Javits Center experience is wholly inapposite to the facts before the Court. While it is true that, when the State of New York took over Javits Center operations as an anti-corruption measure the IRO did not object to the State’s conducting all of the hiring (see Third Interim Report (Torrance Dec’n Ex. 6) at 42-43), nothing about the IRO’s determination suggests that he favored the return of hiring rights to private construction contractors. The State of New York plays a unique role with respect to the Javits Center, and the IRO properly recognized that the State did not present the corruption potential of private employers. Indeed, the State took over the Javits Center precisely because of the corruption there, and the State established its anti-corruption bona fides immediately by hiring a new, permanent work force who were subjected to vigorous background checks. (Id. at 41).
Point II
The Relief Sought By the Government is a
Necessary and Appropriate Remedy for
The District Council’s Violation of the Decree
The District Council does not dispute that the Court has broad discretion in fashioning the appropriate relief to a party’s contempt, including the power to require a contemnor to perform affirmative actions not mandated in the Decree. (Moving Br. 22). The relief sought by the Government is both well within this Court’s discretion, and appropriate to remedy the District Council’s undermining of the job referral system.
A. Relief is Necessary
The District Council’s elimination of the six-month restriction imposed by Referral Rule 5(B) was not only in derogation of the Consent Decree’s requirement of prior written notice, but also undermined the very premise of the job referral system agreed to by the parties in that Decree. That referral system was one whereby carpenters are referred to work based on one criterion – length of unemployment. (Moving Br. 4-5). As the IRO found, referral based on length of unemployment is a neutral basis for referring out-of-work carpenters to jobs, and thereby limits the potential for abuse created by permitting contractors to hand-pick all of the workers at a job site. (Id. at 5-6).
By eliminating the six-month restriction, the District Council effectively adopted an unlimited request system, the pernicious effects of which have been exhaustively documented by Mr. Mack in written reports that are before the Court. (See Moving Br. 11-18). Mr. Mack found that unlimited requesting had made it “possible and, indeed, common for a contractor to hand-select the entire crew of Carpenter journeymen.” (Id. at 12, citing Request System Report at 3). “Carpenters chosen by association contractors frequently never miss a day of work,” while workers who lack connections among the contracting community, or who are older, languish on the out-of-work list “for months.” (Moving Br. at 13-14, citing Request System Report at 2, 21-22). The request system has effectively rendered the job referral system “meaningless,” Mr. Mack found. (Moving Br. at 16, citing Boom Report at 40).
Mr. Mack further found that the request system increased the potential for corruption of the job site, by facilitating the contractor’s total control over the carpenter workforce. (Moving Br. 14-17; Boom Report at 39 (“the request system as it currently operates nurtures abuse”)). Given the lengthy wait that journeymen carpenters face on the out-of-work list if they are not requested, carpenters “often do not have a realistic choice to refuse contractors’ demands that they be paid off the books . . . .” (Moving Br. 16, citing Boom Report at 40). Indeed, the ability of Boom Construction to operate large “cash” jobs was directly attributable to the request system, Mr. Mack found. (Moving Br. 16, citing Boom Report at 40).
In light of this evidentiary record, the District Council’s attempt to downplay the
pernicious effects of the request system as mere “speculation” or “argument” (Opp. Br. 16) is
unavailing. To date, Mr. Mack is the only anti-corruption expert who has looked at the current
request system. His findings are amply supported by the evidentiary record. Because the District
Council offers no competent evidence in response, Mr. Mack’s findings must be accepted as
undisputed. See SEC v. Credit Bancorp, Ltd., 2000 WL 968010, *8 (S.D.N.Y. July 30, 2000)
(no need for evidentiary hearing where defendant offered “conclusory assertions” unaccompanied
by evidence); ACLI Gov’t Secs. v. Rhoades, 989 F. Supp. 462, 466 (S.D.N.Y. 1997), aff’d, 159
F.3d 1345 (2d Cir. 1998) (deciding contempt motion based on affidavits and exhibits,
notwithstanding defendants’ “assertion” of compliance, because “no real factual dispute”).
Similarly unavailing is the District Council’s challenge to the link drawn between the request system and the high incidence of carpenters “riding the list.” (See Moving Brf.17-18, citing Request System Report at 5-10, 22). The District Council belittles this link as merely “the Government’s contention” (Opp. Br. 18), ignoring the fact that it was an express finding of Mr. Mack. (See, e.g., Request System Report at 5 (“‘company’ carpenters already working on job sites frequently placed their names on the OWL while they were still working . . . and were subsequently requested from the OWL by their employer”)). In the absence of competent evidence by the District Council, this finding, too, is undisputed.
