In the Matter of Darryl Smoot & Alfred Dunning v. Executive
Board of Local 423
Laborers' International Union of North America

Independent Hearing Officer

Docket No. 99-06TB

Decided August 3, 1999

Order and Memorandum

Procedural History

This Order and Memorandum addresses trial board charges brought by Darryl Smoot ("Smoot") and Alfred M. Dunning ("Dunning"), members of Laborers' International Union of North America ("LIUNA") Local Union 423 of Columbus, Ohio ("Local 423"), against all members of Local 423's Executive Board ("Executive Board").' The charges were referred to the Independent Hearing Officer ("IHO") for a hearing in lieu of a trial board by General President Arthur A. Coia on January 22, 1999.

By Order dated February 19, 1999, the IHO appointed William Heiman, a member of the Pennsylvania bar and of the IHO's law firm, to act as a Special Hearing Master for the IHO in this matter and conduct an evidentiary hearing. The hearing was held on May 13, 1999 in Columbus, Ohio.

The charges allege that the Executive Board permitted Local 423 member Patrick Murphy ("Murphy") to run for a seat on the Executive Board in the June 1998 election, and that the Executive Board continued Murphy's employment as a field representative notwithstanding that Smoot and Dunning had informed the Executive Board and the Judges of Election ("Judges") that Murphy should be disqualified from running and from further employment. Smoot and Dunning contend that Murphy was convicted of robbery in New York, within the past 13 years, and is prohibited by 29 U.S.C. § 504(a) from holding union office or being employed by Local 423.

Findings of Fact

1. Patrick Murphy was convicted in New York state court for second degree robbery in 1984. He served approximately 18 months in prison and was released in 1986.

1 The original charges filed by Smoot included charges against International Vice President Peter Fosco, International Representative Kenny Cowvan, and International Representative Doc Dougherty. The Independent Hearing Officer severed those individuals from the members of the Executive Board.

504 In the Matter of Smoot & Dunning v. Executive Board of Local 423 1999

2. Title 29 U.S.C. § 504(a) prohibits a person who has been convicted of certain offenses, including robbery, from serving as an employee or an officer of a union for thirteen years following his release from prison.

4. Murphy was appointed as a field representative for Local 423 in 1994 by International Representative Mark Linsky ("Linsky"), while Local 423 was in receivership. He was ineligible to hold this position. Murphy did not tell Linsky of his robbery conviction in New York.

5. Linsky informed the IHO that at the time he appointed Murphy to be a field representative, he was unaware of Murphy's New York robbery conviction

6. Murphy was elected Vice President of Local 423 in June 1995 and reelected in 1998.

7. In 1997, Murphy was charged with assaulting a carpenter and convicted of a misdemeanor in Ohio state court. Smoot attended Murphy's trial in Columbus, Ohio in September 1997.

8. During the trial, Smoot learned from evidence presented in open court that Murphy had been convicted of second degree robbery in New York in 1984, and had served time in prison until sometime in 1986. Smoot concluded that this disqualified Murphy from running in the June 1998 officers' election. Smoot also informed Dunning of Murphy's New York conviction.

9. From January 1998 through the election in June 1998, as will be described below in more detail, Smoot continually told most of the members of the Executive Board of Murphy's felony conviction in New York, including the date of the conviction and the year Murphy was released from prison. Smoot repeatedly told the Board members that Murphy lacked the qualifications to hold office.

10. Both Smoot and Dunning attended the candidate screening meeting conducted by the Judges on May 2, 1998. They informed the Judges of the particulars of Murphy's New York conviction. Smoot asked the Judges to conduct a police background check on Murphy's record. The Judges told Smoot that they would not conduct any investigation because Murphy was already employed by the Local. The Judges refused to disqualify Murphy from running in the election.

11. The Hearing Master found both Smoot and Dunning to be credible witnesses based upon their testimony and demeanor. The IHO adopts these credibility findings.

  505 In the Matter of Smoot & 

12. Murphy attended the candidate-screening meeting in May 1998. He told the Judges that he was convicted of the robbery charge in New York in 1982 and was released from prison in 1984. He wrote and signed a statement acknowledging this fact, which was admitted in evidence as Exhibit 1. Murphy's statement was incorrect; he was convicted in New York in 1984 and was not released until 1986.

13. Murphy was elected Vice President of the Local in the June 1998 election.

14. Following the election, Smoot protested Murphy's election to the Department of Labor ("DOL") based upon Murphy's New York conviction. In the fall of 1998, the DOL ordered a new election, barred Murphy from running, and ordered him removed as field representative.

