100 Colum. L. Rev. 2157, *

 
Copyright (c) 2000 The Columbia Law Review
Columbia Law Review

December, 2000

100 Colum. L. Rev. 2157

LENGTH: 18396 words

NOTE: AN OFFER THE TEAMSTERS COULDN'T REFUSE: THE 1989 CONSENT DECREE ESTABLISHING FEDERAL OVERSIGHT AND ENDING MECHANISMS

NAME: Andrew B. Dean

SUMMARY:
... "The Teamsters' union is as free of corruption as any great institution. ... 115 At the very least, this leaves a perception that the union leadership brokered a deal that would preserve their interests (i.e., their pensions) at the expense of the Teamsters rank and file (i.e., expensive, potentially unending oversight). ... 140 In the Teamsters Consent Decree, the government did not charge the court with the task of ending oversight, as has been recommended in this Note. ... 160 The Consent Decree with the Teamsters governs the IBT, or the International. ... 200 In addition to intimidating and coercing union members, organized crime subverted democracy and took control of the Teamsters. ...  

HIGHLIGHT: In 1989, members of the Teamsters union and the federal government entered into a consent decree subjecting the union to potentially unending federal oversight. The Consent Decree did not establish any mechanism by which oversight would end, marking the first time that a major union was subjected to such severe oversight. This Note argues that, while the government was right in substantially infringing upon the Teamsters, the government should have developed some mechanism by which oversight would end. In an ideal situation, the most effective way to structure a consent decree or judicial judgment in cases of long-term and significant corruption is to establish oversight that ends only when the court decides that a set of clearly articulated, publicly known, and substantive criteria are met. In this case, and in future cases of oversight, consent decrees and judicial judgments should adopt criteria that include the reduction of corruption and the establishment of democracy-reinforcing principles.

TEXT:
 [*2157]  Introduction
 
"The Teamsters' union is as free of corruption as any great institution." 1 It is ironic that the union's president, James Hoffa, Jr., son of the prominent racketeer and former Teamsters president Jimmy Hoffa, 2 should be the voice declaring the decade-long oversight of the Teamsters a success. It is also curious that this success should be qualified by comparing it to other institutions. 3

For decades, corruption and scandal were the hallmarks of the Teamsters. During the past four decades, the Teamsters leadership, from  [*2158]  Dave Beck to Jackie Presser, 4 has been subject to repeated investigations. 5 One of the most important pieces of legislation aimed at democratizing unions, the Landrum-Griffin Act of 1959, failed to alter the union's lawless culture. 6 Government attacks on the locals, 7 prosecutions of criminal elements within the union, and even supervision by a government monitor could not identify and eliminate the corruption that had infiltrated every level of the Teamsters. 8 La Cosa Nostra ran the Teamsters. 9

 [*2159]  In the late 1980s, the United States Attorney's Office for the Southern District of New York, led by Rudolph Giuliani, 10 ushered in a new era for the Teamsters and unions everywhere 11 when it decided to deploy the provisions of the Racketeer Influenced and Corrupt Organizations (RICO) statute against the Teamsters - a novel approach to addressing criminal control of an international union. 12 In 1989, under siege by the government and with RICO dangling like the sword of Damocles, the Teamsters leadership signed a consent decree ceding decisionmaking power of many important internal matters to a variety of court-appointed outside monitors. 13 In part, the Consent Decree made an Independent Review Board (IRB) a permanent part of the union's constitution. 14 The IRB, appointed jointly by the United States government and the Teamsters, could promulgate rules necessary to monitor and prosecute corruption within the union, and a federal judge was to review any conflicts in the application and interpretation of the Consent Decree. 15

Since 1989, corruption in the Teamsters has decreased. In 1991, Ron Carey became the first democratically elected Teamsters' president in modern Teamsters history. While the rank and file at first objected to the new rules, Carey cooperated with the IRB's oversight. 16 With the new watchdog, hundreds of highly ranked officials were removed from office, and numerous criminal investigations were launched in order to clean up the union. Today, organized crime is no longer an overt threat, and the Teamsters continue to hold democratic elections for all major offices. 17

However, the Consent Decree is not an unqualified success. One section in particular has recently provoked much controversy - the permanent status of the Independent Review Board. Since 1999, the newly elected president James Hoffa, Jr. has been asking that the federal government cease the decade-long government oversight which to that date  [*2160]  had cost the union about $ 82 million. 18 Because of Hoffa's initial reluctance to endorse a presidential candidate in the 2000 election, it was speculated that he would peg a presidential endorsement of the 1.4 million-member union to the candidate who pledged to end oversight. 19 In August 1999, the current United States Attorney for the Southern District of New York, Mary Jo White, stated that withdrawal would be premature. 20 Law enforcement officials, while acknowledging that corruption in the union was down, pointed to pockets of corruption in a number of the union's 600 locals. 21

This Note explores whether the federal oversight should end by analyzing two related criteria: (1) the relative success of anti-corruption efforts of the government and union; and (2) the extent to which democracy-reinforcing mechanisms have been installed in the union. Part I outlines the history of the Teamsters leading up to the 1989 Consent Decree and establishment of the IRB. Part II explains the necessity of using severe remedies in instances where unions have a well-developed history of corruption, as the Teamsters do. This section suggests that the federal government should have included a provision for the withdrawal of the government from the internal affairs of the Teamsters. At the very least, the government should have supplied a mechanism by which the external monitoring would transfer to internal monitoring. The ideal mechanism would require the court, not the government, to determine when the oversight should end. Part III proposes that, because the government did not provide for a termination mechanism, the government should decide when to end federal oversight on the basis of two substantive criteria: reducing corruption and institutionalizing democracy-reinforcing principles (based on the RICO statute and Landrum-Griffin Act, respectively). These criteria could also be applied to other unions that have fallen into trusteeships. Finally, this section considers whether the government can successfully apply these criteria.

 [*2161] 

I. Background

A. Infamy: The Notorious Teamsters
 
The reach of corruption into every constituent level of the union helps to explain why the government established permanent oversight of the Teamsters 22 - a move unprecedented in labor law. 23

Nothing better reflects the breadth of Teamsters corruption than its leadership. The modern story of corruption begins in 1952 when Dave Beck became IBT General President. 24 In 1959 Beck was convicted of violating federal income tax laws; he was the first president of the Teamsters to be incarcerated. 25 His successor Jimmy Hoffa was the first IBT president clearly under the thumb of organized crime. 26 Hoffa was convicted of jury tampering in 1964, and in 1975 he disappeared permanently. 27 The next IBT president, Frank Fitzsimmons, was thought to  [*2162]  have mob ties, but was never indicted during his tenure. 28 His successor, Roy Williams, was convicted of trying to bribe a U.S. Senator. 29 Jackie Presser, president from 1983 until the federal oversight began, was known to have mob ties and was implicated in a number of suspect dealings. 30 Through a manipulated election and appointment process, these incumbents were able to ensure handpicked successors or to guarantee the reelection of the IBT Executive Board. 31 Because this electoral process ensured continuous, corrupt leadership, the Teamsters could assert substantial control over select industries in the national economy. 32

The Teamsters corruption ran from the local to the international level of the union. Generally, as organized crime infiltrates a particular local, the criminal activity spreads and the local becomes captured; 33 reform groups are intimidated and suppressed. 34 Ultimately, the influence over a few locals can lead to control of the international. 35 The corrupt international officers, in turn, assert authority over those locals that are not yet controlled by organized crime. 36 This relationship of corruption  [*2163]  between local and international will be referred to as the "reciprocal effect" 37 of union corruption. The reciprocal effect of corruption ensured that organized crime would be able to influence every major decision made by the IBT or local.

Understanding the day-to-day operation of labor racketeering 38 provides some insight into the ability of a few corrupt officials to sink the Teamsters by spreading into every cabin of the union. On the most basic level, racketeers often steal membership dues. 39 The more sophisticated and bold racketeers engage in strike insurance, 40 sweetheart deals, 41 and pension abuse fraud. 42 As the racketeers begin to realize the possibilities in unions, violence becomes necessary to consolidate and coordinate the various activities. 43 The corrupt officers of the Teamsters perfected these activities, making the union ripe for government intervention.

B. Intervention: The 1989 Consent Decree

1. Possible Remedies. - Traditionally, when corruption is identified in a union, a number of remedies are available to both the union and the government. First, remedies are available within the union infrastructure. Ideally, the rank and file can vote the corrupt officials out of office. 44 Furthermore, a union member can inspect the union's books and  [*2164]  records, 45 and the union can then take the necessary disciplinary action, including restitution or discharge of the offending officials. 46 If corruption has taken hold of an entire local union, the Landrum-Griffin Act allows the parent international or national union to establish a trusteeship over the local. 47 This often means replacing the local's officials and overseeing its finances. 48 Finally, unions can establish independent public review boards to serve as a neutral organ in policing corruption. 49 However, these remedies are only effective where union corruption exists in small pockets that can be removed with a few measured cuts while the infrastructure is left intact. In the Teamsters case, the government realized that more systemic reform was necessary.

In handling more extensive corruption that could not be addressed by piecemeal remedies, the government could take advantage of the benefits of institutional reform, and the government had a few options in the Teamsters case. 50 First, before 1970, common law receiverships and the Landrum-Griffin Act allowed the state to establish a trusteeship over a corrupt union. 51 However, because of the inadequacies of the Landrum-Griffin Act in fighting institutional corruption on a grand scale, 52 Congress passed the Racketeer Influenced and Corrupt Organizations Act (RICO), 53 which gave the government broad discretion to reorganize 54 a corrupt union. 55 This discretion included the ability to discharge officials,  [*2165]  to run elections, and to oversee all aspects of union governance. For the first time the government had a mechanism to shape the ideal union - a mechanism later used on the Teamsters. 56

2. The Government's Response to the Teamsters' Corruption. - The government's response to the Teamsters corruption came with much anticipation in June 1988. 57 After successfully using RICO against a number of local unions, the government decided that expanding the statute's application to the international union was an appropriate step in the new war on corrupt unions. The United States Department of Justice filed a RICO suit against the Teamsters seeking to remove IBT executive board members found to have violated RICO, to appoint a trustee to discharge the duties of the executive board, and to hold new elections free of intimidation. 58 The Justice Department alleged that La Cosa Nostra 59 had captured the IBT through control of top international officers. 60 Through the RICO suit, the government sought to eliminate organized crime's "ready access to union funds and jobs and free reign over certain IBT Locals, which La Cosa Nostra figures have used as instrumentalities to extort monies from employers." 61 The government hoped to gain a temporary trusteeship before the litigation began, but District Court Judge David Edelstein decided to hold an evidentiary hearing before granting any relief. 62 Just hours before the trial was to begin, however, the government and the union defendants entered into a consent decree that would define the fate of the union indefinitely. 63

 [*2166] 

C. Permanency: The Consent Decree and the Independent Review Board (IRB)
 
The decree mandated two stages of implementation. First, a court-appointed Independent Administrator was to oversee the efforts of an Investigations Officer and an Election Officer. 64 The Independent Administrator, who shared power equally with the IBT president, was empowered to remove or discipline any officer or member, impose trusteeships over corrupt locals, and veto any IBT decision that appeared to further the interests of organized crime or racketeers. The Investigations Officer was given the broad power to investigate corruption within the union and to bring disciplinary charges against the violators. The Election Officer was given broad authority to conduct a democratic, direct election for IBT positions until the implementation of the secret ballot election in 1991. 65 The Consent Decree permanently changed elections, allowing rank and file secret ballot election of Convention delegates for the first time. 66 This first stage of the Consent Decree was scheduled to end after the 1996 IBT election. 67

In the second stage of the decree, which would begin after December 1991, the IBT Constitution was to be amended to incorporate a three-member Independent Review Board (IRB) to replace the Administrator. 68 The Attorney General and the union were to each select one member of the IRB, and these two appointed members would jointly select a third. 69 The IRB was authorized to hire a sufficient staff of investigators and attorneys to investigate (1) any allegation of corruption, including bribery, embezzlement, extortion, loan sharking, violation of 29 U.S.C. 530 of the Landrum-Griffin Act, Taft-Hartley Criminal violations, or Hobbs Act violations; (2) any allegations of domination or control or influence of any IBT affiliate, member or representative by La Cosa Nostra or any other organized crime entity or group; or (3) any failure to cooperate fully with the Independent Review Board in any investigation. 70

After an investigation, the IRB was to issue a report detailing its "findings, charges, and recommendations concerning the discipline of union officers, members, employees, and representatives and concerning the placing in trusteeship of any IBT subordinate body." 71 The findings of the IRB would be final and binding, and the General Executive Board of the Teamsters was obliged to implement its decisions. 72 The Teamsters  [*2167]  was to pay all the costs and expenses of the IRB and all of its investigations. 73

The Consent Decree allowed the United States to establish a permanent sentinel within the Teamsters infrastructure. While the government gave no indication when or if the oversight would end, it expressed the hope that such a significant infringement upon union autonomy would "take back the Teamsters from the Mafia." 74

II. The Complexities of Unending Remedies

A. The Need for Such an Infringement on the Teamsters
 
Some argue that the Consent Decree infringed too severely on the autonomy of the Teamsters. The Teamsters is the only major union ever to be subject to a potentially permanent governmental watchdog and administrator while other less intrusive remedies might have adequately dealt with the union's corruption. 75 Professor Clyde W. Summers puts the question most pointedly: "If we believe in union democracy, in the right of union members to elect their officers and to decide their union's policies, how can we justify imposing a trusteeship which displaces the officers and deprives members of full control of their union?" 76

In the case of the Teamsters, however, the government was wise to take off its gloves. In retrospect, the government's approach was appropriate in light of (1) prior experiences with trusteeships and the historical entrenchment of Teamsters' corruption through oligarchic control, (2) the subsequent reaction of Teamsters' officials after the Consent Decree, and (3) the need to protect the union and society. Whether the government's actions were excessive will be considered in the next section.

