In the Matter of John S. Tomasello and Bruce Curvin,

Appellants.

Laborers’ International Union of North America
Appellate Officer

97-021-IHO
97-022-IHO

 

Argued January 14, 1998

Decided February 12, 1998

John S. Tomasello and Bruce Curvin appeal from a decision of the Independent Hearing Officer (“IHO”) for the Laborers’ International Union of North America (“LIUNA”). The LIUNA IHO expelled Mr. Tomasello and Mr. Curvin from LIUNA, and fined them $3,000 each, because they led the organized resistance to the implementation of a supervision agreement signed by the elected officers of LIUNA Local 210 in Buffalo, New York. Mr. Tomasello and Mr. Curvin physically occupied Local 210’s premises after they were supposed to have been turned over to a duly appointed Supervisor. They, and others acting at their direction, prevented the Supervisor from gaining access to the union hall. The appellants do not deny engaging in the conduct with which they were charged, but assert that it was necessary to defend the democratic rights of Local 210’s members, and was a protected form of free speech. For the reasons stated below, the Appellate Officer rejects these arguments and upholds the decisions of the IHO. 

                   I.                        Background and Prior Proceedings

A.                  The Investigation and Settlement

The LIUNA GEB Attorney filed a complaint in December 1995 alleging that Local 210 in Buffalo, New York, was dominated by elements of organized crime. The GEB Attorney’s complaint sought to impose a trusteeship on Local 210. Before the LIUNA IHO could hear testimony in the trusteeship proceeding, however, Local 210’s officers reached a settlement agreement with the GEB Attorney. See generally Matter of LIUNA Local 210, 1996 A.O. 177, 178 (96-015T-IHO). Under the terms of the settlement, Local 210’s officers agreed to surrender their positions and turn the operation of Local 210 over to a Supervisor. (See IHO Opinion (“Op.”) 2). The settlement agreement expressly provided that it was binding on Local 210 and its officers and members, and that anyone violating the agreement could be charged with obstructing the GEB Attorney, a violation of the “Barred Conduct” provisions of the LIUNA Ethical Practices Code (“EPC”). 

B.                 Organized Opposition to the Settlement

Under the settlement agreement entered into by Local 210, Local 210’s former officers were to turn over control of the Local to a GEB-appointed Supervisor on March 31, 1996. As that date approached, however, Mr. Tomasello and Mr. Curvin, among others, worked to build opposition to the settlement agreement within the membership of Local 210. Mr. Tomasello discussed with other members of Local 210 the possibility of bringing a lawsuit against LIUNA to challenge the settlement. (See Tomasello Deposition (“Dep.”) 19, 22).^[1] Mr. Tomasello and the others who organized opposition to the settlement claimed to be upset that the members of Local 210 had not been allowed to vote on the settlement agreement that the Local’s officers had signed.

On March 29, 1996, Local 210 held a previously scheduled meeting to nominate three Local 210 members to serve on a Membership Advisory Board. This Board, which was created under the settlement agreement, was to consist of five members, two of whom would be appointed by the Supervisor. After the nomination meeting, some of the charged parties in this case publicly declared their intention to file suit against LIUNA, supposedly on behalf of the Local 210 rank and file, seeking a temporary restraining order or preliminary injunction to prevent the settlement agreement from taking effect.  

Also after the meeting, Mr. Tomasello and some of the other charged parties formed a so-called “Membership Committee” for the express purpose of resisting the supervision to which the Local’s officers had agreed.  

On March 30, 1996, the self-appointed leaders of the “Membership Committee” met at the union hall. There, Robert Boreanaz, an attorney for Local 210, drafted a petition for the “Membership Committee” expressing the membership’s opposition to the settlement agreement on the grounds that they had not been allowed to vote on it.  During that day and the next, Mr. Tomasello solicited Local 210 members to sign the petition to show their opposition to the settlement agreement. Hundreds of signatures appear on the petitions, although the actual number of members who signed the document is lower because many signed multiple times. (See GEB Ex. 9). 

C.                 The Events of March 31, 1996 and Afterwards

March 31, 1996 was scheduled to be the day when Local 210 Supervisor Gabriel Rosetti assumed control of the operation of the Local. On that date, the Local’s outgoing officers were to turn over to Mr. Rosetti their keys to the union hall. Some time before they could do so, however, Mr. Tomasello confiscated the outgoing officers’ keys and hid them in his home. (See IHO Op. 4).  

