Election Protest 138 RICO

IN THE MATTER OF THE APPEAL OF PROTEST OF: JAMES W.S. McGOUGH

PROTEST EO-138

Oral hearing by telephone, taken pursuant to notice, held at the offices of Vaira, Backstrom and Riley, 1600 Market Street, Suite 2650, Philadelphia, Pennsylvania, on Thursday, -October 24, 1996, beginning at approximately 2:01 p.m., before, Colleen J. Sears, Court Reporter-Notary Public, there being present:

APPEARANCES:

ALSO PRESENT:

VAIRA, BACKSTROM AND RILEY

BY: PETER F. VAIRA, ESQUIRE

BY: JAMES GEORGES, ESQUIRE

1600 Market Street, Suite 2650

Philadelphia, Pennsylvania 19103

Phone: (215) 751-2700

Representing LIUNA

(via telephone)

STANLEY KRAVIT

MICHAEL S. BEARSE

HOWARD GUTMAN

ROBERT D. LUSKIN

JAMES McGOUGH

THOMAS GEOGHEGAN

MR. VAIRA: This is Peter Vaira, the hearing officer. Let me go down the line and see if I've got all the parties.

Mr. Gutman?

MR. GUTMAN: I'm here.

MR. VAIRA: Yes, sir. Mr. Kravit?

MR. KRAVIT: Here.

MR. VAIRA: Mr. McGough?

MR. McGOUGH: Here.

MR. VAIRA: Okay. Mr. Luskin? We don't have Luskin on the line yet. Mr. Bearse, we know you are there.

MR. BEARSE: I'm here, Peter.

MR. VAIRA: And we know that Mr. Geoghegan is there. Just hang loose and we'll locate Mr. Luskin. I'll let you know that we have a court reporter for this particular proceeding. Her name is Colleen Sears, licensed reporter here from Pennsylvania, so that before you speak each time -- hello, Mr. Luskin, this is Mr. Vaira.

MR. LUSKIN: Hello, Mr. Vaira.

MR. VAIRA: Mr. Luskin, on the line are the rest of the parties, Mr. Gutman, Mr. Kravit, Mr. McGough, Mr. Geoghegan, and Mr. Bearse and I was just telling the gentlemen that this is

a -- proceeding is being taken by a court reporter, Ms. Sears, and so before each of you speak, would you please let us know -- identify yourself because she certainly can't tell over the speaker phone. This is a -- an appeal from the election officer's ruling in E0138, the election officer's amended order in E0138, and I believe the appeal " -- is by the International Union and by Mr. Coia. And I asked for a -- a statement by Mr. Luskin and Mr. Luskin has filed his -- his particular statement and I believe we have that. It's the appeal from a protest originally by Mr. McGough. Mr. Kravit is a -- the campaign manager of one of the candidates and he's been asked to either listen in or participate. At this point, I do not believe that Mr. Caruso is a party and, Mr. Kravit, you should know that. Okay, Mr. Gutman, you may proceed, sir.

MR. GUTMAN: Okay. We appealed following our unsuccessful motion for reconsideration. In that motion for reconsideration we pointed out, which is something I'd like to reemphasize that the International and the general president certainly desire a fair

democratic election, that the International and the general president certainly plan fully to abide by it not to appeal rulings of the election officer that have to do with the distribution of the information about the process of the election, that have to do with information from the candidates to the members, but I think we have a fairly unique situation and one that crosses the line both in -in our estimate in terms of the election officer's authority and second, just in -- in assuming the power existed to issue an order like this one and whether the order at issue here is in discretion. As to the election officer's authority, we are going to defer to the GEB attorney, Mr. Luskin, and he can address that. We want to focus actually on even assuming there was some power by the election officer to order information to be distributed that was not -- that did not regard the process of the election, that had no regard to communications from the candidate whether, this would be a proper document, and we want to focus primarily on what the document is, which we've done in our papers. What we have at issue here is an order that the International make available and -

and publicize the availability of a document that was written by particular unidentified people employed by the government, probably, from your knowledge, primarily Mr. Lowery based on his views and the information available to him and his opinions, based on the information available to him, roughly two years ago for the purpose of starting negotiations with the International in what ultimately was a resolution that went to the consent to creating the formation of -- of the entire reform effort.

MR. VAIRA: Mr. Gutman, you would describe this, I don't think it's any news to anybody else here, as a draft complaint?

MR. GUTMAN: It is a draft of a complaint and those are somewhat of a contradiction in terms because we don't know what the actual complaint would have looked like.

MR. VAIRA: But, I mean, it's a draft.

MR. GUTMAN: Right.

MR. VAIRA: In other words, okay, and it said on top of it a draft, okay.

MR. GUTMAN: It was never filed. We don't know, first, what the government would

have filed if there was no resolution and they had to file a complaint. We could have had everything from they decided not to file anything to they could have filed that word for word, but the choice of what the file would have been there is the cover letter to this draft particularly noted that its point was to start discussions and that was subject to change at any time.

MR. VAIRA: Mr. Gutman, thereafter, did the -- the parties -- let's -let's call them the Department of Justice and for the lack of a conclusive word or -- for -- for just identification purposes, the union and its representatives, did those two parties engage in -in discussions?

MR. GUTMAN: Yes, based on getting this draft, settlement discussions began, they lasted several months, and a resolution was reached whereby no complaint was ever filed. For that reason, we don't know -- if it matters, we don't know what the government would have filed. We certainly don't know what -- which of these allegations they would have attempted to prove and we certainly can't tell which ones would have been proven or found by a jury or a judge to be

factual. All we know is allegations, in essence one person's opinion or a small group of peoples' opinion, and we don't even know it was their opinion. It was what they decided was the best tools to start the negotiations.

MR. McGOUGH: Well -

MR. VAIRA: Hang on, Mr. McGough. We'll get to you as we go along in time. Mr. -- Mr. Gutman, as we all know, an agreement was reached and it's called an agreement, for lack of any better word, it's title that, and this agreement was signed by all the parties, I believe, the United States on one hand and numerous officials from the Laborers' International Union on the other hand; am I right, sir?

MR. GUTMAN: Correct.

MR. VAIRA: Okay. And that particular agreement -- was -- was that agreement made public to the union?

MR. GUTMAN: That agreement has been made public to the union. That agreement has been published, I believe, it's been published in the book of which thousands of copies have been around. It has been something that the union has been proud of and widely publicized. I don't think

there would be any party on the phone who would say the union has attempted to hide the fact that they've worked out an agreement with the government. I think that's been a source of pride for the union.

MR. VAIRA: Okay. And so, now -go -- go on, sir, go ahead.

MR. GUTMAN: Okay. Now, so what the -- when you say look at the draft, a great deal of it relates to -- is factual where we can say well this is factual, reports, let's say, past convictions, pass fail sentences, and for that -that part, virtually none of it or none of that part relates to the present board, the present union. It is -- the part that is particularly factual relates to either the past or, in some cases, the distant past and certainly does not relate to the current board. The part that relates to the current board, in essence, is parts -- and it's a small fraction of the overall 212 page draft, that talks about allegations about Arthur Coia. Those are the parts that we say we don't know what they would have filed and we certainly don't know what they would have proven. It is, in essence, what certain government people, obviously

well meaning, believe based on the best knowledge at the time available to them was their opinion and as one opinion from among many opinions about the various -- the various -- well, Mr. Coia and then the state of the union at that time, but we do know some things about it. For example, there are a few allegations about Mr. Coia in there and one, perhaps essential one, was the belief at the time -- a good faith at the time that Mr. Coia necessarily must have been approved for his position as general president by La Cosa Nostra because of information then available to the government that all past presidents of LIUNA have been approved by La Cosa Nostra. That's something that was an opinion that was not proven at the time, but it's something that the last two years have given everyone on this phone, especially the independent hearing officer, has produced more information. There's now been extensive testimony from the independent hearing officer as to how Mr. Coia became general president, the testimony that the -

MR. VAIRA: I think you -- I think you mean the general -

MR. GUTMAN: -- another candidate

and that Mr. Coia sort of bucked that candidate and sort of bucked La Cosa Nostra there. That's been testified to in several depositions in public court. It's been testified in several investigations by the government and the GEB attorney and I believe it's something that is now news in the last two years to the government, so that I have cited in my papers Paul Coffee's discussion in July when he discussed this with people in -- in congress saying well, you know at the time we made these allegations in the draft complaint, we believed them, but information has come to light since and now we're not sure if certain of the allegations in the draft complaint are correct, we'd have to say the jury is out because, for example, on that particular one, they've now heard well, yes, it's true that everyone else has been picked by La Cosa Nostra, but we didn't realize all this evidence that they were, in fact, supporting particular other candidates and Mr. Coia had opposed the candidates.

MR. VAIRA: Mr. Gutman, did the draft complaint ask for any relief? I've never seen that complaint, so I'm just asking. I don't know.

