2013 iuoe international rico filing
DESCRIPTION
publicly available court document from3/29/2013FIled by members of Local 501TRANSCRIPT
Page 1 SECOND AMENDED CLASS ACTION COMPLAINT
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Ira Spiro, State Bar No. 67641 [email protected] H. Scott Leviant, State Bar No. 200834 [email protected] SPIRO MOORE LLP 11377 W. Olympic Blvd., 5th Floor Los Angeles, California 90064-1683 Telephone: (310) 235-2468 Facsimile: (310) 235-2456 Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
FINN PETTE, individually, and on behalf of all others similarly situated; JAMES MCLAUGHLIN, individually, and on behalf of all others similarly situated; DANIEL HIMMELBERG, individually, and on behalf of all others similarly situated; GLENN SZALAY, individually, and on behalf of all others similarly situated; JAY BROPHY, individually, and on behalf of all others similarly situated; ANNE BROPHY, individually, and on behalf of all others similarly situated; CHERYL CULBREATH, individually, and on behalf of all others similarly situated; ROBERT FOX, individually, and on behalf of all others similarly situated; JOHN CROOKS, individually, and on behalf of all others similarly situated; NYE NELSON, individually, and on behalf of all others similarly situated; LINDA PETTE, individually, and on behalf of all others similarly situated; JUDY MCLAUGHLIN, individually, and on behalf of all others similarly situated; CHRISTINE HIMMELBERG, individually, and on behalf of all others similarly situated;
Case No.: CV12-09324 DDP (VBKx) CLASS ACTION SECOND AMENDED CLASS ACTION COMPLAINT (FILED PURSUANT TO ORDER ISSUED MARCH 19, 2013, DOCKET NO. 64) FOR: 1. Violations Of Racketeer Influenced
And Corrupt Organizations Act [18 U.S.C. § 1962(c)]
2. Violations Of Racketeer Influenced And Corrupt Organizations Act [18 U.S.C. § 1962(d)]
3. Violations Of Racketeer Influenced And Corrupt Organizations Act [18 U.S.C. § 1962(b)]
4. Violations Of Racketeer Influenced And Corrupt Organizations Act [18 U.S.C. § 1962(d)]
5. Violations of Labor Management Disclosure Act [29 U.S.C. § 501]
6. Breaches of Fiduciary Duties [ERISA]
7. Aiding and Abetting 8. Violation of Bus. & Prov. Code §
17200 DEMAND FOR JURY TRIAL
Page 2 SECOND AMENDED CLASS ACTION COMPLAINT
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ERIK B. SMITH, individually, and on behalf of all others similarly situated; CHRISTOPHER MENOR, individually, and on behalf of all others similarly situated; PATRICK ADAMS, individually, and on behalf of all others similarly situated; Plaintiffs, vs. INTERNATIONAL UNION OF OPERATING ENGINEERS, a trade union; JAMES T. CALLAHAN, an individual; BRIAN E. HICKEY, an individual; WILLIAM C. WAGGONER, an individual; PATRICK L. SINK, an individual; JERRY KALMAR, an individual; RUSSELL E. BURNS, an individual; RODGER KAMINSKA, an individual;JAMES M. SWEENEY, an individual; ROBERT T. HEENAN, an individual; DANIEL J. MCGRAW, an individual; DAREN KONOPASKI, an individual; MICHAEL GALLAGHER, an individual; GREG LALEVEE, an individual; TERRANCE E. MCGOWAN, an individual; LOUIS G. RASETTA, an individual; VINCE GIBLIN, an individual; JAMES VAN DYKE, an individual; RICHARD GRIFFIN, an individual; CHRIS BROWN, an individual; LEWIS LEVY, an individual; RANDY HENNINGFIELD, an individual; PAUL BENSI, an individual; SANDRA ACOSTA, an individual: CORNELL SNEEKES, an individual; JIM SCRANTON, an individual; DENNIS LUNDY, an individual; CYNTHIA ESCANUELAS, an individual; ABLE ENGINEERING SERVICES, a business entity of unknown type; ABM ENGINEERING SERVICES; a business entity of unknown type;
Page 3 SECOND AMENDED CLASS ACTION COMPLAINT
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ENRIQUE ALCALA, an individual;ED CURLY, an individual; MICHAEL RUSSELL, an individual; JOHN T. AHERN, an individual; JOHN M. HOLLIDAY, an individual; KUBA J. BROWN, an individual; BRUCE MOFFATT, an individual; JAMES T. KUNZ, JR. , an individual; JAMES ZAZZALI, an individual; MICHAEL R. FANNING, an individual; CVS CAREMARK CORPORATION, a Delaware corporation; TRIVANTAGE PHARMACY STRATEGIES, LLC, a business entity of unknown citizenship; TRUVEN HEALTH ANALYTICS, INC., a Delaware corporation; and, DOES 1 through 10, inclusive, Defendants.
Page i SECOND AMENDED CLASS ACTION COMPLAINT
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TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................... i
I. INTRODUCTION .......................................................................................... 1
II. JURISDICTION AND VENUE...................................................................... 2
III. THE PARTIES TO EACH CAUSE OF ACTION .......................................... 3
A. Plaintiffs ..................................................................................................... 3
B. Defendants .................................................................................................. 5
IV. DEFENDANTS’ MISCONDUCT ................................................................ 12
A. About the IUOE ........................................................................................ 12
B. IUOE Forced Plaintiffs Serving As Officers or Employees of Local
501 and Others to Contribute to the President’s Club/EPEC, a Political
Action Fund .............................................................................................. 13
C. Plaintiffs Discovered Many Examples of Embezzlement and Asset
Diversion from Local 501 and IUOE Accounts Created for the Benefit
of Union Members ................................................................................... 16
1. Dennis Lundy Embezzled from the Apprenticeship Trust Account,
but IUOE President Giblin Protected Lundy .................................... 16
2. Lundy Helped Operate a Sham BOMA and EPA 608 Certification
Testing System ................................................................................. 41
3. Lundy Absconded with Re-Election Campaign Funds .................... 44
4. Plaintiffs Discovered Evidence That ABM and Able Conspired
with the IUOE to Divert or Withhold Millions of Dollars from
Numerous Member Benefits Funds .................................................. 45
5. ABM and Able Conspired with IUOE to Operate “Double-
Breasted” and Deprive Local 501 of Members and Revenues ........ 49
Page ii SECOND AMENDED CLASS ACTION COMPLAINT
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6. IUOE Conspired With ABM and Able to Allow Them to
Circumvent Their Contract With Local 501 and Use Retired
Employees to Avoid Benefit Fund Obligations ............................... 52
7. Decertification Election Tampering by Giblin and IUOE at UCLA
Cost Local 501 Roughly 600 Members and Was Used as One
Pretext for Terminating McLaughlin ............................................... 53
8. IUOE and Curly, Acting Under IUOE Orders, Embezzled Monies
From Local 501 Members Related to the Members’ Efforts to
Protect Mr. Pette and Mr. Himmelberg ............................................ 54
9. Able and ABM Management Employees Are Improperly
Participating in the Central Pension Fund ........................................ 56
D. IUOE’s Leadership Used Threats of Physical and Economic Violence,
and Suborned Perjury, to Suppress Investigations and Usurp Control
Over Local 501 ......................................................................................... 57
E. Caremark Defrauded IUOE Members Nationwide and IUOE
Conspired with Caremark to Make This Possible .................................... 66
1. Defendants Diverted Caremark Reimbursements from Local 501’s
Health & Welfare Fund to IUOE and Imposed Caremark on IUOE
Despite the Excessive Costs ............................................................. 66
2. IUOE Conspired with Caremark to Force Caremark on Members,
Going so Far as to Rig Bids When Caremark Was Not the Winning
Bidder ............................................................................................... 67
F. Defendants and Their Agents Destroyed or Removed Records That
Should Have Been Retained by Local 501 for 5 Years ........................... 73
G. Professionals Under IUOE’s Control Acted at the Direction of IUOE to
Harm Local 501 ........................................................................................ 74
H. Consigliore Griffin Created Policies to Protect the Hand-Selected
Leadership Placed in Control of Locals by IUOE ................................... 75
Page iii SECOND AMENDED CLASS ACTION COMPLAINT
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I. Giblin and IUOE Selected Zazzali to Fabricate the Appearance of
Ethical Conduct by IUOE, While Actually Using Zazzali as Another
Tool for the Oppression of Members Challenging IUOE’s Widespread
Corruption ................................................................................................ 76
J. Able and ABM Are Targeting Local 501 Employees Sympathetic to
the Resistance and This Lawsuit .............................................................. 80
K. Fiduciaries to Local 501 Caused Harm to Local 501 in Order to Further
IUOE’s Plan to Secure Complete Control Over Local 501 ..................... 80
L. IUOE and IUOE’s Hand-Picked Operatives Will Not Permit Local 501
Members to Nominate and Elect Delegates of Their Choosing to
Attend the IUOE General Convention in April 2013 .............................. 81
V. CLASS ACTION ALLEGATIONS .............................................................. 85
VI. CLAIMS FOR RELIEF ................................................................................ 90
FIRST CLAIM FOR RELIEF .............................................................................. 90
SECOND CLAIM FOR RELIEF ......................................................................... 96
THIRD CLAIM FOR RELIEF ............................................................................. 98
FOURTH CLAIM FOR RELIEF ....................................................................... 104
FIFTH CLAIM FOR RELIEF ............................................................................ 107
SIXTH CLAIM FOR RELIEF ........................................................................... 109
SEVENTH CLAIM FOR RELIEF ..................................................................... 111
EIGHTH CLAIM FOR RELIEF ........................................................................ 112
PRAYER FOR RELIEF ..................................................................................... 115
Page 1 SECOND AMENDED CLASS ACTION COMPLAINT
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I. INTRODUCTION
1. This action arises from years of illegal activity by the International
Union of Operating Engineers and its controlling officers and co-conspirators.
Local 501, a local trade union, and its members, were victimized by those many
years of illegal activity. The unlawful abuses suffered by Local 501 and its
members takes three predominant forms. First, millions upon millions of dollars
were withheld and/or embezzled from Local 501 and its membership. Second,
Local 501 was prevented from expanding its membership; the employers violating
their contracts with Local 501 were protected by Defendants, who were receiving
kickbacks for their protection. And, third, the membership of Local 501 was
denied the right to freely select its own officers and General Convention delegates,
through fair and honest elections.
2. The conduct of Defendants harkens back to the days of unrepentant
racketeering by organized crime, which makes some sense here. The International
Union of Operating Engineers conducts its affairs with the same disregard for
others’ rights as the mob. Not surprisingly, the International Union of Operating
Engineers has a long history of ties to organized crime families in New York, New
Jersey and Las Vegas, and they have apparently learned their techniques from the
very best of those crime syndicates.
3. In a manner much like the East Coast mafia approach to business,
which is to create the illusion of operating legitimate businesses, the International
Union of Operating Engineers, in cooperation with its crime syndicate partners
from the East, works to create the appearance of legitimacy in its operations. In its
West Coast operations, the International Union of Operating Engineers has made
inroads into banking, healthcare, and investment industries, where it can profit
from illegal side transactions, while creating the appearance of arm’s-length
contracts with service providers. Many of these side transactions are little more
than money laundering operations used to siphon dollars from Local union
Page 2 SECOND AMENDED CLASS ACTION COMPLAINT
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members and deliver them to the racketeers running the International Union of
Operating Engineers and its favored co-conspirators.
II. JURISDICTION AND VENUE
4. The action is brought, among other bases, under the Interstate
Commerce Clause of the United States Constitution, and the Racketeering, Mail
Fraud, Wire Fraud and Money Laundering laws of the United States. In addition,
this action is brought pursuant to Article 1, Section 1 of the Constitution of the
State of California and other statutes and laws of the State of California.
5. Jurisdiction is specifically conferred on this Court by various federal
statutes including, but not limited to, the following: Section 1964 of the Racketeer
Influenced and Corrupt Organizations Act of the Organized Crime Control Act of
1970 as amended, 18 U.S.C. § 1964, based upon a pattern of racketeering activity
in which Defendants have been engaged in connection with their operation of the
International Union of Operating Engineers, consisting of violations of (a) 18
U.S.C. § 1341, relating to mail fraud, (b) 18 U.S.C. § 1343, relating to wire fraud,
(c) 18 U.S.C. § 1957, relating to monetary transactions of unlawfully obtained
proceeds from specified crimes, including mail fraud, 18 U.S.C. § 1341, and wire
fraud, 18 U.S.C. § 1343, (d) 18 U.S.C. § 1951, relating to travel and use of
interstate commerce in furtherance of certain unlawful activities, including
unlawful monetary transactions, 18 U.S.C. § 1957.
6. Original jurisdiction lies with this Court as to the Federal questions
raised herein, pursuant to 28 U.S.C. § 1331.
7. Jurisdiction over any California State causes of action contained in this
Complaint arises under the doctrine of supplemental jurisdiction, 28 U.S.C. §
1367(a).
8. Venue as to each Defendant is proper in this District pursuant to 18
U.S.C. § 1965, because each of the Defendants resides, is found, has an agent,
Page 3 SECOND AMENDED CLASS ACTION COMPLAINT
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controls and/or transacts or transacted affairs in this District. In addition, the
Defendants are engaged in interstate and foreign commerce, and a substantial part
of the events giving rise to the claims for violations of Federal law occurred in this
District, all in the course of interstate and foreign commerce.
III. THE PARTIES TO EACH CAUSE OF ACTION
A. Plaintiffs
9. Plaintiff Finn Pette is, and at all relevant time was, a member of Local
501. Mr. Pette was financial secretary of Local 501. Plaintiff Pette limits his
claims in this action to those events occurring on or after May 1, 2012.
10. Plaintiff James McLaughlin is, and an at all relevant time was, a
member of Local 501. Mr. McLaughlin served as a Business Manager of Local
501. Mr. McLaughlin was the chairman of Local 501’s Health & Welfare Trust,
and the Apprenticeship Trusts of Southern California and Southern Nevada. Mr.
McLaughlin was also the Vice President of the Western Conference of Operating
Engineers. From April 1998 to June 30, 2009, Mr. McLaughlin served as a Vice-
President of the IUOE General Executive Board. He was re-elected by the general
members of the IUOE every 5 ½ years to serve as a Vice-President of the IUOE.
On June 30, 2009, there were 14 Vice-Presidents that served on the General
Executive Board. At the time he was forced to resign as Vice-President, he was the
second most senior Vice-President of the IUOE. Plaintiff McLaughlin limits his
claims in this action to those events occurring on or after May 1, 2012.
11. Plaintiff Daniel Himmelberg is, and at all relevant time was, a member
of Local 501. Mr. Himmelberg was Chairman of the JAC, a Taft Hartley trust fund
at local 501, and also served local 501 as its Assistant Business Manager. Plaintiff
Himmelberg limits his claims in this action to those events occurring on or after
May 1, 2012.
Page 4 SECOND AMENDED CLASS ACTION COMPLAINT
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12. Plaintiff Glenn Szalay is, and at all relevant time was, a member of
Local 501.
13. Plaintiff Jay Brophy is, and at all relevant time was, a member of
Local 501.
14. Plaintiff Anne Brophy is, and at all relevant time was, a member of
Local 501.
15. Plaintiff Cheryl Culbreath is, and at all relevant time was, a member of
Local 501.
16. Plaintiff Robert Fox is, and at all relevant time was, a member of Local
501. Robert Fox is a former Business Manager of Local 501 and former Vice
President of the IUOE. Mr. Fox retired as Business Manager of IUOE Local 501
and IUOE Vice President in 1992.
17. Plaintiff John Crooks is, and at all relevant time was, a member of
Local 501 assigned to the Las Vegas division of Local 501.
18. Plaintiff Nye Nelson is, and at all relevant time was, a member of
Local 501 and retired from the position of Business Agent in Los Angeles.
19. Plaintiff Linda Pette is, and at all relevant times, was:
(a) the spouse of Local 501 member Finn Pette; and,
(b) a beneficiary of member Finn Pette’s pension and healthcare
benefits, provided by the General Pension and the Health &
Welfare Fund, respectively.
20. Plaintiff Judy McLaughlin is, and at all relevant times, was:
(a) the spouse of Local 501 member James McLaughlin; and,
(b) a beneficiary of member James McLaughlin’s pension and
healthcare benefits, provided by the General Pension and the
Health & Welfare Fund, respectively.
21. Plaintiff Christine Himmelberg is, and at all relevant times, was:
(a) the spouse of Local 501 member Dan Himmelberg; and,
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(b) a beneficiary of member Dan Himmelberg’s pension and
healthcare benefits, provided by the General Pension and the
Health & Welfare Fund, respectively.
22. Plaintiff Erik B. Smith is, and at all relevant time was, a member of
Local 501.
23. Plaintiff Christopher Menor is, and at all relevant time was, a member
of Local 501.
24. Plaintiff Patrick Adams is, and at all relevant time was, a member of
Local 501. Plaintiff Patrick Adams last served in the position of SuperChief before
being terminated by Defendant Able Engineering Servicesfor cooperating with
Local 501 members actively resisting IUOE’s efforts to control Local 501 and
oppress its members.
25. Plaintiffs reserve the right to seek leave to amend this complaint to add
new plaintiffs, if necessary, in order to establish suitable representative(s) of the
Class proposed herein and/or any necessary sub-Class.
B. Defendants
26. Defendant International Union of Operating Engineers is a trade union
that primarily represents operating engineers, who work as heavy equipment
operators, mechanics, and surveyors in the construction industry, and stationary
engineers, who work in operations and maintenance in building and industrial
complexes, and in the service industries. IUOE also represents nurses and other
health industry workers, a significant number of public employees engaged in a
wide variety of occupations, as well as a number of job classifications in the
petrochemical industry. Local 501 is a stationary local.
27. Defendant James T. Callahan is the General President (“GP”) of
IUOE, allegedly selected in November 2011. Callahan’s ascension to the position
of GP was nothing than an appointment by outgoing GP Giblin, as all officers of
Page 6 SECOND AMENDED CLASS ACTION COMPLAINT
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GEB swear allegiance to the GP and to his named successor. There has never been
a contested “election” in the history of the IUOE for the position of General
President. Defendant Callahan served as the IUOE General Secretary-Treasurer and
was chosen as IUOE Vice President in 2008. Defendant Callahan is also a Trustee
of the IUOE General Pension Fund.
28. Defendant Brian E. Hickey is General Secretary-Treasurer of IUOE,
chosen in November 2011. Mr. Hickey has served as an IUOE Vice President
since 2001. Defendant Hickey is also a Trustee of the IUOE Central Pension Fund
and also Business Manager of Local 399, located in Chicago, Illinois. Local 399 is
also a stationary local. Defendant Hickey is the Treasurer of IUOE’s EPEC
Political Action Fund.
29. Defendant William C. Waggoner is the First Vice President of IUOE.
Mr. Waggoner was first chosen as an IUOE Vice President in 1980. Mr. Waggoner
is also the Western States Director and Business Manager of Local 12
headquartered in Pasadena, California. Local 12 is a hoisting and portables local
which principally engages in the construction industry.
30. Defendant Patrick L. Sink is the Third Vice President of IUOE. Mr.
Sink was first chosen as an IUOE Vice President in 2004. Mr. Sink is Business
Manager of IUOE Local 18 headquartered in Cleveland, Ohio. Local 18 is a mixed
local in that it has both a hoisting and portables division and a stationary division
(18s).
31. Defendant Jerry Kalmar is the Fourth Vice President of IUOE. Mr.
Kalmar was first chosen as an IUOE Vice President in 2005. Mr. Kalmar is the
Business Manager of IUOE Local 39. Local 39 is a stationary local headquartered
in San Francisco, California.
32. Defendant Russell E. Burns is the Fifth Vice President of IUOE. Mr.
Burns was first chosen as an IUOE Vice President in October 2006. Mr. Burns is
the Business Manager for IUOE Local 3 headquartered in Alameda, California.
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33. Defendant Rodger Kaminska is the Sixth Vice President of IUOE. Mr.
Kaminska was first chosen as an IUOE Vice President in 2008. Mr. Kaminska is
the Business Manager for IUOE local 101 headquartered in Kansas City, Missouri.
34. Defendant James M. Sweeney is the Seventh Vice President of IUOE.
Mr. Sweeney was first chosen as an IUOE Vice President in 2009. Mr. Sweeney is
Business Manager for IUOE Local 150 headquartered in Countryside, Illinois.
35. Defendant Robert T. Heenan is the Eighth Vice President of IUOE.
Mr. Heenan was first chosen as an IUOE Vice President in 2009. Mr. Heenan is the
Business Manager of IUOE Local 542 headquartered in Fort Washington,
Pennsylvania.
36. Defendant Daniel J. McGraw is the Ninth Vice President of IUOE.
Mr. McGraw was first chosen as an IUOE Vice President in 2011. Mr. McGraw
also has served as the Northeast Regional Director for the IUOE and is
headquartered in Albany, New York. He is also the Business Manager for IUOE
Local 158 headquartered in Albany, New York. IUOE locals in Albany, Rochester,
Binghamton and Syracuse were merged to form Local 158. The merger was
completed in January 2012.
37. Defendant Daren Konopaski is the Tenth Vice President of IUOE. Mr.
Konopaski was first chosen as an IUOE Vice President in 2011. Mr. Konopaski is
the Business Manager of IUOE Local 302 headquartered in Bothell, Washington.
38. Defendant Michael Gallagher is the Eleventh Vice President of IUOE.
Mr. Gallagher was first chosen as an IUOE Vice President in 2011. Mr. Gallagher
is the Business Manager of IUOE Local 793 headquartered in Oakville, Ontario,
Canada.
39. Defendant Greg Lalevee is the Twelfth Vice President of IUOE. Mr.
Lalevee was first chosen as an IUOE Vice President in 2011. Mr. Lalevee is the
Business Manager for IUOE Local 825 headquartered in Springfield, New Jersey.
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40. Defendant Terrance E. McGowan is the Thirteenth Vice President of
IUOE. Mr. McGowan was first chosen as an IUOE Vice President in 2011. Mr.
McGowan is also a Trustee of the IUOE General Pension Fund. He is the Business
Manager of IUOE Local 139 headquartered in Pewaukee, Wisconsin.
41. Defendant Louis G. Rasetta is the Fourteenth Vice President of IUOE.
Mr. Rasetta was first chosen as an IUOE Vice President in 2012. Mr. Rasetta also
serves as the Chairman of the Board of the IUOE General Pension Fund. He is
Business Manager of IUOE Local 4 which is headquartered in Medway,
Massachusetts.
42. Defendant Vincent (Vince) Giblin was General President of IUOE
from about 2005 until his retirement in November 2011.
43. Defendant James Van Dyke was the Chief of Staff for IUOE, but he is
now retired.
44. Defendant Richard Griffin was General Counsel for IUOE and has
since left that position.
45. Defendant Chris Brown was the former Business Manager of Local
501, having been appointed by GP Giblin to fill the vacancy created when Giblin
forced Mr. McLaughlin to resign as the duly elected Business Manager of Local
501. Mr. Brown was later removed from that position by Callahan after Mr. Brown
disclosed Callahan’s instruction to Mr. Brown to provide false testimony at a
deposition. Mr. Brown also served as a Trustee for the Health & Welfare Trust
Fund.
46. Defendant Louis Levy was an attorney that represented the Board of
Local 501 and membership of Local 501. Mr. Levy previously worked for IUOE
three years earlier, performing legal services.
47. Defendant Randy Henningfield was a Certified Public Accountant
hired to audit Trusts for Local 501, including the Apprentice Training Fund (JAC).
Henningfield was married to Cynthia Escanuelas.
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48. Defendant Paul Bensi is the CEO of Able Engineering Services and a
Trustee of the Central Pension Fund for the IUOE. Mr. Bensi, at all times relevant,
served as an employer/management Trustee on the Local 501 JAC board. Mr.
Bensi served as a Trustee for the Health & Welfare Trust Fund through at least
2012. Mr. Bensi is one of only two Employer Trustees for the Local 39 Pension
Plan. Mr. Bensi is also one of only two Employer Trustees on the Local 39
Annuity Trust Fund. Mr. Bensi also serves on the Joint Apprenticeship Committee
for Local 39.
49. Defendant Sandra Acosta was, at all relevant times, an employee of
IUOE Local 501. Mrs. Acosta served as a business representative.
50. Defendant Cornell Sneekes was, at some relevant times, an employee
of ABM. Mr. Sneekes served as an employer/management Trustee on the Local
501 JAC board. ABM had under-contributed to the JAC Trust Fund during many
of the years that Mr. Sneekes served as a Trustee.
51. Defendant Jim Scranton was, at relevant times, the President of ABM
Engineering Services. Mr. Scranton served as an employer/management Trustee on
the Local 501 JAC board. ABM had under-contributed to the JAC Trust Fund
during many of the years that Mr. Scranton served as a Trustee. Mr. Scranton
served as a Trustee for the Health & Welfare Trust Fund through at least 2009.
ABM had under-contributed to the Health & Welfare Trust Fund during many of
the years that Mr. Scranton served as a Trustee.
52. Defendant Dennis Lundy was, at relevant times, the Director of JAC.
Dennis Lundy also serves on the Joint Apprenticeship Committee, California Unit
#12, for Local 39. Dennis Lundy now serves as Western Regional Director of
IUOE.
53. Defendant Cynthia Escanuelas was, at relevant times, the office
manager for JAC.
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54. Defendant Able Engineering Services is a business entity wholly
owned by Able Services.
55. Defendant ABM Engineering Services is a business entity owned by
ABM Industries, Inc.
56. Defendant Enrique (“Rick”) Alcala is a member of Local 501. He was
at one time an instructor for the JAC.
57. Defendant Ed Curly is the current Business Manager of Local 501.
Defendant Ed Curly was appointed by IUOE’s GP to this position after Chris
Brown was terminated by Callahan following Mr. Brown’s appointment by former
GP Giblin. Defendant Ed Curly is currently operating Local 501 under the
supervision of the current President, James Callahan. Mr. Curly served as a
Trustee for the Health & Welfare Trust Fund.
58. Defendant Mike Russell is a former President of Local 501 and former
Executive Board member.
59. Defendant John (“Jack”) T. Ahern is the current Business Manager of
Local 30, located in Richmond Hill, New York. Mr. Ahern served as a General
Executive Board Member for IUOE and is currently serving on the General
Executive Board as one of five trustees for IUOE.
60. Defendant John M. Holliday is the current Business Manager of Local
917, located in Chattanooga, Tennessee. Mr. Holliday is currently serving on the
General Executive Board as one of five trustees for IUOE.
61. Defendant Kuba J. Brown is the current Business Manager of Local
94, located in New York City, New York. Mr. Brown is currently serving on the
General Executive Board as one of five trustees for IUOE.
62. Defendant Bruce Moffatt is the current Business Manager of Local
955, located in Edmonton, Alberta, Canada. Mr. Moffatt is currently serving on the
General Executive Board as one of five trustees for IUOE.
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63. Defendant James T. Kunz, Jr. is the current Business Manager of Local
66, located in Pittsburgh, Pennsylvania. Mr. Kunz is currently serving on the
General Executive Board as one of five trustees for IUOE.
64. Defendant James Zazzali is a retired New Jersey Supreme Court
Justice. Mr. Zazzali is currently associated with the law firm Zazzali, Fagella,
Nowak, Kleinbaum, and Friedman, located in Newark, New Jersey. He was
appointed by former IOUE General President to the position of Ethics Officer in
2007. His hiring was ratified at the General Convention in 2008.
65. Defendant Michael R. Fanning is the Chief Executive Officer for the
General and Central Pension Funds.
66. Defendant CVS Caremark Corporation is a Delaware corporation
CVS Caremark Corporation (“Caremark”) was formed following the 2007 merger
of CVS Corporation and Caremark Rx, Inc. Defendant Caremark is not currently
qualified to conduct business in California, according to the California Secretary of
State’s website.
67. Defendant Trivantage Pharmacy Strategies, LLC is a business entity
organized in a state not currently known to Plaintiffs. In 2009, Trivantage
Pharmacy Strategies, LLC was acquired by Thomson Reuters. In 2012, Thomson
Reuters agreed to sell Thomson Healthcare, including Trivantage Pharmacy
Strategies, LLC, to Veritas Capital. The new company that was created out of this
sale is Truven Health Analytics.
68. Defendant Truven Health Analytics, Inc. is a Delaware corporation
and the successor-in-interest to the obligations of Defendant Trivantage Pharmacy
Strategies, LLC a business entity acquired by Thomson Reuters in 2009. On
information and belief, Defendant Truven Health Analytics is financially
responsible for the misconduct of Defendant Trivantage Pharmacy Strategies, LLC,
though it is not alleged that Defendant Truven Health Analytics participated in any
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manner in the misconduct perpetrated by Defendant Trivantage Pharmacy
Strategies, LLC.
69. Plaintiffs do not know the true names or capacities of the persons or
entities sued herein as DOES 1-10, inclusive, and therefore sue said Defendants by
such fictitious names. Each of the DOE Defendants was in some manner legally
responsible for the violations alleged herein. Plaintiffs will amend this complaint
to set forth the true names and capacities of these Defendants when they have been
ascertained, together with appropriate charging allegations, as may be necessary.
70. At all times mentioned herein, the Defendants named as DOES 1-10,
inclusive, and each of them, were residents of, doing business in, availed
themselves of the jurisdiction of, and/or injured Plaintiffs and aggrieved employees
in the State of California, among other locations.
71. At all times mentioned herein, each Defendant was the agent, servant,
or employee of the other Defendants and in acting and omitting to act as alleged
herein did so within the course and scope of that agency or employment.
72. The term “Defendants” as used herein includes DOES 1-10.
IV. DEFENDANTS’ MISCONDUCT
A. About the IUOE
73. The International Union of Operating Engineers (IUOE) is a trade
union that primarily represents operating engineers, who work as heavy equipment
operators, mechanics, and surveyors in the construction industry, and stationary
engineers, who work in operations and maintenance in building and industrial
complexes, and in the service industries. IUOE also represents nurses and other
health industry workers, a significant number of public employees engaged in a
wide variety of occupations, as well as a number of job classifications in the
petrochemical industry.
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74. Founded in 1896, IUOE today has approximately 400,000 members in
approximately 123 local unions throughout the United States and Canada. IUOE is
the 10th largest union in the AFL-CIO.
B. IUOE Forced Plaintiffs Serving As Officers or Employees of Local
501 and Others to Contribute to the President’s Club/EPEC, a
Political Action Fund
75. Vince Giblin, as General President of IUOE, dramatically increased
contributions to IUOE’s Political Action Fund, the President’s Club/EPEC,
previously and sometimes still known just as EPEC. However, he did so by
engaging in illegal conduct. Giblin required any officer, organizer, instructor,
coordinator, business agent or district representative of a local union or its affiliate
operation, such as a training trust to contribute to the President’s Club. Officers
were told that if they wanted to serve as an officer, organizer, instructor,
coordinator, business agent or district representative, they had no choice but to
contribute to the President’s Club, in amounts ranging from hundreds to thousands
of dollars a year. On information and belief, the obligation to contribute extended
beyond the local level to IUOE employees and affiliates of IUOE.
76. All other Local unions were similarly required to contribute, on a
mandatory basis, to the President’s Club Political Action Fund. The annual
contribution to the President’s Club Fund from the employees and officers of all
Local unions is estimated to exceed $2.5 million per year and is in the range of $2
million to $3 million per year. In 2012, the total contributions to the fund were
$3,023,901.12. A small portion of those contributions were additional
contributions from other members, but the vast portion consists of mandatory
contributions from officers and employees of Locals around the country. The FEC
Committee ID for the Fund is C00029504.
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77. The mandatory nature of the contributions was part of IUOE’s and
Giblin’s desire to elevate the stature of IUOE as a political force through aggressive
donations to political candidates. These contributions are used, in part, to shield
IUOE from the full intensity of regulatory scrutiny. IUOE’s average expenditures
doubled in 2006 and reached an unprecedented level in 2012:
78. Rather than “soliciting” contributions from members, IUOE, in
violation of the Federal Election Campaign Act and Federal Election Commission
rules, mandated that officers and employees contribute to the President’s
Club/EPEC, in the amount of 1% of compensation, up to 1% of $80,000.
Contribution forms are included as part of the new-hire paperwork. Individuals are
first encouraged to complete the authorization paperwork. When mere
encouragement fails, hardball tactics are applied, and the resisting individual is told
that they must contribute if they want to keep their job.
79. In California, at least $10,000 of EPEC funds were used to defeat
Proposition 226, the so-called “Paycheck Protection” initiative, which would have
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required unions to obtain written permission annually before they could use their
members’ dues for political activity. Choice is anathema to IUOE.
80. In 2008, after already pressing for increased contributions from
officers and employees, Giblin and International implemented a plan to circumvent
union member consent and collect a five-cent per hour political contribution
directly from employers, through collective bargaining agreements. The local
unions were directed to negotiate this provision and then supply employers with
check-off lists of union members from whom the contributions would be
automatically deducted from their paychecks, even though the union members were
often unaware that this was occurring and had not consented to it. At the 2008
IOUE General Convention, IUOE resolved, in Resolution 12, that:
NOW THEREFORE. BE IT RESOLVED that each IUOE local union make it a top priority to negotiate at least a five-cents per hour check-off in all collective bargaining agreements for the purpose or raising volun1ary political contributions;
BE IT FURTHER RESOLVED that it is mandatory that the International negotiate at least a five-cents per hour check-off in all national collective bargaining agreements for the purpose or raising voluntary political contributions;
However, this practice was already underway in IUOE, and the IUOE Board
merely ratified this illegal practice that Giblin had already instituted after assuming
the General Presidency in and around 2005, between the conventions that occur
once every five years. The end result was that members around the county were
forced into political contribution schemes without voluntarily consenting to
participation. The results of this illegal behavior speak for themselves, as IUOE’s
political collections and expenditures skyrocketed under Giblin’s control. In the
37th Convention Program, Giblin boasted about the results of his unlawful political
contribution collection schemes when he wrote:
Also, the IUOE today ranks near the top of national lists as one of the
most active union political players in terms of influence and voluntary
contributions. Considering that three years ago we couldn’t be found
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on anyone’s political list, this is a very noteworthy accomplishment –
and one we have every intention of continuing to improve on as we
move forward.
What is implausible about this claim is the characterization of contributions as
“voluntary.” At that same convention, contributions from members were mandated
to be included in collective bargaining agreements, and officers and employees of
locals around the country experienced extortive pressure to contribute upon threat
of job loss, eliminating any pretense of choice. Financial threats of economic harm
and retaliation, in violation of the Hobbs Act, among other laws, were used, at the
direction of IUOE and Giblin, to obtain the dramatically increased contribution
levels about which Giblin boasted.
C. Plaintiffs Discovered Many Examples of Embezzlement and Asset
Diversion from Local 501 and IUOE Accounts Created for the
Benefit of Union Members
1. Dennis Lundy Embezzled from the Apprenticeship Trust
Account, but IUOE President Giblin Protected Lundy
81. In 2007, Dennis Lundy was in charge of the Local 501 Apprenticeship
Trust.
82. Mr. McLaughlin questioned the expenditures by Mr. Lundy, which
were found to be excessive. A spending limit was imposed on Mr. Lundy,
requiring a second signature on checks, at least above a pre-determined limit, if not
on all check. Lundy bypassed Mr. McLaughlin and Don Mear and sought out JAC
Trustee Cornel Sneekes, his personal friend, to sign checks and permit Lundy to
continue his excessive spending and embezzlement from the JAC Fund. Sneekes
was aware that the expenditures were excessive and unlawful. By signing the
checks, Sneekes helped to conceal Lundy’s illegal conduct. In his position as
Trustee of the Local 501 Apprenticeship Fund, Lundy also forged Mr.
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McLaughlin's signature on checks from that fund. Mr. Lundy also charged many
thousands of dollars in lunches to the fund, though the lunches were not for any
Fund business purposes. Instead, Mr. Lundy was cavorting with Cynthia
Escanuelas, an employee of Local 501 with whom he was having an affair. Mr.
Lundy also charged substantial amounts of liquor or other alcoholic beverages and
even pornographic video to the Fund. The pornographic video was charged to a
hotel room charge during Lundy's visit to New York City to attend an award
ceremony from an Irish-American group to John T. Ahern. The room was rented in
the name of John T. Ahern, Business Manager of IUOE, Local 30 and an
International Trustee. Local 501 Bylaws prohibit alcohol charges. Moreover, there
were no room charges to Local 501 for any Local 501 employee that attended the
award ceremony. Local 501 was advised that John T. Ahern would take care of all
of the charges. The hotel itself would have been within Local 30’s jurisdiction and
used operating engineers.
83. Mr. Giblin created Regional Director positions and promoted Mr.
Lundy to the position of Western Regional Director. Mr. Lundy is a personal friend
of Defendant Giblin from their time together in New Jersey. Following Mr.
Giblin's appointment of Dennis Lundy to the position of Western Regional
Director, Mr. Lundy hired Cynthia Escanuelas, his mistress as his new assistant.
Thus, she became an employee of the International.
84. In fact, Lundy is so fully protected by Giblin, that he, Giblin, and,
later, Van Dyke, are the only individuals allowed to work full time for the IUOE
and draw their full pensions from the General Pension Fund simultaneously along
with their work as union members While this arrangement is a violation of the
General Pension Fund rules, as applied by previous General Presidents and General
Executive Board members, Giblin exerted such control over IUOE and its Trustees
and General Executive Board other officers that it was allowed without challenge.
The Fund's rules were never changed to prevent this double-dipping.
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85. After Mr. Lundy started his new job, Mr. McLaughlin reviewed the
Apprenticeship Trust financial records and found a number of improper, personal
charges related to food, beverage, and travel purchases. Mr. McLaughlin
immediate1y began an investigation and brought in Finn Pette, a Business
Representative and elected officer of Local 501, and Daniel Himmelberg, the
Assistant Business Manager, to assist in the investigation.
86. Mssrs. Himmelberg and Pette investigated the embezzlement charges.
They hired an accounting firm and retained a separate lawyer, who was not
affiliated with Local 501. They also notified the Department of Labor and filed
revised reports for the trust account. Mssrs. Himmelberg and Pette received a report
from the accounting firm and sent Mr. Lundy a demand for repayment of roughly
$4,000.00. The auditors could not examine charges prior to December 2006,
though they noted that the card existed since July 2003. Amazingly, Business
Manager Jim McLaughlin had no idea that Lundy had obtained a Visa for the JAC
Trust. Lundy lacked the authority to apply for the Visa for the JAC without the
Trustees’ authorization or the authorization of the Business Manager. No such
authorization was given.
87. An outside auditor concluded that of $56,670.51 charged to the
Apprenticeship Trust Fund by Lundy from January 2007 to July 2007, $13,087.19
constituted meals and entertainment, $13,223.70 constituted travel and lodging, and
$16,810.45 constituted books and equipment. Many of Lundy's charges were for
nothing more than expensive lunches with his mistress, Cynthia Escanuelas. Over
20% of the charges to the fund had no supporting receipt. The unsupported charges
amounted to $19,401.23. At least $4,970.19 of Lundy's meal charges appeared to
have no business purpose.
88. The outside auditor also examined charges to Amex and Visa cards
issued for the Trust, for the billing period of January 2006 to December 2006.
During that time, of $84,352.58 charged, $20,634.05 constituted meals and
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entertainment, $24,397.52 constituted travel and lodging, and $30,380.11
constituted books and equipment. Over 20% of the charges had no receipts. 62
meal transactions, totalling $7,944.78, were undocumented. Total unsupported
charges amounted to $28,981.54. It is believed that some of the unsupported
charges were false submissions used to embezzle funds for a cosmetic breast
augmentation procedure Lundy obtained for Cynthia Escanuelas. The auditor’s
findings are attached hereto as Exhibit 1.
89. Messrs. Himmelberg and Pette also brought the results of their
investigation to the attention of the Department of Labor (“DOL”). The first
interaction with DOL EBSA was in November of 2007. Agent Julie Lowrie
showed up at the Los Angeles office of Local 501 to inform them she was
investigating a "criminal investigation" of fund money abuses of Mr. Dennis
Lundy, formerly the Director of the Los Angeles JAC. After interviewing Jim
McLaughlin, Dan Himmelberg and Finn Pette she left and said she would "be in
touch". She wasn't.
90. In Late April or early May of 2008, Robert H. Fox Jr., former Business
manager of Local 501 and Finn Pette both made a visit to the Pasadena office of the
EBSA to check in with Ms. Lowrie. At that time, they were interviewed for four to
five hours. In addition to providing all the documentation that encompassed the
internal investigation, they provided her with a complete description of how, and
why the Trustees "covered up" the excess charges and told her details regarding the
undue influence of General President Vincent Giblin, and the threats and
intimidation techniques he used. Ms. Lowrie assured Mr. Pette and Mr. Fox that
she would "get back" to them. She never did.
91. Several months elapsed and again Mr. Fox and Mr. Pette scheduled an
appointment at the Pasadena office of EBSA. Upon their arrival, they were told that
Ms. Lowrie has retired, and in fact the day of their last interview was her last day at
the office. They met a young man who seemed to know nothing of the
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investigation. He asked them again to go through all the details again. They spent
another four to five hours telling the exact same story they had already told, and
advised him that all the documentation had already been handed over to Ms.
Lowrie, but they could provide another copy if so requested. He said he would
reach out to them to get the copy of documentation if he couldn't locate it in the
files.
92. Again, several months went by and Mr. Fox and Mr. Pette made
another appointment at the Pasadena office. When they arrived they were told that
the gentleman they had met the last time had transferred to another office and they
were introduced to yet another DOL-ESBA agent and again went through the
whole story. They said there was an "on-going" investigation and they could not
disclose what was happening, but, again, said they would "be in touch". They never
were.
93. The harms resulting from DOL’s inaction and/or inexcusably lethargic
action are discussed in greater detail below.
94. At the last International Convention, several officers of Local 501
approached Richard Griffin, who was, at that time, the general counsel for IUOE,
and provided him with a package containing audit data that they had collected at
that time. Attorney Griffin was advised that Lundy had engaged in crimes
involving embezzlement of Trust account funds and Local 501 member monies.
The 501 officers asked for help from Attorney Griffin. Attorney Griffin took the
package and promised to "get back to them" soon. Instead of providing assistance,
Attorney Griffin did nothing other than deliver information to Giblin and IUOE, as
evidenced by Giblin's sudden involvement to suppress the investigation. Attorney
Griffin failed to report crimes occurring in Local 501 to the appropriate authorities.
Attorney Griffin's silence and complicity was so egregious that he failed to even
attempt to prevent Vincent Giblin and the International from committing further
crimes or fraud against the officers of local 501 and the 501 membership. The
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result of Attorney Griffin's actions or inaction was reasonably certain to result in
substantial injury to the financial interests or property of another individual,
members, or to an IUOE affiliate organization.
95. What the Local 501 officers did not fully understand at the time was
that Griffin had a several-decade-long history of overseeing the IUOE organized
crime syndicate to help it evade detection by law enforcement. For example, since
at least the 1990’s, IUOE claimed to provide hazardous materials handling trainings
through grants from governmental agencies, including the Department of Labor,
Department of Energy and the Environmental Protection Agency, at the United
States Department of Labor National Mine Health and Safety Academy near
Beckley, West Virginia. However, IOUE used these federal grant monies to,
among other things, instruct IOUE members in union organizing techniques and,
later, computer hacking techniques intended to be used on employers unwilling to
negotiate a collective bargaining agreement. Griffin, as head of the legal
department for IUOE, as well as other attorneys subordinate to him, such as Mike
Fanning, attended the Academy while these organizing classes were conducted,
thought Jeff Fiedler was doing a phenomenal job, and encouraged his organizing
and espionage classes. Griffin (and Fanning) was aware of the misuse of these
federal grant monies, but took no action to stop the illegal conduct or report the
illegal conduct. Instead, Mr. Griffin (and Fanning) facilitated it by allowing
instruction from individuals including Jeffrey Fieldler, who taught hacking classes.
Mr. Fiedler’s activities were charged against federal grant monies. This same Mr.
Fiedler, the director of Special Projects for IUOE, has been called upon by IOUE to
essentially run the Las Vegas operations of Local 501 and pave the way for the
merger or dismemberment of Local 501. Mr. Fiedler is also in Las Vegas to
spearhead an effort by IUOE to prevent Macau business interests from capitalizing
on the Las Vegas market without IUOE having any ability to control the degree of
infiltration.
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96. Mr. Lundy's friend, Sandra Acosta, called Mr. McLaughlin and told
him Mr. Lundy wasn't going to pay the money back to the trust and that Mr.
McLaughlin had "better back off" on insisting Mr. Lundy pay the money back to
the trust because Mr. Lundy had "friends." Mrs. Acosta was undoubtedly informed
and sincere in her warning, given that she vacationed annually with William
Waggoner and his wife, Patty Waggoner. Mr. McLaughlin received an angry call
from the then IUOE General President Vince Giblin around the early part of 2008.
Mr. Giblin demanded Mr. McLaughlin "drop" the investigation. Mr. Giblin told
Mr. McLaughlin that he "owed" Mr. Giblin because Mr. Giblin knew Mr. Lundy
was going to run for Business Manager and told Mr. McLaughlin that he had
"[taken] Dennis off [his/McLaughlin's] hands."
97. Mr. McLaughlin told Mr. Giblin that he couldn't stop the investigation.
From early 2008, until June 2009, Mr. Giblin harassed and threatened Mssrs.
McLaughlin, Himmelberg, and Pette. Mr. McLaughlin was the 2nd Vice-President
of the IUOE Executive Board and was a trustee on the Central Pension Trust. Mr.
Giblin displayed contempt for Mr. McLaughlin at Board and Pension Trust
meetings, and when Mr. Giblin found out that Mssrs. Himmelberg and Pette had
accompanied Mr. McLaughlin to an IUOE meeting in Chicago, Mr. Giblin told Mr.
McLaughlin if he saw either Mr. Himmelberg or Mr. Pette he would fire them "on
the spot," notwithstanding that, at all times relevant, Himmelberg and Pette were
employees and elected officers of Local 501. Mr. Giblin also told Mr. McLaughlin
that he was going to "punch their ticket," referring to Mssrs. McLaughlin,
Himmelberg, and Pette.
98. In an unprecedented move and based solely upon the receipt of
anonymous letters, Mr. Giblin directed the IUOE ethics officer former New Jersey
Supreme Court Judge James R. Zazzali to investigate Mr. McLaughlin. It is now
known, Michael Russell, a local 501 employee based in Las Vegas, and personal
friend of Dennis Lundy wrote the anonymous letters at the request and
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encouragement of Dennis Lundy. Mr. Russell’s testimony setting forth this
admission is attached hereto as Exhibit 2. However, no charges were brought
against Mr. McLaughlin because Mr. McLaughlin provided documents and
responses that supported Mr. McLaughlin’s position that he had done nothing
wrong. To the knowledge of all class representatives in this action, ethics officer
Zazzali failed to finalize a report detailing his findings in connection with local
501. After ethics officer Zazzali agreed to consider and begin an investigation
based upon Mike Russell’s anonymous letters to him regarding local 501, a flood of
anonymous letters regarding local 501 began to flow in to the ethics officer.
Rather than investigating the merits of these other anonymous letters as he did with
respect to Mr. McLaughlin, and realizing he had created a serious problem, ethics
officer Zazzali caused an article to be published in the IUOE publication
concerning anonymous letters. A copy of that article is attached hereto as Exhibit
3.
99. Meanwhile, JAC Trustees under Giblin’s control worked on their end
to also shield Lundy from accountability. Jim Scranton moved to suspend the
investigation into Lundy. Scranton separately moved to exonerate Lundy from all
charges related to his excessive expenditures related to alcohol and almost daily
lunches with his secretary-mistress Cynthia Escanuelas because, Mr. Scranton
observed, there were no specific rules saying that the purchase of large quantities of
alcohol or daily lunches with one’s mistress were specifically prohibited under the
JAC bylaws or employee conduct regulations. But Scranton’s motion was
inconsistent with 30 years of past practice, wherein it was not permitted to spend
JAC monies in manner that Lundy did. Mr. Fox has advised Lundy in 2008 that
were he still the Business Manager, he would have prosecuted Lundy to the fullest
extent possible, despite having hired Lundy many years ago. See Exhibit “29.” In
short, Scranton sought to conceal what a founding member of Local 501 would
have prosecuted.
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100. On or about June 9, 2009 Robert Fox, the previous Business Manager
of Local 501 and former International Vice President received a call from
Defendant Vincent Giblin, IUOE General President. Mr. Giblin was extremely
upset with James McLaughlin, the Business Manager of Local 501 at that time.
Mr. Giblin said to Mr. Fox, "I told that fat fuck [James McLaughlin] to make that
Lundy thing disappear and he never did. That lazy fat fuck has to go!" Mr. Fox
was a trusted confident of Mr. McLaughlin and knew about the Lundy reference,
having already heard from Mr. McLaughlin that Mr. Lundy had embezzled funds
from the Apprenticeship Trust at Local 501.
101. On or about the morning of June 11, 2009, Mr. Giblin called Mr.
McLaughlin and ordered Mr. McLaughlin to resign as Business Manager and Vice-
President of the Executive Board. Mr. Giblin also removed Mr. McLaughlin as a
Trustee of the IUOE Central Pension Trust. Initially, Mr. McLaughlin refused to
submit his resignation, stating that he had done nothing wrong. Mr. Giblin
threatened to separate the Las Vegas membership from Local 501 if Mr.
McLaughlin didn't resign. Mr. Giblin told Mr. McLaughlin that if he didn't resign,
he would be "the Business Manager of nothing!" Mr. Giblin ended the conversation
by telling Mr. McLaughlin that he had to direct all communications to the IUOE's
general counsel at that time, Richard Griffin. Mr. Giblin then abruptly hung up the
phone.
102. Local 501 originated the Central Pension Fund. Local 501 deposits
started that fund. Because of this, Local 501 does not have its own local pension
like many other Locals do. When Giblin forced out Mr. McLaughlin, a sitting VP
of the IUOE, the Business Manager of Local 501, and a Trustee of the Central
Pension Fund, this left Local 501 with no elected official capable of attempting to
protect Local 501 memberships' interest in the Central Pension Fund, which is
Local 501's only pension fund.
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103. James McLaughlin faced multiple obnoxious and often threatening
telephone calls weekly from Vincent Giblin. It was clear to McLaughlin and the
other union officers that the tone and posture of Vincent Giblin was increasing in
intensity. Although McLaughlin received the calls directly, Giblin’s screaming
into the phone at McLaughlin was heard by other officers and employees’ alike
working in the Local 501 office. These threatening calls continued from 2007 until
the day McLaughlin resigned.
104. In an effort to quiet Vincent Giblin, James McLaughlin reached out to
Attorney Michael R. Fanning, the Chief Executive Officer for the General and
Central Pension Funds, over the issue of Jackie Foley, a retired local 501 employee.
Prior to reaching out to Attorney Fanning, McLaughlin had received numerous
calls from Vincent Giblin accusing him of having allowed Jackie Foley to work in
excess of 35 hours in any given month. Although McLaughlin had advised Vincent
Giblin that this never happened, as did Jackie Foley, Vincent Giblin was relentless
in his pursuit of the false Foley allegations with James McLaughlin as a pretext for
finding a reason to force the resignation of McLaughlin. At all times relevant,
James McLaughlin, a trustee on the Pension Trust Board, understood and abided by
the rules governing the employment of retirees, including Jackie Foley. The
perverse irony of this false accusation was that Giblin had required the Trustees of
the General Pension Fund to create an exception for him and Dennis Lundy,
allowing them to work fulltime and also collect their General Pension Fund
benefits, in violation of the Fund’s administration rules. The IUOE Constitution
requires the GP position to be a fulltime position. At the same time, Giblin was
receiving a salary from Horizon Blue Cross/Blue Shield as the Chairman of the
Board. Despite both these handsome salaries, Giblin forced the Trustees to violate
the General Pension Fund rules and provide yet another source of revenue.
105. Contrary to both James McLaughlin’s and Jackie Foley’s statements to
Attorney Fanning, Attorney Fanning took the position and advised McLaughlin to
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“admit” he had permitted Foley to work in excess of 35 hours in a month.
McLaughlin protested that this was not true, but Attorney Fanning stated to
McLaughlin that Vincent Giblin was not going to drop this issue or leave
McLaughlin alone until the Fund could put this issue to rest. Attorney Fanning
advised McLaughlin that Giblin would drop the issue and everything could go back
to normal if he admitted the false allegation that Foley worked in excess of 35
hours. McLaughlin finally agreed to allow Attorney Fanning to take an admission
back to Vincent Giblin concerning the false Foley allegation, while continuing to
protest that it was untrue. Attorney Fanning, an officer of the Court, not only
advised a trustee of the Fund to lie, but indicated that unless McLaughlin did lie as
directed, Vincent Giblin would continue to target local 501 and McLaughlin with
continuing harassing calls, threatening calls, and action adverse to local 501, its
officers, and its membership. Shortly thereafter, while in route to Washington to
attend a meeting of the trustees, McLaughlin received a telephone call from
Vincent Giblin demanding his immediate resignation from his position as Fund
trustee.
106. Mr. McLaughlin called a meeting with Mr. Pette and Mr. Himmelberg
in his office. They decided to contact Local 501's attorney to find out what could be
done. Mr. McLaughlin called attorney Adam Stern and attorney Stern agreed to
come to the Local 501 office later that morning. At about the same time, Mr. Fox
came into Mr. McLaughlin's office. Mr. Fox told Mssrs. McLaughlin, Himmelberg,
and Pette about the conversation he had with Mr. Giblin the prior evening and Mr.
McLaughlin told Mr. Fox about the conversation that he had with Mr. Giblin earlier
that morning, including Mr. Giblin's death threats directed at Mssrs. McLaughlin,
Himmelberg, and Pette. Mr. Fox agreed to stay and tell attorney Stern about his
conversation with Mr. Giblin.
107. Mr. Stern arrived on or about the morning of June 11, 2009 with one of
his law partners, attorney Lewis Levy. Mr. Fox told Mssrs. Stern and Levy about
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his previous phone conversation with Mr. Giblin and Mssrs. McLaughlin,
Himmelberg, and Pette reminded attorneys Stern and Levy about the Lundy matter
and Mr. Giblin's retaliatory acts. Mr. McLaughlin then asked Mr. Stern to call the
IUOE and speak to the general counsel to the IUOE, Attorney Griffin, to "get the
IUOE off my back." Mr. Stern told everyone present that the IUOE had no basis to
place Local 501 into trusteeship and specifically called Mr. Giblin's actions
"bullshit." Mr. Levy then told Mr. McLaughlin that Mr. Stern was "too emotional"
and that he would speak to Attorney Griffin. But Levy, Stern & Ford did not
disclose the substantial and unwaivable conflict of interest they faced when asked
by Mr. McLaughlin to call the IUOE and speak to Attorney Griffin to get the IUOE
off his back:
(a) The firm of Levy, Stern & Ford has represented Local 501 for
almost 15 years. Between 2007 through June 2009, Mr.
McLaughlin and others kept Levy, Stern & Ford and Adam
Stern updated on Mr. Giblin’s actions against Mssrs.
McLaughlin, Himmelberg, and Pette.
(b) Sandra Acosta, a Business Agent and employee of Local 501,
filed a sexual harassment lawsuit ("Acosta Action") against
Local 501 and Mssrs. McLaughlin and Pette in early 2009. The
Acosta Action was active in June 2009 and Levy, Stern & Ford,
specifically, Adam Stern and Lewis Levy, represented Local 501
in the Acosta Action and represented Mssrs. McLaughlin and
Pette, as individuals, in the lawsuit. (Levy, Stern & Ford did
obtain conflict waivers from Mssrs. McLaughlin and Pette in
order to represent them in the Acosta Action.)
(c) Levy, Stern & Ford also personally represented Mr. McLaughlin
in a separate matter. Mr. Levy individually and Levy, Stern &
Ford, represented Mr. McLaughlin in a workers’ compensation
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matter related to an injury Mr. McLaughlin suffered while
working at Local 501.
(d) In or around late 2009, plaintiff’s counsel in the Acosta Action
served a deposition subpoena on Mr. Giblin. Mr. Giblin told Mr.
Levy that he didn't want his deposition taken and to “make the
Acosta thing go away.” Mr. Giblin also learned that Sandra
Acosta had audio-taped a conversation she had had with Giblin,
when Giblin called her. Shortly thereafter, Mr. Levy negotiated
a settlement with Ms. Acosta and the case was dismissed, with a
settlement paid by local 501 believed to be in excess of
$239,000. The settlement included Acosta’s ability to return to
the staff of Local 501 in a manner comparable to the proposed
Blair Brim settlement agreed to in March 2013. At all times
relevant, information on the settlement was withheld from the
membership of local 501. Although the local 501 insurance
carrier paid this settlement, the settlement resulted in a change
of status for purposes of insurance ratings, and costs associated
with insurance coverage. The initial ramification of this
settlement was an increase in the deductible associated with the
coverage. Later, this settlement played a role in local 501 being
dropped by the carrier forcing local 501 to seek new, higher
cost, insurance due to the loss rating. Levy, Stern & Ford
refused to release this information to the local 501 membership.
Information about the amount of the settlement appears on the
2010 LM-2 filing by Local 501 with the U.S. Department of
Labor:
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SCHEDULE 14 ‐ OTHER RECEIPTS 2010 IUOE 501 LM‐2 FILE NUMBER: 012‐442
Name and Address (A)
Purpose (C)
Date (D)
Amount (E)
Total Itemized Transactions $230,450ZURICH INSURANCE
66944
CHICAGO IL
60666
Total Non-Itemized Transactions $0
Type or Classification (B) Total of All Transactions $230,450
INSURANCE PROVIDER LAWSUIT SETTLEMENT 02/18/2010 $230,450
(e) At all times relevant, the International and Vince Giblin had no
vested financial interest in the outcome of the Acosta litigation.
The membership of local 501 were the only parties of interest
and they were deprived of actual knowledge to prevent future
losses to local 501 by the International, Vincent Giblin and
Levy, Stern & Ford, working in concert each with the other.
(f) By virtue of the representation provided above Levy, Stern &
Ford received substantial financial benefits from both Local 501
and the International IUOE. Mr. McLaughlin and Local 501
paid Levy, Stern & Ford a monthly retainer of$12,500.00 per
month to represent Local 501. Additionally, Attorney Griffin of
the IUOE and William Waggoner, First Vice-President of the
IUOE and Business Manager of IUOE Local 12 in Pasadena,
California retained the service of Levy, Stern & Ford. Despite
the conflict faced by Levy, Stern & Ford, the firm did not
disclose the substantial and unwaivable conflict of interest when
Attorney Levy agreed to call the IUOE and speak to Attorney
Griffin to “get the IUOE off Mr. McLaughlin’s back.”
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108. Mssrs. Levy and Stern left Mr. McLaughlin's office and went to a
private room in the offices of Local 501 to call Attorney Griffin. Mssrs. Levy and
Stern returned and Mr. Levy stated to everyone that Attorney Griffin said Mr.
Giblin was demanding Mr. McLaughlin resign. Attorney Stern insisted that they
fight Mr. Giblin and the IUOE. Mssrs. McLaughlin, Himmelberg, Pette, and Fox
agreed with Attorney Stern.
109. However, Attorney Levy told Mr. McLaughlin that he must negotiate a
resignation with the IUOE because Attorney Griffin told him Mr. Giblin was
threatening to either separate Las Vegas from the Local or place Local 501 under
trusteeship. Attorney Levy told Mr. McLaughlin that Mr. Giblin was prepared to
take action immediately.