When Mr. Rosetti and two of his associates arrived at the union hall for the scheduled turnover, they were met by an angry crowd led by Mr. Tomasello. Between 100 and 200 members of Local 210 blocked Mr. Rosetti’s access to the union hall and shouted at him and his associates. These events were video-recorded by local broadcast media. Mr. Tomasello and the other members present blocked the entrance to the union hall and would not stand aside to allow Mr. Rosetti to enter. (See GEB Ex. 36).  

Reasonably concerned for his own well-being and that of his assistants, Mr. Rosetti departed the scene. Mr. Tomasello and several of the other Local 210 members present proceeded to enter the union hall. Later that day, the LIUNA GEB Attorney informed Mr. Tomasello by telephone that interfering with the supervisor could subject him to civil and criminal penalties. Mr. Tomasello, thus put on notice of the risks inherent in his conduct, told the GEB Attorney that he would nevertheless continue to defy the supervisor and would not allow Mr. Rosetti access to to the union hall.  

For the next three weeks, Mr. Tomasello, Mr. Curvin, and a number of other members of Local 210 physically occupied the union hall and attempted to conduct union business. As the IHO described it:  

28.  From April 1st, 1996, through the following three weeks, during business hours, Tomasello and his supporters maintained a physical presence inside the hall and union office and attempted to run the day to day operations of the union hall, including dispatching workers.  The protestors invited the news media into the union offices, and Tomasello and others were filmed sitting at computers, appearing to run the office.

29.  Tomasello admitted that he and his supporters made use of the resources of Local 210, including the phones, fax, computer, postage meter, mailing labels and photocopying supplies.  Tomasello admitted sending members to job sites without knowing the hiring procedures.  He also admitted that he answered grievances without any knowledge of collective bargaining agreements.  Tomasello testified that he was unable and unwilling to make use of any of the bank accounts of Local 210 and that he was not bonded and did not know when any of the bills were due.

(IHO Op. 6–7). In short, although they held no elected office in the union and had not been appointed to, or trained in, any position of authority, Mr. Tomasello, Mr. Curvin, and the other insurgents declared themselves the rulers of the Local, and physically obstructed the efforts of the lawfully appointed Supervisor to implement the settlement agreement signed by the Local’s officers.

When it came to actually operating the Local Union, however, the insurgents’ skill never matched their audacity. As the IHO described it:

32.  The Supervisor testified that those who were in control of Local 210 “did very little to protect the interests of Local 210.”  When the Supervisor finally was able to assume control on April 22, 1996, he found several containers of mail, including dues payments and contractor’s checks, unopened and unanswered.  The Supervisor also learned that several members had been assigned to job sites without proper authorization cards, and that “persons were dispatched to work for contractors who were not signatories to any collective bargaining agreement.”  Further, “a variety of records were lost in the computer databanks, including members’ names and contractors’ identities.” See GEB Attorney Exhibit 39, paragraphs 6–8.

 (IHO Op. 7). Thus, although the insurgents claimed to be defending the members of Local 210, the evidence strongly shows that the insurgency led by Mr. Tomasello and Mr. Curvin in fact did the members substantial harm.

D.                The Supervisorship Litigation and Termination of the Insurgency

On April 3, 1996, LIUNA and the insurgents sued each other in the United States District Court for the Western District of New York. Each side sought a temporary restraining order and preliminary injunction against the other—LIUNA seeking to eject the insurgents from the Local’s offices, and the insurgents attempting to nullify the settlement agreement. The lawsuits were consolidated and assigned to U.S. District Judge Richard J. Arcara.^[2]

Judge Arcara held a series of hearings during the following weeks. Mr. Tomasello and several of the other insurgents testified under oath about their takeover of the Local’s offices. Mr. Tomasello testified on direct that “I took it upon myself along with a couple of other members to run the daily runnings of the union.” (Tomasello TRO Hearing Testimony 847, GEB Deposition Excerpts Ex. 44). He went on to describe the insurgents’ day-to-day operation of the union hall with some particularity. (See id. at 847–51).^[3]

On April 3, 1996, the insurgents held a membership meeting at the union hall. Mr. Tomasello and the other leaders of the insurgency, with no authority to do so, used the Local’s resources and funds to print and mail a notice to the membership announcing the meeting. At this meeting, the members in attendance conducted a vote on the settlement agreement (which did not provide for such a membership referendum). Those present voted to “reject” the settlement agreement.  

