In the Matter of Dennis Martire,Respondent.
Laborers’ International Union of North America
Appellate Officer
97-008-IHO
Argued July 30, 1997
Decided August 18, 1997
This appeal presents three questions: (1) may the prosecuting arm of the Laborers’ International Union of North America ("LIUNA") appeal from a rejection of its charges against a party by the LIUNA Independent Hearing Officer ("IHO"); (2) did the IHO apply the correct standard to the question of whether the respondent obstructed the LIUNA Inspector General’s ("IG") investigation; and (3) did the IHO adequately address the record in finding that the respondent did not misappropriate Union funds for personal use.
For the reasons stated below, the Appellate Officer concludes that the LIUNA General Executive Board ("GEB") Attorney may appeal to the Appellate Officer from an adverse finding by the IHO. As to the obstruction charge, the Appellate Officer finds the record insufficiently developed to answer a crucial question presented by the case, namely, whether the respondent knowingly made a false statement to the LIUNA IG. Accordingly, the Appellate Officer remands the obstruction charge to the IHO for further proceedings in accordance with this opinion. The Appellate Officer further finds the record insufficiently developed to answer a number of questions relevant to the misappropriation charges, and therefore remands to the IHO for further proceedings.
At all times relevant to this appeal, Respondent Dennis Martire was the Assistant Director of the Construction, Maintenance, and Service Trades Division ("CMSTD") at LIUNA International Headquarters in Washington, D.C. (1 IHO Tr. 22–23; 2 IHO Tr. 617).[1] Mr. Martire’s immediate superior was James H. Thomas, the Director of CMSTD. (1 IHO Tr. 18). Mr. Thomas’s superiors, in ascending order of responsibility, were Chief of Staff Terrence O’Sullivan, Vice President Carl Booker, and LIUNA General President Arthur A. Coia. (1 IHO Tr. 22, 48, 336; 2 IHO Tr. 392).
Witnesses before the Independent Hearing Officer provided inconsistent testimony regarding the procedures an employee of the CMST Division must follow to obtain the Union’s approval to travel at Union expense.
LIUNA uses a standard Travel Request Form to track requests for travel by Headquarters officers or employees. In pertinent part, this form includes a directive stating that for LIUNA Headquarters staff, the General President must approve an employee’s request to travel at Union expense. (GEB Ex. 2). The form also provides a blank for department heads to initial requests made by members of the Headquarters staff. (Id.).
It appeared to be the ordinary, although not universal, practice at LIUNA Headquarters for Mr. Thomas, the Director of the CMST Division, to approve travel requests made by CMSTD employees, including Mr. Martire. First, a January 23, 1996 memorandum from Mr. Thomas to CMSTD employees, including Mr. Martire, stated that "All requests for travel approval are to be submitted to my office for initial approval." (GEB Ex. 1). Second, a January 5, 1995 memorandum from Richard Michaels, Mr. Thomas’s predecessor as CMSTD Director, similarly stated with regard to travel requests, "Step 1: Submit travel request to this office for approval." (GEB Ex. 3). Third, in response to a request from Mr. Thomas to draft agenda items for a CMSTD staff meeting, Mr. Martire wrote in a December 26, 1995 e-mail message to Mr. Thomas that "[a]ll travel requests need to be approved by the Director before arrangements are made."[2] (GEB Ex. 10). Fourth, Mr. Thomas signed a travel request form for Mr. Martire to travel to San Diego for a Union conference. (GEB Ex. 5). Finally, Mr. Thomas testified before the IHO that it was "the normal procedure" for CMSTD employees to obtain his approval for travel. (1 IHO Tr. 23).