First, it is an accepted practice to use trusteeships in some instances to address breakdowns in internal union governance. 77 However, trusteeships with too weak a mandate, too limited remedial authority, or too little resolve on the part of the government or the trustee, have often failed to rid unions of corruption. 78

 [*2168]  One such failure helped to set the stage for the current oversight. When corruption in Hoffa's Teamsters became extreme in the 1950s, 79 a group of union reformers attempted to place the entire international into receivership. 80 The litigation resulted in a consent decree establishing a court-appointed Board of Monitors 81 until a new convention was held and new elections conducted. 82 While successfully restoring autonomy to some locals, the Board "displayed a passive and tolerant attitude" 83 toward what one Monitor called "trouble spots." 84 Ultimately, the Board of Monitors fell into disuse with the passage of the Landrum-Griffin Act, 85 which preempted suits to overturn elections. Thus, the first attempt at reforming the international Teamsters with a limited remedy failed. 86

Similarly, limited attempts at transforming the Teamsters locals have failed to rid the IBT of corruption. After the prosecution of members of the disreputable Teamsters Local 560, 87 the District Court of New Jersey created a trusteeship over the local in 1987 and granted broad power to  [*2169]  the trustee. After eighteen months, the court 88 extended the receivership because, in the words of the trustee, the local was "still suffering from the effects of more than twenty five years of racketeer domination." 89 Despite the extension, the 1988 election resulted in the defeat of the reform candidates and the election of the relatives of two disqualified candidates. 90 Many saw the outcome of this election as "a referendum on the RICO trusteeship itself." 91 Because the corruption was so clearly entrenched, the trustee could not get the union members to commit to ridding the union of corruption through self-governance. 92

Leading up to the 1989 Consent Decree of the IBT, then, the government had learned that more robust remedies would be needed in order to rid the Teamsters of the effects of decades of corruption. Randy Mastro, former Assistant United States Attorney who led the charge against the Teamsters in 1989, noted:


 
Prior to the enactment of the RICO statute, the federal government's supervision of labor unions principally entailed enforcement of the labor laws, coupled with criminal prosecutions of corrupt individuals. This limited approach to regulation sometimes permitted unions with sordid histories to remain mired in corruption even in the midst of scrutiny by the Labor Department and other regulatory and law enforcement agencies. 93


 
In the absence of robust remedies, the entrenched corruption can simply wait until oversight has ended to continue its illegal activity.

The brand of Teamsters' corruption also makes it clear why limited trusteeships were doomed to fail. On the most general level, the oligarchic tendencies of unions can strengthen the ruling regime. 94 When the  [*2170]  regime becomes corrupt, the democratic breakdowns become more pronounced and the corruption more entrenched. Candidates for union office proposing reform are intimidated and sometimes killed. 95 The power of the IBT office is used to maintain that power, and the reciprocal effect 96 of corruption ensures that locals and the international are both captured by corrupt elements.

Second, the events after the signing of the Consent Decree serve as ex post evidence that a robust remedy was needed. The pre-Consent Decree Teamsters regime did not intend to cooperate with the government. "Removals were contested, election rules disputed, and as many of the consent decree's provisions as possible ignored or evaded...." 97 Because the delegates at the 1991 convention rejected the terms of the Consent Decree, the required constitutional reforms were imposed by the court. 98 The corrupt officials attempted to remain in office until the 1991 election, which they were confident that they could win. 99 However, the trustees, the government, and the presiding judge successfully pursued and prosecuted corrupt officials, and the old regime began to crumble.

Finally, the infringement of robust remedies can be justified on the grounds that the union, businesses, and consumers will benefit from honest unions. Clean unions meet more success in collective bargaining than corrupt unions, and they may be more prone to cater to the needs of the  [*2171]  rank and file in the twenty-first century. 100 Corrupt American unions may push employers to seek cheaper labor and fewer headaches overseas. 101 Because of the decreasing number of union members and the sullied reputation of unions, corrupt unions discourage honest workers who would otherwise unionize. Similarly, union corruption exacts a toll on businesses and consumers who often pay higher prices due to the corruption. 102

Thus far, history has treated the Consent Decree well. While the Consent Decree may have been unpopular with some in the labor unions, many commentators have acknowledged that significant oversight was warranted in the case of the Teamsters. 103 In certain limited circumstances - when a union cannot be distinguished from its corruption - substantial infringement of a union's autonomy is necessary in order to serve the interests of the rank and file and the public at large.

B. The Need for a Mechanism to Shut Down Oversight

1. The Need for Outer Limits on a Trusteeship's Broad Mandate. - Trusteeships with broad authority are appropriate in certain circumstances, but there must be a clearly defined outer limit to that authority. 104 A number of factors weigh against the potentially unlimited oversight that is imbued in the Consent Decree's IRB. First, potentially unending oversight tramples the right of union workers to have an autonomous, self-governing union. Historically, workers have fought for the right to represent themselves collectively, and after generations of legal and social struggle, the laws have developed to preserve the independence and self-governance of unions. 105 Congress's passage of the Landrum-Griffin Act most clearly sets forth the general policy that unions "are fully competent  [*2172]  to regulate union affairs," 106 and establishes that there should be only "minimum interference by Government." 107 Only through autonomous rule of the union can memberships' rights be fully defended and articulated, 108 and most agree that democratic self-governance is the bedrock of a successful union. 109 The aggressive oversight involved in a RICO civil injunction can have the unintended effect of undermining the very union members' rights 110 that the trusteeship was established to protect. 111

In order to remain consistent with the fundamental notions of union self-governance, a trusteeship should make its goal clear and transparent. This would alert union members and officials that oversight will end, for instance, when corruption is reduced and democracy-reinforcing principles are introduced - not simply when the government decides to withdraw. 112 In this sense, much like installing oversight in the first place,  [*2173]  devising a mechanism whereby the oversight will end vindicates the notion of union democracy. 113

The second problem with potentially unending oversight involves the representativeness of the officials who agreed to the oversight. Although the government's complaint sought to take the old guard's pensions and bar its corrupt members from the union, 114 the Consent Decree allowed the pensions to be paid. 115 At the very least, this leaves a perception that the union leadership brokered a deal that would preserve their interests (i.e., their pensions) at the expense of the Teamsters rank and file (i.e., expensive, potentially unending oversight). It is also not clear that the interests of the rank and file were taken into account in events leading up to the Consent Decree. 116 Moreover, in a peculiar constitutional maneuver, pursuant to the Consent Decree, the democratically elected delegates at the new convention were "forced to vote to accept changes in their union's fundamental law that the discredited old guard had negotiated, whether the delegates wanted to or not." 117 Thus, the rank and file had reason to question the circumstances surrounding the signing of the Consent Decree. 118

 [*2174]  Third, potentially unending governmental intervention can backfire and undermine a movement to end corruption. Early attacks on Jimmy Hoffa's Teamsters led to "a sense of defiance" amongst the rank and file. 119 Union advocates frequently view trusteeships as a form of union busting. 120 Corrupt officials can use the government's intrusiveness as a potent rallying cry in union elections - shifting the focus from the clean up effort to the government's intrusiveness. 121

Fourth, unlimited oversight gives too much power to politicians and their appointees who may decide when the oversight should end. The prosecution of the Teamsters had political implications throughout. Rudolph Giuliani, then the U.S. Attorney in the Southern District of New York, wanted to file suit before the Justice Department's Organized Crime and Racketeering Department could do so. 122 There is no indication that the political undercurrent of the Teamsters oversight has disappeared. 123 In deciding to end oversight, one of two undesirable results may occur: political pressure may result in either an inappropriate extension or an inappropriate termination of the oversight. First, because of the failures of limited oversight in the past, a prosecutor has no real incentive to seek termination of the Teamsters oversight. 124 The prosecutor  [*2175]  is not directly accountable to the union because the prosecutor is a political appointee. Moreover, a federal prosecutor in New York is unlikely to be swayed by union members who are dispersed throughout the nation. 125 Prosecutors can more realistically be charged with the duty of eliminating corruption than weighing the union's interest in democracy and autonomy. Realistically, the U.S. Attorney's only real incentive is to do its job in fighting crime, and since there will always be corruption in a union, it becomes difficult for the U.S. Attorney to end oversight without the aid of any guiding principles beyond "fight crime."

Alternatively, the political forces involved could push for oversight to end, possibly prematurely. For instance, there was speculation that the Teamsters endorsement in the 2000 presidential election was going to the candidate who was willing to end oversight. 126 Thus, there is the possibility that a politician could inappropriately put pressure on the U.S. Attorney's Office to expedite the termination of the oversight - a problem as real and as dangerous as ending oversight too early.

These arguments for placing an outer limit on oversight are similar to the arguments cautioning against the use of strict trusteeships in the first place. 127 The more severe the oversight, the more important these arguments become. Ultimately, this Note argues for the prohibition of a certain extreme form of oversight - oversight that is potentially permanent even if the union significantly reduces corruption.

2. Defining a Trusteeship's Outer Limits. - How, then, in a case of significant corruption should a consent decree or judicial judgment be structured in determining when the oversight will end? What content should be given to oversight's outer limit? This analysis begins with a simple proposition that is not opposed by any party in the Teamsters case: Oversight should never be permanent. 128 Even in the most extreme cases, there must be some clearly defined mechanism in place to end oversight, or else the notion of autonomous, democratic unions is lost.

 [*2176]  Generally, the government has a few options in deciding who or what determines when oversight should end: (1) an expiration date determined by the court or located in a consent decree, (2) the government, or (3) the court. Each of these options can have variations. For instance, the government or court can have complete discretion in determining whether oversight should end, or the government or court can be compelled to evaluate the trusteeship based on criteria stated in a consent decree or court ruling. This Note argues that the court should determine when oversight should end based on set criteria.

First, expiration dates on trusteeships are problematic. As already noted, prior trusteeships with definite expiration dates often have to be extended by the court. 129 Oftentimes these trusteeships have been a failure in part because the government and courts have miscalculated the time it would take to reform the union. For example, corrupt union officials may think that they need only survive for a year or two until they can be back to business as usual. 130 Expiration dates on trusteeships simply allow the old regime to drag its feet. Corrupt union officials can make enough concessions to the government and convince the membership that the government is the enemy. Only by stressing the requirement of substantive change as a requirement for the expiration of the trusteeship will the government prevent corrupt union officials from manipulating the trusteeship. 131

Second, the government should not determine whether to end oversight, regardless of whether it is evaluating stated criteria. As already noted, government officials may be overly vigilant in maintaining oversight. 132 Government is in the business of establishing the trusteeship, which might indicate that the government is less likely to end the oversight. Moreover, because of political pressures that may influence the government officials, government cannot neutrally decide when oversight should end. 133 Even if the government used stated criteria to determine whether to end oversight, the government could manipulate the criteria in favor of maintaining the trusteeship past an appropriate termination time. 134

The best option, then, is the court. This Note contends that the most effective way to structure the consent decree or judicial judgment in cases of long-term and significant corruption is to establish oversight that ends only when a  [*2177]  judge decides that a set of clearly articulated, publicly known, and substantive criteria are met. 135 In this ideal situation, a federal judge 136 will evaluate the criteria after hearing oral arguments from both sides and soliciting amicus briefs from interested parties. 137 Thus, the government and union have an opportunity to have any competing views arbitrated. Perhaps once a year, the union would be required to provide an assessment of clean up efforts to the court and would have the option to petition to end the oversight. 138 Through this process, the court could inform the union what further steps need to take place in order for oversight to terminate.

To be sure, the government in a consent decree could manipulate this situation by designing criteria that would be difficult to satisfy in almost any situation. However, the judge signing the consent decree or issuing a decision can protect the interests of the rank and file by ensuring that the criteria are fairly written into the consent decree. At the very least, a court-appointed representative who is not part of the union's hierarchy should negotiate on behalf of the union, thus preventing the type of self-dealing by union leaders that may have occurred in the Teamsters case. 139 If the judge could not ensure that the consent decree is substantively fair, at least the judge can ensure that the rank and file are represented in negotiations leading up to a consent decree.

III. Setting the Criteria for Ending Trusteeships
 
Whenever there is oversight of a union with a history of significant corruption such as the Teamsters, the trusteeship or oversight should end  [*2178]  based on the application of predetermined, substantive criteria. 140 In the Teamsters Consent Decree, the government did not charge the court with the task of ending oversight, as has been recommended in this Note. Because the government did not defer to the courts and did not include in the Consent Decree any criteria regarding when the Teamsters oversight would end, this Note will approach the question from the perspective of what the government's approach should be. The government should adopt criteria based on the twin goals of oversight: reducing the amount of corruption and institutionalizing democracy-reinforcing principles. 141

In evaluating whether any given trusteeship should end, the actual criteria may vary depending upon the circumstances of each union. These two broad criteria are a benchmark - corruption and democratic failures are the two primary reasons oversight is necessary. The following discussion, then, concerns the Teamsters RICO injunction. However, with some modification in application, these same principles can be used in future consent decrees or court judgments in deciding when oversight of a union should end. 142

A. Criterion 1: Reducing Corruption
 
Because the government prosecuted a suit against the Teamsters with the RICO statute, one criterion for the end of governmental oversight  [*2179]  should be a significant reduction in corruption and a low threat of future corruption. This recognizes that every union, like any institution, is prone to some level of corruption. 143 One method for arriving at this anti-corruption criterion is to look at the elements of the RICO statute required to impose a RICO trusteeship in the first place.