As the litigation dragged on and the stalemate at the union hall continued, however, support for the insurgency among Local 210’s members eroded rapidly. Not once, but twice—first on April 13, 1996, then again two days later—Local 210’s members voted to terminate the insurgency and accept the settlement agreement. Mr. Tomasello, Mr. Curvin, and the other self-appointed leaders of the insurgency did not accept the members’ votes, however. They steadfastly refused to turn control of the union hall over to Mr. Rosetti. Mr. Tomasello and Mr. Curvin’s insistence on continuing the insurgency over the membership’s opposition provoked a large number of resignations from the “Membership Committee” they had formed. (See GEB Ex. 22 (collecting “resignation forms” submitted by former Membership Committee members)).  

The insurgency and takeover of the union hall finally ended on April 22, 1996, when Judge Arcara ruled in LIUNA’s favor and entered a temporary restraining order against the protestors. (See GEB Ex. 28). This temporary restraining order later ripened into a permanent injunction ending the takeover of Local 210. (See GEB Ex. 29). Supervisor Rosetti was finally able to gain access to the union hall on that date and discovered the degree of mismanagement of the Local’s resources, described above, that had been committed by Mr. Tomasello and Mr. Curvin. See supra at 17.

E.                 The Charges and Prior Proceedings

The LIUNA GEB Attorney on August 6, 1997 brought charges against several individuals who allegedly orchestrated the insurgency and the occupation of Local 210’s offices. Of the charged parties, only Mr. Tomasello and Mr. Curvin’s cases remain before the Appellate Officer for review.^[4]

The LIUNA IHO held a hearing in Buffalo, New York on September 30, 1997. Mr. Tomasello and Mr. Curvin appeared at the hearing and gave testimony. 

On November 12, 1997, the IHO issued a decision resolving the disciplinary charges against the remaining charged parties. The IHO found Mr. Tomasello and Mr. Curvin guilty as charged in Charges I (obstructing the GEB Attorney, in violation of the “Barred Conduct” provisions of the EPC), III (interfering with Local 210’s performance of its lawful and contractual obligations, in violation of the LIUNA International Constitution Art. XVI, § 1, and the LIUNA Uniform Local Union Constitution, Art. III, § 3(c)), IV (interfering with the proper conduct of business at Local 210, in violation of Art. XVI, § 1 of the International Constitution and Art. III, § 3(d) of the Uniform Local Union Constitution), V (refusing to cooperate with the appointed supervisor, in violation of International Constitution Art. IX, § 7 and Uniform Local Union Constitution Art. III, § 3(b)), and VI (undermining the Union as an institution and acting in disregard of members’ democratic rights, in violation of the EPC Democratic Practices chapter, § 1). The IHO ruled that Charge II—which accused the charged parties of extortion under 18 U.S.C. § 1951(b), an indictable offense for which the GEB Attorney is authorized to seek discipline under § 3 of the LIUNA Ethics and Disciplinary Procedure—had not been proved. The IHO fined Mr. Tomasello and Mr. Curvin $3,000 each and expelled them from the Union.  

Mr. Tomasello and Mr. Curvin both appealed to the LIUNA Appellate Officer. The GEB Attorney did not cross-appeal. The Appellate Officer heard argument in Buffalo, New York on January 14, 1998. Counsel for the GEB Attorney appeared. Mr. Tomasello and Mr. Curvin both appeared in person and presented argument, but were not represented by counsel.  

                II.                        Discussion

With the minor exceptions discussed below, the appellants do not dispute the IHO’s findings of fact. Thus, the details of the settlement agreement, the takeover of the union hall, the ensuing federal litigation, and the ultimate collapse of the insurgency are essentially undisputed between the parties. The appellants’ appeal instead rests on two legal defenses they say the IHO overlooked: that their conduct was free expression for which they may not be disciplined, and that their alleged higher motive to protect the members’ democratic rights to vote on the settlement agreement prevents any discipline from being imposed even if they are found to have committed the acts charged.  

A.                 Disputed Matters

At the outset, the Appellate Officer highlights the few areas in which the appellants disagree with the IHO’s thorough recitation of the factual background of the case. Although the facts are mostly undisputed, the appellants do take issue with some of the characterizations of testimony by the IHO and the GEB Attorney. Ultimately, the differences between appellants’ and the IHO’s versions may be immaterial, but the Appellate Officer addresses the more significant disputes in the interest of clarity.  