Robert McCaskill

15. At all relevant times, Robert McCaskill ("McCaskill") was the Business Manager of Local 423.

16. Smoot informed McCaskill on numerous occasions beginning in January 1998, and continuing through the screening meeting held by the Judges on May 2, 1998 that Murphy's New York conviction barred him from holding office. He told McCaskill that he (McCaskill) should remove Murphy from his office as Vice President of the Local and remove him from the position of field representative and should take proper steps to prevent Murphy from running in the June 1998 Local election. Smoot had personal as well as telephone conversations with McCaskill during this time period.

17. McCaskill testified that when Smoot told him of Murphy's conviction, he thought Smoot was referring to Murphy's conviction in Columbus for a misdemeanor assault. He denied that Smoot informed him that Murphy had a felony conviction from New York that would disqualify him from running for a position on the Board of the Local. The Hearing Master did not find McCaskill's testimony credible. The IHO adopts this finding.

18. When asked why he didn't take steps to check on Murphy's New York record after Smoot informed him of Murphy's robbery conviction, McCaskill testified that he did not have the power to order any such check and that it is the responsibility of the Judges to do background checks on candidates. McCaskill testified that as a candidate himself, he did not want to interfere with the function of the Judges.

506 In the Matter of Smoot & Dunning v. Executive Board of Local 423 1999

19. McCaskill was shown Exhibit 1, Murphy's handwritten statement to the Judges on May 2, 1998. He admitted signing it after Murphy signed it. He testified that he thought a Mr. Rice ("Rice") of the DOL had reviewed Murphy's background and found that his prior conviction did not disqualify him from running in the June 1998 election. William Rice is the Deputy Inspector General of LIUNA. The IHO has determined that a Judge had contacted Rice about this matter. Rice specifically denies giving anyone at Local 423 the approval for Murphy's candidacy.

20. McCaskill testified that after he learned that Murphy had a felony conviction in New York, he did not ask the Judges to investigate this by conducting a background check on Murphy. He said he was a candidate for office himself and said he therefore had as little contact with the Judges as possible.

James Hudson

21. At all relevant times, James Hudson ("Hudson") was a member of the Executive Board.

22. In January 1998, Smoot told Hudson that Murphy's New York conviction would bar him from running in the June 1998 election. Hudson testified that Smoot did not tell him that the conviction was from the New York case. He testified that Smoot never asked him to do a background check on Murphy's police record in New York. The Hearing Master did not find Hudson's testimony to be credible. The IHO adopts this finding.

James Green

23. At all relevant times, James Green ("Green") was Secretary-Treasurer of Local 423.

24. When Dunning left the Judge's screening meeting on May 2, 1998, he was upset by the reaction of the Judges to Smoot's allegations about Murphy. He confronted Green and told him that the New York felony conviction should bar Murphy from running for office.

25. Green testified that he thought Dunning was referring to the Columbus, Ohio misdemeanor conviction, not the New York felony conviction. Green testified that he did not ask the Judges to investigate the matter because a misdemeanor conviction would not disqualify Murphy from running in the election. Green testified he first learned of Murphy's New York felony conviction after the June election. The Hearing Master did not find Green's testimony credible. The IHO adopts this finding.

Wilbert Braswell

26. Wilbert Braswell ("Braswell") was a member of the Board until June 1998, when his term of office expired. He did not run for reelection and is not currently serving on the Executive Board.

 507 In the Matter of Smoot & Dunning v. Executive Board of Local 423 1999
 27. In or about May 1998, Smoot told Braswell that Murphy had a felony conviction from New York and had served time in prison within the past 13 years, thus disqualifying him from running for office in the June 1998 elections. Braswell was aware of the 13-year ban for holding office upon a conviction of certain crimes.

28. Braswell did not inform any other Executive Board member or any of the Judges of this prohibition. He stated that he was not running in the election and felt he had no right to tell anyone anything about Murphy's conviction in New York. The Hearing Master found Braswell's testimony to be credible. The IHO adopts this finding.

Lynol Thompson

29. At all relevant times, Lynol Thompson ("Thompson") was Recording Secretary of Local 423. Thompson testified that prior to the June 1998 election, he had no knowledge of Murphy's New York conviction. Smoot and Dunning both testified that they did not inform Thompson of Murphy's New York conviction.