The RICO statute makes it unlawful (1) for a person engaging in a "pattern of racketeering activity... to acquire or maintain, directly or indirectly, any interest in or control of any enterprise," or (2) "for any person employed by or associated with any enterprise... to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." 144 The first provision reaches organized crime outside of the union while the second provision reaches members working within the union. 145 These principal elements of the RICO statute should be taken into account in deciding whether or not to end the oversight. Years after the prosecution of the IBT, former Assistant United States Attorney Randy Mastro outlined a roadmap that could serve as a guide for anyone desiring to use the RICO statute against a union, pointing out the key elements of the RICO statute that need to be proven. 146 These two elements have thus become well known in many legal circles. 147

In determining when the oversight should end, the government should rephrase the question RICO asks. The government should ask: (1) do organized crime and the union leadership still maintain "control over the union through a pattern of racketeering activity, facilitated by union leadership"? and (2) do organized crime and the union leadership "use[ ] their control to conduct the affairs of the union through a pattern of racketeering activity"? 148

In deciding whether organized crime still controls or influences the union enterprise, the government could take into account previous criminal  [*2180]  RICO prosecutions, 149 investigative reports, 150 Fifth Amendment invocations, 151 and expert testimony. 152 The government is equipped to determine to what extent the international and the locals of any given union are controlled by organized crime. 153 One suggestion is for the government to evaluate the level of corruption of all unions every few years. This would provide a benchmark for determining which unions might require oversight and which unions no longer need to be supervised by the government.

However, even if the clean up reduces corruption to a level that would not warrant oversight in the first place, it may still be too early to end the trusteeship. A Teamsters corruption rate similar to other unions that are generally corruption-free would not take into account, for instance, the five decades of corruption that completely permeated the Teamsters union. There would remain the possibility that entrenched, corrupt elements in the union have gone underground, waiting until the trusteeship was lifted. 154

Thus, in order to determine whether the trusteeship should end, the government should take into account the RICO elements, with teeth. The anti-corruption factors to be evaluated should include: (1) a determination of whether RICO predicates 155 are still being prosecuted at an  [*2181]  alarming rate, (2) separate evaluations of RICO predicates in the international and the locals, (3) an evaluation of the extent to which the corruption permeated the union in the first place, and what bearing this might have on future corruption, (4) a determination of whether a trustee is the most effective method of reducing corruption, (5) a determination of whether the union has developed internal mechanisms to investigate current corruption and deter future corruption, and (6) an evaluation of the attitude of union officials and the rank and file toward corruption. Each of these six factors are addressed, in turn, below.

1. RICO Predicates. - Perhaps the most obvious indication of whether oversight should end is the number of RICO predicates committed by members of the union. The Consent Decree gives the Independent Review Board and investigations officers broad authority in prosecuting alleged RICO predicates. 156 Until the first valid IBT election, court-appointed officers had full access to examine books and records, to attend meetings of the General Executive Board, to take and require depositions, to require independent audits, and to oversee every stage of the IBT election. 157 Similarly, the permanent IRB had the authority to hire a staff of investigators at the expense of the union and look into any matters of corruption. Thus, the government is probably able to uncover at least the most flagrant violations.

An increasing number of RICO predicate offenses would indicate that corruption is still a threat. In fact, since the oversight began, over 200 officers have been removed from office. 158 Comparing this rate of violations to the rates in other unions could help the government determine to what extent corruption is a problem in the IBT. 159

 [*2182] 

2. RICO Predicates in the Locals Versus the International. - There is an important distinction between corruption in the Teamsters International and the Teamsters locals. 160 The Consent Decree with the Teamsters governs the IBT, or the International. Having locals that are generally free of corruption does not mean that the IBT is necessarily clean. 161 Moreover, the fact that some locals may still be under the thumb of organized crime does not necessarily mean that oversight of the International is still warranted. 162 While there is always the possibility that a powerful, corrupt local can capture an international, the government can prevent the realization of this scenario by using RICO to prosecute the local 163 or by allowing the international to use the Landrum-Griffin Act to establish a trusteeship. In distinguishing between the level of corruption in the local and the international, then, a clean international should not be subject to oversight merely because of a few corrupt locals. 164

3. History of Corruption. - As already noted, the duration of the corruption should have some bearing on the duration of the oversight. 165 Decades of corruption will not end overnight. 166 The lack of law and democracy in a union is a problem that cannot be overcome by removing a few union officials. How the government should take this into account is unclear; after 10 years of oversight, there is inevitably a significant amount of turnover in the officer ranks.

4. Effectiveness of Trusteeship. - The government should also evaluate the success of the trusteeship. For instance, if the trusteeship has been successful and RICO prosecutions are dwindling, the union rank and file can be turned against the trusteeship. A union candidate can claim that it is time for the trusteeship to end - a claim that will be popular among the rank and file if the perception exists that oversight has achieved its purpose. 167 Instead of allowing union officials to focus on the oversight  [*2183]  for political purposes, it would better serve the union and the government to fight corruption in other ways, such as internal monitoring. 168 This does not mean that the trusteeship should be eliminated as soon as union officials start using it as a political issue. Rather, if the union is showing success in weeding out corruption, and the union officials turn the rank and file's opinion against the trusteeship, then the government or union should consider other effective and less unpopular mechanisms of oversight.

5. Development of Internal Mechanisms. - The government should not terminate the trusteeship without the assurance that the union will continue efforts to prevent future corruption. Many unions have instituted internal mechanisms, such as investigatory boards that have successfully thwarted corruption. 169 If the Teamsters wanted oversight to end, the incentive would be to establish permanent, internal bodies that can investigate possible corruption and racketeering. 170

In fact, the Teamsters recently have established the exact type of plan that should be a prerequisite for oversight to end. First, in June 1999, Hoffa, Jr., hired Edwin Stier, the former federal prosecutor who cleaned up Local 560, to set up an "in-house anti-corruption program." 171 Then, the Teamsters unveiled a plan that includes a Teamsters code of conduct and an internal ethics board to monitor violations. 172  [*2184]  Additionally, the union agreed to conduct a study investigating the level of corruption that exists in the locals and share the results with the Justice Department. 173 The government can examine this plan to ensure that it is not merely a cosmetic change designed to coopt the government into prematurely ending oversight.

6. Attitude Toward Corruption. - Finally, the government should gauge both the union officers' and members' attitudes toward corruption. One indication might be the amount of cooperation the union gives to the IRB in its investigations and the amount of effort it gives to fight corruption in general. 174 The Teamsters' recent efforts to help convict former IBT president Carey's campaign manager for diverting over $ 885,000 in union funds from the Teamsters to Carey's campaign indicate some willingness to continue the clean up process. Finally, the Teamsters hiring of Stier, who headed the clean up of Local 560, and the new anti-corruption plan also indicate hostility toward corruption. 175

Of course, the government needs to determine if the union's changes are merely cosmetic - intended to end oversight without any serious consideration to ending corruption. The government can evaluate an internal board on a probationary basis. If the internal body actually serves a function similar to the IRB and eliminates some level of corruption, that is a factor militating in favor of ending oversight.

B. Criterion 2: Enhancing Democracy-Reinforcing Principles
 
Second, in deciding when oversight should end, the government should evaluate the institutionalization of democracy-reinforcing principles within the IBT. 176 The rationale behind this approach comes from the purposes of the RICO statute and the Landrum-Griffin Act.

Corruption is perpetuated in part by corrupt elements obtaining control over and manipulating the democratic processes in unions. Therefore, mechanisms need to be implemented that help prevent corruption from seeping back into the system. 177 Second, although the government  [*2185]  chose not to use the Landrum-Griffin Act to prosecute the Teamsters, 178 the Consent Decree is replete with Landrum-Griffin principles. 179 Either way, most agree that the purpose of the trusteeship should be to "reestablish an effective and vital democratic process within the union." 180

The question, then, is: What conception of union democracy should be required of the Teamsters before oversight should end? Should the Teamsters have to measure up to an ideal notion of union democracy? Should they be as democratic as similarly situated unions? Or should union democracy be more robust?

A notion of procedural change seems insufficient if not coupled with any real substantive change. For instance, if suspected racketeers are continually voted in by the rank and file, the union offers little democratic legitimacy. 181 Similarly, having only one person run for a given union office, while formally democratic, does little to forward the principle of substantive democracy. Because of the entrenched corruption of the Teamsters, the conception of democracy should include both these procedural mechanisms and substantive changes as discussed below.

1. The Failure of Landrum-Griffin Democracy. - The government's conception of the type of democracy necessary in unions is found most clearly in the Landrum-Griffin Act. The Act's central premise is that freedom of speech and equal rights in a union will lead to full union participation and thus a truly democratic union. 182

Title I of the LMRDA contains the members' Bill of Rights, the purpose of which is to ensure equal rights and freedom of assembly and speech, to regulate dues, to protect a member's right to sue, and to provide safeguards in disciplining members. 183 Title II requires full financial disclosure of the unions and their officials. 184 Title III prevents the abuse  [*2186]  of an international's trusteeship over a local. 185 Title IV ensures fairness in the election process, aiming to end the financial and physical coercion of union members. 186 Title V establishes a fiduciary duty of the union officials to the union's members. These guarantee union members a voice in the discussion of union policies. 187

However, Landrum-Griffin democracy is flawed. First, while the principles of Landrum-Griffin democracy appear to reflect an American conception of democracy, 188 the link between democracy and corruption is problematic. Democratic processes often fail to ensure democratic results. 189 Second, perhaps to a fault, the Landrum-Griffin Act attempted to maintain "minimum interference by Government in the internal affairs of any private organization." 190 Without adequate safeguards, the Landrum-Griffin Act permitted those in power to manipulate the processes to perpetuate their own power. 191 For instance, it eventually became the established rule in the union that "the interpretation of the union's own constitutions was to be entrusted to the incumbent union officers themselves." 192 This allowed the leadership to govern the rules of campaigns, elections, and anti-corruption provisions. Moreover, the Act failed to include a provision mandating a union code of ethics - an omission  [*2187]  that allowed corrupt officials to prosper. 193 At its best, Landrum-Griffin democracy is successful only when a union is already relatively democratic and corruption free. 194 Therefore, it is unsurprising that Landrum-Griffin democracy failed to prevent the spread of corruption in the Teamsters union. 195

The practical democratic measures required to end oversight should be more robust than required in Landrum-Griffin democracy. However, the keystone principles of Landrum Griffin democracy - ensuring fair elections, increasing union responsiveness to the rank and file, and assuring union officials' adherence to ethical conduct 196 - will still be central to any enhanced conception of union democracy.

This Note suggests that the government should determine what vision of union democracy should be encouraged. The union democracy model would have to be realistic and attainable. How close the Teamsters are to such a model should also determine whether oversight should end.

2. Procedural Changes: The Procedural Mechanisms Necessary for Oversight to End. - To start, democracy-reinforcing principles demand the adoption of procedural mechanisms as a prerequisite to the termination of oversight. In order to understand the importance of the Consent Decree in transforming Teamsters elections, one must understand the Teamsters incumbency machine. 197 The membership at the locals elected delegates, who in turn were often elected at the convention. 198 Actually, the Teamsters electoral process differed from that of other unions in only one significant respect: The IBT combined a vote for local officials with the vote for national delegates, instead of holding separate votes. 199 Many of the delegates, then, served on an ex officio basis. These procedures prevented local union members from choosing different local officials and national delegates, and the time lag between the local election and convention often prevented the membership from knowing the national issues that would later emerge. 200 In addition to intimidating and  [*2188]  coercing union members, organized crime subverted democracy and took control of the Teamsters.

Based on this pre-oversight system, it was not difficult for the government to establish a new system that reflected a conception of union democracy that empowered the rank and file. First, the Consent Decree established a number of procedures that are a starting point for fulfilling the procedural democracy requirement. The IBT Constitution was amended to ensure that delegates to the IBT International convention be "chosen by direct rank-and-file secret balloting shortly before the election." 201 Officers would "be elected by direct rank-and-file voting by secret ballot in unionwide, one-member, one-vote elections." 202 An Election Officer, charged with overseeing the elections, was given the authority to supervise the balloting process and distribute any materials about the election to the union membership. 203 These measures were all designed to ensure that the union leadership would reflect the ballot of the union rank and file. 204 The rules governing elections came down through the Election Rules. 205 Moreover, 11 of the 16 vice-presidents would run on a regional rather than on an at-large basis, resulting in a decentralization of power that allows potential challengers to develop a base of political power. 206

Without these safeguards, the leadership heading into the 1991 election "would have been able to steal the election." 207 Procedural safeguards applied by the Election Officer included a mail ballot, 208 slate voting for candidates, 209 and equal access to union publications during elections. 210 In conjunction with these procedures, the Election Rules  [*2189]  gave the Election Officer a strong remedial power, including the power to remove a nominee and to require the IBT to distribute campaign literature at the union's expense. 211

One commentator observes that these procedures have made the Teamsters election process more fair and more democratic than most other unions. 212 In assessing whether oversight should end, the government should ask the following questions: (1) To what extent are these democratic rules embedded in the union's rules? (2) Will the Election Rules survive after oversight? (3) Will there be an effective remedial body to enforce the electoral requirements? 213 If the government wanted to ensure union democracy, it could strengthen the laws that regulate union elections, perhaps by expanding the role of the Department of Labor.

If these rules are adopted by the union membership into the IBT Constitution, the interest of union self-governance will be served. An internal election committee may lack the remedial authority of a governmental official whose authority was broadly interpreted by a district court judge. However, these rules and procedures are more robust than the rules and procedures of similarly situated unions. 214 The model is already in place, and the Teamsters need only (1) establish its own electoral system that grants open access to the union newspaper, (2) police the polling places or establish mail-in voting, or (3) provide for supervision of ballot-counting by the Department of Labor or some other group not part of the incumbency. 215

 [*2190] 

2. Substantive Changes: The Results Necessary for Oversight to End. - As already noted, establishing the Landrum-Griffin conception of procedural democracy did nothing to eradicate organized crime from the Teamsters. 216 By the time Landrum-Griffin was passed, the Teamsters corruption had already become entrenched under Hoffa, Sr. In the forty years after it was passed, organized crime used the Teamsters infrastructure as its base of operations. The failure of the Landrum-Griffin to rid the Teamsters of corruption demonstrates the difficulty of installing democratic processes in the face of the manipulation and influence of incumbency. Unions generally steer towards oligarchy, 217 and if only one candidate runs for IBT General President each election, the democratic principle of accurate ballot counting becomes hollow. The government should not end oversight unless it is clear that the Teamsters has made substantive changes to these historical deficiencies.