MR. GUTMAN: It was 212 pages, it asked for scores of relief that basically can be summarized in sort of the take-over of the union akin to a teamsters-type take-over.

MR. VAIRA: Did it ask for Mr. Coia to be thrown out or leave or -

MR. GUTMAN: It asked by its terms that Mr. Coia be thrown out. Although, I mean, that's sort of -- it's sort of equivalent to a damage claim of, you know, $10,000,000, but if they get $3,000,000 they'll take something less than the $10,000,000. So it asked for the -- for everything they could possibly get, but they wanted some form of proper remedy.

MR. VAIRA: Okay.

MR. GUTMAN: Okay. But what we now know is -- we don't know -- this was never sworn to, this was never proven, this was never filed, moreover, we have indications that authors today if they were to -- to actually give their opinions, their unsworn to opinions or their sworn to opinions, it would look like something different. What they'd probably say is the jury's out, we don't know one way or the other. The other thing is it wasn't

written in the context of realizing that it -- that its release would be ordered in -- in the context of an upcoming election between Mr. Coia and Mr. Caruso. Now, just as I said, I don't know what they would have alleged or proven about Mr. Coia, I don't know what they would have alleged or proven against -- well, I don't know what they would have proven about Mr. Caruso, but it is no surprise, it's been in the papers that there have -- that there have been at least allegations that Mr. Caruso, in their minds, was what they viewed as a made member of La Cosa Nostra, which is something they didn't say about Mr. Coia. Had they been running a document aimed at the 1996 elections even in 1994, realizing that it's an election between two particular candidates, and it wouldn't have been this document, it's safe to say. They would have had plenty to say, it's safe to say, about Mr. Caruso as well. I don't know if any of it's true. I don't know if any of it's false, but I can tell you that this is the one document that was aimed at Mr. Coia because the point was to attack the union in court or at least to threaten the union in court by going after its then board. There's no reason to say here's everything we have about Mr. Caruso

because we're not offering it in the context of giving our opinion about the 1996 election. So the document is written at a time when it is supposed to be aimed at Mr. Coia. For example, if we ask for the 302's and we got the Caruso and the Coia 302's, that at least wouldn't be one sided. This document had to do necessarily only with Mr. Coia. We know it's out of date. We know by their own admission they're not sure whether it is correct. We know the independent hearing officer's heard a lot of the testimony. He never had to reach findings in the Serpico case, but he did hear a lot of testimony by which he would -- I would submit could well conclude that some of the allegations there we know would be not correct and, in fact, the election officer doesn't contest that it's out of date, doesn't contest that it is likely wrong in material respects. He doesn't contest that it's one sided. He doesn't contest that it doesn't discuss Mr. Caruso. The position by the election officer is simply to try to avoid responsibility for issuing that by saying the line over and over that I'm not passing as to whether it's correct, I'm taking no position as to whether it's one sided, I'm not endorsing it at

all, but that is just -- although it sounds good, it is not fair in practice. In practice, the election officer has now ordered the release and the advertisement of only one document that ever discusses Mr. Coia's performance or the performance of the union and it is this document. By putting this document as the only document out there, it is, in fact -- whether it's an endorsement or it is -- this is something you all should see, it is a determination that this has relevancy and, in fact, it's the only one that's relevant. We know, for example, there are thousands of documents. Three months ago, Vice President Gore addressed the Tri-fund Conference and made a lengthy statement about the importance of Arthur Coia to the labor movement and to the laborers, that's something you could order to be publicized, but in fact, it's not something that anyone's ordered to be publicized and if the union chose to make it available would be a violation. Someone would say wait a minute that's campaigning for Coia and that's just Vice President Gore's hearsay opinion, why should that count. There are countless priests and politicians and business officials who 've made similar statements and

written similar tributes from all sorts. There's New York Times pieces talking about great progress and organizing of this union. Any one of those the election officer could say I think that's relevant, let's tell that to the members by forcing the union to advertise it and for the union to make it available, but none of those are there. It's just simply this one opinion, which is an out-of-date one and -- and is one that we have a sense is probably wrong in certain mature respects in any event.

MR. VAIRA: Okay.

MR. GUTMAN: And the -- the only justification is to use the word government there and it -- it takes no greater relevance and it has no greater accuracy because it was written by one member of the government than maybe the New York Times which may be more accurate or a priest who some people would say was more accurate or Vice President Gore who people would say is more accurate. We wouldn't argue that the union should make any of those very favorable things about the performance of Mr. Coia available, but we certainly want -- and if Mr. Coia wants to make them available through his own funds through

campaigning, it would be his right just as if Mr. Caruso wanted to make this available through his own campaigning, it would be his right, but the point is when the election officer steps in and finds this one document, he is putting his thumb on the scale of the current board because it makes them look bad that the document that they've never had -- been able to contest and parts that are clearly factual and correct and parts that we think are not correct and certainly thumbed the scale of Mr. Coia and instead of promoting fairness in the democracy, we would think he puts the thumb on the scale and have the opposite effect.

MR. VAIRA: Did -- do you think if Mr. -- Mr. Caruso wanted to make a mailing of this document, he approached the International Union and offered to pay the money, the International Union would have to mail it out under the rubric of an election matter?

MR. GUTMAN: Well, I don't -frankly, I don't know whether International makes it available or he gets to mail it himself -

MR. VAIRA: He has to pay for it. What I'm saying, he has to pay for it, but what -- would they have to give him the mailing

give him the--

MR. GUTMAN: He has the right -and the document is a public document. Make no mistake, this should not have been a public document. This was a private negotiation between the parties at the time, but the document has become public. The document is at least in two court files where it's public so anyone can have it and, in fact, I'm sure Mr. Kravit will attest that he's -- he's participate -- and Mr. Caruso has as well. There's no problem of the access. The problem is who should be the person advertising its availability and what we say is everything is fair game in politics, so if some candidate wants to negatively campaign against another at their own cost, they're entitled to it and more power to them, but when the union is ordered to make this one document, the document they advertise and the document that they have to have circulate, it becomes the official distribution of the union, that's when it's improper. So this isn't a question whether Mr. Caruso has access to it, of course he has access to it and he can -- he can publicize it as well as Mr. McGough -- and I don't know if I'm pronouncing the name right.

MR. VAIRA: McGough (pronounced McGoff)is correct, sir, yes, sir.

MR. GUTMAN: If Mr. McGough wants to publicize it, he is a member. Certainly, it's available to him in the public and he, as a member, can send anything he wants to anybody in the union, but this board doesn't endorse wholehearted that draft complaint and certainly doesn't want to be the -- the people now circulating and giving more credit. They have spent two years working hand in hand with the -- well, working themselves under the supervision of the government to make sure this union is clean to work to improve its reputation, to work to eliminate any doubt about where this board stands and this is a two year set back. To circulate a document blaming this -- the board of the union for corruption in local 210 when they've extended enormous sums eliminating that corruption. And, as we speak now, 210 is run by a clean trustee, a lot of the members are gone and the rest are in the process of being tried and to now circulate a document saying 210 is corrupt and the board has done nothing. It's not out -- it's not only outdated, it's unfair and it's not proper to make the board be the one who's doing that.

MR. VAIRA: Mr. Luskin Mr. Gutman, I will come back to you in a minute. Let's talk about the -- the jurisdiction. Mr. Luskin, you're there, sir?

MR. LUSKIN: Yes, I am.

MR. VAIRA: I would like to hear from you on your position on whether this exceeds the election officer's authority. : All right.

MR. LUSKIN: All right. Let me say one thing at the outset, which is I believe that the amended order, which you have in front you, misstates my position in this matter since of it recites that I was -- I protested the election officer's decision and joined in the motion for reconsideration which is, in fact, not the case. As a result of your order, I believe, of September the 18th, I was asked to express my views on this matter when it was initially docketed before you. And when the election officer agreed to reconsider the matter at his deputy's request, I furnished him with a copy of the submission that I had previously prepared for your consideration and it was done as an accommodation and a courtesy only, but the GEB attorney does not join this protest as GEB attorney. I have -- I also would like to make

clear that -- that I take no position on the merits of the draft complaint as a newsworthy or election worthy document and do not join anyone's argument about whether or not it was fair or unfair to any particular candidate to have it disseminated. The only points that I wish to contribute were those set forth in my letter and those were that I believe that outside the area of communicating about the matters related to the election, the election officer's authority to assure a free, fair, and democratic election includes the dissemination of information by or about the union that -- that that authority really is at the outside reaches of the scope of its authority and in my view, would be applicable in only one of two circumstances. One, where it concerns information regarding the organic operations of the union. For example, if, and this has already taken place, a member were to write in or a candidate were to write in and seek financial information about the union believing that that information is material to an issue in the campaign or in the referendum, I think, under those circumstances, the election officer would have authority to require their disclosure.

