US v. INTERNATIONAL BROTH. OF TEAMSTERS, 88 CIV. 4486 (DNE).
| Decision Date | 24 September 1992 |
| Docket Number | No. 88 CIV. 4486 (DNE).,88 CIV. 4486 (DNE). |
| Citation | 816 F. Supp. 852 |
| Parties | UNITED STATES of America, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, The Commission of La Cosa Nostra, Anthony Salerno, a/k/a "Fat Tony," Matthew Ianniello, a/k/a "Matty the Horse," Anthony Provenzano, a/k/a "Tony Pro," Nunzio Provenzano, a/k/a "Nunzi Pro," Anthony Corallo, a/k/a "Tony Ducks," Salvatore Santoro, a/k/a "Tom Mix," Christopher Furnari, Sr., a/k/a "Christie Tick," Frank Manzo, Carmine Persico, a/k/a "Junior," "The Snake," Gennaro Langella, a/k/a "Gerry Lang," Philip Rastelli, a/k/a "Rusty," Nicholas Marangello, a/k/a "Nicky Glasses," Joseph Massino, a/k/a "Joey Messina," Anthony Ficarotta, a/k/a "Figgy," Eugene Boffa, Sr., Francis Sheeran, Milton Rockman, a/k/a "Maishe," John Tronolone, a/k/a "Peanuts," Joseph John Aiuppa, a/k/a "Joey O'Brien," "Joe Doves," "Joey Aiuppa," John Phillip Cerone, a/k/a "Jackie the Lackie," "Jackie Cerone," Joseph Lombardo, a/k/a `Joey the Clown," Angelo Lapietra, a/k/a "The Nutcracker," Frank Balistrieri, a/k/a "Mr. B," Carl Angelo Deluna, a/k/a "Toughy," Carl Civella, a/k/a "Corky," Anthony Thomas Civella, a/k/a "Tony Ripe," General Executive Board, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Jackie Presser, General President, Weldon Mathis, General Secretary-Treasurer, Joseph Trerotola, a/k/a "Joe T," First Vice President, Robert Holmes, Sr., Second Vice President, William J. McCarthy, Third Vice President, Joseph W. Morgan, Fourth Vice President, Edward M. Lawson, Fifth Vice President, Arnold Weinmeister, Sixth Vice President, John H. Cleveland, Seventh Vice President, Maurice R. Schurr, Eighth Vice President, Donald Peters, Ninth Vice President, Walter J. Shea, Tenth Vice President, Harold Friedman, Eleventh Vice President, Jack D. Cox, Twelfth Vice President, Don L. West, Thirteenth Vice President, Michael J. Riley, Fourteenth Vice President, Theodore Cozza, Fifteenth Vice President, Daniel Ligurotis, Sixteenth Vice President, Salvatore Provenzano, a/k/a "Sammy Pro," Former Vice President, Defendants. In re 92-ELECTION APPEAL-253. |
| Court | U.S. District Court — Southern District of New York |
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Otto G. Obermaier, U.S. Atty., for S.D.N.Y. (Christine H. Chung, Asst. U.S. Atty., of counsel), for U.S.
Richards Spears Kibbe & Orbe, New York City (David Spears, Linda Imes, and Leanore Barth, of counsel), for Intern. Broth. of Teamsters.
Louis Nikolaidis (Paul Alan Levy, of counsel), Lewis, Greenwald, Kennedy, Lewis, Clifton & Schwartz, P.C., New York City, for Leroy Ellis.
This decision arises from the implementation of the rules for the International Brotherhood of Teamsters ("IBT") International Union Delegate and Officer Election (the "Election Rules"), promulgated by the Election Officer and approved as modified by this Court and the Court of Appeals. July 10, 1991 Opinion & Order, 742 F.Supp. 94 (S.D.N.Y.1990), aff'd, 931 F.2d 177 (2d Cir. 1991). Roadway Express, Incorporated ("Roadway") appeals from a decision of the Independent Administrator, 92 — Elec.App. — 253, in which he affirmed in part and reversed in part the Election Officer's decision in Election Office Case No. P-916-LU705-CHI. The Independent Administrator affirmed the Election Officer's finding that Roadway discharged its former employee, Leroy Ellis, in retaliation for Mr. Ellis' campaign activities on behalf of a slate of candidates supporting Ronald C. Carey for IBT General President. He reversed the Election Officer's refusal to award Mr. Ellis back pay. For the reasons stated below, the decision of the Independent Administrator is affirmed.
I. BACKGROUND
The Election Officer, Michael H. Holland, was appointed by this Court pursuant to its March 14, 1989 Order (the "Consent Decree"), which was agreed to by the plaintiff United States of America (the "Government") and the defendant IBT in settlement of this civil racketeering action. The Election Officer was empowered to supervise the implementation of the Consent Decree's electoral provisions, which culminated in the first-ever direct rank and file election of IBT International officers. See Consent Decree, § 12.D; October 18, 1989 Opinion & Order, 723 F.Supp. 203, 206-07 (S.D.N.Y.), appeal dismissed, No. 89-6252 (2d Cir. Dec. 13, 1989), cert. denied, 496 U.S. 925, 110 S.Ct. 2618, 110 L.Ed.2d 639 (1990). In fact, the Election Officer supervised all aspects and stages of this election, including the election of delegates to the IBT Convention from the over 600 IBT Local Unions, the nominations for International Union Office at the IBT Convention, and the approximately 1.5 million member rank-and-file general election of International Union Officers. The Election Officer certified the results of the election on January 22, 1992, which saw Mr. Ronald C. Carey elected IBT General President.