The breadth and depth of substantive union democracy can be measured by examining a number of factors: (1) the development of a two-party system, (2) the extent of contested elections, (3) the level of rank-and-file participation, (4) the election of reform-minded candidates, (5) the officials' and members' attitudes toward democracy and reform, and (6) the extent to which the union is voluntarily embracing other democratic principles such as the separation of powers. The government should take these factors into account in determining whether the union's democracy is strong enough to warrant termination of oversight. These six factors are discussed below.

 [*2191]  A robust conception of union democracy includes the development of a two-party system. In a single-party system, the convention system limits the role of the delegates to the futile exercise of ratifying pre-determined choices made by the incumbent leadership. 218 The institutionalization of a second party can forestall the oligarchic tendencies of a union by challenging the incumbency to continue responding to the needs of the rank and file. 219 For instance, a reform party can provide credible opposition to fill a national slate. 220 The influence of the Teamsters' own reform party, TDU, is an example of the positive impact a second party can have on a union. In 1991, many commentators believed that TDU's organizing led to the election of Ron Carey, the first true reform candidate to win a national Teamsters election in fifty years. 221 The active TDU provided Carey with money and local organizing efforts that helped him win the election. 222 TDU also engaged in litigation that increased the substantive rights of members and protected the Landrum-Griffin rights of reform candidates. 223 Simply having a reform party, however, is not sufficient. TDU formed as a response to corruption, and over its twenty-year existence TDU required government support in its anti-corruption efforts. 224 Still, a healthy second party could help neutralize the incumbent advantage. 225

Next, the government should look at the election process. The government should ask: Who is being elected, and how great are their margins of victory? If the Teamsters elect IBT officers who have rumored ties to organized crime, then this may indicate regression and perhaps the oversight should not end. Meanwhile, the election of reform-minded candidates, the fair administration of elections, and a reduction in the number of abuses that occur during the course of elections are signs of  [*2192]  progress. 226 Also important might be the extent to which the rank and file vote in union elections. If voting turnout in union elections is generally low, an increase in turnout at the polls would indicate that the rank and file perceive that their votes count in the electoral process.

The government can also examine to what extent the union has adopted other democratic principles on its own. In its adoption of structural reform, the Teamsters could institute mechanisms that serve the democratic notions of separation of powers and checks and balances. While the legislative functions of the union are performed by the conventions at the national level and the executive functions are performed by elected officers, there is generally no equivalent to an independent judiciary. 227 This gives the executive officers the power to execute and interpret the laws of the union. 228 The Teamsters could establish an intra-union "supreme court" to resolve internal disputes. A judicial body would serve independent of the union hierarchy. This third branch could effectively prevent incumbents from manipulating the rules and possibly from becoming entrenched. 229 The Teamsters' current plan comes close to the notion of a Public Review Board, 230 but it does not seem to have the same authority.

Finally, the government can look to a number of factors that indicate the union's attitude toward democracy. Are the Teamsters enhancing democracy above and beyond the specific provisions of the Landrum-Griffin Act? Is the union giving effect to the principles of Landrum-Griffin democracy? Do members actually attend, speak freely at, and vote at union meetings? Do they express views, arguments, and opinions critical of union leadership and policies? Are members protected against discriminatory discipline? 231 The government should track the frequency of any union violations and the depth of worker participation. Finally, the government  [*2193]  should note the opinions of TDU. If the reform party does not think oversight should end, those views warrant the government's attention. 232

There is one note of caution that should be taken into account when evaluating the substantive criteria. It is unclear to what extent the government should expect the Teamsters to become as democratic as other unions. This Note has argued that, due to the unique and rich history of the Teamsters corruption, the government should expect more out of the Teamsters than is displayed by a federation such as the AFL-CIO. However, the government should not expect too much more. In part, Landrum-Griffin democracy failed the Teamsters because corruption and organized crime had already captured the Teamsters. 233 What would have happened had the Teamsters been clean at the time is unclear. Other large unions like the AFL-CIO and UAW prevented corruption from infiltrating the highest ranks. Moreover, most unions are not highly participatory. It is important to distinguish what non-democratic results stem from the natural oligarchy of unions and which stem from corrupt influence.

C. Can the Government or Courts Effectively Apply These Criteria?
 
Like any multi-factor test, this Note's proposal leaves some areas of uncertainty. For example, to what extent do RICO predicates need to be reduced? Should oversight end if the union devises internal monitoring but repeatedly elects officers with possible links to the old regime? 234 However, if clear, these publicly known criteria would be a tremendous improvement over the current system which allows the government to use complete discretion. Moreover, the government and courts can learn from experiences in other areas of institutional reform where balancing tests have been utilized. 235 With regard to some aspects of the plan, decisionmakers can use hard data, such as devising an acceptable rate of illegal activity. Other areas do not lend themselves to such precise calculations.

Applying these criteria would be difficult. The judge, government officials, or master panel making the decisions would have to make hard choices. The people making these choices should be knowledgeable and apolitical.

 [*2194] 

IV. Conclusion
 
In 1989, after initiating a RICO suit, the government entered into a Consent Decree with the Teamsters that sought to address the corruption that had become indistinguishable from the union itself. The government, appreciating the magnitude of corruption that permeated the union since the 1950s, was right to insist upon a harsh remedy - a federally controlled trusteeship that would essentially run the Teamsters. However, by not providing a mechanism by which oversight would end or revert to internal monitoring, the government jeopardized the very principles of democracy and self-governance that it sought to instill within the union. The government would have better served the interests of the union by including in the Consent Decree a provision that allowed the courts to decide when oversight should end by applying clearly articulated and publicly known criteria. The government did not list any criteria that would be used to determine when oversight would end. This Note proposes two broadly defined substantive criteria that should be adopted and made public by the government. 236 These criteria reflect the purposes of the RICO suit - to eliminate organized crime's control over the IBT and to enhance democracy-reinforcing mechanisms within the union.

Over the past ten years, the federal oversight of the Teamsters has dramatically improved the union. More than ever, the union represents the interests of the rank and file. However, since there may always be doubts about whether the Teamsters are free of corruption, the current oversight is potentially unending. As the legitimacy of the oversight becomes increasingly dubious, an articulation of substantive criteria as a guide for ending oversight might be the torchbearer of union democracy and self-governance for the Teamsters.



FOOTNOTES:


Click here to return to the footnote reference.n1. Steven Greenhouse, Teamsters Push to End Decade of Supervision, N.Y. Times, Aug. 14, 1999, at A1 [hereinafter Greenhouse, Supervision]. The full name of the Teamsters is the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (IBT or Teamsters). Founded in 1903, the union had 1.4 million members in 1999. See id. For a discussion of the structure of the Teamsters, see infra note 22.



Click here to return to the footnote reference.n2. The elder Hoffa led the union from 1957 to 1967, and he served a sentence for jury tampering while in office. The reason for his disappearance in 1975 continues to engage the attention of conspiracy theorists.



Click here to return to the footnote reference.n3. That it is exculpatory to say that one is as guilty of corruption as the next is a questionable proposition. Still, the younger Hoffa states that his father would approve of his recent efforts at cleaning up the union: "I think he'd be proud of what I'm doing." Alice Ann Love, Hoffa: Union Will Police Itself, Associated Press, July 30, 1999, available in 1999 WL 22028534 [hereinafter Love, Hoffa].



Click here to return to the footnote reference.n4. In order, the Teamsters' presidents leading up to the 1989 oversight were Dave Beck, 1952-57, James Hoffa, Sr., 1957-67, Frank Fitzsimmons, 1967-81, Roy Williams, 1981-83, Jackie Presser, 1983-88, and William McCarthy 1988-92.



Click here to return to the footnote reference.n5. For an in-depth account of the Teamsters corruption, see generally Michael J. Goldberg, Cleaning Labor's House: Institutional Reform Litigation in the Labor Movement, 1989 Duke L.J. 903.



Click here to return to the footnote reference.n6. The Landrum-Griffin Act (formally known as the Labor-Management Reporting and Disclosure Act of 1959, or LMRDA) was a congressional response to corruption in unions, particularly the Teamsters. 29 U.S.C. 401-531 (1994). In the late 1950s, in order to investigate corruption in unions, the Special Select Committee on Improper Activities in the Labor or Management Field was formed within the Permanent Subcommittee on Investigations. In 1957, Subcommittee Chairman Senator John McClellan assembled the largest investigative team in congressional history - known as the McClellan Committee - and investigated labor corruption, including the link between unions and organized crime. The final report documented the close ties between the Teamsters and organized crime. The McClellan Committee's final report stated that "Hoffa, more than any other single individual, must bear the responsibility for specific provisions of the law that is now on the Nation's statute books." S. Rep. No. 86-1139, pt. 3, at 731 (1960); see also Sam Nunn, The Impact of the Senate Permanent Subcommittee on Investigations on Federal Policy, 21 Ga. L. Rev. 17, 27-29 (1986) (discussing the formation and effect of the LMRDA in the context of the history of the Senate Permanent Subcommittee on Investigations).



Click here to return to the footnote reference.n7. The structure of most large unions is marked by the relationship between the local union and the national or international union. The local union [hereinafter local] is comprised of union members in a specific geographic region. Locals have their own rules and organization, and they negotiate their own local contracts. Combined, the locals make up the national or international union, such as the IBT. The international represents the common interests of the locals, and it negotiates national contracts. The Teamsters have about 600 locals. See Greenhouse, Supervision, supra note 1. For a discussion of the Teamsters organization, see infra note 22.



Click here to return to the footnote reference.n8. See Goldberg, supra note 5, at 904.



Click here to return to the footnote reference.n9. For the purposes of this paper, "Cosa Nostra" refers to the mob in the United States; it does not refer to a specific component of organized crime such as the mafia, which can be traced back to southern Italy. Cosa Nostra comes from the Italian expression, "Questa e una cosa nostra," or "This is an affair of ours." Literally, Cosa Nostra means "our thing." When the government first heard the expression Cosa Nostra as used by the mob, the FBI thought that it was a proper noun and added "La," resulting in "La Cosa Nostra." This linguistic mistake translates to "the our thing." When the McClellan Committee investigated organized crime in the late 1950s, the words "Cosa Nostra" were used in a public forum for the first time in describing the criminal syndicate. Since the term "La Cosa Nostra" is frequently used in the government's 1989 complaint against the Teamsters, La Cosa Nostra and Cosa Nostra will be used interchangeably. See Donald R. Cressey, The Functions and Structure of Criminal Syndicates 33 (1967).



Click here to return to the footnote reference.n10. At this writing, Giuliani is the Mayor of the City of New York.



Click here to return to the footnote reference.n11. See generally Kenneth Crowe, Collision: How the Rank and File Took Back the Teamsters 13-16 (1993) (discussing the beginnings of Giuliani's efforts to break organized crime's control over the Teamsters).



Click here to return to the footnote reference.n12. In the most general terms, RICO makes it a crime to engage in a pattern of racketeering activity in the control of or participation in an enterprise. For a discussion of RICO and predicate violations, see infra note 155.



Click here to return to the footnote reference.n13. See Goldberg, supra note 5, at 906.



Click here to return to the footnote reference.n14. Consent Decree, United States v. Int'l Bhd. of Teamsters, 905 F.2d 610 (2d Cir. 1990) (No. 88 Civ. 4486) [hereinafter Consent Decree].



Click here to return to the footnote reference.n15. Until his death in August 2000, Judge David N. Edelstein, who was assigned the case leading to the Consent Decree, presided over the derivative litigation of the Consent Decree. See United States v. Int'l Bhd. of Teamsters, 905 F.2d. 610, 612 (2d Cir. 1990).



Click here to return to the footnote reference.n16. See generally George Kannar, Making the Teamsters Safe for Democracy, 102 Yale L.J. 1645, 1669-79 (1993) (outlining Carey's reforms in the months following his inauguration).



Click here to return to the footnote reference.n17. See Greenhouse, Supervision, supra note 1. However, Carey was later thrown out of the union for illegally receiving funds in the 1996 election. See Glenn Burkins, Teamsters Seek More Prosecutions in Fund Raising in Wake of Conviction, Wall St. J., Nov. 22, 1999, at B16 [hereinafter Burkins, Prosecutions]. It is unclear what impact this scandal will have on reform efforts.



Click here to return to the footnote reference.n18. See Greenhouse, Supervision, supra note 1. The Consent Decree required the union to pay for all costs related to the clean up. The IRB has cost $ 17 million, while the oversight of the last three elections has cost $ 38 million. The salaries of the IRB members and staff comprise a large percentage of this cost. See id. The Teamsters object to the oversight primarily on two grounds: the expense of the oversight and the loss of union autonomy.



Click here to return to the footnote reference.n19. See Glenn Burkins, Teamsters to Unveil Anticorruption Plan: Union Chief Hoffa Aims to Bring End to Years of Federal Oversight, Wall St. J., Jan. 11, 2000, at A2 (noting that the Teamsters, at the time, were the final large union uncommitted to backing Vice President Al Gore's campaign). The Teamsters, though, were not only interested in ending oversight in connection with the presidential election. Hoffa had been a vocal opponent of the Clinton and Gore administration's stand on trade liberalization measures. See Steven Greenhouse, A Rising Tide, but Some Boats Rise Higher Than Others, N.Y. Times, Sept. 3, 2000, at 4, at 3. Ultimately, the Teamsters endorsed Gore in September 2000, despite his not having promised to end oversight. See infra text accompanying note 126.



Click here to return to the footnote reference.n20. See Greenhouse, Supervision, supra note 1.