110. Mr. McLaughlin told Attorney Levy he didn't want to resign as
Business Manager of Local 501 but he also did not want Local 501 to be broken
apart or placed under trusteeship. Attorney Levy told him his only option was to
resign. At this point, Mr. Pette left the meeting to attend another meeting where he
was leading the negotiations on a new union contract for Local 501 members.
111. After Mr. Pette left, Mr. McLaughlin asked Attorney Stern and
Attorney Levy for their advice. Mr. Levy told Mr. McLaughlin that he had to
negotiate with Attorney Griffin that he should propose his own terms. Mr.
McLaughlin told Attorney Levy that he would agree to resign; however, he wanted
his pensions from his position as Business Manager as well as 2nd Vice-President
of the IUOE. Additionally, Mr. McLaughlin wanted his medical benefits. Attorney
Levy agreed to pass that on to Attorney Griffin. Mssrs. Levy and Stern left the
room to call Attorney Griffin.
112. Mssrs. Levy and Stern returned to Mr. McLaughlin's office about 20
minutes later. Attorney Levy stated that as part of the deal to "leave Local 501
alone," Mr. McLaughlin not only had to resign, but before he resigned, Mr.
McLaughlin also had to fire Finn Pette as Business Representative. Mr. Pette was
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the originator of various audits into employer contribution shortfalls concerning
both the JAC Fund, and the local 501 Health & Welfare Fund. Mr. Pette was also
investigating massive double-breasting issues involving defendants Able and ABM.
113. Mr. McLaughlin told Attorney Levy that Mr. Pette was "not part of the
deal." Mr. McLaughlin had been grooming Mr. Pette to potentially succeed him as
Business Manager when Mr. McLaughlin retired. Mr. McLaughlin was a mentor to
Mr. Pette and assigned Mr. Pette to high profile negotiations. Mr. McLaughlin
took Mr. Pette to IUOE working meetings throughout the country. Upon being
forced to resign, it was Mr. McLaughlin's goal to have Mr. Pette succeed him as
Business Manager and to keep Mr. Himmelberg as Assistant Business Manager to
assist Mr. Pette in performing his job duties.
114. Mr. McLaughlin told Attorney Levy that he would not fire Mr. Pette.
Mssrs. Levy and Stern left the room to call Attorney Griffin. In the meantime, Mr.
McLaughlin tried to call Mr. Pette but did not reach him.
115. Mssrs. Levy and Stern returned to Mr. McLaughlin's office a few
moments later. Attorney Levy told Mr. McLaughlin that if Mr. McLaughlin didn't
agree to fire Mr. Pette, or get Mr. Pette to resign, that "Dan is next." Mssrs. Fox,
McLaughlin, and Himmelberg understood this to mean that Attorney Griffin and
the IUOE would demand that Mr. Himmelberg's employment be terminated if Mr.
McLaughlin didn't fire Mr. Pette.
116. Attorney Levy asked Mr. McLaughlin why Mr. Giblin wanted Mr.
Pette removed as Business Representative. Mr. McLaughlin reminded Attorney
Levy and Attorney Stern that Mr. Giblin had a vendetta against Mr. Pette and Mr.
Himmelberg because they were both involved in the investigation of Dennis Lundy,
who was under Giblin's protection, and audits of the various Local 501 Funds. Mr.
McLaughlin asked attorneys Stern and Levy if the IUOE's acts were a violation of
Taft-Hartly or the LMRDA. Attorney Levy merely responded that Mr. McLaughlin
"shouldn't pick a fight with [Mr.] Giblin or the International."
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117. Mr. McLaughlin told Mr. Levy that he couldn't risk Mr. Himmelberg's
job because Mr. Himmelberg had Parkinson's disease and Mr. Himmelberg
wouldn't be able to get a job as an engineer. Mr. McLaughlin told Attorney Levy
that Mr. Giblin knew Mr. Himmelberg had Parkinson's disease because Mr.
McLaughlin told Attorney Giblin at an IUOE meeting when Attorney Griffin asked
why Mr. Himmelberg's hand was shaking. Attorney Levy then suggested Mr.
McLaughlin make a counterproposal. Mr. McLaughlin decided to propose that Mr.
Pette would resign in late spring of 2010. Mr. McLaughlin proposed this date
because this would give Mr. Pette time to finish some major negotiations which
would be publicized. Mr. Pette could then use this positive publicity to increase his
chances of winning the Business Manager position in the elections the following
year.
118. Although Mr. Pette was not present, Mr. McLaughlin told Attorney
Levy that he would agree to convince Mr. Pette to resign in the late spring of 2010.
Attorney Levy told Mr. McLaughlin that this appeared "fair" and he would speak to
Attorney Griffin. Mssrs. Levy and Stern left the room and returned shortly. Upon
returning to the room, Attorney Levy told Mr. McLaughlin that Mr. Giblin was
demanding that if Mr. Pette was going to resign, he had to resign by October 31,
2009. Mr. Levy told Mr. McLaughlin that he had to make a decision at that moment
and to not bother with a counter-offer because Attorney Griffin told him that Mr.
McLaughlin had to "take it or leave it" and if Mr. McLaughlin didn't "take it,"
Attorney Griffin would next demand Mr. Himmelberg's resignation or termination.
119. Mr. Levy told Mr. McLaughlin that this was a "good deal," and that
Mr. McLaughlin should accept Attorney Griffin's demand. Mr. McLaughlin relied
on the advice and counsel of Mr. Levy and agreed to the term. Mr. Levy then
notified Attorney Griffin that the term requiring Mr. Pette's resignation by October
31, 2009 was "accepted." Mr. Levy left to call Attorney Griffin and then returned
about 30 minutes later. Mr. Levy told Mr. McLaughlin that he had to propose a
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person to replace him as Business Manager. Mr. Levy told Mr. McLaughlin that
Mr. McLaughlin couldn't propose "that guy with the hat [Mr. Pette] or
Himmelberg, or that broad [Sandra Acosta]." Mr. McLaughlin told Mr. Levy that
he wanted to Mr. Pette to take over as Business Manager. Mr. Levy responded that
it was not a good idea to propose Mr. Pette's name. Mr. McLaughlin then proposed
Ronald Frease. Mr. Levy left to call Attorney Griffin and returned a few moments
later and said that Mr. Frease was "unacceptable" to the IUOE. Mr. McLaughlin
then proposed Edward Curly. Attorney Griffin told Mr. Levy that Mr. Curly was
also "unacceptable" to the IUOE. Finally, the IUOE agreed to allow Chris Brown to
replace Mr. McLaughlin as Business Manager of Local 501.
120. Mr. Pette returned to the Local 501 office about 3 hours later. Upon
Mr. Pette's return, Mr. Levy and Mr. McLaughlin told Mr. Pette that he would have
to resign his position as Business Representative and Financial Secretary. Mr.
McLaughlin told Mr. Pette that did not want to fire Mr. Pette nor did he want Mr.
Pette to resign. Mr. McLaughlin told Mr. Pette that he didn't have a choice because
Mr. Levy told him that he didn't have a choice. Mr. Pette asked if he had say in the
decision. Mr. Levy then told Mr. Pette "What they said was, we better accept these
terms because they could have taken Himmelberg out too."
121. Mr. Pette asked Mr. Levy "What does that mean?" Mr. Levy replied,
"Either you're fired, or everyone is fired. Take it or leave it." Mr. Pette asked Mr.
Levy "Do you want me to sign something?" Mr. Levy replied "That won't be
necessary." Mr. Pette immediately told Mr. Levy, "Like hell it won't! I want this in
writing!" Mr. Levy told Mr. Pette, "Okay, Finn, I'll take care of it."
122. Mr. Pette then asked "so I have to resign when Jim does?" To which
Mr. Levy responded "I got you a reprieve until October 31st." The meeting then
ended and Mr. Levy prepared a letter with the terms of the June 11, 2009
negotiations and distributed it to Mssrs. Griffin, McLaughlin, Himmelberg, and
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Pette. Attorney Levy’s contemporaneous notes of the meeting are attached hereto
as Exhibit 4.
123. Notwithstanding the above "agreement" "negotiated" between IUOE
General Counsel Griffin and attorneys Stern and Levy, the IUOE did not live up to
its end of the bargain. From this point forward, Local 501 was fully at the mercy of
IUOE, Giblin and Griffin. Local 501's new Business Manager Christopher Brown
received instruction from James Van Dyke, Chief of Staff for General President
Vincent Giblin, who instructed Mr. Brown to fire Mr. Pette two weeks earlier than
October 31, 2009.
124. Although Levy documented the "agreement" that was "negotiated"
with IUOE, Levy later prepared a falsified version of his correspondence in
subsequent litigation and provided the falsified version to the Court in an attempt to
conceal the conspiracy to oust Mr. Pette and undermine his insurgent candidacy
potential. That falsified letter omitted the "cc" notation indicating that it had been
sent to Mr. McLaughlin and omitted key provisions of the "agreement," such as it
was. A copy of the original confirmatory letter is attached hereto as Exhibit 5. The
falsified letter later prepared by Levy to conceal his conspiracy with Attorney
Griffin to force out Mr. Pette is attached hereto as Exhibit 6.
125. In August of 2009, while IUOE Chief of Staff, Jim Van Dyke, was
performing an internal audit of Local 501, two DOL agents showed up at the Los
Angeles offices of Local 501. Mr. Van Dyke ushered them into a private meeting
and they were sequestered there for over an hour. When they left, Mr. Pette
approached the agents and asked who they were. Mr. Pette was introduced to
Michael Blas and a fellow investigator from the DOL Office of the Inspector
General. Mr. Pette asked what they were doing there and they said they had
received a call from a "member" that something was going on at Local 501.
Mr.Pette confirmed that there most certainly was something going on, and Mr. Blas
asked Mr. Pette to contact him at his office in West Covina.
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126. Several days passed until Mr. Pette could schedule an appointment to
meet with Mr. Blas at his office. When he arrived, he was escorted to an
interrogation room where Mr. Blas and his fellow agent asked him what was
happening at Local 501. Mr. Pette was very upset, having not obtained any help
from the offices at EBSA, and so he raised his voice and started yelling at them for
not doing their job. At that time Mr. Blas pulled his gun and smashed it on the table
and said, "Well you're not dealing with ESBA anymore! We're the guys who carry
the guns and get things done!"
127. Mr. Pette proceeded to tell him of the investigation into the
misappropriated funds at the Apprenticeship, and how General President Vincent
Giblin had intimidated and halted a legal and necessary investigation of abuses of a
Taft-Hartley Fund. Mr. Pette also described how he had caused the termination of
elected officials (Jim McLaughlin and Mr. Pette) and that this appeared to be a
clear example of labor racketeering.
128. Mr. Blas asked Mr. Pette to return with copies of the internal records
from the JAC and to spend some time telling him the entire story of what had
transpired at Local 501. They scheduled an appointment approximately a week
later.
129. When Mr. Pette returned with all the JAC documentation, it was given
to Agent Blas. Mr. Pette proceeded to tell him that Vincent Giblin had ordered the
halt of the internal investigation, that he had threatened Jim McLaughlin, and that
he had disrupted the order of the membership. Mr. Giblin had ordered terminations
and retaliated for the investigation into Dennis Lundy. This meeting lasted from
approximately 9 a.m. until well after 3 p.m. At the end Agent Blas asked, "Do you
think the IUOE runs like the mafia?" Mr. Pette replied, "Do you guys even talk to
the folks that run your east coast offices? Not only do we run like the mafia, we're
controlled by it!"
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130. Agent Blas said he would keep in touch with Mr. Pette via e-mail as
the situation progressed. He also asked Mr. Pette to inform him of various issues as
time went on via e-mail, which Mr. Pette did. Various emails between Mr. Pette
and Mr. Blas are attached hereto as Exhibit “23.”
131. Approximately one month later, Agent Blas asked Mr. Pette to meet
him again at his West Covina office. He had looked through the JAC files and
come across the "forged checks" that Dennis Lundy had filled out in Jim
McLaughlin's name. He said that if they had the originals (they currently held
copies) they could send them to the FBI for handwriting analysis. Agent Blas
continually hinted around the fact that if they had the original checks they could do
something with the case. Mr. Petter finally asked Agent Blas, “Do you want the
fucking checks?” Agent Blas indicated to Mr. Petter that he did. On that basis, Mr.
Petter obtained the original checks for Agent Blas.
132. A few days later, Mr. Pette arrived for another appointment with Mr.
Blas. When Mr. Pette showed him the checks he immediately left the room and
returned wearing rubber gloves and carrying an "evidence" bag. He confiscated the
checks and placed them in the clear "evidence" bag and sealed it. Mr. Pette told
him he would need them back, and Mr. Blas replied, "They are in evidence of the
DOL now." He told Mr. Pette that he would return them prior to Mr. Pette’s
scheduled termination date of October 31.
133. Eventually Mr. Pette received a letter from the Washington D.C. DOL
Office of the Inspector General saying that they were no longer investigating the
case. A true and correct copy of that letter is attached as Exhibit “24.” Agent Blas
quit returning Mr. Pette’s e-mails. Several requests were made to have the forged
checks returned, but to date they remain in possession of the Department of Labor,
to the best of Plaintiffs’ knowledge.
134. Much later, when Mr. Pette was cooperating with the 14 month long
investigation by the Department of Labor, Office of Labor Management Standards,
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into the election misconduct at Local 501, Mr. Pette spoke with Agent Ed Oquendo
about the issues he had with the DOL-ESBA. Mr. Oquendo told Mr. Pette that his
supervisor has worked at the Pasadena office for years and Mr. Pette should talk to
him.
135. District Director Alan Weiss gave Mr. Pette the number of the "head"
of the Pasadena office of ESBA. He placed a call to this individual. She told Mr.
Pette that the case against Dennis Lundy was closed. Mr. Pette asked her under
what condition it was "closed" and she got very hostile. Mr. Pette said, "If the case
is closed, it should be a matter of public record. Can I set a time to come by the
office and look over the file?" At this point the woman actually started to yell at
Mr. Pette, screaming, "IF YOU WANT ANY FURTHER INFORMATION ON
THE DENNIS LUNDY MATTER YOU CAN FILE A FREEDOM OF
INFORMATION ACT REQUEST TO OUR D.C. OFFICE!" She hung up the
phone.
136. Mr. Pette was concerned at this juncture that someone within the DOL
very high up, perhaps even Hilda Solis herself, was derailing the investigations into
all issues surrounding the Operating Engineers. It is well known within the
Operating Engineers that Hilda Solis' election campaign was heavily funded by the
Operating Engineers, and Mr. Pette learned that she was flown to Washington D.C.
for her swearing in on Local 12's Private Jet. William Waggoner, the Business
Manager of Local 12, bragged to Jim McLaughlin that he was flying Hilda Solis
back to DC to be sworn in. Mr. Pette was so concerned that he actually e-mailed
Alan Weiss and asked him what her involvement would be with the election case.
137. The harm to Local 501’s members resulting from the inaction or
lethargic action of DOL is substantial. For example:
(a) IUOE placed Brown in control of Local 501 without complying
with IUOE’s constitution or Title IV of the LMRDA. DOL
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failed to take action against this unlawful usurpation of union
autonomy and election procedure;
(b) Brown was instructed by IUOE to terminate Blair Brim;
(c) Brown was subsequently prevented by IUOE from defending the
suit brought by Brim when Brown, acting outside the scope of
his fiduciary duties to Local 501, terminated Brim;
(d) When Mr. Pette attempted to provide information and evidence
to use in defense of Brim’s suit, he was told that it would not
utilized by Local 501;
(e) Brim obtained a judgment in excess of $6 million dollars against
Local 501 as a direct result of IUOE’s illegal racketeering and
DOL’s failure to intercede in the ongoing abuse of Local 501 by
IUOE;
(f) In 2011, Brim offered to compromise his judgment in the
amount of approximately $1.5-1.7 million (depending upon
whether certain benefits were included), but Brown was
instructed by IUOE to reject that offer. Again, had DOL
intervened in the illegal activities occurring at Local 501,
democratically elected leadership could have resolved Mr.
Brim’s judgment without ever having to file for bankruptcy
protection;
(g) Brim’s attorney, Lee Feldman, was contacted by IOUE, through
Callahan and Van Dyke. Callahan and Van Dyke threatened to
place Local 501 in bankruptcy if Brim did not accept pennies on
the dollar for his judgment;
(h) In anticipation for the bankruptcy filing, IUOE caused Local 501
to withhold a small amount of per capita payments from IUOE
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so that IUOE would be an unpaid creditor with additional rights
and powers over Local 501 in the bankruptcy;
(i) Local 501 filed for bankruptcy protection at IUOE’s instruction;
(j) IUOE then placed Curly in charge of Local 501 in part because
Brown admitted during discovery in Brim’s suit that he was
following orders from IUOE, and Brown failed to get “amnesia”
as instructed by Callahan. IUOE appointed Curly without
complying with IUOE’s constitution or Title IV of the LMRDA,
but DOL did nothing to correct this unlawful conduct, despite
being fully apprised of it on an ongoing basis;
(k) In November 2012, Local 501 refused to hold elections for
delegates to the General Convention of the International Union
of Operating Engineers. IUOE used the per capita
underpayment as a pretext for denying Local 501 members their
constitutional right to participate in the General Convention.
Had DOL intervened, it could have prevented this violation of
Title I rights held by members of Local 501;
(l) At the end of 2012, Brim filed suit against IUOE in Los Angeles
Superior Court, seeking a declaration that IUOE was the alter
ego of Local 501 as a result of its systemic control imposed on
Local 501;
(m) In early 2013, Brim offered to settle his claim for $2.5 million,
or almost $1 million more than had been rejected in 2011. Curly
was instructed by IUOE to advise the Board that Brim’s offer
had to be rejected because IUOE was not released from Brim’s
suit against IUOE;
(n) In March 2013, Brim demanded an addition $500,000 in total
settlement compensation to include IUOE as a released party.
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Curly, on orders from IUOE, instructed the board to accept that
higher settlement demand, though several board members
objected to the increased cost of the settlement to Local 501 to
provide IUOE with a release.
(o) In March 2013, the unlawfully appointed leadership of Local
501 advised retiree members of Local 501 that they would no
longer receive health care benefits unless they paid the entire
cost themselves, at an increased cost of roughly $1,000 per
month, varying by marital status. Members of 35 years, who
rely on this benefit, may no longer have the means to pay for it
as a result of the catastrophic failures by IUOE’s appointed
figureheads running Local 501;
(p) DOL’s inaction allowed the environment of corruption to
persist, which manifested itself in, among other ways, the
millions of dollars of increased costs imposed on Local 501 as a
result of an unnecessary bankruptcy filing, more than a half
million in attorney’s fees to counsel in connection with the
bankruptcy, and $1.5 million in additional settlement costs.
(q) This pattern of inaction in the face of documented illegal
activity, including racketeering activity, over a period of years
rendered futile any efforts by Local 501 members to exhaust
administrative remedies through the Department of Labor or
Local 501 or IUOE. Any exhaustion obligations should be
excused in the face of this complete failure by the DOL to
discharge its mandate.
138. On or about October 17, 2009, Mr. Brown fired Mr. Pette as Business
Representative as well as from the positions of Trustee on both the Apprenticeship
and Health and Welfare funds.
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139. Contrary to the IUOE Constitution, Article 24, Subdivision 7, Section
E, Mr. Pette was charged by the IUOE with allegations that would have mandated
his removal from the office of Financial Secretary. Mr. Pette served his entire term
as Financial Secretary of Local 501. If, in fact, General President Giblin and Ethics
Officer Zazzali believed the charges filed against Mr. Pette had merit, Ethics
Officer Zazzali had a duty to recommend the removal of Mr. Pette to Mr. Giblin,
and Mr. Giblin, as General President, had the authority and fiduciary obligation to
remove Mr. Pette from elected office, and thereby protect the membership of local
501. Neither believed that the charges were legitimate.
140. Further, in an additional breach of the "agreement," in and around
November 2009, Mr. Van Dyke ordered Mr. Brown to fire Mr. Himmelberg as
Assistant Business Manager, even though Mr. Brown told Mr. Van Dyke that he
needed Mr. Himmelberg's experience and knowledge and wanted to keep him as
Assistant Business Manager. Mr. Van Dyke told Mr. Brown that Mr. Giblin was
ordering Mr. Brown to fire Mr. Himmelberg. Reluctantly, Mr. Brown obeyed Mr.
Giblin and terminated Mr. Himmelberg's employment.
2. Lundy Helped Operate a Sham BOMA and EPA 608
Certification Testing System
141. The Building Owner Manager’s Association (“BOMA”) created a
certification intended to ensure that stationary engineers certified by BOMA were
properly educated about certain safe operating. This certification gave building
owners the assurance that their engineers were capable of safely operating in their
buildings. In return, certified engineers received $5 per hour more in pay. This
increase in pay also created a benefit for the locals, which were compensated by
employers based on hourly pay rates in effect for their members.
142. Local 501 was designated as the central testing center for BOMA and
EPA 608 certification. Locals around the United States were to send their test fee
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to Local 501, where it would be graded and returned, including Locals 30, 68, 94,
and 399. Unfortunately, under Lundy, the system was corrupted.
143. Cynthia Escanuelas would often take tests sheets and grade them
herself at the request of Dennis Lundy because the applicant was a friend of his or
of some particular Chief Engineer for ABLE or ABM. When tests were walked
through in this manner, those certification applicants always passed.
144. The test questions and answers were made available to many members
at other local unions. Members at other local unions paid $50 for their test grading,
and Local 501 received 100 or more tests from other locals each month, but there is
no record of any test payment being deposited in the Apprenticeship Fund at Local
501. It appears that Lundy embezzled all of the test payments from other locals,
depositing only the payments from Local 501 members.
145. The propagation of sham certifications affects both public and private
employers, since governmental entities also hire union stationary engineers to
operate and maintain government buildings.
146. When Himmelberg and others audited the JAC for 2007 and 2006,
they were unable to locate any checks from any of the Locals paying for test
grading and certification issuance.
147. The new JAC Director following Lundy, and other Local 501 members
that investigated, were never able to locate a single check deposited in an account
or a single certification application following Lundy’s departure.
148. When Lundy left, the entire program stopped because Locals no longer
submitted tests for grading or requested certifications. Lundy may have embezzled
$60,000 or more while he operated the BOMA and EPA-608 certification program
involving the other IUOE locals scattered across the country. All of those
individuals who received certifications through the Lundy certification operation at
the JAC today carry certification cards noting they received their certifications
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from Local 501. They now work as certified engineers, at least in the states of New
Jersey, New York, and Illinois.
149. Enrique Acala was an instructor at JAC. Mr. Acala sold the entire
BOMA test question set through a website. Mr. Pette filed a grievance about this
issue. Ed Curly, the Business Manager at the time, found no merit to the grievance
in order to stifle the claim. The refusal to control this practice jeopardizes JAC. It
also jeopardizes the public in general in that it means that employees in positions
requiring these safety certifications may not be qualified for those positions.
Attached as Exhibit “25” is a true and correct copy of Mr. Alcala’s website, where
he offered test questions for sale. Mr. Alcala’s website could only be accessed via
wire communication, and the method for contacting Mr. Alcala to purchase test
questions was limited to e-mail, also requiring a wire communication. Attached as
Exhibit “26” are true and correct copies of correspondence and memos expressing
concern about Mr. Alcala’s practices (wherein he is erroneously referred to as
“Rick Ocala”), including correspondence involving Cornel Sneekes and Eric
Sorensen, who were aware of these allegations but did nothing to ascertain the
scope of the problem other than recommend temporary suspension of testing. As
members of the JAC Board, Cornel Sneekes and Eric Sorensen had a fiduciary
obligation to determine the extent of past testing fraud and correct it.
150. From a financial standpoint, each certified engineer receives $5.00
additional per hour for each hour worked dating to the date of their certification. If
the certification is fraudulent, then each week the fraud is renewed by the $200
additional wages the falsely certified worker receives. In essence, there may be
thousands of IUOE members with fraudulently obtained certifications working in
positions in at least the states of New Jersey, New York and Illinois.
151. The potential damages to the Local 501 JAC program by virtue of
Lundy's actions far exceed the $5.00 per hour additional compensation received by
the certified stationary engineers. IUOE Local 501 Apprenticeship and Training
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Programs could lose their certification from the DOL, State & Federal, for
fraudulent practices. All apprenticeship and training programs that qualify for
certification from the DOL are then tax exempt and the contributing employers get
the benefit of the tax exemption. This is a very important benefit to all contributing
employers.
152. The 501 apprenticeship program might have to be dismantled and
obtaining recertification from the DOL State and Federal would take years, if it
were ever possible. The membership of IUOE Local 501 will no longer be
recognized by owners and employers as a source of well-trained apprentices and
journeymen. The legitimate employers and owners will seek help outside of the
Union. Any certified journeyman who passed the BOMA Test will be suspect as to
how he/she got qualified and the employers could legitimately demand that the
$5.00 per hour increase be returned, retroactively. The misconduct in the testing
program harms the reputations of all IUOE members and will expose them to
financial risk arising from doubts related to the integrity of the BOMA Test.
3. Lundy Absconded with Re-Election Campaign Funds
153. In addition to embezzling from the JAC, Lundy left 501 with more
than $10,000 in campaign re-election funds. Those funds were collected from
Local 501 members who had voluntarily donated money to the fund for use by the
current elected officers when running for re-election. Retired Business Manager
Bob Fox called upon Lundy to correct his misconduct and remember the Local that
provided for him for so many years. His entreaties fell on deaf ears. A true and
correct copy of Mr. Fox’s September 19, 2008 correspondence is attached as
Exhibit “29.”
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4. Plaintiffs Discovered Evidence That ABM and Able
Conspired with the IUOE to Divert or Withhold Millions of
Dollars from Numerous Member Benefits Funds
154. Able, a signatory to contracts with IUOE local unions, controls
roughly 25% of all stationary engineering positions in the state of California.
155. ABM, a signatory to contracts with IUOE local unions, control roughly
70% of all stationary engineering positions in the state of California.
156. When Mr. Pette became the Financial Secretary of Local 501 in June
2007, he was asked by Mr. McLaughlin to investigate Lundy’s possible
embezzlement of funds from the Apprenticeship Fund. In addition to discovering
that Lundy had, in fact, embezzled tens of thousands of dollars by submitting
personal expenses, such as lunches with his mistress, for reimbursement, Mr. Pette
also observed that contributions to the Apprenticeship Fund seemed insufficient
and requested an audit. After an audit, it was determined that, in 2009, ABM had
shorted the Apprenticeship Fund approximately $180,000 and Able had shorted the
Apprenticeship Fund approximately $280,000. The shortfall should have been easy
to detect and correct, were it not for the invidious usurpation of control of Local
501 by Defendants.
157. Under the BOMA contracts that were in effect for the 5-year period
spanning 2007-2011, the Apprenticeship Fund received $179 per member per year
from a signatory employer employing a member. Because membership numbers
are relatively stable, the contributions to the Apprenticeship Fund should also be
stable. However, an examination of IRS form 990 shows that this was not the case.
Year Employer Contributions
2004 $484,739.00
2005 $438,760.00
2006 $613,517.00
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2007 $719,827.00
2008 $590,124.00
2009 $1,079,473.00
2010 $1,273,390.00
The 2009 and 2010 figures represent the payments after Able and ABM were
forced to address the shortfalls in their contributions.
158. Paul Bensi of Able, and Jim Scranton and Cornell Sneekes of ABM sat
as Employers’ Trustees of the Apprenticeship Fund, including in 2009. In that
capacity, they helped conceal for years the underpayments by Able and ABM to the
Apprenticeship Fund. They also used their influence to prevent audits of years
prior to 2009.
159. Able and ABM were also shorting their contributions to the Health &
Welfare Fund at Local 501, established to purchase benefits, like healthcare plans,
for members. The shorting scheme was fairly simple. Members were required to
work a specific number of hours to be eligible for benefits through the Health &
Welfare Fund. Once an employer reported that an employee worked the necessary
number of hours, the employer was obligated to contribute money for each hour
worked by the employee. After a certain number of hours were worked the
employee-member would have fully funded that year’s benefits.
160. For fulltime employees, Able and ABM reported the number of hours
needed to entitle the employee-member to full benefits, but then Able and ABM
stopped reporting all hours worked to eliminate their obligation to keep
contributing to the Health & Welfare Fund beyond the minimum necessary to fund
benefits. While this would facially seem to cause no harm to Local 501 members,
it was, in fact, highly prejudicial to the interests of members. When a member
received additional Health & Welfare Fund contributions beyond the minimum
necessary, those additional contributions would have, had they been paid, provided
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for payment of benefits in future years, including upon retirement. By
underfunding the Health & Welfare Fund, Able and ABM deprived Local 501
members of this supplemental benefit cushion, causing great financial harm to
them. It is believed that Able and ABM may have jointly underfunded the Health
& Welfare Fund by millions of dollars over the Class period.
161. Paul Bensi, Jim Scranton and Cornel Sneekes used their influence on
the Health & Welfare Fund to ensure that the results of a promised audit of
contributions of Able and ABM to the Health & Welfare Fund were never
completed or presented.
162. The underreporting of hours resulted in a staggering cascade of other
harm to Local 501 and its members. First, the underreporting of hours deprived
Local 501 of much needed administrative operating contributions that would have
been much higher had the correct number of hours been reported. This harmed
Local 501’s ability to operate. Second, Able and ABM were underfunding their
contributions to the General Pension Fund, which contributions also depend on the
number of hours worked.
163. Despite this patent disregard of contractual obligations intended to
benefit Local 501 members (and other locals’ members around the country), Able
and ABM were richly rewarded by other Defendants, including, but certainly not
limited to, Vince Giblin. In return, Able and ABM richly rewarded the other
Defendants. For one example, Dennis Giblin, son of Vince Giblin, was employed
by International Union of Operating Engineers, Local 68. Dennis Giblin served as
the Administrator of the Local 68 Education fund, a fund governed by ERISA. As
Administrator to the Education Fund, Dennis Giblin was a fiduciary and required
under ERISA to act solely in the interests of the participants of the Education Fund;
to avoid acting in his own personal self-interest; and to avoid acting on behalf of
any party whose interests were adverse to the interests of the fund. In or about
November 2004, Dennis Giblin, on behalf of the Education Fund, hired an audio-
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visual company to design and install electronic audio and visual systems at
Education Fund’s premises. For its services, Dennis Giblin caused the Education
Fund to pay the audio-visual company in excess of $315,000. Dennis Giblin also
received free and discounted audio-visual materials and components in August
2005. These items were installed in his Jersey City condominium by the audio-
visual company free of charge because of the work the company had received from
the Education Fund in the past. In total, Dennis Giblin received an improper
gratuity in excess of $10,000 in free and discounted items, and free labor. These
illegal gratuities resulted in criminal charges being brought against Dennis Giblin
in New Jersey (IUOE Local 68).
164. On one occasion, believed to be in and around May 2010, while Lundy
was working for IUOE in support of the Senate re-election campaign of Harry
Reid, he received a call from Vincent Giblin. Lundy used a speakerphone on the
call. Vincent Giblin advised Lundy that he had completed a deal with Able to
employ Dennis Giblin following Dennis’s criminal charges in Local 68. Vincent
Giblin also said that he made all audits in 501 “go away.” The audits referred not
only to the audits directed at Lundy, but the audits targeting Able and ABM as
well, and likely to uncover the extent of underpayments to JAC, the Health &
Welfare Fund, and the Central Pension Fund.
165. Under federal law, it is a crime for an employee of an ERISA-covered
fund to receive or solicit any fee, kickback, commission, gift, loan, money, or thing
of value because of any of the individual’s actions, decisions, or other duties
relating to such fund. Dennis Giblin was arrested in January 2009. In 2010,
Dennis Giblin pleaded guilty in Newark federal court to receiving kickbacks and
embezzling in connection with a business transaction during his tenure as head of
the West Caldwell, N.J.-based union's job training and education program. The
guilty plea was entered relatively quickly by Dennis Giblin to discourage deeper
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investigation into Local 68, which would have uncovered wider-ranging kickback
schemes with Able and ABM.
166. Due to his conviction, Giblin was ineligible to work for IUOE or Local
68 under the LMRDA. So Vince Giblin approached Paul Bensi at Able and sought
a kickback for Able’s continued ability to operate double-breasted and underfund a
number of Trusts created for the benefit of rank and file union members, including
members of Local 501. Defendant Bensi created a high-paying position at Able for
Dennis Giblin, who was immediately hired by Able as consideration to Vince
Giblin. Dennis Giblin was then placed in charge of negotiating government
contracts at a salary believed to be commensurate with his former salary from
IUOE Local 68.
167. And Lauren Lundy, the daughter of Dennis Lundy, was given a job by
Bensi and Able in its Chicago, Illinois division, despite the fact that Dennis Lundy
left Local 501 after looting the Apprenticeship Fund.
5. ABM and Able Conspired with IUOE to Operate “Double-
Breasted” and Deprive Local 501 of Members and Revenues
168. Union contracts with ABM and Able require, at minimum, that any
building that is unionized through Local 501 must remain unionized in subsequent
labor contracts and new buildings added must be opened to Local 501 for
organization of the labor force in those new buildings. Among other things, ABM
and Able are obligated to provide the names and contact information for all
employees in non-unionized buildings added subsequent to the entry of the most
recent labor contract. ABM and Able, with the cooperation of IUOE following the
payment of kickbacks to IUOE leadership, did not comply with their labor
contracts.
169. Instead, ABM and Able blatantly operate “double breasted.” In labor
parlance, “double breasted” refers to the side-by-side operation of unionized and
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non-unionized workforces, though it is a term that is also, and more commonly,
used to describe a business owner creating a second company to circumvent a
collective bargaining agreement. For example, in a January 28, 2011 email, Maira
Rodriquez circulated job opportunities at ABM and requested feedback on any
necessary changes. The job opportunities listed both union and non-union
stationary engineer positions:
Date: Position Available Details Job No.
12/30/2010 Union Journeyman Engineer
Multiple Locations - Los Angeles/ Orange County. M-F days. Starting ASAP. Pay Rate Union scale. Deadline until filled.
16092923RWS
1/27/2011 Building Engineers (Chief, Assistant Chief, Utility Engineer, and Building Engineer)
San Diego, Day shift, starting ASAP, $18-$35/hr, Operations and maintenance engineer must be experienced [sic] in HVAC boilers, chillers, and energy management systems, as well as electrical and plumbing. Deadline until filled.
1677TE
1/14/2011 Journeyman Building Engineer
600 W. 7th Street. Los Angeles, Swing shift M-F, starting ASAP, Data Center, pay rate Union scale, strong electrical background, deadline until filled.
16043160RD
3/30/2010 Union Journeyman Engineer
Century Plaza Towers, Century City, Mon-Fri swing shift, Starting ASAP, Class A High Rise, Union Scale, Experience needed, Deadline until filled.
16054042RWS
And, in a December 30, 2010 email, Maira Rodriquez circulated job
opportunities at ABM and requested feedback on any necessary changes. The job
opportunities listed both union and non-union stationary engineer positions,
including the sample listed below:
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Date: Position Available Details Job No.
4/15/2010 Certified/ Non Certified OMP
Newport! Irvine, M-F days, starting ASAP, Class "A" Complex, Union BOMA Contract payscale, 5-8 years OMP experience, deadline until filled.
1652CVB
6/10/2010 Union Cert One Person Plant
West LA, M-F Days, Starting ASAP, Union Scale, 5-8 years or higher of OPP experience. Deadline until filled.
1602CVB
11/23/2010 Central Plant Operator 900 Corporate Pointe, Culver City, Days M-F, January 1st, central plant campus, $38-$40/hr. deadline until filled.
16042877RD
8/3/2010 NU Engineer - Bldg. Engineer
Beverly Hills, day shift M-F, starting date to be determined, Mid- rise, $30-$35, Strong HVAC and strong electrical, EPA cert in refrigeration, deadline until filled.
1607KS
8/3/2010 NU Engineer - Bldg. Engineer
Beverly Hills, day shift M-F, starting date to be determined, Mid- rise, $30-$35, Strong HVAC and strong electrical, EPA cert in refrigeration, deadline until filled.
1604RD
3/30/2010 Union Journeyman Engineer
Miracle Mile, Los Angeles, M-F days (8-4), Starting ASAP, Class A High Rise, Union Scale, Experience needed. Deadline until filled.
16042014RWS
3/30/2010 Union Journeyman Engineer
Century Plaza Towers, Century City, Mon-Fri swing shift, Starting ASAP, Class A High Rise, Union Scale, Experience needed, Deadline until filled
16054042RWS
3/24/2010 Non-Union Engineer (Part-Time)
Los Angeles,Part Time, 2-3 days per week, Starting ASAP, $35/hr, Strong HVAC and strong electrical, EPA Cert in refrigeration, Deadline until filled.
16093080KS
“N/U” or “NU” are non-union job opportunities.
170. ABM also failed to disclose to Local 501 its contract to provide
stationary engineers to the entire California Courts system.
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171. Plaintiffs also investigated Able’s activities and discovered evidence
of widespread “double-breasted” operations. In one such case, referred to as the
“Jamison” contract, Plaintiffs found a thorough listing of properties owned by the
most notorious double-breasted building owner in Southern California, Dr. David
Lee (through Jamison Services, Inc.). Dr. Lee contracts extensively or exclusively
with Able Engineering for staffing engineers in his buildings. By comparing the
complete listing of all Able Engineering properties under the Local 501 CBA with
that list of David Lee properties obtained from his company's website, Plaintiffs
were able to identify numerous buildings not disclosed to Local 501 for
organization. Well over 100 properties are missing from the Local 501 contract.
6. IUOE Conspired With ABM and Able to Allow Them to
Circumvent Their Contract With Local 501 and Use Retired
Employees to Avoid Benefit Fund Obligations
172. Stationary Engineers are sometimes difficult to temporarily replace
when they are unavailable for work for any reason. A policy was put in place to
allow retired employees to work up to 40 hours a month in temporary coverage
positions while still retaining their Central Pension Fund benefits. The purpose was
to allow retired employees to cover spot vacancies for permanent employee
members, when, for example, the permanent employee took a two week vacation or
needed to take sick leave. Able and ABM misused the provision, bringing in
retired employees for longer periods. Able and ABM then paid them by 1099 to
hide them from detection during simple audits. Normally, Able and ABM would
have been required to pay a portion of Health & Welfare benefits for those retired
employees and pay into the Central Pension Fund for these retired employees
working in excess of 40 hours a month in any given month. Able and ABM never
paid their share of the Health & Welfare benefits and never paid into the Central
Pension Fund for the time worked by those retired members.
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173. The use of 1099 payments hid this practice from Local 501. Mr. Pette,
Mr. Himmelberg and Mr. McLaughlin were removed by Mr. Giblin to prevent them
from detecting the full scope of this activity. This practice harmed Local 501
membership but benefitted Bensi, who received enhanced bonuses based on
lowered labor costs, and benefitted Able and ABM, which avoided payments they
should have made if they reported honestly.
174. Because they were also Health & Welfare Fund Trustees, Mr. Bensi,
for Able, and Mr. Scranton, for ABM, knew that Mr. Pette and Mr. Himmelberg
were initiating audits into Able’s and ABM’s practices causing underpayments to
JAC, Health & Welfare and the Central Pension Fund. Vincent Giblin, whose son
was employed by Able following his criminal ventures at Local 68, could not allow
anything to upset his relationship with Able. Vincent Giblin immediately began his
campaign to remove Mr. Pette, Mr. Himmelberg and Mr. McLaughlin from any
position of authority in Local 501.
175. The actions of Able and ABM were harmful to Local 501. An active
member, next on deck, who should have been employed, was denied work due to
the use of retired workers in the 1099 scheme. This harmed Local 501 and the
active member denied employment, as well as the various funds that did not receive
contributions for hours worked.
7. Decertification Election Tampering by Giblin and IUOE at
UCLA Cost Local 501 Roughly 600 Members and Was Used
as One Pretext for Terminating McLaughlin
176. Roughly 600 active members of Local 501 were employed at UCLA.
A decertification vote was scheduled to be held at UCLA. IUOE, through Giblin,
ordered Lundy to stuff ballots at a decertification vote at UCLA. As a result of
overzealous ballot stuffing, duplicate ballots were discovered by state officials
overseeing the election. Local 501 was given the option of facing charges or
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walking away and allowing decertification. Giblin ordered Local 501 to walk away
to avoid any investigation into his orders. Giblin told Chris Brown, "Dennis and I
stuffed the ballots and you can't even hold onto something when I hand it to you."
As a result of the decertification, Local 501 lost roughly 600 active members. The
decertification was later used as one pretext for demanding the resignation of
McLaughlin at Local 501 and terminating him from positions at IUOE.
177. In a lawsuit later brought against Levy, Attorney Griffin provided a
false declaration. In it, Attorney Griffin claimed that Levy would not have
succeeded if IUOE’s “monitorship” declaration was challenged. A true and correct
copy of Attorney Griffin’s Declaration is attached hereto as Exhibit 7. Attorney
Griffin swore under oath that the decertification was a reason for removing
McLaughlin, but that was false. Attorney Griffin knew that Giblin had directed the
ballot stuffing effort in the UCLA decertification vote. And Attorney Griffin also
knew that the other pretextual reasons – the false Foley employment allegations –
offered for McLaughlin’s removal were unlikely to support the imposition of a
Trusteeship in Local 501.
8. IUOE and Curly, Acting Under IUOE Orders, Embezzled
Monies From Local 501 Members Related to the Members’
Efforts to Protect Mr. Pette and Mr. Himmelberg
178. When false charges for allegedly improper expense account use were
levied at Mr. Pette and Mr. Himmelberg to scuttle their efforts to lead an insurgent
slate of candidates into office at Local 501, members supporting their efforts to root
out corruption collected monies and paid IUOE all of the money that Mr. Pette and
Mr. Himmelberg were falsely accused of taking. Giblin took the members’ money
and then declared that it would not resolve the issue because Mr. Pette and Mr.
Himmelberg didn’t pay it themselves.
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179. After Mr. Pette and Mr. Himmelberg were cleared of the bogus
charges, the members expected that their payments would be returned to them.
Jack Pena, Erik Smith, Christopher Menor and Jay Brophy, among others,
contributed to the fund created to reimburse all monies used as the pretext for
creating fabricated charges against Mr. Pette and Mr. Himmelberg.
180. On November 20, 2012, Ed Curly, the Business Manager installed at
Local 501 after Chris Brown was removed by IUOE, refused to reimburse members
for the monies they contributed in their effort to respond to the fabricated charges
against Mr. Pette and Mr. Himmelberg. At that time, Mr. Curly admitted that he
was operating under the direction of IUOE and would not reimburse their
payments. However, Mr. Pette’s payment that he made for the bogus fines were
refunded to him:
181. In addition to withholding thousands of dollars paid by Local 501
members on behalf of Mr. Pette and Mr. Himmelberg, IUOE has yet to issue the
promised letter to the members of Local 501, indicating that all charges against Mr.
Pette, Mr. Himmelberg and Mr. McLaughlin were either withdrawn or invalid.
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9. Able and ABM Management Employees Are Improperly
Participating in the Central Pension Fund
182. At least 27 management employees of Able and ABM have been
identified as improperly participating in the Central Pension Fund (erroneously
labelled the “general” pension fund in the First Amended Complaint). Bob Fox
called the Central Pension Fund and spoke with Mike Fanning in an attempt to
identify the individuals improperly participating in that Fund. Mike Fanning said
that the information would not be provided to him, could only be provided at the
request of the local business manager, who has thus far, refused to make such a
request.
183. Eric Sorenson, a Vice President with ABM, is a member of the Central
Pension Fund, though he should not be a participant in that Fund. Mr. Sorenson
attended the December 2012 semi-annual meeting of Local 501. At that meeting,
he took pictures of all individuals wearing the “Man in Black” shirt that is a sign of
support for the resistance to IUOE’s ongoing, unlawful dominion over Local 501.
184. Other participants include the following:
PAGAC, BRIAN V 1,039.98 42,897.96 $6,239.88 $135,000.44 04/84 YES 06/12 22.00 $3,520.89
MCTAGUE, LOU 1,039.98 63,816.67 $6,239.88 $199,110.83 07/82 YES 06/12 26.00 $5,676.63
MIRZAYAN, GEORGE 1,039.98 20,320.30 $6,239.88 $63,272.38 10/89 YES 06/12 10.50 $1,445.37
PAXTON, WILLIAM 1,039.98 41,223.71 $6,239.88 $66,476.36 11/78 YES 06/12 20.00 $2,014.69
SITZMAN, KURT 1,039.98 62,723.39 $6,239.88 $196,262.29 03/83 YES 06/12 30.00 $5,636.54
SESTO, ROMEO M 1,039.98 46,176.83 $6,239.88 $157,320.25 01/88 YES 06/12 23.00 $4,355.20
TURKICH, JOHN 1,039.98 20,089.29 $6,239.88 $101,044.93 02/03 YES 06/12 9.70 $2,240.22
WONG, STEVEN 1,039.98 58,118.59 $6,239.88 $196,316.66 01/86 YES 06/12 27.00 $5,591.95
MANNING, BRUCE C 1,140.00 58,600.60 $6,840.00 $170,680.05 10/78 YES 06/12 27.10 $4,555.00
SNEEKES, CORNEL 0.00 21,447.17 $0.00 $55,102.74 08/82 YES 12/06 10.90 $1,814.08
SORENSEN, E 0.00 32,479.89 $0.00 $99,038.77 05/88 YES 02/10 16.00 $3,006.87
LUTES, ROBERT MICHAEL 0.00 36,719.42 $0.00 $117,964.82 01/91 YES 10/07 17.00 $3,933.11
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185. Able’s ability to access the Central Pension fund and include Able’s
non-union personnel in the IUOE Central Pension Fund could not be approved on a
local union level and had to be approved by the International General President, at
that time, Vincent Giblin. Able grew rapidly as a result of assistance from IUOE
that included permission to offer participation in the IUOE central pension fund
(restricted to IUOE members) to managerial employees of building owner/operators
as an enticement to leave ABM and hire Able to provide stationary engineering
services. IUOE encouraged Able’s growth through these unlawful means so that
ABM’s position in the industry would weaken and IUOE could play ABM and
Able off against each other.
186. Jim Scranton is currently receiving distributions from the Central
Pension Fund.
D. IUOE’s Leadership Used Threats of Physical and Economic
Violence, and Suborned Perjury, to Suppress Investigations and
Usurp Control Over Local 501
187. On or about March 10, 2010, Robert Fox received a call from Vince
Giblin, then General President of IUOE. Mr. Fox had been a friend to the family of
General President Giblin for more than 30 years dating back to Vincent Giblin’s
father. The tone of this conversation was threatening to Mr. Fox. Mr. Giblin did not
communicate in the respectful manner typical of their prior conversations. When
Mr. Fox advised Mr. Giblin that he did not want Giblin to take action against Jim
McLaughlin, Dan Himmelberg and Finn Pette, the conversation became even more
confrontational and Mr. Giblin stated that he would kill or have these three union
officers killed.
188. Mr. Fox believed the threats from Mr. Giblin to be genuine. Mr. Fox
believed that Vince Giblin had the ability to order the deaths of Mr. Mclaughlin,
Mr. Himmelberg, and Mr. Pette because of Mr. Giblin’s connection to organized
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crime in New Jersey, Vince Giblin’s home territory. Mr. Fox, a founding member
of Local 501 and its longest serving Business Manager, was responsible for the Las
Vegas territory and negotiated the first collective bargaining agreement with the
Flamingo Hotel in Las Vegas, controlled at that time by “Bugsy” Siegel, an
individual known to be a ruthless and feared gangster in his day. Mr. Fox was
aware of the real dangers posed by organized crime families, including those close
to Mr. Giblin.
189. In direct response to the death threat made by Giblin against three of
the Union Officers of Local 501, Mr. Fox contacted these three individuals and
strongly suggested they purchase guns to protect themselves. Mr. Fox refused to
discuss anything over the phone because he knew Giblin had a penchant for
wiretapping and eavesdropping on calls and Mr. Fox feared his own phone was
tapped by Giblin. Moreover, he refused to meet the subjects of the death threats at
his home for his safety, his wife's and the safety of the Union Officers.
190. In fact, for the past several years, IUOE has exercised total control
over Local 501, all for the purpose of preventing any discovery or disruption of the
many kickback schemes in place that divert tens of millions of dollars from Local
501 and its members to leaders of IUOE, including past IUOE General President
Vince Giblin, the current General President, Callahan, high ranking IUOE
employees of headquarters and the past and current Vice Presidents that do the
bidding of the IUOE General President. For example, after Giblin used threats of
violence and termination to obtain Mclaughlin’s resignation as Business Manager
and the appointment of Chris Brown as the replacement Business Manager, Mr.
Brown has stated publicly in many District 1 union meetings that he had no choice
in Local 501 matters and that Mr. Giblin was directing his actions. Similarly, Mr.
Curly and other current officers have frequently stated that IUOE was deciding how
various matters would be handled, including the decision to file bankruptcy and the
terms of the settlement with Blair Brim. In a complete breach of his fiduciary
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duties, Mr. Curly frequently acted contrary to the best interests of Local 501 and its
members and for the benefit of IUOE, his true principal, which directed his actions.
191. On November 19, 2009, Giblin wrote to Bob Fox, telling him that
Local 501 would soon be placed under “monitorship.” As part of his warning to
Mr. Fox, Giblin said:
As part of the monitorship, I am instructing the local to conduct
its Executive Board meetings in executive session. The board will call
into its meetings any member, agent, employee, consultant or
professional that adds to its deliberations. Meeting in executive session
will allow the board to maximize its attention and energy on the road
ahead and not the road already traveled. All deliberations of the
executive board will be reported at the next regular membership
meetings.
This executive session requirement by definition excludes from
participation all non-board members, including retired officers, agents
and others who have previously served the local union. Thank you for
your attention in this matter.
This new requirement, imposed by IUOE and Giblin, eliminated the risk that any
members not under the control of IUOE could easily learn about and object to the
decisions imposed on Local 501’s members by Giblin and IUOE prior to their
implementation. A copy of Giblin’s letter is attached as Exhibit 8.
192. Immediately before seizing control of Local 501, Giblin reached into
501 through Ron Frease, then the duly-elected President of Local 501. Giblin
ordered Mr. Frease to cancel a scheduled executive board meeting, before Local
501 was placed under “monitorship.” The purpose of the order was to prevent
Local 501 from leading itself. No protections exist for the “monitorship” condition
under the IUOE constitution which, in fact, does not even expressly authorize
“monitorship” of a Local by the International.
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193. When officer elections were scheduled to occur at Local 501 in 2010,
some Local 501 members attempted to assemble a slate of candidates to restore
control of Local 501 to Local 501 members. Once IUOE learned of this it became
clear that IUOE’s General President and Vice-Presidents management, along with
and through the direction of Mr. Brown, were going to prevent the resistance slate
from running in the election. In particular, the Election Committee was rigged.
Executive board members were supposed to offer up names of members and a vote
should have taken place until all the positions were filled. Mr. Brown instead had a
pre-selected list of members for the Election Committee, and he forced it through
the vote of the Executive Board. Mr. Murphy was “elected” to head up the Election
Committee and it became rather apparent that he would do whatever he could to
prevent the election of any resistance slate members.
194. In order to bolster its sham case and seize control of Local 501 from its
duly elected leadership, IUOE hired an “Ethics Officer,” James Zazzali, to
investigate “anonymous” reports of violations. This “Ethics Officer” position does
not exist in the IUOE Constitution. Nevertheless, Zazzali was paid $30,000 per
month to investigate anonymous ethics complaints, as set forth in LM-2 available
from the Department of Labor. Not coincidentally, as soon as Mr. McLaughlin was
forced to resign from Local 501 following extortionate threats, Giblin announced
that the IUOE would no longer investigate “anonymous” ethics complaint letters.
Giblin’s announcement that “anonymous” ethics complaint letters would no longer
be investigated coincided with the submission of “anonymous” ethics complaint
letters to the IUOE that discussed Lundy’s unethical behavior while still employed
by Local 501. The IUOE shut down the ethics investigations to protect Lundy, but
only after they had seized control of Local 501 and forced out members interested
in auditing activities at Local 501.
195. At this juncture, on or about December 2009, the IUOE brought
trumped up charges against Mr. Pette and Mr. Himmelberg for the purpose of
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preventing them from running for office. In furtherance of the scheme, the Election
Committee disallowed both Mssrs. Pette and Himmelberg from running for office
based on the false charges discussed above, though they were later found to be
innocent of the trumped up charges. Furthermore, the resistance slate was denied a
slate position on the ballot. The remainders of the resistance members running for
office were then listed on the ballot as individuals. The Election Committee then
imposed arbitrary rules regarding the collection of signatures in violation of the
LMRDA, with the Election Committee changing the arbitrary rules several times in
an effort to prevent resistance members from qualifying for the ballot. Although
Local 501 members requested that the Election Committee members appear at
monthly district meetings, they refused to appear and be held answerable for
blatantly changing the rules with no explanations offered.
196. It was evident to union members who attended the District meetings
that the entire operation of Local 501 was being run by IUOE and that Mr. Brown
was simply a mouthpiece for IUOE. Mr. Brown frequently admitted he effectively
had no autonomy in that when he would be questioned by members he replied that
he would "have to check with the International". The cellular telephone billings for
the phone assigned to Mr. Brown conclusively establish the domination and control
the international had over all union activity at IUOE Local 501. As the cellphone
bills establish, often multiple calls on a daily basis were made to the International
IUOE to Defendants Giblin, Griffin, Van Dyke and to other employees holding
positions at the IUOE International Headquarters. Following the retirement of Mr.
Giblin and the appointment of Defendant Callahan, cellular phone calls were
logged with calls to Defendant Callahan.
197. While Plaintiffs Pette and Himmelberg were running for elected office,
an anonymous email chain was circulating amongst union members from “The Man
In Black,” informing them about IUOE’s efforts to control Local 501 and prevent
Pette and Himmelberg from running for office. It was discovered around that time
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that ABM representatives were advising Local 501 members working there that Mr.
Pette had no chance of winning the election. Moreover, those Local 501 members
with email addresses from Able were suddenly unable to receive the “Man In
Black” email newsletters through their Able email addresses. In other words, ABM
and Able were working in concert with the IUOE to impede fair elections in Local
501, Able by blocking insurgency email communications and ABM by spreading
anti-insurgency predictions.
198. After Dan Himmelberg was terminated without cause, Mr.
Himmelberg sued for wrongful termination. On February 24, 2012, during that
litigation, Chris Brown, the Local 501 Business Manager that delivered the
termination message to Mr. Himmelberg, was deposed by attorney Lee Feldman.
During the deposition, Mr. Feldman asked Mr. Brown why Daniel Himmelberg
was terminated as the Assistant Business Manager of Local 501 in November 2010.
Mr. Brown asked to take a break and one was provided. Mr. Brown left the room
where the deposition was being conducted.
199. Mr. Brown returned a few moments later and asked if he could speak
off the record before going back on the record. Mr. Feldman agreed. Mr. Brown
told Mr. Feldman that James Callahan, the General President of IUOE, told him to
“get amnesia” about the true facts related to Mr. Himmelberg’s termination and to
say he made the decision himself. Mr. Brown also told Mr. Feldman that General
President Callahan instructed Mr. Brown to testify that Mr. Brown alone made the
decision to terminate Mr. Himmelberg’s employment as Assistant Business
Manager of Local 501. The Declaration of Attorney Lee Feldman, confirming the
admission of Chris Brown, is attached hereto as Exhibit 9.
200. During a deposition in another lawsuit against the IUOE and Mr.
Brown brought by Blair Brim, Mr. Brown testified to the IUOE’s instructions
regarding the removal of McLaughlin and Pette:
Q. Finn Pette, did you make the decision to fire him?
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A. No, I didn't.
Q. Okay. The international [IUOE] directed you to do it?
A. Yes, that was part of the deal for McLaughlin to have to leave, that Pette had to go, as well.
Q. But it wasn't your decision?
A. No.
(March 7, 2011 Deposition of Brown, at 149:14-23.)
201. After IUOE had successfully seized control of Local 501 and
prevented the “resistance” candidates from mounting a successful challenge, Vince
Giblin instructed Defendant Bensi not to employ Mr. Pette. Defendant Bensi
instructed all of the Chief Engineers employed by Able that they were not to
employ Finn Pette. Finn Pette was blackballed coast-to-coast.
202. Bob Fox was also threatened by Callahan. In January 2012, Callahan
flew across the United States and went out of his way to mention individuals
known by Bob Fox to be connected with East Coast mafia. At the January 17, 2012
District 1 meeting for Local 501, James Callahan rose to speak:
Thank you Chris.
Aah, I would just like to say hello. I’ll be brief here. I want to
introduce myself. I’m a 33 year member of the operating engineers
hoisting and portable out of New York City. I was asked to take this
job on as General President and aah I’ll try to do my best. Umm it’s an
honor to come out here, umm under the turmoil that aah you guys have
gone through and there is one announcement that we that we discussed
today and what I’m going to do aah aah and one of my first duties is to
assign the General Secretary Treasurer aah Brian Hickey to assemble a
small committee to release you from monitorship. I expect that report
to be done and in front of the General Executive Board by April and
umm I don’t fore see any issues.
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Aaah aah you’ve you’ve gone through turmoil, aah for anyone
that doesn’t know my histories I took over my aah in some aah some
uncertain times and aah the best thing I aah advice I could give you is
solidarity because there are a lot of wolves at the door that are looking
at to take us apart. And no matter what are differences are they should
stay in this room. Because they are just waiting to take us apart and
they love to see us all at each other’s throats and whatever our
differences are should be settled here. They should be settled
democratically, so everyone gets their fair share.
So with that like I said you you aah my first duties as General
President will be to release you from monitorship. And I wish you all
luck if there is anything I can ever do to you, Mr. Fox it is an honor to
see you again, thank you aah, I don’t know if you remember me from a
long time ago with Tom Maguire aah junior and Senior.
Bob Fox responded, “Sure do”. Callahan continued:
And aah a friend of yours from New York, a fellow by the name
of Dan Murphy, knew I was coming out here and he said if I saw you
to send you his regards aah you know good health.
Bob Fox responded, “Thank you”.
203. For more than 25 years Tommy Maguire served as the Business
Manager of IUOE Local 15, New York City. However, in 2005, shortly before his
69th birthday, Maguire, alongside three other union officers, admitted to taking
bribes from contractors in a scheme that had helped to vastly inflate the cost of
construction. Going back to 1989, he acknowledged in court, he had accepted
payoffs, sometimes in the form of Christmas gifts, from at least two contractors.
Until his resignation, he was the leader of the 6,000 engineers who run New York
city's cranes, backhoes, bulldozers, and hoists. He headed Local 15’s powerful
statewide organization, and ran its wealthy political action fund, which gave
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hundreds of thousands of dollars annually to favored politicians. Most of the bribe-
passing was done through two former business agents, including Maguire's son-in-
law, Thomas McNamara, and Daniel Murphy, both of whom pled guilty alongside
Maguire. Attached hereto as Exhibit 10 is the indictment filed against McGuire,
McNamara, Murphy and Anthony Quaranta.
204. Callahan, the current Business Manager of Local 15 and General
President of IUOE (a violation of the IOUE Constitution in that the President
position is a full time position), knew that Bob Fox would be aware of the names of
these convicted racketeers who had just finished serving their federal prison terms.
Bob Fox knew that Callahan’s references to Tom Maguire and Dan Murphy were a
warning and thinly veiled threat directed at him. Moreover, the threat was
delivered in a way that would not have been obvious to many of the Local 501
members without Bob Fox’s history with the IUOE, and unfamiliar with East Cost
organized crime-related IUOE activity.