B. The Remedial Measures Proposed by the Government
Are Reasonable and Within the Court’s Discretion to Impose.
In light of the District Council’s flouting of the prior notice requirement and undermining of the job referral rules, the Government has proposed the following remedial measures: (1) a declaratory judgment that the District Council and its president, Peter Thomassen, are in contempt; (2) voiding of the 2001 collective bargaining agreement provisions insofar as they eliminate Rule 5(B) and the documentation requirements imposed by IRO Conboy; and (3) additional relief to remedy the harm resulting from the District Council’s conduct. As set forth in the Government’s moving papers, these measures are a reasonable response to the contempt, and well within the Court’s discretionary authority. (See Moving Br. 22-28).
Plainly, the Government has proven its entitlement to entry of a declaratory judgment that the District Council violated the prior written notice requirement of Consent Decree paragraph 12, and that the request system created through the elimination of Rule 5(B)’s six-month restriction (and the corroboration requirements imposed by the IRO) violates the Decree. The District Council’s argument that changes to job referral rules do not require prior notice to the Government is unavailing. (See supra at 4-11).
In addition, the Court should void the requesting provisions of the 2001 collective bargaining agreements to the extent they broaden contractors’ requesting power beyond the limited authority agreed upon by the parties in Job Referral Rule 5(B) and purport to eliminate the corroboration requirements imposed by the IRO. The District Council cannot, under cover of the collective bargaining process, modify Rule 5(B) or any of the other terms of the Decree, or rescind job referral rule directives imposed by the IRO. (See supra at 7-10).
The District Council’s opposition to the additional relief sought by the Government is
similarly without merit. In its motion papers the Government proposed either of three alternative
remedial measures designed to remedy the harm created by the District Council’s unilateral
modification of the Consent Decree: (a) eliminate contractors’ authority to request carpenters
previously employed by that contractor within the prior six months, by striking Job Referral Rule
5(B); (b) provide that contractor requests “count” against the contractor’s fifty percent of the
50/50 rule, thus ensuring that the Union’s fifty percent are all referrals from the out-of-work list
based on length of unemployment; and (c) provide that a carpenter cannot be requested until he
or she spends a minimum period on the out-of-work list. (Moving Br. 23-27).
All of these
measures address the harm caused by the District Council’s conduct by having the referral system
operate as the Consent Decree had intended – with referral based on length of unemployment as
the general rule. (See Moving Br. 4-6).
In response, the District Council argues that adoption of any of these measures would
require a modification of the Consent Decree, and that the Government has not made the
requisite showing under Rufo. (Opp. Br. 13-18).
Specifically, the Union contends that there
are no changed circumstances warranting a modification. (Id.). This argument should be
rejected for two reasons. First, it assumes, erroneously, that modification under Rufo is the only
basis for fashioning a remedy beyond the four corners of the Consent Decree. As we previously
showed, however, the Court has wide discretion in such matters, independent of the Rufo standard. (See Moving Br. 22-23). Without such discretion, a defendant that itself modified a
consent decree unilaterally, without prior or after-the-fact notification to the plaintiff, would be
able to invoke the Rufo standard as a means of blocking the Court’s efforts to remedy the harm
caused by defendant’s own illicit modification.
Second, in arguing Rufo, the District Council ignores the undisputed facts demonstrating changed circumstances. For example, the District Council asserts that “there is nothing new” about the undermining of the job referral system and the corruptive influence of an unbridled request system. (Id. at 15). But it is undisputed that until the 2001 collective bargaining agreements, the job referral system worked in the way that the parties to the Consent Decree intended. As IRO Conboy found, notwithstanding the “potential for abuse” presented by requesting, the referral system functioned well during the period of his supervision:
[I]t can safely be said, given the high volume of carpenters referred from the out-of-work lists, and the diminishing number of complaints we receive concerning the referral process, that the average rank and file member has greatly benefitted from the implementation of the job referral rules. Prior to the implementation of the rules, local unions were under no obligation to keep an updated out-of-work list or to refer individuals to work from such a list. Favoritism and cronyism were unchecked. Since the adoption of the job referral rules, the vast majority of referrals are made from the out-of-work list, with preference given to members who have been unemployed the longest.