1.                  Whether the Protestors Blocked the Supervisor’s Access to the Hall

At the appellate hearing, Mr. Tomasello and Mr. Curvin disputed the IHO’s finding that they and the other protestors physically prevented Mr. Rosetti from entering the union hall on March 31, 1996. (See, e.g., Transcript of Hearing Before the LIUNA Appellate Officer (“AO Tr.”) 11–12, 13 (“I probably would have at least sat in front of the doors. I certainly wouldn’t have physically tried to prevent you from coming in.”), 14, 24 (“If the man [Mr. Rosetti] actually wanted to get in the building, I believe he could have.”), 25, 33, 55 (“we never physically stopped anybody”)).  

The Appellate Officer generally reviews the IHO’s findings of fact deferentially. See Matter of Gutierrez, 1997 A.O. 139, 160–61 (97-015-IHO). A factual determination by the IHO “will be upheld if ‘supported by “substantial evidence,” that is, such relevant evidence as reasonable minds might accept as adequate to support a conclusion.’ ” Id. at 161 (citations omitted). In this case, the Appellate Officer finds the record evidence more than adequate to support the IHO’s findings that Mr. Tomasello and Mr. Curvin, along with others acting at their direction, physically blocked Mr. Rosetti and his associates from entering the union hall on March 31, 1996. (See IHO Op. 3–5).  

The result would be the same even if the Appellate Officer applied a more searching standard of review. Fundamentally, Mr. Tomasello and Mr. Curvin badly misapprehend the Supervisor’s powers and responsibilities. Mr. Rosetti’s charge did not, as the appellants would have it, authorize him to enter the building only if he could reach it by climbing over, or shoving through, the crowd of union members organized by Mr. Tomasello and Mr. Curvin. No such exertions were required of the Supervisor. Rather, he had an absolute right to immediate and unfettered access to the union hall on March 31, 1996. It was Mr. Tomasello and Mr. Curvin, and those they led, who were obliged to stand aside.  

2.                  Whether the Appellants Intended to Obstruct the Supervisor

Before the Appellate Officer, Mr. Tomasello and Mr. Curvin also attacked the evidence as insufficient to show that they intended to obstruct the Supervisor, suggesting instead that they merely intended to keep the Local operating pending litigation of the case before Judge Arcara. (See, e.g., AO Tr. 27, 35, 37, 41, 44, 49 (“If anybody of any authority would have walked in there and asked us to leave, we would have left”), 59, 72).  

The Appellate Officer previously has suggested that a knowledge standard is implicit in the offense of obstruction as defined in the EPC.^[5] Ample evidence of improper intent exists here, however. Mr. Luskin’s telephone call to Mr. Tomasello the evening of March 31, 1996 (see supra at 17), standing alone, was sufficient to give Mr. Tomasello actual knowledge that his conduct was wrongful. Both appellants also knew that the membership meeting of April 3, 1996 had been improperly advertised using the Local’s funds and equipment, and was in direct contravention of the Supervisor’s order that no meeting take place. (See AO Tr. 38–40).

Moreover, the justification offered by the appellants here is hollow. The insurgents’ presentation of their case to Judge Arcara did not require them to occupy the union hall; the matter could easily have been litigated even with the Supervisor occupying the premises. Had the insurgents won their case, Judge Arcara would have had a panoply of remedies at his disposal, including rescission of the settlement agreement and eviction of the Supervisor from the Local’s offices. Rather than abide by the settlement agreement during the pendency of the litigation, however, the appellants willfully defied it and took control of the Local knowing that they had absolutely no right to do so. On these facts, the Appellate Officer concludes that the appellants had the necessary intent to support the imposition of discipline.  

3.                  Whether the Members Had a Right to Occupy the Hall and Use the Local’s Property

The appellants also argued at the appellate hearing that they had a right to occupy the union hall, and to use the Local’s equipment and supplies, because, as members of Local 210, they “owned” the union hall and virtually everything it contained. (See AO Tr. 17–18 (“We own the union hall. It’s ours. Our money and our hard work was put into that union hall. It belongs to us.”), 28, 29 (“It’s like me using the things in my own home. They belong to me.”), 30, 44–45, 57, 62–63, 68).  

The law, however, is to the contrary. It is clear that the union as an institution, and not its members or officers, holds the property interest in the union’s assets.^[6] Indeed, members who treat the union’s property as if it was their own may violate both the LIUNA constitutions and ethical rules and even federal law. See, e.g., Matter of Garcia, 1996 A.O. 105, 106–07 (96-010-IHO); 29 U.S.C. § 501(c). The Appellate Officer cannot agree that the appellants “owned” the Local Union in any sense of the word.

With these preliminary issues resolved, the Appellate Officer turns next to the principal substantive arguments the appellants have advanced.  