Other evidence qualified the proposition that Mr. Thomas’s approval was obligatory. First, the "HQ Employees" section of a travel policy attached to a January 22, 1996 memorandum from General President Coia made no mention of any requirement that Division Directors approve travel requests. (GEB Ex. 2). Similarly, a May 24, 1994 memorandum from General President Coia and then-General Secretary-Treasurer James J. Norwood directed that "HQ Employees . . . [make] a request to the General President for permission to travel." (GEB Ex. 4) (emphasis added). Third, the record shows at least one other example of a travel request form for a CMSTD employee for a union conference that was not signed by Mr. Thomas. (GEB Ex. 18). Fourth, every one of Mr. Thomas’s superior officers who testified before the IHO stated that a travel authorization was valid without Mr. Thomas’s approval. Chief of Staff O’Sullivan testified that "the real approval for travel is the General President’s stamp on there." (2 IHO Tr. 402–03). Similarly, Vice President Booker gave the following testimony:
Mr. Vaira: But if you say it goes, as you once said, if I approve this thing, it’s approved?
The Witness: That’s correct.
* * *
Q: It is . . . a valid approval if Mr. Thomas does not have his initials on it but Mr. Coia does in fact approve it?
A: That’s correct.
(1 IHO Tr. 374, 378). Fifth, LIUNA’s Comptroller testified that only the General President’s signature, not the Division Director’s, was needed on a travel request for the request to be valid. (2 IHO Tr. 562–63). Thus, the evidence on the question whether Mr. Thomas’s approval was necessary was in conflict.[3]
LIUNA instructed Mr. Martire to attend a Union conference to be held in San Diego, California from Monday, January 29, through Wednesday, January 31, 1996. Mr. Martire had prior plans to attend his father’s wedding in Pittsburgh, Pennsylvania on Saturday, January 27, 1996. (1 IHO Tr. 196–97). Mr. Martire’s father is the President of LIUNA Local Union 1058 in Pittsburgh. Mr. Martire had arranged to ride from Washington to Pittsburgh with family members who were also attending the wedding. (1 IHO Tr. 54–55; 2 IHO Tr. 594–95).
Mr. Martire arranged to fly to the San Diego conference from Pittsburgh rather than from Washington. On December 21, 1995, Mr. Martire completed a travel request on the standard form to travel from Pittsburgh to San Diego for the conference, then to return from San Diego to Washington, D.C. (GEB Ex. 5). This form was signed by CMSTD Director Thomas and by General President Coia, and its validity is not questioned on this appeal. Mr. Martire apparently obtained the unusually low airfare of $103 for this itinerary.
A few days before the wedding, Mr. Martire says he received word that the relatives with whom he planned to ride to Pittsburgh had become ill and could not attend his father’s wedding. (2 IHO Tr. 594–95).
On Thursday, January 25, 1996, Mr. Martire submitted a second Travel Request Form, which is the subject of the instant appeal. This form stated that Mr. Martire wished to travel on Friday, January 26, 1996 from Washington to Pittsburgh for an "environmental meeting" with Union officials. (GEB Ex. 7). CMSTD Director Thomas was not available to sign the travel request form, because he was attending a separate Union conference in Las Vegas at the time. (1 IHO Tr. 110–11). Accordingly, Mr. Martire approached one of Mr. Thomas’s superiors, Vice President/Assistant General President Carl Booker. Mr. Booker was regularly involved in the travel approval process and had been delegated the authority by the General President to determine whether an expenditure was proper. Mr. Martire told Mr. Booker that he wanted to travel to Pittsburgh to discuss environmental matters with Union officers, en route to his pre-approved travel to San Diego for the Union conference. Mr. Booker testified that Mr. Martire expressly said that he planned to attend his father’s wedding while in Pittsburgh. (1 IHO Tr. 349–51). Mr. Booker told Mr. Martire that he was authorized to make the trip as long as it involved no additional expense to the Union. (1 IHO Tr. 349–51, 354–55). Mr. Booker’s office stamped Mr. Martire’s travel request form with the required approval of the General President. (GEB Ex. 7). Mr. Booker testified that he believed his approval would be the end of the matter, even though the CMSTD Director had not signed the form. (1 IHO Tr. 353 ("if an employee calls the Assistant General President and says can I do that and the answer is yes, the answer’s pretty much going to be yes.")).
Mr. Martire was booked on a flight to Pittsburgh leaving Washington at 6:31 p.m. on Friday, January 26, 1996. Travel records showed that the Union was billed $302 for the ticket from Washington to Pittsburgh. (GEB Ex. 21).
