OFFICE OF THE INDEPENDENT HEARING OFFICER
In the Matter of |
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DOCKET NO. |
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Joseph P. MANDARINI LOCAL UNION 22 BOSTON, MA |
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99-09D |
ORDER AND MEMORANDUM
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PROCEDURAL HISTORY
This matter comes before the Laborers’ International Union of North America (“LIUNA”) Independent Hearing Officer (“IHO”) pursuant to the LIUNA Constitution and the Ethics and Disciplinary Procedure (“EDP”).
On February 17, 1999, Disciplinary Charges were filed by the LIUNA General Executive Board Attorney (“GEB Attorney”) against Joseph P. Mandarini (“Mandarini”), a member of Local 22. The charges allege Mandarini committed conduct proscribed by the EDP based upon his federal conviction for violation of 18 U.S.C. 1027 (False Statements and Concealment of Facts Regarding ERISA Documents). Pursuant to Section 3 of the EDP, the GEB Attorney has the authority to investigate and prosecute charges “for committing a felony violation under federal or state law.” EDP Section 3.
The IHO held a hearing in Boston, Massachusetts on June 8, 1999.
FINDINGS OF FACT
1. Mandarini has been a member in good standing of Local 22 since 1977.
2. For ten years Mandarini worked for the New England Laborer’s Training Academy as an instructor. There he gained extensive experience in asbestos removal.
3. In November of 1990, Mandarini and his mother, his brother, and his brother-in-law formed a corporation known as MJM Asbestos Abatement, Inc. (“MJM”).
4. MJM was capitalized by loans from members of Mandarini’s family.
5. Mandarini served as MJM’s president and treasurer.
6. MJM entered into collective bargaining agreements (“CBAs”) signed by Mandarini on behalf of MJM with the Massachusetts Laborers District Council, of which Local 22 was one affiliate. MJM employed members of Local 22.
7. Massachusetts Laborers’ Health and Welfare Fund, Massachusetts Laborers’ Annuity Fund, Massachusetts Laborers’ Legal Services Fund, and the New England Laborers’ Training Trust Fund (the “Funds”) were all employee benefit plans within the meaning of Title I of the Employee Retirement Income Security Act (“ERISA”).
8. Pursuant to the CBA’s, MJM was required to make payments to the Funds on the basis of the number of hours worked by MJM’s employees.
9. MJM failed to make the requisite payments and in the spring of 1993, the Funds hired an attorney to collect the delinquencies in MJM’s payments.
10. The attorney determined that MJM had failed to make approximately $120,523 in payments to the Funds.
11. The attorney met with Mandarini in order to determine MJM’s assets.
12. On April 15, 1993, Mandarini presented a document entitled “Accounts Receivable Aging Report” (the “Report”) to the attorney. Although the Report stated that MJM had approximately $11,544 in accounts receivable, Mandarini knew that MJM had additional accounts receivable in excess of $90,000.
13. ERISA requires that participating funds publish and file annual financial reports known as “5500 Reports” with the Secretary of Labor. The Report Mandarini submitted to the Attorney for the Funds was false. The false Report was a document that the Funds were required to keep pursuant to ERISA. The Funds also relied on the Report to substantiate the 5500 Reports.
14. In April of 1993, Mandarini opened a new MJM bank account but did not disclose the new account to the attorney for the Funds.
15. Beginning in April of 1993, more than $90,000 from MJM accounts receivable were(sic was) deposited into the new MJM bank account. Mandarini then wrote checks totaling $45,170 in disbursements from the account to himself and other members of his family.
16. After the business failed, Mandarini went back to work as a laborer and was elected to the position of Sergeant At Arms of Local 22 in the latter part of 1993.
17. In or about May of 1997, Mandarini became a Field Representative for Local 22.
18. During this time, Mandarini’s brother Lou also served as a Field Representative of Local 22.
19. Currently, Mandarini’s brother serves as the Business Manager of Local 22.
20. Mandarini’s brother took over the position of Business Manager approximately one year ago when Mandarini’s father stepped down as Business Manager.
21. In 1998, the United States Attorney for the District of Massachusetts filed an information against Mandarini charging him with a violation of 18 U.S.C. 1027. Section 1027 of 18 U.S.C. prohibits making false statements and concealing facts in relation to documents required by ERISA to be submitted to relevant union funds. Persons who make such false statements or conceal such facts on the required documents may be fined or “imprisoned not more than five years, or both.” 18 U.S.C. Section 1027.
22. Prior to his guilty plea, Mandarini stepped down from his position as a Field Representative and has been working as a laborer since that time.
23. On May 4, 1998, Mandarini plead guilty a violation of 18 U.S.C. Section 1027 before U.S. District Judge Richard G. Stearns of the District of Massachusetts.
24. On July 6, 1998, Mandarini was sentenced to a four-month term of imprisonment.
25. At the time of his sentencing, Mandarini voluntarily agreed to a one-year ban from holding office with or being employed by LIUNA Local 22.
26. The EDP states:
The GEB Attorney shall have the authority to investigate and prosecute charges (or otherwise impose discipline, as provided for by the Constitution) against any officer, agent, representative, employee, or member of the Union for committing a felony conviction under federal or state law; for violating any federal or state law relating to the affairs of a labor organization or employee benefit or pension plan; or, for violating the Constitution, the Ethical Practices Code, or any other disciplinary rule, regulation, practice, or procedure adopted by the General Executive Board.
EDP, Section 3: The GEB Attorney.
