CORE TERMS: organized crime, associating, membership, knowingly, disciplinary, fifth amendment, supplemental, discovery, disciplined, capricious, duty, first amendment, rank and file, election, movant, subordinate, pre-hearing, corruption, underworld, corrupt, unaware, public interest, remain free, term of office, trier of fact, conclusive, discipline, violating, occurring, unrefuted
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HeadnotesCOUNSEL: [**1] Otto G. Obermaier, United States Attorney for the Southern District of New York, (Edward T. Ferguson, III, Assistant United States Attorney, of counsel) for the United States of America.
Charles M. Carberry, Investigations Officer of the International Brotherhood of Teamsters, (Robert W. Gaffey, of counsel), Anderson, Kill, Olick & Oshinsky, New York, New York, (Jubelirer, Pass & Intrieri, Pittsburgh, Pennsylvania, Joseph J. Pass, Jr., Robert Eberle, of counsel) for Theodore Cozza.
JUDGES: David N. Edelstein, United States District Judge.
OPINIONBY: EDELSTEIN
OPINION: [*799] MEMORANDUM & ORDER
DAVID N. EDELSTEIN, UNITED STATES DISTRICT JUDGE
This order 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 [**2] 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 crime.
Application XXII presents for this Court's review the opinion and supplemental opinion of the Independent Administrator deciding the disciplinary charges against Theodore R. Cozza. Cozza, a defendant in the underlying litigation and a signatory to the Consent Decree, is a member of the GEB as the Ninth Vice President; the Secretary-Treasurer of the Eastern Conference of Teamsters Policy Committee; the President of Local 211 in Pittsburgh, Pennsylvania, and chairman and trustee of the funds operated by IBT Local 211, the Employee Welfare Fund, and the Prepaid Legal Service Fund.
Cozza was charged by the Investigations Officer with violating Article II, § 2(a) of the IBT constitution. Article II, § 2(a) is the IBT membership oath, which provides in pertinent part that every IBT member shall "conduct himself or herself in a manner so as not to bring reproach upon the Union . . . ." The charge alleged that Cozza had conducted himself [**3] in a manner to bring reproach upon the IBT by knowingly associating with members of La Cosa Nostra from January 1, 1970 to the present. The Investigations Officer charged Cozza with knowingly associating with six members of the Pittsburgh area La Cosa Nostra.
The Independent Administrator determined that the Investigations Officer had met his burden and demonstrated just cause that the charge had been proved. The Independent Administrator determined that the following five of those individuals named by the Investigations Officer, John S. LaRocca, Gabriel "Kelly" Mannerino, Michael Genovese, Joseph "JoJo" Pecora, and Joseph Sica, were members of La Cosa Nostra (the "five individuals"). The Independent Administrator further determined that Cozza had knowingly associated with those five individuals. The proof against Cozza is fully set out in the Independent Administrator's opinion, attached to this memorandum as the Appendix, and need not be repeated here. (Appendix, at 10-28). The Independent Administrator imposed the penalty of permanent debarment from the IBT. Further, the Independent Administrator determined that the IBT or any affiliated entity should make no further payments to [**4] any of Cozza's five pension plans, or his three health and welfare benefit plans.
In the hearing before the Independent Administrator and in his papers before this Court, Cozza admits that he associated with the five individuals. Rather, in his voluminous appeal of the Independent Administrator's opinions, Cozza argues (i) he was denied pre-hearing discovery, (ii) the charge was unspecific, (iii) the charge violates his first and fifth amendment rights, (iv) he was unaware that those five individuals were members of La Cosa Nostra, and (v) the membership of Local 211 knew generally of his association with these individuals. Considering the unrefuted proof before the Independent Administrator, Cozza's position as a leader of the IBT, and the nature of the charges against him, these arguments are disingenuous, contrary to established law, and totally without merit.
I. Standard Of Review
With respect to the disciplinary provisions of the Consent Decree, the Court of [*800] Appeals and this Court have now determined that the Investigations Officer and Independent Administrator are stand-ins for the General President and GEB, who properly delegated their disciplinary power to [**5] those Court Officers pursuant to Article XXVI, section 2 of the IBT Constitution. United States v. International Brotherhood of Teamsters, 931 F.2d 177 (2d Cir. 1991); United States v. International Brotherhood of Teamsters, 905 F.2d at 622 (2d Cir.,1990); May 6, 1991 Opinion & Order, 764 F. Supp. 787 (S.D.N.Y. 1991); December 27, 1990 Opinion & Order, 754 F. Supp. 333, 337 (S.D.N.Y. 1990); September 18, 1990 Opinion & Order, 745 F. Supp. 189, 191-92 (S.D.N.Y. 1990); August 27, 1990 Opinion & Order, 745 F. Supp. 908, 911 (S.D.N.Y. 1990); March 13, 1990 Opinion & Order, 743 F. Supp. 155, 159-60, aff'd 905 F.2d 610, 622 (2d Cir.,1990); January 17, 1990 Opinion & Order, 728 F. Supp. 1032, 1048-57, aff'd 907 F.2d 277 (2d Cir. 1990); November 2, 1989 Memorandum & Order, 725 F. Supp. 162, 169 (S.D.N.Y. 1989); Joint Council 73, et al. v. Carberry, et al., 741 F. Supp. 491, 493 (S.D.N.Y. 1990); [**6] Local 27 v. Carberry, et al., July 20, 1990 at 3-4 (S.D.N.Y. 1990). 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. This Court should overturn the findings of the Independent Administrator when it finds that they are, 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).