On the morning of January 26th, there was an altercation at LIUNA Headquarters involving Mr. Martire and Frank Johnson, one of his subordinates. Mr. Johnson wore casual clothes to work, in violation of LIUNA’s employee dress code. When Mr. Martire pointed out that Mr. Johnson was dressed inappropriately and handed him a copy of LIUNA’s dress code, Mr. Johnson became enraged, shouted profanity at Mr. Martire, charged at him, and physically forced him out of Mr. Johnson’s office. (2 IHO Tr. 425–26, 435–37).
Kevin Logghe, LIUNA’s Human Resources Manager (2 IHO Tr. 518), and Stephanie McCarthy, LIUNA’s Assistant General Counsel, asked Mr. Martire to provide "a written narrative . . . of his version of the events of that day . . . by the close of business that day, before he left." (2 IHO Tr. 523). Mr. Martire complained that he was scheduled to catch his flight to Pittsburgh that afternoon, but Mr. Logghe and Ms. McCarthy prevailed upon him to complete a summary before he left. (2 IHO Tr. 525). Mr. Logghe thought it important to have Mr. Martire’s statement of what occurred before he left for a long conference, because Mr. Johnson categorically denied that any assault had occurred and suggested that Mr. Martire had an unspecified political motive for saying he had been attacked. (2 IHO Tr. 527–28). Mr. Martire changed his travel arrangements from Washington to Pittsburgh to a flight on Saturday, January 27th, around 12:30 p.m.
Other testimony before the IHO cast doubt on Mr. Martire’s version of the timing and reasons for Mr. Martire’s change of his travel plans from Friday evening to Saturday. A travel agent testified that Mr. Martire changed his reservations at 10:00 a.m. on Friday, January 26. (1 IHO Tr. 267–68). An exhibit from the travel agency corroborated this account. (GEB Ex. 8). Mr. Logghe testified, however, that he did not even learn of the Frank Johnson incident until 11:00 a.m. (2 IHO Tr. 519), and that he did not discuss the matter with Mr. Martire until that afternoon. (2 IHO Tr. 523–25). Mr. Martire himself estimated that the Frank Johnson incident occurred around 10:45 a.m. (2 IHO Tr. 624). This evidence all suggested that Mr. Martire may have changed his flight plans before the Frank Johnson incident ever occurred, rather than afterwards in response to the request that he write up a summary of the incident.
Two officers of LIUNA Local Union 1058 testified that they had short discussions of Union business with Mr. Martire in Pittsburgh on Saturday, January 27, 1996, before and after the wedding of Mr. Martire’s father. Gerald Pecora, the Recording Secretary of Local 1058, testified that he and Mr. Martire discussed hazardous waste jobs and identified ways in which to increase LIUNA workers’ participation in certain types of jobs on which LIUNA workers were not currently used. (1 IHO Tr. 275–78). Mr. Pecora passed Mr. Martire’s suggestions along to his District Council. (1 IHO Tr. 279). Joseph Frydrich, the Secretary-Treasurer of Local 1058, offered similar testimony about meeting with Mr. Martire before the wedding and discussing suggestions to improve LIUNA workers’ participation in hazardous waste cleanup work. (1 IHO Tr. 289–91).
Although the GEB Attorney presented no evidence that these discussions did not occur, there was ample circumstantial evidence that the discussions were, at best, incidental to Mr. Martire’s primary (and preexisting) reason for being in Pittsburgh on January 27th, namely, to attend his father’s wedding. Mr. Martire’s flight from Washington arrived at the Pittsburgh airport around 1:35 p.m. (1 IHO Tr. 266). The wedding of Mr. Martire’s father began some time between 3:30 and 4:00 that afternoon. (1 IHO Tr. 274, 284). Mr. Martire’s conversation with Mr. Pecora took place in the back of the church immediately before the wedding ceremony. (1 IHO Tr. 275–76). Other wedding guests came and went during the conversation (1 IHO Tr. 276), and Mr. Pecora admitted that "[t]here was a lot of activity going around" during the discussion, although he described the conversation as a "pretty straightforward meeting" that "pretty much stayed on the topics." (1 IHO Tr. 280). Mr. Pecora further testified that he had another brief conversation with Mr. Martire at a restaurant during the reception after the wedding. (1 IHO Tr. 274, 284). Mr. Frydrich testified that he talked with Mr. Martire for "10 to 15 minutes"(1 IHO Tr. 290) at the wedding and that this was the only Union-related discussion he and Mr. Martire had that weekend. (1 IHO Tr. 291). These facts raise an issue about whether Mr. Martire’s trip to Pittsburgh was justified by the need to conduct an in-person Union related meeting.