B.                 Members’ Democratic Rights

At the appellate hearing in this case, the appellants repeatedly alleged that their democratic rights as members of the union had been violated in the Local’s adoption of the settlement agreement which led to Mr. Rosetti’s appointment as Supervisor. (See, e.g., AO Tr. 16 (“My defense is that our—our rights were violated. We didn’t have—we didn’t have a right to vote[.]”), 18, 19–20 (“my premise was to fight this on the fact that our civil rights were being violated.”), 22, 41, 45, 52 (“All we wanted to do was just to have the right to change our mind.”), 68–69).  

The question whether the supervision agreement was validly adopted is not before the Appellate Officer for review. Rather, the question was authoritatively decided by Judge Arcara in his order permanently enjoining Mr. Tomasello and the other insurgents from continuing their occupation of the union hall: 

The court further finds that plaintiffs have established that the Settlement Agreement entered into on February 22, 1996, between LIUNA and the Executive Board of Local 210 is valid, and that the supervision of Local 210 commenced on March 31, 1996, has been lawfully imposed, and is being lawfully maintained, under the Constitution of LIUNA and under Title III of the Labor Management Reporting and Disclosure Act (“LMRDA”).

Laborers Local 210 v. Tomasello, No. 96-CV-0225, slip op. at 4 (W.D.N.Y. Aug. 30, 1996) (order entering permanent injunction) (GEB Ex. 29).

Even if the question were open to debate, however, the Appellate Officer would have absolutely no hesitation in concluding that no violation of the democratic rights of Local 210’s membership, including Mr. Tomasello and Mr. Curvin, occurred here. 

Although union members’ democratic rights are protected under the LMRDA,^[7] the statute does not, by itself, prescribe which subjects or decisions must be submitted to a vote of the membership. See, e.g., Serpico v. LIUNA, 97 F.3d 995, 998 (7th Cir. 1996) (LMRDA “does not require any particular subject to be put to a referendum; it says only that when voting occurs every union member has equal rights to take part”).^[8] Rather, to determine whether any particular subject must be put to a vote of the membership, or whether it may instead be resolved by officers of a Local or the International Union, the inquiry begins and ends with the relevant provisions of the union constitutions.^[9] In a sense, “the constitutions and by-laws of the union express the terms of the contract which define the privileges secured and the duties assumed by those who become members.” Cleveland Orchestra Comm., 303 F.2d at 230; see also LIUNA Uniform Local Union Constitution Art. III, §§ 1(c), 3(a) and (b) (all LIUNA members agree to uphold the International, District Council, and Local constitutions, and valid rules promulgated by the Union).

The International Union’s authority to impose a trusteeship or supervision over a Local Union, if it deems it appropriate to do so, is expressly provided in its Constitution and confirmed in the Ethics and Disciplinary Procedure (“EDP”). See LIUNA International Union Constitution Art. IX, § 7; LIUNA EDP § 3. These provisions do not require a membership referendum. As a legal matter, that would appear to resolve the appellants’ challenge, under the authorities cited above.  

As a practical matter, the Appellate Officer also notes that the International Union scrupulously respected the democratic rights of Local 210’s members. The International Union took a number of steps it was not legally required to, all of which had the effect of protecting Local 210’s members. 

¨      Rather than acting unilaterally, as the Constitution authorizes in emergency cases, the International Union commenced an orderly proceeding before the IHO for the imposition of a trusteeship.  The IHO scheduled public hearings that would have allowed members to voice their opinions on the necessity for a trusteeship.

¨      Local 210’s elected officers agreed to spare the Local and its members the pain of a protracted trusteeship dispute.  Local 210, through its democratically elected officers, agreed instead to accept a supervision arrangement. 

¨      Members’ interests were to be directly represented through their participation on the Membership Advisory Board, the members of which were to be elected at the March 29, 1996 special meeting of Local 210’s membership.

Given these substantial protections, the Appellate Officer cannot agree with the appellants that the manner in which the settlement agreement was reached impinged on the democratic rights of Local 210’s members. This challenge to the discipline imposed on Mr. Tomasello and Mr. Curvin is, accordingly, rejected.

C.                 Free Expression

Although the question whether Local 210’s officers validly adopted the supervision agreement appears to be settled by the district court’s grant of a permanent injunction in the Local’s favor, the court’s judgment does not, standing alone, answer the question whether the discipline imposed in this case violated the charged parties’ rights to free speech.  