Since Cozza does not demonstrate that any of the Independent Administrator's determinations are arbitrary or capricious, his opinion and supplemental opinion must be affirmed in all respects.
II. Discussion
A. Discovery
Cozza's argument that the Independent Administrator violated the Consent [**7] Decree by refusing to grant him pre-hearing discovery is meritless. Paragraph F.12.(C) of the Consent Decree, which governs disciplinary hearings, does not give an IBT member against whom disciplinary charges have been filed any right of pre-hearing discovery. Cozza was not prejudiced by the conduct of the hearing. After the completion of the Investigation Officer's case against Cozza, he was granted a 19 day recess to consider all of the evidence and present his defense. Cozza claim that he was denied an opportunity to review the proof against him before putting on his defense absolutely belies all the facts before the Independent Administrator and this Court.
The Court finds his argument facetious, empty of any merit whatsoever, and is rejected.
B. Specificity of Charges
Cozza argues the charge against him was not adequately specific. A review of prior decisions and the charge demonstrates this is not so. The charge against Cozza listed the individuals that he was alleged to have associated with, and the time span for those associations. This Court has upheld virtually identical charges filed by the Investigations Officer against IBT members. August 27, 1990 Opinion & Order, 745 F. Supp. 908 (S.D.N.Y. 1990); [**8] September 18, 1990 Opinion & Order, 745 F. Supp. 189 (S.D.N.Y. 1990). The charge against Cozza was a plain, concise statement of the essential facts constituting the offense charged.
Cozza's argument is rejected.
C. Constitutional Challenges
Cozza further argues that the charge violates (i) his first amendment right of freedom of association, and (ii) his fifth amendment right to due process. These [*801] arguments are specious considering that the exact same contentions have already been rejected by this Court and demonstrate a flawed understanding of first and fifth amendment rights in the context of the mandates of this Consent Decree and the IBT constitution.
Cozza asserts that to be disciplined for associating with known organized crime figures violates his first amendment freedom of association rights. This Court has specifically rejected that argument. August 27, 1990 Opinion & Order, supra, 745 F. Supp. at 913. This Court held that:
The Independent Administrator has determined that the IBT has the right to discipline members for knowingly associating with organized crime figures since it has a compelling institutional [**9] interest in ridding itself of corruption. The IBT's sanctioning itself in order to rid itself of corrupt influence conforms with § 101(a)(2) of the LMRDA, and infringes no First Amendment rights.
Id. Cozza does even not attempt to address this holding. Further, Cozza is being disciplined by the Independent Administrator as a stand in for the IBT General President. He does not establish the state action necessary for a constitutional claim.
Cozza's fifth amendment due process argument ignores established precedent and is fanciful. Cozza argues that current punishment for past conduct violates his rights. He claims he was never notified that associating with organized crime figures could subject him to discipline. That very same argument was previously raised and rejected by this Court in its August 27, 1990 Opinion and Order, supra, 745 F. Supp. at 913-14.
Relatedly, Cozza also argues that these charges are unfair. He contends that the Government assured him in negotiating the Consent Decree that the para. E.10 injunction against associating with organized crime figures would apply to prospective conduct. This argument is irrelevant, since Cozza was [**10] charged with violating his IBT oath of office, not para. E.10 of the Consent Decree.
This Court has specifically held that IBT members may be disciplined for associating with organized crime figures which occurred prior to the signing of the Consent Decree. In rejecting an identical challenge, this Court held "[by such conduct they] ignore [] their avowed duties as IBT officers to remain free of corrupt influence." Id. at 914. Cozza, as an International Vice President and member of the GEB, was under the highest duty to remain free of any taint or appearance of corruption. This Court has previously held that during the time in question Cozza clearly knew or should have known that close contact with organized crime figures was in contravention of his duty to the membership as a union officer. Id. Paragraph E.10 of the Consent Decree is not relevant to these charges.
Cozza's arguments are without merit.
D. Cozza's Knowledge
Cozza argues that he did not knowingly associate with organized crime figures because he was unaware that the five individuals were members of the Pittsburgh La Cosa Nostra. This argument does violence to the truth and offends [**11] reason. Counsel for Cozza admitted that "Cozza knew of the allegations against these individuals, as did many members of Cozza's local union and the public at large," but argues that Cozza did not have conclusive knowledge of their criminal conduct.