MR. VAIRA: Such as -- such as -there's -- there was an audit last week and -- I mean, there isn't, but let's assume there was an audit saying the union is $80,000,000 in the hole and it's because of the ineptitude of the people running it?

MR. LUSKIN: Exactly or information about the salaries or expenses of any incumbent officer or any other information about the organic operations of the union. I guess I wouldn't doubt at all that the election officer would have the authority in -- within his general scope of authority for a free, fair, and democratic election to say that if the International Union were unwilling to disclose that information voluntarily, that he would have the authority to order it. My concern in this instance is -- is whether or not a third party document, which reflects someone else's view about the operations of the union, but which has been conveyed to the International Union falls within that exception. The second exception would be in the situation in which the information at hand, whether it's a document or information generated by the union or generated by some third party, but has been

furnished by the International selectively to one candidate or another and under those circumstances, again, if that were again to have taken place, I think the election officer would certainly have authority to, in fact, level the playing field and ensure that regardless of the providence of the document, it is made available equally to any candidate for office or to any proponent or opponent of the referendum, but again, I don't believe that to be the case here. The draft complaint was furnished to the members of the General Executive Board in connection with addressing the issues posed by the Department of Justice at the time those negotiations were taking place, but I don't believe it had been disseminated by the International since then in some way that it would be sufficiently selected the election officer's authority to level the playing field, in effect, would be implicated here.

MR. VAIRA: Okay.

MR. LUSKIN: Beyond that, I really don't have any position that I want to articulate and, to the contrary, if you were to find that this matter -- the dissemination of this type of information were within the authority of

the election officer, I would take no position on the merits of whether or not he has exercised the discretion appropriately in this case.

MR. VAIRA: We understand that. You made that clear in your memo. Now, I know Mr. Bearse is there, but why don't we move to the other side of the table. Mr. Geoghegan, you have been missing in action for at least a month and a half and we haven't heard from you for a long time. Mr. Geoghegan and I have a number of these appeals. Where have you been, Mr. Geoghegan?

MR. GEOGHEGAN: I've been in places as exotic as Philadelphia, Mr. Vaira, and of course I'm seeing friends from the east coast.

MR. VAIRA: I have to remember that you were also -

MR. GEOGHEGAN: I'm certainly moved appearing before you and that certainly prompted me to come back.

MR. VAIRA: I understand that you have been overseas too; is that right.

MR. GEOGHEGAN: Well, I -- I -as it turned out, I -- I did not do that.

MR. VAIRA: Okay. You're excused then.

MR. GEOGHEGAN: Had that have been, I might not have returned. Well, I -- I'm grateful for the opportunity to come back and talk to you again and to respond to Mr. Gutman and Mr. Luskin. I think that the next presentation of our case really has been Professor Goldberg's opinion in the supplemental decision, which I won't review, but should state at the outset that this is a moderate and limited decision. We are not compelling the circulation of the RICO ground complaints. We are responding to one individual member's request, Mr. James McGough, and we are notifying other members as we, from time to time, do about our decisions that we have granted this request and that other members may request accordingly provided that it not cost the union anything, that -- that members pay for the cost of the photocopying and any other costs that are related here. Now, in further note, that the -the -- aside from this not being a circulation the complaint, we specifically went out of our way to say that the LIUNA will not be circulating this complaint generally throughout the union, that they will be giving it only to an individual member who requests it and who pays money for it and that, of

specifically, LIUNA will not be posting this on the LIUNA net as we respond to several other requests that Mr. McGough admitted. This is simply in the nature of responding to an individual member's request for information. We said he was entitled to it and that's as far as it goes.

MR. VAIRA: And have you -- go ahead. Go ahead.

MR. GEOGHEGAN: I'd like to talk about areas where clearly I think even Mr. Luskin's view would have the authority to distribute -distribute the information that is in the RICO complaint. Say, for example, a candidate chose, as part of his campaign literature, to say that allegations were made by the government in their draft complaint, that the union was controlled by organized crime and quoted from the draft document, which, by the way, is generally public as everybody can see. That could very conceivably have happened. The election officer would have taken the position that we do not censor the views of candidates, that we are not in the business of saying what the candidate can tell the membership and not tell the membership and that could have then curtailed circulation throughout the union and

for the laborer and I know -- I don't think do believe, I'd be curious to Mr. Luskin would have any problem with our not censoring individual candidates who quoted from the draft complaint which is generally public. It's been printed in the congressional record and so forth and we wouldn't have done that. There's also intrusive circulation than the one -- than the one that's at issue here. Furthermore, it would have been certainly within our domain to have stated at the beginning how the election officer's position came to be created. It came to be created because of the consent judgment. That consent judgment was to dispose of an underlying cause of action evidenced by this draft complaint which had certain allegations that the union was controlled by organized crime. That's pretty much common -- it would be a common point of -- of information -- it would be a common question in most people's mind to an official like an election officer why are you here, why are-there these rank and file elections. We could have in the course of communicating with the members to explain to them why we're here, gone through the history, we did a limited discussion of the history which would have included mentioning

the draft complaint that alleged that the union was controlled by organized crime. I do not believe that we were prohibited from telling the membership that.

MR. VAIRA: Mr. Geoghegan -

MR. GEOGHEGAN: Now -

MR. VAIRA: Go ahead. Go ahead, I'll -- I'll wait until you're finished.

MR. GEOGHEGAN: I -- so I want to stress that this thing is vastly more limited in scope than any of those two examples that I just gave. And the issue that this thing is relevant to -- this draft complaint that I think is worth mentioning -- or three boasts complaints does have that it seeks the direct election of all the officers. There's a rank and file election referendum. The issue is whether there should be direct election of all the officers. The government created a draft complaint that said that the government believed that there should be direct election of all the officers. Number two, it is true that one of the candidates who is running for office here is mentioned in that complaint. It may be relevant to that. Number three, and most importantly I think, because Bob Luskin has talked

a lot about the -- how documents that are related to the organic workings of the union are -- are presumptively to be disclosed. Number three, this document was the document that the union spent considerable resources responding to when it was prepared and circulated to the union by the government. It is the document that evidences the underlying cause of action that the consent judgment resolves, which is the document that the union internally generated with the government. We don't think there's any question from the union's point of view or from Mr. Gutman's point of viewer Mr. Luskin's point of view that a member is entitled to a copy of the consent judgment between the government and the union. This document, one may note, is the document that underlies the consent judgment which everyone agrees a member would be entitled to receive. This is the document -- this draft complaint that evidences the cause of action which is precisely what the document addresses. It is hard for me to see why the member is entitled to see the consent judgment, but the member is not allowed to see the document the consent judgment purports to resolve. Let me just push this a little

further. I am a former -- interject a personal note, I'm a former lawyer of the union legal department. I've worked for International Union. To say that I am sympathetic to Bob Luskin's point that the union should not be a general clearinghouse for documents is to vastly understate that point. I do not think LIUNA should be a general clearinghouse for documents generated by third parties. This document, however, is totally different. I do think that a union -- we do think -- the election officer believes and states in the supplemental decision that a union does have some accountability to the members for a document that it obtains in the role of -being the members legal representative, which certainly was true about this draft complaint and which came from the Federal Government.

Now, it's true that the Federal. Government is a third party and to that extent, it is no different from Mother Jones or the New York Times or a number of other entities. However, I would point out that this is a government -- from the Federal Government -- as to the Federal Government's view as to whether the union was complying -that the Federal Government is obligated

to enforce which gives the Federal Government, in connection with its assessment and determination as to whether those laws were violated, a different status than Mother Jones or the New York Times or a number of other publications or even Vice President Gore.

MR. VAIRA: Mr. Geoghegan -

MR. GEOGHEGAN: One more point.

MR. VAIRA: Okay. Go ahead.

MR. GEOGHEGAN: With respect to Vice President Gore, I would note just in passing that there are many, many, many times in which The Laborer circulates information praising the union of some various third parties including Vice Presidents of the United States. I mean, that's not why we issued the decision, but, you know, it's just not true that The Laborer does not consistently circulate information for third parties. Okay. That's the first part of the authority bill, which by the way, you wanted to ask -

MR. VAIRA: I want to ask you a question.

MR. GEOGHEGAN: I've been on vacation for so long, I've lost my

MR. VAIRA: That's okay. Let's put it this way. What you're saying is -- is that the -- in its fiduciary capacity that it should be letting the members know on what basis it's operating. Now, that may be true. Let's assume all we're going to negotiate -- the union is going to negotiate some major, major contract, a nationwide contract.

MR. GEOGHEGAN: Sure.

MR. VAIRA: And the contractors have so much on the table, X amount of dollars, and the union has it on the table, hour wage, whatever conditions and that's a factor that's known to everybody and that's -- that's from the mill for everybody to know, but we move here, don't we, into a different area -- and we're all lawyers. We have to look at what this is. This is a legal document and it's between lawyers who are working on a settlement or hoping to achieve a settlement and they send each other cannonballs, if necessary, to try to push their position and -- and eventually they end up with something. Now, as you and I know with the rules of evidence and just the work product of lawyers is generally protected simply because there's a lot of -- of strategy that may go

in, there's a lot of documents, things that are written down that it may not be finally -- finally put to paper. Doesn't that element come into here as opposed to -- to just completely a fiduciary capacity?

