CORE TERMS: disciplinary,
resigned, contest, organized crime, knowingly, jurisdiction to hear,
capricious, violating, effective, reproach, stand-ins, utterly, standard of
review, uncontroverted evidence, penalty imposed, full text, election,
associating, chargeable, remedial, oversee, moot, duties
COUNSEL: [**1] Appearances: Charles M. Carberry,
Investigations Officer, New York, New York, Robert W. Gaffey, of counsel.
Fischetti & Russo, New York, New York, Ronald G. Russo, of counsel, for
William Cutolo.
Dublirer, Haydon, Straci & Victor, New York, New York, Ronald A. Straci, of
counsel, for Cirino Salerno.
JUDGES: David N. Edelstein, United States District Judge.
OPINIONBY: EDELSTEIN
OPINION: [*190]
OPINION AND ORDER
DAVID N. EDELSTEIN, UNITED STATES DISTRICT JUDGE
This opinion emanates from the voluntary settlement in the action commenced
by plaintiff United States of America (the "Government") against defendants
International Brotherhood of Teamsters (the "IBT") and the IBT's General
Executive Board (the "GEB") embodied in the voluntary consent order entered
March 14, 1989 (the "Consent Decree"). The remedial provisions in the
Consent Decree provided for three Court-appointed officials, the Independent
Administrator to oversee the remedial provisions, the Investigations Officer
to bring charges against corrupt IBT members, and the Election Officer to
oversee the electoral process leading up to and including the 1991 election
for International Officers (collectively, the "Court Officers"). The goal of
the Consent Decree is to rid the IBT of the hideous influence of organized
[**2] crime
through the election and prosecution provisions.
Application XIII seeks this Court's review the August 20, 1990 opinion of
the Independent Administrator. The Independent Administrator held that the
Investigations Officer had sustained his burden of demonstrating that there
was just cause to find that IBT officers Cirino "Charles" Salerno and
William Cutolo had breached their duties under the IBT constitution by
knowingly associating with organized crime figures.
The opinion of the Independent Administrator is affirmed.
[*191] I.
Background
Cirino "Charles" Salerno was the president of Local 272 located in New York,
New York. Salerno was charged with two violations of Article II, § 2(a) of
the IBT constitution ("Article II, § 2(a)"), the membership oath of the IBT
where members swear not to bring reproach upon the Union. The charges filed
by the Investigations Officer specifically allege that Salerno brought
reproach upon the IBT by (1) knowingly associated with members of organized
crime, and (2) being convicted in New York State Supreme Court for violating
New York Labor Law § 725 by accepting two $ 500 payments from an
employer of members of Local 272. Salerno appeared at the
[**3] hearing
before the Independent Administrator, but does not contest the decision
before this Court. Salerno notified this Court by letter that he had
resigned from the IBT effective September 14, 1990.
William Cutolo was the president and business agent of Local 861 in New
York, New York. Cutolo was charged with violating Article II, § 2(a), and
Article XIX, § 6(b) of the IBT constitution. The charges filed by the
Investigations Officer specifically allege that Cutolo was a member of La
Cosa Nostra, and knowingly associating with members of La Cosa Nostra.
Cutolo did not appear before the Independent Administrator to contest the
charges, but challenges the decision before this Court. Cutolo resigned from
his IBT position effective February 1, 1990.
Article II, § 2(a) provides in relevant part that every IBT member shall
"conduct himself or herself in such a manner as not to bring reproach upon
the Union. . ." Article XIX, § 6(b) provides the bases for bringing
disciplinary charges against IBT members. Article XIX, § 6(b)(1) indicates
that violating any specific provision of the IBT constitution is chargeable
conduct. Article XIX, § 6(b)(2) states that transgressing the IBT oath of
[**4] office is
chargeable conduct. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The full text of the relevant IBT constitutional provisions and the full
text of the charges against Senese and Cutolo are set out in the Independent
Administrator's opinion.
See Opinion of the Independent
Administrator, August 20, 1990 at 2-4.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
II. The Findings of the Independent Administrator
Salerno does not challenge the substance of the Independent Administrator's
decision to this Court. Cutolo challenges jurisdiction over him, and the
sufficiency of the proof before the Independent Administrator.
A. Standard of Review
With respect to the disciplinary and investigatory provisions of the Consent
Decree, the IBT General President and GEB delegated their disciplinary
authority under the IBT constitution to the Court Officers.
United States v. International Brotherhood of Teamsters, 905 F.2d
610, 622 (2d Cir. 1990), aff'g
March 13, 1990 Opinion and Order, 743 F. Supp. 155 (S.D.N.Y. 1990);
November 2, 1989 Memorandum and Order, 725 F. Supp. 162, 169 [**5] (S.D.N.Y. 1989);
January 17, 1990 Memorandum and Order, 728 F. Supp. 1032, 1048-57 (S.D.N.Y.
1990), aff'd,
907 F.2d 277 (2d Cir. 1990); Local 27 v. Carberry, et al., July
20, 1990 at 3-4 (S.D.N.Y. 1990);
Joint Council 73, et al. v. Carberry, et al., 741 F. Supp. 491,
492-93 (S.D.N.Y. 1990); August 27, 1990 Opinion and Order at 5-6. The
Independent Administrator and Investigations Officer are stand-ins for the
General President and GEB for the purpose of the instant disciplinary
actions. Hearings before the Independent Administrator are conducted
pursuant to the same standards applicable to labor arbitration hearings.
Consent Decree, para. F.12.(A)(ii)(e).