After Mr. Martire’s trip, Mr. Thomas complained that Mr. Martire had gone around him in failing to obtain his approval for the travel from Washington to Pittsburgh. Mr. Thomas’s superiors, sensing a breakdown in working relations between Mr. Thomas and Mr. Martire, attempted to mediate the dispute between the two. High-ranking LIUNA officers, including General President Coia, met with the two men. Although Mr. O’Sullivan believed Mr. Thomas was "overreact[ing]" (2 IHO Tr. 450), he nevertheless suggested that Mr. Martire should reimburse the Union for the cost of the Washington-Pittsburgh ticket as a conciliatory gesture. Although Mr. Martire believed the trip had properly been charged to the Union, on February 20, 1996, he agreed, and later repaid the Union in full. (GEB Ex. 21 (copy of Mr. Martire’s check)).
Investigators from the Office of the LIUNA Inspector General questioned Mr. Martire about his trip to Pittsburgh some weeks after the trip. On March 7, 1996, inspector Thomas C. Kelly interviewed Mr. Martire. At the hearing before the IHO, Mr. Kelly testified, in part, as follows:
Q: And did you specifically ask him who approved that?
A: I did, and his response was that he didn’t know who approved it.
(1 IHO Tr. 246–47). Mr. Kelly later qualified this statement slightly:
Q: What about Denny? Did he remember who approved the trip?
A: No. No. I’m sorry. He didn’t. He said that Terry O’Sullivan may have approved it was his response[.]
The GEB Attorney subsequently charged Mr. Martire with several disciplinary offenses. Two of the charges related to the travel incident. One of these alleged a violation of 29 U.S.C. — 501(c), a federal statute that forbids Union officers or employees from converting Union property to their own personal use. The other charged that Mr. Martire had failed to follow the Union’s internal travel approval procedures. A third charge accused Mr. Martire of obstructing the Inspector General’s investigation in violation of the LIUNA Ethical Practices Code, Barred Conduct section, "barred conduct" definition (d).
The Independent Hearing Officer conducted a hearing on the charges in Washington, D.C. on December 17 and 18, 1996. On April 29, 1997, the IHO issued a decision finding against the GEB Attorney in all pertinent respects on the charges described above. As to the embezzlement charge, the IHO found that Mr. Martire properly received authorization from Mr. Booker to travel from Washington to Pittsburgh on Union business. Regarding Mr. Booker’s qualification that Mr. Martire was authorized to travel if it would not be at additional cost to the Union, the IHO ruled:
Booker’s qualification that the approval hinged on no additional cost to the Union is not dispositive of the issue. Such a restriction is not relevant to the test for a [29 U.S.C.] — 501(c) violation[.] Moreover, Martire did not need authority for a trip that involved no additional cost, especially since he was authorized to depart from Pittsburgh.
(IHO Op. 5). The IHO ruled that the GEB Attorney had not proved that Mr. Martire had the fraudulent intent required for the embezzlement charge.[4] As to the other travel-related charge, the IHO found that Mr. Martire had obtained proper authorization for the travel from Mr. Booker.
As to the obstruction charge, the IHO concluded that Mr. Martire’s statement that he did not know (or could not recall, see supra at 87–88) who had authorized his trip "would not have misled investigators of the skill and experience of the IG’s office from determining the facts." (IHO Op. 17). The IHO further found that "Martire’s vague statements . . . that he did not know who approved his travel request are at best self-serving, not an act of deception." (Id.) (citation omitted). In light of these findings, the IHO concluded that the GEB Attorney had not proved the obstruction charge against Mr. Martire.