205. At that same January 17, 2012 meeting, Callahan pulled Mr. Pette to
the back of the room to have a conversation. He asked, "What do you want?" Mr.
Pette had made a motion that the Local Union begin accepting Dan Himmelberg’s
dues because they refused to accept them while he hadn't paid his sham “fine.” Mr.
Pette began to explain the situation regarding Mr. Himmelberg’s dues assuming
that was what Callahan was referring to with his question. He immediately stopped
Mr. Pette, and said, "I don't give a shit about Dan’s dues! What do YOU want?"
Startled, Mr. Pette asked, "What do you mean?" Callanhan said, "What do you
think I mean? What do you want to make all of this go away?" Mr. Pette asked,
"Are you talking about the lawsuits?" Mr. Callahan asked, "What do you think I'm
talking about?" Mr. Pette asked him to give him a little time, but Callahan said he
wanted to handle it immediately. Mr. Pette told Callahan that he wasn't prepared for
Callahan’s question and said, "It's a little hard to swallow. I've been at war with the
International for three years and you walk up and say what do I want? I mean, its
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hard when the most powerful guy in the International talks to you when nobody
would return a phone call for three years you know?" He responded, "Let's get
something straight, YOU are the most powerful man in the IUOE, JOHNNY! And I
don't need anything we talk about showing up on the fucking internet tomorrow,
got it?" Mr. Pette knew that Callahan was referring to the "Man In Black" e-mails
that had become so prevalent in the past several years as a source of information to
members of the Operating Engineers union.
206. Mr. Pette asked to confer with Dan Himmelberg and agreed to meet
the following morning at the Bonaventure Hotel in downtown Los Angeles with a
list of what they wanted. The following morning, they presented a settlement
demand on behalf of themselves and Mr. McLaughlin that included a demand for
an admission by IUOE that they were falsely accused. Callahan said they would
never receive a penny from IUOE because they weren't responsible. Mr. Pette and
Mr. Himmelberg discussed the actions of Vincent Giblin, Dennis Lundy, Jim Van
Dyke and Callahan said, "Look, I can't undo what happened before me. I can't spit
on Vincent, he gave me the job." They repeated their settlement proposal and told
Callahan that the proposal was what they wanted. Callahan promised to take their
requests to the General Executive Board.
E. Caremark Defrauded IUOE Members Nationwide and IUOE
Conspired with Caremark to Make This Possible
1. Defendants Diverted Caremark Reimbursements from Local
501’s Health & Welfare Fund to IUOE and Imposed
Caremark on IUOE Despite the Excessive Costs
207. Vince Giblin was Chairman of the Board for Horizon Blue Cross at the
same time he became General President of the IUOE. Because of his dual roles,
Giblin was able to require use of Blue Cross as the healthcare benefits provider to
local unions, including Local 501. Blue Cross utilizes Caremark as its Prescription
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Benefits Manage (“PBM”). Because of the number of members utilizing the Blue
Cross/Caremark benefit, members are entitled to receive a rebate from Caremark,
reflecting the members’ substantial buying power. The Caremark rebates should
have been paid out to each local union. Instead, they were paid to IUOE. IUOE, in
turn, failed to account to Local 501 (and other local unions) for the rebates they
should have received.
208. When Caremark does provide a rebate, and a Local requests
justification for the amount of rebates and charges, Caremark will not provide the
documentation to support the charges and rebates.
2. IUOE Conspired with Caremark to Force Caremark on
Members, Going so Far as to Rig Bids When Caremark Was
Not the Winning Bidder
209. In 2006, International Union of Operating Engineers (“IUOE”)
reported that it had engaged Trivantage Solutions to solicit bids for PBM services
for all of IUOE. PBM refers alternatively to “prescription benefits manager” or
“pharmacy benefits manager,” both describing the same benefit.
210. In late 2007, Giblin, then General President of the IUOE, and also
Chairman of the Board of Directors for Horizon Blue Cross/Blue Shield of New
Jersey, sought to finalize an agreement between the IUOE, all of the IUOE locals,
and Caremark as the PBM. As Chairman of the Board of Directors for Horizon
Blue Cross Blue Shield of New Jersey, Giblin declared substantial compensation in
connection with this position.
211. In April of 2008, the 37th International General Convention for IUOE
was held in Las Vegas. During the course of this Convention, General President
Vincent Giblin met with the General Executive Board (GEB) and key business
managers for the larger IUOE Locals to gain support for the new PBM, Caremark.
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212. The inclusion of the Locals that had the largest membership numbers
was critical to the General President’s plans with Caremark. These included, at a
minimum, locals 3, 12, 18, 68, 94,150, and local 501. The total membership in the
IUOE is roughly 400,000, according to IUOE’s own website. Local 3 claims to
have 42,000 members. Local 12 had roughly 21,000 members. Local 18 claims to
have 15,000 members. Local 68 claims to have 5,863 (all stationary) members.
Local 94 claims to have 5,835 members (all stationary). Local 150 claims to have
22,425 members. Local 501 has roughly 10,000 members. Although some other
locals had larger memberships than 94 and 68, both of these locals are all stationary
engineers. Local 399 with its 9,227 members, local 324 with its 15,530 members
and Local 39 with its 16,762 members (all with loyal GEB members at the helm,
were equally important to the Caremark contracts). Totaling the membership from
the IUOE locals that Giblin knew he could count on to support his Caremark deal,
he had at least a total of 62,354 members (Locals 18, 39, 68, 94, 399) providing
support for his Caremark plan. However, this was less than 20% of the total IUOE
membership. In order for Giblin’s plan to succeed, he needed locals 3, 12, 150 and
501 to sign on as well to his plan. In total, these locals held just shy of 100,000
members.
213. Several of the larger locals investigated other PBM Servicers prior to
agreeing under duress to accept Caremark as its PBM service provider.
214. Trivantage received five cents from every prescription filled under the
Caremark agreement. Truven Health Analytics, Inc. acquired Trivantage as part of
the acquisition of the healthcare consulting business sold by Thomson Reuters. On
information and belief, Truven is responsible for the obligations of Trivantage.
215. The contract with Caremark is held by IUOE, not Local 501. Terms
were negotiated by Trivantage, an entity retained by IUOE, not the Health &
Welfare Trust Fund at Local 501. Fees were charged to Local 501’s Health &
Welfare Trust Fund to pay Trivantage, even though Trivantage is not under
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contract with Local 501. Truven Health Analytics, Inc., is the successor-in-interest
to Trivantage, having purchased it from Thomson Reuters in 2012.
216. Efforts to obtain less expensive PMB services were and are futile so
long as IUOE imposes its dominion and control over Local 501’s affairs. In
October 2009, John St. John, an attorney at St. John, Wallace, Brennan & Folan
LLP, warned the Trustees of the Health & Welfare Trust Fund that efforts to
replace Caremark as the PBM had political overtones. For example, in an October
20, 2009 e-mail, Mr. St. John wrote:
I think some complaint should be made to the IUOE about
Trivantage’s non response. However, this might have political
overtones, so I'll leave it up to you to decide whether such a complaint
should be made, and if so whether it should come from you (or
someone else at Local 501) or from me. Let me know.
As explained above, Trivantage was employed by IUOE to negotiate the terms of
PBM services with Caremark and disregarded the representatives of the Local 501
Health & Welfare Trust Fund.
217. In 2009, Caremark reached a settlement in New England Carpenters as
a result of allegations of overcharging third party payors, such as Local 501’s
Health & Welfare Fund. In response to being forced by this settlement to
reimburse third party payors for overcharges, Caremark asserted a right to
unilaterally increase rates charged to Local 501’s Health & Welfare Fund for PBM
services. On this behavior, counsel to Local 501’s Health & Welfare Fund said:
I have said before that, as fiduciaries, you should not consent to
the modification unless the Fund receives something in exchange. If in
fact (i) Caremark would not offer the new contract (or any new
contract) to the Fund unless you consented to the modification, and (ii)
the Fund could not obtain a contract from another PBM that was at
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least as good as Caremark's proposal, then it would be legally
appropriate to give your consent to the modification.
Of course, "consent" appears to be moot here, since Caremark
has already unilaterally implemented the pricing change. I doubt that
my recent letter to Caremark's counsel will prompt Caremark to unring
the bell and reinstate the pre-September pricing method. This means
that recovery of the excess charges under the modification would
require some action by you, meaning litigation. So "consent" would
mean a decision not to take any action against Caremark.
A couple of points here. First, as fiduciaries you are not
compelled to take legal action on behalf of the Fund if the anticipated
costs and risks of litigation outweigh the anticipated benefits. As I said
earlier, it looks to me that the pricing modification implemented by
Caremark will cost the Fund about $30,000 (although this is a very
rough estimate). There is no provision for attorneys' fees in the
contract, so even if you won in any suit the Fund would have to bear
its own legal fees.
So, in simpler terms, Caremark got away with one because (a) the trustees believed
that the cost of litigation was an impediment to making them do the right thing, and
(b) IUOE was making sure that no such litigation occurred to protect the sweetheart
deal arranged by Giblin.
218. The rate increase imposed on Local 501 was not isolated. In fact,
Caremark unilaterally claimed a right to increase rates on Locals around the
Country because it had been caught overcharging other third party payors.
Caremark passed on a portion of the settlement of its illegal charges to other
payors, essentially leaving IUOE Locals responsible for a portion of Caremark’s
illegal behaviors.
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219. McLaughlin, after threats from Giblin, advised other Local 501 Health
& Welfare Fund Trustees that Local 501 had to accept Caremark and Giblin had
threatened retaliation if they refused. The Trustees stopped soliciting bids from
other PMB providers, regardless of the price bids, even though they already had
lower-priced bids in hand. The Trustees of Local 501’s Health & Welfare Trust
Fund acquiesced, under duress, to this extortionate pricing by Caremark, the PBM
imposed on them by Giblin and IUOE.
220. Caremark’s rates for PBM services are significantly higher than the
rates charged by comparable competitors. For example, Local 3, another IUOE
Local in California, put out the PBM package for competitive bid. Denver
Management handled the bidding process for Local 3. Caremark’s bid was fourth
by price. Caremark’s bid was roughly $4 million higher than the winner of the
bidding process. Giblin was told that Medco had won the bid process, so Giblin
was aware that Caremark’s rates were significantly higher than other options, and
continued insistence on the use of Caremark was detrimental to members and
contrary to fiduciary obligations of Fund trustees and Union leadership to their
members.
221. The Business Manager of Local 49, Glen D. Johnson, was dissatisfied
with Caremark’s service and lack of transparency. The Trustees of their Health &
Welfare Trust Fund put out the PBM contract for competitive bid to replace
Caremark. Vince Giblin told Johnson to put Caremark back in. Johnson declined,
saying that Local 49 was ready with a new PBM provider and Mr. Johnson had no
vote on the Board of Trustees of their Health & Welfare Trust Fund. Mike
Treanor, Interim Director of Research & Education, was dispatched by IUOE and
Giblin to Minnesota to demand a second round of bids for PBM services and
attempt to stack the deck for Caremark. Even with that interference, Caremark’s
bid was not the low bid. Counsel advised the Trustees that they would be violating
fiduciary duties if they didn’t move forward with new contract. Glen Johnson, a
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Member of the IUOE General Executive Board, was told by Giblin to resign from
the Executive Board as a Trustee. Mr. Johnson was next told by John Hamilton,
Second Vice President of IUOE at the time, to resign as Vice President of the North
Central States Conference. Hamilton was the President of the North Central States
Conference at that time. The effect of these actions is to leave Johnson isolated at
Local 49.
222. Immediately prior to the award of the PBM service contract to
Caremark, officer from one substantial Local that had not yet accepted Caremark
received an angry call from General President Giblin. With all of the officers in the
room, Giblin screamed for some time at them by telephone, demanding that they
sign on to the Caremark deal he proposed. During the course of this call, Giblin
threatened to put the Local under trusteeship if the Officers of the Local failed to
deliver the Local into the Caremark deal.
223. At one IUOE Local, a meeting was held to discuss Caremark.
Representatives from the Local, from Trivantage, and IUOE were all present. The
IUOE representative demanded access to bids for PBM services obtained by the
Local. The Local acquiesced to the demand, and, not surprisingly, Caremark’s
revised bid was suddenly less than the lowest bid that the Local had obtained and
then delivered to IUOE’s representative. This illegal bid rigging allowed Giblin to
secure the critical mass of acceptance of Caremark that he needed to force
Caremark on all of IUOE. While this Local was being extorted and threatened,
another Local, helmed by a loyal GEB Vice-President, was given permission to
negotiate its own deal with Caremark. The only demand placed on this Vice-
President was that he keep it a secret that the deal his Local negotiated was better
than the deal obtained by IUOE for every other Local in IUOE. This deal was
conducted without the assistance of Trivantage.
224. In mid-2012, auditors at one Local completed a review of Caremark’s
PBM services. They discovered that, in one aspect of the service only, Caremark
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had illegally overcharged the Local’s health & welfare fund in excess of $6.5
million for the relatively short period covered by the audit review. This same
illegal practice was in place throughout the nation, and Caremark is under
investigation by states around the Country for this fraudulent practice. The affected
beneficiaries around the country may have been harmed in excess of $200 million
by this one illegal scheme operated by Caremark. Caremark has received a demand
from the Local to refund these overcharges. Caremark refused, but did not deny
that the illegal practice occurred. Caremark only challenged the amount of the
alleged damage.
225. Representatives of IUOE and Trivantage conspired within the state of
California to engage in unlawful conduct designed to ensure that Caremark was
selected as the PBM for all Locals in IUOE. This conspiracy included fraud
directed at Locals and their members, bid-rigging, extortion, and other anti-
competitive conduct that actually injured beneficiaries throughout the State of
California and the United States. After conspiring to take certain actions in
furtherance of that goal, the plan was implemented and Caremark did, in fact,
secure business from the vast majority of Locals in IUOE nationwide.
226. Because Caremark was aware that its contract was with IUOE, and
IUOE was forcing Locals to accept the Caremark arrangement, Caremark had no
incentive to deal honestly and fairly with Locals seeking to negotiate terms that
were in their best interest. Lacking a direct, arms-length relationship with Locals,
Caremark took maximum advantage of the captured Locals that were forced to deal
with it.
F. Defendants and Their Agents Destroyed or Removed Records That
Should Have Been Retained by Local 501 for 5 Years
227. While Chris Brown worked as the Business Manager of Local 501, he
was observed downloading approximately ten flash drives full of emails and other
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electronic records. In addition, the contents of an entire room filled with file boxes
belonging to Local 501 were shredded at the behest of IUOE to limit the ability of
auditors to investigate underpayments and other wrongdoing by Able and ABM.
228. Sandra Acosta, who operated the Bakersfield office for Local 501,
removed or destroyed files maintained in that office and relating to employees
working in positions in and around Bakersfield.
229. Sandra Acosta also operated her own business out of the Bakersfield
office of Local 501. Her business, “On The Greene LLC,” was formed July 8,
2003 according to records on file with the California Secretary of State. On The
Greene LLC sells custom golf markers and other promotional gift items. On The
Greene LLC sold golfing promotional items across country to various local union
chapters. In particular, On The Greene LLC sold its merchandise to IUOE Locals
138, 30, 68 and 12. Jim McLaughlin learned of the business when Bill Duffy
called 501 about an order.
230. Thus, it is also possible that documents Acosta destroyed in
Bakersfield were records related to other businesses that Acosta owned or invested
in, including On The Greene LLC and Foothill Resources, Inc.
231. Van Dyke has removed current records of Local 501 and delivered
them to IUOE. The removal of those records from California is a violation of the
LMRDA 5-year record retention requirement.
G. Professionals Under IUOE’s Control Acted at the Direction of
IUOE to Harm Local 501
232. To further its scheme to seize control of Local 501 and protect its long-
standing kickback arrangements with Able and ABM, the IUOE utilized a number
of professionals to operate as its agents supporting its unlawful agenda.
233. For example, as described above, Defendant Levy conspired with
IUOE to convince Mr. McLaughlin to resign, thereby allowing IUOE to seize
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control of Local 501 and remove other Plaintiffs from positions where they might
continue challenging Defendants’ conduct, conduct audits, and expose the many
kickback operations in place.
234. Defendant Randy Henningfield, charged with auditing Local 501
funds, including the Apprenticeship Fund, instead conspired to conceal evidence of
malfeasance by Lundy and his Henningfield’s wife, Escanuelas, to the detriment of
Local 501. For his misconduct, Randy Henningfield was rewarded with additional
assignments by Local 501 and IUOE.
H. Consigliore Griffin Created Policies to Protect the Hand-Selected
Leadership Placed in Control of Locals by IUOE
235. In 2007, Mike Quigley, a member of IUOE Local 150, which covers
much of Indiana, Illinois, and Iowa, took action to try and stop the corruption that
pervaded his local. Mr. Quigley teamed up with an insurgent candidate to unseat
Bill Dugan, Local 150’s longtime president and Business Manager. Mr. Quigley
created a rudimentary website to document the malfeasance of the local’s
leadership under Dugan.
236. But IUOE headquarters stepped in, passing a rule that forced all
candidates to password-protect their campaign websites, allowing access only to
union members and barring the general public. The rule made it difficult for
insurgent candidates to spread the word to other members, thereby protecting the
incumbent. Pushing the rule that contributed to the failure of Mr. Quigley’s
challenge was Attorney Griffin, then the IUOE’s general counsel, who was later
appointed by President Obama to the National Labor Relations Board (NLRB).
Three years later, Dugan was indicted for violations of federal labor law and
sentenced to three years of probation. Attorney Griffin routinely acted on behalf of
IUOE to prevent reforms of IUOE Locals, reforms that would have reduced
IUOE’s control over the supposedly autonomous Locals, such as Local 501.
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I. Giblin and IUOE Selected Zazzali to Fabricate the Appearance of
Ethical Conduct by IUOE, While Actually Using Zazzali as
Another Tool for the Oppression of Members Challenging IUOE’s
Widespread Corruption
237. While Ethics Officer Zazzali was ostensibly appointed to ensure
ethical behavior throughout the IUOE by investigating ethical violations and
reporting to the IUOE Board, the truth of Zazzali’s purpose was far different. The
ethics rules were not applied to the IUOE leadership or their made men. For
example, Vince Giblin received as much as $199,625 from the Blue Cross Board
while simultaneously serving as GP of IUOE. Despite this conflict of interest
demonstrated in the most severe manner when Giblin forced Locals to use over-
priced Caremark PBM services in direct violation of fiduciary duties to Health &
Welfare Fund participants and beneficiaries at Locals, including Local 501, Giblin
suffered absolutely no adverse action through Ethics Officer Zazzali for this
unethical conduct. Attached hereto as Exhibit 11 are copies of Vince Giblin’s LM-
30 filings, confirming the conflicting employment. Shockingly, Attorney Griffin
caused several of those LM-30 filings to be hand delivered to the U.S. Department
of Labor, but, in true consigliore fashion, he evidently never counseled boss Giblin
against pursuing this very real conflict that manifested itself in Giblin’s Caremark
scam. The IUOE Constitution, attached hereto as Exhibit 22, explicitly prohibits
self-dealing in connection with any member welfare plans. Constitution, Article
XVI, Section 7.
238. Callahan has also escaped the scrutiny of Ethics Officer Zazzali.
Callahan serves both as General President of IUOE, acting as the Chairman of the
Executive Board, and as Business Manager to Local 15. A Press Release by IUOE
identifies Callahan’s dual roles and is attached as Exhibit 21. This dual service is
prohibited by the IUOE Constitution, which states that the General President “shall
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devote his full time to the duties of his office.” Constitution, Article VI, Section 5.
The IUOE Constitution is attached hereto as Exhibit 22.
239. Similar to Giblin, John M. Hamilton, the Business Manager at Local
324 and former Second Vice President of IUOE also served on the Board of Blue
Cross Blue Shield of Michigan. Blue Cross Blue Shield of Michigan provides
Health Benefit Claims Administration for the Trust at Local 324. But Zazzali has
yet to report that Hamilton is operating in a position of perilous ethical impairment.
Certain of Mr. Hamilton’s LM-30 filings from 2004 to 2011 are attached as Exhibit
19.
240. In addition to the conflict posed by Mr. Hamilton’s work for the Board
of Blue Cross Blue Shield of Michigan, he engaged in very public dealings with a
convicted investment fund embezzler. As a quid pro quo for promising to invest
over $60 million of union pension funds with John Orecchio of AA Capital
Partners, Mr. Orecchio is alleged to have arranged for the purchase of Mr.
Hamilton’s home at a significantly inflated price. Mr. Hamilton exercised his Fifth
Amendment privilege when asked to testify by the SEC. Ethics Officer Zazzali
apparently found nothing irregular with this conduct either. Orrechio’s indictment
is attached as Exhibit 12. A Detroit news article provides additional background
and is attached as Exhibit 20.
241. Terrence “Terry” McGowan was accused in a NLRB complaint of a
series of threats of violence and economic retribution directed against any member
of Local 139 that filed any charges against the union with the NLRB. McGowan
settled the complaint and, at about that same time, was appointed to the General
Executive Board as a Vice President, suggesting that conduct such as McGowan’s
was rewarded by IUEO, not punished. As with misconduct by other IUOE
leadership, Ethics Officer Zazzali saw nothing here worth investigating. The
settlement agreement is attached as Exhibit 13.
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242. IUOE Board Trustee John “Jack” Ahern has also escaped scrutiny by
ethics officer Zazzali (though he would likely demur that he has no obligation to
investigate anyone where no complaint is filed and anonymous ethics complaints
are no longer accepted now that Zazzali’s business with Jim McLaughlin and Local
501 is concluded – of course, no member interested in their own safety and
livelihood would file a complaint against any IUOE Board Member if they had to
subscribe their name to it). In June 2007, Dennis Lundy stayed at the Millenium
Hilton, in Richmond Hill, New York. But Mr. Lundy didn’t pay for that room; it
was provided to him by John Ahern (though Mr. Lundy did charge his incidental
alcohol and pornography to the American Express card he routinely abused while
working for the Training Trust at Local 501). John Ahern didn’t pay for that room
either. It was “comped” to him by Millenium Hilton. Millenium Hilton is a
signatory to a collective bargaining agreement with IUOE. As an employer of
union members, Millenium Hilton is prohibited from giving, and all IUOE
members and employees are prohibited from receiving, any gifts from Millenium
Hilton. The room received by Ahern and given to Lundy constitutes an employer
kickback to IUOE members. Mr. Lundy’s American Express bill page reflecting
his incidental charges is attached as Exhibit 14. The room bill in Mr. Ahern’s name
is attached as Exhibit 15. The departure payment receipt by Mr. Lundy is attached
as Exhibit 16. Once again, Ethics Officer Zazzali is nowhere to be seen, which is
consistent with his purpose: create the illusion of a Code of Ethics and then enforce
it without due process against any members that would dare to challenge the IUOE
aristocracy.
243. Regarding Dennis Giblin, the son of Vince Giblin, Zazzali was
required to respond to a complaint contenting that Dennis Giblin, who plead guilty
to embezzlement charges filed by the government, should be expelled from IUOE.
Zazzali concluded that because Dennis Giblin, currently on withdrawal from IUOE
Local 68, he need not be expelled. This ruling by Zazzali paves the way for Dennis
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Giblin’s eventual return to IUOE after he hides for enough years at Able, collecting
the large management-level salary that he qualifies for as a convicted felon.
Zazzali’s Report on Dennis Giblin is attached hereto as Exhibit 17.
244. In Section III, entitled “Financial Practices,” the IUOE Code of Ethics
says:
C. The Union shall not permit any of its funds to be invested in a manner that results in the personal profit or advantage of any Union officer, employee or representative.
Mr. Giblin was permitted to obtain personal advantage as a result of this
relationship with Blue Cross, in violation of the IUOE Code of Ethics. Ethics
Officer Zazzali, who acts to serve the interests of the IUOE leadership that selected
him, had done nothing. By contrast, Ethics Officer Zazzali seemed very concerned
of the potential conflict of interest that could occur if a Chief Engineer at Local 501
served as a District Representative because of the tension between serving the
interests of members and the interests of the employer. A true and correct copy of
March 19, 2009 correspondence from Ethics Officer Zazzali is attached hereto as
Exhibit 18.
245. Mr. Pette wrote letters to Ethics Officer Zazzali, outlining the
embezzlement of apprenticeship funds by Dennis Lundy and stating that it was his
belief that Ethics Officer Zazzali was being used as a weapon against Jim
McLaughlin in retaliation for that investigation. Ethics Officer Zazzali never
responded to Mr. Pette’s letters about Lundy and McLaughlin.
246. Although Article 8 of the IUOE Constitution requires written
determinations by Ethics Officer Zazzali, in all cases involving Local 501, as far as
any member of Local 501 knows, Ethics Officer Zazzali failed to prepare any
written Reports for submission to the General Executive Board of IUOE.
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J. Able and ABM Are Targeting Local 501 Employees Sympathetic
to the Resistance and This Lawsuit
247. Individuals known or believed to be sympathetic to or cooperative with
the resistance in Local 501 are now being targeted in retaliation by Able and ABM.
Pat Adams, a “Super Chief” and Erik Smith were terminated from Able because it
was believed that they were sympathetic or cooperative with the resistance in 501.
Able personnel were at union meetings and observed Mr. Smith and others wearing
clothing or pins indicating their support for the “resistance” at Local 501. Able
personnel observed “resist” buttons on Mr. Smith and others at their job site.
248. Eric Sorenson, an ABM vice-president, attended the December 2012
semi-annual meeting of Local 501. At that meeting, he took pictures of all
individuals wearing the “Man in Black” shirt that is a sign of support for the
resistance to IUOE’s ongoing, unlawful dominion over Local 501.
249. Able and ABM also conspired with IUOE to influence the outcome of
the last election at Local 501. For example, in the last election, ABM blocked
electioneering emails to union members from “resistance” candidates, while
permitting through their mail servers the electioneering emails sent on behalf of
candidates approved by IUOE.
K. Fiduciaries to Local 501 Caused Harm to Local 501 in Order to
Further IUOE’s Plan to Secure Complete Control Over Local 501
250. At the behest of Callahan and IUOE, Local 501 was precluded from
fully defending itself against the wrongful termination suit filed by Blair Brim and
described above. As a result, Mr. Brim obtained a judgment of roughly $6 million
against Local 501. Mr. Callahan threatened Lee Feldman, counsel for Mr. Brim,
telling him that he would, acting through the “monitorship” the International had
imposed upon Local 501, force Local 501 into bankruptcy if Feldman didn’t accept
the offered settlement for the Blair Brim judgment. Mr. Feldman refused to
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succumb to the threats of Mr. Callahan, and Mr. Callahan caused Local 501 to file
for bankruptcy protection.
251. Similarly, the suit filed by Ms. Acosta was settled at a higher than
necessary amount because Mr. Giblin refused to testify at a deposition, knowing
that Ms. Acosta could have exposed substantial unlawful conduct by Mr. Giblin.
252. After the filing of this action, IUOE, through Callahan, advised Local
501 that by virtue of the bankruptcy that he and IUOE forced on Local 501, Local
501 could not nominate or seat delegates to the IUOE national convention being
held later this year. This prevents Local 501 from voting on changes to the IUOE
constitution and voting on officers. It was also done to prevent Local 501
representatives from co-mingling with members of other Locals that might be
motivated to challenge IOUE’s illegal conduct through their Locals. The
convention is held once every five years. This interference with the rights of Local
501’s members is profoundly injurious.
L. IUOE and IUOE’s Hand-Picked Operatives Will Not Permit Local
501 Members to Nominate and Elect Delegates of Their Choosing
to Attend the IUOE General Convention in April 2013
253. Once every five years, every member of IUOE is entitled to participate
in the IUOE General Convention through democratically nominated and elected
delegates. In the case of Local 501, the membership of Local 501 has paid many
millions of dollars in per capita contributions to IUOE (approximately $100,000 per
month) which conferred the right to participate in the General Convention on Local
501’s members.
254. On Tuesday, January 15, 2013, IUOE Local 501 held the District 1
meeting at 2405 W. 3rd Street, Los Angeles CA 90057. Over 20 members were in
attendance. At the beginning of the meeting President Ken Capehart advised the
members that there would be “No Special Order of Business.” At that time,
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Member Patrick Adams raised his hand and asked if the nominations for the
General Convention Election were supposed to take place that evening, following a
motion made at the December 2012 Semi-Annual General Membership Meeting of
Local 501. President Capehart informed the membership that the motion was ruled
“out of order” by the Executive Board, and further stated that the Executive Board
had voted to cancel the election due to budgetary concerns.
255. At that time, Plaintiff Finn Pette, also in attendance, raised his hand
and informed President Capehart that he could not cancel the election, stating that it
was a protected act under the National Labor Relations Act. President Capehart
disagreed, claiming that he could cancel the election and asserting that the decision
was authorized in the By-Laws and Constitution. Mr. Pette had with him the
Department of Labor’s “Election of Officers of Labor Organizations” booklet,
discussing 29 CFR Chapter IV, Subchapter A, Part 452. Mr. Pette proceeded to
read Section 452.22, entitled “Delegates To A Convention”:
Under certain circumstances, delegates to a convention of a national
or international labor organization, or an intermediate body, must be
elected by secret ballot among the members in good standing of the
labor organization they represent even though the delegates are not
“officers” of the organization. Such election is required by the Act.
Again, President Capehart said, “I disagree.”
256. A heated discussion then occurred. Mr. Pette again read from the
Department of Labor’s booklet, at Subpart G, entitled “Campaign Safeguards.”
Mr. Pette read aloud from Section 452.66, entitled “Statutory provisions”:
The opportunity for members to have a free, fair, and informed
expression of their choices among candidates seeking union office is a
prime objective of title IV of the Act. Voters can best be assured
opportunity for an informed choice if certain campaign rights are
guaranteed to candidates and their supporters. To this end, the statute
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provides that adequate safeguards to insure a fair election shall be
provided, and states certain specific safeguards. These safeguards
apply not only to candidates for officer positions as defined in the Act
but also to candidates for delegate posts, if the delegates are to
nominate or elect officers.
257. Mr. Pette followed this section with a reading from Section 452.99,
entitled “Notice of Election”:
Elections required by title IV to be held by secret ballot must be
preceded by a notice of election mailed to each member at his last
known home address not less than fifteen days prior to the election.
The members then challenged President Capehart with the question of sending out
notification, to which he responded, “The By-Laws give the Executive Board the
power to overturn the election. We decided it would cost too much.” Again, a
heated debate followed. Mr. Pette asked Mr. Capehart to provide a copy of the By-
Laws and Constitution and he refused. Member Patrick Adams had a Constitution
and copy of the Local By-Laws with him and Mr. Pette asked to see them.
258. Upon finding the relevant passages, Mr. Pette again addressed
President Capehart. Mr. Pette asked if he would acknowledge that the Constitution
Mr. Pette held was the governing document of rules for the Union. Mr. Capehart
stated that it was the correct Constitution. Mr. Pette proceeded to read sections of
Article III section 3, entitled “Composition of Convention,” at paragraph 2:
The election of delegates shall be conducted by secret ballot. In order
to be eligible to be a candidate for delegate, a member must, at the
time of nomination, be in good standing with respect to payment of
dues and meet the requirements contained in the second paragraph of
Article XXIV, Subdivision 1, section (b). In addition, Local Unions
may impose in their bylaws a requirement that candidates for delegate
must file nominating petitions in support of their candidacies signed by
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not more than two-hundred (200) members or two percent (2%) of the
entire membership, whichever is less. Adequate safeguards to insure a
fair election shall be provided by the Local Union in accordance with
International Constitution, applicable law, and such rules and
regulations as may be promulgated by the General executive Board.
After reading this passage from the IUOE Constitution out loud to President
Capehart, Mr. Petter again asked, “Where does that say you have the right to stop
the election?” Mr. Capehart again said,” I disagree”.
259. At that time a very heated discussion took place. The membership was
extremely angry and were told that if they didn’t like it to “file a complaint.” Mr.
Pette pointed out that the complaint process of the IUOE Constitution would take
so long that the election would be a moot point. President Capehart simply smiled
at Mr. Pette in response.
260. In violation of members’ LMRDA Title 1 rights, Local 501 made no
effort to request permission from the bankruptcy court, to seek permission to spend
money on the ordinary business activity of sending delegates to the General
Convention. The failure to make this request was likely a direct instruction of
IUOE, which appears to be setting the stage for the merger of Local 501 into
another local union to diminish the ability of Local 501 members to seek redress.
This decision was appealed by Mr. Pette, and the Department of Labor was made
aware of this serious breach of the rights of union members to equal protection.
Attached as Exhibits “27” and “28” are Mr. Pette’s communications challenging
this decision and IUOE response. Once again, the Department of Labor failed to
protect Local 501’s members.
261. Local 501 members paid for five years to obtain the Title 1 privilege of
selecting their representation at the 38th Annual General Convention. The IUOE
has maintained control of Local 501 during most of the last five years, and is now
using that control to prevent Local 501 members from selecting the delegates that
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will represent their interests in decisions that will remain in place for the next five
year. For the last five years, IUOE took a percentage of the dues paid by members
to secure this very right. Every dollar IUOE collected from Local 501 members for
the past five years should be restored to Local 501’ members as ill-gotten gains of a
scheme to seize control of Local 501 through racketeering activity. The Court
should impose a constructive trust on IUOE, sequestering those per-capita
contributions from 2009 through 2013. Since there are no adequate measures
available to restore members’ rights prior to the 38th Annual General Convention,
Local 501 members should be excused from all per-capita contribution obligations
until such time as control of Local 501 is restored to its members and a meaningful
democratic processes is put in place both at Local 501 and IUOE. Any actions
directed at Local 501 from the 38th Annual General Convention, or any changes
directed at members generally, should be abrogated as a result of IUOE’s years of
misconduct and the absence of equal protection rights for Local 501 members.
V. CLASS ACTION ALLEGATIONS
262. Plaintiffs bring this action individually, as well as on behalf of each
and all other persons similarly situated in a concerted effort to improve wages and
working conditions for other, similarly situated employees, and thus, seek class
certification under Fed. R. Civ. Proc. 23.
263. The proposed Local 501 Class consists of and is defined as:
All individuals that are or have been members of the International Union of Operating Engineers Local 501 at any time within the five years prior to the filing of this action. Excluded from the Class are all Defendants in this action; Class Counsel and their employees and members; all persons within the third degree of relationship to any of the excluded individuals and any judge who hears or decides any matter in this litigation.
264. The proposed Caremark Class consists of and is defined as:
All individuals that are or have been members of any Local that is part of International Union of Operating Engineers at any time within the five years prior to the filing of this action, or the beneficiary of any
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such member, who received pharmacy benefit management services through any Local health & welfare benefit fund from CVS Caremark Corporation or its subsidiaries. Excluded from the Class are all Defendants in this action; Class Counsel and their employees and members; all persons within the third degree of relationship to any of the excluded individuals and any judge who hears or decides any matter in this litigation.
265. The proposed Local 501Benefit Class consists of and is defined as:
All individuals that are or have been beneficiaries of benefit plans provided through the International Union of Operating Engineers Local 501 at any time within the five years prior to the filing of this action. Excluded from the Class are all Defendants in this action; Class Counsel and their employees and members; all persons within the third degree of relationship to any of the excluded individuals and any judge who hears or decides any matter in this litigation.
266. The proposed EPEC PAC Class consists of and is defined as:
All officers and employees of any Local union in the International Union of Operating Engineers that contributed at any time during the five years prior to the filing of this action to the International Union of Operating Engineers’ EPEC Fund, FEC Committee ID: C00029504. Excluded from the Class are all Defendants in this action; Class Counsel and their employees and members; all persons within the third degree of relationship to any of the excluded individuals and any judge who hears or decides any matter in this litigation.
267. Plaintiffs reserve the right to establish sub-classes, or modify any Class
or sub-Class definition, as appropriate.
268. At all material times, Plaintiffs were or are members of the Class.
269. There is a well-defined community of interest in the litigation and the
class is readily ascertainable:
(a) Numerosity: The members of the class (and each subclass, if
any) are so numerous that joinder of all members would be
unfeasible and impractical. The membership of the entire class
is unknown to Plaintiffs at this time, however, the smallest of
the defined classes is estimated to be greater than 5,000
individuals and the identity of such membership is readily
ascertainable by inspection of Defendants’ records.
(b) Typicality: Plaintiffs are qualified to, and will, fairly and
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adequately protect the interests of each class member with
whom there is a shared, well-defined community of interest.
Plaintiffs’ claims are typical of all class members’ claims. For
example, Plaintiffs were members of Local 501 within the class
period, like all other Class members, and Plaintiffs were injured
by manipulation of Local 501 through racketeering activity as all
other Class members were.
(c) Adequacy: Plaintiffs are qualified to, and will, fairly and
adequately protect the interests of each class member with
whom there is a shared, well-defined community of interest and
typicality of claims, as demonstrated herein. Plaintiffs
acknowledge that Plaintiffs have an obligation to make known to
the Court any relationship, conflicts or differences with any
class member. Plaintiffs’ attorneys, the proposed class counsel,
are versed in the rules governing class action discovery,
certification, and settlement.
(d) Superiority: A Class Action is superior to other available
methods for the fair and efficient adjudication of the
controversy, including consideration of:
1) The interests of the members of the class in individually
controlling the prosecution or defense of separate actions;
2) The extent and nature of any litigation concerning the
controversy already commenced by or against members of
the class;
3) The desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
4) The difficulties likely to be encountered in the
management of a class action.
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(e) Public Policy Considerations: Labor organizations are intended
to protect employees from the potential for employer abuse of
power, but when the parent union conspires with employers, a
local union is powerless to protect itself from abuses originating
from multiple directions. Current union members are often
afraid to assert their rights out of fear of direct or indirect
retaliation. Former union members know the reputation of large
labor organizations as violent and dangerous when challenged.
Class actions provide the class members who are not named in
the complaint with a type of anonymity that allows for the
vindication of their rights at the same time as their privacy and
safety is protected.
270. There are common questions of law and fact as to the class (and each
subclass, if any) that predominate over questions affecting only individual
members, including but not limited to:
(a) Whether Defendants engaged in racketeering;
(b) Whether Defendants violated the LMRDA;
(c) Whether Defendants unlawfully conspired to engage in
racketeering;
(d) Whether Defendants breached fiduciary obligations to the Class;
and,
(e) The appropriate amount of damages, restitution, or monetary
penalties resulting from Defendants’ violations of law.
271. This Court should permit this action to be maintained as a class action
pursuant to Fed. R. Civ. P. 23 because:
(a) The questions of law and fact common to the class predominate
over any question affecting only individual members;
(b) A class action is superior to any other available method for the
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fair and efficient adjudication of the claims of the members of
the class;
(c) The members of the class are so numerous that it is impractical
to bring all members of the class before the Court;
(d) Plaintiff, and the other members of the class, will not be able to
obtain effective and economic legal redress unless the action is
maintained as a class action;
(e) There is a community of interest in obtaining appropriate legal
and equitable relief for the statutory violations, and in obtaining
adequate compensation for the damages and injuries for which
Defendants are responsible in an amount sufficient to adequately
compensate the members of the class for the injuries sustained;
(f) Without class certification, the prosecution of separate actions
by individual members of the class would create a risk of:
1) Inconsistent or varying adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for Defendants; and/or
2) Adjudications with respect to the individual members
which would, as a practical matter, be dispositive of the
interests of other members not parties to the adjudications,
or would substantially impair or impede their ability to
protect their interests, including but not limited to the
potential for exhausting the funds available from those
parties who are, or may be, responsible Defendants; and,
(g) Defendants have acted or refused to act on grounds generally
applicable to the class, thereby making final injunctive relief
appropriate with respect to the class as a whole.
272. Plaintiffs contemplate the eventual issuance of notice to the proposed
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members of the class that would set forth the subject and nature of the instant
action. The Defendants’ own business records may be utilized for assistance in the
preparation and issuance of the contemplated notices. To the extent that any
further notices may be required, Plaintiff would contemplate the use of additional
mailings.
VI. CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
(Violation of 18 U.S.C. § 1962(c) of the Racketeer Influenced and Corrupt
Organizations Act [18 U.S.C. §§ 1961-68])
By Plaintiffs against All Defendants
273. Plaintiffs re-allege, and incorporate by reference, each and every
paragraph herein.
274. Defendants are each a “person” as that term is defined by 18 U.S.C.
section 1961(3).
275. Local 501 constitutes an enterprise as that term is defined by 18 U.S.C.
§ 1961(4) (hereinafter known as the “Local 501 ENTERPRISE”).
276. The LOCAL 501 ENTERPRISE is engaged in, and its activities affect,
interstate and foreign commerce.
277. The DEFENDANTS are, and at all relevant times were, associated
with the LOCAL 501 ENTERPRISE.
278. As described herein, the DEFENDANTS, beginning at least as early as
2005, and continuing to the present, knowingly and willfully set into motion an
over-arching scheme to defraud the LOCAL 501 ENTERPRISE out of revenues,
cost savings, and membership. The primary goal in all instances was the unlawful
enrichment of the DEFENDANTS through activities of the LOCAL 501
ENTERPRISE. Numerous kickback schemes enabled employers to avoid
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contractual obligations while providing bribes to Defendants. To accomplish the
over-arching goal of fraudulent and unlawful enrichment, the DEFENDANTS
engaged in and/or authorized a variety of unlawful activities, including the use of
threats of economic harm and violence to seize control of Local 501 and prevent
discovery of the many asset diversion and kickback schemes enriching the
leadership of the IUOE.
279. Rights guaranteed under the LMRDA are protectable property interests
held by Plaintiffs and other Class members. Plaintiffs’ and Class members’ rights
under the LMRDA are extortable in violation of the Hobbs Act.
280. Assets intended to benefit Plaintiffs and Class members when
deposited into trust account, including the Health & Welfare Fund and others,
represent tangible assets subject to conversion in violation of the Hobbs Act.
281. Plaintiff and Class members were and are aware of ties between the
leadership of IUOE and organized crime syndicates in New York and New Jersey.
As a result of that awareness, threats of economic and physical harm directed at the
Plaintiffs and other Class members were viewed as highly credible and elicited
substantial fear and concern amongst Plaintiffs and other Class members.
282. Beginning at least as early as 2005 and continuing to the present, the
DEFENDANTS, in furtherance of and for the purpose of executing the schemes
and artifices to defraud and divert Local 501 resources described herein, on
numerous occasions engaged in the extortion of rights guaranteed to Plaintiffs and
other Class members under the LMRDA and other laws. Each such extortionate
activity in connection with the described schemes and artifices to defraud and
divert Local 501 resources constitutes a distinct violation of the Hobbs Act, 18
U.S.C. § 1951, and further constitutes racketeering activity as that term is defined
in 18 U.S.C. § 1961(1)(b). The unlawful extortion of property and rights secured
under the LMRDA and other laws include, but is not limited to, the following acts
whereby the DEFENDANTS:
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(a) Obtained the voting rights of Plaintiffs and other Class members
by utilizing threats of economic and physical harm to control the
winners of elections at Local 501;
(b) Obtained assets belonging rightfully to Plaintiffs and other Class
members by utilizing threats of economic and physical harm to
control Local 501’s ability to investigate asset diversions.
283. Beginning at least as early as 2005 and continuing to the present, the
DEFENDANTS, in furtherance of and for the purpose of executing the schemes
and artifices to defraud described herein, on numerous occasions used and caused
to be used the United States Mails and other commercial interstate carriers by both
placing and causing to be placed letters and other mailable matter in the authorized
depositories of such carriers and receiving and causing to be received letters and
other matter from such carriers. Each such use of the United States mails and other
carriers in connection with the described schemes and artifices to defraud
constitutes a separate and distinct violation of 18 U.S.C. § 1341, relating to mail
fraud, and further constitutes racketeering activity as that term is defined in 18
U.S.C. § 1961(1)(b). The unlawful use of the mails includes, but is not limited to,
the following:
(a) Fraudulent mailing from IUOE indicating that Local 501 had
been placed under “monitorship,” by the International when no
such status existed under the IUOE Constitution;
(b) Fraudulent charges of malfeasance targeted at Finn Pette and
Dan Himmelberg for the purpose of interfering with their ability
to run for officer positions at Local 501.
284. By issuing threats of murder, as described above, Defendants engaged
in racketeering activity as defined by 18 U.S.C. § 1961(1)(A).
285. Beginning at least as early as 2005 and continuing to the present, the
DEFENDANTS, in furtherance of and for the purpose of executing the schemes
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and artifices to defraud described herein, on numerous occasions used and caused
to be used wire communications in interstate and foreign commerce by both
making and causing to be made wire communications. Each such use of a wire
communication in connection with the described schemes and artifices to defraud
constitutes a separate and distinct violation of 18 U.S.C. § 1343, relating to wire
fraud, and further constitutes racketeering activity as that term is defined in 18
U.S.C. § 1961(1)(B). The unlawful use of wire communications includes, but is
not limited to, the following:
(a) Calls from Giblin to Bob Fox, threatening the life of
McLaughlin, Pette and Himmelberg, in violation of 18 U.S.C. §
1961(1)(A), if they did not stop investigating Lundy;
(b) Calls from Giblin to McLaughlin, demanding his resignation;
(c) Threats, communicated from Giblin through IUOE counsel to
McLaughlin and Local 501 counsel, stating the Himmelberg,
who had Parkinson’s disease, would be fired if Pette was not
terminated;
(d) Acceptance via wire, on occasions too numerous to identify
herein, and at times known exclusively by Defendants, of
fraudulently obtained kickback payments from ABM and Abel.
286. Beginning at least as early as 2005 and continuing to the present, the
DEFENDANTS, in furtherance of and for the purpose of executing the schemes
and artifices to defraud described herein, on numerous occasions knowingly
engaged in and caused to occur monetary transactions in criminally derived
property with value in excess of $10,000. The transactions were accomplished by
depositing, withdrawing or transferring funds by, through, or to a financial
institution, as such an institution is defined by 18 U.S.C. § 1956. Funds used in
such transactions were derived from offenses listed in 18 U.S.C. § 1961(1),
including, but not limited to, funds derived from mail fraud, in violation 18 U.S.C.
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§ 1341, and wire fraud, in violation of 18 U.S.C. § 1343. Each such monetary
transaction in connection with the described schemes and artifices to defraud
constitutes a separate and distinct violation of 18 U.S.C. § 1957, relating to
unlawful monetary transactions and money laundering, and further constitutes
racketeering activity as that term is defined in 18 U.S.C. § 1961(1)(b). The
unlawful monetary transactions include, but are not limited to, the following:
(a) Acceptance of payments by Giblin and his co-conspirators at
IUOE from ABM, at times known exclusively to Defendants;
(b) Acceptance of payments by Giblin and his co-conspirators at
IUOE from Able, at times known exclusively to Defendants;
(c) Deposits by Lundy, at times known exclusively to him, of
monies embezzled from the JAC fund, including monies
obtained via the issuance of sham BOMA credentials to
members at other local unions.
287. Beginning as least as early as 2005, and continuing to the present, the
DEFENDANTS, in furtherance of and for the purpose of executing the schemes
and artifices to defraud described herein, on numerous occasions knowingly
traveled in interstate commerce and used facilities of interstate commerce
(including, but not limited to, the mails) with the intent to promote, manage,
establish, carry on, or facilitate the promotion, management, establishment or
carrying on of unlawful activities (including violations of 18 U.S.C. § 1957), and
thereafter performed or attempted to perform such violations. Each such
interaction with facilities of interstate commerce in connection with the described
schemes and artifices to defraud constitutes a separate and distinct violation of 18
U.S.C. section 1952 (the “Travel Act”), relating to travel in interstate commerce
with intent to facilitate certain unlawful activities, and further constitutes
racketeering activity as that term is defined in 18 U.S.C. § 1961(1)(B). These
violations included habitual interstate travel by the DEFENDANTS to and from
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Local 501 for the purpose of delivering threats to ensure that schemes for
fraudulent profiteering could continue unabated.
288. The DEFENDANTS’ repeated violations of 18 U.S.C. §§ 1341, 1343,
1951, 1952 and 1957 extended over a period of years and involved distinct and
independent criminal acts. Those criminal acts were neither isolated or sporadic
events, but involved the regular and repeated violation as a way of doing business
and to accomplish the DEFENDANTS’ desired ends in the course of the continuing
business of the LOCAL 501 ENTERPRISE. These predicate acts were related to
each other by virtue of (a) common participants, (b) similarly situated victims, (c)
common methods of commission through the habitual dissemination of fraudulent
and misleading information, and (d) the common purpose and common result
defrauding and looting the LOCAL 501 ENTERPRISE, all while enriching the
DEFENDANTS. As such, this conduct constitutes a pattern of racketeering
activity within the meaning of 18 U.S.C. § 1961(5).
289. The fraudulent, unlawful and improper activities of the
DEFENDANTS threatens to continue. Based upon the past pattern of activity,
other Local Unions either have or will likely be defrauded by the DEFENDANTS.
Based upon the past pattern of activity, the DEFENDANTS will likely continue to
defraud Local Unions like Local 501. Furthermore, the DEFENDANTS are able,
based upon their managerial and controlling positions, to replace management in
Local Unions, which could thereafter be defrauded and looted without consequence
in a manner similar to the schemes and artifices outlined herein.
290. The DEFENDANTS all violated or aided violation of 18 U.S.C. §
1962(c) by directly or indirectly conducting or participating in the conduct of the
affairs of the LOCAL 501 ENTERPRISE through a pattern of racketeering activity.
291. The DEFENDANTS’ violation of 18 U.S.C. § 1962(c) caused the
Plaintiffs and the Class to suffer direct injury in amounts as may be shown
according to proof at time of trial.
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SECOND CLAIM FOR RELIEF
(Violation of 18 U.S.C. § 1962(d) of the Racketeer Influenced and Corrupt
Organizations Act [18 U.S.C. §§ 1961-68])
By Plaintiffs against All Defendants
292. Plaintiffs re-allege, and incorporate by reference, each and every
paragraph herein.
293. Defendants are each a “person” as that term is defined by 18 U.S.C.
section 1961(3).
294. Local 501 constitutes an enterprise as that term is defined by 18 U.S.C.
§ 1961(4) (hereinafter known as the “Local 501 ENTERPRISE”).
295. The LOCAL 501 ENTERPRISE is engaged in, and its activities affect,
interstate and foreign commerce.
296. From at least 1994 and continuing through to the present, Defendants,
being persons employed by or associated with the LOCAL 501 ENTERPRISE at
all relevant times herein, unlawfully and willfully combined, conspired,
confederated and agreed each with the other to violate 18 U.S.C. § 1962(c), that is,
to conduct and participate, directly and indirectly, in the conduct of the affairs of
the LOCAL 501 ENTERPRISE through a pattern of racketeering activity, all in
violation of 18 U.S.C. § 1962(d). The times and locations and forms of such
agreements constitute information uniquely within the control of the
DEFENDANTS.
297. As part of this conspiracy, the DEFENDANTS each personally plotted,
conspired and agreed to commit two or more fraudulent and illegal racketeering
acts and thereby conducted and agreed to conduct the affairs of the LOCAL 501
ENTERPRISE through the pattern of racketeering activity in violation of 18 U.S.C.
§ 1962(c) described generally herein and specifically in the First Claim for Relief.
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298. In furtherance of the conspiracy and to effect the objects thereof, the
DEFENDANTS committed and caused to be committed a series of overt acts,
including, but not limited to, the following:
(a) Habitual interstate travels by the Defendants to and from Local
501, for the purpose of delivering threats to Plaintiffs and
ensuring that Defendants asset diversion and kickback schemes
continued unabated and unchallenged;
(b) Obtained the voting rights of Plaintiffs and other Class members
by utilizing threats of economic and physical harm to control the
winners of elections at Local 501;
(c) Obtained assets belonging rightfully to Plaintiffs and other Class
members by utilizing threats of economic and physical harm to
control Local 501’s ability to investigate asset diversions;
(d) Fraudulent mailing from the IUOE indicating that Local 501 had
been placed under “monitorship,” when no such status existed
under the IUOE Constitution;
(e) Fraudulent charges of malfeasance targeted at Finn Pette and
Dan Himmelberg for the purpose of interfering with their ability
to run for officer positions at Local 501.
(f) Calls from Giblin to Bob Fox, threatening the lives of Mssrs.
McLaughlin, Pette and Himmelberg if they did not stop
investigating Lundy;
(g) Calls from Giblin to McLaughlin, threatening economic harm if
investigation into Lundy did not cease and failing this, calling
and demanding his resignation;
(h) Threats, communicated from Giblin through IUOE general
counsel Griffin to McLaughlin and Local 501 counsel, stating
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the Himmelberg, who had Parkinson’s disease, would be fired if
Pette was not terminated;
(i) Acceptance via wire, on occasions too numerous to identify
herein, and at times known exclusively by Defendants, of
fraudulently obtained kickback payments from ABM and Abel.
(j) Numerous other fraudulent monetary transactions on amounts
exceeding $10,000 to accounts and at times known exclusively
to Defendants, but believed by Plaintiffs to consist of a
widespread and regular pattern of unlawful financial transactions
conducted, in part, to weaken Local 501 so as to facilitate
Defendants’ takeover scheme;
(k) Calls to McLaughlin demanding Pette cease all efforts to
investigate double breasting issues involving Able and ABM
and failing this, eventually demanding termination of Pette; and,
(l) Upon information and belief, similar violations constituting
predicate acts were perpetrated upon other local union chapters
around the country.
299. The Defendants’ violation of 18 U.S.C. § 1962(d) caused the Plaintiffs
and the Class to suffer direct injury in amounts as may be shown according to proof
at time of trial.
THIRD CLAIM FOR RELIEF
(Violations of 18 U.S.C. § 1962(b) of the Racketeer Influenced and Corrupt
Organizations Act [18 U.S.C. §§ 1961-68])
By Plaintiffs against All Defendants
300. Plaintiffs re-allege, and incorporate by reference, each and every
paragraph herein.
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301. Each and every Defendant named herein is a “person” as that term is
defined by 18 U.S.C. section 1961(3).
302. Local 501 constitutes an enterprise as that term is defined by 18 U.S.C.
§ 1961(4) (hereinafter known as the “Local 501 ENTERPRISE”).
303. The Local 501 ENTERPRISE is engaged in, and its activities affect,
interstate and foreign commerce.
304. Rights guaranteed under the LMRDA are protectable property interests
held by Plaintiffs and other Class members. Plaintiffs’ and Class members’ rights
under the LMRDA are extortable in violation of the Hobbs Act.
305. Assets intended to benefit Plaintiffs and Class members when
deposited into trust account, including the Health & Welfare Fund and others,
represent tangible assets subject to conversion in violation of the Hobbs Act.
306. Plaintiff and Class members were and are aware of ties between
leadership of IUOE and organized crime syndicates in New York and New Jersey.
As a result of that awareness, threats of economic and physical harm directed at
Plaintiffs and other Class members were viewed as highly credible and elicited
substantial fear and concern amongst Plaintiffs and other Class members.
307. Beginning at least as early as 2005 and continuing to the present, the
DEFENDANTS, in furtherance of and for the purpose of executing the schemes
and artifices to defraud and divert Local 501 resources described herein, on
numerous occasions engaged in the extortion of rights guaranteed to Plaintiffs and
other Class members under the LMRDA and other laws. Each such extortionate
activity in connection with the described schemes and artifices to defraud and
divert Local 501 resources constitutes a distinct violation of the Hobbs Act, 18
U.S.C. § 1951, and further constitutes racketeering activity as that term is defined
in 18 U.S.C. § 1961(1)(b). The unlawful extortion of property and rights secured
under the LMRDA and other laws include, but is not limited to, the following acts
by the DEFENDANTS:
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(a) Obtained the voting rights of Plaintiffs and other Class members
by utilizing threats of economic and physical harm to control the
winners of elections at Local 501;
(b) Obtained assets belonging rightfully to Plaintiffs and other Class
members by utilizing threats of economic and physical harm to
control Local 501’s ability to investigate asset diversions;
(c) Obstructed internal investigations into the local 501 various
funds including the joint apprenticeship training program to the
financial detriment of local 501 and to the financial benefit of
Able and ABM.
308. Beginning at least as early as 2007, and continuing to the present, the
Defendants, in furtherance of and for the purpose of executing the schemes and
artifices to defraud and seize control of Local Unions, including the Local 501
ENTERPRISE, on numerous occasions used and caused to be used mail
depositories of the United States Mails and other commercial interstate carriers by
both placing and causing to be placed letters and other mailable matter in the
authorized depositories of such carriers and receiving and causing to be received
letters and other matter from such carriers. Each such use of the United States
Mails and other carriers in connection with the described schemes and artifices to
defraud constitutes a separate and distinct violation of 18 U.S.C. § 1341, relating to
mail fraud, and further constitutes racketeering activity as that term is defined in 18
U.S.C. § 1961(1)(b). The unlawful use of the mails includes, but is not limited to,
the following:
(a) Fraudulent mailing from IUOE indicating that Local 501 had
been placed under “monitorship,” when no such status existed
under the IUOE Constitution;
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(b) Fraudulent charges of malfeasance targeted at Finn Pette and
Dan Himmelberg for the purpose of interfering with their ability
to run for officer positions at Local 501.
309. Beginning at least as early as 2007, and continuing to the present, the
Defendants, in furtherance of and for the purpose of executing the schemes and
artifices to defraud and seize control of Local Unions, including the Local 501
ENTERPRISE, on numerous occasions used and caused to be used wire
communications in interstate and foreign commerce by both making and causing to
be made wire communications. Each such use of a wire communication in
connection with the described schemes and artifices to defraud constitutes a
separate and distinct violation of 18 U.S.C. § 1343, relating to wire fraud, and
further constitutes racketeering activity as that term is defined in 18 U.S.C. §
1961(1)(b). The unlawful use of wire communications includes, but is not limited
to, the following:
(a) Calls from Giblin to Bob Fox, threatening the life of
McLaughlin, Pette and Himmelberg, in violation of 18 U.S.C. §
1961(1)(A), if they did not stop investigating Lundy;
(b) Calls from Giblin to McLaughlin, demanding his resignation;
(c) Threats, communicated from Giblin through IUOE counsel to
McLaughlin and Local 501 counsel, stating the Himmelberg,
who had Parkinson’s disease, would be fired if Pette was not
terminated;
(d) Acceptance via wire, on occasions too numerous to identify
herein, and at times known exclusively by Defendants, of
fraudulently obtained kickback payments from ABM and Abel.
310. Beginning at least as early as 2007 and continuing to the present, the
Defendants, in furtherance of and for the purpose of executing the schemes and
artifices to defraud and seize control of Local Unions, including the Local 501
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ENTERPRISE, on numerous occasions knowingly engaged in and caused to occur
monetary transactions in criminally derived property with value in excess of
$10,000. The transactions were accomplished by depositing, withdrawing or
transferring funds by, through, or to a financial institution, as such an institution is
defined by 18 U.S.C. § 1956. Funds used in such transactions were derived from
offenses listed in 18 U.S.C. § 1961(1), including, but not limited to, funds derived
from mail fraud, in violation 18 U.S.C. § 1341, and wire fraud, in violation of 18
U.S.C. § 1343. Each such monetary transaction in connection with the described
schemes and artifices to defraud constitutes a separate and distinct violation of 18
U.S.C. § 1957, relating to unlawful monetary transactions and money laundering,
and further constitutes racketeering activity as that term is defined in 18 U.S.C. §
1961(1)(b). The unlawful monetary transactions include, but are not limited to, the
following:
(a) Acceptance of payments by Giblin and his co-conspirators at
IUOE from ABM, at times known exclusively to Defendants;
(b) Acceptance of payments by Giblin and his co-conspirators at
IUOE from Able, at times known exclusively to Defendants;
(c) Deposits by Lundy, at times known exclusively to him, of
monies embezzled from the JAC fund, including monies
obtained via the issuance of sham BOMA credentials to
members at other local unions.