MR. GEOGHEGAN: Of course and that's certainly something that we would have considered in a context where this was by the admonition of both the Federal Government and the union factor. Mr. Vaira, if the Federal Government and the union had said look, we regard this document as confidential, we don't want it released for one reason or another, you know, our decision here might have been totally different. I don't want to say off the top of my head that it would have been, but -

MR. VAIRA: Assume -

MR. GEOGHEGAN: -- it was certainly a major, major factor to consider -

MR. VAIRA: Yeah, but assume this

MR. GEOGHEGAN: That's not before us .

MR. VAIRA: Okay. But assume this. Normally, without all the publicity,

publicity and the suits that followed, if this had been a normal situation where the Department of Justice sends a document over and the union agrees to it and the only place one would find this particular draft complaint is in the files of the Department of Justice or in the -- in the files of the union. Now, the only thing that makes it different that it's now public. It doesn't get any other status, does it -- does it stop raising -

MR. GEOGHEGAN: No, I think it is different in this sense too. First of all, the fact that -- I'll accept your hypothetical that -in this particular case, it's a hypothetical case that you're giving, everybody agreed that was confidential, but I emphatically, emphatically say with much respect to you that this is a much different situation. This document was out in the general domain and the Federal Government certainly has -- does not care one wit whether or not this is ——

MR. VAIRA: Do you think you could get if from the Department of Justice now if you wrote to them, wrote to the librian of the Department of Justice and said here'ss a -- here's a fact number, send me your

draft complaint, do you think you could get that?

MR. GEOGHEGAN: Not without photocopying charges.

MR. VAIRA: No, no, no photocopying. Do you think you could get that?

MR. GEOGHEGAN: I suspect that the government -- I -- I don't know the answer to that. I certainly think that under the Freedom of Information Act, you could easily get it at this point given that, you know, this is a public document. People have commented about it in congressional hearings. I'm not familiar enough with the internal workings of the Justice Department policy. I do know this, it would not be exempt under the Freedom of Information Act in the current posture that it's now in. It simply would not be.

MR. VAIRA: Okay. All right.

MR. GEOGHEGAN: The second point, I -- I think that even to have this document filed in court, the consent judgment now, that the member could have gone in and easily obtained, I believe, from a federal judge a copy of the draft complaint that was underlying it, but that's speculation and it's a set of circumstances that I have to keep

emphasizing doesn't exist. -The fact that this document is out there --

MR. VAIRA: Run that past me again. If the Department of Justice had filed this, then a member goes in and asks the federal judge, judge please give me a draft -- the draft that the Department of Justice may have in its -in its pocket someplace. You -

MR. GEOGHEGAN: And because of LMRDA one and two. LMRDA is the right to an informed vote

MR. VAIRA: I doubt that.

MR. GEOGHEGAN: The statute -- we're getting away from the constitutional--

MR. VAIRA: I think so. That's a stretch and I have a problem with that.

MR. GEOGHEGAN: And assuming there's no election officer, no constitution, et cetera, et cetera, it would be discoverable even in that set of circumstances because the union has a fiduciary duty to the membership. Now, Mr. Vaira, let me put you in this situation for a second or let's put our -let's put Bob Luskin and me, we're both members of the D.C. Bar, and a -- circulated by the Federal

Government against the officers of our bar association and a consent judgment is entered into in court. The draft complaint we know alleges organized crime conduct by the president, the secretary of the bar association who are up for reselection. We ask for a copy of the draft complaint about a consent judgment that entirely reworks -- reworks the internal electoral arrangements of the bar association. For example, which gives us certain voting rights we didn't have and takes away other voting rights that we did have. We'd like to know, as members of the bar association, what the draft complaint said. Let's suppose that, Mr. Vaira, you're in the bar association with us. In -- if -- if you and I and Bob Luskin were all sitting in a meeting of the bar association and our leadership said we have entered a consent judgment with the federal court and they have accused us of organized crime, but we're not going to tell you what's in the complaint, I think, based on my knowledge of all of you, who I have come to know, we would be livid that a document like this would not be disclosed and would say that you have a fiduciary duty to us as the membership to disclose it just as we would be as members of

the bar association if the bar association were accused of being headed by people in organized crime whether the allegations were incorrect or not, just simply that they had been brought by the government, but we would like to know what those allegations were. I don't think the members of the laborers' union are any different and I don't think that they are at a different status from you or me in -- in wanting to see exactly the document that led to an entire constitutional reworking of their union. Remember, these are laborers who now have the right to vote for president, who are now being put in a referendum to determine whether or not to elect their officers directly, who now have an election officer sitting over them, who are now facing their first contested election in history and the document that generated all of this is a draft complaint which makes certain allegations about the current incumbents of the union, which may or may not be true, and which the government never pursued and may well be false, but we're not allowed to see it, that -- that -- the very essence about the election officer's authority under section nine of article seven where it says the

it shall be the responsibility for the election officers who show that elections for members of the GEB are conducted in a free, fair, and democratic manner. The very -- that an election which is compelled by a document that nobody is allowed to see would be a joke under the literal meaning of that provision and, I might add, I've only quoted part of it because I note that Bob in his letter only quotes part of it and I'm always on the alert when an intelligent lawyer only quotes part of a sentence. It goes on to say free, fair, and democratic manner consistent with the principles of the LIUNA ethical practices code. Now, to be fair to Bob, he does go on to say that one of the principles of that is that each member should have a full share in union government, but you aren't allowed to see the document that has led to a complete reworking of your International Union. I mean, it's just -- it's a startling, startling -

MR. VAIRA: Now, most of these folks said -- who are -- who are the protesters, sir, have that document. Mr. McGough has it and I think Mr. Caruso has it.

MR. GEOGHEGAN: That's the other side of it.

MR. VAIRA: Well -

MR. GEOGHEGAN: That is the harm that's going to result from the release of this document. I mean, normally when you get into a close question you would do a little weighing analysis here; on the one hand what is the good that is done, on the one hand what is the harm that is done.: On the one hand, what is the harm; that is done, let's start with that, zero. I mean, the document exists, it's been in the congressional record. Giving it to Mr. McGough, with all due respect to Mr. McGough's diligence and earnestness and whatever, is of microscopic significance compared to the circulation of this document in the congressional record. Compare it to the review of the document by the editors and reporters of Time and Newsweek, New York Times, and so forth to say that the release of this document to Mr. McGough is going to cause irreparable injury after, in light of the fact that this has gone out, there can't -even remotely be a claim of irreparable any injury in a situation like this. And on the other hand, what is the good that is done. The good that is done is that it does reaffirm the principle that the union

has a special fiduciary duty to its members not to be a clearinghouse. I totally agree with Bob Luskin about that, but when the union has received a document in a privileged capacity and had an access to it in a way that other members had not had, it acquires an obligation to disclose that document. That's generally. More specifically in this case, they have a document to disclose what is the main document that led to the governing instrument of this election. That government instrument is the consent judgment. The document or the consent judgment is triggered by, responds to and addresses, and is an attempt to resolve if this draws complaints. No member can assess properly, no member can have a full share of union government as provided by LIUNA ethical practices code in this election. I repeat, according to section nine has to be conducted consistently with the principles of the LIUNA ethical practices code. No member can claim to have a fraction of the share of self government if the membership as a whole, in principle, can be denied access to the document that's led to a complete rebuilding from the ground up without their consent, their own International

Union and led -- the creation of the election officer led to the creation of the set of elections that they are now supposed to participate in. How can we as the election officers say to people well we're here, but we can't tell you or let you know about the charges or the allegations that led to our being put here. You're not entitled to that information. How can we say that, how can we say that under section nine. How can we say that and say that we're conducting a free, fair, and democratic election in a democratic manner? One other point about this -

MR. VAIRA: I assume that you've shown anybody that walks into your office that consent decree if you had it.

MR. GEOGHEGAN: Pardon?

MR. VAIRA: I assume that you've shown the consent decree to anybody who walked in and asked for it.

MR. GEOGHEGAN: The consent decree or the --

MR. VAIRA: And the draft complaint.

MR. GEOGHEGAN: That the election officer has?

MR. VAIRA: Yeah, are you prohibited from doing so?

MR. GEOGHEGAN: I don't believe we're prohibited from doing so.

MR. VAIRA: Are you prohibited from telling anybody where it is or where they may find out?