Pursuant to his supervisory authority under the Consent Decree, the Election Officer promulgated the Election Rules, which were approved as modified by this Court and the Court of Appeals. July 10, 1991 Opinion & Order, 742 F.Supp. 94 (S.D.N.Y.1990), aff'd, 931 F.2d 177 (2d Cir.1991). The Election Rules were crucial to the successful conduct of the 1991 election, and thus, a central feature of the Consent Decree's efforts to cleanse the IBT of La Cosa Nostra's corrupt influences. October 18, 1989 Opinion & Order, 723 F.Supp. at 206-07; October 25, 1991 Order, slip op. at 1 (S.D.N.Y.1991). The Election Rules protected, inter alia, the rights of IBT members to participate in union election campaign activities, see Election Rules, Art. VIII, § 10(a), and enabled the Election Officer to respond to violations of the Election Rules, or any other conduct preventing a fair, honest, and open election, with a wide range of remedial measures. See Election Rules, Art. XI, § 2. This matter involves the election protest of Leroy Ellis, a member of IBT Local 705 in Chicago, Illinois, who, before his discharge, had been employed as a truck driver at Roadway since 1985. In January 1992, Mr. Ellis was elected an IBT International Vice President on a slate of candidates supporting Mr. Carey for General President. Roadway fired Mr. Ellis on September 19, 1991, allegedly for sleeping on the job the previous day, in the course of making a delivery/pickup at the Burlington Northern ("Burlington") rail yard in Cicero, Illinois.
Mr. Ellis had gone to Burlington to drop off one trailer and pick up and return to Roadway an empty trailer. He had been instructed to take his lunch prior to returning the empty trailer to the Roadway facility. Roadway claims that a Burlington terminal manager, Bob Stein, observed Mr. Ellis' vehicle in an empty lot at approximately 1:45 a.m. and noted that the driver was asleep. Mr. Stein did not attempt to wake Mr. Ellis or request that Mr. Ellis remove his vehicle, even though Burlington had a policy that prohibited truck drivers from taking breaks in the lot where Mr. Ellis allegedly slept. Instead, Mr. Stein's assistant, Bill Beem, conferred with a Roadway Driver Supervisor, Deborah Halstead, who asked Mr. Beem for the time of Mr. Ellis' arrival at the facility, which he reported as 12:32 a.m. Ms. Halstead then determined that Mr. Ellis probably was on his lunch break and would be for another fifteen minutes. Burlington took no further action until Mr. Stein allegedly observed Mr. Ellis still sleeping at 3:15 a.m. and notified Burlington's security officer, who sounded his horn to wake Mr. Ellis. After the officer supposedly informed Mr. Ellis that he could not sleep in the lot, Mr. Ellis drove away at 3:41 a.m.
Mr. Ellis denies sleeping at any time while on the Burlington facility and also claims that he arrived at 12:51 a.m., not 12:32 a.m. Although Burlington maintains computer records of all driver arrival and departure times, it could not find or produce Mr. Ellis' checkin time. The 12:32 a.m. time is based on a handwritten record. Mr. Ellis asserts that from his arrival at 12:51 a.m. until 2:08 a.m., he unloaded the contents of the trailer he had driven to Burlington. He contends that it took over an hour to unload the trailer because he had to endure a wait before he could begin his task. He avers that he began his lunch break at 2:00 a.m., and that when Burlington's security officer approached him, he was still on his lunch break working on a campaign speech. He left the facility, after his lunch break, at 3:41 a.m.
Roadway fired Mr. Ellis on September 19, 1991, pursuant to a policy, adopted in April 1989, which provides that "gross abuse of company time will be considered an act of dishonesty and will be grounds for immediate dismissal." (Decision of the Election Officer ("Elec.Off.Dec.") at 1, 5). Roadway considers sleeping on the job a "gross abuse of company time." As to Mr. Ellis' disciplinary record prior to this incident, Roadway contends that it had disciplined Mr. Ellis on twenty-three separate occasions prior to his discharge and that it had initiated six additional disciplinary actions against Mr. Ellis. These additional charges were rescinded after hearings before grievance panels. Of these disciplinary charges, five involved misuse of company time, although Local 705's records reflect only three such warnings. These three all occurred prior to the nine months preceding Mr. Ellis' discharge. In this nine-month period, Mr. Ellis received three disciplinary warning notices, two for absenteeism and one for insubordination. Mr. Ellis contends that he has no outstanding disciplinary notices in his record at Roadway because all such notices and actions, including those involving misuse of company time, were resolved in his favor in the grievance procedure.
Mr. Ellis filed an election protest with the Election Officer pursuant to the Election Rules. He claimed that he had not been sleeping on the job and...
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