311. Beginning as least as early as 1997, and continuing to the present, the
Defendants, in furtherance of and for the purpose of executing the schemes and
artifices to defraud and seize control of Local Unions, including the Local 501
ENTERPRISE, on numerous occasions knowingly traveled in interstate commerce
and used facilities of interstate commerce (including, but not limited to, the mails)
with the intent to promote, manage, establish, carry on, or facilitate the promotion,
management, establishment or carrying on of unlawful activities (including
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violations of 18 U.S.C. § 1957), and thereafter performed or attempted to perform
such violations. Each such interaction with facilities of interstate commerce in
connection with the described schemes and artifices to defraud constitutes a
separate and distinct violation of 18 U.S.C. § 1952 (the “Travel Act”), relating to
travel in interstate commerce with intent to facilitate certain unlawful activities, and
further constitutes racketeering activity as that term is defined in 18 U.S.C. §
1961(1)(b). These violations included habitual interstate travels by the Defendants
to and from Local 501, for the purpose of delivering threats to Plaintiffs and
ensuring that Defendants asset diversion and kickback schemes continued unabated
and unchallenged
312. The DEFENDANTS’ repeated violations of 18 U.S.C. §§ 1341, 1343,
1951, 1952 and 1957 extended over a period of at least one year and involved
distinct and independent criminal acts. Those criminal acts were neither isolated or
sporadic events, but involved the regular and repeated violation as a way of doing
business and to accomplish the Defendants’ desired ends in the course of pursuing
their unlawful scheme to seize control of Local Unions, including the Local 501
ENTERPRISE. These predicate acts were related to each other by virtue of (a)
common participants, (b) similarly situated victims, (c) common methods of
commission through the habitual dissemination of fraudulent and misleading
information and the dissemination of threats of physical and economic harm to
Plaintiffs and other Class members, and (d) the common purpose and common
result of unlawfully maintaining control over Local 501, all while enriching the
Defendants at the expense of Local 501 members. As such, this conduct constitutes
a pattern of racketeering activity within the meaning of 18 U.S.C. § 1961(5).
313. The fraudulent, unlawful and improper activities of the Defendants
threaten to continue. Based upon the past pattern of activity, other existing Local
Unions either have or will likely be seized on false pretexts by the Defendants.
Based upon the past pattern of activity, the Defendants will likely continue to
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defraud and deprive members of their membership rights and assets. Furthermore,
the Defendants are able to implement the same unlawful schemes in other local
unions if not stopped here and now.
314. The Defendants all violated or aided in violation of 18 U.S.C. §
1962(b) by acquiring, directly or indirectly, control of the Local 501 ENTERPRISE
through a pattern of racketeering activity.
315. Furthermore, Plaintiffs have learned of DEFENDANTS’ plans to
merge Local 501 into another California Local Union (IUOE Local 39) as a
culmination of a long series of predicate acts all constituting RICO violations on
the part of Defendants. The Defendants hope that through this transaction, they
will cement their control over Local 501 and, through obfuscation and changed
leadership, shield themselves from liability for the wide ranging fraudulent and
illegal activities undertaken by Defendants, as set forth herein.
316. The Defendants’ violation of 18 U.S.C. § 1962(b) caused the Plaintiffs
and the Class to suffer direct injury in amounts as may be shown according to proof
at time of trial.
FOURTH CLAIM FOR RELIEF
(Violations of 18 U.S.C. § 1962(d) of the Racketeer Influenced and Corrupt
Organizations Act [18 U.S.C. §§ 1961-68])
By Plaintiffs against All Defendants
317. Plaintiffs re-allege, and incorporate by reference, each and every
paragraph herein.
318. Each and every Defendant named herein is a “person” as that term is
defined by 18 U.S.C. § 1961(3).
319. Local 501 constitutes an enterprise as that term is defined by 18 U.S.C.
§ 1961(4) (hereinafter known as the “Local 501 ENTERPRISE”).
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320. The Local 501 ENTERPRISE is engaged in, and its activities affect,
interstate and foreign commerce.
321. From at least 1994 and continuing through to the present, Defendants
unlawfully and willfully combined, conspired, confederated and agreed each with
the other to violate 18 U.S.C. § 1962(b), that is, to acquire, directly or indirectly,
control of the Local 501 ENTERPRISE through a pattern of racketeering activity,
all in violation of 18 U.S.C. § 1962(d). The times and locations and forms of such
agreements constitute information uniquely within the control of the Defendants.
322. As part of this conspiracy, the Defendants each personally plotted,
conspired and agreed to commit two or more fraudulent and illegal racketeering
acts and thereby acquired and agreed to acquire, directly or indirectly, control of
the Local 501 ENTERPRISE through a pattern of racketeering activity in violation
of 18 U.S.C. § 1962(b) described generally herein and specifically in the Third
Claim for Relief.
323. In furtherance of the conspiracy and to effect the objects thereof, the
Defendants committed and caused to be committed a series of overt acts, including,
but not limited to, the following:
(a) Habitual interstate travels by the Defendants to and from Local
501, for the purpose of delivering threats to Plaintiffs and
ensuring that Defendants asset diversion and kickback schemes
continued unabated and unchallenged;
(b) Obtained the voting rights of Plaintiffs and other Class members
by utilizing threats of economic and physical harm to control the
winners of elections at Local 501;
(c) Obtained assets belonging rightfully to Plaintiffs and other Class
members by utilizing threats of economic and physical harm to
control Local 501’s ability to investigate asset diversions;
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(d) Fraudulent mailing from IUOE indicating that Local 501 had
been placed under “monitorship,” when no such status existed
under the IUOE Constitution;
(e) Fraudulent charges of malfeasance targeted at Finn Pette and
Dan Himmelberg for the purpose of interfering with their ability
to run for officer positions at Local 501.
(f) Calls from Giblin to Bob Fox, threatening the life of
McLaughlin, Pette and Himmelberg if they did not stop
investigating Lundy;
(g) Calls from Giblin to McLaughlin, demanding his resignation;
(h) Threats, communicated from Giblin through IUOE counsel to
McLaughlin and Local 501 counsel, stating the Himmelberg,
who had Parkinson’s disease, would be fired if Pette was not
terminated;
(i) Acceptance via wire, on occasions too numerous to identify
herein, and at times known exclusively by Defendants, of
fraudulently obtained kickback payments from ABM and Abel.
(j) Numerous other fraudulent monetary transactions on amounts
exceeding $10,000 to accounts and at times known exclusively
to Defendants, but believed by Plaintiffs to consist of a
widespread and regular pattern of unlawful financial transactions
conducted, in part, to weaken Local 501 so as to facilitate
Defendants’ takeover scheme; and,
(k) Upon information and belief, similar violations constituting
predicate acts were perpetrated upon other local union chapters
around the country.
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324. The Defendants’ violation of 18 U.S.C. § 1962(d) caused the Plaintiffs
and the Class to suffer direct injury in amounts as may be shown according to proof
at time of trial.
FIFTH CLAIM FOR RELIEF
(Violation of Bill of Rights Secured by Labor Management Disclosure Act, 29
U.S.C. § 501)
By Plaintiffs against Specific Defendants
325. Plaintiffs re-allege, and incorporate by reference, each and every
paragraph herein.
326. This Claim for Relief is asserted against all Defendants holding any
position as a Board Member of IUOE, a Trustee of IOUE, or any other union
official, including any officers, named herein as a Defendant.
327. Jurisdiction is conferred on this Court pursuant to 29 U.S.C. § 412.
328. Violations of the Labor Management Disclosure Act, Title I (Bill of
Rights), occurred within the Central District of California where Local 501 is
headquartered. As such, venue is proper in this District pursuant to 29 U.S.C. §
412.
329. Violations of the Labor Management Disclosure Act, Title IV
(Elections), occurred within the Central District of California where Local 501 is
headquartered. As such, venue is proper in this District pursuant to 29 U.S.C. §
412. However, Plaintiffs do not assert Title IV violations, referring instead to the
related action filed by the Department of Labor.
330. Plaintiffs are members of the International Union of Operating
Engineers, in the Local 501 Chapter of that labor union.
331. Defendant IUOE is a labor organization as defined in 29 U.S.C. §
402(i).
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332. Defendants, described above, are officials of IUOE or agents of IUOE
or both.
333. Section 411 of the LMRDA, 29 U.S.C. § 411, provides in part:
(a)(1) Equal rights
Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws.
(2) Freedom of speech and assembly
Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.
29 U.S.C. § 411(a)(1) and (2). Defendants, through their schemes to usurp control
of Local 501 described above, deprived Plaintiffs of their right to honest, open, fair
and free elections to determine the leadership of Local 501.
334. Defendants denied union members in good standing, including
Plaintiffs and the Class, the right to be candidates for and to hold union office, by
imposing unreasonable meeting attendance qualifications, in violation of section
401(e) of the Act, 29 U.S.C.A. § 481(e).
335. Defendants denied union members in good standing, including
Plaintiffs and the Class, a reasonable opportunity to nominate candidates by
imposing unreasonable qualifications on candidacy, in violation of section 401(e)
of the Act, 29 U.S.C.A. § 481(e).
336. As a result of threats of physical and economic violence, demonstrated
as credible through the forced terminations of Local 501 employee-members and
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the forced resignations of duly-elected Local 501 officers (described more fully
above), Plaintiffs reasonably concluded that internal procedures were futile and that
IUOE and its leadership would not permit a democratic process to proceed in order
to protect their vested interests in receiving tens of millions of dollars in unlawful
kickback payments and other personal favors from ABM and Able.
337. The Department of Labor has determined that Local 501’s last election
process violated members’ rights under the LMRDA.
338. The violations of the LMRDA by the identified Defendants are current
and ongoing in nature.
339. Plaintiffs are suing exclusively under Title 1 of the LMRDA, which
provides for a private right of action.
340. Plaintiffs seek equitable orders restraining: (1) IUOE and its leadership
from interfering in the operation of Local 501; (2) precluding IUOE from merging
Local 501 into any other local union chapter to eliminate members’ recourse
against IUOE and Local 501, and; (3) requiring the immediate institution of a valid
leadership election. Plaintiffs also seek a judgment directing the conduct of a new
election under the supervision of the Secretary of Labor. Plaintiffs also request
punitive damages for Defendants’ malicious violations of their LMRDA rights.
SIXTH CLAIM FOR RELIEF
BREACHES OF FIDUCIARY DUTIES ARISING UNDER ERISA OR
COMMON LAW
By Plaintiffs Against Specific Defendants
341. Plaintiffs re-allege, and incorporate by reference, each and every
paragraph herein.
342. ERISA § 502(a)(2), 29 U.S.C.A. § 1132(a)(2), authorizes a plan
participant or beneficiary to bring a civil action for appropriate relief under ERISA
§ 409, 29 U.S.C.A. § 1109. Section 409 requires “any person who is a fiduciary …
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who breaches any of the … duties imposed upon fiduciaries … to make good to
such plan any losses to the plan …” Section 409 also authorizes “such other
equitable or remedial relief as the court may deem appropriate …”
343. Plaintiffs and Class Members are or were at relevant times participants
and/or beneficiaries in the ERISA-governed plans alleged herein and associated
with Local 12, including, but not limited to, the General Pension Fund, the Health
& Welfare Fund, and the Operating Engineers Training Trusts, among others.
344. Defendants identified herein as Administrators and/or Trustees and/or
IUOE Executives and/or Local Executives have assumed fiduciary obligations to
Plaintiffs and Class Members.
345. According to the terms of the plans identified, participants such as the
Plaintiffs have a right to periodically direct the plans, by and through the plans’
delegated administrators and trustees, as to how the participants want his or her
monies directed.
346. Plaintiffs are not requires to exhaust administrative remedies
pertaining to breaches of fiduciary duty claims arising under ERISA.
347. As a direct result of the activities alleged herein, the plans have lost
monies, or engaged in activities that a prudent investor would not engage in and
suffered losses as a result, in amounts not presently known with precision but
exceeding $25 million.
348. Plaintiffs request equitable and declaratory relief, including order
requiring Defendants or their bonding agents or insurers to “make whole” the
ERISA-governed plans misused by Defendants.
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SEVENTH CLAIM FOR RELIEF
AIDING AND ABETTING
By Plaintiffs Against All Defendants
349. Plaintiffs re-allege, and incorporate by reference, each and every
paragraph herein.
350. As described above, Defendants engaged in a pattern of oppression
intended to restrict Local 501’s ability to discover or contest numerous asset
diversion schemes put in place by Defendants to enrich themselves at the expense
of Local 501 and its members, including Plaintiffs.
351. As described above, Defendants knew that other Defendants were
engaged in unlawful conduct intended to restrict Local 501’s ability to discover or
contest numerous asset diversion schemes put in place by various Defendants for
self-enrichment at the expense of Local 501 and its members, including Plaintiffs.
352. As described above, Defendants knew that threats of violence were
issued against Plaintiffs and others.
353. As described above, Defendants knew that assets were diverted from
or denied to Local 501.
354. As described above, Defendants knew that threats of physical and
economic harm directed at Plaintiffs and others were likely to deprive Local 501 of
democratically elected leadership. Despite this knowledge, Defendants persisted in
their conduct, resulting in the removal of democratically elected officers of Local
501 and the imposition of officers completely controlled by IUOE.
355. As described above, all Defendants cooperated with the unlawful
activities described herein or failed to warn appropriate persons and governmental
officials of the unlawful conduct used to divert assets and obtain total control of
Local 501.
356. 217. As a direct and proximate result of Defendants’ aiding and
abetting one another, the Plaintiffs and the Class members have been damaged in
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an amount to be proven at trial. Plaintiffs and the Class Members are also entitled
to recover punitive damages in an amount sufficient to punish Defendants and to
deter future conduct of this type.
EIGHTH CLAIM FOR RELIEF
VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE §
17200, ET SEA.
By Plaintiffs Against Defendants CVS CAREMARK CORPORATION,
TRIVANTAGE PHARMACY STRATEGIES, LLC, and TRUVEN HEALTH
ANALYTICS, INC.
357. Plaintiffs re-allege, and incorporate by reference, each and every
paragraph herein.
358. Defendants, and each of them, are “persons” as defined under Business
& Professions Code § 17201.
359. Defendants’ conduct, as alleged herein, has been, and continues to be,
unfair, unlawful, and harmful to Plaintiffs, other Class members, and to the general
public. Plaintiffs seeks to enforce important rights affecting the public interest
within the meaning of Code of Civil Procedure § 1021.5.
360. Defendants’ activities, as alleged herein, are violations of California
law, and constitute unlawful business acts and practices in violation of California
Business & Professions Code § 17200, et seq.
361. A violation of California Business & Professions Code § 17200, et seq.
may be predicated on the violation of any state or federal law. All of the acts
described herein as violations of, among other things, the California Labor Code,
are unlawful and in violation of public policy; and in addition are immoral,
unethical, oppressive, fraudulent and unscrupulous, and thereby constitute unfair,
unlawful and/or fraudulent business practices in violation of California Business
and Professions Code § 17200, et seq.
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362. Defendants Caremark, Truven and Trivantage engaged in false, unfair,
and misleading business practices, or received ill-gotten gains therefrom, as a result
of acts and omissions that include, but are not limited to:
(a) Failing to disclose that illegal bid rigging was used to secure the
Caremark PBM contract;
(b) Falsely asserting a unilateral right to change contractual billing
rates;
(c) Collecting payments from health & welfare funds for
unauthorized prescription charges; and,
(d) Collecting commissions derived from unlawful and
unauthorized charges.
363. By and through their unfair, unlawful and/or fraudulent business
practices described herein, the Defendants, have obtained valuable property, money
and services from Plaintiffs, and all persons similarly situated, and have deprived
Plaintiffs, and all persons similarly situated, of valuable rights and benefits
guaranteed by law, all to their detriment.
364. Plaintiffs and the other Class members suffered monetary injury as a
direct result of Defendants’ wrongful conduct.
365. The Plaintiffs, individually, and on behalf of members of the putative
Class, are entitled to, and do, seek such relief as may be necessary to disgorge
money and/or property which the Defendants have wrongfully acquired, or of
which Plaintiffs have been deprived, by means of the above-described unfair,
unlawful and/or fraudulent business practices. Plaintiffs, and the members of the
putative Class, are not obligated to establish individual knowledge of the wrongful
practices of Defendants in order to recover restitution.
366. The Plaintiffs, individually, and on behalf of members of the putative
class, are further entitled to and do seek a declaration that the above described
business practices are unfair, unlawful and/or fraudulent, and injunctive relief
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restraining the Defendants, and each of them, from engaging in any of the above-
described unfair, unlawful and/or fraudulent business practices in the future.
367. The Plaintiffs, individually, and on behalf of members of the putative
class, have no plain, speedy, and/or adequate remedy at law to redress the injuries
which they have suffered as a consequence of the Defendants’ unfair, unlawful
and/or fraudulent business practices. As a result of the unfair, unlawful and/or
fraudulent business practices described above, the Plaintiffs, individually, and on
behalf of members of the putative Class, have suffered and will continue to suffer
irreparable harm unless the Defendants, and each of them, are restrained from
continuing to engage in said unfair, unlawful and/or fraudulent business practices.
368. The Plaintiffs also allege that if Defendants are not enjoined from the
conduct set forth herein above, they will continue to avoid paying the appropriate
taxes, insurance and other withholdings.
369. Pursuant to California Business & Professions Code § 17200, et seq.,
Plaintiffs and putative Class members are entitled to restitution of the wages
withheld and retained by Defendants during a period that commences four years
prior to the filing of this complaint; a permanent injunction requiring Defendants to
pay all outstanding wages due to Plaintiffs and Class members; an award of
attorneys’ fees pursuant to California Code of Civil Procedure § 1021.5 and other
applicable laws; and an award of costs.
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PRAYER FOR RELIEF
Plaintiffs, individually, and on behalf of all others similarly situated, pray for
relief and judgment against Defendants, jointly and severally, as follows:
Class Certification
1. That this action be certified as a class action;
2. That Plaintiffs be appointed as the representative of the Class; and
3. That counsel for Plaintiffs be appointed as Class Counsel.
As to the First Claim for Relief
4. For compensatory and general damages, as shown according to proof;
5. For treble damages;
6. For the appointment of a Receiver to operate Defendant IUOE in a
lawful manner, to assure the cessation of its illegal acts and to assure the proper
handling of income and payments;
7. For an accounting;
8. For temporary and permanent injunctive relief;
9. For disgorgement of monies improperly obtained;
10. For prejudgment interest according to law;
11. For attorney's fees;
12. For costs of suit; and,
13. For such other and further relief as this Court may deem proper.
As to the Second Claim for Relief
14. For compensatory and general damages, as shown according to proof;
15. For treble damages;
Page 116 SECOND AMENDED CLASS ACTION COMPLAINT
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16. For the appointment of a Receiver to operate Defendant IUOE in a
lawful manner, to assure the cessation of its illegal acts and to assure the proper
handling of income and payments;
17. For an accounting;
18. For temporary and permanent injunctive relief;
19. For disgorgement of monies improperly obtained;
20. For prejudgment interest according to law;
21. For attorney's fees;
22. For costs of suit; and,
23. For such other and further relief as this Court may deem proper.
As to the Third Claim for Relief
24. For compensatory and general damages, as shown according to proof;
25. For treble damages;
26. For the appointment of a Receiver to operate Defendant IUOE in a
lawful manner, to assure the cessation of its illegal acts and to assure the proper
handling of income and payments;
27. For an accounting;
28. For temporary and permanent injunctive relief;
29. For disgorgement of monies improperly obtained;
30. For prejudgment interest according to law;
31. For attorney's fees;
32. For costs of suit; and,
33. For such other and further relief as this Court may deem proper.
As to the Fourth Claim for Relief
34. For compensatory and general damages, as shown according to proof;
35. For treble damages;
Page 117 SECOND AMENDED CLASS ACTION COMPLAINT
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36. For the appointment of a Receiver to operate Defendant IUOE in a
lawful manner, to assure the cessation of its illegal acts and to assure the proper
handling of income and payments;
37. For an accounting;
38. For temporary and permanent injunctive relief;
39. For disgorgement of monies improperly obtained;
40. For prejudgment interest according to law;
41. For attorney's fees;
42. For costs of suit; and,
43. For such other and further relief as this Court may deem proper.
As to the Fifth Claim for Relief
44. For compensatory and general damages, as shown according to proof;
45. For the appointment of a Receiver to operate Defendant IUOE in a
lawful manner, to assure the cessation of its illegal acts and to assure the proper
handling of income and payments;
46. For temporary and permanent injunctive relief;
47. For such other and further relief as this Court may deem proper.
As to the Sixth Claim for Relief
48. For temporary and permanent injunctive relief;
49. For declaratory relief;
50. For appropriate “make whole” equitable relief authorized pursuant to
ERISA;
51. For attorney’s fees and costs pursuant to ERISA;
52. For such other and further relief as this Court may deem proper.
Page 118 SECOND AMENDED CLASS ACTION COMPLAINT
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As to the Seventh Claim for Relief
53. For compensatory and general damages, as shown according to proof;
54. For exemplary damages;
55. For the appointment of a Receiver to operate Defendant IUOE in a
lawful manner, to assure the cessation of its illegal acts and to assure the proper
handling of income and payments;
56. For an accounting;
57. For temporary and permanent injunctive relief;
58. For disgorgement of monies improperly obtained;
59. For prejudgment interest according to law;
60. For attorney's fees;
61. For costs of suit; and,
62. For such other and further relief as this Court may deem proper.
As to the Eighth Claim for Relief
63. That the Court declare, adjudge and decree that Defendants violated
California Business and Professions Code §§ 17200, et seq. by failing to disclose
fraund and deceit, by falsely asserting unilateral contractual rights, by receiving
commissions derived from unlawful transactions, and by failing to reimburse Class
Members;
64. For restitution to Plaintiffs and all class members and prejudgment
interest from the day such amounts were due and payable;
65. For the appointment of a receiver to receive, manage and distribute any
and all funds disgorged from Defendants and determined to have been wrongfully
acquired by Defendants as a result of violations of California Business &
Professions Code §§ 17200 et seq.;
66. For reasonable attorneys’ fees and costs of suit incurred herein
pursuant to California Code of Civil Procedure § 1021.5;
Page 119 SECOND AMENDED CLASS ACTION COMPLAINT
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67. For injunctive relief to ensure compliance with this section, pursuant to
California Business & Professions Code § 17200, et seq.; and,
68. For such other and further relief as the Court may deem equitable and
appropriate.
Dated: March 29, 2013 Respectfully submitted, SPIRO MOORE LLP By:
H. Scott Leviant Attorneys for Plaintiffs
Page 120 SECOND AMENDED CLASS ACTION COMPLAINT
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H
DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury.
Dated: March 29, 2013 Respectfully submitted, SPIRO MOORE LLP By:
H. Scott Leviant Attorneys for Plaintiffs
EXHIBIT “1”
EXHIBIT “2”
EXHIBIT “3”
INTERNATIONAL OPERATING ENGINEER4
Ethics Officer deals with ‘anonymous’ complaints(When IUOE Ethics Officer James R.
Zazzali appeared before the General Ex-ecutive Board Feb. 10, 2009, the Board authorized him to formulate procedures to deal with the submission of anonymous submissions re ethics matters. Following is the complete text of Zazzali’s June 9, 2009 letter to the GEB outlining the problem and the course of action he is adopting to deal with the matter.)
RE: Code of Ethics – Anonymous Complaints
Gentlemen:
In my capacity as the Ethics Officer for the IUOE, I write to you to set forth the problems that we have encountered with anonymous complaints filed by some mem-bers with the Ethics Officer pursuant to the Code of Ethics.
By way of background, the General Pres-ident and the General Executive Board in-dicated, when it adopted the Code of Ethics last year, that it wished to assure members that they can file complaints and ask ques-tions under the Code with confidence in the integrity, independence, and confidentiality of the ethics process. Accordingly, although we prefer signed complaints, we also have ac-cepted anonymous complaints because there may be valid reasons why a member seeks to keep his name confidential.
However, in this first year of experience, we have discovered that problems occur when a member files a complaint anonymously. First, when a member makes allegations without signing the complaint, there is a sig-nificant risk of encouraging baseless claims, precisely because the person believes that he or she cannot be identified. Indeed, some in-ternational unions will not accept anonymous complaints. Second, and more important, an-onymity impedes both the investigation and the ultimate recommendation by the Ethics Officer because he is unable to speak with the complainant in order to obtain facts, reasons, proofs, and answers to questions. Anonym-ity thus works against the complainant’s ob-jectives because we are unable to gather the background and other data which might sup-
port that claim. We cannot turn to the origi-nal source - - the member - - to obtain more information. This is particularly troublesome when there is a credibility dispute - - when the invisible complainant makes a claim and the union officer denies that claim. The union officer is then forced to prove a negative. It is difficult to credit or discredit either party if we cannot speak with the complainant. In fact, and this is the irony, at the conclusion of the inquiry the Ethics Officer cannot even inform the complainant about the results of the investigation.
Another complication is that in some cases it is necessary to hire an investigator to assist in our review, particularly when the matter is complex. Because neither the in-vestigator nor the Ethics Officer is able to communicate with an anonymous complain-ant to obtain further facts and details, the investigator must perform additional work. Often the investigator and I will be perform-ing functions that the complainant should have performed. Although the expense may not be that significant in a particular case, in more complex investigations the costs could be quite substantial. That is unfair to other dues-paying members, not to mention the union officer.
We have to make a choice. We can de-cide that we will not accept anonymous com-plaints. Even though that is the practice with some unions, as noted, I would recommend against that approach. Rather, we should continue to accept anonymous complaints under certain circumstances and subject to the following conditions.
Effective immediately, as a general 1. rule, the member should sign the complaint and provide contact infor-mation.If the member does not wish to sign 2. the complaint, the member should say so, giving the reasons why he or she will not sign. However, when the member does not 3. sign, the complainant should identify some means or method whereby the Ethics Officer can communicate with the complainant. If the member de-
clines to state his name and address, he at least must identify a post office box, other address, telephone num-ber, and/or some third party such as an attorney or relative, with whom the Ethics Officer can communicate. In any event, the Ethics Officer re-4. tains the discretion to decide what to do with anonymous complaints on a case-by-case basis. The Ethics Officer has the right to accept or re-ject the complaint. If he accepts the anonymous complaint, he may give it limited weight.
I reiterate that we discourage anonymous complaints for the reasons discussed above, particularly the fact that anonymous com-plaints undercut the member’s claim because they limit our ability to conduct a proper in-quiry. However, subject to the above require-ments, we will accept anonymous complaints in particular circumstances.
Very truly yours,James R. Zazzali
Ethics OfficerContact infoThose wishing to con-tact IUOE Ethics Officer James R. Zazzali can do so at the following ad-dress and/or toll-free phone number:
James R. ZazzaliIUOE Ethics OfficerOne Riverfront PlazaBox No. 782Newark, NJ 07102866-380-3495
EXHIBIT “4”
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EXHIBIT “5”
EXHIBIT “6”
EXHIBIT “7”
EXHIBIT “8”
VINCENT J. GIBLIN GENERAi. f'JIESTDENT
CHRISTO[>HER HANLEY
CEl>~?.Al .iH:;!fi/~/l~c1711:.~.\1.JJ/£/I:
GENERAL VICI:: /•f/F.SJDJ:'Nn
WILLIAM: c. WAGGO:-IER
BRIAN E. HtCKEY
GARY KROEKER
JOHN M. HAMILTON
PATRICK L. SINK
JERRY KALMAR
RUSSELL E. BURNS
}AMES T. CALLAHAN
RODGER KAMINSKA
MARK HOLLIDAY
]AMES M. SWEE:-IEY
ROBERT T. HEENAN
Fl<ilSTf:.r::S
JOHN M. HOLLIDAY III CllrlfRM~iN
}OHNTAHERN
MICHAEL GALL~GHER
KUBAJ. BROWN
GLEN D. }OH:SSON
(,'J::Nl:~'/.tL~ er; U.7\'SEJ.
R.iCH/>.RD GRIFFIN
'.1!~";>14
Mr. Robert H. Fox 506 S. Roosevelt Ave. Fullerton, CA 92832
Dear Sir and Brother:
7148711166 p.1
November 19, 2009
In the very near future, I will be announcing to the members of Local 501 a number of recommendations that the local will have to undertake in how it conducts business. The local also is being placed under monitorship by the International for a minimum of six months to ensure the recommendations are implemented. These moves are a result of the audit and investigation of the local that was undertaken following receipt of numerous complaints from Local 501 members.
As part of the moni1orship, I am instructing the local to conduct its Executive Board meetings in executive session. The board will call into its meetings any member, agent, employee, consultant or professional that adds to its deliberations. Meeting in executive session will allow the board to maximize its attention and energy on the road ahead and not the road already traveled. All deliberations of the executive board wm be reported at the next regular membership meetings.
This executive session requirement by definition excludes from participation all non-board members, including retired officers, agents and others Who have previously served the local union. Thank you for your attention in this matter.
Fraternally,
~ ·~·~ ~J Giblin /Gener resident
VJG/nwp C: Christopher Brown, Business Manager, IUOE Local 501
1125 SEVrnHENTH STREET, NW• WASHINGTON, DC 20036·4707 • 202•429·9100 • WWW.IUOE.ORG
EXHIBIT “9”
EXHIBIT “10”
DRA:BMR:JLF#2002R00891DEROSS.SUP3.IND
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - - X
S U P E R S E D I N GUNITED STATES OF AMERICA I N D I C T M E N T
- against - Cr. No. 03-191 (S-6) (SJ) (T. 18, U.S.C., §§ 371, 1341,
THOMAS P. MCGUIRE, 1962(c), 1962(d), 1963, 2,also known as “Thomas Maguire,” 981(a)(1)(C) and 3551 et
THOMAS G. MCNAMARA, seq.; T. 21, U.S.C., § 853;also known as “Tommy Mac,” T. 26, U.S.C., § 7206(1);
DANIEL J. MURPHY and T. 28, U.S.C., § 2461(c); ANTHONY QUARANTA, T. 29, U.S.C., §§ 186(a)(1),
186(b)(1) and 186(d)(2))Defendants.
- - - - - - - - - - - - - - - - X
THE GRAND JURY CHARGES:
At all times relevant to this superseding indictment,
unless otherwise indicated:
The International Union of Operating Engineers
1. The International Union of Operating Engineers
(the “Union”), with headquarters in Washington, D.C., had
approximately 400,000 members in 170 local unions throughout the
United States and Canada. The Union, which was affiliated with
the AFL-CIO, represented, among others, operating engineers who
worked as heavy equipment operators, mechanics and surveyors in
the construction industry.
2. Local Union 14-14B of the Union (“Local 14") and
Locals 15, 15A, 15B, 15C, 15D of the Union (“Local 15") were
constituent locals of the Union. Local 14 and Local 15
2
represented operating engineers in Manhattan, Bronx, Brooklyn,
Queens and Staten Island, New York, who performed work at various
construction sites in the New York City area (“Job Sites”).
3. Locals 14 and 15 each had benefit trust funds for
its members. The Local 14 funds included the Operating Engineers
Local 14 and 14B Annuity Fund, the Operating Engineers Local 14
and 14B Pension Fund and the Operating Engineers Local 14 and 14B
Welfare Fund (the “Local 14 Plans”). The Local 15 funds included
the Annuity Fund of the International Union of Operating
Engineers, Local Unions 15, 15A, 15B, 15C, 15D, AFL-CIO; the
Pension Fund of the International Union of Operating Engineers,
Local Unions 15, 15A, 15B, 15C, 15D, AFL-CIO; the Welfare Fund of
the International Union of Operating Engineers, Local Unions 15,
15A, 15B, 15C, 15D, AFL-CIO; and the Vacation Fund of the
International Union of Operating Engineers, Local Unions 15, 15A,
15B, 15C, 15D, AFL-CIO (the “Vacation Fund of Local 15")
(collectively, the “Local 15 Plans”).
Local 15
4. Local 15 members elected certain officers,
including a Business Manager. Local 15 members were also
represented by Business Agents, who were appointed by the
Business Manager. Each Business Agent had responsibility for
overseeing Local 15's business in separate geographic areas of
greater New York City. Among other duties, the Business Agents
ensured contractors’ compliance with collective bargaining
3
agreements. Local 15 employed and paid a salary to each person
employed as a Business Manager or Business Agent.
5. Local 15 designated “Maintenance Foremen” to
oversee certain Job Sites as they affected Local 15 members. In
that capacity, Maintenance Foremen acted as representatives of
Local 15's members.
The Local 15 Enterprise
6. Local 15 constituted an “enterprise” as defined by
Title 18, United States Code, Section 1961(4) (the “Local 15
Enterprise”). The Local 15 Enterprise operated in the Eastern
District of New York and elsewhere.
The Defendants
7. At various times relevant to this superseding
indictment, the defendant THOMAS P. MCGUIRE, also known as
“Thomas Maguire,” was the Business Manager of Local 15. In that
capacity, he acted as a representative of Local 15's members.
8. At various times relevant to this superseding
indictment, the defendants THOMAS G. MCNAMARA, also known as
“Tommy Mac,” and DANIEL J. MURPHY were Business Agents, or
“delegates,” of Local 15. In that capacity, MCNAMARA and MURPHY
acted as representatives of Local 15's members.
9. At various times relevant to this superseding
indictment, the defendant ANTHONY QUARANTA was a member of Local
15. At certain Job Sites, QUARANTA was a Maintenance Foreman.
In that capacity, he acted as a representative of Local 15's
4
members.
10. The defendants participated in the operation and
management of the Local 15 Enterprise in order to, among other
things, make money illicitly through the commission of crimes,
including unlawful labor payments and mail fraud.
COUNT ONE(Racketeering)
11. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
12. In or about and between December 1989 and November
2002, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendants THOMAS
P. MCGUIRE, also known as “Thomas Maguire,” THOMAS G. MCNAMARA,
also known as “Tommy Mac,” and DANIEL J. MURPHY, together with
others, being persons employed by and associated with the Local
15 Enterprise, an enterprise that engaged in, and the activities
of which affected, interstate commerce, knowingly and
intentionally conducted and participated, directly and
indirectly, in the conduct of the affairs of that enterprise
through a pattern of racketeering activity, as defined in Title
18, United States Code, Sections 1961(1) and 1961(5), consisting
of the racketeering acts set forth below.
5
RACKETEERING ACT ONE(Mail Fraud – Local 15 Jobs)
13. The defendant named below committed the following
acts, any one of which alone constitutes racketeering act one.
14. In or about and between November 1998 and November
2002, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendant DANIEL
J. MURPHY, together with others, knowingly and intentionally
devised a scheme and artifice to defraud contractors, real estate
holders and developers, and to obtain money and property, to wit:
money paid as wages and contributions to benefit plans, from them
by means of materially false and fraudulent pretenses,
representations and promises.
15. It was part of the scheme and artifice that the
defendant DANIEL J. MURPHY, together with others, would and did
submit and cause to be submitted false information regarding
hours worked to contractors, claiming that certain hours had been
worked by a member of Local 15 who had, in fact, not worked those
hours, in order fraudulently to obtain wages and contributions to
the Local 15 Plans in the name of that member.
16. For the purpose of executing the scheme and
artifice, the defendant DANIEL J. MURPHY, together with others,
did place and caused to be placed in authorized depositories for
mail matter to be delivered by the United States Postal Service
the following items of mail matter, among others, in violation of
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Title 18, United States Code, Sections 1341 and 2:
RacketeeringAct
Approximate Date of Mailing
Description Sender
1A May 13, 1999 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
1B August 5, 1999 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
1C December 30, 1999 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
1D April 28, 2000 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
1E September 14, 2000 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
1F January 11, 2001 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
1G July 6, 2001 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
1H December 21, 2001 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
1I April 25, 2002 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
1J August 7, 2002 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
RACKETEERING ACT TWO(Oceana Condos Job Site)
17. The defendant named below committed the following
acts, either one of which alone constitutes racketeering act two.
A. Unlawful Labor Payments
18. In or about and between April 2000 and November
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant THOMAS G. MCNAMARA,
together with others, knowingly and willfully requested,
demanded, received and accepted and agreed to receive and accept
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payments and deliveries of money and other things of value in an
amount in excess of $1,000 to representatives of employees who
were members of Local 14 and Local 15 and were then employed in
an industry affecting commerce, from employers at the Oceana
Condos Job Site and from persons who acted in the interest of
said employers of the employees, in violation of Title 29, United
States Code, Sections 186(a)(1), 186(b)(1) and 186(d)(2) and
Title 18, United States Code, Section 2.
B. Mail Fraud
19. In or about and between April 2000 and November
2001, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendant THOMAS
G. MCNAMARA, together with others, knowingly and intentionally
devised a scheme and artifice to defraud contractors, real estate
holders and developers, and to obtain money and property, to wit:
money paid as wages and contributions to benefit plans, from them
by means of materially false and fraudulent pretenses,
representations and promises.
20. It was part of the scheme and artifice that the
defendant THOMAS G. MCNAMARA, together with others, would and did
submit and cause to be submitted false information regarding
hours worked to a contractor, to wit: Muss Development, Inc., in
connection with the Oceana Condos Job Site, claiming that certain
hours had been worked by certain Local 14 and Local 15 members
who had, in fact, not worked those hours, in order fraudulently
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to obtain wages and contributions to the Local 14 Plans and the
Local 15 Plans in the names of those members.
21. For the purpose of executing the scheme and
artifice, the defendant THOMAS G. MCNAMARA, together with others,
did place and caused to be placed in authorized depositories for
mail matter to be delivered by the United States Postal Service
an item of mail matter, to wit: a vacation check for a
coconspirator from the Vacation Fund of Local 15, mailed on or
about November 21, 2001, in violation of Title 18, United States
Code, Sections 1341 and 2.
RACKETEERING ACT THREE(Brooklyn General Post Office Job Site)
22. The defendant named below committed the following
acts, either one of which alone constitutes racketeering act
three.
A. Unlawful Labor Payments
23. In or about and between July 2000 and August 2002,
both dates being approximate and inclusive, within the Eastern
District of New York, the defendant THOMAS G. MCNAMARA, together
with others, knowingly and willfully requested, demanded,
received and accepted and agreed to receive and accept payments
and deliveries of money and other things of value in an amount in
excess of $1,000 to representatives of employees who were members
of Local 14 and Local 15 and were then employed in an industry
affecting commerce, from employers at the Brooklyn General Post
9
Office Job Site and from persons who acted in the interest of
said employers of the employees, in violation of Title 29, United
States Code, Sections 186(a)(1), 186(b)(1) and 186(d)(2) and
Title 18, United States Code, Section 2.
B. Mail Fraud
24. In or about and between July 2000 and August 2002,
both dates being approximate and inclusive, within the Eastern
District of New York, the defendant THOMAS G. MCNAMARA, together
with others, knowingly and intentionally devised a scheme and
artifice to defraud contractors, real estate holders and
developers, and to obtain money and property, to wit: money paid
as wages and contributions to benefit plans, from them by means
of materially false and fraudulent pretenses, representations and
promises.
25. It was part of the scheme and artifice that the
defendant THOMAS G. MCNAMARA, together with others, would and did
submit and cause to be submitted false information regarding
hours worked to a contractor, to wit: J.A. Jones GMO LLC, in
connection with the Brooklyn General Post Office Job Site,
claiming that certain hours had been worked by certain Local 14
and Local 15 members who had, in fact, not worked those hours, in
order fraudulently to obtain wages and contributions to the Local
14 Plans and the Local 15 Plans in the names of those members.
26. For the purpose of executing the scheme and
artifice, the defendant THOMAS G. MCNAMARA, together with others,
10
did place and caused to be placed in authorized depositories for
mail matter to be delivered by the United States Postal Service
the following items of mail matter, among others, in violation of
Title 18, United States Code, Sections 1341 and 2:
RacketeeringAct
Approximate Date ofMailing
Description Sender
3B-1 December 12, 2001 Coconspirator’sVacation Check
Vacation Fundof Local 15
3B-2 April 3, 2002 Coconspirator’sVacation Check
Vacation Fundof Local 15
RACKETEERING ACT FOUR(Staten Island Yankee Stadium Job Site)
27. The defendant named below committed the following
acts, either one of which alone constitutes racketeering act
four.
A. Unlawful Labor Payments
28. In or about and between March 2000 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendant THOMAS
G. MCNAMARA, together with others, knowingly and willfully
requested, demanded, received and accepted and agreed to receive
and accept payments and deliveries of money and other things of
value in an amount in excess of $1,000 to representatives of
employees who were members of Local 14 and Local 15 and were then
employed in an industry affecting commerce, from employers at the
Staten Island Yankee Stadium Job Site and from persons who acted
in the interest of said employers of the employees, in violation
11
of Title 29, United States Code, Sections 186(a)(1), 186(b)(1)
and 186(d)(2) and Title 18, United States Code, Section 2.
B. Mail Fraud
29. In or about and between March 2000 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendant THOMAS
G. MCNAMARA, together with others, knowingly and intentionally
devised a scheme and artifice to defraud contractors, real estate
holders and developers, and to obtain money and property, to wit:
money paid as wages and contributions to benefit plans, from them
by means of materially false and fraudulent pretenses,
representations and promises.
30. It was part of the scheme and artifice that the
defendant THOMAS G. MCNAMARA, together with others, would and did
submit and cause to be submitted false information regarding
hours worked to contractors, to wit: Interstate Industrial and
D. Gangi Contracting Corporation, in connection with the Staten
Island Yankee Stadium Job Site, claiming that certain hours had
been worked by certain Local 14 and Local 15 members who had, in
fact, not worked those hours, in order fraudulently to obtain
wages and contributions to the Local 14 Plans and the Local 15
Plans in the names of those members.
31. For the purpose of executing the scheme and
artifice, the defendant THOMAS G. MCNAMARA, together with others,
did place and caused to be placed in authorized depositories for
12
mail matter to be delivered by the United States Postal Service
the following items of mail matter, among others, in violation of
Title 18, United States Code, Sections 1341 and 2:
RacketeeringAct
Approximate Date of Mailing
Description Sender
4B-1 December 27, 2000 Coconspirator’sVacation Check
Vacation Fund of Local 15
4B-2 January 10, 2001 Coconspirator’sVacation Check
Vacation Fund of Local 15
4B-3 April 10, 2001 Coconspirator’sVacation Check
Vacation Fundof Local 15
4B-4 August 7, 2001 Coconspirator’sVacation Check
Vacation Fund of Local 15
RACKETEERING ACT FIVE(P.S. 58 Staten Island Job Site)
32. The defendant named below committed the following
acts, either one of which alone constitutes racketeering act
five.
A. Unlawful Labor Payments
33. On or about and between December 4, 2000 and April
3, 2002, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant THOMAS G. MCNAMARA,
together with others, knowingly and willfully requested,
demanded, received and accepted and agreed to receive and accept
payments and deliveries of money and other things of value in an
amount in excess of $1,000 to representatives of employees who
were members of Local 14 and Local 15 and were then employed in
an industry affecting commerce, from employers at the P.S. 58
13
Staten Island Job Site and from persons who acted in the interest
of said employers of the employees, in violation of Title 29,
United States Code, Sections 186(a)(1), 186(b)(1) and 186(d)(2)
and Title 18, United States Code, Section 2.
B. Mail Fraud
34. On or about and between December 4, 2000 and April
3, 2002, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendant THOMAS
G. MCNAMARA, together with others, knowingly and intentionally
devised a scheme and artifice to defraud contractors, real estate
holders and developers, and to obtain money and property, to wit:
money paid as wages and contributions to benefit plans, from them
by means of materially false and fraudulent pretenses,
representations and promises.
35. It was part of the scheme and artifice that the
defendant THOMAS G. MCNAMARA, together with others, would and did
submit and cause to be submitted false information regarding
hours worked to contractors, to wit: New York Concrete Corp. and
DeMatteis Construction Corp., in connection with the P.S. 58
Staten Island Job Site, claiming that certain hours had been
worked by certain Local 14 and Local 15 members who had, in fact,
not worked those hours, in order fraudulently to obtain wages and
contributions to the Local 14 Plans and Local 15 Plans in the
names of those members.
36. For the purpose of executing the scheme and
14
artifice, the defendant THOMAS G. MCNAMARA, together with others,
did place and caused to be placed in authorized depositories for
mail matter to be delivered by the United States Postal Service
the following items of mail matter, among others, in violation of
Title 18, United States Code, Sections 1341 and 2:
RacketeeringAct
Approx. Date of Mailing
Description Sender
5B-1 January 31, 2001 Daily Sign Out LogMail Certification
DeMatteis Constr.Corp.
5B-2 March 1, 2001 Daily Sign Out LogMail Certification
DeMatteis Constr.Corp.
5B-3 April 10, 2001 Coconspirator’sVacation Check
Vacation Fund of Local 15
5B-4 April 19, 2001 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
5B-5 May 29, 2001 Daily Sign Out LogMail Certification
DeMatteis Constr.Corp.
5B-6 July 11, 2001 Daily Sign Out LogMail Certification
DeMatteis Constr.Corp.
5B-7 July 16, 2001 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
5B-8 December 12, 2001 Coconspirator’sVacation Check
Vacation Fund of Local 15
5B-9 April 3, 2002 Coconspirator’sVacation Check
Vacation Fund of Local 15
RACKETEERING ACT SIX(Unlawful Labor Payments: Company 1)
37. The defendant named below committed the following
acts, either one of which alone constitutes racketeering act six.
15
A. Unlawful Labor Payments
38. In or about and between Spring 2001 and November
2002, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant DANIEL J. MURPHY,
being a representative of employees, who were members of Local 15
and were then employed in an industry affecting commerce,
knowingly and willfully requested, demanded, received and
accepted and agreed to receive and accept payments and deliveries
of money and other things of value in excess of $1,000 from an
employer, to wit: Company 1, the identity of which is known to
the grand jury, and from a person who acted in the interest of
said employer of the employees, in violation of Title 29, United
States Code, Sections 186(a)(1), 186(b)(1) and 186(d)(2) and
Title 18, United States Code, Section 2.
B. Receipt of Labor Bribes
39. In or about and between Spring 2001 and November
2002, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant DANIEL J. MURPHY,
being a labor official, knowingly and intentionally accepted
benefits from another person upon an agreement and understanding
that such benefits would influence him in respect to his acts,
decisions and duties as a labor official, in violation of New
York Penal Law Section 180.25.
16
RACKETEERING ACT SEVEN(Unlawful Labor Payments: E.G. Clemente Contracting Corp.)
40. The defendants named below committed the following
acts, either one of which alone constitutes racketeering act
seven.
A. Unlawful Labor Payments
41. In or about and between December 1989 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendants THOMAS P. MCGUIRE,
THOMAS G. MCNAMARA and DANIEL J. MURPHY, being representatives of
employees, who were members of Local 15 and were then employed in
an industry affecting commerce, knowingly and willfully
requested, demanded, received and accepted and agreed to receive
and accept payments and deliveries of money and other things of
value in excess of $1,000 from an employer, to wit: E.G.
Clemente Contracting Corp., and from a person who acted in the
interest of said employer of the employees, in violation of Title
29, United States Code, Sections 186(a)(1), 186(b)(1) and
186(d)(2) and Title 18, United States Code, Section 2.
B. Receipt of Labor Bribes
42. In or about and between December 1989 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendants THOMAS P. MCGUIRE,
THOMAS G. MCNAMARA and DANIEL J. MURPHY, being labor officials,
knowingly and intentionally accepted benefits from another person
17
upon an agreement and understanding that such benefits would
influence them in respect to their acts, decisions and duties as
labor officials, in violation of New York Penal Law Section
180.25.
RACKETEERING ACT EIGHT(Unlawful Labor Payments: Company 2)
43. The defendants named below committed the following
acts, either one of which alone constitutes racketeering act
eight.
A. Unlawful Labor Payments
44. In or about and between June 1993 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendants THOMAS P. MCGUIRE,
THOMAS G. MCNAMARA and DANIEL J. MURPHY, being representatives of
employees, who were members of Local 15 and were then employed in
an industry affecting commerce, knowingly and willfully
requested, demanded, received and accepted and agreed to receive
and accept payments and deliveries of money and other things of
value in excess of $1,000 from an employer, to wit: Company 2,
the identity of which is known to the grand jury, and from a
person who acted in the interest of said employer of the
employees, in violation of Title 29, United States Code, Sections
186(a)(1), 186(b)(1) and 186(d)(2) and Title 18, United States
Code, Section 2.
18
B. Receipt of Labor Bribes
45. In or about and between June 1993 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendants THOMAS P. MCGUIRE,
THOMAS G. MCNAMARA and DANIEL J. MURPHY, being labor officials,
knowingly and intentionally accepted benefits from another person
upon an agreement and understanding that such benefits would
influence them in respect to their acts, decisions and duties as
labor officials, in violation of New York Penal Law Section
180.25.
RACKETEERING ACT NINE(Unlawful Labor Payments: Company 3)
46. The defendant named below committed the following
acts, either one of which alone constitutes racketeering act
nine.
A. Unlawful Labor Payments
47. In or about and between December 1992 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant THOMAS G. MCNAMARA,
being a representative of employees, who were members of Local 15
and were then employed in an industry affecting commerce,
knowingly and willfully requested, demanded, received and
accepted and agreed to receive and accept payments and deliveries
of money and other things of value in excess of $1,000 from an
employer, to wit: Company 3, the identity of which is known to
19
the grand jury, and from a person who acted in the interest of
said employer of the employees, in violation of Title 29, United
States Code, Sections 186(a)(1), 186(b)(1) and 186(d)(2) and
Title 18, United States Code, Section 2.
B. Receipt of Labor Bribes
48. In or about and between December 1992 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant THOMAS G. MCNAMARA,
being a labor official, knowingly and intentionally accepted
benefits from another person upon an agreement and understanding
that such benefits would influence him in respect to his acts,
decisions and duties as a labor official, in violation of New
York Penal Law Section 180.25.
(Title 18, United States Code, Sections 1962(c), 1963
and 3551 et seq.)
COUNT TWO(Racketeering Conspiracy)
49. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
50. In or about and between December 1989 and November
2002, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendants THOMAS
P. MCGUIRE, also known as “Thomas Maguire,” THOMAS G. MCNAMARA
and DANIEL J. MURPHY, together with others, being persons
20
employed by and associated with the Local 15 Enterprise, an
enterprise that engaged in, and the activities of which affected,
interstate commerce, knowingly and intentionally conspired to
violate Title 18, United States Code, Section 1962(c), that is,
to conduct and participate, directly and indirectly, in the
conduct of the affairs of that enterprise through a pattern of
racketeering activity, as defined in Title 18, United States
Code, Sections 1961(1) and 1961(5).
51. The pattern of racketeering activity through which
the above-named defendants agreed to conduct the affairs of the
enterprise consisted of acts set forth in paragraphs 13 through
48 of Count One, as Racketeering Acts 1 through 9, which are
realleged and incorporated as if fully set forth in this
paragraph. Each defendant agreed that a conspirator would commit
at least two of these racketeering acts in the conduct of the
affairs of the enterprise.
(Title 18, United States Code, Sections 1962(d), 1963
and 3551 et seq.)
COUNT THREE(Mail Fraud Conspiracy – Local 15 Jobs)
52. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
53. In or about and between November 1998 and November
2002, both dates being approximate and inclusive, within the
21
Eastern District of New York and elsewhere, the defendant DANIEL
J. MURPHY, together with others, knowingly and intentionally
conspired to devise a scheme and artifice to defraud contractors,
real estate holders and developers, and to obtain money and
property, to wit: money paid as wages and contributions to
benefit plans, from them by means of materially false and
fraudulent pretenses, representations and promises, and, for the
purpose of executing such scheme and artifice, to cause mail
matter to be delivered by the United States Postal Service, in
violation of Title 18, United States Code, Section 1341.
54. It was part of the conspiracy that the defendant
DANIEL J. MURPHY, together with others, would and did submit and
cause to be submitted false information regarding hours worked to
contractors, claiming that certain hours had been worked by a
member of Local 15 who had, in fact, not worked those hours, in
order fraudulently to obtain wages and contributions to the Local
15 Plans in the name of that member.
55. In furtherance of the conspiracy and to effect the
objectives thereof, within the Eastern District of New York and
elsewhere, the defendant DANIEL J. MURPHY, together with others,
committed and caused to be committed, among others, the
following:OVERT ACTS
a. On or about May 13, 1999, the Vacation Fund of
Local 15 in New York, New York mailed a vacation check to a Local
22
15 member.
b. On or about August 5, 1999, the Vacation Fund
of Local 15 in New York, New York mailed a vacation check to a
Local 15 member.
c. On or about December 30, 1999, the Vacation
Fund of Local 15 in New York, New York mailed a vacation check to
a Local 15 member.
d. On or about April 28, 2000, the Vacation Fund
of Local 15 in New York, New York mailed a vacation check to a
Local 15 member.
e. On or about September 14, 2000, the Vacation
Fund of Local 15 in New York, New York mailed a vacation check to
a Local 15 member.
f. On or about January 11, 2001, the Vacation
Fund of Local 15 in New York, New York mailed a vacation check to
a Local 15 member.
g. On or about July 6, 2001, the Vacation Fund of
Local 15 in New York, New York mailed a vacation check to a Local
15 member.
h. On or about July 12, 2001, the defendant DANIEL
J. MURPHY caused a facsimile containing information about a Local
15 member to be sent from the Union office in Flushing, New York.
i. On or about December 21, 2001, the Vacation
Fund of Local 15 in New York, New York mailed a vacation check to
a Local 15 member.
23
j. On or about April 25, 2002, the Vacation Fund
of Local 15 in New York, New York mailed a vacation check to a
Local 15 member.
k. On or about August 7, 2002, the Vacation Fund
of Local 15 in New York, New York mailed a vacation check to a
Local 15 member.
(Title 18, United States Code, Sections 371 and 3551 et
seq.)
COUNTS FOUR THROUGH THIRTEEN(Mail Fraud: Local 15 Member)
56. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
57. In or about and between November 1998 and November
2002, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendant DANIEL
J. MURPHY, together with others, knowingly and intentionally
devised a scheme and artifice to defraud contractors, real estate
holders and developers, and to obtain money and property, to wit:
money paid as wages and contributions to benefit plans, from them
by means of materially false and fraudulent pretenses,
representations and promises.
58. It was part of the scheme and artifice that the
defendant DANIEL J. MURPHY, together with others, would and did
submit and cause to be submitted false information regarding
24
hours worked to contractors, claiming that certain hours had been
worked by a member of Local 15 who had, in fact, not worked those
hours, in order fraudulently to obtain wages and contributions to
the Local 15 Plans in the name of that member.
59. For the purpose of executing the scheme and
artifice, the defendant DANIEL J. MURPHY, together with others,
did place and caused to be placed in authorized depositories for
mail matter to be delivered by the United States Postal Service
the following items of mail matter:
Count Approximate Dateof Mailing
Description Sender
4 May 13, 1999 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
5 August 5, 1999 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
6 December 30, 1999 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
7 April 28, 2000 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
8 September 14, 2000 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
9 January 11, 2001 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
10 July 6, 2001 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
11 December 21, 2001 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
12 April 25, 2002 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
13 August 7, 2002 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
(Title 18, United States Code, Sections 1341, 2 and
3551 et seq.)
25
COUNT FOURTEEN(Unlawful Labor Payments: Oceana Condos Job Site)
60. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
61. In or about and between April 2000 and November
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant THOMAS G. MCNAMARA,
also known as “Tommy Mac,” together with others, knowingly and
willfully requested, demanded, received and accepted and agreed
to receive and accept payments and deliveries of money and other
things of value in an amount in excess of $1,000 to
representatives of employees who were members of Local 14 and
Local 15 and were then employed in an industry affecting
commerce, from employers at the Oceana Condos Job Site and from
persons who acted in the interest of said employers of the
employees.
(Title 29, United States Code, Sections 186(a)(1),
186(b)(1) and 186(d)(2); Title 18, United States Code, Sections 2
and 3551 et seq.)
COUNT FIFTEEN(Mail Fraud: Oceana Condos Job Site)
62. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
26
63. In or about and between April 2000 and November
2001, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendant THOMAS
G. MCNAMARA, also known as “Tommy Mac,” together with others,
knowingly and intentionally devised a scheme and artifice to
defraud contractors, real estate holders and developers, and to
obtain money and property, to wit: money paid as wages and
contributions to benefit plans, from them by means of materially
false and fraudulent pretenses, representations and promises.
64. It was part of the scheme and artifice that the
defendant THOMAS G. MCNAMARA, also known as “Tommy Mac,” together
with others, would and did submit and cause to be submitted false
information regarding hours worked to contractors, to wit: Muss
Development, Inc., in connection with the Oceana Condos Job Site,
claiming that certain hours had been worked by certain Local 14
and Local 15 members who had, in fact, not worked those hours, in
order fraudulently to obtain wages and contributions to the Local
14 Plans and the Local 15 Plans in the names of those members.
65. For the purpose of executing the scheme and
artifice, the defendant THOMAS G. MCNAMARA, also known as “Tommy
Mac,” together with others, did place and caused to be placed in
authorized depositories for mail matter to be delivered by the
United States Postal Service an item of mail matter, to wit: a
coconspirator’s vacation check from the Vacation Fund of Local
15, on or about November 21, 2001.
27
(Title 18, United States Code, Sections 1341, 2 and
3551 et seq.)
COUNT SIXTEEN(Unlawful Labor Payments: Brooklyn General Post Office Job Site)
66. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
67. In or about and between July 2000 and August 2002,
both dates being approximate and inclusive, within the Eastern
District of New York, the defendant THOMAS G. MCNAMARA, also
known as “Tommy Mac,” together with others, knowingly and
willfully requested, demanded, received and accepted and agreed
to receive and accept payments and deliveries of money and other
things of value in an amount in excess of $1,000 to
representatives of employees who were members of Local 14 and
Local 15 and were then employed in an industry affecting
commerce, from employers at the Brooklyn General Post Office Job
Site and from persons who acted in the interest of said employers
of the employees.
(Title 29, United States Code, Sections 186(a)(1),
186(b)(1) and 186(d)(2); Title 18, United States Code, Sections 2
and 3551 et seq.)
COUNTS SEVENTEEN AND EIGHTEEN(Mail Fraud: Brooklyn General Post Office Job Site)
68. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
28
paragraph.
69. In or about and between July 2000 and August 2002,
both dates being approximate and inclusive, within the Eastern
District of New York, the defendant THOMAS G. MCNAMARA, also
known as “Tommy Mac,” together with others, knowingly and
intentionally devised a scheme and artifice to defraud
contractors, real estate holders and developers, and to obtain
money and property, to wit: money paid as wages and
contributions to benefit plans, from them by means of materially
false and fraudulent pretenses, representations and promises.
70. It was part of the scheme and artifice that the
defendant THOMAS G. MCNAMARA, also known as “Tommy Mac,” together
with others, would and did submit and cause to be submitted false
information regarding hours worked to a contractor, to wit: J.A.
Jones GMO LLC, in connection with the Brooklyn General Post
Office Job Site, claiming that certain hours had been worked by
certain Local 14 and Local 15 members who had, in fact, not
worked those hours, in order fraudulently to obtain wages and
contributions to the Local 14 Plans and the Local 15 Plans in the
names of those members.
71. For the purpose of executing the scheme and
artifice, the defendant THOMAS G. MCNAMARA, also known as “Tommy
Mac,” together with others, did place and caused to be placed in
authorized depositories for mail matter to be delivered by the
United States Postal Service the following items of mail matter,
29
among others, in violation of Title 18, United States Code,
Sections 1341 and 2:
Count Approximate Date ofMailing
Description Sender
17 December 12, 2001 Coconspirator’sVacation Check
Vacation Fund of Local 15
18 April 3, 2002 Coconspirator’s Vacation Check
Vacation Fund of Local 15
(Title 18, United States Code, Sections 1341, 2 and
3551 et seq.)