The Independent Administrator considered Cozza's admitted personal contact with these five individuals, including visiting with LaRocca on almost a daily basis, and concluded "it is inconceivable that he [Cozza] was unaware that they were infamous members of Pittsburgh's underworld . . . I conclude that such knowledge may be inferred from the duration and quality of the association." Appendix at 24-25.
Cozza is challenging the Independent Administrator's determination of his knowledge and intent. The trier of fact must infer knowledge and intent by considering the facts and circumstances, including the individual's acts and words, and then draw rational inferences from those facts and [*802] circumstances. As the trier of fact, the Independent Administrator considered the unrefuted evidence which demonstrated that Cozza was a close associate of all five of these individuals, including a daily visitor with LaRocca, that Cozza [**12] knew that the five individuals were members of La Cosa Nostra, and drew the reasonable inference of Cozza's knowledge. Cozza has not identified any evidence either ignored or overlooked by the Independent Administrator. The Independent Administrator findings were neither arbitrary nor capricious.
E. The Section 3(d) Defense
Finally, Cozza argues that the Independent Administrator erred by rejecting his contention that Article II, § 3(d) ("§ 3(d)") of the IBT constitution, reproduced below, bars this charge. n1 This reasoning is baseless.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Section 3(d) provides in pertinent part:
Charges against elective officer of the International Union or any subordinate body shall be limited only to those activities or actions occurring during their current term of office, and only those activities and actions occurring prior to their current term which were not then known generally by the membership of the International Union or the subordinate body in the case of an officer of a subordinate body.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Judicial interpretation of [**13] § 3(d) has established that to invoke this defense, a member must demonstrate "that the membership . . . had conclusive knowledge that the defendants were actually guilty of the conduct charged when they were" elected to their current term of office. March 13, 1990 Opinion & Order, 743 F. Supp. 155, 166 (S.D.N.Y.) aff'd 905 F.2d 610 (2d Cir. 1990). Section 3(d) cannot be used when the charged member denies the conduct. Id.; November 2, 1989 Memorandum & Order, 725 F. Supp. 162, 165 (S.D.N.Y. 1989), aff'd 905 F.2d 610 (2d Cir. 1990).
Cozza is legally barred from invoking § 3(d). Cozza denies that he knowingly associated with organized crime figures: He still maintains that he did not know that the five individuals were members of La Cosa Nostra. Accordingly, Cozza cannot avail himself of the § 3(d) defense since, as the Independent Administrator found, "it would be impossible for the Local 211 rank and file to be generally aware that Cozza was 'knowingly associating' with underworld figures, when Cozza himself denies that he knew of their underworld ties." Appendix [**14] at 29. As a result, the questionnaires Cozza presented to the Independent Administrator which purportedly demonstrated that the membership "knew generally" of his conduct is no more real than a mirage.
Nor should I overlook that Cozza has not even argued that the membership of the Eastern Conference of Teamsters, or the GEB as the representative of the entire IBT, knew generally of his conduct. Since he was an officer of both, he must demonstrate that all members of those bodies knew generally of his conduct to avail himself of the § 3(d) defense.
Cozza's argument is meritless and must be rejected.
III. Conclusion
IT IS HEREBY ORDERED that Cozza's objections to the opinion and supplemental opinion are hereby denied.
IT IS HEREBY ORDERED that the opinion and supplemental opinion of the Independent Administrator are affirmed in all respects.
IT IS FURTHER ORDERED that the stay on the penalties imposed by the Independent Administrator is dissolved, effective immediately.
So Ordered.
ORDER - May 10, 1991, Filed
EDELSTEIN, District Judge:
Movant Western Conference of Teamsters Pension Fund moves this Court a second time for a stay of decision 91-Elec. App.-106 of the [**15] Independent Administrator pending review of that decision.
In this circuit, the standards for issuing a stay encompass the following considerations:
(a) Whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
(b) Whether the applicant will be irreparably injured absent a stay;
(c) Whether the issuance of a stay will substantially injure other parties interested in the proceedings; and
(d) Where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987).
Applying these criteria to the instant application, I find that these have failed to have been met, and the stay should be denied. First, the movants have not made a strong showing that they are likely to succeed on the merits. Second, and most importantly, I find that the movants will face no irreparable harm from the actions ordered by the Election Officer and Independent Administrator to correct the election taken by movant. The third criteria is whether staying the ruling will cause injury to any other interested party. Granting a stay will prejudice candidates for IBT office and the IBT rank and file in general. Finally, the public interest [**16] lies in furthering the noble goal and promoting democratic, secret ballot elections in the IBT. Over the years, the IBT has been tarnished with a patina of corruption, and actions to clear this troubled past seem squarely in the interest of IBT officials, the IBT rank and file, and the public in general.
Accordingly, the petition for a stay is hereby denied.
So Ordered.
Dated: May 10, 1991
New York, New York.
David N. Edelstein
U.S.D.J.