The GEB Attorney filed a notice of appeal from the IHO’s finding of no liability on the embezzlement and obstruction charges. The Appellate Officer established a briefing schedule and specifically requested the parties to address the question of the Appellate Officer’s jurisdiction. The Appellate Officer heard oral argument on July 30, 1997 in Washington, D.C. Both sides were represented by counsel.
At the outset, it is necessary to consider whether the Appellate Officer has jurisdiction to hear this appeal. Mr. Martire challenges the authority of the GEB Attorney to appeal from the IHO’s finding of no liability.
Mr. Martire’s argument that the GEB Attorney may not appeal draws analogies from several relevant, but ultimately not binding, authorities. He refers to the settled practice under the consent decrees that have been imposed on other unions as part of litigation with the United States government. Under the consent decrees several other unions have entered into with the United States government, the unions’ prosecuting body may not appeal from a finding of acquittal entered by the unions’ independent hearing officers. See, e.g., United States v. Mason Tenders District Council, 1997 WL 97836, at *14 (S.D.N.Y. 1997) (GEB Ex. F) (Investigations Officer may not appeal from Monitor’s decision not to impose discipline).
The 1995 reforms were adopted to create a complete disciplinary apparatus within LIUNA, staffed by neutral third parties with no bias for or against the Union. See Matter of Amaral, 1997 A.O. 41 (97‑002‑IHO) (discussing background of EPC and EDP). The Union’s creation of an independent disciplinary apparatus forestalled the entry of a consent decree. It showed a commitment by the Union to self-policing of the Union’s conduct and resolution of disciplinary matters within the newly created disciplinary framework. Id. In this respect, the position of the Appellate Officer within LIUNA is sui generis and cannot be directly analogized to the officials who perform similar functions under other union consent decrees. Thus, evidence about the regular practices under the Mason Tenders District Council or Teamsters consent decrees is ultimately unpersuasive on the question here.
Instead, the Appellate Officer turns for guidance to the language of the LIUNA Ethical Practices Code and Ethics and Disciplinary Procedure. The position of the Appellate Officer was created by the Union’s adoption, in 1995, of an Ethical Practices Code and Ethics and Disciplinary Procedure. See LIUNA Ethics and Disciplinary Procedure Section 5 (creating positions of Independent Hearing Officer and Appellate Officer).
The most that can be said is that there is no provision in the EPC or EDP specifically addressing a right to appeal by the GEB Attorney one way or the other.[5] To understand the GEB Attorney’s function, however, requires an examination of the power of another officer, namely, the LIUNA Inspector General ("IG"). This is because the GEB Attorney was always conceived as a temporary surrogate for the IG in the investigation and prosecution of disciplinary matters. Under section 3 of the EDP, the position of GEB Attorney is a temporary office, defined to exist for a maximum of five years following the adoption of the EDP. Upon the expiration of the GEB Attorney’s term, the GEB Attorney’s disciplinary authority passes to the IG. EDP Section 4.
The EDP provides that "[t]he Appellate Officer shall hear all appeals in all matters brought under The Constitution by the LIUNA Inspector General[.]" EDP Section 5. This language suggests that, following the expiration of the GEB Attorney’s five-year term, the IG may appeal from a rejection of its charges by the IHO. The question, then, is whether the other provisions of the EDP, which are silent on the question, limit the GEB Attorney’s appellate powers in a way not contemplated for the IG. The Appellate Officer finds no relevant limiting language in the EDP.
It is also pertinent that charging parties in Local Union Trial Board proceedings who are dissatisfied with the Trial Board’s disposition of their charges may appeal to the Appellate Officer. See LIUNA Uniform Local Union Constitution art. XII, Section 7. Thus, under Mr. Martire’s view, the GEB Attorney would be at a unique disadvantage, suffering a deprivation of the right to appellate review imposed neither on the IG nor on charging parties before Local Union Trial Boards. If the drafters of the EPC and EDP had meant to impose this unique disability on the GEB Attorney, they would have said so explicitly. Their silence supports an inference that the GEB Attorney was to stand in the same position as its successor.