COUNT NINETEEN(Unlawful Labor Payments: Staten Island Yankee Stadium Job Site)
72. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
73. In or about and between March 2000 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendant THOMAS
G. MCNAMARA, also known as “Tommy Mac,” together with others,
knowingly and willfully requested, demanded, received and
accepted and agreed to receive and accept payments and deliveries
of money and other things of value in an amount in excess of
$1,000 to representatives of employees who were members of Local
14 and Local 15 and were then employed in an industry affecting
commerce, from employers at the Staten Island Yankee Stadium Job
Site and from persons who acted in the interest of said employers
of the employees.
30
(Title 29, United States Code, Sections 186(a)(1),
186(b)(1) and 186(d)(2); Title 18, United States Code, Sections 2
and 3551 et seq.)
COUNTS TWENTY THROUGH TWENTY-THREE(Mail Fraud: Staten Island Yankee Stadium Job Site)
74. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
75. In or about and between March 2000 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant THOMAS G. MCNAMARA,
also known as “Tommy Mac,” together with others, knowingly and
intentionally devised a scheme and artifice to defraud
contractors, real estate holders and developers, and to obtain
money and property, to wit: money paid as wages and
contributions to benefit plans, from them by means of materially
false and fraudulent pretenses, representations and promises.
76. It was part of the scheme and artifice that the
defendant THOMAS G. MCNAMARA, also known as “Tommy Mac,” together
with others, would and did submit and cause to be submitted false
information regarding hours worked to contractors, to wit:
Interstate Industrial and D. Gangi Contracting Corporation, in
connection with the Staten Island Yankee Stadium Job Site,
claiming that certain hours had been worked by certain Local 14
and Local 15 members who had, in fact, not worked those hours, in
order fraudulently to obtain wages and contributions to the Local
31
14 Plans and the Local 15 Plans in the names of those members.
77. For the purpose of executing the scheme and
artifice, the defendant THOMAS G. MCNAMARA, also known as “Tommy
Mac,” together with others, did place and caused to be placed in
authorized depositories for mail matter to be delivered by the
United States Postal Service the following items of mail matter,
among others:
Count Approximate Date of Mailing
Description Sender
20 December 27, 2000 Coconspirator’sVacation Check
Vacation Fund of Local 15
21 January 10, 2001 Coconspirator’sVacation Check
Vacation Fund of Local 15
22 April 10, 2001 Coconspirator’sVacation Check
Vacation Fundof Local 15
23 August 7, 2001 Coconspirator’sVacation Check
Vacation Fund of Local 15
(Title 18, United States Code, Sections 1341, 2 and
3551 et seq.)
COUNT TWENTY-FOUR(Unlawful Labor Payments: Coney Island Mets Stadium Job Site)
78. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
79. On or about and between August 1, 2000 and March
9, 2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant ANTHONY QUARANTA,
together with others, knowingly and willfully requested,
32
demanded, received and accepted and agreed to receive and accept
payments and deliveries of money and other things of value in an
amount in excess of $1,000 to representatives of employees who
were members of Local 14 and Local 15 and were then employed in
an industry affecting commerce, from employers at the Coney
Island Mets Stadium Job Site and from persons who acted in the
interest of said employers of the employees.
(Title 29, United States Code, Sections 186(a)(1),
186(b)(1) and 186(d)(2); Title 18, United States Code, Sections 2
and 3551 et seq.)
COUNT TWENTY-FIVE(Mail Fraud: Coney Island Mets Stadium Job Site)
80. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
81. On or about and between August 1, 2000 and March
9, 2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant ANTHONY QUARANTA,
together with others, knowingly and intentionally devised a
scheme and artifice to defraud contractors, real estate holders
and developers, and to obtain money and property, to wit: money
paid as wages and contributions to benefit plans, from them by
means of materially false and fraudulent pretenses,
representations and promises.
33
82. It was part of the scheme and artifice that the
defendant ANTHONY QUARANTA, together with others, would and did
submit and cause to be submitted false information regarding
hours worked to a contractor, to wit: Turner Construction Co.,
in connection with the Coney Island Mets Stadium Job Site,
claiming that certain hours had been worked by certain Local 14
and Local 15 members who had, in fact, not worked those hours, in
order fraudulently to obtain wages and contributions to the Local
14 Plans and Local 15 Plans in the names of those members.
83. For the purpose of executing the scheme and
artifice, the defendant ANTHONY QUARANTA, together with others,
did place and caused to be placed in authorized depositories for
mail matter to be delivered by the United States Postal Service
items of mail matter, to wit: receipts for a coconspirator from
the Local 14 Fund Office, mailed on or about March 9, 2001.
(Title 18, United States Code, Sections 1341, 2 and
3551 et seq.)
COUNT TWENTY-SIX(Unlawful Labor Payments: P.S. 58 Staten Island Job Site)
84. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
85. On or about and between December 4, 2000 and April
3, 2002, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant THOMAS G. MCNAMARA,
34
also known as “Tommy Mac,” together with others, knowingly and
willfully requested, demanded, received and accepted and agreed
to receive and accept payments and deliveries of money and other
things of value in an amount in excess of $1,000 to
representatives of employees who were members of Local 14 and
Local 15 and were then employed in an industry affecting
commerce, from employers at the P.S. 58 Staten Island Job Site
and from persons who acted in the interest of said employers of
the employees.
(Title 29, United States Code, Sections 186(a)(1),
186(b)(1) and 186(d)(2); Title 18, United States Code, Sections 2
and 3551 et seq.)
COUNTS TWENTY-SEVEN THROUGH THIRTY-FIVE(Mail Fraud: P.S. 58 Staten Island Job Site)
86. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
87. On or about and between December 4, 2000 and April
3, 2002, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant THOMAS G. MCNAMARA,
also known as “Tommy Mac,” together with others, knowingly and
intentionally devised a scheme and artifice to defraud
contractors, real estate holders and developers, and to obtain
money and property, to wit: money paid as wages and
contributions to benefit plans, from them by means of materially
35
false and fraudulent pretenses, representations and promises.
88. It was part of the scheme and artifice that the
defendant THOMAS G. MCNAMARA, also known as “Tommy Mac,” together
with others, would and did submit and cause to be submitted false
information regarding hours worked to contractors, to wit: New
York Concrete Corp. and DeMatteis Construction Corp., in
connection with the P.S. 58 Staten Island Job Site, claiming that
certain hours had been worked by certain Local 14 and 15 members
who had, in fact, not worked those hours, in order fraudulently
to obtain wages and contributions to the Local 14 Plans and Local
15 Plans in the names of those members.
89. For the purpose of executing the scheme and
artifice, the defendant THOMAS G. MCNAMARA, together with others,
did place and caused to be placed in authorized depositories for
mail matter to be delivered by the United States Postal Service
the following items of mail matter, among others:
Count Approx. Date of Mailing
Description Sender
27 January 31, 2001 Daily Sign Out LogMail Certification
DeMatteis Constr.Corp.
28 March 1, 2001 Daily Sign Out LogMail Certification
DeMatteis Constr.Corp.
29 April 10, 2001 Coconspirator’sVacation Check
Vacation Fund of Local 15
30 April 19, 2001 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
31 May 29, 2001 Daily Sign Out LogMail Certification
DeMatteis Constr.Corp.
32 July 11, 2001 Daily Sign Out LogMail Certification
DeMatteis Constr.Corp.
36
Count Approx. Date of Mailing
Description Sender
33 July 16, 2001 Coconspirator’sVacation Check
Vacation Fund ofLocal 15
34 December 12, 2001 Coconspirator’sVacation Check
Vacation Fund of Local 15
35 April 3, 2002 Coconspirator’sVacation Check
Vacation Fund of Local 15
(Title 18, United States Code, Sections 1341, 2 and
3551 et seq.)
COUNT THIRTY-SIX(Unlawful Labor Payments: Company 1)
90. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
91. In or about and between Spring 2001 and November
2002, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant DANIEL J. MURPHY,
being a representative of employees, who were members of Local 15
and were then employed in an industry affecting commerce,
knowingly and willfully requested, demanded, received and
accepted and agreed to receive and accept payments and deliveries
of money and other things of value in excess of $1,000 from an
employer, to wit: Company 1, and from a person who acted in the
interest of said employer of the employees.
(Title 29, United States Code, Sections 186(a)(1),
186(b)(1) and 186(d)(2); Title 18, United States Code, Sections 2
and 3551 et seq.)
37
COUNT THIRTY-SEVEN(Unlawful Labor Payments: E.G. Clemente Contracting Corp.)
92. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
93. In or about and between December 1989 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendants THOMAS P. MCGUIRE,
also known as “Thomas Maguire,” THOMAS G. MCNAMARA, also known as
“Tommy Mac,” and DANIEL J. MURPHY, being representatives of
employees, who were members of Local 15 and were then employed in
an industry affecting commerce, knowingly and willfully
requested, demanded, received and accepted and agreed to receive
and accept payments and deliveries of money and other things of
value in excess of $1,000 from an employer, to wit: E.G.
Clemente Contracting Corp., and from a person who acted in the
interest of said employer of the employees.
(Title 29, United States Code, Sections 186(a)(1),
186(b)(1) and 186(d)(2); Title 18, United States Code, Sections 2
and 3551 et seq.)
COUNT THIRTY-EIGHT(Unlawful Labor Payments: Company 2)
94. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
38
95. In or about and between June 1993 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendants THOMAS P. MCGUIRE,
also known as “Thomas Maguire,” THOMAS G. MCNAMARA, also known as
“Tommy Mac,” and DANIEL J. MURPHY, being representatives of
employees, who were members of Local 15 and were then employed in
an industry affecting commerce, knowingly and willfully
requested, demanded, received and accepted and agreed to receive
and accept payments and deliveries of money and other things of
value in excess of $1,000 from an employer, to wit: Company 2,
and from a person who acted in the interest of said employer of
the employees.
(Title 29, United States Code, Sections 186(a)(1),
186(b)(1) and 186(d)(2); Title 18, United States Code, Sections 2
and 3551 et seq.)
COUNT THIRTY-NINE(Unlawful Labor Payments: Company 3)
96. The allegations in paragraphs 1 through 10 are
realleged and incorporated as if fully set forth in this
paragraph.
97. In or about and between December 1992 and December
2001, both dates being approximate and inclusive, within the
Eastern District of New York, the defendant THOMAS G. MCNAMARA,
also known as “Tommy Mac,” being a representative of employees,
who were members of Local 15 and were then employed in an
39
industry affecting commerce, knowingly and willfully requested,
demanded, received and accepted and agreed to receive and accept
payments and deliveries of money and other things of value in
excess of $1,000 from an employer, to wit: Company 3, the
identity of which is known to the grand jury, and from a person
who acted in the interest of said employer of the employees.
(Title 29, United States Code, Sections 186(a)(1),
186(b)(1) and 186(d)(2); Title 18, United States Code, Sections 2
and 3551 et seq.)
COUNT FORTY(Conspiracy to Defraud the United States)
98. In or about and between January 2000 and April 15,
2002, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendant THOMAS
G. MCNAMARA, also known as “Tommy Mac,” together with others,
knowingly and intentionally conspired to defraud the United
States by impeding, impairing, obstructing and defeating the
lawful functions of the Internal Revenue Service of the Treasury
Department, an agency and department of the United States, in the
ascertainment, computation, assessment and collection of revenue,
to wit: income taxes, from the defendant MCNAMARA.
99. It was a part of the conspiracy that the defendant
THOMAS G. MCNAMARA, also known as “Tommy Mac,” together with
others, would and did submit and cause to be submitted false
information regarding hours worked to contractors at various Job
40
Sites, claiming that certain hours had been worked by Union
members who had, in fact, not worked those hours, in order
fraudulently to obtain wages and contributions to benefit plans.
100. It was a further part of the conspiracy that
Union members received wages which they had not earned and shared
those wages with the defendant MCNAMARA.
101. It was a further part of the conspiracy that the
defendant MCNAMARA did not declare on his United States personal
income tax returns his share of wages received from Union
members.
102. In furtherance of the conspiracy and to effect
the objectives thereof, within the Eastern District of New York
and elsewhere, the defendant MCNAMARA, together with others,
committed and caused to be committed, among others, the
following:
OVERT ACTS
a. On or about January 23, 2001, coconspirators
had a conversation.
b. On or about January 31, 2001, the defendant
THOMAS G. MCNAMARA and a coconspirator had a conversation.
c. On or about March 15, 2001, the defendant
THOMAS G. MCNAMARA filed a United States personal income tax
return for the year 2000.
d. On or about June 4, 2001, coconspirators had a
conversation.
41
e. On or about March 31, 2002, the defendant
THOMAS G. MCNAMARA filed a United States personal income tax
return for the year 2001.
(Title 18, United States Code, Sections 371 and 3551 et
seq.)
COUNT FORTY-ONE(Making a False Return: THOMAS G. MCNAMARA 2000)
103. On or about March 15, 2001, within the Eastern
District of New York and elsewhere, the defendant THOMAS G.
MCNAMARA, also known as “Tommy Mac,” knowingly and willfully made
and subscribed a United States income tax return, Form 1040, for
the year 2000, which was verified by a written declaration that
it was made under penalties of perjury and was filed with the
Internal Revenue Service, which said income tax return he did not
believe to be true and correct as to every material matter in
that he reported that his total income was $173,061, whereas, as
he well knew and believed, his total income was substantially
greater than $173,061.
(Title 26, United States Code, Section 7206(1); Title
18, United States Code, Sections 3551 et seq.)
COUNT FORTY-TWO(Making a False Return: THOMAS G. MCNAMARA 2001)
104. On or about March 31, 2002, within the Eastern
District of New York and elsewhere, the defendant THOMAS G.
MCNAMARA, also known as “Tommy Mac,” knowingly and willfully made
and subscribed a United States income tax return, Form 1040, for
42
the year 2001, which was verified by a written declaration that
it was made under penalties of perjury and was filed with the
Internal Revenue Service, which said income tax return he did not
believe to be true and correct as to every material matter in
that he reported that his total income was $179,204, whereas, as
he well knew and believed, his total income was substantially
greater than $179,204.
(Title 26, United States Code, Section 7206(1); Title
18, United States Code, Sections 3551 et seq.)
ADDITIONAL ALLEGATIONS AS TO COUNT ONE, RACKETEERING ACT 1, COUNTTWO AND COUNTS THREE THROUGH THIRTEEN
(Mail Fraud Conspiracy and Mail Fraud: Local 15 Jobs)
105. The allegations contained in Count One,
Racketeering Act 1, Count Two and Counts Three through Thirteen
are hereby realleged and incorporated as if fully set forth in
this paragraph, and the additional allegations below are
incorporated by reference into Count One, Racketeering Act 1,
Count Two and Counts Three through Thirteen.
106. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendant DANIEL J. MURPHY, and (b) all
reasonably foreseeable acts and omissions of others in
furtherance of a criminal plan, scheme, endeavor, and enterprise
undertaken by the defendant in concert with others; all of which
occurred during the commission of the offense of conviction, in
preparation for that offense, and in the course of attempting to
43
avoid detection and responsibility for that offense, the
following conduct occurred (U.S.S.G. § 1B1.3(a)(1)):
a. The loss was more than $400,000 (U.S.S.G. §
2B1.1(b)(1)(H)).
b. The offense involved 10 or more victims
(U.S.S.G. § 2B1.1(b)(2)(A)(i)).
107. The defendant DANIEL J. MURPHY abused his
position of private trust as a business agent of Local 15 in a
manner that significantly facilitated the commission of the
offense (U.S.S.G. § 3B1.3).
ADDITIONAL ALLEGATIONS AS TO COUNT ONE, RACKETEERING ACTS 2A, 3A,4A and 5A, AND COUNTS TWO, FOURTEEN,SIXTEEN, NINETEEN AND TWENTY-SIX
(Unlawful Labor Payments: Oceana Condos, Brooklyn General PostOffice, Staten Island Yankee Stadium and
P.S. 58 Staten Island Job Sites)
108. The allegations contained in Count One,
Racketeering Acts 2A, 3A, 4A and 5A, and Counts Two, Fourteen,
Sixteen, Nineteen and Twenty-six are hereby realleged and
incorporated as if fully set forth in this paragraph, and the
additional allegations below are incorporated by reference into
Count One, Racketeering Acts 2A, 3A, 4A and 5A, and Counts Two,
Fourteen, Sixteen, Nineteen and Twenty-six.
109. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendant THOMAS G. MCNAMARA, and (b) all
reasonably foreseeable acts and omissions of others in
44
furtherance of a criminal plan, scheme, endeavor, and enterprise
undertaken by the defendant in concert with others; all of which
occurred during the commission of the offense of conviction, in
preparation for that offense, and in the course of attempting to
avoid detection and responsibility for that offense, the
following conduct occurred (U.S.S.G. § 1B1.3(a)(1)):
a. The defendant THOMAS G. MCNAMARA was a
fiduciary of a labor organization (U.S.S.G. § 2E5.1(b)(1)).
b. The value of the prohibited payments with
respect to the defendant THOMAS G. MCNAMARA was more than
$1,000,000 (U.S.S.G. §§ 2E5.1(b)(2), 2B1.1(b)(1)(I)).
ADDITIONAL ALLEGATIONS AS TO COUNT TWENTY-FOUR(Unlawful Labor Payments: Coney Island Mets Stadium Job Site)
110. The allegations contained in Count Twenty-four
are hereby realleged and incorporated as if fully set forth in
this paragraph, and the additional allegations below are
incorporated by reference into Count Twenty-four.
111. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendant ANTHONY QUARANTA, and (b) all
reasonably foreseeable acts and omissions of others in
furtherance of a criminal plan, scheme, endeavor, and enterprise
undertaken by the defendant in concert with others; all of which
occurred during the commission of the offense of conviction, in
preparation for that offense, and in the course of attempting to
45
avoid detection and responsibility for that offense, the
following conduct occurred (U.S.S.G. § 1B1.3(a)(1)):
a. The defendant ANTHONY QUARANTA was a fiduciary
of a labor organization (U.S.S.G. § 2E5.1(b)(1)).
b. The value of the prohibited payments was more
than $120,000 (U.S.S.G. §§ 2E5.1(b)(2), 2B1.1(b)(1)(F)).
ADDITIONAL ALLEGATIONS AS TO COUNT ONE, RACKETEERING ACTS 2B, 3B,4B and 5B, AND COUNTS TWO, FIFTEEN, SEVENTEEN, EIGHTEEN, TWENTY
THROUGH TWENTY-THREE AND TWENTY-SEVEN THROUGH THIRTY-FIVE(Mail Fraud: Oceana Condos, Brooklyn General Post Office, Staten
Island Yankee Stadium and P.S. 58 Staten Island Job Sites)
112. The allegations contained in Count One,
Racketeering Acts 2B, 3B, 4B and 5B, and Counts Two, Fifteen,
Seventeen, Eighteen, Twenty through Twenty-three and Twenty-seven
through Thirty-five are hereby realleged and incorporated as if
fully set forth in this paragraph, and the additional allegations
below are incorporated by reference into Count One, Racketeering
Acts 2B, 3B, 4B and 5B, and Counts Two, Fifteen, Seventeen,
Eighteen, Twenty through Twenty-three and Twenty-seven through
Thirty-five.
113. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendant THOMAS G. MCNAMARA, and (b) all
reasonably foreseeable acts and omissions of others in
furtherance of a criminal plan, scheme, endeavor, and enterprise
undertaken by the defendant in concert with others; all of which
occurred during the commission of the offense of conviction, in
46
preparation for that offense, and in the course of attempting to
avoid detection and responsibility for that offense, the
following conduct occurred (U.S.S.G. § 1B1.3(a)(1)):
a. The loss with respect to the defendant THOMAS
G. MCNAMARA was more than $1,000,000 (U.S.S.G. § 2B1.1(b)(1)(I)).
b. The offense involved 10 or more victims
(U.S.S.G. § 2B1.1(b)(2)(A)(i)).
114. The defendant THOMAS G. MCNAMARA was a manager
and supervisor of criminal activity that involved five or more
participants and was otherwise extensive (U.S.S.G. § 3B1.1(b)).
115. The defendant THOMAS G. MCNAMARA abused his
position of private trust as a business agent of Local 15 in a
manner that significantly facilitated the commission of the
offense (U.S.S.G. § 3B1.3).
ADDITIONAL ALLEGATIONS AS TO COUNT TWENTY-FIVE(Mail Fraud: Coney Island Mets Stadium Job Site)
116. The allegations contained in Count Twenty-five
are hereby realleged and incorporated as if fully set forth in
this paragraph, and the additional allegations below are
incorporated by reference into Count Twenty-five.
117. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendant ANTHONY QUARANTA, and (b) all
reasonably foreseeable acts and omissions of others in
furtherance of a criminal plan, scheme, endeavor, and enterprise
47
undertaken by the defendant in concert with others; all of which
occurred during the commission of the offense of conviction, in
preparation for that offense, and in the course of attempting to
avoid detection and responsibility for that offense, the
following conduct occurred (U.S.S.G. § 1B1.3(a)(1)):
a. The loss was more than $120,000 (U.S.S.G. §
2B1.1(b)(1)(F)).
118. The defendant ANTHONY QUARANTA abused his
position of private trust as a Maintenance Foreman for Local 15
in a manner that significantly facilitated the commission of the
offense (U.S.S.G. § 3B1.3).
ADDITIONAL ALLEGATIONS AS TO COUNT ONE, RACKETEERING ACT 6, ANDCOUNTS TWO AND THIRTY-SIX
(Unlawful Labor Payments: Company 1)
119. The allegations contained in Count One,
Racketeering Act 6, and Counts Two and Thirty-six are hereby
realleged and incorporated as if fully set forth in this
paragraph, and the additional allegations below are incorporated
by reference into Count One, Racketeering Act 6, and Counts Two
and Thirty-six.
120. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendant DANIEL J. MURPHY and (b) all
reasonably foreseeable acts and omissions of others in
furtherance of a criminal plan, scheme, endeavor, and enterprise
48
undertaken by the defendant in concert with others; all of which
occurred during the commission of the offense of conviction, in
preparation for that offense, and in the course of attempting to
avoid detection and responsibility for that offense, the
following conduct occurred (U.S.S.G. § 1B1.3(a)(1)):
a. The defendant DANIEL J. MURPHY was a
fiduciary of a labor organization (U.S.S.G. § 2E5.1(b)(1)).
b. The value of the prohibited payments was more
than $10,000 (U.S.S.G. §§ 2E5.1(b)(2), 2B1.1(b)(1)(C)).
ADDITIONAL ALLEGATIONS AS TO COUNT ONE, RACKETEERING ACT 7, ANDCOUNTS TWO AND THIRTY-SEVEN
(Unlawful Labor Payments: E.G. Clemente Corp.)
121. The allegations contained in Count One,
Racketeering Act 7, and Counts Two and Thirty-seven are hereby
realleged and incorporated as if fully set forth in this
paragraph, and the additional allegations below are incorporated
by reference into Count One, Racketeering Act 7, and Counts Two
and Thirty-seven.
122. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendants THOMAS P. MCGUIRE, DANIEL J.
MURPHY and THOMAS G. MCNAMARA and (b) all reasonably foreseeable
acts and omissions of others in furtherance of a criminal plan,
scheme, endeavor, and enterprise undertaken by the defendants in
concert with others; all of which occurred during the commission
of the offense of conviction, in preparation for that offense,
49
and in the course of attempting to avoid detection and
responsibility for that offense, the following conduct occurred
(U.S.S.G. § 1B1.3(a)(1)):
a. The defendants THOMAS P. MCGUIRE, DANIEL J.
MURPHY and THOMAS G. MCNAMARA were fiduciaries of a labor
organization (U.S.S.G. § 2E5.1(b)(1)).
b. The value of the prohibited payments with
respect to the defendants THOMAS P. MCGUIRE and DANIEL J. MURPHY
was more than $10,000 (U.S.S.G. §§ 2E5.1(b)(2), 2B1.1(b)(1)(C)).
c. The value of the prohibited payments with
respect to the defendant THOMAS G. MCNAMARA was more than $5,000
(U.S.S.G. §§ 2E5.1(b)(2), 2B1.1(b)(1)(B)).
ADDITIONAL ALLEGATIONS AS TO COUNT ONE, RACKETEERING ACT 8, ANDCOUNTS TWO AND THIRTY-EIGHT
(Unlawful Labor Payments: Company 2)
123. The allegations contained in Count One,
Racketeering Act 8, and Counts Two and Thirty-eight are hereby
realleged and incorporated as if fully set forth in this
paragraph, and the additional allegations below are incorporated
by reference into Count One, Racketeering Act 8, and Counts Two
and Thirty-eight.
124. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendants THOMAS P. MCGUIRE, DANIEL J.
MURPHY and THOMAS G. MCNAMARA, and (b) all reasonably foreseeable
acts and omissions of others in furtherance of a criminal plan,
50
scheme, endeavor, and enterprise undertaken by the defendants in
concert with others; all of which occurred during the commission
of the offense of conviction, in preparation for that offense,
and in the course of attempting to avoid detection and
responsibility for that offense, the following conduct occurred
(U.S.S.G. § 1B1.3(a)(1)):
a. The defendants THOMAS P. MCGUIRE, DANIEL J.
MURPHY and THOMAS G. MCNAMARA were fiduciaries of a labor
organization (U.S.S.G. § 2E5.1(b)(1)).
b. The value of the prohibited payments was more
than $30,000 (U.S.S.G. §§ 2E5.1(b)(2), 2B1.1(b)(1)(D)).
ADDITIONAL ALLEGATIONS AS TO COUNT ONE, RACKETEERING ACT 9, ANDCOUNTS TWO AND THIRTY-NINE
(Unlawful Labor Payments: Company 3)
125. The allegations contained in Count One,
Racketeering Act 9, and Counts Two and Thirty-nine are hereby
realleged and incorporated as if fully set forth in this
paragraph, and the additional allegations below are incorporated
by reference into Count One, Racketeering Act 9, and Counts Two
and Thirty-nine.
126. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendant THOMAS G. MCNAMARA, and (b) all
reasonably foreseeable acts and omissions of others in
furtherance of a criminal plan, scheme, endeavor, and enterprise
undertaken by the defendant in concert with others; all of which
51
occurred during the commission of the offense of conviction, in
preparation for that offense, and in the course of attempting to
avoid detection and responsibility for that offense, the
following conduct occurred (U.S.S.G. § 1B1.3(a)(1)):
a. The defendant THOMAS G. MCNAMARA was a
fiduciary of a labor organization (U.S.S.G. § 2E5.1(b)(1)).
ADDITIONAL ALLEGATIONS AS TO COUNT FORTY (Conspiracy to Defraud the United States)
127. The allegations contained in Count Forty are
hereby realleged and incorporated as if fully set forth in this
paragraph, and the additional allegations below are incorporated
by reference into Count Forty.
128. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendant THOMAS G. MCNAMARA, and (b) all
reasonably foreseeable acts and omissions of others in
furtherance of a criminal plan, scheme, endeavor, and enterprise
undertaken by the defendant in concert with others; all of which
occurred during the commission of the offense of conviction, in
preparation for that offense, and in the course of attempting to
avoid detection and responsibility for that offense, the
following conduct occurred (U.S.S.G. § 1B1.3(a)(1)):
a. The tax loss was more than $30,000 (U.S.S.G.
§§ 2T1.9(a)(1), 2T4.1(E)).
52
ADDITIONAL ALLEGATIONS AS TO COUNTS FORTY-ONE AND FORTY-TWO(Making False Returns)
129. The allegations contained in Counts Forty-one
and Forty-two are hereby realleged and incorporated as if fully
set forth in this paragraph, and the additional allegations below
are incorporated by reference into Counts Forty-one and Forty-
two.
130. Based on (a) acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, and
willfully caused by the defendant THOMAS G. MCNAMARA, and (b) all
reasonably foreseeable acts and omissions of others in
furtherance of a criminal plan, scheme, endeavor, and enterprise
undertaken by the defendant in concert with others; all of which
occurred during the commission of the offense of conviction, in
preparation for that offense, and in the course of attempting to
avoid detection and responsibility for that offense, the
following conduct occurred (U.S.S.G. § 1B1.3(a)(1)):
a. The tax loss was more than $5,000 (U.S.S.G. §§
2T1.1(a)(1), 2T4.1(C)).
CRIMINAL FORFEITURE ALLEGATIONS
A. Criminal Forfeiture Allegation for Counts One and Two
131. The United States hereby gives notice to the
defendants charged in Counts One and Two that, upon conviction of
either such offense, the government will seek forfeiture in
accordance with Title 18, United States Code, Section 1963, which
53
requires any person convicted of such offenses to forfeit any
property such defendants:
a. have acquired an interest in and maintained in
violation of Title 18, United States Code, Section 1962, which
interests are subject to forfeiture to the United States pursuant
to Title 18, United States Code, Section 1963(a)(1);
b. have an interest in, security of, claims against,
and property and contractual rights which afford a source of
influence over the enterprise named and described herein that the
defendants established, operated, controlled, conducted, and
participated in the conduct of, in violation of Title 18, United
States Code, Section 1962, which interests, securities, claims,
and rights are subject to forfeiture to the United States
pursuant to Title 18, United States Code, Section 1963(a)(2); and
c. derived from proceeds obtained, directly and
indirectly, from racketeering activity, in violation of Title 18,
United States Code, Section 1962, which property is subject to
forfeiture to the United States pursuant to Title 18, United
States Code, Section 1963(a)(3).
132. The interests of the defendants subject to
forfeiture to the United States pursuant to Title 18, United
States Code, Section 1963(a)(1), (a)(2), and (a)(3), include, but
are not limited to:
a. the sum of at least Two Million Seventy-eight
Thousand One Hundred Forty-one Dollars ($2,078,141.00).
54
b. the International Union of Operating Engineers
membership positions of each and every defendant named in
paragraphs 16, 17 and 18, which said defendants operated,
controlled, conducted, and participated in, in violation of Title
18, United States Code, Section 1962.
133. The defendants named in Count One, and each of
them, are jointly and severally liable for the forfeiture
obligations as alleged above, as are the defendants named in
Count Two.
134. If any of the above-described forfeitable
property, as a result of any act or omission of the defendants --
a. Cannot be located upon the exercise of due diligence;
b. Has been transferred or sold to, or deposited with, a third party;
c. Has been placed beyond the jurisdiction of the Court;
d. Has been substantially diminished in value; or
e. Has been commingled with other property which cannot be divided without difficulty;
it is the intent of the United States, pursuant to Title 18,
United States Code, Section 1963(m), to seek forfeiture of any
other property of such defendants up to the value of the
forfeitable property described in this forfeiture allegation.
(Title 18, United States Code, Section 1963)
55
B. Criminal Forfeiture Allegation for Counts Three Through Thirty-Nine
135. The United States hereby gives notice to the
defendants charged in Counts Three through Thirty-nine that, upon
conviction of any such offenses the government will seek
forfeiture in accordance with Title 18, United States Code,
Section 981(a)(1)(C) and Title 28, United States Code, Section
2461(c), which require any person convicted of such offenses to
forfeit any property constituting or derived from proceeds
traceable to such offenses.
136. If any of the above-described forfeitable
property, as a result of any act or omission of the defendants:
a. Cannot be located upon the exercise of due diligence;
b. Has been transferred or sold to, or deposited with, a third party;
c. Has been placed beyond the jurisdiction of the Court;
d. Has been substantially diminished in value; or
e. Has been commingled with other property which cannot be divided without difficulty,
it is the intent of the United States, pursuant to Title 21,
United States Code, Section 853(p), as incorporated by Title 28,
United States Code, Section 2461(c), to seek forfeiture of any
56
other property of such defendants up to the value of the
forfeitable property described in this forfeiture allegation.
(Title 18, United States Code, Section 981(a)(1)(C);
Title 21, United States Code, Section 853; Title 28, United
States Code, Section 2461(c))
A TRUE BILL
FOREPERSON
ROSLYNN R. MAUSKOPFUNITED STATES ATTORNEYEASTERN DISTRICT OF NEW YORK
EXHIBIT “11”
EXHIBIT “12”
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA )) No.
v. )) Violations: Title 18, United States
JOHN A. ORECCHIO ) Code, Sections 664 and 1343
COUNT ONE
The UNITED STATES ATTORNEY charges:
1. At times material to this information:
a. AA Capital Partners, located at 10 S. LaSalle Street, Chicago,
Illinois, was incorporated by defendant JOHN A. ORECCHIO as a Delaware
corporation in approximately February 2002. AA Capital was registered with the
SEC as an investment adviser under the Investment Advisers Act of 1940.
ORECCHIO was the co-owner, director, president, and secretary of AA Capital. As
the president of AA Capital, ORECCHIO exercised day-to-day management and
control of the affairs of AA Capital.
b. AA Capital was the “investment manager” for five union pension
funds, each of which was an employee benefit plan as defined in §3(2) of the
Employee Retirement Income Security Act of 1974 (“ERISA”), as further described
below:
i. Carpenters' Pension Trust Fund – Detroit & Vicinity (the
“Carpenters' Fund”), which placed approximately $75 million for investment under
its Investment Management Agreement with AA Capital;
ii. Operating Engineers Local No. 324 Pension Fund (the
“Operators' Fund”), which placed approximately $60 million for investment under
its Investment Management Agreement with AA Capital;
iii. Michigan Teamsters Joint Council No. 43 Pension Fund
(the “Teamsters' Fund”), which placed approximately $100,000 for investment
under its Investment Management Agreement with AA Capital;
iv. Millwrights' Local No. 1102 Supplemental Pension Fund
(the “Millwrights' Fund”), which placed approximately $13 million for investment
under its Investment Management Agreement with AA Capital;
v. Michigan Regional Council of Carpenters Annuity Fund
(the “MRCC Fund”), which placed approximately $21 million for investment under
its Investment Management Agreement with AA Capital; and
vi. Arkansas/Oklahoma Regional Council of Carpenters (the
“AR/OK Fund”), which placed approximately $529,000 for investment under its
Investment Management Agreement with AA Capital.
(referred to hereinafter as the “ERISA Plan Investors”).
c. The Investment Management Agreements that AA Capital
entered into with each of the ERISA Plan Investors delegated to AA Capital full
discretion over the investment and re-investment of funds provided by the ERISA
Plan Investors to AA Capital. When each of the investors became a client of AA
Capital, it deposited the total amount of its investment commitment with AA
Capital, and delegated to AA Capital full discretion over the investment and
re-investment of all money provided to AA Capital. AA Capital established and
maintained bank trust accounts (the “Investor Trust Accounts”) for each ERISA
Plan Investor to hold the funds until such time as when AA Capital was supposed to
use the money to make investments on behalf of the Investor.
d. Rather than making direct investments of investors’ money into
securities and debt instruments of non-affiliated parties, AA Capital and its
principals created a series of separate funds, each formed as a limited partnership
(the “Funds”), in which AA Capital placed the ERISA Plan Investors as limited
partners and into which AA Capital invested the monies of the ERISA Plan
Investors. Each of the Funds in turn used the money to purchase direct
investments in non-affiliated parties. Under the governing documents of each of
the Funds, a Fund could call capital from the Investor Trust Accounts for three
primary purposes: (i) investments by the Funds; (ii) management fees of the Funds;
or (iii) overhead expenses attributable to the Funds. AA Capital had complete
control over the Investor money held in the Investor Trust Accounts.
e. The structure of each of the Funds was essentially the same.
The general partner of each Fund (which was in each case a limited liability
company composed of senior employees of AA Capital) received a one percent
economic interest in the Fund, for which it made no payment, and the balance of
ownership interests in the Funds were held by one or more of the ERISA Plan
Investors (as limited partners in the Funds). Defendant JOHN A. ORECCHIO, on
behalf of AA Capital, managed the investment assets of each Fund (which consisted
of “private equity” investments, loans to real estate developers, and investments in
other large, non-affiliated funds) under a written Management Agreement (“Fund
Management Agreements”) in which (i) AA Capital acknowledged that it was a
fiduciary within the meaning of ERISA with respect to the assets of the Fund and
(ii) AA Capital was granted full discretion over the investments and, if applicable,
re-investments of the Fund's assets.
f. AA Capital's services under the Investment Management
Agreements included ensuring that the money of each Fund's limited partners was
properly maintained, monitored, segregated, and accounted for, was not
commingled into the accounts of AA Capital or other funds under AA Capital
management, and was used only for authorized purposes, which purposes were
limited to funding the investments in each such Fund and paying legitimate
expenses and management fees of each such Fund. As such, AA Capital and
defendant JOHN A. ORECCHIO were fiduciaries within the meaning of ERISA.
2. Between approximately 2002 and continuing until approximately
September 13, 2006, in the Northern District of Illinois, Eastern Division, and
elsewhere,
JOHN A. ORECCHIO,
defendant herein, devised and participated in a scheme to defraud the ERISA Plan
Investors and AA Capital, and to obtain money by means of materially false and
fraudulent pretenses, representations, and promises, which scheme is further
described below.
3. It was part of the scheme that defendant JOHN A. ORECCHIO
misappropriated and misapplied approximately $24,000,000 of funds owned by the
ERISA Plan Investors.
4. It was further part of the scheme that defendant JOHN A. ORECCHIO
falsely and fraudulently caused AA Capital to make capital calls on the Investor
Trust Accounts, knowing the funds that he was causing to be withdrawn were not
going to be directed toward (i) investments by the Funds; (ii) legitimate
management fees of the Funds; or (iii) overhead expenses attributable to the Funds.
Rather, defendant ORECCHIO caused the capital calls to occur in order to obtain
funds that he could convert for his own use and benefit.
5. It was further part of the scheme that defendant JOHN A. ORECCHIO
falsely and fraudulently caused funds owned by the ERISA Plan Investors to be
used to pay his own personal expenses, or expenses of AA Capital that were not
appropriately allocated to management of the Funds.
6. It was further part of the scheme that at various times between
approximately August 31, 2005, and July 31, 2006, defendant JOHN A. ORECCHIO
directed AA Capital to make seven capital calls from one of the Funds in amounts
totaling approximately $8,700,000, purportedly to fund investment in AART
Development LLC, a real estate development in Michigan. Defendant ORECCHIO
misappropriated approximately $6,930,000 of these funds for his own personal use
and benefit, principally to pay for personal business and real estate interests with
no connection to the ERISA Plan Investors.
7. It was further part of the scheme that at various times in 2004 and
2005, defendant JOHN A. ORECCHIO directed that AA Capital withdraw by
capital calls approximately $5,721,000 from the Investor Trust Accounts for
personal "tax payments" which ORECCHIO purported represented payment for a
personal tax liability that accrued to ORECCHIO personally while acting as the
manager of AA Capital. No such tax liability in fact existed. Rather, ORECCHIO
misappropriated the funds characterized as "tax payments" for his own personal
use and benefit.
8. It was further part of the scheme that at various times between 2003
and 2006, defendant JOHN A. ORECCHIO directed that AA Capital pay, with
funds withdrawn from the Investor Trust Accounts, approximately $4,387,000 to
J&R Ventures, an entity whose bank account ORECCHIO controlled. ORECCHIO
then converted the substantial majority of these funds for his own personal use and
benefit.
9. It was further part of the scheme that between approximately 2003
and September 2006, defendant JOHN A. ORECCHIO submitted to AA Capital
false and fraudulent requests for reimbursement and payment of "business
expenses" totaling approximately $7,167,000 that purportedly were incurred by
defendant ORECCHIO. In truth, as defendant ORECCHIO well knew, these
expenditures of funds were not legitimate business expenses related to his
management of the Funds or of AA Capital.
10. It was further part of the scheme that defendant JOHN A. ORECCHIO
concealed, misrepresented, and hid and caused to be concealed, misrepresented, and
hidden, the existence and purpose of the scheme and the acts done in furtherance of
the scheme.
11. On or about April 20, 2005, in the Northern District of Illinois, Eastern
Division, and elsewhere,
JOHN A. ORECCHIO,
defendant herein, for the purpose of executing the scheme to defraud, knowingly
caused to be transmitted in interstate commerce certain writings, signs, signals,
and sounds, namely a wire transfer of approximately $2,295,000 from an account
(no. xxxxxx0578) at Standard Federal Bank maintained in the name of AA Capital
Equity Fund LP, to an account (no. xxx-xxx0254) at Wells Fargo Bank maintained
in the name of J and R Ventures LLC, in Las Vegas, Nevada.
In violation of Title 18, United States Code, Sections 1343.
COUNT TWO
The UNITED STATES ATTORNEY further charges:
1. The allegations in paragraph 1 of Count One of this information are
realleged and incorporated by reference as if fully set forth herein.
2. On or about November 7, 2005, at Chicago, in the Northern District of
Illinois, Eastern Division, and elsewhere,
JOHN A. ORECCHIO,
defendant herein, did embezzle, steal and willfully abstract or convert to his own
use, and to the use of others, moneys, credits, property, and other assets of an
employee welfare benefit plan or employee pension benefit plan, subject to Title I of
ERISA, and of a fund connected therewith, namely $5,000,000 belonging to the
MRCC Fund.
In violation of Title 18, United States Code, Section 664.
UNITED STATES ATTORNEY
EXHIBIT “13”
FORM NLRB-4775 UNITED STATES GOVERNMENT (1-11) NATIONAL LABOR RELATIONS BOARD SETTLEMENT AGREEMENT IN THE MATTER OF
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 139
Case 30-CB-5569
The undersigned Charged Party and the undersigned Charging Party, in settlement of the above matter, and subject to the approval of the Regional Director for the National Labor Relations Board, HEREBY AGREE AS FOLLOWS:
POSTING OF NOTICE — Upon approval of this Agreement and receipt of the Notices from the Region, which may include Notices in more than one language as deemed appropriate by the Regional Director, the Charged Party will post immediately in conspicuous places in and around all of its offices and halls, including all places where notices to employees/members are customarily posted, and maintain for 60 consecutive days from the date of posting, copies of the attached Notice (and versions in other languages as deemed appropriate by the Regional Director) made a part hereof, said Notices to be signed by a responsible official of the Charged Party and the date of actual posting to be shown thereon. The Union will also submit forthwith signed copies of said Notice to the Regional Director who will forward them to the employer whose employees are involved herein, for posting, the employer willing, in conspicuous places in and about the employer's jobsite where they shall be maintained for 60 consecutive days from the date of posting. Further, in the event that the charged union maintains such bulletin boards at the facility of the employer where the alleged unfair labor practices occurred, the union shall also post Notices on each such bulletin board during the posting period.
In addition to physical posting of paper notices, the Notice shall also be posted in a conspicuous place on the Charged Party’s website and shall remain posted for 60 consecutive days from the date it was originally posted. The Charged Party will e-mail the Region’s Compliance Officer at [email protected] with a link to the electronic posting location on the same day as the posting.
In addition, the Notice shall be read aloud by a responsible official of the Charged Party at May 11, 2011 Union meeting in Pewaukee, Wisconsin. A Board Agent will be present when the responsible official reads the Notice to members.
COMPLIANCE WITH NOTICE — The Charged Party will comply with all the terms and provisions of said Notice.
By entering into this Settlement Agreement the Charged Party does not admit to having committed any violation of the National Labor Relations Act.
By entering into this Settlement Agreement the Charged Party waives all rights it may have under the Equal Access to Justice Act, Public Law 96-481, 94 Stat. 2325.
SCOPE OF THE AGREEMENT — This Agreement settles only the following allegations in the above-captioned case(s), and does not constitute a settlement of any other case(s) or matters: On or about May 7, 2010, Charged Party, by Chip Milner, at the Oak Creek jobsite, threatened an employee with termination because he filed charges against the Union with the National Labor Relations Board.
On or about May 7, 2010, Charged Party, by Chip Milner, at the Oak Creek jobsite, threatened an employee with expulsion from the Union because he filed charges against the Union with the National Labor Relations Board.
On or about May 12, 2010, Charged Party, by Terry McGowan, at the Pewaukee Union hall, threatened Union-represented members and employees with the loss of their raises because other members filed charges against the Union with the National Labor Relations Board.
On or about May 12, 2010, Charged Party, by Terry McGowan, at the Pewaukee Union hall, coerced members by informing them that it was against the Union’s by-laws to file a charge against the Union with the National Labor Relations Board before first exhausting internal remedies.
On or about May 12, 2010, Charged Party, by Terry McGowan, at the Pewaukee Union hall, threatened to file internal charges against members because they filed charges against the Union with the National Labor Relations Board.
On or about May 12, 2010, Charged Party, by Terry McGowan, at the Pewaukee Union hall, urged members to file internal charges against members because they filed charges against the Union with the National Labor Relations Board.
On or about May 12, 2010, Charged Party, by Terry McGowan, at the Pewaukee Union hall, threatened to fine members because they filed charges against the Union with the National Labor Relations Board.
On or about May 12, 2010, Charged Party, at the Pewaukee Union hall, condoned threats of violence made by members against other members because they filed charges against the Union with the National Labor Relations Board. No remedies in addition to the above-cited Posting of Notice provision are required in this matter.
It does not preclude persons from filing charges, the General Counsel from prosecuting complaints, or the Board and the courts from finding violations with respect to matters which precede the date of the approval of this Agreement regardless of whether such matters are known to the General Counsel or are readily discoverable. The General Counsel reserves the right to use the evidence obtained in the investigation and prosecution of the above-captioned case(s) for any relevant purpose in the litigation of this or any other case(s), and a judge, the Board and the courts may make findings of fact and/or conclusions of law with respect to said evidence.
REFUSAL TO ISSUE COMPLAINT — In the event the Charging Party fails or refuses to become a party to this Agreement, and if in the Regional Director's discretion it will effectuate the policies of the National Labor Relations Act, the Regional Director shall decline to issue a Complaint herein (or a new Complaint if one has been withdrawn pursuant to the terms of this Agreement), and this Agreement shall be between the Charged Party and the undersigned Regional Director. A review of such action may be obtained pursuant to Section 102.19 of the Rules and Regulations of the Board if a request for same is filed within 14 days thereof. This Agreement shall be null and void if the General Counsel does not sustain the Regional Director's action in the event of a review. Approval of this Agreement by the Regional Director shall constitute withdrawal of any Complaint(s) and Notice of Hearing heretofore issued in the above captioned case(s), as well as any answer(s) filed in response.
AUTHORIZATION TO PROVIDE COMPLIANCE INFORMATION AND NOTICES DIRECTLY TO CHARGED PARTY. Counsel for the Charged Party authorizes the Regional Office to forward the cover letter describing the general expectations and instructions to achieve compliance, a conformed settlement, original notices and a certification of posting directly to the Charged Party. If such authorization is granted, Counsel will be simultaneously served with a courtesy copy of these documents. Yes __________ No_________ Initials Initials PERFORMANCE — Performance by the Charged Party with the terms and provisions of this Agreement shall commence immediately after the Agreement is approved by the Regional Director, or if the Charging Party does not enter into this Agreement, performance shall commence immediately upon receipt by the Charged Party of notice that no review has been requested or that the General Counsel has sustained the Regional Director. The Charged Party agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party, the Regional Director will issue the complaint on the allegations spelled out above in the Scope of Agreement section. Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the complaint. The Charged Party understands and agrees that all of the allegations of the aforementioned complaint will be deemed admitted and it will have waived its right to file an Answer to such complaint. The only issue that may be raised before the Board is whether the Charged Party defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the complaint to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the U.S. Court of Appeals Judgment may be entered enforcing the Board order ex parte. NOTIFICATION OF COMPLIANCE — The undersigned parties to this Agreement will each notify the Regional Director in writing what steps the Charged Party has taken to comply herewith. Such notification shall be given within 5 days, and again after 60 days, from the date of the approval of this Agreement. In the event the Charging Party does not enter into this Agreement, initial notice shall be given within 5 days after notification from the Regional Director that no review has been requested or that the General Counsel has sustained the Regional Director. Contingent upon compliance with the terms and provisions hereof, no further action shall be taken in the above captioned case(s).
Charged Party INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 139
Charging Party TIMOTHY A. PARE
By: Name and Title /s/ Brian C. Hlavin
Date 2/25/11
By Name and Title /s/ Timothy A. Pare
Date 3-2-11
Recommended By: /s/ Jessica M. Gibson Board Agent
Date 3/4/11
Approved By: /s/ Irving E. Gottschalk Regional Director
Date 3/15/11
H:\R30COM\30 C Cases\30-CB-005569\Regional Determination\SET.30-CB-005569 Informal Settlement.doc
EXHIBIT “14”
EXHIBIT “15”
Name S Address
AHERN, JOHN11506 MYRTLE AVE
RICHMOND HILL, NY 114181717US
Millenium Hilton55 Church Street • New York, NY 10007
Phone (212) 693-2001 - Fax (212) 571-2316Reservations
wwwJnlton.com or 1 SOO HILTONS
Room 4202/KUCArrival Date 05/02/07 237PMDeparture Date 05/05/07
Adult/ChildRoom Rate
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RATE PLAN LV6
HH# 434130727 SILVERAL: US #81H6XOO
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EXHIBIT “17”
EXHIBIT “18”
MAR 212009James R. Zazzali, Esq.
Ethics OfficerIUOE, AFL-CIO
One Riverfront PlazaBox No. 782Newark, NJ 07102
Toll Free Number(866) 380-3495
March 19,2009
Mr. James McLaughlinBusiness ManagerIUOE Local 5012405 West Third StreetLos Angeles, CA 90057
Re: lOVE Local 501
Dear Mr. McLaughlin:
As you know, I serve as the Ethics Officer for the International Union ofOperating Engineers.
We received a complaint from a member of Local 501 alleging that the DistrictRepresentative is also a Chief Engineer. This member believes that, because the DistrictRepresentative "is both management for company as wellas management for the Union,he has a conflict of interest". He also maintains that the bylaws prohibit such anarrangement and, further, that the District Representative may have "influenced a recentdecision" .
Those are the only facts that have been provided to me. I am attempting to obtainmore details and, if I do, I will inform you.
In the meantime, I would appreciate your response to the above allegations. Myinquiry to you does not suggest that I believe or disbelieve those claims. It is, quitesimply, and as you know, my responsibility to investigate such allegations.
Thank you for your attention and cooperation.
JRZ/acCC: Richard Griffin, Esq.
69480 doc
EXHIBIT “19”
EXHIBIT “20”
10/27/09 4:49 PMwww.detnews.com | Printer-friendly article page
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October 27, 2009 http://detnews.com/article/20091027/METRO01/910270349
Suspect in corruption inquiry says union officialgot favorsPAUL EGANThe Detroit News
An Illinois businessman told the FBI he arranged for an inflated price to be paid for the home of aDetroit-area union official in return for the union investing $65 million of its pension funds with hiscompany.
John Orecchio of AA Capital Partners told federal investigators there was "a quid pro quo" betweenthe Operating Engineers Pension Fund investing the money with his firm in December 2003 andOrecchio arranging for an inflated price to be paid for the home of John M. Hamilton, businessmanager and general vice president of Local 324 of the International Union of Operating Engineers,according to documents obtained by The Detroit News.
In July, Orecchio, a partner in the Chicago-based investment firm, was charged in federal court inIllinois with fraud and embezzlement. He is accused of misappropriating $24 million of the fundsinvested with his company by the Operating Engineers and other clients. He has had conversationswith the FBI since at least 2006, and the charges are pending.
Hamilton did not respond to telephone and e-mail messages Monday seeking comment.
The News reported Saturday that Orecchio told the FBI he wrote a $10,000 check in 2005 to theKilpatrick Civic Fund, a nonprofit corporation controlled by the former mayor, to get an audience withKilpatrick to "pitch" a $20 million city pension fund investment in AA Capital.
Kilpatrick later appeared with Orecchio before the board of the Detroit Police and Fire RetirementSystem in support of the proposed investment of public pension funds, meeting minutes show. Theboard approved the investment, though the deal later fell through before the money changed hands.
Orecchio told investigators from the FBI and the Office of Inspector General of the U.S. Department ofLabor that he spent a lot of money "wining and dining" Hamilton before and after the union made its$65 million pension fund investment with AA Capital.
But he did not tell investigators he dealt directly with Hamilton on the alleged inflated purchase ofHamilton's home, the records show.
Orecchio said it was Joseph. P. Caretti, an owner of Independent Investment Management LLC, anda second man, a banking official who told him he needed to arrange for the purchase of Hamilton'shome in St. Clair County's Cottrellville Township.
"Hamilton needed more cash and wanted to sell his house at a premium, but he was having troublefinding a buyer at the price he wanted," Orecchio told the FBI in 2006. Orecchio said he was told thatbuying Hamilton's home "is what we owe him for the $65 million commitment."
10/27/09 4:49 PMwww.detnews.com | Printer-friendly article page
Page 2 of 2http://detnews.com/article/20091027/METRO01/910270349&template=printart
Caretti, who told The Detroit News in September 2008 he was surprised to hear the FBI was askingquestions about him, did not return a phone call Monday.
Orecchio told investigators he was "on the hook" for the purchase of Hamilton's home but hearranged for the purchase to be made by Dan Griffin, a friend of Hamilton's who worked in realestate, the reports say.
St. Clair County records show Daniel S. Griffin purchased Hamilton's property for $650,000 inFebruary 2004. Griffin resold the property a little over a year later, in September 2005, for $500,000,records show.
Griffin could not be reached for comment.
Orecchio told investigators he provided other favors to Hamilton.
A trip to Las Vegas in September 2003 for the Oscar De La Hoya-Shane Mosley boxing boutincluded Hamilton and others, with AA Capital paying for the flight, rooms and meals at the TreasureIsland Hotel, Orecchio told investigators.
He said Hamilton also asked him to get ring-side seats for Kilpatrick, who was not part of the trip.Orecchio said he got four ring-side seats for Kilpatrick at a cost of $10,000 each.
But on the night of the bout, Orecchio said he saw Kilpatrick and his father, Bernard N. Kilpatrick,seated elsewhere at the boxing match.
He said unnamed "henchmen" of Kilpatrick's were in the seats he purchased.
[email protected]">[email protected] (313) 222-2069
© Copyright 2009 The Detroit News. All rights reserved.
EXHIBIT “21”
For Immediate Release Contact January 4, 2011 Jay Lederer (202) 778-2626 [email protected]
Jamie Horwitz (202) 549-4921 [email protected]
Statement by
International Union of Operating Engineers General President James T. Callahan
on Today’s Appointment of IUOE General Counsel
Richard Griffin to the National Labor Relations Board
Today’s recess appointment of Richard Griffin to the National Labor Relations Board is the right decision at the right time to keep this critical agency on the job, providing stability and balance to American workers and employers. Richard is highly respected by lawyers on both the labor and business side of labor law. His fair-minded approach to legal questions is exactly what the NLRB needs. As IUOE’s General Counsel and as a former counsel to the NLRB Board members, he has substantial experience in employment law; as a former trustee of the IUOE’s central pension fund, he played a key role in safeguarding the interests of employers and employees alike. Some Republican members of the Senate have made a determined effort to cripple the NLRB and other government agencies by refusing to act on President Obama’s nominees, no matter how qualified. Leaving the NLRB without a quorum would penalize both labor and employers. Their position is comparable to ejecting the referee if you don’t like the score of the game. That’s just plain wrong. Richard Griffin and the President’s other pick Sharon Block are distinguished attorneys who will bring an even-handed approach to labor and management issues. They deserve to be seated – and workers and employers deserve a functioning National Labor Relations Board.
--more--
IUOE General President James T. Callahan Statement on Richard Griffin / Page 2
The International Union of Operating Engineers (IUOE) represents more than 400,000 members in 123 local unions across the U.S. and Canada, including operating engineers, who work as heavy equipment operators, mechanics, surveyors in the construction industry; stationary engineers in building and industrial maintenance; nurses and other health care workers; and public employees. IUOE, which operates over 100 state-of-the-art apprentice programs, is an affiliate of the AFL-CIO.
General President James T. Callahan was elected to office in November of 2011 and assumed his duties as General President on January 1, 2012. He previously served as IUOE General Secretary-Treasurer and was elected an International Vice President in 2008. He has served as President and Business Manager of Local 15 in New York City since 2003. A 32-year member, he was one of the many operating engineers who responded immediately to the September 11 tragedy and worked the entire recovery effort at Ground Zero. Callahan also serves on the Executive Board of the New York City Building and Construction Trades Council, the New York City Central Labor Council, and the New York State AFL-CIO. He is a member of the Board of Governors of the New York Building Foundation and sits on the Metropolitan Transit Authority’s Blue Ribbon Commission. Callahan is also a Trustee of the IUOE General Pension Fund.
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EXHIBIT “22”
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THE
CONSTITUTIONGOVERNING
THE INTERNATIONAL UNION OFOPERATING ENGINEERS
AND
ALL SUBDIVISIONS, BODIES, LOCAL UNIONS
AND MEMBERS THEREOF
THE INTERNATIONAL UNION OF OPERATING ENGINEERS
ORGANIZED DECEMBER 7, 1896AFFILIATED WITH AFL-CIO
Compiled by the Constitution Convention Sept. 30, 1938, and adopted by Referendum Vote of Entire Membership Dec. 31, 1938.
Amended by 21st Int. Convention April 1940Amended by 22nd Int. Convention April 1944Amended by Referendum September 1, 1947Amended by 23rd Int. Convention April 1948Amended by Referendum August 1, 1951Amended by 24th Int. Convention April 1952Amended by 25th Int. Convention April 1956Amended by 26th Int. Convention April 1960Amended by 27th Int. Convention April 1964Amended by 28th Int. Convention April 1968Amended by 29th Int. Convention April 1972Amended by 30th Int. Convention April 1976Amended by Referendum September 28, 1977Amended by 31st Int. Convention April 1980Amended by 32nd Int. Convention April 1984Amended by 33rd Int. Convention April 1988Amended by 34th Int. Convention April 1993Amended by 35th Int. Convention April 1998Amended by 36th Int. Convention April 2003Amended by 37th Int. Convention April 2008
1
CONTENTS
Preface Suggested Order of Business . . . . . . 4
Art. I. Name, Purposes, Government and Ritual . . . . . . . . . . . . . . . . . . . . . 5
Art. II. Emblem . . . . . . . . . . . . . . . . . . . . . . 7
Art. III. General Conventions, Powers, Delegates, Etc. . . . . . . . . . . . . . . . . . 8
Art. V. General Executive Board . . . . . . . . . 19
Art. VI. General President . . . . . . . . . . . . . . . 22
Art. VII. General Vice Presidents . . . . . . . . . . 26
Art. VIII. General Secretary-Treasurer . . . . . . 26
Art. IX. Board of Trustees . . . . . . . . . . . . . . . 29
Art. X. Membership . . . . . . . . . . . . . . . . . . . 30
Art. XI. Income of International Union . . . . 31
Art. XII. Territorial Jurisdiction . . . . . . . . . . . 34
Art. XIII. Craft Jurisdiction . . . . . . . . . . . . . . . 35
Art. XIV. Charters . . . . . . . . . . . . . . . . . . . . . . 39
Art. XV. Transfer, Clearance, Service Dues, Withdrawal Cards and
2
Art. XVI. Discipline and Expulsion . . . . . . . . . 57
Art. XVII. Appeals . . . . . . . . . . . . . . . . . . . . . . . 59
Art. XVIII. Amending and Revising Constitution, Initiative, and Recall . . . . . . . . . . . . 62
Art. XIX. Defense Fund, Lockouts, Strikes . . . 64
Art. XXI. Joint Executive Boards . . . . . . . . . . . 71
Art. XXII. District Councils . . . . . . . . . . . . . . . 72
Art. XXIII. State, Interstate and Provincial Organizations . . . . . . . . . 73
Art. XXIV. Government of Local Unions . . . . . 75
Art. XXV. Apprenticeship . . . . . . . . . . . . . . . . . 106
Art. XXVI. District Administration Form of Local Union Government . . . . . . 107
Art. XXVII. The General Pension Fund Plan . . . . 110
Art. XXVIII. Honorary Positions Created . . . . . . . 110
Art. XXIX. Savings Clause . . . . . . . . . . . . . . . . . 110
Index . . . . . . . . . . . . . . . . . . . . . . . . . 112
3
PREFACE SUGGESTED ORDER OF BUSINESS FOR LOCAL UNIONS
1. Meeting called to order per Ritual.2. Examination of dues books and/or cards by Conductor
4. (a) Minutes of the previous meeting. (b) Minutes of the Local Executive Board.5. Presentation of applications for membership.6. Reports of committee on applications.7. Reading of communications by the Recording- Corresponding Secretary.8. Reading of receipts for the per capita tax and other monies sent to the General Secretary-Treasurer.