MR. GEOGHEGAN: Mr. -- Mr.- Vaira, I mean, it's period in the congressional record. I don't think that we're prohibited from releasing it or from showing anyone our own draft copy of it if it has now been in the public domain. That's not the question. The question is whether the union has an obligation to its members. It obtained this document in -- in time long before the election officer ever did. It obtained the document as part of developing a program that included the election officer. This document is not just germane, but one would say is at the root of the -- of all the organic process that leads to the creation of the constitution. If it weren't for that document, we wouldn't be here and to that extent, it's certainly one of the governing instruments of the union. It is not of the same status as the consent judgment. It certainly -- it is hard to make an assessment of

the consent judgment, an informed assessment of the consent judgment and the informed assessment of the amended constitution without having the document before you and without having some -

MR. VAIRA: Well -

MR. GEOGHEGAN: I would state the election officer's authority more loudly though which is to go back to our own rules when Professor Goldberg undertook this part of the standard existing legal framework in this country was that rights under the LMRDA -- democratic rights under the LMRDA included rights to an informed vote. That was something that was boiler plate law under title one and title two and title four, rights to vote include rights to informed votes. There are millions of cases that you can pull out of West-Law that say that. When we were charged or when Professor Goldberg was charged under section nine with the obligation to conduct a free, fair, and democratic election, it was -- the language was extraordinarily broad to quote just two sections of it.

MR. VAIRA: Mr. Geoghegan -

MR. GEOGHEGAN: And to take such actions that he made these necessary.

MR. VAIRA: Let me move to -before you move any further on. When you're saying that the persons are entitled to know the -- the basis of the consent decree, that's -- that's the opening salvo in the consent decree. This is not like the great federalists debates where you see the other side and one would get to know what the union responded to. You get to see the opening salvo, isn't that somewhat of a -- a unbalanced view?

MR. GEOGHEGAN: It's absolutely beyond our scope and anyone's scope to step in and begin censoring what it is that the members should see or what it is the members should not see.

MR. VAIRA: Aren't you doing -aren't you doing that though?

MR. GEOGHEGAN: It is our position to tell its side of the story completely and fully and it has. It has. Mr. Coia stands up repeatedly -- and this is not an essential precondition to our argument or to our decision, I want to stress that, but the fact is Mr. Coia repeatedly tells his story as to how this all came about and he tells it to the membership. Given that he repeatedly tells the story to the

membership and it's in pretty vague terms.

MR. VAIRA: Where? Where? Where, Mr.

MR. GEOGHEGAN: He does it at all the regional conferences. He did it -- he did it at the convention.

MR. VAIRA: Okay. But -

MR. GEOGHEGAN: He did it on the video yesterday. It's -- it's not impossible for a member to ask well, what is it that the government is charging. It -- it does seem to me that there is a general -- in sticking with Bob Luskin's statement that -- that the members are entitled to documents that are entirely generated by the union are -- our only reformulation of that would be documents that were -- that the union obtained in a privileged capacity which were representing the members and which were essential to the generation of those documents. There are a slew of documents that the RICO draft complaint union obtained in a way different from any other member could because they had a special access to it as relevant to -or arguably relevant to. We have the authority under section nine to conduct elections in a free, fair, and democratic manner consistent with the

principles of the LIUNA ethical practices code. Notice that this draft complaint alleges massive violations of -- of principles that are now embodied in that code and to take such actions as he may deem necessary to accomplish this or to establish rules and regulations he believes or deems necessary. Now, the fact of it is Professor Goldberg believed and deemed necessary that the right to vote included the right to an informed vote. In our election rules last- February and March, we put in that we were going to insist upon a right to a fair and informed vote. There was no protest from LIUNA at that time as to the word informed vote. There is a whole body of LMRDA common law that insists that the right to vote includes the right to an informed vote. It is our view that this is -- is necessary and section nine says that whatever the election officer deems necessary to accomplish this, that's the legal framework that we're relying upon. We're relying upon section nine upon our statement that a right to vote included a right to an informed vote which was set out early on in February or March without any quibble and it is also the case as -- as you

know, Mr. Vaira, that in the Bastose (ph.) protest, we required the union to provide information about the salaries of various incumbents and we also said that we were -- there were certain things we were not going to provide.

MR. VAIRA: Okay. Those were -those were generated inside the union. That's something that -- that I think that you and Mr. Luskin just a moment ago agreed that it would be -it could be -- could be shown. Now, let me -- I have-your point. Let's give somebody else a chance here. Mr. Bearse, let's move to the other side. Are you there, sir?

MR. BEARSE: Yes, I am.

MR. VAIRA: Okay. Let me hear from you.

MR. BEARSE: A little leery, but I am. Well, as often has happened in the course of -- of these experiences

during the elections officer's oversight, I have a somewhat harder view than either Howard or Bob Luskin and I don't dispute at all that the membership is entitled to an informed vote. I don't dispute at all that there's a fiduciary obligation on the union to

disclose relevant documents in order to enable that to happen. I think what you've got here, Peter or Mr. Vaira, is -- is kind of a generous situation. Howard pointed out at the beginning and let us not lose site of the fact this

document is not a complaint. Tom Geoghegan keeps calling it a complaint. It is not a complaint, it is a draft. It isn't even purported to be a final draft. It is a working draft which was -- which was designed not to be filed in court, but to stimulate negotiation. You alluded to the fact that negotiations of this type are intended to be commonly recognized to be confidential. It's no different here. The document, in fact, in terms of -- of what we're talking about now, I mean, I -I would be more sympathetic and more supportive of the election officer's opinion if this were information which were not available to the members in some other way and was peculiarly under the control the union. It is not. Through no fault of the union and, as I understand it, through no particular design of the government, the document is in the public domain. It's in the public domain because it's been attached as an exhibit to a couple of court complaints, not by us, but by

certain parties and because somebody, for whatever the reason, in a political context may have put it in a congressional record.

MR. VAIRA: I understand, Mr. -Mr. Bearse, that the other side of the negotiations, the government's thrown down the first gauntlet. I understand that there is nowhere written down the answers to that as if it would be an official answer, the rebuttal as such which caused this to change.

MR. BEARSE: Nothing. There were a series of negotiations by which the union undertook and proposed a program of internal reform, a part of which is not a consent decree, but a contingent consent decree. The product of the union's internal reform program is, in part, the code of ethics and the contingent consent decree, all of which have been disseminated to the membership, all of which have been made available, all of which are available upon request to anybody who wants it.

MR. VAIRA: Well, Mr. Bearse, obviously someplace along the line, since the government has changed and didn't file the decree, there must be located somewhere on the government's

second or third position.

MR. BEARSE: There are a series of correspondences and communications involving essentially Bob Luskin and government officials exchanges of views and exchanges of proposals.

MR. LUSKIN: Michael, I'd hate to interrupt you, but maybe I can speak to the exact providence of these documents here because I think it has not quite been stated accurately. There was this initial -- there was a draft complaint which, after a series of discussions, generated the agreement between LIUNA and the United States which, in turn, references the authorities of the government to enforce a contingent consent decree. There is a revised draft complaint which the government has furnished to LIUNA and which is the document that it would use to invoke the jurisdiction of a court if it exercised its discretion to impose the contingent consent decree. That document is not this document and differs with it and from it in some respects. So I think that it would be impossible to say that this draft complaint is not related both causally and factually to the agreements that ultimately resulted, but it's not legally related in the sense

that it is not -- it was never used to invoke the jurisdiction of the court. It is not the document that would be used if the government wanted to impose the contingent consent decree, Mike.

MR. GUTMAN: Let me interject right here though. I think in the most important material respect that that document, a subsequent document differs from this earlier document is that the subsequent, I believe, and Bob, correct me if I'm wrong because I haven't seen it in a long time, makes no mention of Arthur Coia and particularly doesn't contain the allegations that Mr. Coffee has expressed doubt were true when he has expressed doubt in front of congress that the government continues to believe which are reported in this document.

MR. VAIRA: Well, see, the point I'm getting at, gentlemen, that may be the opening salvo of this complaint, but for them to -- to end up with a consent decree there had to be a number of other stopping points that both sides went back and forth and alleged and unfortunately, we're not talking about some negotiations in which minutes were taken of -- of each negotiation so that one can see the change in the positions. All you have

is the opening salvo and -- and so at the end, you have a consent decree what -- what no one can now point out how the government either backtracks or otherwise, but somebody did. So that's one of the difficulties with publishing only one opening salvo in -- in a -- a very complicated factual situation.

MR. GEOGHEGAN: Mr. Vaira, this is Tom Geoghegan I just want to emphasize -

MR. VAIRA: Mr. Geoghegan speaking. Go ahead.