For the foregoing reasons, the Appellate Officer concludes that the GEB Attorney may appeal from the rejection of its charges by the IHO. Cf. Matter of Garcia, 1996 A.O. 105 (96‑010‑IHO) (entertaining cross-appeal by GEB Attorney from IHO’s rejection of one charge).
The GEB Attorney argues that the IHO applied an incorrect legal standard to the question whether Mr. Martire obstructed the IG’s investigation. For the reasons stated below, the Appellate Officer deems it necessary to remand the matter to the IHO for further fact-finding.
On this appeal, the GEB Attorney argues that the IHO improperly departed from the rule established in Matter of Garcia, 1996 A.O. 105 (96‑010‑IHO), that Union members may be punished for obstructing an IG investigation even if their attempts at obstruction are unsuccessful. The GEB Attorney argues that a passage in the IHO’s opinion—which states that Mr. Martire’s statements to Mr. Kelly "would not have misled investigators of the skill and experience of the IG’s office from determining the facts" (IHO Op. 17)—contravenes the Garcia rule that unsuccessful attempts at obstruction are as improper as successful ones.
If the IHO meant by his ruling that the GEB Attorney must prove some impact on the investigation from Mr. Martire’s statement, the Appellate Officer believes that would be a misreading of Garcia. Plainly, to constitute an obstruction, the GEB Attorney need only show that the accused’s "conduct must be such . . . that its natural and probable effect would be the interference with the due administration of justice." United States v. Barfield, 999 F.2d 1520, 1523 (11th Cir. 1993) (emphasis added).[6] The IHO must clarify whether Mr. Martire engaged in obstruction of the IG investigation under the Garcia standard.
Furthermore, the Appellate Officer is persuaded that the federal obstruction statutes, and their accompanying jurisprudence, do not perfectly define the offense of obstruction under the LIUNA Ethical Practices Code, Barred Conduct section. The EDP states that barred conduct includes: "(d) obstructing or interfering with the LIUNA Inspector General . . . ." (emphasis added). Because one of Mr. Martire’s statements might be actionable under the EPC even if it would not have been under the 18 U.S.C. Section 1503 standard, and because the record is inadequately developed for the Appellate Officer to rule definitively on the question, a remand to the IHO is necessary.
LIUNA is a voluntary organization, and its members may agree to hold themselves to a standard of conduct higher than what would obtain under federal law. See Garcia, 1996 A.O. at 118–19. Thus, LIUNA members facing investigation by the IHO start in a significantly different position from federal criminal suspects under investigation by law enforcement. Criminal suspects have a right against compelled self-incrimination, for example, but LIUNA members do not. Compare U.S. Const. amd. V with LIUNA Ethics and Disciplinary Procedure Section 5(h) ("If any person refuses to testify or to provide evidence . . . on the basis of his privilege against self-incrimination . . . discipline may be imposed . . . on such person for that reason alone[.]"). From such principles, and from the Union’s status as a voluntary organization with no power to impose criminal sanctions, it may be seen that LIUNA members have far less right to decline cooperation with their Inspector General than the U.S. Constitution would grant a similarly situated criminal suspect.
The Appellate Officer believes that LIUNA members the IG questions have an obligation to answer fully and truthfully. The knowing defiance of this obligation should subject the offender to discipline even if a comparably situated criminal suspect would have been privileged to refuse to answer the question entirely.[7] Thus, the Appellate Officer holds that a union member who knowingly[8] makes a material false statement to the IG commits an offense under the LIUNA Ethical Practices Code, Barred Conduct section, and may be subject to discipline.
Because the IHO did not apply this standard to the obstruction inquiry, it is not clear from the record whether Mr. Martire’s statement to the IG that he did not know (or could not recall) who approved his travel arrangements was knowingly false when made. If the IHO finds that at the time Mr. Martire made this statement to the IG he in fact recalled who had approved his travel, such conduct would be sufficient to impose discipline. The IHO is free to make his own determination of whether the current record is sufficient or whether an additional hearing is necessary.