10. Reports of sickness, accident and death of members.11. (a) Reports pertaining to apprentices. (b) Reports pertaining to Branch Locals.
13. New business.
(b) Delegates (c) Committees: (i) Safety and health (ii) Legislation and political action (iii) Other (d) Business Representatives (e) Trustees (f) Auditors (g) Treasurer.15. Subjects for the good and welfare.16. Appropriations for monies from the treasury (drawing orders signed by the President and the Recording-Corresponding Secretary authorizing the payment of bills and other expenses).17. Motion or order for adjournment.
4
THE CONSTITUTIONOF
THE INTERNATIONAL UNION OFOPERATING ENGINEERS
ARTICLE INAME, PURPOSES, GOVERNMENT
AND RITUAL
Name
This organization shall be known as the In-ternational Union of Operating Engineers
-ated with the AFL-CIO and such of its departments as this organization may deem expedient.
Purposes
The objects and purposes of this organiza-tion are to elevate the trade of operating en-
gineers (by which trade the membership thereof earn a live-lihood for themselves and their dependents) to its proper position in all industrial activity and the ranks of organized workers; to encourage a higher standard of skill among its members; to cultivate feelings of friendship among the men of the craft and those who may employ its members; to organize all persons working in the jurisdiction of this International Union without regard to race, creed, color, sex, religion, age or national origin; to promote the health, welfare and safety of its members and their families; to promote, foster and develop apprentice programs, train-ing programs and other means to advance the skills, ef-
its members in securing and stabilizing employment; to assist employers in obtaining skilled craftsmen; to secure improved wages, hours, and working conditions through
Art. I.Section 1.
Art. I.Section 2.
5
bargaining agreements and through legislative action and other appropriate means; to further, directly and indirectly, the joint interest of the members of the International Union in the betterment of general economic and social condi-tions in the world, by engaging in legislative, political, educational, civic welfare, and other appropriate activities; while preserving the integrity and autonomy of this Inter-national Union, to work within the AFL-CIO and to coop-erate with other International Unions for the advancement of the entire labor movement, and to assist and cooperate with free and democratic labor organizations throughout the world; to provide aid and assistance for, and to bring
-ated Local Unions; to insure the better protection of life and property by securing the enactment of state, provincial and city Engineers’ License Laws and by other appropriate means; and to protect and strengthen our democratic insti-tutions and to vigorously oppose the efforts of those who advocate the overthrow of the established order, either of government or of this organization, by force or violence or subversive tactics.
Government
The International Union of Operating Engineers shall be governed by the fol-
lowing bodies:1. General Convention2. General Executive Board
4. Board of Trustees5. State and Provincial Organizations6. Joint Executive Boards7. District Councils8. Parent Local Unionsand each of such bodies shall constitute a distinct entity each with its own separate identity but functioning in con-formity to the Constitution and Ritual. No Local Union
Art. I.Section 3.
6
or authority to act, nor be deemed to act, on behalf of or agent for, or legally bind any other Local Union or mem-ber thereof, the General Convention, the General Execu-
Union of Operating Engineers, unless such authority is ex-pressly granted by the provisions of this Constitution or
or member thereof, Supervisor or Representative, shall be authorized or permitted to accept service of summons, sub-poena, or make entry of appearance, for or on behalf of
Executive Board, the Board of Trustees, or any other Local Union or other subdivision of the International Union of Operating Engineers.
Ritual
The Ritual and Obligation shall form a part of this Constitution and shall be adminis-
tered in such form, and from time to time revised in such manner as the General President, with the approval of the General Executive Board, may direct.
ARTICLE IIEMBLEM
Description
Union of Operating Engineers, duly regis-tered as a trademark, is as follows:
Art. I.Section 4.
Art. II.Section 1.
7
Use of Emblem
This emblem shall be generally used on all printed matter, including charters, supplies
and stationery of the organization and its various subdivi-sions, and in forms to be worn by members.
Seals and Facsimiles
bear this emblem. The seal of each General
the name of such subdivision using the same. No seal shall
the organization, nor shall the use or holding of any seal confer authority unless such seal shall have been furnished by the General Secretary-Treasurer. All seals shall be the property of the International Union of Operating Engi-neers. No facsimile of the emblem shall be used except such as are supplied by the General Secretary-Treasurer.
ARTICLE IIIGENERAL CONVENTIONS
Powers
All the sovereign power, including the leg-islative, executive, administrative and ju-
dicial, of the International Union of Operating Engineers shall be vested in its General Convention when in session.
the General Convention may grant and issue charters for Local Unions and subdivisions thereof and local, State and Provincial organizations and such other subdivisions of the International Union as from time to time may be deemed advisable; set the cost for said charters and necessary sup-plies issued with said charters; suspend and revoke any of said charters; adopt and issue a seal for the International
Art. II.Section 2.
Art. II.Section 3.
Art. III.Section 1.
8
and Provincial organizations and any other subdivisions; adopt, print and issue dues books and/or cards for the use of the membership; print and issue per capita tax dues stamps and collect for same; print, issue and mail an of-
-
Unions, local, State and Provincial organizations and any other subdivisions for the proper keeping of their records and affairs; invest the funds of the International Union; buy and sell real estate (improved or otherwise) and bonds and other securities; establish, impose and collect per capita tax; establish, impose and collect assessments upon members, charter applicants, Local Unions, local, State and Provincial organizations and any other subdivisions as hereinafter provided; impose an initiation fee and an initiation fee tax; establish a Defense Fund and pay strike
therefrom; supervise the operation of Local Unions, local, State and Provincial organizations and any other subdivi-sions and appoint supervisors and receivers when neces-sary; prefer charges against Local Unions, local, State and Provincial organizations and any other subdivisions and
-dividually or collectively) and order trials with authority to discipline those affected; prefer charges and order tri-
member of the Board of Trustees; register, copyright and
any document of the organization; establish and maintain a general headquarters in Washington, D.C.; employ clerical
and sue for the possession of all real and personal property, paraphernalia, books, charters, records, card indexes, seals and funds of a Local Union, local, State or Provincial orga-nization and any other subdivision; establish a General Ex-
9
ecutive Board with full powers of the Convention between Conventions; include and adopt as part of the Constitution a procedure for the government and regulation of Local Unions, subdivisions thereof, local, State and Provincial
segregate, assign and amend craft jurisdiction and territo-rial jurisdiction to which Local Unions, their subdivisions, local, State and Provincial organizations and any other subdivisions already established or hereinafter chartered
abrogate understandings or written agreements with other
competitive craft unions with the International Union of Operating Engineers and by such amalgamation compel all
to be subservient to the Constitution, amendments thereto and decisions and orders of the General Executive Board and the General President of the International Union; re-
it; provide for the general welfare of the organization and its members; take all steps necessary to protect the inter-ests of the organization; make all disbursements necessary or appropriate in the exercise of the above powers or in the
Union; together with all other rights, powers, privileges
Method of Holding Conventions
A General Convention of the International Union of Operating Engineers shall be held
thereafter during the month of April, or if the logistics of arranging the Convention so require, during any period between March 20 and May 10, at such place as the pre-ceding Convention may determine, unless referred to the General Executive Board by the Convention for selection.
Art. III.Section 2.
10
Composition of Convention
The General Convention shall be composed
of the General Executive Board and the Board of Trustees and the duly elected representative delegates from Local Unions, and none but these shall be entitled to vote. Local Unions may choose to elect alternate delegates not to exceed one alternate
-nates. The election of delegates and alternates shall be held at an election in the said Local Unions in February prior to the Convention, unless under the provisions of the Local Union bylaws they are elected prior thereto but in no event more
-cept that Local Unions may by their bylaws designate as del-
elected subsequent to the adoption of such bylaws. The election of delegates shall be conducted by secret
ballot. In order to be eligible to be a candidate for del-egate, a member must, at the time of nomination, be in good standing with respect to payment of dues and meet the requirements contained in the second paragraph of Ar-ticle XXIV, Subdivision 1, Section (b). In addition, Local Unions may also impose in their bylaws a requirement that
support of their candidacies signed by not more than two-hundred (200) members or two percent (2%) of the entire membership, whichever is less. Adequate safeguards to insure a fair election shall be provided by the Local Union in accordance with the International Constitution, applica-ble law, and such rules and regulations as may be promul-gated by the General Executive Board. The ballots and all other records pertaining to the election of delegates shall
Where there are no more candidates nominated for dele-gates and alternates than are authorized by said local union signifying no opposition, the secret ballot election may be
Art. III.Section 3.
11
dispensed with and, in such event, the Recording-Corre-sponding Secretary shall be directed to cast one ballot for all the unopposed candidates for delegates and alternates, who shall then be declared duly elected.
International Union of Operating Engineers
Basis of Representation
The basis of delegate representation shall be as follows:
Local Union Membership
12
Minimum Maximum # of Delegates
UNDER 251 1
251 500 2
501 900 3
901 1,300 4
1,301 1,700 5
1,701 2,100 6
2,101 2,500 7
2,501 3,000 8
3,001 3,700 9
3,701 4,400 10
4,401 5,100 11
5,101 5,900 12
5,901 6,700 13
6,701 7,500 14
7,501 8,400 15
Art. III.Section 4.
Art. III.Section 5.
13
8,401 9,300 16
9,301 10,200 17
10,201 11,200 18
11,201 12,200 19
12,201 13,200 20
13,201 14,200 21
14,201 15,200 22
15,201 16,200 23
16,201 17,200 24
17,201 18,200 25
18,201 19,200 26
19,201 20,200 27
20,201 21,200 28
21,201 22,200 29
22,201 23,200 30
23,201 24,200 31
24,201 25,200 32
25,201 26,200 33
26,201 27,200 34
27,201 28,200 35
28,201 29,200 36
29,201 30,200 37
30,201 31,200 38
31,201 32,200 39
32,201 33,200 40
33,201 34,200 41
34,201 35,200 42
OVER 35,201 One additional delegate per 5,000 members
Each delegate seated and present at the Convention shall have one vote regardless of the number of members on which the Local Union has paid per capita tax. The number of delegates to which a Local Union may be entitled shall be based on the average number of members on which the Local Union has paid per capita tax through the month of September of the calendar year prior to the date of the Convention. No delegate shall be permitted to represent more than one Local Union.
Credentials of Delegates
Delegates to the Convention must present credentials on blanks furnished by the Gen-
eral Secretary-Treasurer, properly attested under the seal of the Local Union of which they are members in good standing. To be entitled to have its delegate or delegates seated and have a vote in a General Convention, both the delegates and their alternates, as well as the Local Union represented by them, must not be in arrears in the pay-ment of the per capita tax or any other indebtedness to the International Union due on or prior to the 31st day of December next preceding the Convention. The right of delegates to be seated in a General Convention shall be upon report and approval of the Credentials Committee. An appeal from a decision of the Credentials Committee may be made to the Convention, and delegates affected thereby shall not be seated until said appeal shall have been voted thereon by the Convention.
Expenses of Delegates
The mileage and expenses for the attendance of delegates to the Convention shall be de-
frayed by the Local Union they represent. In cases of hard-ship, and upon good cause shown, the Local Union may ap-
in securing representation of a delegate at a Convention.
Art. III.Section 6.
Art. III.Section 7.
14
Quorum
A quorum for the transaction of business shall consist of a majority of the delegates
seated at the Convention.
Appointment of Committees
Upon the opening of the Convention the General President shall appoint his commit-
Credentials and Resolutions shall be appointed by him pri-or to the Convention, and report at the call of the General President. The General Secretary-Treasurer shall furnish the General President a list of delegates whose Local Unions are in good standing as required by the Constitution. After the report of the Committee on Credentials has been acted upon, the General President shall appoint such other committees as may be necessary. The members of the committees so appointed shall receive remuneration for the services they render in an amount determined by the General President.
General Executive Board and the Board of Trustees shall be required to attend all Conventions and their expenses shall be paid out of the funds of the Inter-national Union of Operating Engineers. By virtue of his
unless elected as a regular delegate by the Local Union in which he holds membership.
ARTICLE IVGENERAL OFFICERS
Operating Engineers shall consist of a Gen-
Art. III.Section 8.
Art. III.Section 9.
Art. III.Section 10.
Art. IV.Section 1.
15
eral President, General Secretary-Treasurer, First General Vice President, Second General Vice President, Third General Vice President, Fourth General Vice President, Fifth General Vice President, Sixth General Vice Presi-dent, Seventh General Vice President, Eighth General Vice President, Ninth General Vice President, Tenth General Vice President, Eleventh General Vice President, Twelfth General Vice President, Thirteenth General Vice President,
Nominations
Candidates for the positions of General Of-
member of the organization who meets the eligibility re-quirements for Business Manager in his Local Union shall
at the General Convention to be held in 2008, the nomina-
General Secretary-Treasurer must be supported by the writ-ten petition of at least six Local Union delegations, which shall be submitted to the Chair. Nominations must be made by delegates from Local Unions seated at the Convention.
of Trustee shall be elected. Elections shall be by roll call vote
Art. IV.Section 2.
Art. IV.Section 3.
16
call vote and such candidate or candidates shall be declared elected. Each delegate shall be entitled to cast the number of votes prescribed by Article III, Section 5. However, one del-egate, unless objection is voiced at the time the Local Union’s number is called by a delegate from such Local Union, may cast the vote of the entire delegation of such Local Union.
three (3) tellers to record, certify and report the results of
ballot and conducted in such fashion that until the comple-tion of the voting, no delegate shall be able to ascertain the number of votes cast for any candidate. However, the foregoing requirement shall not prevent delegates from the same Local Union designating one or more of their number to perform the physical function of casting the votes of the delegates from that Local Union.
No candidate (including a prospective can-
of the International Union of Operating Engineers or from any foundation, corporation or other entity whose funds are derived in whole or in part from any person not a mem-ber of this International Union.
The General Secretary-Treasurer shall pre-serve for one (1) year the credentials of the
delegates and all minutes and other records of the Conven-
installed immediately upon the conclusion
Art. IV.Section 4.
Art. IV.Section 5.
Art. IV.Section 6.
17
-
Bonding
-tative of the International Union who han-
dles funds or other property thereof shall be bonded for the faithful discharge of his duties in such amount and as otherwise required by applicable law. The expense of such bond shall be paid by the International Union.
-ducted at the General Convention to be held
in 2008, any protest relating to the nomination and election
adjournment of the convention. The protest shall set forth -
test shall be referred to the General Executive Board for its review and determination, including a hearing if necessary. The General Executive Board shall issue a decision on the
Compensation
The salaries of the General Vice Presidents and International Trustees shall be set at
to be set by the General President with the concurrence of the General Executive Board. For the Convention to
the salaries they are receiving on the date the Convention
receive an annual percentage salary increase effective July 1 each year. The annual increase shall be equal to the percentage of increase in the National Consumer Price In-dex published by the Department of Labor for the twelve
Art. IV.Section 7.
Art. IV.Section 8.
Art. IV.Section 9.
18
month period ending in the month of May preceding the July increase effective date.
ARTICLE VPOWERS AND DUTIES OF THEGENERAL EXECUTIVE BOARD
The General Executive Board shall consist of the General President, General Secretary-
Treasurer, First General Vice President, Second General Vice President, Third General Vice President, Fourth Gen-eral Vice President, Fifth General Vice President, Sixth General Vice President, Seventh General Vice President, Eighth General Vice President, Ninth General Vice Presi-dent, Tenth General Vice President, Eleventh General Vice President, Twelfth General Vice President, Thirteenth General Vice President, and Fourteenth General Vice Pres-ident, and each member of the Board shall be provided
Powers
All the powers of the General Convention when in session shall, when the same is
not in session, pass to and vest in the General Executive Board, with the exception of such powers as may herein be
-
limitation of its power, it may initiate amendments to the Constitution and conduct referendums thereon, and it may formulate and establish pensions for such of the General
and the employees of the said International Union as the General Executive Board shall deem worthy, and it may order that payments be made thereon for the terms allotted,
provided, however, that any and all pension applications so adopted shall be reasonable and nondiscriminatory.
Art. V.Section 1.
Art. V.Section 2.
19
In case of death, resignation or removal of the General President, the General Secre-
tary-Treasurer shall call a meeting of the General Executive
from among its members a General President, who shall
The General Executive Board shall and is hereby ordered to
or the Board of Trustees. All charges against General Of-
-tive Board or Board of Trustees pursuant to the foregoing sentence must meet the eligibility requirements for nomina-
Meetings
The General Executive Board shall hold sessions at such places and at such times as
it may decide. It shall meet at the call of the General Presi-dent, or at the request of three members of the General Executive Board. In addition to the salary paid to a Gen-
pay the expenses of the members of the General Executive Board, as authorized by the General President, in connec-tion with their participation in General Executive Board meetings and other authorized work performed by them.
Quorum
A quorum for the transaction of any business by the General Executive Board shall con-sist of a majority of the members thereof.
Transacting Business
The General Executive Board may trans-act any business before it without holding
Art. V.Section 3.
Art. V.Section 4.
Art. V.Section 5.
Art. V.Section 6.
20
a session and record the votes of the members by mail, telegram, telephone, facsimile copy, teleconferencing, or any other technology that allows for communication by the Board members.
Hearings
The General Executive Board may hold hear-ings and conduct trials and decide appeals
in connection with any matter, complaint, business or case coming before it and the decision of the General Executive
-clusive and binding. It shall have full power to determine the method of procedure and the times and place for the holding of hearings, trials and appeals, including the power to ap-point a panel of one or more persons to conduct a full and fair hearing on any matter on behalf of the Board. Upon the conclusion of such hearing, the panel shall make a complete
shall be made by the Board. The General Executive Board shall also be empowered to interpret the provisions of this Constitution and decide questions of law arising thereunder.
Defense of Litigation
The International Union is authorized, upon
Board, to pay all expenses for investigation services, em-ployment of counsel and other necessary expenditures in any cause, matter, case or cases where an International
have acted on behalf of the International is charged with any violation of any law or is sued in any civil action with respect to any matter arising out of his duties, except if
-ate or member thereof, in which event he may be indemni-
Art. V.Section 7.
Art. V.Section 8.
21
ARTICLE VIPOWERS AND DUTIES OF THE
GENERAL PRESIDENT
It shall be the duty of the General President to preside at all meetings of the General
Convention. At least thirty (30) days prior to the holding of a General Convention he shall publish all decisions ren-
-
allow a copy for each delegate to the Convention.
To Review Cases and Interpret Laws, Etc.
He shall review all cases, complaints and
Board or the General Secretary-Treasurer. He shall be em-powered to render decisions on the merits of such cases,
-terpret the provisions of the Constitution and decide ques-tions of law arising thereunder. He shall be vested with all the administrative powers of the organization.
To Invoke and Administer International Supervision and Other Peremptory Powers
The General President shall have the power
and any other subdivision of the International Union and members to comply with this Constitution and any law-ful rulings or orders of the International Union. For the
assuring the performance of collective bargaining agree-ments or other duties of a bargaining representative, restor-ing democratic procedures, or otherwise carrying out the legitimate objects of the International Union, including the
Art. VI.Section 1.
Art. VI.Section 2.
Art. VI.Section 3.
22
observance of the Ritual, Obligation, law, rules or deci-sions of the organization or its duly constituted authorities, he shall have full power to suspend or remove such Local
under International Supervision. He shall have power to -
under International Supervision, which appointees shall conduct the affairs over which they have been appointed for such time and in such manner as he may direct. All of
-cal Union whose charter shall have been suspended by the General President or shall have been placed under Interna-tional Supervision by him, shall be fully and completely conducted and administered by the General President or his deputy thereunto appointed with full power of control therein and thereover. During such suspension or Interna-tional Supervision all rights and powers of the Local Union to conduct its own affairs shall be suspended. He or his deputy shall countersign all vouchers and checks for pay-ment of monies or for withdrawing funds from the bank.
all committees not otherwise provided for, to deputize any member in good standing to perform any of the powers and
Whenever the General President exercises his power
suspend or revoke charters of Local Unions, or place such -
national Supervision, a hearing shall be held before him or his authorized representative, to determine the necessity for taking such action, with the General President making the ultimate decision. Reasonable notice of such hearing
-nate union involved. If the General President determines that an emergency exists requiring immediate action to be
23
taken prior to a hearing, he may take such action, but the hearing shall be held within a reasonable time thereafter. In all other cases the action will not be taken until a hearing has been held.
Failure of the General President to exercise the author-ity vested in him under this Section shall not in itself be
-tion of, any act or any failure to act on the part of any Local Union or other subdivision of the International Union, or
To Issue Charters, Require Mergers, andAppoint Representatives, and Negotiate and
Enter Into Agreements
He shall be vested with full discretionary power to issue charters. Subject to the ap-
proval of the General Executive Board, he shall have the power, on such terms as he determines to be appropriate, to require the merger of Local Unions and to merge other labor organizations into the International Union. He shall have power to appoint Representatives of the International Union in such localities as shall appear to him to be for the best interest of the organization, as well as International Monitors of the administration of Local Unions. He shall have the authority to negotiate and enter into collective bargaining agreements binding on the Local Unions.
As Chairman of General Executive Board, Etc.
He shall preside as chairman of the General Executive Board and shall make a full report
members for assistance and advice when occasion demands or requires it. He shall be strictly accountable and respon-sible for the faithful performance of his duties and shall ad-
Art. VI.Section 4.
Art. VI.Section 5.
24
minister and enforce every law, rule, regulation and require-ment of the Constitution, Ritual and Obligation. He shall be vested with unlimited discretion in the application and administration of his powers and duties. He shall be vested with such other powers and duties as the General Executive
Hearings for Members
Local Unions affected or aggrieved by an act or decision of the General President, may demand a hearing thereon before the General Executive Board, with appeal to the General Convention in the manner hereinaf-ter prescribed.
Compensation
The salary of the General President shall be set at the General Convention, with his
Board. For the Convention to be held in 2008, the salary of the General President is set as the salary he is receiving on the date the Convention commences. Between Conven-tions, the General President shall receive an annual percent-age salary increase effective July 1 each year. The annual increase shall be equal to the percentage of increase in the National Consumer Price Index published by the Depart-ment of Labor for the twelve month period ending in the month of May preceding the July increase effective date.
of the delegates representing this Organization at the Conven-tions of the AFL-CIO or sessions of any of its departments.
To Make Visitations
Should any Local Union be involved in trouble or submit grievances to the Gen-
eral President or the General Executive Board, the Gen-
Art. VI.Section 6.
Art. VI.Section 7.
Art. VI.Section 8.
25
eral President shall visit such Local Union in person or send a deputy.
Vested With All Powers ofGeneral Executive Board in Interim, Etc.
All powers heretofore vested in the Gen-eral Executive Board when in session shall,
when the same is not in session, pass to and vest in the General President. All of the acts and decisions of the Gen-eral President shall be reviewable by the General Execu-tive Board and shall continue in full force and effect until revoked by action of the General Executive Board.
ARTICLE VIIPOWERS AND DUTIES OF
VICE PRESIDENTS
The General Vice Presidents of the Interna-tional Union of Operating Engineers shall be
members of the General Executive Board. They shall assist
in such manner as he may direct and shall have such other
delegated to them by the General Executive Board.
ARTICLE VIIIPOWERS AND DUTIES OF THE
GENERAL SECRETARY-TREASURER
To Keep Record of Minutes
The General Secretary-Treasurer shall keep a correct record of the minutes and proceed-
ings of the General Convention and of the General Execu-
Convention he shall notify all Local Unions of the holding thereof, which notices shall set forth the provision of the Constitution relating to the basis of representation of del-egates to the General Convention.
Art. VI.Section 9.
Art. VII.Section 1.
Art. VIII.Section 1.
26
To Collect and Pay Monies
He shall collect and receive all monies and funds due from all Local Unions, subdivi-
be designated by the General Executive Board. He shall
and checks in payment of general expenses, salaries and other bills in the manner and form provided by the General Executive Board and shall take receipts therefor. He shall
duties incident thereto.
Furnish Bond and Make Investments
He shall give bond for the faithful perfor-mance of his duties. Such bond shall be in
such amount and with such bonding companies as required by applicable law. He shall, when authorized by the Gen-eral Executive Board, invest the funds of the International Union in the manner and form directed.
Membership Records and Monthly Reports
He shall keep a correct record of the mem-bership of each Local Union and subdivi-
sion and issue quarterly to each Local Union a report as to his receipts and disbursements. He shall make a monthly report to the General President and the General Executive Board and the Board of Trustees. He shall transmit to the Financial Secretaries of Local Unions per capita tax dues stamps or other appropriate record of payment, as provided for in this Constitution and shall keep a record thereof.
Compensation
The salary of the General Secretary-Trea-surer shall be set at the General Convention,
Art. VIII.Section 2.
Art. VIII.Section 3.
Art. VIII.Section 4.
Art. VIII.Section 5.
27
-ecutive Board. For the Convention to be held in 2008, the salary of the General Secretary-Treasurer is set as the sal-ary he is receiving on the date the Convention commences. Between Conventions, the General Secretary-Treasurer shall receive an annual percentage salary increase effec-tive July 1 each year. The annual increase shall be equal to the percentage of increase in the National Consumer Price Index published by the Department of Labor for the twelve month period ending in the month of May preceding the July increase effective date.
Editor of the Journal
-nal subject to recommendations of the Gen-
eral Executive Board and the General President and shall promptly publish therein a record of the amendments to the International Constitution adopted by a General Convention and allow reasonable space for the inclusion of articles sub-mitted by Local Unions upon any measure submitted to vote of the membership. He shall distribute to each Convention delegate a copy of the record of the proceedings and mea-sures adopted by a General Convention promptly thereafter.
Reports to General Convention
He shall, each month, pay all per capita tax-es due from this organization to the AFL-
CIO or other bodies with which this organization may be
-ies received and disbursed by him, the balance on hand and where deposited, to each General Convention.
Accounting for Stewardship
deliver to the Board of Trustees all books,
Art. VIII.Section 6.
Art. VIII.Section 7.
Art. VIII.Section 8.
28
monies, property and other belongings of the Interna-tional Union in his keeping. His books, records, transac-tions and affairs shall always be open for inspection by
Delegate to AFL-CIO, Etc.
the delegates to represent the International Union at the convention of the AFL-CIO or its depart-ments. He shall devote his full time to the duties of his
from time to time be delegated or assigned to him by the General Executive Board.
ARTICLE IXBOARD OF TRUSTEES
Composition of Board
There shall be a Board of Trustees consist-
hereinbefore stated. One of the members of the Board shall be elected by the Board to serve as Chairman there-
Meetings of the Board
Meetings of the Board of Trustees shall be held from time to time as the members
thereof may designate or upon call of the General Ex-ecutive Board.
Quorum
A quorum for the transaction of business by the Board of Trustees shall consist of a
majority of the members thereof.
Art. VIII.Section 9.
Art. IX.Section 1.
Art. IX.Section 2.
Art. IX.Section 3.
29
Powers and Duties of the Board of Trustees
The Board of Trustees shall be the auditors of both the General Executive Board and
-ing Engineers. They shall audit the books of the General Secretary-Treasurer at least once every six months and report thereon to the General Executive Board. They shall render a report of their duties to the General Convention. They shall take an annual inventory of the property belong-ing to the International Union of Operating Engineers and
safeguarded by proper bonds. They shall audit and examine all bills, expenditures and expense accounts and all receipts
bookkeeping methods and accounting systems. They shall
receive and hold the funds, books, papers, documents and --
ing to said position upon being given proper receipt. They shall perform such other duties as from time to time may be delegated and assigned to them by the General Convention, the General Executive Board or the General President.
ARTICLE XMEMBERSHIP
Any engineer engaged in the craft over which this organization exercises craft jurisdiction,
or other person who may qualify to become a junior engineer, assistant engineer, or registered apprentice engineer therein, and any other engineer engaged as an inspector of boilers or other machinery or as an examiner of engineers, or any other
Art. IX.Section 4.
Art. X.Section 1.
30
person, may upon application, acceptance and initiation in the manner and form required in this Constitution, become a member of the International Union of Operating Engineers.
admitted to membership. No person shall be denied mem-bership on the basis of race, creed, color, sex, religion, age or national origin. No applicant for membership shall apply to or be accepted by any Local Union other than the one within the jurisdiction in which he is employed unless such
Minimum and Maximum Initiation Fees and Dues
The minimum initiation fee in all Local Unions shall be not less than Five Dollars
($5.00) per applicant. The minimum monthly dues in all Local Unions that do not charge administrative, supple-mental or working dues, shall not be less than $15.75 per month per active member effective July 1, 2008, $16.25 per month per active member effective July 1, 2009, $16.75 per month per active member effective July 1, 2010, $17.25 per month per active member effective July 1, 2011, and $17.75 per month per active member effective July 1, 2012. Maximum initiation fees and maximum dues charged by Local Unions to their applicants or members
No proposed increase in initiation fees may be voted upon by a Local Union unless and until the proposed increase is approved by the General President.
ARTICLE XIINCOME OF INTERNATIONAL UNION
Per Capita Tax
Each Local Union must pay the General Secretary-Treasurer a per capita tax of
$8.75 per month effective July 1, 2008, $9.25 per month
Art. X.Section 2.
Art. XI.Section 1.
31
effective July 1, 2009, $9.75 per month effective July 1, 2010, $10.25 per month effective July 1, 2011, and $10.75 per month on and after July 1, 2012 for each member of the Local Union and its Subdivisions who has not been report-ed to the General Secretary-Treasurer as suspended, with-drawn, transferred or expelled, and in addition an amount equal to the per capita tax must be paid for each person making payments to the Local Union in lieu of dues under agency shop or similar provisions. The per capita tax re-port signed by the Financial Secretary must be transmitted to the General Secretary-Treasurer on or before the last day of the month following that for which the per capita tax is
-cally in a form compatible with the International Union’s system, starting no later than the report due for the month of January 2011. The International will provide assistance to Locals for the transition to electronic reporting.
A payment computed on the closing membership for the month ($8.75 per month effective July 1, 2008, $9.25 per month effective July 1, 2009, $9.75 per month effective July 1, 2010, $10.25 per month effective July 1, 2011, and $10.75 per month on and after July 1, 2012) and the ini-tiation fee tax (25% of the current initiation fee) on each member initiated for the month, must be submitted with the per capita tax report. Thereafter, the General Secretary-Treasurer shall transmit to the Financial Secretary a receipt for the initial amount remitted with a statement covering the remaining amounts due for the month for which the per
tax on suspended members reinstated, expelled members reinstated, members admitted on withdrawal cards, per capita tax for members deducted deceased and members deducted on withdrawal cards and differences of initiation fee tax. The per capita tax due shall immediately be re-mitted to the General Secretary-Treasurer by the Financial Secretary. The General Secretary-Treasurer shall return a receipt covering payment of balances due. Upon the com-
32
the General Executive Board shall modify the procedure herein to be compatible with electronic reporting, and shall include in any such procedure a provision for the charging of 5% simple interest upon any per capita tax that is more than one month overdue.
Distribution of Per Capita Tax
The General Executive Board shall main-
a Defense Fund, a General Pension Fund, and such other Funds as it may determine. The per capita tax received for each member and other income of the International Union shall be allocated among these Funds as the General Ex-ecutive Board shall determine.
Charter Fees and Assessments
Before the issuance of any charter to a Local Union, the Financial Secretaries in the cases
of existing Local Unions and the applicants for charters in all other instances shall forward to the General Secretary-Treasurer the following:
(b) Assessment for each signatory to application – One ($1.00) Dollar.
The same charter fee shall be paid in the case of the issuance of a charter to any other subdivision of the Inter-national Union, except that in the case of subdivisions of Local Unions the charter fee paid by Local Unions shall be Ten ($10.00) Dollars except for an ‘0’ branch charter which shall be issued without fee.
Initiation Fee Taxes and International Initiation Fees
The Financial Secretaries of Local Unions shall forward to the General Secretary-
Treasurer with the report required by this Article for the
Art. XI.Section 2.
Art. XI.Section 3.
Art. XI.Section 4.
33
month in which new members have been initiated into membership in the Local Union or any subdivision thereof the following for each newly initiated member:
initiation fee established as of the date of reporting the new member. The initiation fee shall be deemed to include all fees, assessments and other charges required to be paid
but shall not be deemed to include any assessment for the
Reinstatement Assessments
The Financial Secretaries of Local Unions shall forward to the General Secretary-
Treasurer with the report required for the month in which members are reinstated the following:
(a) Five ($5.00) Dollars for each member reinstated to membership who has held a withdrawal card as provid-ed in Article XV.(b) Five ($5.00) Dollars for each member reinstated to membership after suspension or expulsion, plus capita tax for each month required, and such other charges as may be provided for in Article XXIV.
Other Fees, Taxes and Assessments
Subject to applicable laws, other fees, taxes, assessments and other charges for obtaining
income for the International Union for any purpose may be increased, decreased, changed or added from time to time by the General Convention or the General Executive Board.
ARTICLE XIITERRITORIAL JURISDICTION
The territorial jurisdiction of any Local Union heretofore or hereafter established
shall be such as described on the face of the charter issued
Art. XI.Section 5.
Art. XI.Section 6.
Art. XII.Section 1.
34
to such Local Union, together with any limitations, exten-sions and restrictions regarding such territorial jurisdiction as may be added thereto. No charter to a Local Union shall hereafter be granted unless the same shall distinctly state upon its surface a description of the territorial jurisdiction
-risdiction so conferred may be amended, restricted, or en-larged by the International Union of Operating Engineers.
ARTICLE XIIICRAFT JURISDICTION
Division of Jurisdiction
Jurisdiction of the International Union of Operating Engineers shall include but not
be limited to persons engaged in the following crafts:(a) Stationary Engineers’ Craft Jurisdiction:All persons engaged in supervising, controlling, operat-
ing or assisting in operating, maintaining or assisting in maintaining (including apprentices to the craft) all boilers,
-mal equipment or other devices (irrespective of pressure or heat source and including hot water and/or other hot liquid or gas systems); pressure vessels, engines (both internal and external combustion types), turbines (hydro, steam and gas types), motors, pumps, air compressors, generators, al-ternators, refrigeration and/or air conditioning machines, units, plants and systems (including cryogenic equipment and systems), fans and ventilating systems, siphons, heat-ing systems and all components thereof, bridges (including turntable, jack-knife and span-lift types), and any and all instrumentation and controls (including remote instrumen-tation and controls) used on or in the above equipment, devices or systems including all equipment, controls and instrumentation used in the handling, preparing and deliv-ery of fuel (irrespective of type) from and/or to storage bins, yards, tanks or reservoirs up to and into the equip-
Art. XIII.Section 1.
35
ment using, consuming or converting the fuel (irrespective of the motive power); (all instrumentation, controls and
-sion and its products, such as radioactive isotopes, includ-ing materials and processing); the supervision, operation and maintenance of all of the above when connected with and/or used in power and plant operation in all govern-mental, commercial and industrial activity including but not limited to railroads, utilities (public and private), hy-
pump stations, reservoirs, control centers, garbage dispos-
and systems (both active and passive types), fuel conver-sion plants or processes, breweries, distilleries, canneries, reduction plants, legitimate and motion picture theaters, ice and cold storage plants, coal yards, dairies, creamer-
buildings, schools, hotels, apartment hotels, apartment houses and condominiums, hospitals, department stores, laundries, metal and other junk yards and junk segregating
-ing control of pressure and temperature of gases, liquids and otherwise), chemical and petro-chemical plants, and pipe line pumping and boosting stations; the operation of valves, gates, locks and all machinery on dams or spill-ways; and bakeries, paper and pulp mills, newsprint plants, shipbuilding and ship repair yards; and all other persons engaged in capacities other than supervising, operating or maintaining capacities in the aforementioned plants, sys-tems, industries, services and/or institutions.
(b) Hoisting & Portable Engineers’ Craft Jurisdiction:All persons engaged in supervising, controlling, erect-
ing, dismantling and repairing, operating or assisting in operating, erecting, dismantling, or the repairing of, all hoisting and portable machines, all refrigerating machines or units and engines used on open and heavy construction work; all hoisting and portable machines and engines used
36
in or upon wrecking, digging, boring, soil testing, building and erecting foundations, buildings, tunnels and subways, dams, reservoirs, disposal plants, bridges, railroads, streets (paving and repair), road building construction (including grading, repair and surveying), sewers, water, gas and oil lines, allotment development construction, harbor and river dredging, the construction and repair of all docks, wharves, piers, shipyards, and seawalls, all sand, gravel and stone pits; quarries and material yards (permanent and temporary, sand, rock and gravel screening machines; motor genera-tors (when used for welding and cutting or for converting or transforming electric currents, irrespective of their mo-tive power); all machines used to sweep, clean and remove debris and snow from streets and roads; all mine hoists, telphers, grab buckets, pumps, siphons, pulsometers, gen-erators, concrete mixers (irrespective of capacity), concrete pumps of all sizes and capacities, stone crushers, air com-pressors, all water-test and blast-hole drilling machines; all sandblasting and other machines and boilers used in the cleaning and washing of buildings; all boilers (irrespec-tive of size) used for furnishing temporary heat on build-ings under construction, or for the heating of materials, or heating water, or furnishing steam for the operation of all machines, engines and other appurtenances herein speci-
-ricks, boom hoists (of all descriptions and capacities), and automatic hoists; house and all elevator (permanent and temporary) used for hoisting building material or lowering
under construction and repair; all street rollers, steam and other motive power shovels; all Le Tourneu and other types of scoops, pull shovels, mucking machines, draglines and cableways; all clam-shell and orange peel buckets when used in connection with any machine or with derrick or boom hoist for excavating, handling, storing, loading or
-
37
dredges and rock drilling plants; all dinkey and standard locomotives, derrick cars, tractors and all tractor-propelled
-dozers, Barber Green loaders, all trenching and ditching
and conveyors; all cranes, derricks, machines, engines and boilers used in asphalt and concrete mixing plants and all other engines and machines (irrespective of motive power) used on building and construction work, or in the loading, unloading or storage of commodities at or in terminals; all persons engaged in supervising, controlling, operating or assisting in operating, maintaining and assisting in main-taining all facilities, including all instrumentation and ap-
and its products, such as radioactive isotopes, all electroni-cally controlled construction equipment, all nuclear pow-ered equipment including all drilling for nuclear operations and methods, all equipment used in oil drilling, all Laser beams, all emulsion distributing machines, and all remote control machinery used in operating equipment; all persons engaged in or assisting in surveying; all operation and ser-vicing of helicopters used in construction.
The General Executive Board may from time to time as it deems proper for the pro-
tection of the jurisdiction of the International Union of Operating Engineers exercise and maintain jurisdiction over persons engaged in work other than described in this Article, including but not limited to public employees, and such jurisdiction over such persons shall have the same
set forth in this Article.
-tween the craft jurisdiction of the Stationary
Engineers’ Branch and the craft jurisdiction of the Hoist-
Art. XIII.Section 2.
Art. XIII.Section 3.
38
ing and Portable Engineers’ Branch of this organization and one of said branches has already assumed certain craft jurisdiction of the other branch and has organized the same and entered into contractual relations with third parties in-volving such craft jurisdiction, such status may remain as now in effect.
ARTICLE XIVCHARTERS
Charters of the International Union of Op-erating Engineers may be granted to Local
Unions, District Councils, Local Joint Executive Boards, Local, State and Provincial Organizations, to Local Unions for Junior and Assistant Engineers’ Subdivisions, Regis-tered Apprentice Engineers’ Subdivisions, and Branch En-gineers’ Subdivisions, and to such other subdivisions as may from time to time be authorized and established.
Application for Charters
An application for a charter of a Local Union shall be upon the form prescribed by
the International Union of Operating Engineers and shall
whom shall be members of the International Union, which requirements may be changed by the International Union. The requirements for all other applications for charters shall be established by the General Executive Board.
Upon receipt of an application for a charter, the General President shall proceed to sat-
to be so he shall direct the General Secretary-Treasurer to issue the charter. In the formation of new Local Unions the members thereof shall be charged such charter fees,
Art. XIV.Section 1.
Art. XIV.Section 2.
Art. XIV.Section 3.
39
entrance fees and organization fees as the International Union shall establish.
Junior and Assistant Subdivisions, RegisteredApprentice Subdivisions and Branch Subdivisions
Local Unions as such may make application for sub-charters covering junior and assis-
tant engineers, registered apprentice engineers and branch engineers in such manner and form as prescribed by the International Union and the said sub-charters shall confer no greater craft jurisdiction than that held by the parent Local Union making such application.
Government of Junior and Assistant Engineers’Subdivisions, Registered Apprentice Subdivisions
and Branch Engineers’ Subdivisions
Any Junior and Assistant Engineers’ Sub-division, Registered Apprentice Engineers’
Subdivision or Branch Engineers’ Subdivision heretofore or hereafter created by the sub-charters referred to in this Article, shall function under the direction and control of the parent Local Union to which the same belongs. They shall be accountable to and function under their parent Local Union and they shall respond to, be under the con-trol of and be governed by the said parent Local Union; provided, however, that the members of the said Junior and Assistant Engineers’ Subdivision, Registered Appren-tice Engineers’ Subdivision and the Branch Engineers’ Subdivision, if in good standing as required by the Inter-national Union and credited with their per capita tax paid to and remitted by the parent Local Union, may vote upon such referendums as shall be submitted to the parent Local Union for them by the International Union. They shall be
may be provided for them by the International Union. Ex-cept as otherwise provided in this Constitution, they may
Art. XIV.Section 4.
Art. XIV.Section 5.
40
Branch engineers and junior and assistant engineers shall have equal rights to nominate, vote for and be del-egates to General Conventions and to State, Interstate and Provincial Organizations. They shall have equal rights to nominate candidates and to vote in elections and referen-dums of the parent Local Union, to attend its membership meetings, and to participate in the deliberations and busi-ness of such meetings. Members of Registered Apprentice Engineers’ Subdivisions shall have equal rights to vote for delegates to General Conventions and to State, Interstate and Provincial Organizations, to vote in elections and referendums of the parent Local Union, and to attend its membership meetings.
A Local Union may provide in its bylaws that any per-son applying for membership in a Junior and Assistant Engineers’ Subdivision or a Branch Engineers’ Subdi-vision shall, as a condition of acceptance and continua-tion of membership in such subdivisions, agree to pay in three yearly installments any differential in the initiation fee charged for membership in such Subdivision and that charged for membership in the parent Local Union. Upon the expiration of the three year period and upon payment in full of the differential in the initiation fee, if any, such member shall be transferred into the parent Local Union
-
Any member initiated into a Junior and Assistant En-gineers’ Subdivision or a Branch Engineers’ Subdivision whose membership therein continues for two consecu-tive years immediately prior to election shall be eligible, whether or not he has transferred into the parent Local
-sions of the International Constitution.
41
including all persons who work at the craft over which this organization exercises craft jurisdiction
tutelage and guidance as a parent Local Union may direct.
as including all persons who aspire through training, effort and application to become masters of the craft over which this organization exercises craft jurisdic-tion and who are indentured as registered apprentice en-gineers under such tutelage and guidance as a parent Lo-cal Union may arrange. Registered apprentice engineers shall be admitted to the Registered Apprentice Engineers’ Subdivision under the following conditions: (a) successful completion of a probationary period as an indentured ap-prentice, not to exceed six months; (b) tender of the regu-lar, uniform initiation fee established for the Registered Apprentice Engineers’ Subdivision. Registered apprentice engineers shall be entitled to transfer to the parent Local Union or to the appropriate branch of their Local Union
-ments: (a) successful completion of a uniform period of apprenticeship within a Local Union as a member of a Reg-istered Apprentice Engineers’ Subdivision; (b) successful demonstration of capacity to meet reasonable and uniform
the parent Local Union; and (c) tender of any differential in -
ent Local Union or the appropriate branch, as the case may be. Cancellation of an apprentice’s agreement, for a just
hearing by the apprenticeship committee, shall automati-cally cancel his membership in the International Union of
Art. XIV.Section 6 (a).
Art. XIV.Section 6 (b).
42
Operating Engineers and in the Local Union. The apprenticeship committee shall notify the Financial
Secretary of the Local Union of all such cancellations. Other provisions of this Constitution notwithstanding,
there shall be no appeal to the International Union by a reg-istered apprentice engineer, for cancellation of his member-ship through action of the apprenticeship committee.
-come members of the International Union of Operating Engineers, may desire to be constituted a Subdivision thereof through the application of a parent Local Union and who are employed in any class of employment ex-istent within the territorial jurisdiction of a parent Local Union which class of employment shall not have be-come organized nor be engaged in employing members of said parent Local Union.
Property of Local Unions
Membership books and/or cards, the charter, seal and all books and other paraphernalia
shall be the property of the International Union and shall be delivered to the General President of the International Union upon demand by the General Executive Board, or by order of the General Convention.
If at any time a Local Union or other sub-division shall withdraw, lapse, dissolve, be
suspended, placed under supervision or expelled from the International Union, or shall have its charter revoked, all of its real and personal property, paraphernalia, books, char-ter, seal, records, card indexes and funds shall immediately revert to the International Union and the General President shall at once, in person or by deputy, take possession of
Art. XIV.Section 7.
Art. XIV.Section 8 (a).
Art. XIV.Section 8 (b).
43
such property, paraphernalia, books, charter, seal, records, card indexes and funds of said Local Union or other sub-division, all of which he or his deputy shall receipt for, and he or his deputy shall forward the same to the General
Union or other subdivision, individually and collectively, shall be held strictly responsible for all such property, paraphernalia, books, charter, seal, records, card indexes and funds until they are turned over to the General President or his authorized representative and re-ceipted for.
They shall be individually and collectively accountable therefor to the International
Union, and suit may be instituted through the General President to recover the real and personal property, para-phernalia, books, charter, seal, records, card indexes and funds, or for money damages if any of them have been concealed or destroyed.
All supplies necessary for the proper func-tioning of Local Unions shall be uniform,
and all Local Unions must secure such supplies from the General Secretary-Treasurer, application to be made there-
-sary monies to cover the cost of the same, and no Local Union, under penalty of expulsion, shall furnish any other Local Union with any of such supplies, nor use any such supplies unless furnished by the International Union.
Form of Charter
No charter to a Local Union shall hereafter be granted unless the same shall distinct-
ly state upon its face a description of the territorial and
Art. XIV.Section 8 (c).
Art. XIV.Section 8 (d).
Art. XIV.Section 8 (e).
Art. XIV.Section 9.
44
such territorial and craft jurisdiction so conferred may be amended, restricted or enlarged by the International Union. Charters issued in accordance with this Article shall be in such form as the General Executive Board shall prescribe, consistent with the Constitution and laws of the Interna-tional Union of Operating Engineers.
ARTICLE XVTRANSFER AND CLEARANCE CARDS,SERVICE DUES, WITHDRAWAL CARDS AND GENERAL OFFICE MEMBERSHIP
Transfer Cards
When a Local Union has been dissolved, suspended, or when its charter has been re-
voked or surrendered or otherwise becomes inoperative, any member in good standing of such Local Union may, through the General Secretary-Treasurer, upon application to and by consent of a majority of the General Executive Board, be given a transfer card which will entitle him to make application for admission to the nearest Local Union in his vicinity.
Clearance Cards
Any member desiring a clearance card for the purpose of transferring his membership
to another Local Union shall apply to the Financial Sec-retary of his Local Union, and if such member is in good standing in his Local Union, and no charges are pending against him, the Financial Secretary shall grant a clearance card upon the payment by the member of any unpaid dues, or other obligations, plus One ($1.00) Dollar for the clear-ance card.
If an applicant for a clearance card has been a member of the International Union for
less than six months, then upon the granting of a clearance
Art. XV.Section 1.
Art. XV.Section 2 (a).
Art. XV.Section 2 (b).
45
card he shall pay to said Local Union the sum of Fifteen ($15.00) Dollars as a fee therefor.
Thereafter a member obtaining a clearance card must present the same to the Local Union
into which he desires to transfer, for acceptance by it, and the matter shall be referred to a committee of such Local Union as provided for in Article XXIV, Subdivision 6, which will ac-cept or reject said clearance card, such acceptance or rejection to be entirely within the discretion of the Local Union.
No member desiring to transfer into another Local Union shall negotiate for, accept or
commence work until his clearance card has been accepted or a service dues receipt shall have been issued to him as hereinafter provided. Enforcement of this provision shall be wholly a matter of internal discipline. A violation of this pro-vision shall not be used as a basis for any action adversely affecting employment rights, except in accordance with the terms of a valid union security agreement. If and when his clearance card is accepted, he shall be governed by the wage scale, rules and bylaws of said Local Union and if the Local Union into which such member enters has a higher initiation fee and the bylaws of such Local Union require it, he may be required to pay the amount of the difference to the receiving Local Union, in which event, the initiation fee tax on such difference shall be charged and collected by the General Sec-retary-Treasurer. In the event the said bylaws waive the pay-ment of this difference, then there shall be no initiation fee tax charged or collected by the General Secretary-Treasurer.
Local Unions shall purchase clearance cards from the General Secretary-Treasurer
and said cards shall be drawn up by the General Secre-tary-Treasurer in duplicate and designated “Coupon No. 1” and “Coupon No. 2.” Upon entering the Local Union into which he may transfer, the member shall sign both
Art. XV.Section 2 (c).
Art. XV.Section 2 (d).
Art. XV.Section 2 (e).
46
coupons, Coupon No. 1 being retained by the Financial Secretary of the Local Union into which he transfers and Coupon No. 2 being transmitted by the Financial Secretary of the Local Union into which he has transferred to the Financial Secretary of the Local Union which issued the card no later than the last day of the month in which the member was accepted. Thereafter the Financial Secretary of the Local Union into which the member has transferred, shall, on the next monthly report, set forth the name and membership number of the member so admitted.
Travel Service Dues
Members of one Local Union shall not seek employment, be employed, or remain at work
at the craft within the territorial jurisdiction of another Local Union without the consent of such other Local Union, which consent may be evidenced by its acceptance of the clearance card presented to it by the member involved, as provided in the Constitution, or by the issuance of the service dues re-ceipt hereinafter described. If the member involved does not present a clearance card to such other Local Union, or the Local Union to which the clearance card is presented fails to act thereon, or the Local Union to which the clearance card is
and the Business Representative of such other Local Union, in such cases, shall thereupon consent to the issuance of the service dues receipt (described herein), then the member involved shall be entitled to receive and required to secure successively, during the period within which said consent be granted and his work continue, such number of weekly ser-vice dues receipts if he is a hoisting and portable engineer, or monthly service dues receipts if he is a stationary engineer, as shall be issued to him by the said Business Representative under the regulations established by the General Executive Board. Such service dues receipts shall, for the period issued, allow the holder thereof to seek, accept, and hold employ-ment within the territorial jurisdiction of such other Local
Art. XV.Section 3 (a).
47
Union out of which said service dues receipts shall be issued, but subject always to such regulations as shall be imposed thereon by the General Executive Board.
Provided, however, that there will be a limited key em-ployee exception to the above requirement that members obtain clearance. Under this exception, Local Unions must clear in a limited number of key employees if the following requirements are met: 1) the employer signs or is signatory to the Local Union’s master agreement for the area in which the job in question is located; 2) the employ-er has a pre-job to identify the key employees and address any other issues before each job on which key employees are used; 3) the employer agrees, upon presentation of ap-propriate authorization, to collect from key employees the local working dues and/or administrative dues and remit such to the Local Union in whose jurisdiction the work is being performed; and 4) the employer agrees that the wage rate paid key employees will be at least the rate paid under the agreement of the Local Union in whose jurisdiction the
the higher of the rates of the key employee’s home Local or the Local where the work is being performed.
If the above requirements are met, the employer shall be allowed to bring in key employees as the third, sixth, ninth and twelfth person hired; where the job requires fewer than twelve employees, key employees will be allowed accord-
met. Under no circumstances will a key employee be al-lowed to serve as a master mechanic or foreman unless such is agreed to at the pre-job. In order to be a “key employee” the individual in question must be an operating engineer employee who: 1) regularly and customarily works for the employer whenever it has work or has been employed by the employer within the past six months; and 2) because of his or her knowledge, training, special skills and/or experi-ence is critical to the success of a particular job.
The principle of “money follows the employee” shall
48
govern pension, annuity, and health and welfare contribu-tions for all traveling employees, and a copy of the trust fund remittance reports will be provided to the Local Union in whose jurisdiction the work is being performed. Contributions to all other funds will be remitted to the rel-evant funds of the Local Union in whose jurisdiction the work is being performed.
Failure to abide by the terms of the pre-job shall serve to revoke the clearance of the key employees. Nothing in the above three paragraphs shall limit a Local Union’s ability, in exercising its discretion to clear in members of other Local Unions, to mutually agree with an employer to a different key employee arrangement.
Travel service dues collected pursuant to this Section shall have as their primary purpose the defraying of the additional administrative and collective bargaining cost incurred by a Local Union in providing services for travel-ing members from sister Local Unions who are working within its jurisdiction, and the International Union’s cost of recording members’ movements in the labor market. Pay-ment of travel service dues is an obligation arising as an incident of membership in the International Union. Fail-ure of a traveling member to comply with this requirement shall subject him to an appropriate penalty as provided by the International Constitution for the violation of an obli-gation under the Constitution. Failure of a traveling mem-ber to pay travel service dues shall not be used as a basis for any action adversely affecting employment rights, ex-cept in accordance with the terms of a valid union security agreement. Enforcement of the collection of travel service dues shall be wholly a matter of internal Union discipline.
Prior Payments of Current Dues Required
The consent referred to in this Article shall not be granted by the said other Local Union or
its Business Representative, nor shall travel service dues be collected from or service dues receipts be issued to, any said
Art. XV.Section 3 (b).
49
member who shall not, at the time when requesting a service dues receipt, have had his current monthly dues paid into the Local Union to which he belongs. Upon the issuance to him of the said service dues receipt the same shall always be avail-
Applicants’ Service Dues
In each Local Union where applicants for membership engage at the craft upon work
within the jurisdiction of said Local Union, the Local Union shall charge to and collect from each such applicant, appli-cants’ service dues. Such dues shall be charged only so long as the applicant has not tendered full initiation fees and has not complied with the same requirements for admission gen-erally applicable to other members. In no case, however, may applicants’ service dues be charged for more than twelve (12) months after an individual has become an applicant for membership. Each Local Union retains the right to determine whether it will establish the procedure of accepting the pay-ment of applicants’ service dues as a temporary alternative to the payment of full initiation fees and regular periodic dues.
Failure by an applicant for membership to pay service dues shall not be used by the Union as a basis for an action adversely affecting the employment rights of the applicant, except in accordance with the terms of a valid union secu-rity agreement. Under no circumstances shall payment of service dues be made a condition precedent to an appli-
Local Unions with Registered Apprentice Engineers’ Subdivisions retain the right to determine if the provisions of this Section shall apply to Registered Apprentice Engi-neers during the probationary period prior to their initiation into the Registered Apprentice Engineers’ Subdivision.
Amount of Applicant Service Dues
Each Local Union shall charge to and col-
Art. XV.Section 3 (c).
Art. XV.Section 3 (d).
50
lect from all those persons within its territorial jurisdiction to whom this Article applies, applicant service dues in a minimum amount of two dollars ($2.00) per week, and, in addition, any amount paid by members of the Local Union as administrative, supplemental or working dues, or the monthly equivalent of said sum. The maximum amount
dollars ($5.00) per week or the monthly equivalent of said sum and, in addition, any amount paid by members of the Local Union as administrative, supplemental or working dues. In lieu of said amount, a Local Union may elect to charge and collect applicant service dues in an amount not to exceed the weekly equivalent of the amount of regular dues paid by members of the Local Union. Upon payment of the proper dues, there shall be issued an applicant ser-vice dues receipt for each applicant for membership.
Amount of Travel Service Dues
Each Local Union shall charge to and collect from all persons within its territorial jurisdic-
tion to whom this Article applies, travel service dues in the
amount paid by members of the Local Union as administra-tive, supplemental or working dues, or the monthly equiva-lent of said sum. In lieu of said amount, a Local Union may elect to charge and collect travel service dues in an amount not to exceed the weekly equivalent of the amount of dues, including regular dues and administrative, supplemental or working dues, paid by members of the Local Union. Upon payment of the proper dues, there shall be issued a travel service dues receipt for each traveling member.
Form of Service Dues Receipt & Distribution of Copies
The form of the service dues receipt issued to traveling members and to applicants shall
be substantially as follows:
Art. XV.Section 3 (e).
Art. XV.Section 3 (f).
51
THE INTERNATIONAL UNION OFOPERATING ENGINEERS
(Seal)Date 20 Received from Reg. No. Member of Local No. City of State SERVICE DUES forWeek ending through Months of Service dues paid in Local No. City of State Dues paid for month of Initiation Fee being paid If more than one week is paid for, then additional service dues receipts to cover must be attached hereto and serial numbers noted hereon.No. The total number of weeks paid for shall be checked below and the serial numbers of all service dues receipts attached shall be entered hereon.Weeks NumberOne Serial No. Two Serial No. Three Serial No. Four Serial No. Five Serial No. Six Serial No. Seven Serial No. Eight Serial No. Nine Serial No. Ten Serial No. Amount Paid Representative
52
In case of applicants for membership the information required above with reference to register number and Lo-cal Union data shall be omitted.
Each service dues receipt shall be printed in duplicate labeled “Original” and “Duplicate.” The original shall be issued to the member, the duplicate shall remain bound in the Service Dues Book.
Printing and Distribution of Service Dues Book
The General Secretary-Treasurer shall cause the service dues receipts described herein,
for those Local Unions that do not utilize electronic data processing for processing service dues payments, to be printed and made available to Local Unions.
The General Executive Board is authorized and empowered to establish, amend, alter
and administer the terms, conditions, and rates under which the service dues receipts herein provided shall be issued and enforced. No service dues receipt as described in this Article shall be issued to or used by any person who is not, at the time, either a member of the International Union of Operating Engineers or an applicant for membership there-in, and the attempted issuance of such a service dues receipt
-zation to any other person than those described herein shall be unauthorized, null and void. Registration fees, if charged by a Local Union, must bear a reasonable relationship to the service provided to the registrant by the Local Union and
Data Processing Service Dues
Local Unions that employ electronic data processing equipment may systematize the
processing of service dues, including computer-generated service dues receipts.
Art. XV.Section 3 (g).
Art. XV.Section 3 (h).
Art. XV.Section 3 (i).
53
Withdrawal Cards
Any member of the International Union who ceases to perform the work of an engineer
may request and, at the option of his Local Union, be given a withdrawal card; but no withdrawal card shall be issued to any member of the International Union who is employed as an engineer. This section, however, shall not apply to any members of the International Union who are serving or acting in any capacity for a Local Union or the Interna-tional Union, whose duties prevent them from working at the trade, or engineers who hold positions as inspectors of boilers or other machinery, or examiners of engineers.