MR. GEOGHEGAN: Number one, we aren't publishing this document. Number two, is not our role and I

really, with all due respect not to undertake it as your role, to make a decision as to whether this is the right quantum of information that Mr. McGough should get to get the full picture of what's at hand. There is more to this than the RICO draft complaint. The election officer would gladly concede that, but the question is not what is the full story. You and I know as lawyers that with respect to any litigation, there is no single document that tells the full story. That does not necessarily give us, as lawyers or courts or judges, the right or privilege to

therefore ban anybody from looking at any documents because they, "might get the wrong impression". That is not our role. Each member that we have been hired by in my view are as adult, as intelligent, as able to form opinions as any of us in this phone conversation. They are not children and we in the election office are operating on the premise that the members are not children and that, like those of us on this conference call, they can assess, judge, they are aware that the draft complaint is a fraud document. Indeed, one might hope or the union might well hope that the members do take that view because the document is out there and -- and the document is out there anyway and the world has not caved in. Arthur Coia is still running for president. There has -- the membership, from all that any of us can tell, remains calm. We're all continuing to talk to each other. There's no irreparable injury that can possibly come out of this specific document being given to Mr. McGough.

MR. LUSKIN: Mr. McGough has the document.

MR. VAIRA: Mr. McGough has the document.

MR. LUSKIN:I understood that's not the issue.

MR. McGOUGH: The rank and file -- Mr. McGough speaking --

MR. VAIRA: Okay. We'll get to McGough -- Mr. McGough, we're going to get to you in a second. In fact, you may -- you may start. Normally the -- the protester isn't included in this. Your position is generally argued and argued very well by the -- the election officer, but I'll -- I'll hear -- I'll hear from you. Go ahead, sir.

MR. LUSKIN: You know, we were in the middle of Mr.--

MR. VAIRA: I'm sorry, go ahead. Go ahead -- you know what, I'm sorry, you're right, we did -- we cut off Mr. Bearse.

MR. BEARSE: Mr. Luskin interjected and then after Mr. McGough said to go back to -- there's lots of things that the election officer said that the rest of us would like to address, but we'd like everyone to speak first.

MR. VAIRA: Okay. Let's get the protester off and then we'll get back to Mr. Bearse. Mr. Bearse, we cut you off there, I'm

sorry. Go ahead, Mr. McGough.

MR. McGOUGH: Okay. Mr. McGough. I want to ask Mr. Luskin a question -

MR. VAIRA: Okay. We're not going to go asking questions here. Just give us your point. This is not a hearing.

MR. McGOUGH: The RICO complaint is part of my protest and is part of the appeal. I don't know if you received it in the mail or not. It might not have arrived and Mr. Luskin said he was going to send you a copy for attachment as an exhibit to my protest I want to talk about. I'm here -- on behalf of the rank and file -- and I want to address Mr. Luskin's letter where he says if it's proven, an officer has authority for a disclosure of materials under the circumstances and the decision concerning what materials are appropriate for disclosure would be committed to the discretion of the election officer. What are the circumstances surrounding my protest, the decision, Mr. Coia's protest, my rebuttal, the supplemental decision. I contend the complaint should have been made available in 1995 under the fiduciary obligation to its members to protect their right of self governance, their right to the core of the Labor

Management Reporting and Disclosure Act. I did not become aware of the events of November 1994 and their consequences until May of 1996 because of what I deem to be a "cover-up" by LIUNA and its elected officers. The presentation of the complaint instead of its filing caused substantial changes to LIUNA.- Structural, procedural, electoral, I want to know why those changes were made. The threat of filing a RICO complaint against the union was renewed by the Department of Justice in September of 1995.

Now, please note and read the resolutions of the general executive board for the amendments and referendum before the membership. In that resolution, they want to give the members full opportunity or possible opportunity to decide on the issue. So they wish to change the manner of election of vice presidents and -

Please note the word "decide". The election officer has authority, according to the GEB attorney, which is, of necessity, quite broad. It plainly encompasses orders disseminating information about the decision process -providing an opportunity to -- to -- an opportunity for candidates to express their views on correcting abuses. I contend it is an abuse of

the fiduciary duty of the union; they should have released the document in February of 1995.

MR. VAIRA: Okay. We have your point. Do you have the document -- do you have the document?

MR. McGOUGH: Mr. Luskin -

MR. VAIRA: Do you have the document? This is Mr. Vaira.

MR. McGOUGH: Mr. Luskin sent me a copy of the document according to his fiduciary duty. I'm asking on behalf of the rank and file.

MR. VAIRA: Okay. All right. We did that. I understand your position. All right, gentlemen -- let's go around once. Let me go back to Mr. Bearse.

MR. BEARSE: Thanks, Peter. To pick up kind of where I left off. This is not a document within the peculiar control of the union. We all know it's available and we all know it's out there, so I -- I think the necessity -- so what we're dealing with is whether or not it's an abuse of discretion. It seems to me for the election officer given the nature of the document, the fact that it was intended as a negotiating instrument, that that's the way it was used, the fact that it

was never finalized, the fact that it was never filed -do we have an abuse of discretion in terms of ordering the union -- ordering the union to put a notice in The Laborer that anybody who wants it just will write in to the union and get it even though it's fully available in other places and can be used in a political context and maybe it will be, I don't know. It's not a question of if we don't do this, the members won't get the information because that's not what's on the table here and I would be asking you -that the reasons that we've been through at great length this afternoon it, is an abuse of discretion and we have a situation where I think the net result will be not to promote a free and fair election, but to tilt the scales in terms of one side versus another in a political contest and I don't see that that's a proper goal or -- or effect of decisions by this elections officer and that's really why the protest, in terms of the International's position, has been filed. We don't contest as the International that if -- if a document -- if we had a -- if we had a complaint that was filed, if we had even a draft complaint that was intended to be filed, and that wasn't otherwise available that

people wanted it ought to be able to get it. We don't have any of that. Without repeating it all, we think we have an abuse of discretion here and that we are not to be required to make available through our efforts this document which is otherwise available if members want to get it.

MR. VAIRA: Okay. Mr. Gutman?

MR. GUTMAN: Yes.

MR. VAIRA: Go ahead, sir.

MR. GUTMAN: Okay. Let me address several things that were said by Mr. Geoghegan.- We agree that the goal is to

make an informed vote. We agree, as well, that the goal is to make a fair and democratic election. The question is whether the publication of a 1994 nonfiled, nonproven should never -- never even had the opportunity to be addressed that has since been commented on by the same authors, whether that sole document being compulsory -- compelled disclosure of that document, compelled circulation of that document by the union, not by Time, not by Newsweek, by the union will make the election more informed and more fair or more -- or a finger on the side of one particular party or the other. We think it is pretty clear that, in fact, it makes

the election less fair. This is different than Bruno Caruso circulating and I think you heard in the beginning Mr. Geoghegan tried the argument that this is less intrusive than if a candidate wrote about it in a column and they -- they certainly never censored it and we would never say they have to. Of course we would never say they have to. If a candidate wants to take the time to try to say, for example, Arthur Coia is a crook because the government said this, the candidate can do that all the time. I suspect Bruno Caruso would not do that, number one. Number two, the membership reading it would realize that's Bruno Caruso's campaign literature. If Time or Newsweek wanted to say it, the cand -- the -- the membership would realize that that's Time or Newsweek reporting. They can hear what they hear from their -- from Arthur Coia, they can hear Time or Newsweek. The difference is we're asking the union to publicize this and the union thereby implicitly endorsing it. The union implicitly going forward and saying this is something you should know about. Now, previously we had the pretense that the election officer kept saying we're not saying it's true at all, so we don't have

to worry about the truth because we're not saying it, we're not endorsing it, but today Mr. Geoghegan couldn't hold back so, in fact, he said we think it's critical they read it, we think it makes them informed, we think it's relevant for three reasons; number one, because it bears on the referendum about what kind of election to have. If you read the 212 pages, you would have to be a brain surgeon to find that this actually has to bare on what kind of election. The parts that stick out is a lot of mobsters in jail and then three nasty allegations about Arthur Coia that were made in 1994. That's what the document is about. If he wants to put one line in a column somewhere that the government was in favor of rank and file elections, that's up to him and whatever he -- he circulates. Can the union print this 212 pages or make it available under that guise is silly. The second one, which I find most offensive, is he says it does happen to mention one of our candidates, therefore, it is relevant. Well, yes, it mentions one of the candidates and let's go to Mr. Geoghegan's bar example that he says very passionately. We don't -- let's make it apples and apples. Say we have the case of Mr. Geoghegan running against

Charles Keating for bar president and we have the same exact LIUNA complaint that doesn't mention Mr. Geoghegan or Mr. Keating at all except we'll put one line in there that says Mr. Geoghegan is an embezzler and they're running actually, let's make it, for bar treasurer.

MR. GEOGHEGAN: Mr. Vaira, I don't think that this style of an argument -- and I know that Mr. Gutman does not literally mean that I am an embezzler.

MR. VAIRA: Oh, we know that. We know that. We -- we understand that. I mean, it's just a literary example, go ahead.

MR. GUTMAN: It's a literary example because

MR. GEOGHEGAN: I don't think among lawyers that is an appropriate style of discourse.