The Appellate Officer also concludes that the record is insufficiently developed to permit a final decision on the question whether Mr. Martire misappropriated Union funds to his personal use as charged in Counts I and II. Essentially, the Appellate Officer concludes that the IHO has not sufficiently inquired into the extent of Mr. Booker’s approval for Mr. Martire’s travel. Additional findings by the IHO will facilitate review of this issue.
Mr. Booker did not give Mr. Martire carte blanche to travel to Pittsburgh. Rather, in his testimony before the IHO, Mr. Booker twice stated that Mr. Martire was authorized to travel only if it would involve no greater expense to the Union.[9] The undisputed evidence showed, however, that the Union was billed $302 for Mr. Martire’s one-way ticket from Washington to Pittsburgh. (GEB Ex. 21). On its face, this evidence raises the question whether Mr. Martire’s travel was within the extent of the authorization given him by Mr. Booker.
The IHO resolved this issue by stating that "Booker’s qualification that the approval hinged on no additional cost to the Union is not dispositive of the issue. Such a restriction is not relevant to the test for a [29 U.S.C.] Section 501(c) violation[.]" (IHO Op. 5). The Appellate Officer disagrees. If the Union places a limit on the extent of its authorization for an employee’s expenditure of funds, the question whether the employee knowingly violated that limitation is highly relevant to whether the employee possessed the mental state required for a violation of section 501(c). Whether Mr. Martire knowingly ignored a restriction on the authorization Mr. Booker gave him would also appear to be directly relevant to the question presented under Charge II, which charged only a violation of LIUNA’s internal procedures and does not require that all the elements of 29 U.S.C. Section 501(c) be proved.
The IHO did not make an explicit finding as to what Mr. Booker meant by the qualification that Mr. Martire’s travel should involve no additional cost to the union. The IHO similarly made no finding as to how Mr. Martire understood the directive and whether he complied by it. On remand, the IHO should address these issues.
The IHO found that Mr. Martire disclosed all the relevant facts to the relevant officials in the LIUNA hierarchy and that those officials nevertheless approved his travel request. (IHO Op. 13–14). A review of Mr. Booker’s testimony, however, does not show that he approved the trip that Mr. Martire ultimately took and the relatively brief meeting that Mr. Martire held with local union officials in Pittsburgh. It is highly possible that, when Mr. Martire told Mr. Booker he wanted to travel to Pittsburgh for an environmental meeting, Mr. Booker thought that the meeting would last far longer and occur in much more businesslike surroundings.
The record shows that Mr. Martire was originally scheduled to ?y from Washington to Pittsburgh the evening of Friday, January 26, 1996, departing from Washington around 6:30 p.m. This schedule would have permitted Mr. Martire to conduct a thorough meeting, or series of meetings, with Local 1058 officials that evening, or the following morning or early afternoon before the start of his father’s wedding.
When Mr. Martire changed his plans some time on Friday, January 26, however, he traveled to Pittsburgh on a flight that arrived at the Pittsburgh airport only about two hours before the wedding was scheduled to begin. Mr. Martire’s flight left Washington around 12:30 p.m. on Saturday, January 27, 1996. Given the great volume of flights between Washington and Pittsburgh, however, it seems highly likely that Mr. Martire could have taken a flight either later in the day on Friday or a much earlier flight Saturday morning and arrived in Pittsburgh in time to conduct a much more substantial business meeting. The record contains no indication or explanation of why he did not do so.
Furthermore, the timing of Mr. Martire’s changes to his travel itinerary also raise questions as to whether he intended to conduct a bona fide business meeting in Pittsburgh. There was evidence that Mr. Martire changed his travel plans at 10:00 a.m. on Friday, January 26th. The IHO did not reconcile this evidence with the testimony of Mr. Logghe that he did not ask Mr. Martire to remain in town to complete a report on the Frank Johnson incident until some time that afternoon. If Mr. Martire changed his travel plans before being asked to by Mr. Logghe and Ms. McCarthy, it would call into doubt whether his explanation for the change in his travel plans was genuine. This would, in turn, raise questions as to whether Mr. Martire ever intended to conduct a bona fide business meeting in Pittsburgh. The IHO should address these questions on remand, again with a view toward determining whether Mr. Martire complied with the specific travel authorization given him by the Union.