30. The Hearing Master found Thompson to be a credible witness. The IHO accepts this finding.

31. Thompson was not aware of Murphy's New York conviction prior to the June 1998 election.

Hank Ruppel

32. At all relevant times, Hank Ruppel ("Ruppel") was President of Local 423. He testified that he did not speak to Dunning at the screening meeting on May 2, 1998. Dunning did not dispute Ruppel's testimony. There was no other evidence that Ruppel was aware of Murphy's New York conviction. The Hearing Master found Ruppel's testimony to be credible. The IHO adopts this finding.

33. Ruppel was not aware of Murphy's New York conviction prior to the June 1998 election.

Judges of Elections
Nathaniel Wharton

34. Nathaniel Wharton ("Wharton"), testified that the June 1998 election was the first Local election in which he had served as a Judge. He and the two other Judges were aware that Murphy had a prior felony conviction in New York. The Judges did not attempt to check on Murphy's conviction because they believed that if the International officials had placed Murphy in the position of a field representative several years earlier, they must have conducted a background check at that time. He concluded that there was no reason to look

508 In the Matter of Smoot & Dunning v. Executive Board of Local 423 1999
 Robert Walker

35. Robert Walker ("Walker"), testified that Smoot informed the Judges on May 2, 1998, that Murphy had been convicted of a felony in New York in 1984 and asked the Judges to check on Murphy's record. Walker testified the Judges ignored Smoot's appeal to them for two reasons. First, the Judges believed that because Murphy had been appointed a field representative by officials of the International several years prior to 1998, they obviously had conducted all necessary background checks; hence, there was no need to conduct another background check. Second, Walker testified that Rice, from LIUNA'S Inspector General's Office, had telephoned him prior to the screening meeting and told him that Murphy was eligible to run, as his New York conviction was in 1982. Walker noted that in Murphy's statement to the Judges (Exhibit 1), he listed the year of his New York conviction as 1982. As stated above, Rice denies telling anyone at Local 423 that Murphy was eligible to run for office.

John Patterson

36. John Patterson ("Patterson") served as the Chairman of the Judges for the June 1998 Local 423 elections. He said Smoot told the Judges at the May 2, 1998 screening meeting that Murphy had a felony conviction in New York which would disqualify him from running for the Board. He testified that he did no further investigation check on Murphy because the International had hired Murphy, and Patterson had assumed that the International Officers had checked on Murphy's qualifications to serve as an employee of the Local.

Discussion

Title 29 U.S.C. 504(a) provides that a person convicted of certain specific offenses may not be employed by or serve as an officer of a union for thirteen years following the conviction or any period of imprisonment following the conviction. Article IV, Section 9 of the Uniform Local Union Constitution ("Constitution") states, "It shall be the duty of the Executive Board to see to it that the affairs and business of the Local Union are being properly conducted, in accordance with the Constitution."

The Executive Board members contend that they believed that there was no problem with Murphy's conviction because Murphy had been employed by the International Trustee when the Local was in Trusteeship in 1994. The Deputy Trustee was unaware of Murphy's conviction. Murphy never alerted him to the existence of his conviction for robbery. The IHO will give the Executive Board members the benefit of the doubt that they relied upon Murphy's appointment by the Deputy Trustee as proof that there was no impediment to Murphy's employment by the Local or holding a union office. The situation changed, ; however, when McCaskill and other members of the Board were put on notice by Smoot that Murphy's conviction barred him from being employed by the Local. After the conversations with Smoot, the Board members cannot rely on Murphy's employment by the International Union as a defense.

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McCaskill, as the Business Manager, was put on notice that there was a reasonable possibility that Murphy was barred from employment or holding office. McCaskill states that because he was a candidate, he left the decision as to Murphy's qualifications to the Judges. McCaskill's defense fails for several reasons. McCaskill is the chief executive officer of Local 423. He is bound by Article IV, Section 4 of the Constitution to insure that the affairs of the union are carried out in a proper manner. One of his duties is to insure that the Local is run in compliance with the federal law. Once put on notice by Smoot, it was McCaskill's duty to determine if Murphy could be employed by Local 423 or could hold union office. No one would expect McCaskill to determine this on his own. Local 423 employs a very competent outside counsel who represented the Executive Board in this hearing. McCaskill should have presented the allegation to the Local's counsel to determine if Murphy was in fact barred.

McCaskill stated that because he was himself a candidate, he felt it was improper to intrude upon the jurisdiction of the Judges. The IHO does not credit this statement. In addition to being a candidate, Murphy was also an employee of the Local. The Judges had no jurisdiction over Murphy's employment. It was McCaskill's duty to determine whether Murphy could continue to be employed as a field representative. Moreover, the Judges have very limited training in this area. One Judge testified that he had no idea how to determine if Murphy's conviction barred him from office. McCaskill should have directed the Judges to the Local's outside counsel.