MR. GUTMAN: Well, in fact, I have the exact style of discourse for my client, Mr. Coia, because let's make it relevant and if I owe you an apology, we'll see when we're done. Let us say it said, for example, Mr. Geoghegan was an embezzler and it was written in 1994 and otherwise said nothing else about either one. Let's assume,

as well that the author subsequently said --.

MR. GEOGHEGAN: Note my objection to the characterizations made by

MR. GUTMAN: Let me note this there's absolutely no characterization of Mr.Geoghegan, but I'll tell you what, out of courtesy -

MR. VAIRA: Make it me. Make it me. Make it Mr. Vaira is running.

MR. GUTMAN: Mr. Gutman is running because I -- let's say it said that the only thing it had was Mr. Gutman and Mr. Keating running for treasurer of the D.C. Bar and it has this exact same complaint about the D.C. Bar instead of LIUNA and it said -- the only thing it said was Mr. Gutman is an embezzler and, note I have no complaints in using my own name in a literary reference, Mr. Gutman is an embezzler and then that was written in 1994, never filed, never proven and Mr. Gutman never got to address it and the facts would be Mr. Gutman is not an embezzler. Okay. Now, we come 199 -- close to the election and a republican congress looking to get Mr. Gutman at the -- from the bar association raises these questions and the government has the good sense to

say two things that the election office didn't get to say here. Number one, it's one thing to write something down in a complaint to make an allegation, it would be another to prove it. So don't jump based on the fact that it was written even if it had been in the complaint. But number two, what they said is, you know, two years have passed and we've heard a lot of testimony and after that one thing about Gutman, we're not so sure, we may be wrong now, we've heard a lot going the other way. As to the rest of it, it's fine.

MR. VAIRA: Mr. Gutman, is this going -- ~

MR. GUTMAN: That complaint is then presented and Gutman says two things; number one, you know, Charles Keating is treasurer, he's the least trusted man in America. It's just not in that complaint because they weren't talking about Charles Keating in that complaint, but there's tons of stuff in the government's files on Charles Keating so this would be less fair to give that one allegation about me than about Charles Keating, that's number one. And number two, by the way that was out of date, there's been more information and the jury is open even in the author's own mind.

MR. VAIRA: Mr. Gutman, are you saying that this goes to the issue of whether or not it is an abuse of discretion, is that what -- I think -

MR. GUTMAN: It is an abuse of discretion that the circulation of this would make the election more fair as opposed to less fair.

MR. VAIRA: What -- gentlemen, what -- what may I consider to determine whether it's an abuse of discretion? What other information may I consider, may I consider the information related by Mr. Gutman, by Mr. Luskin or what I -- what I know from just a general trial of LIUNA cases? What may I consider?

MR. KRAVIT: Mr. Vaira, would you consider going around once?

MR. VAIRA: Mr. Kravit, we're going to go around, but as I pointed out, you're not a party, so -

MR. KRAVIT: Well, I think Mr.Caruso is as much as a party and interested -

MR. VAIRA: No, he's not, sir, so let's move on, okay. Now, go ahead, gentlemen, what -- what's my position,

what can I consider?

MR. GEOGHEGAN: Mr. Vaira, this

is Tom Geoghegan.

MR. VAIRA: Yes, sir. Yes, sir, Mr. Geoghegan.

MR. GEOGHEGAN: I believe that what you should consider is the -- first of all and most important, you agreed with Bob Luskin that you should consider article seven section nine of the constitution and especially the words that the election -- the words as he may deem necessary in sub paragraph A and the words he believes or deems necessary in sub paragraph B. Then I think that you should bring it your experience as an independent hearing officer, your knowledge of relevant labor law including the general framework of a right to informed vote. I think that you should bring with it Mr. Bearse's statement that there is appropriate for the election officer the right to an informed vote and determine whether a reasonable person or whether, in particular, this election officer could reasonably deem necessary, in his own opinion, which is the words that is used by sub paragraph B. that this information would be relevant to an informed vote. That's what you bring to it.

MR. GUTMAN: Let me add a couple

of additional things. You should consider the draft complaint and see whether you believe that document on its face was an effort to present the government Is views of both Mr. Caruso and Mr. Coia equally or whether the government had no reason to tell its views of Mr. Caruso and, therefore, the one document picked out is, of necessity, one sided. Two, you can certainly look at the draft complaint allegations that Mr. Coia must be a mobster because -- simply because he became general president and you can consider the -- the cases you've presided on to date and the evidence you've heard to see whether, in 1994 -- 1996 that allegation seems to be one that can be said to be -- have credibility simply because it emanates from the Federal Government in light of the evidence you've heard and the federal government has now heard about the Mr. Serpico events. And I believe you can consider Mr. Coffee's testimony that I've provided about the government's own views. The government's now not saying nothing in the draft complaint is accurate. In fact, we say a great deal of the draft complaint is accurate. There's been no effort to hide from the membership that there's been organized crime problems in this

union. My clients led the fight to make sure that's been public and if Mr. McGough hasn't seen it, he hasn't been reading the laborer.

MR. VAIRA: Okay. But what I'm saying is I'm sitting here now -- I'm sitting in an appellate capacity, but we're bringing in what I --I call a -- a lot of elements that I -- I -- I know and you know and you're putting before me, so it's -- it's -- I don't want to make it into a fact finding procedure, but there are some elements that I know. I know from your arguments that this was a -- a negotiation in which both sides participated, LIUNA and the government and there was a settled agreement. There was an agreement. I know that there have been some hearings. I also know that there are allegations whether or not this particular complaint is factual or not and there's -- everybody seems to agree that there have been some changes in -- in -- or there's some difference in what the -- the government then alleged. So what I'm saying is I don't want to get into some great big fact finding, but those few facts that I think I know and no one will disagree to that part anyway that this was a -- a negotiating agreement, this was the opening salvo,

there certainly have been some changes since the1994 complaint and there's been a lot of litigationdisciplinary and otherwise out there.

MR. GUTMAN: Let me make one related point to that that Mr. Geoghegan misstated several times. He said this was the document that led to the changes and that is not accurate. What is accurate is the threat of a RICO suit in light of the history of this union and the mob problems then existing in the union led to the union to agree to make these changes and led to the settlement with the government, but it wasn't any particular and each of the allegations in this complaint. So, for example, some of the allegations, for example, how Mr. Cola took office, we believe would be easily disproven, yet those are the most relevant to this election. It wasn't that allegation that brought about this he -- the agreement, it was the existing organized crime problem and the union's recognition and determination that they were as determined as the government to resolve it and to take care of it that led to the agreement. So it -- it is far too glossy and misses the relevant point to say well, this is what they had in hand when they led to the

entire reform. What they had is that the government was unhappy with the organized crime problem and so were they and they reached an agreement to avoid a consent judgment to avoid a consent decree that the union would clean itself up, but that doesn't mean that each of the allegations in here were the thing that led to it.In fact, the allegations about Mr. Cola having been endorsed for the presidency, we believe and we've seen the evidence now, would not have stood up and that allegation yet is the one that is the reason that this is the most relevant in the mind of Mr. Geoghegan and in our mind, the most unfair.

MR. VAIRA: Okay.

MR. GUTMAN: Similarly, the government had no obligation at the time to show all of its allegations against Mr. Caruso. At the time he wasn't in the International, so those would be equally relevant if we had them available, but the government doesn't make that stuff available. So what we have now is a one sided document that's been disproven and it doesn't become relevant because certain of the allegations were in a document that led until the talks started.

MR. VAIRA: Okay. I don't think

there's anything about Mr. Caruso here. I don't think he's on trial, but -- okay.

MR. GEOGHEGAN: Mr. Vaira, this is Tom Geoghegan.

MR. VAIRA: Yes, sir, Mr.Geoghegan.

MR. GEOGHEGAN: I just want to state for the record. Number one, despite Mr. Gutman's argument to the contrary, we have never based this decision in any way on the "truthfulness of the document involved". He wants to frame the debate on that basis. We reject that argument as utterly irrelevant.

MR. VAIRA: I think you've made that point. I think you've said that it was not for you -

MR. GEOGHEGAN: This document has been important and it has an arguable importance to destroying the consent judgment and the other changes made. We -- not to mention the other issues involved. The one thing that I would say to sort of sum up from the election officer's point of view and I hope we're near-the end of this -

MR. VAIRA: Yes.

MR. GEOGHEGAN: -- is Mr.

Bearse's statement, which I found constructive, that the union recognizes the right to an informed vote and that had this document not been made available otherwise, it would have been, at least as I understand, Mr. Bearse, within our authority to require its release. I don't think that the circulation of this document in the congressional record officiates the obligation and the principle that's here, but the union does have a duty to disclose it. I -- I -- and I finally want to, you know, assert again this is not a case where we're interested in having the union's resources used to circulate this or to do anything, but we want the union fully compensated for whatever effort it takes to distribute this document. This is, even with the circulation of the congressional record, it is relatively easier for the members to obtain it through the union, their union, and it is a way of bringing home the point that Mr. Bearse acknowledges, to his credit, I think, to the members that this is their union and the union is not afraid of the RICO draft complaint. It resulted, it has faced up to it, here it is, you can see how it entered into our decision making and I think that Mr. Bearse and Luskin both recognize

that this did enter into the union's decision making in a very important way whether it is the only document is besides the point.