Of course, Mr. Booker only had the power to give approval for Mr. Martire to travel to Pittsburgh on union funds for a legitimate and bona fide union purpose. The expenditure of union funds for Mr. Martire to travel to Pittsburgh for his own personal reasons would not be appropriate. Although only Mr. Booker can say, it seems quite unlikely that Mr. Booker would have approved Mr. Martire’s travel if there had been no family wedding and Mr. Booker was informed that Mr. Martire intended to meet the local officials for only a matter of minutes in a purely social setting. The record is not clear on what Mr. Booker knew about the nature, duration and extent of Mr. Martire’s planned meetings with the local union officials, and whether Mr. Booker would have approved the trip as it was ultimately taken. Further fact-finding on this issue is necessary.
For the reasons stated, the Appellate Officer concludes that this appeal is properly before him for resolution. As to the obstruction charge, the Appellate Officer remands to the IHO for findings on the questions whether Mr. Martire knowingly made a false statement to the Inspector General and whether under Garcia Mr. Martire’s statement constituted obstruction of the IG investigation. As to the misappropriation charges, the Appellate Officer finds the record insufficiently developed to answer several relevant questions. The matter is, accordingly, remanded to the Independent Hearing Officer for further proceedings in conformity with this opinion.
W. Neil Eggleston
LIUNA Appellate Officer
[1] The Transcript of Proceedings Before the Independent Hearing Officer will be referenced herein by volume number, the notation "IHO Tr.", and page number. References to the argument before the Appellate Officer will be cited as "AO Tr."
[2] Mr. Martire testified that he included this language at Mr. Thomas’s request. (2 IHO Tr. 638).
[3] Nothing in the record suggests that LIUNA had any written policy or regular practice as to how travel requests should be handled when the CMSTD Director was out of the office and unavailable to issue approvals. No witness testified what steps, if any, a CMSTD employee was obligated to take to obtain a valid travel authorization when the Director was unavailable.
[4] See generally Brian H. Redmond, Annotation, Validity, Construction, and Application of Section 501(c) of Labor-Management Reporting and Disclosure Act, 29 USCS Section 501(c), Prohibiting Embezzlement of Union Assets, 85 A.L.R. Fed. 803, Sections 7–11 (1987 & Supp. 1996) (collecting cases).
[5] The Appellate Officer finds Mr. Martire’s argument that EDP Section 5(i) covers this dispute unpersuasive. The enumerated subsections of EDP section 5 provide a variety of procedural protections for individuals accused of misconduct, all of them designed to assure the fairness of any disciplinary proceedings. Among these protections is the right to appeal any discipline imposed. The Appellate Officer does not read this enumeration of rights as an exclusive list of the circumstances under which any appeal could be taken.
[6] The Barfield court went on to draw the same distinction as Garcia:
[A] section 1503 offense is complete when one corruptly endeavors to obstruct or impede the due administration of justice; the prosecution need not prove that the due administration of justice was actually obstructed or impeded.
Id. at 1523 (internal quotations omitted).
[7] Cf. In re Panepinto, 97‑10D (IHO July 3, 1997) (LIUNA member’s refusal to be interviewed by IG or deposed by GEB Attorney is "barred conduct" for which the member may be expelled from the Union).
[8] Although the GEB Attorney correctly points out that the obstruction offense defined in the Ethical Practices Code has no express mental state requirement (AO Tr. 29–30), the Appellate Officer believes a knowledge standard is implicit in the nature of a disciplinary offense.
[9] See 1 IHO Tr. 250 ("I did add . . . ‘If there’s no additional cost to the union, I don’t see a problem with that.'"); 1 IHO Tr. 354–55 ("If he had a ticket to go from Washington to Pittsburgh, Pittsburgh to San Diego, that, if it’s the same cost to the union and it’s on a weekend, I didn’t see any harm in that, so I said, yes, it’s okay if you do that.").