Hudson, Green, and Braswell were Executive Board members who were also put on notice by Smoot or Dunning that Murphy's conviction disqualified him from office. They had the independent duty to take some action to look into the matter.

Murphy was less than candid to everyone who questioned him about his conviction and he is a major cause of the difficulty in this matter. He contends that he thought he was released from jail in 1984, when in reality it was 1986. This is particularly incredible. It is unreasonable to assume that he would not remember how long he was incarcerated and when he was released. If there was any doubt, Murphy could have clarified this matter by doing his own investigation. He had the ability to verify his own prison records.

The Judges are not charged parties and there is no allegation that they intentionally or recklessly abandoned their duties. Some comment is required here on the general role of Judges of Election.

The IHO finds that the testimony of the Judge's conveniently parrots the testimony given by McCaskill that because the International Union had hired Murphy, he must be qualified. The IHO believes that the Judges abandoned their independent duty and simply followed the lead of McCaskill. Their testimony was tailored to follow McCaskill's testimony.
 510 In the Matter of Smoot & Dunning v. Executive Board of Local 423 1999

This factual circumstance signals a need for reform in the LIUNA election procedure, which the IHO, sitting as an election protest officer, has observed many times before. The Judges are often the alter-ego of the Business Manager and the Executive Board and are given little direction.

The Judges must be given instructions as to how to seek independent advice in situations such as this one. If a problem arises, the Judges should be directed to a person who is qualified to advise them on the relevant issues. A Business Manager and the other members of the Executive Board cannot permit the Judges to attempt to resolve a serious matter without providing them with sufficient resources from whom they can seek help.

Mention should also be made of Smoot's and Dunning's role in this scenario and the Executive Board's reaction to it. Smoot was persistent in repeatedly giving the Executive Board members accurate, first-hand information about Murphy's background and how it impacted on the ability of Murphy to be an employee or officer of the Local. Smoot was later joined in this effort by Dunning. Both were credible, and coupled with Murphy's own admission that he was convicted in New York, gave the Executive Board ample notice that there might be a problem. Because the Executive Board members considered Smoot and Dunning to be dissidents, they ignored their information. In a union democracy, one should not be criticized or ignored for telling union officials what they do not want to hear. Smoot and Dunning performed a valuable duty as concerned union members.

Conclusions

1. Murphy was less than candid in his explanation to the Judges and other officers of Local 423. His responses were at best misleading, if not intentionally false.

2. McCaskill had sufficient notice that Murphy's conviction likely barred him from employment or from holding office, but he failed to take any action. McCaskill failed to take appropriate action to investigate Murphy's conviction or to have him removed from his position as field representative.

3. Executive Board members Hudson, Green, and Braswell had sufficient notice that Murphy's conviction likely barred him from holding office. They failed to investigate these allegations or take any action.

4. There was no evidence presented that either Ruppel or Thompson were aware of Murphy's ineligibility to serve as an employee or a Board member of the Local.

Decision

1. The charges against McCaskill have been proven by a preponderance of the evidence.

511 In the Matter of Smoot & Dunning v. Executive Board of Local 423 1999

2. The charges against Murphy have been proven by a preponderance of the evidence.

3. The charges against Hudson, Green, and Braswell have been proven by a preponderance of the evidence.

4. The charges against Ruppel and Thompson have not been proven by a preponderance of the evidence.

Penalty

The provisions of 29 U.S.C. § 504(a) have been in existence far too long to permit union officers and potential candidates to claim ignorance of the application of the statute. Officers whose responsibility it is to run a local union cannot escape liability for permitting unqualified persons to be hired and to run for election.

The situation here was made more egregious because the Executive Board members were put on notice by clear information provided by two concerned members. The Executive Board simply chose to ignore the members for reasons which were not credible.

Murphy is fined $800 and is barred from holding office or being employed any LIUNA entity for one year from the final date of this order. Murphy may work at the calling as a laborer.

McCaskill is fined $800.

Hudson, Green, and Braswell share the responsibility with McCaskill for the failure to take any action. Although they are members of the Executive Board and each have a vote, the IHO recognizes the leadership role that is played by the Business Manager. Although Hudson, Green, and Braswell should have acted, they were lulled into inaction by the Business Manager's lack of action.

Hudson, Green, and Braswell are each fined $400.

All fines should be paid within six months of the date of this Order.

This ORDER becomes final unless a notice of appeal is filed with the Appellate Officer within ten days after the date of this Order. Any party may appeal.

PETER F. VAIRA

 

INDEPENDENT

HEARING OFFICER