A canvassing of the Appellate Officer’s prior precedents yields no controlling guidance. For example, the Appellate Officer has previously ruled that no discipline may be imposed solely because of a member’s use of profane language at a union meeting—Members of Local Union 300 v. Torres, 1996 A.O. 49 (96-003-TB)—but that “speech” plainly differs, both in degree and in kind, from the conduct underlying the charges here.  

In the Amaral case, the LIUNA IHO imposed discipline on the charged party for, among other things, taking part in a demonstration that blocked traffic outside a Local Union’s offices for a period of several days. The Appellate Officer affirmed the imposition of discipline without finding it necessary to reach the question whether the charged party’s participation in the demonstration was a protected form of free expression. See Matter of Amaral, 1997 A.O. 41 (97-002-IHO). Thus, Amaral provides only minimal guidance on the issue.  

Lacking authoritative precedent, therefore, it is appropriate to review the matter by returning to first principles. Union members’ rights to free expression receive strong protection under federal law. The key statutory provision, as recognized in Torres, is Section 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2). Although it guarantees members the rights to speech and assembly, the statute preserves the power of unions to police conduct that interferes with union business or threatens to harm the union as an institution:  

Every member of a labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.

29 U.S.C. § 411(a)(2); accord LIUNA EPC, Democratic Practices § 1. As the Appellate Officer previously noted, however, “[c]ourts have been careful … in drawing a distinction between speech, which is protected under [§ 411(a)(2)], and disruptive activity, which, if it violates a union rule, is punishable behavior.” Torres, 1996 A.O. at 52. 

In this case, the charged parties led an organized resistance to a valid agreement their own officers had signed, physically blockaded the union hall to prevent the Supervisor from entering, then wrongfully occupied the union hall and conducted with union business at a time when only the Supervisor was authorized to act for Local 210. There can hardly be room for disagreement about where, in the spectrum between protected speech and disruptive activity, such actions lie. Mr. Tomasello and Mr. Curvin’s actions plainly could have harmed—and indeed, did harm—the union as an organization and interfered with the performance of Local 210’s obligations, bringing their actions outside any statutory protection. And no matter how great the protection for union members’ free speech, it is not so great as to authorize organized resistance, including a physical blockade and occupation of the union hall, to a valid agreement between the International Union and one of its Locals. Cf., e.g., Yager v. Carey, 910 F. Supp. 704, 722 (D.D.C. 1995) (no violation of the LMRDA’s free speech protections where “plaintiffs did not merely express disagreement with the policies pursued by defendants, they openly defied those policies.”). Accordingly, the Appellate Officer rejects the appellants’ argument that their free speech rights as LIUNA members forbid the discipline imposed here.  

D.                Other Issues

1.                  Conflict of Interest

Mr. Curvin alleged at the appellate hearing that John M. Curran, who appeared as counsel for the GEB Attorney in this matter, had a conflict of interest that should have precluded him from appearing. (AO Tr. 46–47). Mr. Curvin argued that Mr. Curran could not both represent Local 210 and simultaneously prosecute two of its members. (Id.). Although Mr. Curvin is correct that a conflict of interest, where it exists, disqualifies an attorney from representing adverse parties in a LIUNA disciplinary proceeding,^[10] there is no factual support for Mr. Curvin’s allegation of a conflict here. Mr. Curran has at all times, since the earliest phases of the proceedings that led to the supervision agreement, represented the LIUNA GEB Attorney, which is precisely the capacity in which he participated before the IHO and the Appellate Officer. Accordingly, the Appellate Officer rejects Mr. Curvin’s challenge.

2.                  Completeness and Admissibility of Depositions

Mr. Curvin also complained at the hearing that the deposition excerpts introduced before the IHO by the GEB Attorney were incomplete. He speculated that the omitted portions may have contained exculpatory evidence. (See AO Tr. 47).^[11] The Appellate Officer agrees with the GEB Attorney, however, that it is now far too late for Mr. Curvin to raise this objection. The GEB Attorney designated in advance of the IHO hearing the portions of the depositions on which it intended to rely. The appellants had the opportunity to inspect these portions and to counter-designate their own excerpts if they wished. (See AO Tr. 87–91). They did not do so. The Appellate Officer will not overturn the IHO’s decision based on the unsubstantiated possibility that a “fishing expedition” into the rest of the numerous depositions involved here might turn up evidence marginally favorable to the appellants.

             III.                        Conclusion

For the reasons stated, the Appellate Officer affirms, in their entirety, the decisions of the IHO against Mr. Tomasello and Mr. Curvin.

 

W. Neil Eggleston

LIUNA Appellate Officer