Click here to return to the footnote reference.n21. See id.



Click here to return to the footnote reference.n22. In order to understand the corruption, it is important to understand the organization of the Teamsters union. The International Brotherhood of Teamsters represents a diverse number of industries; there are about 568 Teamsters local unions across North America. The locals negotiate most contracts and provide services to the members. Locals elect their own officers and vote on their own bylaws consistent with the International Constitution and Bylaws. Teamsters joint councils coordinate Teamsters activities in areas where there are a number of local unions. Finally, the IBT coordinates national contracts and political action, trains and educates local leaders, and assists the locals. The union is "International" because of a number of Canadian locals.

The General President and General Secretary-Treasurer serve as the chief officers of the IBT. The union's General Executive Board consists of 17 vice presidents elected at Convention on a geographic basis. At the International Convention, national officers are elected, the Constitution and Bylaws are amended, and the union's national policy is set. See Teamsters' Structure (visited Sept. 5, 2000) <http://www.teamster.org/about/structur. html> (on file with the Columbia Law Review).



Click here to return to the footnote reference.n23. More precisely, all prior government oversight of unions in the United States included some mechanism for ending oversight. Moreover, the Teamsters oversight continues to be the only government trusteeship of a large union without an ending mechanism. See generally, Goldberg, supra note 5, at 916-27, 931-38, 942-46, 965-83 (discussing the government's role in other unions' oversight).



Click here to return to the footnote reference.n24. See President's Commission on Organized Crime, The Edge: Organized Crime, Business, and Labor Unions, Report to the President and the Attorney General 89 (1986) [hereinafter President's Commission]. The President's Commission, the largest investigation into organized and labor unions since the McClellan Committee, had been asked to identify the link between crime and the American economy.



Click here to return to the footnote reference.n25. See id. at 89; John Hutchinson, The Imperfect Union: A History of Corruption in American Trade Unions 230-33 (1970).



Click here to return to the footnote reference.n26. See President's Commission, supra note 24, at 90. Even Roy Williams, Teamsters president from 1981 to 1983, admitted that organized crime had a "powerful hold" over Hoffa. Id. at 90-91. It is unclear how organized crime first asserted control over Hoffa. Understanding the nature of elections provides one theory. Each local, regardless of size, had one vote to elect the IBT president at the national convention. A New York crime family created paper locals - locals existing only on paper - and this mob family controlled the delegates of these paper locals to ensure Hoffa's election. In this sense, Hoffa was indentured to the mob. See Nunn, supra note 6, at 28-29.



Click here to return to the footnote reference.n27. It is almost beyond debate that the mob murdered Hoffa. See President's Commission, supra note 24, at 89. However, the location of his body remains a subject of considerable speculation and controversy.



Click here to return to the footnote reference.n28. See id. at 90. Fitzsimmons died from natural causes in 1981.



Click here to return to the footnote reference.n29. See id.



Click here to return to the footnote reference.n30. See id. at 90, 96; see also Crowe, supra note 11, at 32-45 (discussing federal investigations into Presser's administration). In 1974 Presser reportedly attempted to bribe Williams to support a loan. See President's Commission, supra note 24, at 110 (describing Labor and Justice Departments' investigations of Presser).



Click here to return to the footnote reference.n31. See, e.g., President's Commission, supra note 24, at 102-06 (discussing the engineering of the Presser administration). For a discussion of the electoral process, see infra text accompanying notes 197-200.



Click here to return to the footnote reference.n32. See President's Commission, supra note 24, at 1 ("By manipulating the supply and the cost of labor, organized crime can raise its competitor's cost, force legitimate businesses to deal with mob-run companies, and enforce price fixing, bid-rigging, and other anti-competitive practices throughout an industry.").



Click here to return to the footnote reference.n33. See Goldberg, supra note 5, at 906. In many ways, a local union becomes captured much like a bureaucracy can be captured by lobbyists. For a discussion of agency capture, see Clayton P. Gillette & James E. Krier, Risk, Courts, and Agencies, 138 U. Pa. L. Rev. 1027, 1064-70 (1990).



Click here to return to the footnote reference.n34. The lead example of the Teamsters suppressing a minority group involves the reform party Teamsters for a Democratic Union (TDU). In one incident, the members of the Brotherhood of Loyal Americans and Strong Teamsters (BLAST) - a group started by then-president Presser in order to "bloody the TDU" - raided the TDU's annual national convention. The local, county, and state police had to intervene to restore order. See Crowe, supra note 11, at 19. Presser congratulated the participants in the raid, noting "we should be doing more of that." President's Commission, supra note 24, at 117.



Click here to return to the footnote reference.n35. See President's Commission, supra note 24, at 2 ("Influence over the[ ] locals enables organized crime to dominate the international unions and acquire a foothold in the marketplace."). Roy Williams indicated that no major Teamsters decisions could be made without taking into account the key local unions, such as Local 560. See id. at 98. In fact, Local 560 is the premier example of how a local can control an international. For a thorough discussion of Local 560, see generally James B. Jacobs & David N. Santore, The Liberation of IBT Local 560, Crim. L. Bull. (forthcoming 2001 and on file with the Columbia Law Review).



Click here to return to the footnote reference.n36. The international or national can do this by vetoing a local's bylaws or even using the Landrum-Griffin Act to install a trusteeship over the local. The McClellan Committee found Teamsters trustees controlled 13% of the Teamsters locals. Teamsters' president Jimmy Hoffa controlled 17 locals as a trustee. See James R. Beaird, Union Trusteeship Provisions of the Labor-Management Reporting and Disclosure Act of 1959, 2 Ga. L. Rev. 469, 486 (1968).



Click here to return to the footnote reference.n37. This phenomenon has been described by some academics, but it has never been given a label. This Note will use the expression "reciprocal effect" because it makes a complex theory more accessible in discussing union corruption and remedies.



Click here to return to the footnote reference.n38. For the purposes of this Note, labor racketeering is "the use of union power for personal benefit." G. Robert Blakey & Ronald Goldstock, "On the Waterfront": RICO and Labor Racketeering, 17 Am. Crim. L. Rev. 341, 341 (1980).



Click here to return to the footnote reference.n39. See Goldberg, supra note 5, at 909-10.



Click here to return to the footnote reference.n40. Strike insurance occurs when the corrupt union official accepts payments for the assurance that there will be no work stoppage. See President's Commission, supra note 24, at 18-20; Goldberg, supra note 5, at 910. Local 560 was notorious for extorting payments for labor peace. See United States v. Provenzano, 620 F.2d 985, 990-91 (3d Cir. 1980); Goldberg, supra note 5, at 911.



Click here to return to the footnote reference.n41. A sweetheart deal, welcomed by a corrupt employer, occurs when a corrupt union official submits an extremely low bid in exchange for a payoff by the employer. The union worker is obviously made worse off by this arrangement. See Goldberg, supra note 5, at 910; see also President's Commission, supra note 24, at 16-18.



Click here to return to the footnote reference.n42. In 1986, these funds had assets totaling over $ 51 billion. For a more thorough discussion of how organized crime uses labor unions, see President's Commission, supra note 24, at 9-32. It often takes years to discover these abuses. See Goldberg, supra note 5, at 912.



Click here to return to the footnote reference.n43. See Goldberg, supra note 5, at 912; President's Commission, supra note 24, at 114. All IBT presidents since Dave Beck have had their lives threatened by various elements of organized crime within the Teamsters. Jackie Presser called the office of IBT Presidency the "electric chair" or "death chair." Id. at 122.



Click here to return to the footnote reference.n44. See Goldberg, supra note 5, at 919-20.



Click here to return to the footnote reference.n45. Title II of the Landrum-Griffin Act requires the filing of financial reports, and with just cause a member can demand to inspect those records. See 29 U.S.C. 431-433 (1994).



Click here to return to the footnote reference.n46. See Goldberg, supra note 5, at 917-18.



Click here to return to the footnote reference.n47. See 29 U.S.C. 402(h) (1994) (defining a trusteeship).



Click here to return to the footnote reference.n48. See Goldberg, supra note 5, at 920-22.



Click here to return to the footnote reference.n49. Professor Summers first advanced the theory of public review boards in the 1950s. See Clyde W. Summers, ACLU, Democracy in Labor Unions: A Report and Statement of Policy 15 (1952); see also Goldberg, supra note 5, at 923-25 (discussing public review boards).



Click here to return to the footnote reference.n50. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1298-1302 (1976) (discussing the possibilities of a court's administration of institutional remedies).



Click here to return to the footnote reference.n51. See Goldberg, supra note 5, at 936-37.



Click here to return to the footnote reference.n52. See, e.g., Leslie Marshall, Note, The Right to Democratic Participation in Labor Unions and the Use of The Hobbs Act to Combat Organized Crime, 17 Fordham Urb. L.J. 189, 189-201 (1989) (noting that Landrum-Griffin trusteeships frequently work to perpetuate corruption by allowing the corrupt international to take advantage of a local).



Click here to return to the footnote reference.n53. Title IX of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922 (codified as amended at 18 U.S.C. 1961-1968 (1994)). To better understand the benefits of using RICO or Landrum-Griffin, see Garth L. Mangum, RICO Versus Landrum-Griffin as Weapons Against Union Corruption: The Teamster Case, 40 Lab. L.J. 94 (1989).



Click here to return to the footnote reference.n54. See 18 U.S.C. 1964(a) (1994).



Click here to return to the footnote reference.n55. Congress did not pass RICO with the motive that the Teamsters could be placed in a trusteeship. RICO was passed in 1970, and the government only used RICO against the Teamsters in 1989.

There are three situations in which the courts have deemed it proper to impose a RICO trusteeship: (1) when organized crime controls the labor union, (2) when little union democracy exists, and (3) when the public safety is at risk. See Steven T. Ieronimo, Note, RICO: Is It a Panacea or a Bitter Pill for Labor Unions, Union Democracy, and Collective Bargaining?, 11 Hofstra Lab. L.J. 499, 515 (1994).



Click here to return to the footnote reference.n56. While Congress intended civil RICO to be used against unions captured by organized crime, it is not clear how Congress intended the statute to affect the rights of union members. At the time the government used RICO against the Teamsters, civil RICO had been used only 14 times in the statute's twenty-year history. Half of these suits were brought against unions and their leaders. See Eric J. Pritchard, Comment, RICO and Labor Corruption: The Propriety of Court-Imposed Trusteeships, 62 Temp. L. Rev. 977, 985-86 (1989).



Click here to return to the footnote reference.n57. See Goldberg, supra note 5, at 994. See generally Crowe, supra note 11, at 13-22 (discussing the events immediately leading up to the decision to pursue a RICO civil injunction against the Teamsters).



Click here to return to the footnote reference.n58. See Complaint at 5-6, United States v. Int'l Bhd. of Teamsters, 88 Civ. No. 4486 (S.D.N.Y. June 28, 1988) [hereinafter Complaint].



Click here to return to the footnote reference.n59. See supra note 9.



Click here to return to the footnote reference.n60. See Complaint, supra note 58, at 1. The government alleged that La Cosa Nostra engineered the IBT presidential elections of Roy Williams and Jackie Presser. See id. at 31-39.



Click here to return to the footnote reference.n61. Government's Memorandum of Law in Support of its Motion for Preliminary Relief 9, United States v. Int'l Bhd. of Teamsters, 88 Civ. 4486 (S.D.N.Y. June 28, 1988).



Click here to return to the footnote reference.n62. See Order at 4-5, United States v. Int'l Bhd. of Teamsters, 88 Civ. 4486 (S.D.N.Y. July 7, 1988). The government hoped to avoid an evidentiary hearing because it had proven many of its allegations in prior cases. See Goldberg, supra note 5, at 995.



Click here to return to the footnote reference.n63. See Consent Decree, supra note 14, at 1.



Click here to return to the footnote reference.n64. See id. at 7-18; Kannar, supra note 16, at 1661-63.



Click here to return to the footnote reference.n65. See Consent Decree, supra note 14, at 15-16.



Click here to return to the footnote reference.n66. Under the original IBT Constitution, local union officers served as delegates to the IBT Convention. At the Convention, the delegates nominated and elected the IBT officers. For a discussion of how this practice entrenched the bureaucracy, see infra text accompanying notes 197-200.



Click here to return to the footnote reference.n67. See Consent Decree, supra note 14, at 16.



Click here to return to the footnote reference.n68. See id. at 23.



Click here to return to the footnote reference.n69. See id. at 19.



Click here to return to the footnote reference.n70. See id.



Click here to return to the footnote reference.n71. Id. at 20.



Click here to return to the footnote reference.n72. See id. at 22.



Click here to return to the footnote reference.n73. See id. at 23.



Click here to return to the footnote reference.n74. Frank Swoboda, U.S. Sues to Take over Teamsters: Immediate Trusteeship Is Sought to Squeeze Out Mob Influence, Wash. Post, June 29, 1988, at A1 (quoting Rudolph Giuliani, then-United States Attorney for the Southern District of New York).



Click here to return to the footnote reference.n75. For a partial discussion of other possible remedies, see supra text accompanying notes 44-50.



Click here to return to the footnote reference.n76. Clyde W. Summers, Union Trusteeships and Union Democracy, 24 U. Mich. J.L. Reform 689, 690 (1991) [hereinafter Summers, Union].



Click here to return to the footnote reference.n77. The first suggestion of a receivership developed from a 1932 case, Kaplan v. Elliot, 261 N.Y.S. 112, 119-20 (Sup. Ct. 1932). For a more in-depth analysis of the history of receiverships, see Goldberg, supra note 5, at 931-38.



Click here to return to the footnote reference.n78. Another example is the Laborer's International Union of North America (Laborers International), which represents 400,000 laborers and 900 locals. Until the mid-1990s, the government limited anti-corruption efforts to criminal prosecutions. It was not until the government forced real internal change in 1995 that the union began to reduce corruption. See President's Commission, supra note 24, at 160-62 (discussing weak anti-corruption efforts through the 1980s); Robert Manor, Union Reaches Deal to End U.S. Oversight, Chi. Sun-Times, Jan. 21, 2000, at 55 (discussing the internal remedies of Laborers International).