Paragraph F.12.(C) of the Consent Decree mandates that the Independent
Administrator must decide disciplinary hearings using a "just cause"
standard. Consent Decree at 9. Paragraph K.16 provides that this Court shall
review actions of the Independent Administrator using the "same standard of
review applicable to review of final federal agency action under the
Administrative Procedures Act." Consent Decree at 25. This Court may only
[*192]
overturn the findings of the Independent Administrator when it finds that
they are,
[**6] on the basis of all the evidence, "arbitrary
or capricious." This Court and the Court of Appeals have interpreted para.
K.16 to mean that decisions of the Independent Administrator "are entitled
to great deference."
905 F.2d at 616 (2d Cir. 1990), aff'g
March 13, 1990 Opinion and Order, 743 F. Supp. 155 (S.D.N.Y. 1990).
B. Salerno
Salerno does not contest the Independent Administrator's determination that
the Investigations Officer demonstrated just cause to find that the charges
had been proved against him. Salerno informed this Court on August 30, 1990
that he had resigned from the IBT on that date, effective September 14,
1990. As a result, Salerno asserts that the findings and penalty imposed by
the Independent Administrator are moot.
Salerno's resignation from the IBT in no way renders the decision of the
Independent Administrator moot. The Independent Administrator permanently
barred Salerno from the IBT. But his voluntary resignation would not prevent
Salerno from returning to the IBT at any point in the future. Such a
possibility is clearly at odds with the penalty imposed by the Independent
Administrator, which would preclude Salerno's return to the IBT.
[**7] Salerno's
mootness argument is simply meritless.
Salerno does not challenge that the evidence before the Independent
Administrator established just cause that he knowingly associated with
organized crime figures. The Independent Administrator exhaustively detailed
the evidence against Salerno.
See August 20 Opinion of the
Independent Administrator at 9-29. The Independent Administrator relied upon
the affidavit and testimony of FBI Special Agent R. Lindley DeVecchio, (Ex.
IO-1), drawn from exhibits, recorded surveillance, and expert conclusions.
This evidence detailed the ties between Salerno and the Genovese La Cosa
Nostra Family. Additionally, Salerno does not now challenge that the second
charge against him relating to his criminal conviction had been proved.
The evidence relied upon by the Independent Administrator was more than
sufficient to support his finding that just cause existed to find that the
charges against Salerno had been proved by the Investigations Officer. There
is no basis in the record before this Court that this determination of the
Independent Administrator was arbitrary or capricious.
C. Cutolo
Cutolo did not appear at the hearing before the Independent
[**8]
Administrator to contest the charges. In response to this Application,
Cutolo challenges the decision of the Independent Administrator in a number
of respects. First, he argues that the there was no jurisdiction over him.
Second, Cutolo asserts that the evidence before the Independent
Administrator was insufficient to sustain the charges against him. Both of
these arguments are vacuous.
Cutolo's jurisdictional arguments are fatuous. As a preliminary matter, it
is utterly beyond dispute that the disciplinary provisions of the Consent
Decree are binding on non-signatory members of the IBT.
United States v. International Brotherhood of Teamsters, 905 F.2d
610, 622 (2d Cir. 1990), aff'g
March 13, 1990 Opinion and Order 743 F. Supp. 155;
November 2, 1989 Memorandum and Order, 725 F. Supp. 162, 169 (S.D.N.Y.
1989);
January 17, 1990 Memorandum and Order, 728 F. Supp. 1032, 1048-57 (S.D.N.Y.
1990), aff'd,
907 F.2d 277 (2d Cir. 1990); Local 27 v. Carberry, et al., July
20, 1990 at 3-4 (S.D.N.Y. 1990);
Joint Council 73, et al. v. Carberry, et al., 741 F. Supp.
491, 493 (S.D.N.Y. 1990); August 27, 1990 Opinion and Order. As the
disciplinary stand-ins for the General President
[**9] and GEB,
the Court Officers have jurisdiction to hear charges and impose penalties
against former IBT members relating to their IBT duties.
Cutolo essentially argues that because he had resigned from the IBT on
February 1, 1990, the Independent Administrator had no jurisdiction to hear
charges over him.
[*193] Cutolo's noting the judgment in the
separate action of
United States of America v. Local 6A, et al., 86
Civ. 4819 (VLB) is utterly irrelevant to the instant matter. His stipulation
that he would have invoked the Fifth Amendment if called to testify in the
underlying RICO case similarly bears no relevance to the hearing before the
Independent Administrator. As the disciplinary stand in for the General
President, the Independent Administrator had jurisdiction to hear charges
against a former IBT officer relating to his IBT activities.
As to his challenges to the sufficiency of the evidence before the
Independent Administrator, Cutolo failed to appear at the hearing and waived
any right to challenge that evidence on appeal. Cutolo has offered no reason
for his failure to appear before the Independent Administrator. Despite
Cutolo's absence, the uncontroverted evidence offered by the
[**10]
Investigations Officer was carefully scrutinized by the Independent
Administrator. The Independent Administrator even refused to admit some of
the Investigations Officer's exhibits. The Independent Administrator's
determination that the uncontroverted evidence against Cutolo established
just cause that the charges had been proved was not arbitrary or capricious.
III. Conclusion
The Independent Administrator's decisions of August 20, 1990 with respect to
the sufficiency of the charges against Senese and Cutolo are hereby
affirmed. The decisions of the Independent Administrator that Senese and
Cutolo should be given lifetime suspensions from the IBT are hereby
affirmed. The Independent Administrator's determinations that the penalties
against Senese and Cutolo should include the termination of health and
welfare benefits is reserved pending the specific resolution of that issue.
So Ordered.
Dated: September 18, 1990 New York, New York