A fee of not to exceed Five ($5.00) Dollars may be charged for each withdrawal card.
Local Unions shall purchase withdrawal cards from the General Secretary-Treasurer.
When a holder of such card desires to reinstate himself in full good standing membership, he shall present this card and it shall be acted upon in the same manner as hereinbe-fore provided in the case of clearance cards.
Any member entering a Local Union on a withdrawal card shall pay the difference in
initiation fee as hereinbefore provided in the case of clear-ance cards. If he shall enter said Local Union within a pe-riod of time less than thirteen (13) months dated from the month in which the withdrawal card was issued, he shall be required to pay all dues and assessments accruing in such period of time in the Local Union which issued the same, and said dues and assessments shall be paid to the Local Union admitting the member and shall be forwarded to the Local Union which issued the withdrawal card. At the same time he shall pay an assessment of Ten ($10.00)
Executive Board, Fifty (50) per cent of which assessment
Art. XV.Section 4 (a).
Art. XV.Section 4 (b).
Art. XV.Section 4 (c).
Art. XV.Section 4 (d).
54
shall be forwarded by the Local Union to the General Secretary-Treasurer. Members who enter said Local Union during the thirteenth (13th) month following the month in which the withdrawal card was issued shall be considered as having been on withdrawal for exactly one (1) year.
If the member shall enter said Local Union after more than thirteen (13) months since the issuance of the withdrawal card, he shall pay an assessment of Ten ($10.00) Dollars
Board, and a similar amount for each successive year or part thereof. Fifty (50) percent of which assessment shall be for-warded by the Local Union to the General Secretary-Trea-surer. Provided, however, the total payment so required shall not exceed the amount of the regular current initiation fee in the Local Union to which the application is made.
All members of the International Union who have been granted withdrawal cards by their Local Unions and were
-ue their good standing therein by paying on or before June 1 of each year, in advance and directly to the General Secre-tary-Treasurer, the sum of Nine ($9.00) Dollars per annum; but they shall not be in good standing in any other respect. Provided, however, members initiated on or after July 1,
However, members holding withdrawal cards and desiring to continue in good stand-
General Secretary-Treasurer within thirty (30) days from the date the withdrawal card was issued and he must be paid up to and including the month of his death, or his death must have occurred within thirty (30) days after his dues and obligations shall have become due and payable, in or-
In the event any member granted a withdrawal card violates any of the Articles of this Constitution, any Local Union or the General Executive Board shall cancel said withdrawal
Art. XV.Section 4 (e).
55
When a Local Union has lapsed, been dis-solved, suspended or had its charter revoked,
or has otherwise become inoperative, any member thereof who was in good standing at the time of such dissolution, suspension or revocation shall become a member of the
(30) days from the date of such dissolution, suspension or revocation he pays to the General Secretary-Treasurer any unpaid dues or other obligation due to said Local Union from him, or due to the International Union from said Lo-cal Union in his behalf, including per capita tax, together with a fee of Five ($5.00) Dollars, or such other fee as may
time makes application to the General Secretary-Treasurer for a transfer card to another Local Union as provided for in Section 1 of this Article; and he shall remain in the
accepted by another Local Union, and while a member of
($5.00) Dollars per month or such other amount as may be -
retary-Treasurer may suspend or expel any such member
violation of the Constitution.
Junior and Assistant Engineers’ Subdivision Clearance Cards
Any member of a Junior and Assistant Engi-neers’ Subdivision desiring a Junior and As-
sistant Engineers’ Subdivision clearance card for the purpose of transferring his membership to another Junior and Assis-
Art. XV.Section 5.
Art. XV.Section 6.
56
tant Engineers’ Subdivision of another Local Union, shall do so in the same manner as prescribed in Section 2 of this Article, provided the Local Union in which he is a member of the Junior and Assistant Engineers’ Subdivision shall, by a majority vote, consent to the issuance of said clearance card.
ARTICLE XVIDISCIPLINE AND EXPULSION IN GENERAL
Penalty for Issuing Defamatory Literature
In addition to the provisions of this Consti-tution setting forth the causes and the man-
thereof may be disciplined and penalties may be invoked, any Local Union, subdivision or member thereof publish-ing or circulating literature of a defamatory nature in viola-tion of their responsibility toward the International Union or any of its subordinate bodies as an institution, or engag-ing in conduct that would interfere with the performance by the International Union or any of its subordinate bodies of their legal or contractual obligations, may be tried by
and upon conviction, may be disciplined or expelled as the General Executive Board may determine.
Penalty for False Applications
Any person making a misrepresentation or misstatement in his application for member-
ship, or who shall belong to more than one Local Union of this organization, shall, on trial therefor and conviction thereof, be expelled from the International Union of Operating Engineers.
General Executive Board May Prosecute
Any violation of the Constitution, Laws, Ob-ligation and Ritual, or the rules, regulations
Art. XVI.Section 1.
Art. XVI.Section 2.
Art. XVI.Section 3.
57
not prosecuted by the subdivision thereunto authorized, or if no provision has been made therefor, be prosecuted, heard and penalized by the General Executive Board.
Penalty for Radicalism, Etc.
Any member who is found guilty after trial of advocating or otherwise supporting the
overthrow of the established order, either of the Govern-ment or of this organization, by force or violence or sub-versive tactics, shall forthwith be expelled from member-ship or otherwise disciplined as the circumstances may require, which action may be taken and penalty imposed by either the Local Union of which the guilty party is a member or by the General President.
Local Union against any member thereof.
No person shall become or remain President, Vice President, Secretary, Treasurer, Busi-
-tative of any Local Union unless he is a member thereof in good standing. In the event such person shall cease to be a member in good standing or holds a withdrawal card,
-cial capacity and the exercise by him of all rights, powers,
shall automatically be revoked and cease.
Violations of Welfare Plans Administration
employee representative or trustee in the administration of a health, welfare, retirement, training or
Art. XVI.Section 4.
Art. XVI.Section 5.
Art. XVI.Section 6.
Art. XVI.Section 7.
58
-ture, such service should be regarded as one of the functions
course of his duties and not as an extra function requiring further compensation, over and above his salary, from the
-ceive full time pay from their union shall not receive fees or salaries from the funds of such programs. However, the pro-visions of this Section shall not bar the receipt of per diem and other reasonable expense allowances for such positions.
any other fund of a similar nature, or the placement of insur-ance contracts must be entirely free of any compromising personal ties, direct or indirect, with outside agencies such as insurance carriers, brokers, consultants and others doing
cannot be reconciled with their duty to be guided solely by the best interests of the membership in any transactions with
such ties to his own personal advantage, or to have accepted -
side agencies, or who induces or directs associates or sub-
programs or any other fund of a similar nature shall be de-
International Union.
ARTICLE XVIIAPPEALS
Appeals to General Executive Board
in a Local Union charges against a member Art. XVII.Section 1 (a).
59
appeal to the General Executive Board from the adoption of an action by said Local Union, or from a decision ren-dered by the General President, where such action or de-cision is not committed to the exclusive discretion of the
member thereof which belongs to a Local, State or Provin-cial Organization, Joint Executive Board or District Coun-cil may appeal to the General Executive Board from an act or decision of said Local, State or Provincial Organization, Joint Executive Board or District Council. Notice of such appeal must be in writing and received by the General Sec-retary-Treasurer within thirty (30) days from the date of the adoption of said action or the rendition of said decision by the General President.
Requests to modify, continue, amend, withdraw or in--
tions or inaction thereon shall constitute appealable matters and be processed in the manner and form regulating appeals under the Constitution. Any such request, when signed by
good standing of a Local Union, shall cause a referendum on the subject to be submitted to the membership by the General President, who shall be guided by the results there-of in his decision on the question involved therein.
the notice of appeal a written statement cov-ering the decision of the General President complained of,
-tive Board’s consideration of the same, or a complete state-ment of the evidence, exhibits and decision in the case of an appeal from the act of a Local Union or subdivision
evidence, exhibits and decision with the said Local Union or subdivision affected. The General Secretary-Treasurer shall thereupon notify the party against whom the appeal is taken, which party shall be allowed thirty (30) days
Art. XVII.Section 1 (b).
60
-
hereinbefore required, or upon the expiration of the period
proceed to hear the appeal, either upon the record or upon retrial, or both, and render its decision thereon.
All interpretations and decisions by the General Executive Board involving the or-
ganic law of the International Union of Operating Engi-neers shall be subject to review only by the General Con-
Appeals to General Convention
Any subdivision within the International Union of Operating Engineers, and any of-
-peal from the decision of the General Executive Board to the General Convention. Notice of such appeal, together
-
the rendition of a decision by the General Executive Board by delivery of said documents and notice of appeal to the General Secretary-Treasurer.
Pendency of Appeals
Except as otherwise provided in this Con-stitution, pending the termination of any ap-
peal, the action or decision appealed from shall remain in full force and effect.
All Court Actions Superseded
To the extent not limited by law, no suit or other action at law or equity shall be
brought in any court and no proceeding shall be initi-
Art. XVII.Section 1 (c).
Art. XVII.Section 2.
Art. XVII.Section 3.
Art. XVII.Section 4.
61
ated before any administrative agency by any member, -
erating Engineers until and unless all rights, remedies and reasonable provisions for hearing, trial and appeal within the Organization shall have been properly fol-
-vision complaining. This provision shall only require resort to internal remedies for a period not exceeding four (4) months.
ARTICLE XVIIIMETHODS OF AMENDING ANDREVISING CONSTITUTION AND
INVOKING INITIATIVE AND RECALL
Amending Constitution at General Convention
The Constitution may be amended or re-vised at a General Convention provided
the proposal to amend or revise be made in writing and
said Convention. Such proposal to amend or revise the Constitution shall emanate from a Local Union in good
-posing the same. The General Secretary-Treasurer shall
General Executive Board and to all Local Unions in good standing not less than thirty (30) days prior to the date of the General Convention.
Initiative and Recall
Whenever forty (40) percent of all Local Unions in good standing and representing
at least forty (40) percent of the entire membership of the International Union in good standing, by a majority vote of
Art. XVIII.Section 1.
Art. XVIII.Section 2.
62
Secretary-Treasurer a petition requesting the recall from -
surer shall thereupon submit the same to the membership and a vote shall be taken thereon. Upon receipt of such petition the General Secretary-Treasurer shall set the time within which the Local Unions shall vote. No recall pe-tition shall prevail unless there shall be cast thereon the
membership of the International Union in good stand-ing and a majority vote of the entire membership in good standing cast in favor thereof.
Method of Voting
The voting upon any proposition arising under this Article shall be conducted by
the General Secretary-Treasurer upon tally sheets and ballots transmitted by the General Secretary-Treasurer to the Local Unions. Ballots shall be transmitted by the Local Unions to all members in good standing. The ref-erendum shall be conducted by mailed secret ballot. Ad-equate safeguards to insure a fair vote shall be provided by the Local Union in accordance with the International Constitution, applicable law and such rules and regula-tions as may be promulgated by the General Executive Board. The General Executive Board shall appoint three
certify and announce the results of the voting on the basis of the tally sheets transmitted to them by the Local Unions. After the vote shall have been taken by the Lo-cal Unions in the manner herein prescribed, the report of said vote upon the tally sheets shall be transmitted
Accountant appointed by the General Executive Board,
report the result of said vote to the General Secretary-Treasurer, who shall cause it to be published in the next issue of the Journal.
Art. XVIII.Section 3.
63
ARTICLE XIXDEFENSE FUND, LOCKOUTS AND STRIKES
Defense Fund
There shall be a Defense Fund which shall be drawn upon for the purpose of defending the
International Union and its members in efforts to prevent lockouts and strikes, by assisting in sustaining the members in cases of lockouts and authorized strikes, in protecting and defending the International Union and its members in any legal proceedings brought against it or its members, to employ counsel, and for any other purpose which the General President, subject to the approval of the General Executive Board, shall deem necessary for the further pro-tection of the International Union and its members.
Lockouts and Strikes
Where a Local Union is engaged in a strike, or reports a lockout, including lockouts
--
national Union, it shall make application to the General
shall instruct the General Secretary-Treasurer to remit to the Financial Secretary of the Local Union involved, strike
member affected, for the purpose of assisting in sustaining such Local Union during the pendency of the lockout or
-cation by the International Union of the Local’s strike or strike conduct or the conduct of any individual participat-ing in the strike. The continuance of such payments shall be until further order of the General President, subject to a review by him in the event the strike or lockout exceeds thirty (30) days.
Art. XIX.Section 1.
Art. XIX.Section 2.
64
any Local Union or Unions until a period of one (1) week has elapsed from the time a lockout or strike began; but thereafter it shall continue for such period of time as in the judgment of the General President may
shall be reported to the General President by the Financial Secretary of the Local Union or Unions involved in such lockouts or strikes on forms provided for such purpose by
paid to any member who is not actually a striker or a victim
involved secures employment.
ARTICLE XXDEATH BENEFITS
with the provisions of this Article only, and no other funds or property of the International Union shall be liable for the payment thereof, nor shall the International Union be liable beyond the amount at any time available in the
Effective August 1, 1968, the amount of
-drawal card prior to that date shall be computed on the basis of the number of years such member has been in good standing as of August 1, 1968, and shall not thereaf-ter be increased during the period such member remains
who is granted a withdrawal card on or after August 1, 1968, shall be computed on the basis of the number of
Art. XIX.Section 3.
Art. XX.Section 1.
Art. XX.Section 2.
65
years such member has been in good standing as of the date on which the withdrawal card is granted, and shall not be increased thereafter during the period such mem-ber remains on withdrawal card.
member in good standing who was initiated prior to July 1, 1973.
members in good standing on or before July 1, 1973 are
and not otherwise:Class I.have been in good standing for a period of one (1) year
Dollars and this amount shall not thereafter increase.Class II.
to ten (10) years shall receive Two Hundred ($200.00) Dollars and this amount shall not thereafter increase.Class III.1973 have been in good standing for a period of ten (10)
($400.00) Dollars and this amount shall not thereafter increase.Class IV.
years to twenty (20) years shall receive Five Hundred ($500.00) Dollars and this amount shall not thereafter increase. Class V.1973 have been in good standing for a period of twenty (20) years or more shall receive Seven Hundred Fifty ($750.00) Dollars and this amount shall not thereafter increase.
66
For the purpose of establishing and main-
a member in good standing is a member who is not sus-pended by the operation of any section of this Article or of any other Article of this Constitution, and who also has paid his dues and all other obligations to the date of his death, or whose death has occurred within thirty (30) days after said dues and obligations shall have become due and payable.
from one Local Union to another, and who
the same as though the member had continuously remained a member of the same Local Union.
Any member who was suspended or ex-pelled from a Local Union or by the General
Executive Board, for any reason whatsoever, and later be-came reinstated, must have been a member in good stand-
-
shall be entitled to the amount only in his class according to the length of time that he was a member in good stand-ing after such reinstatement. Provided, however, members reinstated on or after July 1, 1973, shall not participate in
-comes suspended or expelled by his Lo-
cal Union or the General Executive Board, for any cause
member has complied with Section 5 of this Article.
The Financial Secretary of each Local Union shall keep the General Secretary-Treasurer
Art. XX.Section 3.
Art. XX.Section 4.
Art. XX.Section 5.
Art. XX.Section 6.
Art. XX.Section 7.
67
additions to their membership, and all deductions, and
mentioned in this Article.
The members of any Local Union two (2) months in arrears with its per capita tax to
the International Union shall be suspended from all ben-
until such times as the Local Union pays its arrearages of per capita tax, and has complied with all other obligations provided in the Constitution, and has been reinstated; and from the date of reinstatement the members of such Local
and in case of death of any such member occurring not less
-cording to the class that the deceased member had estab-lished at the time of his death and from the date of such reinstatement of his Local Union.
A member of a Local Union which has withdrawn, lapsed, dissolved, been suspended or expelled, or whose charter has been revoked, if such member is in good stand-ing in his Local Union on the date of such withdrawal, lapse, dissolution, suspension, expulsion or revocation of
be continuous with that earned after transfer to another Lo-cal Union; provided, such member shall within thirty (30) days cause to be invoked and have made use of the privilege accorded such member to transfer to another Local Union in accordance with Article XV of this Constitution.
A member may change his designation of
of his Local Union, or in the case of a member holding a
Art. XX.Section 8.
Art. XX.Section 9.
68
-sions of Article XV, Section 4(e) of this Constitution, with the General Secretary-Treasurer. Such designation, and/or change, will take effect as of the date of the execution of such request, whether or not the member be living at the
-tional Union on account of any payment made by it before receipt of such request.
member:
-
living will be payable equally to the remaining designated
-ber, payment will be made to the member’s widow or widower if surviving the member; if not surviving the member, in equal shares to the member’s children who survive the member; if none survives the member, to the member’s parents, equally or to the survivor; if neither survives the member, in equal shares to the member’s brothers and sisters who survive the member; or if none survives the member to the member’s executors or administrators. When a member designates his or her
designee is terminated by divorce, it shall be presumed, in the absence of evidence to the contrary, that the desig-
All claims shall be made for said death ben-
sixty-day (60) period, to the Secretary of the Local Union a
Art. XX.Section 10.
69
said payment, and identifying the person named in accom-
The Financial Secretary of said Local Union shall there-upon promptly forward said documents to the General Secretary-Treasurer. The General Secretary-Treasurer shall then check said claim with the list of members in good standing as otherwise herein provided, and shall remit within a reasonable time, upon reasonable proof of death,
Immediately upon the death of a member, the Financial Secretary of the Local Union
shall notify the General Secretary-Treasurer by mail, and
him, giving the name, address, register number, the date of the last payment of dues to the Local Union and the month paid for by the deceased, his age, date of death and date of initiation, and any other information required, including the
--
No suit shall be brought against a Local Union or member and no Local Union or
provided for. The General Secretary-Treasurer shall have the authority to investigate the legality of any claim, and the President and Financial Secretary of any Local Union out of which a disputed claim originates shall, upon demand by the General Secretary-Treasurer, furnish a sworn statement concerning said claim. Any Financial Secretary of any Local Union altering the dues book and/or card of any member or
Art. XX.Section 11.
Art. XX.Section 12.
70
deliberately reporting him suspended when he should not have been, or fraudulently recording any payment of dues for a deceased member after his death, shall be expelled and forever barred from membership in the International Union,
-
of appeal to the General Executive Board and from their de-cision to the Convention of the International Union.
The General Secretary-Treasurer shall cause to be published in each issue of the journal
the names and Local Union of those who have died, the cause of death of the member, and the amount paid and to whom paid. After this plan is adopted, it is understood that members who allow themselves to become suspended or expelled from the International Union lose all rights what-soever that they may enjoy under this plan.
The provisions of this Article shall prevail over any other Article of this Constitution
expedient for the General Executive Board to amend the rules governing the operation of this Article, they shall do so, as may to them seem necessary, and the changes shall be binding upon the members. All of the provisions of this Article are to be construed together.
ARTICLE XXIJOINT EXECUTIVE BOARDS
Formation
A Joint Executive Board may be formed in any city or town where two or more Lo-
cal Unions exist. Such Boards shall be composed of three delegates from each Local Union, elected by the Local
Art. XX.Section 13.
Art. XX.Section 14.
Art. XXI.Section 1.
71
until their successors, as determined by the Local Union,
consist of a Chairman, Vice Chairman and Secretary-Treasurer, each of whom shall be elected by said
-
Quorum
A quorum for the transaction of business be-fore a Joint Executive Board shall consist of
a majority of the members thereof.
Powers
A Local Joint Executive Board shall have power to adjudicate grievances arising be-
tween Local Unions within the jurisdiction; to summon and examine any member of any such Local Unions; to adopt bylaws and trade rules with the consent of the Gen-
-ated with the said Board.
Minutes
Copies of all minutes and proceedings of any meeting of the Joint Executive Board shall
immediately thereafter be sent to the General President by the Secretary-Treasurer of the Joint Executive Board.
ARTICLE XXIIDISTRICT COUNCILS
The General President, subject to the approval of the Gen-eral Executive Board, shall have the authority to issue
Art. XXI.Section 2.
Art. XXI.Section 3.
Art. XXI.Section 4.
Art. XXI.Section 5.
72
rules governing the affairs, conduct, activities, property -
pension, expulsion and termination of such Councils. Such
designee, with respect to disciplinary action against such
the General Executive Board and to the Convention from disciplinary action taken. However, such rules shall pro-vide that actions and decisions appealed from shall remain in full force and effect pending any appeal.
ARTICLE XXIIISTATE, INTERSTATE AND
PROVINCIAL ORGANIZATIONS
Formation
State, Interstate and Provincial Organiza-tions may, with the consent of the General
President, be formed in any State or Province having three or more Local Unions, or in combinations of States or
all Local Unions in said State or Province at least thirty
General Secretary-Treasurer.
Organization shall consist of a President, Vice President, Secretary-Treasurer, and three (3) Trustees. Their
-state or Provincial Organization to which they shall have been elected and continue for one (1) year, or until their successors
herein shall hold membership in any one (1) Local Union af-
Art. XXIII.Section 1.
Art. XXIII.Section 2.
73
Executive Boards
State, Interstate and Provincial Organiza-tions may provide for the creation of State,
Interstate or Provincial Executive Boards consisting of the President, Vice President, Secretary-Treasurer, and the three (3) Trustees. All the powers of State, Interstate or Provincial Organizations when in session shall, when the same is not in session, pass to and vest in the State, Interstate or Provincial Executive Board.
Voting
Local Unions belonging to State, Interstate or Provincial Organizations shall be entitled
to one (1) delegate for three hundred (300) members or less, together with one (1) delegate or one (1) vote for each succeeding three hundred (300) members or majority frac-tion thereof. No delegate shall be permitted to represent more than one (1) Local Union. In no case shall a Local Union be entitled to more than six (6) votes.
Powers
State, Interstate and Provincial Organiza-tions shall have power to adopt, with the
consent of the General President and not in contravention of this Constitution, such laws as will assist them in orga-nizing, protecting and strengthening the Local Unions be-
for compliance with all requirements of the Constitution, Obligation and Ritual of the International Union.
Meetings
State, Interstate and Provincial Organiza-tions shall meet in general convention annu-
ally upon a date set by the preceding convention or by the State, Interstate or Provincial Executive Board or, in the
Art. XXIII.Section 3.
Art. XXIII.Section 4.
Art. XXIII.Section 5.
Art. XXIII.Section 6.
74
Provincial Organization.
Minutes
Copies of the minutes of each General Con-vention and of each meeting of the State, In-
terstate or Provincial Executive Board shall be transmitted to the General President by the Secretary-Treasurer of the State, Interstate or Provincial Organization immediately following the holding of any meeting thereof. The word “Provincial” as used in this article shall include “Inter-Provincial” Organizations.
Bonding
-tive of a State, Interstate or Provincial Orga-
nization who handles funds or other property thereof shall be bonded for the faithful discharge of his duties in such amount and as otherwise required by applicable law. The expenses of such bond shall be paid by the State, Interstate or Provincial Organization.
ARTICLE XXIVGOVERNMENT OF LOCAL UNIONS
The laws, rules and procedures by which Local Unions shall conduct their affairs shall be as follows:
ART. XXIV – SUBDIVISION 1OFFICERS
Titles
President, Vice President, Recording-Cor-responding Secretary, Financial Secretary,
and Treasurer. There shall also be three (3) Trustees, who
Art. XXIII.Section 7.
Art. XXIII.Section 8.
Art. XXIV.Subdiv. 1.Section (a).
75
shall not be automatically designated members of the Lo-cal Union’s Executive Board by virtue of their position, but may be included on the Executive Board if the Local Union so provides in its bylaws.
A Local Union may provide in its bylaws for a Business Manager, in which case he shall be elected and be an of-
an agent, an assistant, or more than any one of these, then such Local Union must elect a Business Manager. He shall appoint all committees of the Local Union unless other-wise provided for in the Local Union’s bylaws.
The Business Manager shall be the chief executive of--
sentatives, agents, and assistants, whose wages and allow-ances shall be determined as provided in the Local Union’s bylaws. They shall work directly under his supervision. He may terminate them at any time. Should the Business Man-ager discharge any such employee, then said employee shall not be reemployed or paid by the Local Union in any
-ager, unless his prior approval has been given.
Because of the special burdens and heavy responsibili-ties imposed on the Business Manager of a Local Union, no member shall be eligible for election to, be elected to,
have been continuously in good standing in the Local Union electing him for a period of two (2) years preced-
Treasurer shall not be combined or be held by the same -
ated above, a Local Union shall elect three (3) auditors, a conductor, and a guard, and may also elect or appoint
76
such committees and delegates, other than delegates to the General Convention and to State, Interstate or Provincial Organizations, as it deems advisable, consistent with ap-plicable law.
be three (3) years, except that when and if permitted by applicable law, the terms of
shall have been a member continuously in good standing in the Local Union electing him for one (1) year preceding the month of nominations; and provided that no member shall
he shall also have been a member of the organization for two (2) years immediately prior to election. The Recording-Corresponding Secretary of the Local Union must notify
the candidate must return an acceptance of nomination to the Recording-Corresponding Secretary, which acceptance must be received by the Recording-Corresponding Secre-
the nomination and, in addition, shall have been in regular attendance at all regularly scheduled Local Union member-ship meetings and home district membership meetings held after nomination and before elections, subject, however, to a reasonable excuse based upon good cause such as physi-cal incapacity or death in family. Local Unions may also impose in their bylaws a requirement that candidates for
candidacies signed by not more than two-hundred (200) members or two percent (2%) of the entire membership,
-tions have been concluded the Recording-Corresponding Secretary shall mail to each member nominated, at his last known home address, notice of his nomination and of the
Art. XXIV.Subdiv. 1.Section (b).
77
cause to be read the name of each nominee and identify the -
larly scheduled Local Union membership and district mem-bership meeting held after receipt of the nominee’s written acceptance of nomination. Any Local Union which has not been in existence for a period of one (1) year may elect
and the next annual meeting, from among its members in good standing.
No member shall be eligible for election, be elected nor
immediately prior to the month of nominations, been con-tinuously employed at the trade, or who has not actively sought continuous employment at the trade. This restric-tion, however, shall not apply to any member employed by or working for a Local Union or the International Union, or who has been assigned by his Local Union or the In-ternational Union to perform work in furtherance of the
time-consuming capacity so as to preclude meeting the re-quirement of continuous employment at the trade or active seeking of continuous employment at the trade.
-
standing in the Local Union, and otherwise eligible, shall, upon being nominated, be eligible to be elected to, and to
Notwithstanding any other provision of this Constitu-tion, no member retired from work at the trade shall be
Union. This restriction, however, shall not be applicable to any member so retired who, at least one (1) year, and,
at least two (2) years, immediately prior to the month of
78
returned, or actively and continuously sought to return, to full time work at the trade. This restriction does not pro-
as “Emeritus” or from using the peculiar talents of a given retired individual for the best interests and advancement of the Local Union. No member owner/operator of an entity that employs operating engineers shall be eligible for elec-
nominate candidates in any Local Union election. In those Local Unions operating under the District Administration Form of Government which provide for some Executive Board members to be elected from particular districts, the Local Union in its bylaws may impose a requirement that,
district, candidates must have resided within that particular district for a period up to one year preceding the month of nominations.
In the event of the death, between nomination and the time of the last meeting preceding the election, of any
the forthcoming election, any member of the Local Union, who is otherwise eligible, shall be eligible to be nominated
Secretary of his acceptance of such nomination, shall be
death occurs after the last meeting preceding the election, -
dacy with the Recording-Corresponding Secretary prior to
Executive Board
The Executive Board of a Local Union shall be composed of the President, Vice Presi-dent, Recording-Corresponding Secretary,
Financial Secretary and Treasurer, and the Business Man-
Art. XXIV.Subdiv. 1.Section (c).
79
ager where the Local Union has such a position, together with such other members of the Local Union as may be elected thereto by the membership of the Local Union.
Powers of the Executive Board
The Executive Board shall be the policy-making and administrative tribunal of the Local Union. It shall have such power as
may from time to time be delegated to it by action of the Local Union, or conferred by the Constitution. All acts of the Executive Board shall be reviewable by the Local Union but shall be maintained in full force and effect, sub-ject to revocation by action of the membership of the Local Union if taken at the next subsequent membership meet-ing following the adoption of the act in question. Local
-tive Board, to pay all expenses for investigation services, employment of counsel, and other necessary expenditures in any cause, matter, case or cases where a Local Union
have acted on behalf of the Local Union is charged with any violation of any law or is sued in any civil action with
-
charged with a breach of his trust to the Local Union or any
only if the action is terminated favorably to him.
Except in Local Unions operating under Dis-trict Administration Form of Government,
shall be held in the month of August, and the nominations shall be made at a regular meeting prior to the election, but in no event earlier than the May meeting preceding
Art. XXIV.Subdiv. 1.Section (d).
Art. XXIV.Subdiv. 1.Section (e).
80
an earlier installation is directed by the General President. The Local Union may adopt the Australian ballot system, in which event the polls shall be kept open for a period of twelve (12) consecutive hours between the hours of 6 a.m. and 10 p.m. on the date of the election, or may hold the election through referendum conducted by mail. The
be elected by a plurality of votes cast, except that the three (3) candidates receiving the highest number of votes for
elected. Adequate safeguards to insure a fair election shall be provided by the Local Union, in accordance with the International Constitution, applicable law, and such rules and regulations as may be promulgated by the General Ex-ecutive Board.
No candidate (including a prospective candidate) for
--
national Union of Operating Engineers or from any foun-dation, corporation or other entity whose funds are derived in whole or in part from any person not a member of this International Union.
Where all candidates duly nominated to Local Union
may dispense with a secret ballot vote and, in such event, the Local Union may direct the Recording-Corresponding Secretary to cast one ballot for the nominees, who shall
single candidate is duly nominated to Local Union elec-
a Local Union may dispense with a secret ballot vote for
place on the ballot the name of such candidate or the of-
81
Recording-Corresponding Secretary to cast one ballot for the nominee who shall then be declared duly elected to
appointment for the unexpired term thereof, upon vote of a majority of the following
-responding Secretary, Financial Secretary, Treasurer, and the Business Manager where the Local Union has such a
vacancy within thirty (30) days after the same shall occur,
the majority of the membership in good standing present at the next regular meeting of the Local Union following
a vacancy under this section, a member must, at the time of election, be in good standing with respect to payment of dues and meet the requirements contained in the sec-ond and fourth paragraphs of Article XXIV, Subdivision
meetings may be declared vacant by a majority vote of the -
tive of a Local Union may be removed after due trial, for
three-fourths of the membership in good standing in the same manner and form provided in the trial of members in this Article.
Protests and Appeals
Any protest relating to the nominations and -
ing to the nominations and elections of dele-gates, must be made to the Local Union by registered mail
Art. XXIV.Subdiv. 1.Section (f).
Art. XXIV.Subdiv. 1.Section (g).
82
within thirty (30) days after the election, setting forth in
making a timely protest may appeal the decision of the Lo-cal Union thereon to the General Executive Board and the General Convention in accordance with Article XVII of this Constitution. Notwithstanding the above, any protest relating to the nominations and elections of delegates con-ducted in January or February prior to a General Conven-
Secretary-Treasurer to the Credentials Committee of the General Convention for consideration. An appeal from a decision of the Credentials Committee may be made to the Convention, and delegates affected thereby shall not be seated until said appeal shall have been voted thereon by the Convention.
ART. XXIV – SUBDIVISION 2POWERS AND DUTIES OF OFFICERS
President
It shall be the duty of the President to pre-side at all meetings, enforce the Constitu-tion, Laws, Rules, Ritual and customs of the
organization; to decide all questions of order subject to an appeal to the Local Union; to cast the deciding vote in case of a tie; to sign all orders on the Treasurer for the disposi-tion of funds authorized by the Local Union; to be custo-dian of the quarterly password and examine the credentials of any member before bestowing the same; to furnish the General President full and complete information on any subject within his control or knowledge when requested;
which may from time to time be delegated to him by action of the Local Union or other authorities in the organization.
Art. XXIV.Subdiv. 2.Section (a).
83
Vice President
The Vice President shall assist the President
in his absence and have such other duties as
Recording-Corresponding Secretary
It shall be the duty of the Recording-Corre-sponding Secretary to keep the minutes of each meeting; to read all correspondence
and documents; to issue notices for the calling of meet-ings; to sign all orders on the Treasurer for the disposition of funds authorized by the Local Union; to notify the Gen-
keep a record of all applications for membership; to have -
ments; to maintain a correct list of the membership and their addresses; to include a copy of the Financial Secre-tary’s monthly report to the General Secretary-Treasurer in the minutes; to furnish the General President full and complete information on any subject within his control or knowledge when requested, and such other duties as are
to time be delegated to him by the Local Union or oth-ers in authority. The Recording-Corresponding Secretary
and alternates to a General Convention report to the Gen-eral Secretary-Treasurer the names and addresses thereof,
of Five ($5.00) Dollars. Upon failure of the Recording- Corresponding Secretary to include in the minutes a copy of the Financial Secretary’s monthly report to the General
($5.00) Dollars in each instance. In the absence of both the President and Vice President from a meeting the Record-
Art. XXIV.Subdiv. 2.Section (b).
Art. XXIV.Subdiv. 2.Section (c).
84
ing-Corresponding Secretary shall call the same to order and a President pro tem shall be elected who shall serve as
Financial Secretary
It shall be the duty of the Financial Sec-retary to receive all monies and all funds paid to the Local Union; to pay all funds
received by him to the Treasurer upon receiving Treasur-
each member together with the name and address of each; to announce before the adjournment of each meeting the amount of funds collected thereat by him; to report at the end of each month to the Local Union the number of mem-bers in good standing; to make a monthly written report to the General Secretary-Treasurer of all admissions, deaths, resignations, expulsions and suspensions, keep a record thereof and furnish the Recording-Corresponding Secre-tary a copy thereof; to keep a record of the dues stamps received and disbursed. He shall furnish the General Presi-dent full and complete information on any subject within his control or knowledge when requested and perform
or which from time to time may be delegated to him by the Local Union or other authorities.
Treasurer
It shall be the duty of the Treasurer to re-ceive and hold all Funds collected by the Financial Secretary and delivered to him;
to give receipt for monies delivered to him; to make no disbursements without approval of the Local Union and only upon written order of the President and Recording-Corresponding Secretary; to make an itemized statement and report to the Local Union at the end of each quarter on the condition of his accounts and the transactions of his
Art. XXIV.Subdiv. 2.Section (d).
Art. XXIV.Subdiv. 2.Section (e).
85
the Trustees when called upon by them; to furnish the Gen-eral President full and complete information on any sub-ject within his control or knowledge when requested and to perform such other duties as are customarily incident to
him by the Local Union or other authorities.
Conductor
It shall be the duty of the Conductor to ex-amine all present at meetings; to ascertain that the dues book and/or card of each is
paid up to date; to receive the quarterly current password; to report to the President all who are without the password; to conduct all candidates through the initiatory ceremony, and see that the Ritual is properly administered; to see that all candidates comply with the Ritual; to see that no one remains at the meeting or initiation save such as are members in good standing and who know the password; to furnish the General President full and complete informa-tion on any subject within his control or knowledge when requested and perform such other duties as are customarily
delegated to him by the Local Union or other authorities.
Guard
It shall be the duty of the Guard to take charge of the doors at meetings to see that none but members in good standing and with
the quarterly password enter; to allow no member to retire without the consent of the President; to announce the names of all those without the password desiring admission and to admit such as the President shall designate; to furnish the General President full and complete information on any subject within his control or knowledge when requested and to perform such other duties as are customarily incident
Art. XXIV.Subdiv. 2.Section (f).
Art. XXIV.Subdiv. 2.Section (g).
86
him by the Local Union or other authorities.
Trustees
It shall be the duty of the Trustees to have supervision over all funds and property of the Local Union under such instructions as
they shall from time to time receive from the Local Union; to see that the funds of the Local Union are deposited by
the Local Union shall designate; to examine the bank books
funds of the Local Union and see that the same are cor-rect; to be custodians of the bonds covering the Financial
Union may require to be bonded; to furnish the General President full and complete information on any subject within his control or knowledge when requested. They shall have such other duties as are customarily incident to their
by other authorities. In those instances in which the Local Union is audited not less than annually by an independent public accountant, the Trustees shall certify on the basis of the audit of such independent public accountant. In carry-ing out the duties imposed upon them by this Section, the Trustees shall act as a Board of Trustees and no Trustee shall separately act in his individual capacity as a Trustee.
Auditors
It shall be the duty of the Auditors to audit the books and accounts of the Recording-Corresponding Secretary, Financial Sec-
of the Local Union in the months of January, April, July
Art. XXIV.Subdiv. 2.Section (h).
Art. XXIV.Subdiv. 2.Section (i).
87
and October. However in those instances in which the Lo-cal Union is audited not less than annually by an indepen-dent public accountant, the Auditors shall not separately audit the books and accounts, and shall report on the basis of such audit. The Auditors shall have power to summon
-cords or any discrepancy that may appear therein, and any
Auditors all papers, records, books, and property belonging to the Local Union demanded by them; however, the Audi-tors shall take care not to exercise this power in a manner so as to interfere with the ongoing duties of the indepen-dent public accountant where a Local Union engages such. They and any independent accountant performing an audit of the Local Union shall furnish the General President full and complete data on any subject within their control or knowledge when requested. In carrying out the duties and powers enumerated in this Section, the Auditors shall act as a Board of Auditors and no Auditor shall separately act in his individual capacity as an Auditor.
Bonding
-tive of a Local Union who handles funds or other property thereof shall be bonded for
the faithful discharge of his duties in such amount and as otherwise required by applicable law. The expense of such bond shall be paid by the Local Union.
signature is required by any provision of this Constitution or law is physically or
mentally incapacitated and unable to act or refuses to per-form his constitutional duties, the Local Union Executive
Art. XXIV.Subdiv. 2.Section (j).
Art. XXIV.Subdiv. 2.Section (k).
88
bonded to act in his place and stead and such act shall be
act shall not be responsible therefor. In cases where the Local Union Executive Board fails or refuses to act, the General President may take whatever action he deems necessary.
ART. XXIV – SUBDIVISION 3DUTIES OF MEMBERS
Members of Local Unions shall conform to and abide by the Constitution, Laws, Rules, Obligation and Ritual, and the deci-
sions, rulings, orders and directions of any authority of the International Union empowered by this Constitution to make them. Each member shall keep the Recording-
of his residence and any change thereof. Consistent with applicable law, each member shall do all in his power to advance the cause of organized labor through the encouragement of the use of union goods and services. Members may, upon proper credentials being produced, obtain admission to meetings of other Local Unions of the organization.
The admission to membership in confor-mity to the Constitution, Obligation and Ritual constitutes a contract between the
member, his Local Union, the International Union and every other member therein, whereby, in consideration of
he will not violate the Constitution, Laws, Rules, Obli-gation and Ritual, and the decisions, rulings, orders and directions of the International Union or its subordinate branches, nor the trade rules of the locality in which he works, and that he will not enter into the employment of any person conditioned on severing his membership with this organization.
Art. XXIV.Subdiv. 3.Section (a).
Art. XXIV.Subdiv. 3.Section (b).
89
ART. XXIV – SUBDIVISION 4LOCAL OFFICE
such business representatives and clerks as may be deemed necessary in the management thereof and, where lawful and appropriate, may prescribe the delegation of duties of
-tatives and clerks, together with such other duties as from time to time may be deemed advisable; provided, however, that no one person shall perform the duties of both Finan-cial Secretary and Treasurer.
ART. XXIV – SUBDIVISION 5 STANDING COMMITTEES
Each Local Union shall establish a standing committee on Safety and Health and a standing committee on Legislation and Political Action, unless circumstances within a Local Union render such establishment impracticable, as well as
-ties to them. All committees shall render reports promptly to the Local Union and deliver all funds collected or held by them to the Financial Secretary, and perform such other acts and in such manner as the Local Union may from time to time direct.
ART. XXIV – SUBDIVISION 6PROCEDURE ON APPLICATIONS
Applicants for membership shall be referred to a commit-tee which may consist of the Local Executive Board in the Local Union, which committee shall investigate the char-
membership in the Local Union. This determination shall be made on the basis of uniform standards, and shall not be discriminatory in any manner and shall be in accor-
90
dance with all applicable law. The applicant, if approved
address shall be placed on the records, and he shall be furnished a copy of the Constitution and his book and/or card of membership. If an applicant is rejected, his initia-tion fee shall be returned to him. A rejected applicant may reapply for membership after a lapse of ninety (90) days following his rejection.
ART. XXIV – SUBDIVISION 7DUES, REMITTANCES, ARREARAGES,
CHARGES, REINSTATEMENT AND TRIALS
How Dues Fixed
The dues required to be paid by the mem-
a majority vote of the members in good standing, voting by secret ballot at a membership meeting, after reasonable notice of the intention to vote upon such question, or by a majority vote of the members in good standing voting in a membership referendum conducted by secret ballot, but shall not be less than the minimum dues provided under the Constitution. When the per capita tax payable to the International Union is increased pursuant to the provisions of Article XI, Section 1, the dues charged by a Local Union shall be increased in a corresponding
-national Union and its Local Unions; provided, however, that upon application of a Local Union, such increase may be waived by the General President if he determines that such waiver is necessary to protect and preserve the best interests of the Local Union.
Fixing Current Due Dates
monthly, quarterly, semi-annual or yearly basis and shall become due and payable on
Art. XXIV.Subdiv. 7.Section (a).
Art. XXIV.Subdiv. 7.Section (b).
91
terms shall be known as current dues for that term.
No member shall be in good standing un-less he has paid all current dues to the Lo-cal Union within thirty (30) days after they
shall have become due and payable. No member whose dues have been withheld by his employer for payment to the Local Union, pursuant to his voluntary authorization provided for in a collective bargaining agreement, shall be
the Local Union solely by reason of alleged delay or de-fault in the payment of dues.
Penalties for Members in Arrears to Local Union
Members who have not tendered their cur-rent dues on or before the day such dues shall have become due and payable may be
removed from employment where valid collective bargain-ing agreements or applicable law permits. Members who have not paid their current dues or assessments within thir-ty (30) days after they shall have become due and payable may upon vote of the Local Union be denied voice and vote therein, be barred from meetings or removed from committees or both, or suspended from membership.
-ments within ninety (90) days after they shall have become due and payable may upon vote of the Local Union be re-
Members who have not paid their current dues or as-sessments within six (6) months after they shall have be-come due and payable may, upon report thereof by the Fi-nancial Secretary at a regular meeting of a Local Union, be expelled by a majority vote of the members present.
The Local Executive Board is likewise authorized
Art. XXIV.Subdiv. 7.Section (c).
Art. XXIV.Subdiv. 7.Section (d).
92
and empowered to take the same action provided herein- above and to enforce the foregoing penalties for arrear-
arrearages are found to exist, and the same authority and power is conferred upon Supervisors in charge of Local Unions under International Supervision.
with another Local Union save in the manner and form re-quired by the Constitution. Such member shall be required to make full disclosure to such other Local Union of his
penalty or other disability imposed within the organiza--
tion such member shall strictly conform to and discharge any and all constitutional requirements governing the lift-
In addition to the penalties hereinabove provided, Lo-cal Unions may also impose the penalties provided for the causes herein set forth. Except for failure to tender dues, no member shall be subjected to any of the penalties above enumerated unless the trial procedures set forth in Subdivi-sion 7, Section (l)-(s) of this Article have been followed.
Other Causes for Fines, Suspensions or Expulsion
who becomes an habitual drunkard; who wrongs a fellow member or defrauds him;
who commits an offense discreditable to the International Union or its subdivisions; who seeks to dissolve any Local Union or separate it from the general organization; who willfully engages in slander or libel where such slander or libel is contrary to the responsibility of every member
interferes with the Organization’s performance of its le-gal or contractual obligations; who violates the trade rules of the locality in which he is working; who fraudulently receives, misapplies, converts or embezzles the funds of
Art. XXIV.Subdiv. 7.Section (e).
93
any subdivision of the International Union or the monies of any member entrusted to him; who violates his obliga-tion or any section of the Constitution, Rules, Edicts and Ritual of the International Union; who divulges the pass-
same; who is guilty of insubordination; or who refuses to acknowledge or perform the lawful command of those au-thorized within the International Union to issue the same, may be disciplined or, upon trial therefor and conviction
Union.Any member working contrary to a declared strike or
the rules established by the Local Union by reason of a lockout shall, upon trial and conviction thereof, be subject
expulsion, or both. His name shall be reported to his Local Union, which shall enforce this Section, charge and col-
from time to time may be determined by them. Notwith-standing the foregoing provisions of this Section, the pen-alty prescribed upon a traveling member shall not exceed that amount normally imposed by a Local Union against its own members who have been found guilty of a similar offense or violation.
Payment of Fines
charged by the Financial Secretary against the member from whom due and must be
paid by the member involved to the Financial Secretary
member, his sentence shall automatically be read to incor-porate the following provisions. Members thirty (30) days
is paid no dues owed by such member can be received or
Art. XXIV.Subdiv. 7.Section (f).
94
accepted by the Local Union. Such refusal to accept dues shall not, however, form the basis for removal from em-ployment unless authorized by law. Members sixty (60)
from committees, barred from meetings and suspended from membership. Members ninety (90) days in arrears
arrears shall be expelled from membership. In addition to the penalties provided for herein, Local Unions are autho-
legal proceedings.
Where Other Local Unions are Involved
member of another Local Union shall be reported to and entered upon the books of
the Local Union to which he belongs, which shall charge the same to and collect from the member involved. Upon collection of the same such Local Union shall forward the money to the Local Union which levied the same. Failure
suspension of the charter of the Local Union charged with such duty.
Reinstatement of Suspended Members
A member who has been suspended under the provisions of this subdivision may be restored to membership in good standing
and to his membership number only by making applica-tion together with the payment of all dues, assessments and
addition an amount equal to three (3) months’ dues. When
applicant, notice thereof shall be given by the Financial Secretary to the General Secretary-Treasurer on the next monthly report, accompanied by the reinstatement assess-
Art. XXIV.Subdiv. 7.Section (g).
Art. XXIV.Subdiv. 7.Section (h).
95
ment and other charges due thereon. However, in cases where the cost of reinstatement exceeds the amount of the current initiation fee, the Local Union may accept such in-dividuals as new members.
Reinstatement of Expelled Members
A member who has been expelled for any of the causes provided in this Article may be restored to membership in good standing
and to his membership number only by application there- for on the form furnished by the General Secretary-Trea-surer, together with the payment of all dues, assessments
addition, an amount equal to six (6) months’ dues. When
Local Union shall have granted such application pursu-ant to the procedure on applications contained in Article XXIV, Subdivision 6, notice thereof shall be given by the Financial Secretary to the General Secretary-Treasurer on the next monthly report, accompanied by all documents, reinstatement assessment and other charges due thereon.
-ously expelled from any Local Union of the International Union of Operating Engineers and not reinstated as herein-above provided shall be null and void and, upon discovery of the fact by the General Executive Board or the General
-tional Union of Operating Engineers and the Local Union
-diately strike his name from its records.
Local Unions Charged Upon Reported Status of Members
The General Secretary-Treasurer shall charge to the Local Unions and the Local Unions must pay all per capita taxes and as-
Art. XXIV.Subdiv. 7.Section (i).
Art. XXIV.Subdiv. 7.Section (j).
96
upon the status of members reported by the Local Union to the General Secretary-Treasurer, which per capita taxes and assessments shall continue to be charged to and collected by the General Secretary-Treasurer from the said Local Union until a change in the status of any member shall be reported
When a Local Union Not Charged With Certain Per Capita Taxes
In instances where the penalty of suspension or expulsion is invoked upon members as provided in this Article, or where members
have died or have properly transferred or withdrawn, Local Unions may, upon report to the General Secretary-Treasur-er of each suspension, expulsion, transfer, withdrawal, or death, be relieved from further payment (including that due for the month in which the report is made but not for the month in which the death occurs or withdrawal is made) of the per capita tax due from the Local Union to the General Secretary-Treasurer on such members reported.
Trials
A Local Union shall have the power to dis-
upon causes provided in this Article, and provided further that any member charged with the offens-es designated in this Article shall be tried within the juris-diction of the Local Union where said offense was com-mitted, in which case a copy of the verdict shall be sent to the Local Union to which the member charged belongs.
All charges must be preferred in writing and signed by the complainant. Where the President is not the complainant, the charg-
es must contain a signed statement of either the complain-
Art. XXIV.Subdiv. 7.Section (k).
Art. XXIV.Subdiv. 7.Section (l).
Art. XXIV.Subdiv. 7.Section (m).
97
ant or some other member that he has personal knowledge of the facts which form the basis of the charges. Charges
-cumstance giving rise to the charge, or within thirty (30) days of learning of the event or circumstance, whichever
-responding Secretary and read by the Recording-Corre-sponding Secretary at the next succeeding meeting fol-
charges the Recording-Corresponding Secretary shall notify the defendant in writing, enclosing a copy of said
defense or the entering of a plea by the defendant, which date shall be not less than two (2) nor more than four (4) weeks thereafter. In addition, where the defendant is a traveling member, the Recording-Corresponding Secre-tary shall immediately send a copy of the charges to the Recording-Corresponding Secretary of the defendant’s
concisely and as accurately as possible the time, place, nature and circumstances of the offense alleged.
Within thirty (30) days after the pleadings
entered, the Local Executive Board, or any other Board within the Local Union established for the purpose, may at its discretion, order a pre-trial hearing and direct the complainants and defendants to appear at said hearing. All
-tered Mail providing the date, time and place of the hear-
preliminary determination as to whether the charges have merit. The Board, upon hearing all the parties, may at its discretion, decline to process these charges after such hear-ing, as being without merit. However, such decisions of
Art. XXIV.Subdiv. 7.Section (n).
98
the Board not to process the charges, shall be appealable to the General Executive Board in accordance with the pro-visions of this Article. The failure of the complainant to appear at such pre-trial hearings may result in a dismissal of the charges by the Board. The Board shall also have the power to settle the matter at such hearing in the event such settlement is mutually agreeable to all parties. In the event the Board does not invoke the pre-trial procedures within the time set forth herein, or invokes the procedures and determines to proceed with the charges on their mer-its, the following provisions shall then become effective:
and the pre-trial procedure has been invoked, and/or time limitation for same expired, the President shall cause the
next regular meeting thereafter. Unless a request for post-ponement of the trial shall have been made to and granted by the President, the trial shall proceed upon the date set. Complainants and defendants may present their own cases or by counsel selected from among the membership of the International Union of Operating Engineers. After all the evidence is in, and a full and impartial hearing has been had upon the issues, the President shall distinctly state the charge or charges and present the matter to the members present at said meeting for a vote.
The said members shall vote by ballot ei-ther guilty or not guilty on the merits of each individual charge. Three tellers shall
be appointed, one by the defendant, one by the complain-ant and one by the President (if the President is either com-plainant or defendant then the third teller shall be elected by the meeting), which tellers shall collect the ballots and announce the verdict. A three-fourths vote of the member-ship recorded as present shall be required for conviction in cases involving expulsion, and a majority vote in cases
Art. XXIV.Subdiv. 7.Section (o).
99
involving other penalties. If a verdict of guilty is returned, the President shall then prescribe the penalty permitted by the vote to be imposed.
In the event the complainant fails to appear at the time set for trial the President may dismiss the charges unless otherwise deter-
mined by a two-thirds vote of the members present. In the event the defendant willfully fails to appear at the time of the trial the said trial may be conducted in his absence, a vote taken by the tellers appointed by the President, a verdict announced and a penalty imposed.
Any member other than the President of the Local Union preferring charges against an-other member as provided herein, must at
for each signatory to each such individual charge against each member. In the event a charge is proved, the deposit
same, and if not proved, shall be forfeited to the Local
or expelled shall have the right to appeal to the General Executive Board in the manner and form provided in the Constitution and the Laws and Rules established thereun-
the penalty of expulsion is imposed shall cause the order of expulsion to be stayed until decision of the General Execu-tive Board thereon. Unless by action of the General Execu-tive Board thereon, waiving the requirement, no member
Trials of members within Local Unions under Inter-national Supervision shall be by and before the General President, or his deputy thereunto assigned, who shall be authorized and empowered to hear and decide the same.
Art. XXIV.Subdiv. 7.Section (p).
Art. XXIV.Subdiv. 7.Section (q).
100
In all such cases charges of infractions of the Constitu-tion, bylaws Ritual and rules against a member shall be
copies thereof and upon reasonable notice thereafter, the General President or his deputy thereunto assigned shall hear, try and decide the case, and administer the penalty from which sentence the aggrieved party may appeal to the General Executive Board in the manner governing appeals under the Constitution.
In the event the President of the Local Union is the com-plainant or the defendant he shall not participate as a mem-ber of the Local Executive Board in the pre-trial functions entrusted to the Board under Section (n) of this Subdivi-sion, and shall not exercise any of the functions entrusted to the President under said Section (n) or under Sections (o) and (p) of this Subdivision. All functions entrusted to the President under said Sections (n), (o) and (p) shall, when the President is either the complainant or the defen-dant, be exercised by the Vice President or, if he is either the complainant or the defendant, then by any other Local
-cal Executive Board must conduct a pre-
trial hearing of the nature and in the manner described in Subdivision 7, Section (n) of this Article. The decision of the Local Executive Board, whether it be to decline to pro-cess the charges as being without merit or to submit the charges for trial within the Local Union, shall be subject to appeal to the General Executive Board in the manner governing appeals under the Constitution. If, on appeal, the General Executive Board upholds the decision of the Local Executive Board not to process the charges, or if the General Executive Board reverses the decision of the Lo-cal Executive Board to submit the charges for trial within the Local Union, there shall be no Local Union trial and
Art. XXIV.Subdiv. 7.Section (r).
101
the charges shall be dismissed. Notwithstanding any other provision of this Constitution there shall be no further ap-peal from such decision. If the General Executive Board reverses the decision of the Local Executive Board not to process the charges, or if the General Executive Board up-holds the decision of the Local Executive Board to submit the charges for trial within the Local Union, it shall remand the charges to the Local Union for trial within the Local Union in the manner provided by this Article. Under the procedure herein provided, a reading of the charges at a membership meeting prescribed in Subdivision 7, Section (m) of this Article, shall be postponed until such time as the charges are ripe for trial at a membership meeting.
The Local Union shall keep minutes of all trials conducted by it. A stenographic record of trial proceedings need not be taken unless
charging party or the charged member so requests within seven (7) days of receipt of the notice of trial. The party requesting that such recording be made shall be respon-sible for the cost of the recording and the preparation of the transcript by a competent reporter, chosen by the presiding
so that each party and the Local Union may have one. The
is a true and accurate transcript of the proceeding.
ART. XXIV – SUBDIVISION 8RECALL OF OFFICERS
Corresponding Secretary a petition requesting the recall
thirty (30) days thereafter a special meeting of the Local Union shall have been called and held with all petition-
Art. XXIV.Subdiv. 7.Section (s).
102
ers present thereat, which special meeting shall have been devoted to verifying the signatures of all petitioners to said recall petition and the certifying by the Financial Secretary of the good standing of each petitioner, then and not other-wise the Recording-Corresponding Secretary shall notify
-tion; 2nd, the holding of such special meeting; and 3rd, the date set for the voting upon the recall (which date shall be the third regular meeting following the mailing of such no-tice) and a vote thereon shall be taken at such meeting. The voting upon the recall shall be by secret ballot conducted by three tellers one of whom shall be a petitioner, one ap-pointed by the President and one elected by the members
there be cast a two-thirds vote of the entire membership in good standing in favor thereof, and upon the rendition of
ART. XXIV – SUBDIVISION 9QUORUM
A quorum for the transaction of business at meetings of a Local Union shall consist of not less than seven (7) mem-bers in good standing.
ART. XXIV – SUBDIVISION 10MEETINGS
Monthly Meetings
All Local Unions shall have at least one reg-ular meeting each month, except that a Local Union may dispense with monthly meetings
during a vacation period, not to exceed three successive months in one calendar year. Local Unions may also hold as many other regular meetings as may be necessary for the proper transaction of business. Where Local Unions are authorized to operate under a District Administration Form of Government, or have received special dispensation, the
Art. XXIV.Subdiv. 10.Section (a).
103
meetings thereof, whether general or district, regular or special, shall be as required by the bylaws.
Annual Meetings
The annual meeting of Local Unions shall be the last meeting in June of each year.
Special Meetings
Special meetings shall be called when or-dered by the President, or by the Business Manager, or by a majority of the following
-tary, Financial Secretary, and Treasurer, or upon written request of one-third of the members of the Local Union in
specifying another means for calling such meetings.
ART. XXIV – SUBDIVISION 11RELATIONS WITH EMPLOYERS
Contracts
Proposed collective bargaining agreements -
tiated for Local Unions by the Business Manager, by a committee, by the Local Executive Board, or by the Business Representative. Such agreements and
been presented at the next membership meeting following the negotiation of the proposed agreement and have been approved by the membership affected, provided, however, that a Local Union may delegate to its Local Executive Board or to its bargaining committee authority to approve
-
-ately after execution.
Art. XXIV.Subdiv. 10.Section (b).
Art. XXIV.Subdiv. 10.Section (c).
Art. XXIV.Subdiv. 11.Section (a).
104
Any vote taken under and pursuant to Arti-cle XXIV, Subdivision 11, Section (a) may, if so voted by a majority of the member-
ship of a Local Union voting, be limited to those members who have not retired under any negotiated pension plan,
Fund, or headquarters staff plan. Each such retired mem-ber shall, however, be entitled to have a voice at any such meeting.
Pension Reciprocity
In order to advance the common interest by
among all plans covering Operating En-gineers, it shall be the duty and obligation of each Local Union, consistent with applicable law, to secure provisions
-ated by the Local.
ART. XXIV – SUBDIVISION 12BYLAWS AND TRADE RULES
Local Unions may adopt and amend bylaws and trade rules by a majority vote of the members voting at a regu-lar membership meeting, at a special meeting called for that purpose, or in a mail referendum of the membership. No bylaws or trade rules may be adopted or amended in contravention of the Constitution, Laws, Rules, Obligation or Ritual of the International Union, or the decisions, rul-ings, orders and directions of any authority of the Inter-national Union empowered by this Constitution to make them. Copies of all bylaws and trade rules, immediately following their adoption or amendment, shall be trans-mitted by the Recording-Corresponding Secretary to the General President and the General Secretary-Treasurer. Bylaws and trade rules or amendments thereto, in order to
Art. XXIV.Subdiv. 11.Section (c).
Art. XXIV.Subdiv. 11.Section (b).
105
and thereafter approved by the General President. Where a Local Union does not adopt bylaws of its own, the provi-sions of the International Constitution shall be its bylaws wherever applicable.
ART. XXIV – SUBDIVISION 13DISSOLUTION
No Local Union shall dissolve or withdraw from the Inter-national Union of Operating Engineers over the dissent of seven (7) members in good standing.
ART. XXIV – SUBDIVISION 14PARLIAMENTARY LAW
Roberts’ Rules of Order shall be the parliamentary author-ity on all procedure not covered by the Constitution, Laws, Rules, Obligation and Ritual of the International Union or Local Unions subordinate thereto.
ART. XXIV - SUBDIVISION 15STAFF EDUCATION
The International Union will conduct educational pro-grams for Local Union Business Managers, business rep-resentatives, and staff regarding their obligations as union employees. All such personnel who commence employ-
their employment, attend an educational program conduct-ed by the International Union, with reasonable expenses defrayed by the International Union.