Click here to return to the footnote reference.n79. When Dave Beck decided not to seek another term in 1957, Hoffa became front-runner for General President. Hoffa had already become a target of the McClellan Committee's investigation into corruption in labor unions, and the AFL-CIO threatened that a Hoffa victory would mean the Teamsters would be expelled from the Federation. For more information about the McClellan Committee's concentration on the Teamsters, see generally, Janice R. Bellace & Alan D. Berkowitz, The Landrum-Griffin Act: Twenty Years of Federal Protection of Union Members' Rights (1979). To guarantee an election victory, Hoffa stacked the convention with 500 illegally selected delegates. See Goldberg, supra note 5, at 984-85.



Click here to return to the footnote reference.n80. Consent Decree, Cunningham v. English, C.A. 2361-57 (D.D.C. Jan. 31, 1958), reprinted in English v. Cunningham, 269 F.2d 517 app. at 532-35 (D.C. Cir. 1959), cert. denied, 361 U.S. 905 (1959) [hereinafter Consent Order].



Click here to return to the footnote reference.n81. The tasks of the Board of Monitors included recommending model by-laws to the locals, reviewing the status of Teamsters locals under intra-union trusteeships, establishing methods to eliminate mismanagement of monies, and ensuring that delegates to the next convention would be properly selected. See Goldberg, supra note 5, at 986.



Click here to return to the footnote reference.n82. See Consent Order, 269 F.2d at 534.



Click here to return to the footnote reference.n83. Goldberg, supra note 5, at 987.



Click here to return to the footnote reference.n84. See Initial Report of the Board of Monitors 10, Cunningham v. English, C.A. 2361-57 (D.D.C. Aug. 6, 1958).



Click here to return to the footnote reference.n85. Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 401-531, at 411 (1994).



Click here to return to the footnote reference.n86. Other reasons for failure include: the Board not being able to remove officers, infighting amongst the monitors and amongst the plaintiffs, footdragging by the union, possible corruption within the Board, and an appeal to extend the expiration date of the Board. See Goldberg, supra note 5, at 989-94.



Click here to return to the footnote reference.n87. The district court found in 1984 that the 8000-member local in New Jersey had been "infiltrated and ultimately captured" by Tony Provenzano, a prominent member of the Gambino crime family. United States v. Local 560, Int'l Bhd. of Teamsters, 581 F. Supp. 279, 282 (D.N.J. 1984),, aff'd, 780 F.2d 267 (3d Cir. 1985), cert. denied, 476 U.S. 1140 (1986).



Click here to return to the footnote reference.n88. Judge Harold A. Ackerman was the judge.



Click here to return to the footnote reference.n89. Goldberg, supra note 5, at 971 (quoting Letter from Edwin H. Stier, court-appointed trustee, to Judge Harold A. Ackerman (Dec. 4, 1987), reprinted in 560 Free Press, Dec. 1987, at 6).



Click here to return to the footnote reference.n90. See Goldberg, supra note 5, at 972-73.



Click here to return to the footnote reference.n91. Id. at 974.



Click here to return to the footnote reference.n92. See Pritchard, supra note 56, at 1000.



Click here to return to the footnote reference.


Click here to return to the footnote reference.n94. The notion of oligarchic bureaucracy in unions was developed 70 years ago by Robert Michels. Union members, driven by ambition, greed, and power, seek office. These officials monopolize the technical and political expertise, the ability to discipline members, the political process, the effective forms of communication, patronage, the union's legal counsel, and the credit for winning contracts. Challenging these officials becomes difficult. When corruption is injected into this equation, then union officials add intimidation and coercion to their list of controlling mechanisms. For the best overview of oligarchy in unions, see Roger C. Hartley, The Framework of Democracy in Union Government, 32 Cath. U. L. Rev. 13, 62-92 (1982); see also Robert Michels, Political Parties (1915) (analyzing the oligarchic tendencies of unions); Seymour Martin Lipset, The Political Process in Trade Unions: A Theoretical Statement, in Labor and Trade Unionism 216, 237 (Walter Galenson & Seymour Martin Lipset eds., 1960) (concluding that unions as organizations are conducive to the formation of oligarchies, and arguing that the strength of the oligarchy will vary with the degree to which members are involved in the organization); Eric Ames Tilles, Comment, Union Receiverships Under RICO: A Union Democracy Perspective, 137 U. Pa. L. Rev. 929, 935-39 (1989)) (discussing the factors that lead to oligarchy in unions).



Click here to return to the footnote reference.


Click here to return to the footnote reference.n96. For a discussion of the reciprocal effect of corruption, see supra text accompanying notes 33-37.



Click here to return to the footnote reference.


Click here to return to the footnote reference.n98. See id. at 1664-65; United States v. Int'l Bhd. of Teamsters, 905 F.2d 610, 618-20 (2d Cir. 1990) (upholding terms of Consent Decree against challenges to the Administrator's authority); Consent Decree, supra note 14, at 5-6.



Click here to return to the footnote reference.n99. With a termination date, corrupt officials "know that they need only hold their organization together until an election is held and the trusteeship is terminated." Honest members "are put on notice that after [the expiration date] they will lose protection and the paralyzing fear will continue." Summers, Union, supra note 76, at 702.



Click here to return to the footnote reference. 1 U. Pa. J. Lab. & Emp. L. 429, 449-50 (1998) (discussing efforts by the AFL-CIO "to change corporate governance and to promote workplace democracy").



Click here to return to the footnote reference.n101. See id. at 447-48 (discussing how NAFTA and GATT "have put domestic manufacturers and their employees in increasingly direct competition with low wage producers outside North America").



Click here to return to the footnote reference.n102. See Blakey & Goldstock, supra note 38, at 341-46.



Click here to return to the footnote reference.n103. See Crowe, supra note 11, at 1; Feldman, New, supra note 95, at 552-53; Goldberg, supra note 5, at 962-63; Kannar, supra note 16, at 1656-57; Summers, Union, supra note 76, at 691. But see Michael C. Liebman, Note, Governmental Civil RICO Actions and Labor Unions: Reorganization and Innocent Persons, 58 Geo. Wash. L. Rev. 125, 127 (1989)) (arguing that RICO does not empower federal courts to place unions in trusteeships).



Click here to return to the footnote reference.n104. Professor Goldberg notes three justifications for the principle that internal remedies are generally preferred over RICO trusteeships: (1) "to prevent unnecessary governmental interference," (2) "to promote responsible union self-government," and (3) "to conserve judicial resources." Goldberg, supra note 5, at 916. For a broader overview of how the government uses the RICO statute, see generally Paul E. Coffey, The Selection, Analysis, and Approval of Federal RICO Prosecutions, 65 Notre Dame L. Rev. 1035 (1990).



Click here to return to the footnote reference.n105. See, e.g., 29 U.S.C. 401-415, 481-483, 501-502 (1994).



Click here to return to the footnote reference.n106. S. Rep. No. 85-1684, at 4-5 (1958).



Click here to return to the footnote reference.n107. S. Rep. No. 86-187, at 7 (1959); see also Goldberg, supra note 5, at 938 (arguing that in enacting the Landrum-Griffin Act, Congress was guided by the general principle that the government should use equitable remedies only as a last resort).



Click here to return to the footnote reference.


Click here to return to the footnote reference.n109. See Summers, Union, supra note 76, at 689 ("I start from the fundamental premise that unions should be democratic."). Senator Orrin Hatch, a long-time union ally, believed that the government's interference with the Teamsters union was a "terrible precedent" that "flies in the face of democratic principles." See Kenneth R. Wallentine, A Leash Upon Labor: RICO Trusteeships on Labor Unions, 7 Hofstra Lab. L.J. 341 (1990).



Click here to return to the footnote reference.n110. Many believe that any trusteeship implicates a "central democratic value - the ability of the union members to make their own decisions." Feldman, New, supra note 95, at 561; see also Ieronimo, supra note 55, at 499 (calling the government's use of civil RICO "bitter medicine" as opposed to "poison"); Howard S. Simonoff & Theodore M. Lieverman, The RICO-ization of Federal Labor Law: An Argument for Broad Preemption, 8 Lab. Law. 335 (1992) (noting the increasing use of civil RICO lawsuits against unions by employers during labor disputes). But see Feldman, New, supra note 95, at 561-62 ("The main anti-democratic effect of the government's actions has been to remove individuals from eligibility from union office, and indeed from union membership, based on either their involvement in organized crime or their failure, as union officials, to have acted against those involved.").



Click here to return to the footnote reference.n111. See Kannar, supra note 16, at 1658 (noting that "a member's right to have a union free of corruption may not be entirely consistent with a member's right to exercise independent, autonomous control"). Specifically, the trusteeship may not allow the union workers to vote for certain officials or enact certain rules.

In the context of governmental interference, the Teamsters trusteeship has been compared to the Polish government's suppression of the Solidarity Movement. While the analogy may be flawed, it does underscore the idea that "freedom from government control is not only important to unions themselves, it is also one of the most important features distinguishing the Western democracies from more oppressive forms of government." Goldberg, supra note 5, at 1002.



Click here to return to the footnote reference.n112. In the oversight of the Laborers International, the government in 1995 told the union what needed to happen in order to avoid a trusteeship. The oversight of Laborers International has thus avoided the controversy of the Teamsters Consent Decree concerning the termination of the trusteeship. See Robert Manor, Union Reaches Deal to End U.S. Oversight, Chi. Sun-Times, Jan. 21, 2000, at 55.



Click here to return to the footnote reference.n113. This does not mean that the duration must be finite. Rather, this Note will later argue that the government should establish a stated criteria that could be evaluated in determining whether or not the trusteeship should end. See infra Part III.



Click here to return to the footnote reference.n114. See Complaint, supra note 58, at 106, 112.



Click here to return to the footnote reference.


Click here to return to the footnote reference.n116. The Second Circuit, however, found that the interests of the membership were represented because the provisions of the Consent Decree "broaden the rights of the IBT membership." United States v. Int'l Bhd. of Teamsters, 931 F.2d 177, 187 (2d Cir. 1991). This logic ignores the question of whether the interests of the rank and file were actually represented in the terms of the Consent Decree. Moreover, the signees of the Consent Decree were IBT officials who, according to the government, held office illegitimately. Instead, some of the rank and file argued that the Consent Decree should have been approved by the membership at a Teamsters constitutional convention. Id. at 184..



Click here to return to the footnote reference.

 
By no later than the conclusion of the IBT convention to be held in 1991, the IBT shall have formally amended the IBT Constitution to incorporate and conform with all of the terms set forth in this order by presenting said terms to the delegates for a vote. If the IBT has not formally so amended the IBT Constitution by that date, the Government retains the right to seek any appropriate action, including enforcement of this order, contempt or reopening this litigation..


 
See Consent Decree, supra note 14, at 5-6. The amendments were ultimately imposed through court order and upheld. See United States v. Int'l Bhd. of Teamsters, 905 F.2d 610, 622-23 (2d Cir. 1990);


Click here to return to the footnote reference.n118. The government gave the trustees the authority to pursue any corruption, not just corruption of La Cosa Nostra. See Kannar, supra note 16, at 1659 ("[A] real question exists as to whether this consent decree represents a broadening of the government's power beyond the limits Congress had believed appropriate."); see also Goldberg, supra note 5, at 1006-07 (arguing that a prerequisite for any trusteeship is that membership's interests should be represented).



Click here to return to the footnote reference.n119. Feldman, New, supra note 95, at 539.



Click here to return to the footnote reference.n120. Trusteeships oftentimes lead to a perception that the union is under siege by the government. This siege mentality can galvanize rank and file opposition to a trusteeship. See Tilles, supra note 94, at 965-66.



Click here to return to the footnote reference.n121. In fact, it is one of the largest obstacles to the current Teamsters' oversight that over $ 82 million of Teamsters' resources have been spent. See Greenhouse, Supervision, supra note 1.



Click here to return to the footnote reference.n122. See Crowe, supra note 11, at 14. Giuliani appealed initial decisions by the Justice Department to allow the Organized Crime and Racketeering Department to take the case. During the interim, Giuliani vigorously prosecuted the RICO statute, perhaps in order to influence Justice Department officials. The Justice Department ultimately allowed the D.C. office to control the investigation. See id. at 21-22. However, Giuliani was rewarded for his tenacity and was awarded the case in August 1987 when the Justice Department had misgivings about how the D.C. office was putting together the case. See id. at 66-67. Giuliani was known to have political aspirations, and a victory in the Teamsters prosecution would serve him well. See id. at 92 (comparing Giuliani to another famous New York prosecutor, Thomas Dewey, who later became governor of New York State).



Click here to return to the footnote reference.Randy Mastro contended that even in the face of 246 House members opposing the siege on the Teamsters, "there was never a moment when political considerations entered into the decision making on the case." Crowe, supra note 11, at 74 (internal quotation marks omitted).



Click here to return to the footnote reference.n124. In fact, Mary Jo White, the U.S. Attorney in the Southern District of New York and the federal officer in charge of the oversight, noted: "'The cleanup has done a tremendous amount of good, but it would be a mistake to say the union is corruption-free, mob-free... You don't want to say prematurely, 'It's fixed.' You don't want to backtrack.'" See Greenhouse, Supervision, supra note 1.



Click here to return to the footnote reference.n125. This is a far cry from suggesting that the attorney general is insulated from public desires. The relevant stressor on the U.S. Attorney in this instance is the general need to appear strong on crime. The historically scandal-ridden Teamsters have much less clout with the government than does the general electorate that appreciates a strong anti-crime stance.