(Fourth Interim Report, March 15, 1996 (Torrance Dec’n Ex. 7) at 7) (emphasis supplied). Not
only were “the vast majority of referrals” made on the basis of length of unemployment, the IRO
found, but complaints about the referral system were “diminishing.” (Id.). In the years that
followed, the IRO never had a reason to amend this finding. (See Torrance Dec’n Exs. 8, 9, and
10; Eleventh Interim Report (Scarvalone Dec’n Ex. 43)). Thus, while he may have implicitly
recognized that requesting, if unchecked, would permit the contractor to hand-select 100% of the
carpenter workforce at the job site (see Opp. Br. 16, citing Fourth Interim Report at 5), the IRO
would have reasonably determined that the six-month restriction imposed by Job Referral Rule
5(B), and the documentation requirements the IRO himself imposed to prevent that limited
requesting power from being abused (see Moving Br. 5-6), enabled the job referral system to
function consistent with the parties’ intent, with referral based on length of unemployment being
the general rule.
The collective bargaining agreements of 2001 altered this landscape. As a result of the elimination of Rule 5(B)’s six-month restriction, requesting stopped being the potential problem noted by IRO Conboy and became the actual problem documented by Walter Mack. It was Mr. Mack, the only corruption investigator who studied the current requesting system, who attributed the emergence of this problem to the 2001 collective bargaining agreements. (Report on the 50/50 Rule and Request System (Ex. 10) at 3 n.4 (stating his understanding, based upon the deposition testimony, that requesting had been “dormant for some time” until the 2001 collective bargaining agreements)). The District Council has adduced no competent evidence to dispute this finding (which, in any event, is supported by Mr. Thomassen’s testimony). In the absence of competent evidence to the contrary, Mr. Mack’s finding must be accepted as undisputed.
Finally, the District Council cannot be heard to argue that the evidentiary record is insufficiently clear to warrant the conclusion that requesting became a significant problem only after the 2001 agreements. As noted above, the reports of the IRO and Mr. Mack support this conclusion convincingly. But to the extent there is any uncertainty in the record as to the relative amount of job-site corruption before and after the 2001 collective bargaining agreements, that uncertainty is entirely the fault of the District Council. By not providing the Government with advance notice of its desire to liberalize the request system – and by concealing its elimination of the six-month restriction for four years thereafter – the District Council has made ascertaining the truth more onerous. The District Council should not be permitted to take advantage of its misconduct by arguing “uncertainty.”
C. The District Council’s Remaining Arguments
Are Without Merit.
The Court need not delay ruling upon the contempt motion until after a hearing to permit the views of signatory contractors to be introduced, as the District Council contends (Opp. Br. 18-19). One contracting association, the General Contractors’ Association, has already submitted its views through the declaration of its managing director, Francis X. McArdle. This declaration, however, fails to address any of the factual findings made by the IRO and by Mr. Mack, or to address the harm inflicted upon the Consent Decree’s objectives. (Indeed, the McArdle declaration does not even mention the Decree.) To the extent the District Council would like to convert the Government’s motion into a policy discussion of “the vitality of employers’ rights to request carpenters of their choice” (Opp. Br. 18), that policy discussion is irrelevant to the Decree. Moreover, the time for such a policy discussion was in 2001, when the District Council should have moved under Rufo to modify the Decree instead of acting unilaterally.
With regard to Mr. Thomassen, we agree that it may not be “necessary” to hold him in
contempt in order to remedy the substantive harm created by the District Council’s derogation of
the Consent Decree (Opp. Br. 20). However, an order declaring Mr. Thomassen in contempt is
warranted to coerce future compliance with Decree paragraph 12. The instant motion marks the
second time since Mr. Forde and Mr. Thomassen were elected to run the District Council that the
Government has been constrained to move against the Union for violating the prior written notice
requirement of Decree paragraph 12. The disregard for the Decree by the District Council
executive officers could not be plainer. Moreover, although Mr. Thomassen may have been only
one of twenty-odd members of a union negotiating committee (Opp. Br. 20), it would be naive to
conclude that, as the District Council President, he was merely “one of many equals.”
There
comes a time when a clear signal must be sent to the District Council’s executive officers that
they cannot blithely disregard the Decree or undermine its mandates.
CONCLUSION
For all of the foregoing reasons, and the reasons set forth in the Government’s moving papers, the Court should grant the relief requested by the Government.
Dated: New York, New York
November 7, 2005
Respectfully submitted,
MICHAEL J. GARCIA
United States Attorney for the
Southern District of New York
Attorney for Plaintiff
By: ________________________________
EDWARD SCARVALONE (ES-4880)
SEAN H. LANE (SL-4849)
BENJAMIN H. TORRANCE (BT-1118)
Assistant United States Attorneys
Telephone: (212) 637-2734
Fax: (212) 637-2686