MR. GUTMAN: The point was whether all the allegations -- go ahead.

MR. GEOGHEGAN: Whether all the allegations are true in it or not is irrelevant.

MR. GUTMAN: Whether all the allegations entered into the union's decision making is the question and yet all the allegations -

MR. VAIRA: Slow down, gentlemen. I have a court reporter here who -- who can't follow you.

MR. GUTMAN: You are parsing it out because it isn't the part about the dead gangsters that this is being offered for. There's a lot of dead gangsters in the 212 pages that this is being -- that are in here. That's not the relevant part. The only part that has to do with anything about the election coming up is the mention of one of the candidates and that is the part particularly that we've now talked about so, in fact, you -- you are, in fact, focusing on that part and that is not the part at all that led to

the union saying oh, no, we need to reach an agreement. It was the organized crime problem that led Mr. Coia and the board to say we want to rid it, not the allegations against Mr. Coia that he must be a gangster because he succeeded to the presidency. That part he knew he'd have to address by agreeing to this in his opening -

MR. VAIRA: Does this -- does this movement change this into campaign material?

MR. McGOUGH: No, it doesn't. Can I address Mr. Gutman -- can I speak on behalf of the rank and file? The reason we want this released is so we can make an intelligent informed decision on how to vote on the rank and file referendum before us. It is not fair for Mr. Gutman to impute the motives for the government. The government will speak for itself. When it gave this draft complaint, it was their best belief and it caused structural changes to the union's constitution. It caused internal reform.

MR. VAIRA: It's not their best, but, Mr. McGough, it says this is subject to change. The letter -- the letter that Mr. Coffee said it is subject to change and it's -- it's -it's an opening salvo. None of -- none of us will

disagree with that.

MR. McGOUGH: Okay. But it caused subsequent changes within the union. The threat of a RICO complaint was considered an emergency -- an urgency so on January 18th, you elect these amendments.

MR. GUTMAN: The threat of a complaint, but not each of the allegations.

MR. McGOUGH: The thing is -I want the members to be informed.

MR. VAIRA: Okay. All right.-Gentlemen, now let me -- let me go on.

MR. KRAVIT: I'd like the opportunity to speak on behalf Mr. Caruso.

MR. VAIRA: No, Mr. Kravit, Mr. Caruso is -- is not -- he didn't move to do anything about this. He didn't seek to get it. You've been invited to listen. You are to report back to him, but we move on. I'm sorry.

MR. KRAVIT: Mr. Vaira, I'm sorry, but I think you're violating -

MR. VAIRA: Denied. Denied. Move on. I'm sorry, sir. I'm sorry. There's only so many persons on -- on these election appeals and you were invited to listen in as an interested

party, but Mr. -- Mr. Caruso is not a party to this appeal.

MR. KRAVIT: Well, for the record, I want to register my protest.

MR. VAIRA: It's registered.

MR. KRAVIT: I believe, I'm looking right at the rules -

MR. VAIRA: It's registered, sir. Now let's move on. Gentlemen, anything else you have before me this afternoon?

MR. BEARSE: Peter, yeah, this is Michael Bearse. ~

MR. VAIRA: Yes, sir.

MR. BEARSE: I'd like to make my own closing comment and I will be very brief. Two things, in terms of my allusion to the fact that this material is otherwise publicly available I think that is relevant because I think in the context of fiduciary responsibility, one of the relevant considerations that's thrown into the balance, into the weight of how the factors play out, is -- is the information that's being contested over solely within the control and custody of one party or is it generally available in other ways and obviously we have the latter

situation, not the former, which, to me militates again the need or desirability particularly, given the nature of what we're dealing with, to have it put in The Laborer.

MR. VAIRA: Mr. Bearse, if you sent this out -- if I said okay, tomorrow you send this out, must you -- will you send it out in a LIUNA envelope with the eagle or whatever it is on -- on the cover?

MR. BEARSE: Well, what I understand is that the -- what we would have to do if we were to comply with the election officer's order would be to post a notice in The Laborer magazine saying anyone who wants it can request it, has to pay for the cost of copies and to send it out -

MR. VAIRA: I -- I, Peter Vaira, member write in for it; how would you send it to me, would you put the LIUNA logo on the envelope?

MR. BEARSE: Yeah, it would be sent out obviously on official LIUNA stationary.

MR. VAIRA: Okay. With the LIUNA. Okay. So in parting, what?

MR. BEARSE: In parting I think a certain imprimatur of -- of -- of sponsorship or

authenticity or -- or genuineness or in the union may be perceived to be vouching for what you're getting. I -- I think there is an imprimatur of authority there because it does come as an official union document in LIUNA.

MR. VAIRA: I recall this year I ruled against a -- a union official who sent out an advertisement and he was standing in front of the union logo with the eagle and everything back there and I -- and remember the election officer and I both threw out that particular piece of literature. Does that -

MR. BEARSE: I'd just like to make very briefly in terms of Mr. McGough's concerns on the referendum question and I'm not really clear in my mind why this draft complaint at least in his way of thinking is related to an informed decision on the referendum, but in any event, just for the record, and I will say this as -- as being a participant in the conversation, there was a heated dispute and is a heated -- it was a heated dispute. It probably would have

continued between LIUNA and the government about whether there was an agreement or not to have rank and file election as part of the internal reform

process and indeed the way that dispute was resolved was by a subsequent negotiation wherein the referendum method was agreed to. It wasn't the draft complaint that dictated that result. That happened much, much later in the process and that -- that was not

MR. McGOUGH: Mr. Bearse, I agree with you and the reasons the government wanted the direct rank and file is explained in the RICO complaint.

MR. VAIRA: Okay. Gentleman,

I -- I -- I've got that. We don't need to go into this discourse. Gentlemen, I think we have -

MR. GUTMAN Let me make one more point so there is no confusion later. I'd just like to say -

MR. VAIRA: Okay. I'll go down -- go around. Everybody gets one more minute, understand.

MR. GUTMAN: This is not -- this is not on the substance. In case there's any confusion whatsoever, as a personal matter, I have nothing but the utmost respect for Mr. Geoghegan's financial honesty and integrity whatsoever. I chose a foremost hypothetical to put the shoe on

the other foot for purposes of seeing how a hypothetical offered by him would work on the other foot, but there should be no view that that expresses at all my opinion on reality. Other than using it as a hypothetical, I have nothing but the -- personally but the utmost respect for his financial honesty and integrity.

MR. VAIRA: You and I both and he has argued before me a lot of times as you can tell from your -- our first comments here. He's been on this microphone more than anybody else here in --in this room. Okay. Gentlemen, move on.

MR. GEOGHEGAN: That's why I came back.

MR. VAIRA: You've got a minute if you want to throw anything else in.

MR. GEOGHEGAN: Only that I --I -- I would ask from the independent hearing officer not to construct a; decision that is going to have us in the election office weighing the truth, falsity, context of information. It is a note of Professor Goldberg impossible to go around and make the fine determinations as to whether this particular document states everything in the right amount of context. All that we can do without

reaching over into paternalism and censorship and other areas that we shouldn't be involved in is to say here's the document that is arguably relevant. Quote John Milton in the Aeoerapaditica (ph.) it's arguably relevant to an informed vote, it's out there, the members ought to be able to take a look at it, judge it for themselves, let the debate go on.

MR. VAIRA: All right. Gentlemen, I will tell you that it's now 20 to 4:00 here in the East. You'll have a decision from me tomorrow morning roughly by 10:00 in the morning. Gentlemen, thank you very much and I know it's been

a long afternoon. I appreciate your attention and at sometime in the future, we will -- we will see each other again.

_ _ _

(Whereupon the hearing concluded at 3:40 p.m.)

C E R T I F I C A T E

COMMONWEALTH OF PENNSYLVANIA:

COUNTY OF PHILADELPHIA

I, Colleen J. Sears,. Court Reporter-Notary Public within and for Philadelphia County, Commonwealth of Pennsylvania, do hereby certify that the foregoing hearing was taken before me at Vaira, Backstrom & Riley, 1600 Market Street, Suite 2650, Philadelphia, Pennsylvania on Thursday, October 24, 1996; that the foregoing testimony was taken by me in shorthand by myself and reduced to typing under my direction and control, that the foregoing pages contain a true and correct transcription of all of the testimony of said witness.

COLLEEN J. SEARS

NOTARY PUBLIC OF NEW JERSEY

MY COMMISSION EXPIRES NOV. 19, 1998

s/COLLEEN J. 'SEARS
Notary Public

My Commission expires November 19, 1998