Click here to return to the footnote reference.n126. See Greenhouse, Supervision, supra note 1. However, in September 2000, Hoffa officially endorsed the Gore-Lieberman ticket. The official reason for the endorsement did not include a pledge to end the oversight. See Steven Greenhouse, Teamsters Endorse Gore; Hoffa Says Choice Was Easy, N.Y. Times, Sept. 8, 2000, at A18.



Click here to return to the footnote reference.n127. See Goldberg, supra note 5, at 1002-09 (arguing that courts should structure the least intrusive remedy likely to be effective in cleaning up a union, in order to protect First Amendment free association rights as well as to foster union democracy, among other goals).



Click here to return to the footnote reference.n128. Despite the fact there is no indication in the Consent Decree as to when oversight will end, the government has always implied that oversight will not be permanent. See Greenhouse, Supervision, supra note 1 (noting that the U.S. Attorney's Office implies that oversight will end, but it does not specify a date or specific criteria).



Click here to return to the footnote reference.n129. See supra text accompanying notes 87-92.



Click here to return to the footnote reference.n130. See supra note 99.



Click here to return to the footnote reference.n131. See Summers, Union, supra note 76, at 701 (suggesting that "no fixed termination date should be stated or even suggested" when a trusteeship is imposed).



Click here to return to the footnote reference.n132. See supra text accompanying notes 122-126.



Click here to return to the footnote reference.n133. See supra text accompanying notes 123-125.



Click here to return to the footnote reference.n134. This Note ultimately argues that the government in the Teamsters instance should use criteria in its determination. However, this is because the U.S. Attorney's Office has the authority to end oversight. In future consent decrees with corrupt unions, the terms of the agreement or judicial decision should ensure that the court or an impartial panel apply the criteria.



Click here to return to the footnote reference.n135. The value of stated criteria is two-fold. First, stated criteria for the termination of oversight serves as yet another safeguard against the intrusion of a trusteeship. The value of democracy is reinforced by clearly defining the outer bound of the oversight. Second, union officials have an incentive to change the union if the government or court lists the criteria necessary for oversight to end. If certain changes are made, oversight will end. Ideally, union officials will not be able to campaign against a trusteeship; rather, officials will campaign to eliminate corruption and enhance union democracy in order to end oversight.

For the seminal article on the role of the court in institutional reform, see Chayes, supra note 51, at 1281. Chayes discusses the importance of a court-ordered decree in reforming complex institutions.



Click here to return to the footnote reference.n136. A federal judge will be in the best position to neutrally arbitrate the termination of oversight. See U.S. Const. Art. III, 1 (includes the lifetime tenure of federal judges and salary protection from the political branches).



Click here to return to the footnote reference.n137. An alternative would be to have the judge appoint a three-person panel to arbitrate the termination point. Because this is a 1.4 million member union, it is worthwhile to appoint knowledgeable arbitrators such as George Mitchell or Jimmy Carter, who have served in similar capacities dealing with international peace talks.



Click here to return to the footnote reference.


Click here to return to the footnote reference.n139. See supra text accompanying notes 116-123.



Click here to return to the footnote reference.n140. This fits with the principle of being extremely careful in the use of RICO trusteeships. For instance, Professor Goldberg lists ten "sentencing" guidelines to be used in determining whether the structure of a trusteeship is too dramatic. The list includes seeking "the least intrusive remedy likely to be effective," "designing union remedies that will promote union democracy," and ensuring that membership's interests are represented in court. Goldberg, supra note 5, at 1002-09 (punctuation omitted).



Click here to return to the footnote reference.n141. The Complaint and Consent Decree contain elements of these two goals. See Complaint, supra note 58, at 1; Consent Decree, supra note 14, at 1.

Ideally, the court should use these criteria. However, given that the court may not have the authority or motivation to overrule a valid consent decree, the criteria will be analyzed from the government's perspective. Thus, instead of asking, "What should the courts do?", this Note asks, "What should the government do given the current consent decree?" The answer to these two questions will be the same - the government should answer this question as a court would. This Note takes the government as the principal since it is in the position in this case to determine whether to end oversight. In all future consent decrees, the court should make this analysis.



Click here to return to the footnote reference.n142. The other significant example of comparable oversight is the Laborers International - a union of 800,000 members. In 1995, in order to avoid a trusteeship, the union agreed to weed out corruption internally. If the Laborers failed in its efforts, then the government retained the right to appoint a federal trustee. Recently, the deal with the government to cleanse the union internally was extended by the parties until 2006. In 2006, union delegates would be able for the first time to modify the terms of the federal oversight arrangement. In 2006 or at any other time, this Note recommends that the government could utilize these substantive criteria in determining whether or not to dictate the terms of the union's anti-corruption efforts. See Alice Ann Love, Laborers Union, Justice Reach Deal, AP Online, Jan. 20, 2000, available in 2000 WL 9749114 [hereinafter Love, Laborers].



Click here to return to the footnote reference.n143. See Clyde W. Summers, Democracy in a One-Party State: Perspectives from Landrum-Griffin, 43 Md. L. Rev. 93, 93-94 (1984)


Click here to return to the footnote reference.n144. 18 U.S.C. 1962(b), (c) (1994). See also 17 U.S.C. 1961(1) (Supp. IV 1998) (defining racketeering activity).



Click here to return to the footnote reference.n145. See Blakey & Goldstock, supra note 38, at 358-60 (comparing 1962(b) and 1962(c)).



Click here to return to the footnote reference.


Click here to return to the footnote reference.n147. A number of articles have dealt more explicitly with the elements of the RICO statute. See, e.g., Blakey & Goldstock, supra note 38, at 348-62 (discussing a portion of the RICO statute section-by-section); Ieronimo, supra note 55, at 500-04 (discussing the meaning of "racketeering," the "person," the "enterprise," and the "pattern"); Tilles, supra note 94, at 940-50 (explaining in detail "how RICO works").



Click here to return to the footnote reference.n148. Mastro et al., supra note 93, at 588.



Click here to return to the footnote reference.n149. Steadily increasing prosecutions or a rate of prosecutions far above similarly constituted unions would indicate that corruption still exists in a strong enough form to justify government intervention.



Click here to return to the footnote reference.n150. The United States government has proven very effective in detailing the amount of mob influence in labor unions. See, e.g., President's Commission, supra note 24, at 89-143 (examining the influence of organized crime on the IBT); see also Nunn, supra note 6, at 26-42 (noting the ability of special congressional bodies to effectively investigate the link between labor and the mob).



Click here to return to the footnote reference.n151. When a union official pleads the Fifth in refusing to testify about union corruption, the courts have allowed a negative inference to be drawn in a civil RICO action. See, e.g., United States v. Ianniello, 824 F.2d 203, 208 (2d Cir. 1987). Moreover, there is an AFL-CIO policy that union officials pleading the Fifth in a corruption investigation cannot hold union office. See Hotel Employees & Restaurant International Union: Hearings Before the Permanent Subcommittee on Investigations of the Senate Comm. on Governmental Affairs, 97th Cong., 2d Sess. 7 (1982).



Click here to return to the footnote reference.n152. See Mastro et al., supra note 93, at 592.



Click here to return to the footnote reference.n153. See, e.g, President's Commission, supra note 24, at 10-11 (reporting the results of a case study of organized crime's control over the construction industry).



Click here to return to the footnote reference.n154. See supra text accompanying notes 22-43 (describing how corrupt officials were able to take control of the IBT).



Click here to return to the footnote reference.n155. Professors Goldstock and Blakey explain the RICO statute and underlying predicate offenses:


 
RICO prohibits "racketeering activities," which are defined by reference to twenty-four separate types of federal crimes and eight different state felonies. RICO does not make illegal any specific action which was previously legal, since all acts punishable under RICO are also punishable under either state or federal statutes. Rather RICO states that if a person commits two of these offenses he is guilty of "racketeering activity" and is therefore subject to additional penalties. The umbrella effect of the RICO statute adds the concept of "enterprise" to a criminal prosecution, requiring additional proof of a "pattern" of racketeering activity and its relationship to an "enterprise" in addition to that required to prove the individual crimes alleged.


 
See Blakey & Goldstock, supra note 38, at 348-49. A RICO predicate, then, is the underlying crime that can constitute the pattern of activity intended to commit one of the RICO prohibitions of investing the income derived from a pattern of racketeering activity in an enterprise, acquiring an interest in that enterprise through racketeering, participating in an enterprise through racketeering activity, or conspiring to violate any of these proscriptions.

For instance, assume that well-known mafia boss Tony Soprano (a.k.a. "T") loans money to a man who owns a sporting goods store. T then asserts control over the store when the man cannot pay off the loan. T then forces the owner to commit fraud, squeezing every last cent out of the store before letting it go bankrupt. This fraud could be a RICO predicate if later used in a prosecution against T. While the idea of RICO predicates may appear complicated, it is very clear in T's mind that the fraud is a predicate, and a pattern of those predicate violations could mean an unforgiving RICO prosecution.



Click here to return to the footnote reference.n156. See Consent Decree, supra note 14, at 19.



Click here to return to the footnote reference.n157. See id. at 11-15.



Click here to return to the footnote reference.


Click here to return to the footnote reference.n159. For example, the Consent Decree made it a violation for any officers, members, or employees to knowingly associate with La Cosa Nostra. Whether this is still happening redounds to the amount of organized crime influence within the union. See Consent Decree, supra note 14, at 6.



Click here to return to the footnote reference.n160. See supra note 35.



Click here to return to the footnote reference.n161. One or two large locals can gain control of the International, such as Local 560's control over the IBT. The election of Jackie Presser, former IBT General President, was engineered by the Genovese crime family, which operated Local 560. See Arnold H. Lubasch, Ex-Teamster Chief Tells Jury Mafia Controls Union Leaders, N.Y. Times, June 2, 1987, at A1; William Serrin, Jackie Presser's Secret Lives Detailed in Government Files, N.Y. Times, Mar. 27, 1989, at A1. For a discussion of the reciprocal effect of corruption between locals and internationals, see supra text accompanying notes 33-37.



Click here to return to the footnote reference.n162. See supra text accompanying notes 33-37.



Click here to return to the footnote reference.


Click here to return to the footnote reference.n164. This fits with the notion that oversight should seek the least intrusive remedy available. See supra text accompanying notes 75-103.



Click here to return to the footnote reference.n165. See supra text accompanying notes 94-96.



Click here to return to the footnote reference.n166. See Greenhouse, Supervision, supra note 1 (reporting that despite great strides over the past ten years of federal oversight in removing mob influence from the Teamsters, many law enforcement officials do not recommend ending the oversight).



Click here to return to the footnote reference.


Click here to return to the footnote reference.n168. See supra text accompanying notes 163-166.



Click here to return to the footnote reference.n169. The Laborers International have fended off a trusteeship by creating an internal monitor. See Love, Laborers, supra note 142, at 1.



Click here to return to the footnote reference.n170. Corporate compliance programs provide an analogous framework to the Teamsters corruption oversight. See William L. Cary & Melvin Aron Eisenberg, Cases and Materials on Corporations 578-84 (7th ed. 1995). Compliance programs may "convince employees and executives not to commit crimes." Id. at 581. The general outline of a compliance program includes (1) establishing ethical codes to be followed by employees, (2) assigning officers to oversee compliance, (3) exercising due care to ensure discretionary authority is not given to those with a known propensity to engage in illegal conduct, (4) communicating standards through training programs, (5) monitoring and auditing compliance, (6) enforcing standards to achieve compliance, (7) responding to offenses if detected and detering future illegal conduct. See id. at 583-84. Compliance programs also deter prosecutors from indicting a corporation for the crimes of its employers. Furthermore, if a corporation is convicted, a compliance program will reduce its culpability score, and consequently the sentence, under the Federal Sentencing Guidelines. See id. at 582.

Other programs that may be used by a union include the recent movement calling for internal environmental audits. See Eric W. Orts, Reflexive Environmental Law, 89 Nw. U. L. Rev. 1227, 1303-05 (1995). For instance, some programs call for "periodic internal environmental auditing." Id. at 1303. While this program would require incentives for participation by the corporation and the employees, the idea of on-site employees becoming more involved in monitoring their own workplace is an issue that has warranted a great deal of recent attention. Similar arguments for this internal monitoring have been made for unions.



Click here to return to the footnote reference.n171. Steven Greenhouse, Hoffa Chooses Leader for Reform Effort, N.Y. Times, July 7, 1999, at A16.



Click here to return to the footnote reference.http://www.teamster.org/rise/rise.html> (on file with the Columbia Law Review).



Click here to return to the footnote reference.n173. See Burkins, Teamsters, supra note 138.



Click here to return to the footnote reference.n174. A recent example is the Teamsters attempt to prevent John Morris from reclaiming his job as head of Local 115 after the Teamsters charged Morris with threatening union members and misusing union money to buy shotguns, stun guns, and pepper spray. See Laura Bruch et al., Court Rejects Bid by Teamsters to Keep Out Morris, Phila. Inquirer, Dec. 30, 1999, at B1.



Click here to return to the footnote reference.n175. See Burkins, Teamsters, supra note 138.



Click here to return to the footnote reference.n176. Union democracy also enhances a union's ability to engage in collective bargaining and to bring in more money for workers. Allowing the rank and file to vote on contracts and eliminating corrupt officials who draw high salaries will increase the wealth of workers. See Feldman, New, supra note 95, at 568 (claiming democratization will make a union more effective in the bargaining).



Click here to return to the footnote reference.n177. See Ieronimo, supra note 55, at 499 (noting that the government hopes to increase union democracy with a trusteeship). In support of this proposition, some point to the analogy between the Teamsters and American attempts abroad to build democratic governments in places like Eastern Europe after World War II. See Kannar, supra note 16, at 1653 (making the comparison between Eastern Europe and the Teamsters).



Click here to return to the footnote reference.n178. RICO was used rather than the Landrum-Griffin Act primarily because of the structural reforms that RICO permits. See Kannar, supra note 16, at 1659.