ARTICLE XXVAPPRENTICESHIP
Local Unions should establish an apprenticeship and training committee which shall have the responsibility of developing and operating registered apprenticeship pro-grams and such other programs as may be desirable to train members in the complete mastery of our craft jurisdiction.
106
Where Local Unions have established joint apprenticeship committees with employers, and where Local Unions have adopted standards for training apprentices, such appren-ticeship standards shall not be less than the minimum stan-dards established by the National Joint Apprenticeship and Training Committee for Operating Engineers.
Each Local Union shall register with the General Secre-tary-Treasurer its current apprenticeship standards.
All of the registered apprentice engineers of this Inter-national Union shall be subject to the rules and regulations
-ties the same as journeymen members of the International Union of Operating Engineers.
ARTICLE XXVIDISTRICT ADMINISTRATION FORM
OF LOCAL UNION GOVERNMENT
Where the circumstances of a Local Union so require, and appropriate bylaws have
been adopted by the Local Union and thereafter approved by the General President, it may proceed under a district administration form of government and shall:
(a) Designate or amend the districts into which its ter-
(b) Provide for the organization, administration and supervision of its districts;(c) Provide for the holding of regular monthly or quar-terly district meetings with authority limited to making recommendations to the Local Union, initiating legis-lation to the Local Union, holding trials of members, electing such representation to the Local Executive Board, committees and similar bodies as may be pro-vided under its bylaws, and, where the Local’s bylaws
(d) Designate and empower the Local Executive Board, in addition to its constitutional powers, to act for the
Art. XXVI.Section 1.
107
Local Union in business and administrative matters (in-cluding reinstatement of members and similar duties) in the interim between regular meetings of the general membership of the Local Union, all of which acts of the Local Executive Board to remain in full force and effect subject only to revocation by action of the gen-eral membership of the Local Union if taken at the next subsequent general membership meeting following the adoption of the act in question; (e) Authorize and empower the acts of a Local Business Manager; (f) Adopt or amend bylaws in accordance with Article
Article XXIV, Subdivision 7, Section (a);(g) Provide for the holding of but two or more regular meetings of the general membership per year and the method of convening other called meetings thereof, all of which meetings to be deemed regular meetings of the general membership for the purposes outlined in the Constitution;
at district or general membership meetings prior to the election, but in no event earlier than a May meeting pre-ceding the election, with elections during the month of August by mail referendum conducted by secret ballot among the general membership or by Australian ballot system, in which event the polls shall be kept open for a period of twelve (12) consecutive hours between the hours of 6 a.m. and 10 p.m. on the date of election and
of September; (i) Provide for the nomination of delegates to General Conventions at district or general membership meet-ings during the months of December or January prior to the Convention, with elections during the month of February by mail referendum conducted by secret ballot
108
among the general membership or by Australian ballot system, unless under the provisions of the Local Union bylaws they are elected prior thereto, but in no event
-vention;(j) Provide for adequate safeguards to ensure a fair elec-tion in elections conducted pursuant to subsections (h) and (i) of this Section, in accordance with the Interna-tional Constitution, applicable law and such rules and regulations as may be promulgated by the General Ex-ecutive Board;(k) Exercise such other powers as may be deemed nec-essary and incidental in effectuating the normal admin-istration of business of the Local Union.
TRIALS OF MEMBERS UNDERDISTRICT ADMINISTRATION FORM
OF GOVERNMENT
to proceed under the District Administration Form of Government, the trials of any of its members, upon charges, may if its bylaws so provide, be before the district membership meeting and in such cases any infraction of the Constitution, Ritual, bylaws or rules by a member in-voking discipline against him which would otherwise be triable under the Constitution before a general member-ship meeting of a Local Union shall, under this section and with the same force and effect, be heard and acted upon by and before the regular district membership meeting in the district wherein the infraction or cause arose. All perti-nent constitutional procedure governing trials, charges and penalizing of members, shall apply to such trial and pro-cedure before regular district membership meetings, and any member aggrieved by such procedure or the penalty assessed therein may appeal therefrom directly to the Gen-eral Executive Board in the manner and form governing appeals under the Constitution.
Art. XXVI.Section 2.
109
ART. XXVIITHE GENERAL PENSION FUND PLAN
The terms and provisions of the General Pension Fund Plan, as amended from time to time by the trustees thereof, are printed in a separate booklet available through each Local Union and distributed to each participant. Partici-pation in the General Pension Fund Plan is a mandatory obligation of all Local Unions.
ART. XXVIIIHONORARY POSITIONS CREATED
There are hereby established the Honorary Titles of GEN-ERAL PRESIDENT EMERITUS, GENERAL SEC-RETARY-TREASURER EMERITUS and GENERAL COUNSEL EMERITUS and such titles may only be con-ferred by the General Convention when in session or the
General President, General Secretary-Treasurer or General Counsel.
ART. XXIXSAVINGS CLAUSE
If any provision of this Constitution is held to be invalid by operation of law or by any competent authority or tribunal, the remainder of the Constitution or the ap-plication of such provision to persons or circumstances other than those as to which it has been held illegal or invalid shall not be affected thereby. If any provisions of this Constitution shall be found or declared to be illegal, invalid or inoperative by any competent authority of the legislative, executive, judicial or administrative branch of a Federal, State or Provincial government, the General Executive Board is empowered to substitute during the period of its invalidity a provision which will meet the objections to its invalidity and which will be consistent
110
with the intent and purpose of the invalid provision.Notwithstanding any other provision of this Constitu-
tion, if, at any time, the General Executive Board shall deem it necessary for the protection of the welfare and best interest of the International to amend any provi-
-laration, order or judgment by any competent authority of the legislative, executive or administrative branch of a Federal, State or Provincial government, it shall be empowered to enact such amendment and such amend-ment shall have the same force and effect as any other provision of this Constitution.
Wherever reference is made to gender in this Constitu-tion the same shall be interpreted and construed as includ-ing both male and female. This interpretation shall also be applied by Local Unions and other subordinate bodies of the International Union to their respective bylaws.
111
ARTICLE SECTION PAGE
AFFILIATION WITH AFL-CIO I 1 5
AGENCY SHOP . . . . . . . . . . . . . XI 1 31
ALTERING DUES BOOK AND/OR CARD, penalty . . . . . . . . . . . XX 12 70
AMENDING CONSTITUTION . XVIII 1 62
AMENDMENTS BY GENERAL EXECUTIVE BOARD . . . . . . . . V 2 19
AMOUNT OF APPLICANTSERVICE DUES . . . . . . . . . . . . . XV 3-d 50
AMOUNT OF TRAVEL SERVICE DUES . . . . . . . . . . . . XV 3-e 51
APPEALS TO GENERAL EXECUTIVE BOARD . . . . . . . . XVII 1-a,b,c 59 XXIV Sub.1-g 82 XXIV Sub.7-q 100
APPEALS TO GENERALCONVENTION . . . . . . . . . . . . . . XVII 2 61
APPEALS, pendency of . . . . . . . XVII 3 61
APPLICANTS SERVICE DUES: XV 3-c 50 Amount of . . . . . . . . . . . . . . . . XV 3-d 50 Duration . . . . . . . . . . . . . . . . . . XV 3-c 50
APPLICATION FOR CHARTERS XIV 2 39
APPLICATIONS: Full disclosure on …………… XXIV Sub.7-d 93 Misrepresentation . . . . . . . . . . XVI 2 57
APPRENTICE ENGINEERS: (See Registered apprentice engineers)
APPRENTICESHIP . . . . . . . . . . . XXV 106
INDEX
112
ARTICLE SECTION PAGE
ARREARS, penalties . . . . . . . . . . XXIV Sub.7-d 92
ASSESSMENTS: General . . . . . . . . . . . . . . . . . . . XI 3 33 By General Convention and General Executive Board . . . . XI 6 34 Reinstatement . . . . . . . . . . . . . . XI 5 a-b 34
AUDITORS OF LOCAL UNIONS XXIV Sub.2-i 87
AUSTRALIAN BALLOT:
Under District Administration Form ……………………… XXVI l-h, i 108
BENEFICIARIES . . . . . . . . . . . . . XX 9 68
BONDING: General Secretary-Treasurer . . . VIII 3 27
Employees, Representatives. IV 7 18
Employees, Representatives . . XXIV Sub.2-i 87 Local Union Trustees . . . . XXIV Sub.2-h 87 State, Interstate and Provincial Organizations . . . . . . . . . . . . . XXIII 8 75
BRANCH ENGINEERS: Application for sub-charters . . . XIV 4 40
Form of charter . . . . . . . . . . . . . XIV 9 44 Government of . . . . . . . . . . . . . . XIV 5 40 Voting rights . . . . . . . . . . . . . . . . XIV 5 40
BUSINESS AGENTS AND REPRESENTATIVES: Appointed and terminated by Business Manager . . . . . . . . . . XXIV Sub.1-a 76 Good standing . . . . . . . . . . . . . . XVI 6 58
113
ARTICLE SECTION PAGE
BUSINESS MANAGER: Authority to appoint and terminate Representatives, Agents and Assistants . . . . XXIV Sub.1-a 76
Member, Local Executive Board XXIV Sub.1-c 79
Where Mandatory . . . . . . . . … XXIV Sub.1-a 76
BYLAWS OF LOCAL UNION . . XXIV Sub.12 105
CAUSES FOR SUSPENSION OR EXPULSION: Altering Dues Book and/or Card of Deceased . . . . . . . . . XX 12 70 Belonging to more than one Local Union . . . . . . . . . . . . . XVI 2 57 Circulating defamatory literature . . . . . . . . . . . . . . . . XVI 1 57 Dissension, slander, libel, embezzling, drunkenness, defrauding, offenses, wrongs. . XXIV Sub.7-e 93 Fines . . . . . . . . . . . . . . . . . . . . . XXIV Sub.7-f,g 94 Making Fraudulent Application XVI 2 57 Non-payment of dues . . . . . . . . XXIV Sub.7-d,e,f 92 Radicalism, Etc . . . . . . . . . . . . XVI 4 58 Violating trade rules, oath, insubordination . . . . . . . . . . . XXIV Sub.7-e 93
CHARGES: By General Convention . . . . . . III 1 8 By General Executive Board . . XVI 1 57
member . . . . . . . . . . . . . . . . . XVI 5 58 By General President . . . . . . . . VI 2 22 By General Secretary-Treasurer XV 5 56 By Local Union . . . . . . . . . . . . XXIV Sub.7-m 97 By Member . . . . . . . . . . . . . . . XXIV Sub.7-m 97
114
ARTICLE SECTION PAGE
CHARTERS: Application for . . . . . . . . . . . . . . XIV 2 39
suspension of . . . . . . . . . . . . . . XX 8 68 Fees . . . . . . . . . . . . . . . . . . . . . . . XI 3 33 Forms of . . . . . . . . . . . . . . . . . . . XIV 9 44 Granted and suspended by: General Convention . . . . . . . . III 1 8 General Executive Board . . . . V 2 19 General President . . . . . . . . . . VI 4 24 Jurisdiction described on face of XIV 9 44 Records under suspension of . . . XIV 8-b 43 Revocation of, under International Supervision . . . . VI 3 22
members under suspension of . . XIV 8-a, b, c, d 43
CLEARANCE CARDS . . . . . . . . . XV 2 & 6 45
COMMITTEES: General Convention . . . . . . . . . . III 9 15 Local Union . . . . . . . . . . . . . . . . XXIV Sub.1-a 76 XXIV Sub. 5 90
CONFLICT OF JURISDICTION. . XIII 3 38
CONDUCTOR, Local Unions . . . . XXIV Sub.2-f 86
CONSTITUTION: Amending . . . . . . . . . . . . . . . . . . XVIII 1 62 Savings Clause . . . . . . . . . . . . . . XXIX 110
CONTRACT, of membership . . . . XXIV Sub.3-b 89
CONTRACTS WITH EMPLOYERS . . . . . . . . . . . . . . . . XXIV Sub.11-a 104
CONVENTIONS:
Committees . . . . . . . . . . . . . . . . . III 9 15
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Composition of . . . . . . . . . . . . III 3 11 Credentials . . . . . . . . . . . . . . . . III 6 14 Delegates at large . . . . . . . . . . . III 10 15 Expense of Delegates . . . . . . . . III 7 14 Method of holding . . . . . . . . . . III 2 10
Powers of General . . . . . . . . . . III 1 8 Quorum . . . . . . . . . . . . . . . . . . III 8 15 Representation at . . . . . . . . . . . III 5 12 State, Interstate and Provincial . . XXIII 4 & 6 74 Voting at . . . . . . . . . . . . . . . . . . III 5 12
CORRESPONDING-RECORDING SECRETARY, LOCAL UNIONS:(See Recording-Corresponding Secretary)
COURT ACTIONS SUPERSEDED . . . . . . . . . . . . . . XVII 4 61
CRAFT JURISDICTIONDEFINED . . . . . . . . . . . . . . . . . . XIII 1 35
CREDENTIALS, GENERAL CONVENTION . . . . . . . . . . . . . . III 6 14
DEATH BENEFIT FUND: . . . . . XX 65
Claims . . . . . . . . . . . . . . . . . . . XX 10 69 Junior, Assistant, Registered & Branch Engineers Participation XIV 5 40 Members on withdrawal . . . . . XV 4-d 55 Suits Barred . . . . . . . . . . . . . . . XX 12 70
DEFENSE FUND . . . . . . . . . . . . XIX 1,2,3 64
DELEGATE, AFL-CIO . . . . . . . . VIII 9 29
DELEGATES, GENERALCONVENTION: Alternates . . . . . . . . . . . . . . . . . III 3 11 Credentials of . . . . . . . . . . . . . . III 6 14
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Election of . . . . . . . . . . . . . . . . . III 3 11 Election under District form . . . XXVI 1-i 108 Expenses . . . . . . . . . . . . . . . . . . III 7 14 Protests and Appeals ………… XXIV Sub 1-g 82 III 6 14
DISBURSEMENTS by General Convention . . . . . . . . . . . . . . . III 1 8
DISCIPLINE AND EXPULSION: General . . . . . . . . . . . . . . . . . . . XVI 1,2,3,4 57 Penalties for members in arrears to Local Union . . . . . . . . . . . . XXIV Sub. 7-d 92
DISCLOSURE REQUIRED ONAPPLICATIONS . . . . . . . . . . . . . XXIV Sub. 7-d 93
DISSOLUTION . . . . . . . . . . . . . . . XXIV Sub. 13 106
DISTRICT ADMINISTRATION: General . . . . . . . . . . . . . . . . . . . XXVI 1 107 Trials of members . . . . . . . . . . . XXVI 2 109
DISTRICT COUNCILS . . . . . . . . XXII 72
DUES: Current due dates . . . . . . . . . . . . XXIV Sub. 7-b 91 Fixed by Local Union . . . . . . . . XXIV Sub. 7-a 91 Minimum required . . . . . . . . . . . X 2 31 Penalties for non-payment . . . . . XXIV Sub. 7-d 92 Prior payments of current dues required …………… XV 3-b 49 Relation to good standing . . . . . XXIV Sub. 7-c 92
DUTIES OF MEMBERS . . . . . . . XXIV Sub. 3 89
EMBLEM: Description . . . . . . . . . . . . . . . . . II 1 7 Improper use of . . . . . . . . . . . . . II 3 8 Use of . . . . . . . . . . . . . . . . . . . . . II 2 8
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ELECTION: Of delegates to General Convention ………………... III 3 11 Of delegates to General Convention under District Form XXVI 1-i 108
District Form . . . . . . . . . . . . . XXVI 1-h 108
EMERITUS …………………… XXIV Sub. 1-b 79 XXVIII 110
EMPLOYEES, International Union Pensions . . . . . . . . . . . . . V 2 19
EMPLOYERS: Contracts with . . . . . . . . . . . . . XXIV Sub.11-a 104
ENGINEERS’ LICENSE LAWS, Endorsement . . . . . . . . . . . . . . . I 2 5
EXECUTIVE BOARDS, Local Union: Composition of . . . . . . . . . . . . XXIV Sub. 1-c 79 Powers . . . . . . . . . . . . . . . . . . . XXIV Sub. 1-d 80 Suspensions by . . . . . . . . . . . . . XXIV Sub. 1-d 80 Under District Form . . . . . . . . XXVI Sub. 1-c, d 107
EXPULSION AND DISCIPLINE: By General President . . . . . . . . VI 3 22 By General President . . . . . . . . XVI 4 58 By Local Union . . . . . . . . . . . . XVI 4 58 Causes for . . . . . . . . . . . . . . . . XXIV Sub.7- d,e 92 General . . . . . . . . . . . . . . . . . . . XVI 1-7 57 3/4 Vote Required …………. XXIV Sub.7-o 99
FEES, TAXES, ASSESSMENTS . …………….. XI 6 34
FEES, Withdrawal cards . . . . . . . XV 4-b 54
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FINES: Causes . . . . . . . . . . . . . . . . . . . . . XXIV Sub. 7-e 93 Collection for other Local Unions XXIV Sub. 7-g 95 For arrearages in dues . . . . . . . . XXIV Sub. 7-d 92 Paid before dues accepted . . . . XXIV Sub. 7-f 94
FINANCIAL SECRETARY: Duties . . . . . . . . . . . . . . . . . . . . . XXIV Sub. 2-d 85 Receipts from committees . . . . . XXIV Sub. 5 90
FINDING OF FACT, by General Executive Board . . . . . . . . . . . . . XVII 1-c 61
FINDING OF FACT, by General President . . . . . . . . . . . . . . . . . . . VI 2 22
FORMS: Charter . . . . . . . . . . . . . . . . . . . . XIV 9 44 Service dues receipt . . . . . . . . . . XV 3-f 51
FRAUDULENT APPLICATIONS ……………….. XXIV Sub. 7-d 92 Penalty . . . . . . . . . . . . . . . . . …… XVI 2 57
GENERAL BOARD OFTRUSTEES: Composition . . . . . . . . . . . . . . . IX 1 92 Powers and duties . . . . . . . . . . . . IX 4 30 Quorum and meetings . . . . . . . IX 3, 2 29 Terms and election . . . . . . . . . . . IV 1-3 15
GENERAL EXECUTIVE BOARD: Conducting Hearings . . . . . . . . . V 7 21 Fees, taxes, assessments . . . . . . . XI 6 34 Meetings . . . . . . . . . . . . . . . . . . V 4 20 Members . . . . . . . . . . . . . . . . . . . V 1 19 Powers of . . . . . . . . . . . . . . . . . . V 2 19
Quorum . . . . . . . . . . . . . . . . . . . . V 5 20 To initiate trials . . . . . . . . . . . . . XVI 3 57
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Transacting Business . . . . . . . . V 6 20 Vacancy on . . . . . . . . . . . . . . . . V 3 20
GENERAL OFFICE MEMBERSHIP DEFINED . . . . . XV 5 56
GENERAL OFFICERS: Bonding of . . . . . . . . . . . . . . . . IV 8 18 Compensation IV 9 18
Honorary Positions . . . . . . . . . XXVIII 110 How elected . . . . . . . . . . . . . . . IV 3-7 16 How recalled . . . . . . . . . . . . . . XVIII 2 62 Installation of . . . . . . . . . . . . . . IV 6 17 Nomination of . . . . . . . . . . . . . IV 2 16 Protest to Election of ………... IV 8 18
GENERAL PRESIDENT: Acts of, Reviewable . . . . . . . . . VI 9 26 Appoints Committees . . . . . . . III 9 15 Approves Local Union Bylaws . . XXIV Sub.12 105 Chairman of General Executive Board . . . . . . . . . . . . . . . . . . . VI 5 24 Charges and Trials . . . . . . . . . . VI 6 25 Compensation……………….. VI 7 25 Granting, Suspending and Revoking charters . . . . . . . . . VI 3,4 22 International Supervision . . . . . VI 3 22 Powers and duties . . . . . . . . . . VI 1, 2 22 Term and election of . . . . . . . . IV 1, 3 15
GENERAL SECRETARY-TREASURER: Compensation . . . . . . .. . . . . . . VIII 5 27
Powers and duties . . . . . . . . . . VIII 1-9 26 Term and election . . . . . . . . . . . IV 1-3 15
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GOOD STANDING DEFINED: As to dues . . . . . . . . . . . . . . . . . . XXIV Sub.7-c 92 Business Agents . . . . . . . . . . . . . XVI 6 58 Candidates . . . . . . . . . . . . . . . . . XXIV Sub.1-b 77
XXIV Sub.1-b 77
GOVERNMENT OF BRANCH LOCALS . . . . . . . . . . . . . . . . . . . XIV 5 40
GOVERNMENT OF INTERNATIONAL . . . . . . . . . . . I 3 6
GUARD, Local Unions . . . . . . . . . XXIV Sub.2-g 86
HOISTING AND PORTABLE: Engineers’ Jurisdiction . . . . . . . . XIII 1-b 36
HONORARY POSITIONS ……. XXIV Sub.1-b 79 XXVIII 110
INCAPACITY OF LOCAL UNION OFFICERS . . . . . . . . . . . XXIV Sub.2-k 88
INCOME OF INTERNATIONALUNION: Charter fees & assessments . . . . XI 3 33 Initiation fee & tax . . . . . . . . . . . XI 4 33 Other fees, taxes & assessments XI 6 34 Per capita tax . . . . . . . . . . . . . . . XI 1 31 Reinstatement assessments . . . . XI 5 34
INITIATION FEES:
New Local Unions . . . . . . . . . . . XI 3 33 New Members . . . . . . . . . . . . . . XI 4 33
INITIATION TAX WAIVED . . . . XV 2-d 46
INITIATIVE AND RECALL . . . . XVIII 2 62
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INSTALLATION OF GENERAL OFFICERS . . . . . . . . IV 6 17
INSTALLATION OF LOCALUNION OFFICERS . . . . . . . . . . . XXIV Sub.1-e 80
INTERPRETATION OFCONSTITUTION: By General Executive Board . . XVII 1-c 61 V 7 21 By General President . . . . . . . . VI 2 22
INTERNATIONAL SUPERVISION: Appeals regarding . . . . . . . . . . XVII 1-a 59
XXIV Sub.7-d 92 Exercised by General President VI 3 22 How Local Union affairs administered ………………. VI 3 22 Power of Local Union superseded by . . . . . . . . . . . . ………….. VI 3 22 Referendums on . . . . . . . . . . . . XVII 1-a 59 Requests to invoke, etc . . . . . . XVII 1-a 59 Reversion of property XIV 8-b 43 Trials under . . . . . . . . . . . . . . . XXIV Sub.7-q 100
INTERSTATE, STATE & PROVINCIAL ORGANIZATIONS XXIII 1-8 73
JOURNAL: Proceedings of General Convention . ………………. VIII 6 28 Publication of . . . . . . . . . . . . . . VIII 6 28 Publishing articles . . . . . . . . . . VIII 6 28 Publishing votes on referendum XVIII 3 63
JUNIOR & ASSISTANT ENGINEERS: Application of sub-charters . . . XIV 4 40 Clearance Cards . . . . . . . . . . . . XV 6 56
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Form of charter . . . . . . . . . . . . . . XIV 9 44 Government of . . . . . . . . . . . . . . XIV 5 40 Voting rights . . . . . . . . . . . . . . . . XIV 5 40
JUNIOR & ASSISTANT ENGINEERS, REGISTEREDAPPRENTICE ENGINEERS &BRANCH ENGINEERS’PARTICIPATION . . . . . . . . XIV 5 40
JURISDICTION:
Described on charter . . . . . . . . . XIV 9 44 Hoisting & portable craft . . . . . . XIII 1-b 36 Stationary craft . . . . . . . . . . . . . . XIII 1-a 35 Territorial . . . . . . . . . . . . . . . . . . XII 1 34
LAPSED LOCAL UNIONS: Disposition of membership . . . . XV 5 56 Disposition of property . . . . . . . . XIV 8-a-d 43
LAW SUITS SUPERSEDED . . . . XVII 4 61
LITIGATION, defense of . . . . . . . V 8 21 XXIV Sub.1-d 80
LOCAL UNIONS: Application for charters . . . . . . . XIV 2 39 Arrears, penalties . . . . . . . . . . . . XXIV Sub.7-d 92 Auditors . . . . . . . . . . . . . . . . . . . XXIV Sub.2-i 87 Bonding . . . . . . . . . . . . . . . . . . . XXIV Sub.2-j 88 Business Agents & Representatives ……………... XXIV Sub.1-a 75 Business Manager . . . . . . . . . . . XXIV Sub.1-a 75 Bylaws & trade rules . . . . . . . . . XXIV Sub.12 105 Charges by members . . . . . . . . . XXIV Sub.7-m 97 Clearance Cards . . . . . . . . . . . . . XV 2-a-e 45 Committees . . . . . . . . . . . . . . . . . XXIV Sub.5 90 Conductor . . . . . . . . . . . . . . . . . . XXIV Sub.2-f 86
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Constitutes separate entity . . . . I 3 6 Dispensing with monthly meetings . . ………………... XXIV Sub. 10-a 103 Dissolution . . . . . . . . . . . . . . . . XXIV Sub. 13 106 District Administration Form. . XXVI 1 107
Duties of members . . . . . . . . . . XXIV Sub. 3 89
Executive Board . . . . . . . . . . . . XXIV Sub 1-c-d 79 Financial Secretary . . . . . . . . . . XXIV Sub. 2-d 85 Fines, payment of . . . . . . . . . . . XXIV Sub. 7-f 94 Good standing . . . . . . . . . . . . . XXIV Sub. 7-c 92 Guard . . . . . . . . . . . . . . . . . . . . XXIV Sub. 2-g 86
Meetings . . . . . . . . . . . . . . . . . . XXIV Sub. 10 103
Parliamentary law . . . . . . . . . . XXIV Sub. 14 106 President . . . . . . . . . . . . . . . . . . XXIV Sub. 2-a 83
Quorum . . . . . . . . . . . . . . . . . . XXIV Sub. 9 103
Recording-Corresponding Secretary . . . ……………… XXIV Sub. 2-c 84 Relations with employers . . . . XXIV Sub. 11 104 Rules of government . . . . . . . . XXIV Sub. 1-14 75 Suspensions . . . . . . . . . . . . . . . XXIV Sub. 7-e 93
Transfer card . . . . . . . . . . . . . . XV 1 45 Travel service dues . . . . . . . . . XV 3-a 47 Treasurer . . . . . . . . . . . . . . . . . XXIV Sub. 2-e 85 Trials . . . . . . . . . . . . . . . . . . . . XXIV Sub. 7-l-s 97 Trials in districts . . . . . . . . . . . XXIV 2 109 Trustees . . . . . . . . . . . . . . . . . . XXIV Sub. 2-h 87 Under International Supervision VI 3 22
Vice President . . . . . . . . . . . . . XXIV Sub. 2-b 84
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LOCKOUTS: Defense Fund . . . . . . . . . . . . . . . XIX 1-3 64
MEETINGS: General Executive Board . . . . . . V 4 20 Local Unions . . . . . . . . . . . . . . . XXIV Sub. 10 103 Under District Form . . . . . . . . . . XXVI 1 108
MEMBERSHIP: Application for . . . . . . . . . . . . . . XXIV Sub. 6 90
Discipline & expulsion . . . . . . . . XVI 1-5 57 Duties of . . . . . . . . . . . . . . . . . . . XXIV Sub. 3 89 In lapsed Locals . . . . . . . . . . . . . XV 5 56 Initiation fees . . . . . . . . . . . . . . . X 2 31
Reinstatement of . . . . . . . . . . . . . XXIV Sub. 7-h-i 95 Voting upon . . . . . . . . . . . . . . . . XXIV Sub. 6 90
NAME OF INTERNATIONAL UNION . . . . . . . . . . . . . . . . . . . . . I 1 5
NOMINATIONS:
Local Unions . . . . . . . . . . . . . . . XXIV Sub. 1-e 80 Under District Form . . . . . . . . . . XXVI 1-h-i 108
OBJECTS OF INTERNATIONAL UNION . . . . . . . . . . . . . . . . . . . . . I 2 5
OFFICERS: Failure to discharge duties . . . . . XXIV Sub. 1-f 82 General Convention . . . . . . . . . . III 4 12 International Union . . . . . . . . . . IV 1 15 Local Unions . . . . . . . . . XXIV Sub. 1-a-b 75
State, Interstate & Provincial Organizations . . . . . . . . . . . . . . XXIII 2 73
ORDER OF BUSINESS . . . . . . . . Preface 4
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PENALTIES: Altering dues book and/or card. . XX 12 70 Defamatory literature . . . . . . . . XVI 1 57 False application . . . . . . . . . . . XVI 2 57 Nonpayment of dues ………... XXIV Sub.7-d 92 Radicalism, etc . . . ………….. XVI 4 58
PENDENCY OF APPEALS . . . . XVII 3 61
PENSION FUND PLANS: General Pension Fund Plan . . . XXVII 110 International, provisions for (Constitutional Authorization) V 2 19 Pension Reciprocity . . . . . . . . . XXIV Sub.11-c 105
PER CAPITA TAX: Distribution of . . . . . . . . . . . . . XI 2 33 Electronic reporting ………… XI 1 32 Interest ……………………… XI 1 32 Local Unions charged with . . . XXIV Sub.7-j 96 Local Unions not charged, when XXIV Sub.7-k 97 Report and payment . . . . . . . . . XI 1 31
PRESIDENT, Local Union . . . . . XXIV Sub.2-a 83
PRIOR PAYMENTS OF CURRENT DUES REQUIRED . . XV 3-b 49
PROPERTY OF LOCAL UNIONS . . . . . . . . . . . . . . . . . . . XIV 8 43
PROTEST & APPEALSREGARDING NOMINATION &ELECTION TO LOCALUNION OFFICE . . . . . . . . . . . . . XXIV Sub.1-g 82
PROVINCIAL, STATE AND INTERSTATE ORGANIZATIONS . . ………… XXIII 1-8 73
PURPOSES OFINTERNATIONAL I 2 5
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UNION QUALIFICATIONS: Charter . . . . . . . . . . . . . . . . . . . . XIV 2,3 39 Membership . . . . . . . . . . . . . . . . X 1 30
QUORUM: Board of Trustees . . . . . . . . . . . . IX 3 30 General Convention . . . . . . . . . . III 8 15 General Executive Board . . . . . . V 5 20 Joint Executive Board . . . . . . . . XXI 3 72 Local Unions . . . . . . . . . . . . . . . XXIV Sub.9 103
RADICALISM, penalty for . . . . . . XVI 4 58
RECALL:
RECORDING-CORRESPONDING SECRETARY Duties . . . . . . . . . . . . . . . . . . . . . XXIV Sub.2-c 84 Member of Local Union Executive Board . . . . . . . . . . . XXIV Sub.1-c 79
REGISTERED APPRENTICE ENGINEERS: Application for sub-charters . . . . XIV 4 40 Cancellation of membership . . . XIV 6-b 42
Form of charter . . . . . . . . . . . . . . XIV 9 44 Transfer to parent body . . . . . . . XIV 6-b 42 Government of . . . . . . . . . . . . . . XIV 5 40 Voting rights . . . . . . . . . . . . . . . . XIV 5 40
REGISTRATION FEES . . . . . . . . XV 3-h 53
REINSTATEMENT: Expelled Members . . . . . . . . . . . XXIV Sub.7-i 96 Fees . . . . . . . . . . . . . . . . . . . . . . . XI 5 34 Suspended Members . . . . . . . . . XXIV Sub.7-h 95
127
REMOVAL OF LOCAL UNION OFFICERS: . . . . . . . . . . . . . . . . . XXIV Sub.1-f 82 By General President . . . . . . . . VI 3 22 Under International Supervision………………... VI 3 22
RITUAL, part of Constitution . . . I 4 7
RULES OF ORDER, Local Unions . . . . . . . . . . . . . . . . . . . XXIV Sub.14 106
SAVINGS CLAUSE . . . . . . . . . . XXIX 110
SEAL: Description of . . . . . . . . . . . . . II 1 7 Property of International Union II 3 8 Unlawful use of . . . . . . . . . . . . II 3 8 Use of. . . . . . . . . . . . . . . . . . . . II 2 8
SERVICE DUES: Amount of Applicant . . . . . . . . XV 3-d 50 Amount of Travel . . . . . . . . . . . XV 3-e 51 Applicants . . . . . . . . . . . . . . . . XV 3-c 50 Books, Printing and distributing . . XV 3-g 53 Data Processing . . . . . . . . . . . . XV 3-i 53 Form of receipt . . . . . . . . . . . . . XV 3-f 51 Travel . . . . . . . . . . . . . . . . . . . . XV 3-a 47
SERVICE OF SUMMONS OR SUBPOENA . . . . . . . . . . . . . . . . I 3 6
STATE, INTERSTATE AND PROVINCIAL ORGANIZATIONS: Bonding . . . . . . . . . . . . . . . . . . XXIII 8 75 Executive Board . . . . . . . . . . . XXIII 3 74 Formation . . . . . . . . . . . . . . . . XXIII 1 73 Meetings . . . . . . . . . . . . . . . . . XXIII 6 74 Minutes . . . . . . . . . . . . . . . . . . XXIII 7 75
Powers . . . . . . . . . . . . . . . . . . . XXIII 5 74 Voting at . . . . . . . . . . . . . . . . . . XXIII 4 74
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STATIONARY ENGINEERS’JURISDICTION: . . . . . . . . . . . . . . XIII 1-a 35
STRIKES: Defense Fund . . . . . . . . . . . . . . . XIX 1-3 64
STRIKE BENEFITS…………….. XIX 2-3 64
SUBVERSIVENESS: Opposition . . . . . . . . . . . . . . . . . I 2 5 Penalty . . . . . . . . . . . . . . . . . . . . XVI 4 58
SUITS AT LAW SUPERSEDED . . ……………. XVII 4 61
SUPERVISION OF LOCAL UNIONS ……………….(See International Supervision) …. VI 3 22
SUSPENDED LOCAL UNIONS: Disposition of Membership . . . . XIV 8 43 Disposition of Property . . . . . . . XIV 8 43
SUSPENSION OF CHARTERS:
Membership Protected . . . . . . . . XV 5 56 Property of Local . . . . . . . . . . . . XIV 8-a 43
SUSPENSION OF MEMBERS . . XXIV Sub.7-d,e,f 92
TAXES, FEES AND ASSESSMENTS ………………... XI 6 34
TERMS OF OFFICE:
State, Interstate and Provincial
TRADE RULES . . . . . . . . . . . . . . . XXIV Sub.12 105
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TRAINING, Local: Manager and Representatives … XXIV Sub.15 106
TRANSFER CARDS . . . . . . . . . XV 1 45
TRANSFERS . . . . . . . . . . . . . . . . XV 2-d 46
TRAVEL SERVICE DUES . . . . . XV 3-a 47 Amount of . . . . . . . . . . . . . . . . XV 3-e 51
TREASURER, Local Unions . . . XXIV Sub.2-e 85
TRIALS: Appeals from . . . . . . . . . . . . . . XVII 1-4 59 By General Convention . . . . . . III 1 8 By General Executive Board . . V 7 21 By General President . . . . . . . . VI 2 22 Procedure of Local Union . . . . XXIV Sub.7-l-s 97 Under District Form . . . . . . . . . XXVI 2 109 Under International Supervision . . XXIV Sub. 7-q 100
TRUSTEES: Board of . . . . . . . . . . . . . . . . . . IX 1-4 29 Local Unions . . . . . . . . . . . . . . XXIV Sub.2-h 87
VACANCY IN OFFICE:
Local Unions . . . . . . . . . . . . . . XXIV Sub.1-f 82
VICE PRESIDENTS: General, election, etc. . . . . . . . IV 2-7 16 General, duties . . . . . . . . . . . . . VII 1 26 Local Unions . . . . . . . . . . . . . . XXIV Sub.2-b 84
VOTING: Convention . . . . . . . . . . . . . . . . III 5 12
Junior, Apprentice and Branch Engineers . . ……………….. XIV 5 40 State, Interstate and Provincial Organizations ……………... XXIII 4 73
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WELFARE PLANS ADMINISTRATION, violations of . . . . . . . . . . . . . . . XVI 7 58
WITHDRAWAL CARDS . . . . . . . XV 4 54
131
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EXHIBIT “23”
From: "Blas, Michael - OIG" Subject: Re: LM2 Date: March 31, 2010 3:45:19 PM PDT To: Mr. Pette: Did you or Mr. McLaughlin have electronic signatures while working at Local 501? If so, who had access to the electronic signatures? Mike ----- Original Message ----- From: Finn Pette To: Blas, Michael - OIG Sent: Wed Mar 31 16:48:30 2010 Subject: LM2 Mr. Blas, The Local 501 LM 2 reports have just been posted for 2009. My signature, as well as Jim McLaughlins signature appear on them. I DID NOT sign these, nor did I approve of my signature on them. I just phoned Mr. McLaughlin and he said that he DID NOT sign, nor approve them either. Can you advise me as what steps I need to take to remedy this? Thank you, Finn J. Pette
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From: "Blas, Michael - OIG" Subject: Re: Local 501/Giblin/Lundy Date: March 10, 2010 11:42:51 PM PST To: Mr. Pette, Thank you for the update. Please have Bob Fox call me at if he would like to provide any information regarding his conversation with Vincent Giblin. Mike ----- Original Message ----- From: Finn Pette To: Blas, Michael - OIG Sent: Wed Mar 10 20:57:53 2010 Subject: Local 501/Giblin/Lundy Mr. Blas, Vincent Giblin, General President is still pursuing internal Union charges against Jim McLaughlin, Dan Himmelberg, and I. Today Bob Fox received a phone call from President Giblin which upset him so bad that he will only meet with me in a public place. Apparently Giblin threatened him and made comments that he would "bury" me. Wonder what the status of your investigation is? I sure hope I'm still around to see it. Finn Pette
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From: "Blas, Michael - OIG" Subject: RE: Evidence Date: August 18, 2010 10:06:57 AM PDT To: Finn Pette Mr. Pette: Do you currently hold any officer position at IUOE Local 501? Thanks, Mike
From: Finn Pette Sent: Sunday, August 15, 2010 10:40 AM To: Blas, Michael - OIG Subject: Fwd: Evidence Mr. Blas, I sent the attached e-mail to you on July 15th and received a response that you would be "Out of The Office". I am sending it agains as a formal request to have the checks I submitted to you returned to me. Please let me know if there are any other channels for this request. I have spoken to several DOL agents who stated that unless the DOL was pursuing an investigation, I had a right to receive any evidence I had submitted returned to me. Thank you, Finn J. Pette Begin forwarded message: From: Finn Pette Date: July 15, 2010 8:43:40 AM PDT To: Michael Blas Bcc: Finn Pette , Daniel Himmelberg Subject: Evidence Dear Mr. Blas, I have received a letter from DOL OIG in Washington D.C. Stating that OIG is not pursuing any investigation in Local 501. As you may remember I volunteered some checks which you took into evidence. My question is how do I go about getting those documents back? Your assistance would be greatly appreciated. Respectfully, Finn J. Pette Financial Secretary IUOE Local 501 Sent from my iPhone
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From: "Blas, Michael - OIG" Subject: RE: Giblin again Date: May 12, 2010 5:05:09 PM PDT To: Finn Pette Thank you, I will forward this to the office that handles Arizona. -----Original Message----- From: Finn Pette Sent: Wednesday, May 12, 2010 4:55 PM To: Blas, Michael - OIG Subject: Giblin again Mr. Blas, I have given your number to Mr. Gary Teel Business Manager of Local 428 Phoenix Arizona. He has been given 24 hours to resign of Giblin will "take over his Local". Sound familiar? Hope you can reach him. His number is: Please save this guy! Finn Pette Financial Secretary IUOE Local 501
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EXHIBIT “24”
U.S. Department Of Labor Office of Inspector GeneralWashington, D.C. 20210
June 14, 2010
Finn J. Pette831 N. Buena Vista StreetBurbank, CA 91505
Dear Mr. Pette:
The Complaint Analysis Office (CAO) of the Office of the Inspector General (OIG)received your e-mail complaint to the U.S. Department of Labor (DOL). Specifically,your complaint alleges embezzlement and the misuse of Taft-Hartley Trust funds by theApprenticeship Coordinator. You alleged that the General President of the Union hasused tactics and threats.to force_the Business Manager to retire and also have youterminated. In addition, you reported that there is now evidence of election tamperingwithin Local Union 501.
The DOL Office of the Inspector General primarily investigates allegations of fraud,waste, or abuse in DOL programs and operations. These investigations may involvealleged violations of criminal statutes, alleged violations of civil or administrative statutesor regulations, allegations of serious and systemic waste or abuse in DOL programs.
I note that you had contact with Special Agent Michael Bias of the Office of LaborRacketeering'and Fraud Investigations (OLRFI) located in California. I have requested areview of your concerns by the OLRFI and that office has declined to pursue yourcomplaint further at this time. However, if you have additional information concerningthis matter that you would like to be reviewed by the OLRFI, please provide thatinformation to: Special Agent Michael Bias, U.S. Department of Labor, Office of theInspector General, OLRFI, 100 North Barranca Street, Suite 520, West Covina, CA91791.
Based on this information, the Office of the Inspector General for the U.S. Department ofLabor does not plan on taking any further action in response to your complaint at this
"rirne. ~~
Sincerely,
Gwen M. StroudComplaint Analysis Officer
Working for America's Workforce
EXHIBIT “25”
LOCAL 501 BOMA TEST ANSWERS: BOMA TEST QUESTION http://boma501.blogspot.com/2012/03/boma-test-question.html
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Replies
92) K type copper is what color
Answer: Green
93) A sink , A toilet and a bathtub are all called
Answer: A Fixture
Reply
Rick April 10, 2012 at 4:45 PM
75) What is the most critical factor regarding suction lift of a water pump:
Answer: Distance
76) Best method to measure a full length of pipe is:
Answer: end to end
77) Slight leakage of a centrifugal pump packing would not cause Answer: pump failure
78) In order to keep a centrifugal pump primed
Answer: a Foot valve is installed on the Suction line
79) Size of the impeller determines
Answer: the speed of the pump
80) A mushroomed chisel in your tool box should be
Answer: Disposed of and replaced
81) Packing material for a motor should be made from
Answer: Softer metals Like Copper and Lead
82) On A Site Plan 1” is equal to 10’ what size would a 40’ X 80’ room Be
Answer: 4’X8’
83) Welding Galvanized metals must be performed in a
Answer: well ventilated space
84) The cheapest and most simplest of all pumps would be the
Answer: Jet Pump
85) Location of the pump has nothing to do with the type of
Answer: Packing you should use
Reply
Rick April 12, 2012 at 4:40 PM
60) Screen or shield should be used in welding operation to:
Answer: to protect nearby workers.
61) The diameter of the arc should be kept approximately:
Answer: same diameter as the electrodes.
62) Primary used for basin wrench is:
Answer: removal of nuts and small piping pieces from the under side of the sink.
63) A drainage fixture unit is equivalent to how many gallons of water flow?
Answer: 7.5 gallons per minute (GPM).
64) Removal of solid metals and sand is accomplished with :
Answer: sediment interceptor.
65) Consumable metallic electrodes used in AC arc welding are usually:
Answer: heavily coated
66) Gasket material most recommended for water flow:
Answer: sheet rubber or cloth inserted rubber
LOCAL 501 BOMA TEST ANSWERS: BOMA TEST QUESTION http://boma501.blogspot.com/2012/03/boma-test-question.html
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67) Class A fire is:
Answer: A fire with ordinary combustible material (wood, paper, or cloth).
68) Disadvantage of centrifugal pump is:
Answer: the head pressure is limited.
69) Power tools are not to be used with:
Answer: frayed or damage water cord.
70) The type of valve goes to full open to full close on a quarter turn is:
Answer: a plug valve.
71) Best method of measuring a piece of pipe with a fitting screwed into one end:
Answer: end to center.
72) ___________ type of sprinkler head in an inverted position.
Answer: pendent.
73) Fire suppression system required:
Answer: Fire spandrels
74) Normal feed of lift on a suction side of a pump:
Answer: 10
75) What is the most critical factor regarding suction lift of a water pump:
Answer: Distance
Rick April 12, 2012 at 4:45 PM
55) The most convenient way to show the dimension of the hole on a drawing is:
Answer: Draw an extension line on each side of the hole and fill in the dimension.
56) Three types of traps are:
Answer: P, T, and S traps
57) What can occur if the trap has an excessive pitch?
Answer: Self syphoning could occur
58) If a drawing is drawn quarter scale, then the scale of the drawing is:
Answer: Quarter inch equals one foot.
59) Before welding a second bead, the weld areas must be:
Answer: cleaned to remove all slag.
60) Screen or shield should be used in welding operation to:
Answer: to protect nearby workers.
61) The diameter of the arc should be kept approximately:
Answer: same diameter as the electrodes.
62) Primary used for basin wrench is:
Answer: removal of nuts and small piping pieces from the under side of the sink.
63) A drainage fixture unit is equivalent to how many gallons of water flow?
Answer: 7.5 gallons per minute (GPM).
64) Removal of solid metals and sand is accomplished with :
Answer: sediment interceptor.
65) Consumable metallic electrodes used in AC arc welding are usually:
Answer: heavily coated
66) Gasket material most recommended for water flow:
Answer: sheet rubber or cloth inserted rubber
67) Class A fire is:
Answer: A fire with ordinary combustible material (wood, paper, or cloth).
68) Disadvantage of centrifugal pump is:
Answer: the head pressure is limited.
LOCAL 501 BOMA TEST ANSWERS: BOMA TEST QUESTION http://boma501.blogspot.com/2012/03/boma-test-question.html
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Reply
69) Power tools are not to be used with:
Answer: frayed or damage water cord.
70) The type of valve goes to full open to full close on a quarter turn is:
Answer: a plug valve.
71) Best method of measuring a piece of pipe with a fitting screwed into one end:
Answer: end to center.
72) ___________ type of sprinkler head in an inverted position.
Answer: pendent.
73) Fire suppression system required:
Answer: Fire spandrels
74) Normal feed of lift on a suction side of a pump:
Answer: 10
Rick April 15, 2012 at 7:54 PM
40) Standard Slop/pitch of a horizontal drain line should be
Answer: ¼” per foot
41) Sprinkler system where the sprinklers are always open is
Answer: A Deluge system
42) Welding gloves should have
Answer: Long cuffs
43) The long round pin on a three prong plug is what
Answer: The Ground wire and should never be removed
44) Type of wrench used on large diameter threaded pipe
Answer: Chain wrench
45) Most common type of water circulation pump is a
Answer: Centrifugal pump
46) Tubing and pipe are measured
Answer: Differently OD / ID
47) Strength of a trap seal can be increased by
Answer: Anti- syphon valve
48) Low speed Plain Journal bearing should be lubricated with a
Answer: Low viscosity oil
49) Correct sequence of soldering procedures are
Answer: Reaming, Cleaning, Assembling, Fluxing and Soldering
50) The Blue print states that an 1/8” equals 1 foot then 2 1/2 “ on a ruler would be
Answer: 20 feet
51) The Seal inside a centrifugal pump is to prevent
Answer: Air from seeping into the pump housing and to prevent water from leaking out
LOCAL 501 BOMA TEST ANSWERS: BOMA TEST QUESTION http://boma501.blogspot.com/2012/03/boma-test-question.html
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52) A main branch steam line take off of the main should be located:
Answer: Top of the main
53) Safety shield and goggles are not required if you wear glasses:
Answer: False
54) A standard length of threaded pipe is:
Answer: 21 Feet
58) If a drawing is drawn quarter scale, then the scale of the drawing is:
Answer: Quarter inch equals one foot.
Reply
Rick April 15, 2012 at 7:56 PM
21) Efficiency of a grease trap is determined by the Elevation between the ______ and the
_____ in relation to the static water line.
Answer: Inlet /Outlet
22) Best way to prevent back siphoning is with an
Answer: Air Gap
23) Should safety Glasses be worn when using a hacksaw
Answer: Yes
24) How many Gallons of water fit into one Cubic foot
Answer: 7.48 gl.
25) Type of weld used to Fill a corner or a Tee joining is referred to as a
Answer: Fillet Weld
26) Grease Classification are set by the
Answer: N.L.G.I (National Lubrication Grease Institute}
27) Continuous Belt turnover is caused by
Answer: Improper installation technique
28) How can you determine the scale of a Blue Print Drawing
Answer: Checking the Specification Sheet
29) Type of plumbing fitting that can directly or indirectly contaminate the potable water
Answer: Cross Connection
30) Traps provide protection from what from entering the house
Answer: Sewer gas odor and vermin
31) The main purpose of lubrication is
Answer: To reduce friction and wear
32) P-trap installation the vertical distance from the fixture may not exceed
Answer: 24” from the bottom of the trap outlet
33) Gate Valves are always used to throttle fluid flow
Answer: False
LOCAL 501 BOMA TEST ANSWERS: BOMA TEST QUESTION http://boma501.blogspot.com/2012/03/boma-test-question.html
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34) Purging the hoses of an Oxy. /Acet. Torch set should always be done
Answer: When securing the torches for the day
35) An Oxy / Acet. torch set are mainly used for
Answer: Brazing, Cutting and Silver Soldering brass or copper
36) Globe Valves and _____ are similar in design
Answer: Needle Valves
37) A freshly packed pump is leaking what is the correct thing to do.
Answer: Allow the pump to run for a short period of time to see if the packing seal’s itself
38) The volume of the waste entering grease trap is determined by the
Answer: Size of the fixture feeding the grease trap
39) Over tightening of belts will cause
Answer: Premature bearing and belt failure
40) Standard Slop/pitch of a horizontal drain line should be
Answer: ¼” per foot
Reply
Rick April 15, 2012 at 7:58 PM
1) When starting a centrifugal pumps that is part of a manifold without a check valve you must
Answer: Open the suction Valve then start the pump while slowly opening the discharge
valve.
2) The Valve Inserted between the corporation valve and the Water Meter
Answer: Curb Cock
3) To check sheave wear you can
Answer: Inspect the Groove wear on the Sheave and inspect the belt for excessive wear and
movement.
4) Adjustable/variable sheave’s can be used to make what type of change to the blower RPM
Answer: Small Changes
5) Absolute Pressure (PSIA) is equal to Gage Pressure (PSIAG)
Answer: Plus 14.7psi
6) Three main types of Fire Suspension system are
Answer: Wet Type Dry Type and Deluge type
7) Power is Equal to
Answer: Torque X Weight X Distance
8) Torches should always be leak checked around the
Answer: Tip. Valve connections and the hose connection
9) The three types of smoke detection are
Answer: Photo- electric Scanners. Ionization chambers and Smoke Reflection Devices
10) If a coupling isn’t correctly aligned what could happen
Answer: More frequent failure of the coupling and bearings
11) ________ Are used to protect the pump and Motor for slight misalignment
Answer: Flexible Coupling
12) The Coating on a metal welding electrode does what
Answer: Stabilizes the flam and reduces Oxygenation
13) When Severing a length of 2” pipe a __________ should be used
Answer: Pipe Cutter
14) The main purpose of a Fire, Life and Safety Power system is to
Answer: Run only essential equipment to help maintain human safety
15) Baffles in a Grease trap interceptor help reduce the ______ inside the grease trap.
Answer: Grease Flow
LOCAL 501 BOMA TEST ANSWERS: BOMA TEST QUESTION http://boma501.blogspot.com/2012/03/boma-test-question.html
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16) What is Parallel Alignment
Answer: When the center lines of two shafts are parallel
17) A motor running hot will only run hotter if the load is
Answer: Increased
18) Which Building Alarm will trigger the fire pumps
Answer: Water Flow
19) Water fit for Human use and consumption is called
Answer: Potable
20) The Valve with the least amount of pressure drop is a
Answer: Gate Valve
21) Efficiency of a grease trap is determined by the Elevation between the ______ and the
_____ in relation to the static water line.
Answer: Inlet /Outlet
22) Best way to prevent back siphoning is with an
Answer: Air Gap
23) Should safety Glasses be worn when using a hacksaw
Answer: Yes
24) How many Gallons of water fit into one Cubic foot
Answer: 7.48 gl.
25) Type of weld used to Fill a corner or a Tee joining is referred to as a
Answer: Fillet Weld
26) Grease Classification are set by the
Answer: N.L.G.I (National Lubrication Grease Institute}
27) Continuous Belt turnover is caused by
Answer: Improper installation technique
28) How can you determine the scale of a Blue Print Drawing
Answer: Checking the Specification Sheet
29) Type of plumbing fitting that can directly or indirectly contaminate the potable water
Answer: Cross Connection
30) Traps provide protection from what from entering the house
Answer: Sewer gas odor and vermin
Reply
LOCAL 501 BOMA TEST ANSWERS: BOMA TEST QUESTION http://boma501.blogspot.com/2012/03/boma-test-question.html
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Location United States
IntroductionThe Name is Rick and if you would like to recieve the rest of the
500 BOMA test questions contact me at this e mail
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EXHIBIT “26”
EXHIBIT “27”
1
From: finnpette Subject: Local 501 Election Issues. Date: January 16, 2013 5:37:22 PM PST To: , Ed Oquendo Dear Mr. Olowolafe (?) I am cc-ing Mr. Ed Oquendo on this e-mail, as he was kind enough to share your e-mail, and as you are aware he was the initial contact for me at the DOL. He has done a stellar job of the investigation, and I look forward to working with you. Unfortunately, I need DOL assistance immediately with yet another election violation that Local 501 is creating. I have filed complaints with the Executive Board of Local 501 and the General Executive Board at the International Union (letters attached), however, without DOL intervention immediately the complaint process will take so long as to render the issue a moot point. Please allow me to explain by way of a declaration: Declaration
2
On Tuesday, January 15, 2013 IUOE Local 501 held the District 1 meeting at 2405 W. 3rd Street, Los Angeles CA 90057. Over 20 members were in attendance. At the beginning of the meeting President Ken Capehart advised the members that there would be “No Special Order of Business”. At that time, Member Patrick Adams raised his hand and asked if the nominations for the General Convention Election were supposed to take place that evening per a motion made at the December 2012 Semi-Annual General Membership Meeting. President Capehart informed the membership that the motion was ruled “out of order” by the Executive Board, and further stated that the Executive Board had voted to cancel the election due to budgetary concerns.
At that time I raised my hand and informed President Capehart that he could not cancel the election, that it was a protected act under the National Labor Relations Act. He said that he could and it was in the By-Laws and Constitution. I had in my hand the Department of Labors “Election of Officers of Labor Organizations” booklet 29 CFR Chapter IV, Subchapter A, Part 452 and proceeded to read Section 452.22 Delegates To A Convention: “Under certain circumstances, delegates to a convention of a national or international labor organization, or an intermediate body, must be elected by secret ballot among the members in good standing of the labor organization they represent even though the delegates are not “officers” of the organization. Such election is required by the Act.” Again, President Capehart said, “I disagree”.
A heated discussion then occurred and again I read from the book, Subpart G – Campaign Safeguards, Section 452.66 Statutory provisions, “The opportunity for members to have a free, fair, and informed expression of their choices among candidates seeking union office is a prime objective of title IV of the Act. Voters can best be assured opportunity for an informed choice if certain campaign rights are guaranteed to candidates and their supporters. To this end, the statute provides that adequate safeguards to insure a fair election shall be provided, and states certain specific safeguards. These safeguards apply not only to candidates for officer positions as defined in the Act but also to candidates for delegate posts, if the delegates are to nominate or elect officers.”
I followed this section, again reading directly from the DOL provided book, section 452.99 Notice of Election, “Elections required by title IV to be held by secret ballot must be preceded by a notice of election mailed to each member at his last known home address not less than fifteen days prior to the election.”
We then confronted President Capehart with the question of sending out notification, to which he stated, “the By-Laws give the Executive Board the power to overturn the election. We decided it would cost too much.” Again, a heated debate followed. I asked Mr. Capehart to provide a copy of the By-Laws and Constitution and he refused. Member Patrick Adams had a Constitution and copy of the Local By-Laws in his pocket and I asked to see them.
3
Upon finding the criteria I felt applied I again addressed President Capehart. I asked if he would acknowledge that the Constitution I held was the governing document of rules for our Union. He stated that it was the correct Constitution. I proceeded to read sections of Article III section 3, Composition of Convention, (paragraph 2), “ The election of delegates shall be conducted by secret ballot. In order to be eligible to be a candidate for delegate, a member must, at the time of nomination, be in good standing with respect to payment of dues and meet the requirements contained in the second paragraph of Article XXIV, Subdivision 1, section (b). In addition, Local Unions may impose in their bylaws a requirement that candidates for delegate must file nominating petitions in support of their candidacies signed by not more than two-hundred (200) members or two percent (2%) of the entire membership, whichever is less. Adequate safeguards to insure a fair election shall be provided by the Local Union in accordance with International Constitution, applicable law, and such rules and regulations as may be promulgated by the General executive Board.”
After reading this out loud to President Capehart I again asked, “Where does that say you have the right to stop the election?” He again said,” I disagree”.
At this time a very heated discussion took place. The membership was extremely angry and we were told if we didn’t like it to “file a complaint”. I pointed out that the complaint process of our Constitution would take so long that the election would be a moot point. President Capehart simply smiled at me.
These are the true and accurate reflections of the meeting to the best of my recollection.
Finn J. Pette
Member in Good Standing
IUOE Local 501
EXHIBIT “28”
EXHIBIT “29”
Dear Dennis,
I wanted to take a few minutes and write you a letter to ask some pointed questions. Over the last year the infighting and turmoil that has enveloped our Local 501 has concerned me greatly. As you are aware, I spent my lifetime in the construction of our Local. I don’t need to tell you how many family events, childhood moments, and important personal moments I missed over the decades. Over the last year, I have heard some very discouraging reports and events that lead primarily back to you.
Almost twenty years ago I hired you here at our Local. Over the years you took the time to always say how grateful you were to me for helping you in your career. My efforts were always for the members of this Local and although you were the recipient, it was always by taking care of our Local that you, and your career prospered. In fact, last year when you became the Western Regional Director it was a moment of pride for our Local. Then the trouble began.
I heard the news that the Incumbent Officers fund was “stolen” and yet you did not report that theft at the time. You were the Trustee of your fellow agents
assets and this behavior is unconscionable to me. Had this happened when I was still in office I can only assume you know what I would have done? Regardless of the employment question, friendships would probably have been lost to say the least.
The incidents of Trust Fund money again raise the issue of honesty. Jim has been the most straight-laced person I can imaging and hiding behind a veil of the statement that “he authorized everything” simply cannot be believed. Jim’s trust was placed in you. No one is removing the mantle of authority from his shoulders, but I fail to believe that he acknowledged or even knew about some of the transactions that occurred. For that he remains responsible, but it was his misplaced trust for which you are responsible. There are also the forged checks. Had this happened under my watch you know I would have prosecuted to the full extent of the law. No matter how you justify it, it is despicable behavior.
When confronted with the bills for repayment you refused to take responsibility and “justified” such expenditures that were questionable at best. In the end, Jim had to pay back over one thousand dollars
from his own pocket. Your actions have been abhorrent.
You have hidden behind the protection of the General President and used him against Jim, our Local and others as a battering ram to demolish the reputation of our Local and the hard working Business Agents you left behind.
As the last year progressed I believed that at some point things would get back to “normal” but that has failed to happen. I have hoped that the Dennis Lundy I knew and called friend would re-emerge from this turmoil. In that hope I have been greatly disappointed.
What happened to the man I knew? Are you still in there? How could you tear apart a Local which clothed and fed your family, put a roof over your head, and ultimately propelled you to success with the International?
I have spent a lifetime working for our members benefit. I have tried to keep that belief alive in my predecessor and the Agents who have followed. I know that there are some great Agents at work in our Local who believe as I did, that the members come first. I remain hopeful that at some point you will return to the man I once knew.
If you would like to talk, you know where to find me.
R. H. Fox
Business Manager Emeritus