Moving slowly while opportunity knocks at IUOE L. 14

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It was back in July 2008 that the government settled its civil RICO lawsuit against International Union of Operating Engineers Local 14, the 1,600-member union of heavy construction equipment and crane operators in New York City. The government charged that Local 14 had been dominated by organized crime; the consent decree that settled the case provides for two court-appointed monitors armed with wide-ranging powers to eradicate corruption, establish a fair job referral system, require fair elections, and promote union democracy. The consent decree is a remarkable document, one that seems to have benefited from the government's experience with other Federal union monitorships and, in some respects, goes beyond them in its reach. With high expectations, the decree runs for five years with provisions for a possible extension.

After all its hopes and promises, however, the decree begins limping and slow. Time passed. For the next sixteen months, nothing happened. It was only in late November 2009 that presiding Federal Judge Sterling Johnson appointed the two monitors: as the leading ethical practices officer, George A. Stamboulidis, a former federal prosecutor; as hearing officer, Steven C. Bennett, an attorney. And they will probably need even more months of preparation to shift into gear.

But better late than never. If the aims of this consent decree could be achieved, it would bring big changes to Local 14, with resuscitated pressure for reform of the city's construction trades.

The decree calls for the kind of action against corruption and organized crime that has been familiar in other government RICO union-related monitorships: a permanent injunction barring Local 14 from engaging in corruption; discipline of members who associate with an organized crime figure or with anyone declared a "barred person" by the monitors and court; penalties for criminal violation of any law concerning the operation of a labor organization or an employee benefit plan; a ban on acting in any way to further the influence of organized crime. All this is amplified and buttressed by an elaborate Ethical Practices Code which is incorporated into the local constitution.

The IUOE international office has already adopted an ethical practices code, toothless because it lacks any effective enforcement mechanism. What puts teeth into the program outlined in the consent decree for Local 14 and makes it more than a wish fulfillment hope chest is its status as a government oversight imposed by a federal court and under its supervision. Its monitors are armed with all the enforcement tools available to law enforcement authorities sworn testimony from union members, subpoena power, all the resources for investigation in the arsenal of government agents and testimony from them --- enforcement tools not at the disposal of private citizens like well-meaning union leaders.

However, this consent decree program goes beyond strictures against corruption. It addresses related issues like hiring halls, elections, and union democracy, because fair job referrals, fair elections, and democratic rights must be protected if the union is to remain free from corruption.

On jobs: The court-appointed ethical practices monitor has responsibility for enforcing a job referral system "with the goal of assuring that all referrals.... guarantee each member a fair opportunity to be referred to work." It states explicitly that "Referrals to jobs shall be on a non-discriminatory basis ... not affected by race, gender, age, national origin, sexual orientation, disability, religion, or lawful union related activity." Toward that end, he has sweeping authority to investigate every phase of the hiring hall operations, and to order changes in rules and initiate disciplinary charges to enforce that authority.

The aim of a fair hiring system is not simply expressed in empty generalities but is spelled out in a series of practical rules intended to guarantee fair treatment. Members must be provided with all the information necessary for them to police the system: copies of the rules distributed to all current and future members and freely available to all from now on; referral records must be preserved for three years and be available for inspection by members who must be promptly provided with actual copies upon request and payment of a modest copying charge. (Little room for evasion; the charge is specified as 20 or 25 cents a page.)

As UDR noted in an earlier issue: "Someone in the Justice Department seems to know what he/she is doing. The government insists that, from now on, any request by an employer to hire a particular worker by name must be in writing....in which case that worker skips ahead of everyone else on the list. Unscrupulous union officials misuse that practice to reward friends and punish critics. If you protest when they refer a crony to the best jobs, the agent simply claims that the employer requested his buddy. That claim could be a crude lie, but without documentary proof required, how can you prove it?" Under the Local 14 consent decree, there must be a written request from the employer preserved in the record.

A skilled workforce: Local 14 members are highly skilled construction workers who must be licensed as engineers by New York City. A failure to maintain high work standards can lead to destruction and death. Corruption and organized crime penetration of the trade have brought fraudulent inspection, sale of licenses, and falsified proficiency tests followed by accidents, crane falls, crushing of buildings, and the death of union members, apartment residents and bystanders. The consent decree addresses these evils, in general by moving against the mob, and in particular by tightening up the requirements for verifying documents proving skills.

As Local 14 members see these new rules vigorously enforced (if they are) for the next five years of monitorship, the climate of fear should begin to lift; and they will be encouraged to speak up, act to reform their own union, and even to run for office.

On elections: The Ethical Practice Attorney has full authority to monitor all union elections; and the District Court has exclusive jurisdiction over any proceedings related to the consent decree, so that it would seem that any election complaint could go right to the judge, bypassing the Labor Department.

All nominations (and appointments) for office are subject to review by the Ethics Attorney who is authorized to disqualify any candidacy that "furthers Corruption" (always with the capital C). He is empowered to approve, reject, or modify any rules for "the direct election of rank and file election of Local 14 officers;" The exercise of this power is subject to the approval of the U.S. Attorney's office --- an important proviso, because it turns the Federal attorney from a passive onlooker into an active partner in enforcement.

Local 14 is enjoined from holding any election "until such a time as the Ethical Practices Attorney determines that fair and untainted elections can be held...." There follows an explicit procedure on how that determination is to be made, including hearings before the judge, who makes the final decision. This provision provides a means for testing the actual success of the monitorship. No "fair and untainted election" is possible until members can feel free to run against the administration without fear of retaliation. And that fear can be lifted only if they are confident that all the requirements for fair hiring have been and will continue to be enforced.

Education for democracy: In other federal actions against racketeers in unions, settlements make excellent statements in favor of union democracy as the antidote to union corruption, but fail to translate fine words into effective action. The Local 14 decree goes beyond a mere declaration; it directs the ethical officer "to conduct an educational program for the membership of Local 14 relating to union democracy, collective bargaining and the fiduciary responsibilities of union officers." As though to emphasize that it means what it says, it tells him where he can hold these training sessions and how they are to be financed. He is to post reports, decisions, and announcements on a special website.

Let the members know! The consent decree required the union to mail a copy "to each member's last known address" within thirty days of its entry. That would be powerful stuff if only time stopped marching on. Around August 25, 2008, when crane operators opened their mail, they must have wondered, "Is the government really serious? Maybe there can be a change." Then nothing happened. It took another fifteen months of inaction before enforcement agents were appointed. It would be a sad day if all this fine work, apparently by assistant federal attorneys Richard K. Hayes and Jennifer Schantz, is allowed to dribble along. They fired a resounding starting gunshot, but no one took off running.