Click here to return to the footnote reference.n179. For instance, in keeping with Landrum-Griffin principles, the Consent Decree requires the direct election of the IBT's General President. See Consent Decree, supra note 14, at 13-14; see also Tilles, supra note 94, at 933 (noting that the Landrum-Griffin Act was passed in the "belief that corrupt and undemocratic unions represented a threat to the country and in response to a perceived lack of democracy in American labor unions").



Click here to return to the footnote reference.n180. Summers, Union, supra note 76, at 695.



Click here to return to the footnote reference.n181. While the rank and file may actually vote for the suspected racketeer, it is assumed that the election of suspected criminals is contrary to the true interests of the rank and file. This is because their election is a result of fraudulent representation to the voting members, procedural shortcomings that suppress challengers, or coercion on behalf of the winning officer's party. See infra text accompanying notes 197-200.



Click here to return to the footnote reference.n182. See 105 Cong. Rec. 6472 (1959).



Click here to return to the footnote reference.n183. See 29 U.S.C. 411 (1994).



Click here to return to the footnote reference.n184. See id. at 431-441.



Click here to return to the footnote reference.n185. See id. 461-466.



Click here to return to the footnote reference.n186. See id. 481-483.



Click here to return to the footnote reference.n187. See id. at 501-504. Senator McClellan feared that unless workers had the opportunity to influence the union's policy, then the "other provisions of law may be of little benefit and meaningless." 105 Cong. Rec. 6472.



Click here to return to the footnote reference.n188. Senator McClellan hoped that the free speech provision would operate in similar fashion as the First Amendment to the United States Constitution. See 105 Cong. Rec. 5810-11, reprinted in 2 Legislative History of the Labor Management Reporting and Disclosure Act at 1102 (1959); see also Archibald Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 830, 834-35 (1960) (discussing freedom of speech in a union bill of rights). For a thorough discussion of the "statutory constitutional rights" as set forth by the Landrum-Griffin Act, see generally Risa L. Lieberwitz, Due Process and the LMRDA: An Analysis of Democratic Rights in the Union and at the Workplace, 29 B.C. L. Rev. 21, 48-62 (1987) (comparing constitutional theories of due process and union theories of due process to show a common evolution from natural law theory to utilitarian interest balancing).



Click here to return to the footnote reference.n189. See Wallentine, supra note 109, at 348 (noting the failure of the Landrum Griffin trusteeship provision in "hostile environments").



Click here to return to the footnote reference.n190. S. Rep. No. 86-187, at 7 (1959). See also Marcia Greenblatt, Note, Union Officials and the Labor Bill of Rights, 57 Fordham L. Rev. 601, 604-06 (1989) (discussing the limitations of the Landrum-Griffin Act); Mangum, supra note 53, at 94 (distinguishing the Landrum-Griffin Act from RICO).



Click here to return to the footnote reference.n191. The pre-Consent Decree Teamsters manipulated the election process to ensure the reelection of the incumbents. See, e.g., Samuel Issacharoff et al., The Law of Democracy: Legal Structures of the Political Process 2 (1998) (discussing how those with political power will deploy power to maintain their control).



Click here to return to the footnote reference.n192. Kannar, supra note 16, at 1675. See also Alan Hyde, Democracy in Collective Bargaining, 93 Yale L.J. 793, 793-94 (1984) (discussing how the courts are reluctant to enforce union constitutions).



Click here to return to the footnote reference.n193. The AFL-CIO, in adopting a self-initiated code of ethics, successfully prevented Landrum-Griffin from defining union ethics. Instead, the Act concentrates on the election process in order to maintain democracy and honesty in the union. The AFL-CIO's ethics code quickly became defunct. See Kannar, supra note 16, at 1673-74.



Click here to return to the footnote reference.n194. See Kannar, supra note 16, at 1672 (noting that fostering union democracy may not be enough to deal with some corruption).



Click here to return to the footnote reference.n195. At the time of the Consent Decree, democratically elected officials in the national government were being jailed in record numbers. It seems that a Bill of Rights and free elections do not guarantee honest behavior from national politicians or union officials alike. See Kannar, supra note 16, at 1672.



Click here to return to the footnote reference.n196. See Pub. L. No. 86-257, 73 Stat. 519 (1959) (conveying the purpose clause of the LMRDA); LMRDA 2, 29 U.S.C. 401 (1985) (setting forth the congressional declaration of findings, purposes, and policy).



Click here to return to the footnote reference.n197. In 1986, in the last Teamsters convention before the Consent Decree, Jackie Presser defeated Sam Theodus, 1729 to 14. See Crowe, supra note 11, at 44.



Click here to return to the footnote reference.n198. See Feldman, New, supra note 95, at 543.



Click here to return to the footnote reference.n199. See id.



Click here to return to the footnote reference.n200. See id.



Click here to return to the footnote reference.n201. Consent Decree, supra note 14, at 13.



Click here to return to the footnote reference.n202. Id. at 15.



Click here to return to the footnote reference.n203. See id.



Click here to return to the footnote reference.n204. See Summers, Democracy, supra note 143, at 105-18 (discussing the importance of elections in preserving union democracy and fighting the dangers of oligarchy).



Click here to return to the footnote reference.n205. Rules for the IBT International Union Delegate and Officer Election art. II, (revised Aug. 1990) [hereinafter IBT Election Rules].



Click here to return to the footnote reference.n206. See Goldberg, supra note 5, at 998.



Click here to return to the footnote reference.n207. Feldman, New, supra note 95, at 553.



Click here to return to the footnote reference.n208. A mail ballot was necessary to ensure fairness in such a widely dispersed union. Judge Edelstein decided that in order for the Election Officer to oversee the election, it was necessary for him to control the distribution and return of ballots. See United States v. Int'l Bhd. of Teamsters, 742 F. Supp. 94, 106 (S.D.N.Y. 1990) (allowing the Election Officer to "conduct" the election).



Click here to return to the footnote reference.n209. Slate voting for opposition candidates was an important part of fostering opposition to the old regime. Opposition groups, who have less resources and are less well-known than incumbents, are helped by the slate system. Slate voting is truly empowering if an opposition party cannot be barred because it cannot fill out all the spots on a slate. See Feldman, New, supra note 95, at 554-55.



Click here to return to the footnote reference.n210. During the 1991 election, for the first time in modern Teamsters history, the opposition party had full access to the union's national magazine. The Election Officer had to devise rules that would prevent the incumbents from using the publication to publicize the leadership and ignore the opposition - something the provisions of the Landrum-Griffin Act failed to address adequately. See id. at 556-57.



Click here to return to the footnote reference.n211. See id. at 558. During the course of the election oversight, the Election Officer at times ruled with an iron fist. On one occasion, the Election Officer declared the opposition slate the victors in an election where the incumbents collected the members votes before the mailing. See Bob Baker, U.S. Overseer Bars Slate of Teamsters Delegates, L.A. Times, June 18, 1991, at A3.



Click here to return to the footnote reference.n212. See Feldman, New, supra note 95, at 559-66. Professor Feldman dismisses a number of arguments that suggest that the Election Rules are less democratic than elections in other unions. He notes that government intrusion, while taking away "membership's rights to elect mobsters," is only a limited intrusion that vindicates union self-government. Id. at 562. Moreover, the delegate system can be defended on a number of grounds: It may prevent the election of those who make unrealistic promises, it ensures that delegates are more familiar with the records of the candidates, and it favors electing the most experienced and active members. See id. at 562-63.



Click here to return to the footnote reference.n213. One commentator notes five characteristics that are key for an international or national union:


 
1) full-time executive boards elected regionally; 2) a relatively large number of full-time elected national offices; 3) smaller and more frequent conventions than are presently the norm; 4) referendum election of officers and relative ease of nomination rather than election by convention delegates; and 5) an appeals system that removes effective control from national officers, thereby securing basic civil liberties and greater autonomy for local unions, especially with regard to finances and collective bargaining authority.


 
Hartley, supra note 94, at 107.



Click here to return to the footnote reference.n214. See Feldman, New, supra note 95, at 562.



Click here to return to the footnote reference.n215. See also, Summers, Union, supra note 76, at 704 (noting that "all political groups and candidates must have full and equal opportunity to make their views known to the members"). At the very least, the changes made by the Consent Decree to the Teamsters Constitution ensure that elections will be more democratic than they were previously. In the end, a perfect system cannot and should not be expected from the Teamsters. Perhaps the government is right to expect more democracy from the Teamsters than from other unions without a history of corruption. However, in an age where national political leaders use obscure and technical electoral rules to manipulate election results, society should not expect more from unions. For instance, in early 2000, in a politicized and technical maneuver, Governor George Pataki of New York State attempted to prevent Republican candidate John McCain from being placed on the Republican primary ballot in a number of state districts. It is no surprise that Pataki supported McCain's opponent, George W. Bush. See Clifford J. Levy, Rejecting Rules, U.S. Judge Opens New York Ballot, N.Y. Times, Feb. 5, 2000, at A1. Moreover, national and state elections sport a variety of very dubious traditions. For instance, the electoral college, gerrymandering, and the practical prohibition against a legitimate third party are all problems that plague the political system. While this is not an excuse for non-democratic governance of the Teamsters, it should be acknowledged that the government should not expect too much out of union democracy.



Click here to return to the footnote reference.n216. See Kannar, supra note 16, at 1672:


 
The Landrum-Griffin Act was premised upon the questionable notion that "union democracy" - open access to the ballot box, honest vote counts, and the like - could serve as a cure-all for labor's internal ethical shortcomings, by allowing rank-and-file members to clean house for themselves simply by electing different officers.



Click here to return to the footnote reference.n217. See Summers, Democracy, supra note 143, at 93-99 (discussing Michels "iron law of oligarchy" that drives unions toward a one-party, undemocratic state).



Click here to return to the footnote reference.n218. See Feldman, New, supra note 95, at 564.



Click here to return to the footnote reference.n219. This assumes that the incumbents will not be able to significantly manipulate the campaigning or electoral process. In the case of Local 560, the court instructed the trustee to promote democracy in the union by fostering political alliances and opposition groups. See United States v. Local 560, Int'l Bhd. of Teamsters, 581 F. Supp. at 279, 326 (D.N.J. 1984), aff'd, 780 F.2d 267 (3d Cir. 1985).



Click here to return to the footnote reference.n220. See Feldman, New, supra note 95, at 536 (describing how TDU was able to engineer the victory of Carey in 1991).



Click here to return to the footnote reference.n221. Because of the unpopularity of the TDU among members of the Teamsters, Carey accepted TDU's endorsement but made it clear that he was not the TDU candidate. At the time of the 1991 election, TDU only had about 10,000 members, or .625 percent of the 1.6 million member union. See Crowe, supra note 11, at 144, 169.



Click here to return to the footnote reference.n222. See id. at 144-45.



Click here to return to the footnote reference.n223. See, e.g., Bauman v. Presser, 117 LRRM 2393, 2399 (D.D.C. 1984), appeal dismissed, 119 LRRM 2247 (D.C. Cir. 1985) (holding the "opportunity to intelligently discuss or debate the proposed agreement or to lobby their fellow members for their support" essential to union members' right to a meaningful vote); McGinnis v. Local 710, 774 F.2d 196, 199 (7th Cir. 1985) (holding that union members' right to vote required that "the right must be extended on an equal basis and in a meaningful manner").



Click here to return to the footnote reference.n224. TDU, growing out of a smaller reform movement, was officially named on the eve of the 1976 convention. See Crowe, supra note 11, at 58.



Click here to return to the footnote reference.n225. See Hartley, supra note 94, at 110 (discussing the incumbent advantage).



Click here to return to the footnote reference.n226. However, the election of reform-minded candidates should not be dispositive. Ron Carey, who won the 1996 election as a reform-driven candidate, lost his office because his campaign manager illegally diverted Teamsters money into his campaign fund. Carey was expelled from the union but has not been charged with any criminal wrongdoing. See Burkins, Prosecutions, supra note 17.



Click here to return to the footnote reference.n227. See, e.g., Int'l Bhd. of Teamsters Const. art. 19, 1, 2 (1986) (visited Sept. 15, 2000) <http://www.teamster.com/about/constitution/const 19htm> (on file with the Columbia Law Review).



Click here to return to the footnote reference.n228. See Goldberg, supra note 5, at 923.



Click here to return to the footnote reference.n229. The best example of this is the United Auto Workers' (UAW) semi-independent "Public Review Boards" (PRB). Established in 1957, the PRB consists of seven impartial members from outside of the union appointed by the UAW President. Appointments must be approved by the International Executive Board and ratified at the conventions. Terms last three years and members cannot be removed during their term. The distinguished PRB members include a former federal judge, a Secretary of Labor, a historian, and a former university president. The PRB has overruled the Executive Board to overturn elections, has overturned trusteeships, and has reversed retaliatory disciplinary proceedings brought against dissident union members. See id. at 924-25.



Click here to return to the footnote reference.n230. See supra note 49.



Click here to return to the footnote reference.n231. There are a number of tests that can be used to determine whether or not a removal is retaliatory. For a proposed test, see George Feldman, Effective Democracy and Formal Rights: Retaliatory Removals of Union Officials Under the LMRDA, 9 Hofstra Lab. L.J. 301, 385-406 (1992).



Click here to return to the footnote reference.n232. See Love, Hoffa, supra note 3, at 1.



Click here to return to the footnote reference.n233. See supra text accompanying notes 92-95.



Click here to return to the footnote reference.n234. Jimmy Hoffa, Jr. is the prime example.



Click here to return to the footnote reference.n235. For instance, the courts can draw on experiences with school desegregation efforts. If the government withdrew too early in those cases, the court can apply those lessons to the union trusteeships. See Goldberg, supra note 5, at 938.



Click here to return to the footnote reference.n236. A temporary solution might be to make the government pay for all future oversight of the Teamsters, which would take away the government's incentive to over-extend its stay in the union's affairs.