27. The GEB Attorney charged Mandarini as follows:
On or about April 15, 1993, in a document required by Title I of ERISA to be kept as part of the records of the Massachusetts Laborers’ Funds employee benefit plans, JOSEPH P. MANDARINI knowingly made and caused to be made false statements, and concealed facts required by ERISA to be disclosed which were necessary to verify and explain Form 5500 of the Funds, in violation of Title 18, United States Code, Section 1027, by presenting to a collection agent, which represented that the accounts receivable for MJM amounted to $11,544.82, more or less, when he knew that MJM had additional accounts receivable in excess of $90,000.
28. Mandarini cannot contest the validity of his guilty plea or the facts underlying his guilty plea. See In the Matter of Rocco J. Napoli and Thomas J. Fallacara, 96-65D, Sept. 25, 1997.
29. The IHO finds that the GEB Attorney has proven that Mandarini committed the charge by a preponderance of the evidence.
30. The IHO finds that Mandarini is subject to discipline under the EDP because Mandarini’s offense is not only a federal felony but also a violation of a federal law relating to the affairs of a labor union and employee benefit plans. See EDP at Section 3.
CONCLUSIONS
1.
Mandarini’s
guilty plea proves the allegations of the charge in this matter.
2. Mandarini’s conduct directly and indirectly affected the affairs and integrity of Local 22.
3. Mandarini violated his obligations and duties as member of LIUNA and as a member of Local 22.
4. The fact that the monies have been repaid and that Mandarini had been punished by a court of law does not preclude the union from imposing its own discipline.
DECISION
The GEB Attorney has proven the charges by a preponderance of the evidence.
PENALTY
The IHO has the power to impose an internal employment restriction on a union member for a criminal conviction, notwithstanding a ruling a by a court granting a shorter restriction. See In the Matter of Beck, 98-056 IHO. The GEB Attorney argues that Mandarini should be barred from holding employment or office longer than his one-year voluntary suspension.
Title 29 U.S.C. 504(a) lists certain felonies, the conviction for which will require a 13-year bar from union employment. The provisions of 29 U.S.C. 504(a) are not triggered by Mandarini’s conviction. Title 29 U.S.C. 1111 prohibits a person who misuses his position of employment with a pension or benefit fund from being employed by a pension or benefit fund for 13 years. Title 29 U.S.C. 1111 may apply prohibit Mandarini from being employed by or serving as an officer or trustee of a fund, but does not prohibit his employment by a labor union.
The GEB Attorney argues that there is an obvious loophole in the law, and that the general overall intent of congress, as gleaned from 29 U.S.C. IIII, is that persons such as Mandarini who took part in making pension benefits should by banned from union employment.
The IHO will not attempt to read congressional intent into something Congress did not enact. Title 29 U.S.C. Section 504(a) and Title 29 U.S.C. Section 1111 are of little help in this matter.
The more realistic approach is a question of pure internal union discipline. Should Mandarini be prohibited from further union employment for an additional period of time.
Mandarini’s Act Affected The Union
Although Mandarini was acting as an independent contractor at the time of his offense, he was still a card carrying union member. He was well aware that union pension funds survive only by regular employer contributions. Unions often employ individuals to pursue employers who fail to make payments. Mandarini’s attorney contends that the debt to the Funds could have been discharged in bankruptcy. The IHO will give little weight to this argument. Bankruptcy requires a full disclosure to all parties and Mandarini’s relatives would have had to share the revenues with other creditors.
Should This Conviction Ban A Member From LIUNA Employment
Fitness to maintain union employment should require a commitment to the labor movement, and its ideals. Sadly, a great many persons who join the labor movement with high ideals are sidetracked by greed and a desire for personal gain.
One cannot carry a union card, and avoid paying over pension funds, (probably the most important benefit to a union member) and then suddenly appear on the union payroll enforcing the union’s jurisdiction and collecting union dues. The appearance of this act alone would be discouraging to LIUNA members who are struggling to be hired from the out-of-work list. This does not mean an individual should not be given a chance to redeem himself after a criminal conviction. Mandarini certainly may work at the calling.
Although the IHO finds nothing improper with members of a family working in the labor movement, Mandarini’s family connections here foretell a path from employment to elected office in the near future. The IHO notes that prior to his voluntary withdrawal from his position as a Field Representative, Mandarini had been appointed Sergeant At Arms. While Sergeant At Arms is a minor office, it is a stepping-stone to a higher office.
The LIUNA reform movement is not directed solely at eradicating the infiltration of the LCN. It is about union integrity. The conduct at issue in this matter warrants more than a year’s suspension.
Based upon the foregoing, Mandarini is barred from being employed by a LIUNA entity, including employment by a LIUNA fund, for three years, with credit been given for the time he has voluntary withdrawn from union employment. This bar does not affect the possible application of 29 U.S.C. 1111.
Mandarini is barred from holding elected or appointed LIUNA office for five years, including any LIUNA related fund from the final date of this Order and Memorandum.
Mandarini has a right to appeal this Order to the LIUNA Appellate Officer by filing a Notice of Appeal with the Appellate Officer within 10 days of the date of this Order.
The Appellate Officer is:
W. Neil Eggleston, Appellate Officer
1299 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 783-0800
(202) 383-6610 (fax)
This Order does not take effect until 10 days after the date of this Order, and if appealed, upon the decision of the Appellate Officer.
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s/Peter
F. Vaira
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PETER F. VAIRA |
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INDEPENDENT |
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Date: July 14, 1999 |
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Robert L. Ullmann, Esquire Thomas E. Peisch, Esquire Local Union 22 |
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