In the Matter of Before the

ROME ALOISE INDEPENDENT REVIEW OFFICER

OPINION OF THE INDEPENDENT REVIEW OFFICER

October 24, 2017

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 TABLE OF CONTENTS

I. Introduction .................................................................................................................................1

II. Procedural History......................................................................................................................3

III. Findings of Fact ........................................................................................................................5

A. Aloises Background ................................................................................................5

B. The Super Bowl Party Admissions for William C. Smith .......................................6

C. Aloises Efforts to Help Mark Covey Get a Job ......................................................9

1. Gillig ............................................................................................................9

2. SWS ...........................................................................................................11

D. GrandFund and Charles Bertucios Membership in Local 853 .............................14

1. Background ................................................................................................14

2. The 2004 CBA ...........................................................................................15

3. The 2007 CBA ...........................................................................................17

4. The 2012 CBA ...........................................................................................18

5. The 2015 CBA ...........................................................................................18

6. Bertucios Membership in the Union .........................................................19

E. The 2013 Local 601 Election .................................................................................20

1. Background ................................................................................................20

2. Aloises Support for the Alvarado Campaign ............................................21

a. Aloises Creation of Campaign Leaflets for Alvarado ..................21

b. Aloises Letter of Support for Alvarado ........................................22

c. The October Disciplinary Hearing .................................................22

d. The October 9th Letter ....................................................................23

e. The Kenneth Absalom Letter .........................................................24

f. Attacking Pimentels Campaign Manager .....................................25

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 3. The Election Protest Hearings ...................................................................27

4. Alvarados Failure to Comply with IBT Directives ..................................27

IV. Legal Conclusions ..................................................................................................................30

A. Standard of Proof ...................................................................................................30

B. Aloise Improperly Solicited and Accepted Things of Value .................................31

1. The Law .....................................................................................................31

2. Discussion ..................................................................................................34

a. Aloise Requested and Received Free Super Bowl Party

Admissions Through SWS .............................................................34

b. Aloise Requested and Accepted Employment for His

Cousin Mark Covey .......................................................................36

C. The GrandFund Collective Bargaining Agreements were Sham Contracts ..........38

1. The Law .....................................................................................................39

2. Discussion ..................................................................................................40

D. Aloise Engaged in Reproachful Conduct in Connection with the 2013

Local 601 Election .................................................................................................44

1. The Law .....................................................................................................44

a. The IBT Constitution and Local Bylaws .......................................44

b. The LMRDA ..................................................................................46

i. Section 401.........................................................................46

ii. Section 501.........................................................................47

iii. Section 101(a)(5) ...............................................................49

iv. Section 101(a)(2) ...............................................................50

v. Section 101(a)(4) ...............................................................51

2. Discussion ..................................................................................................52

a. Aloise Used Union Resources to Support Alvarado ......................52

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 b. Aloises Involvement in the Hearing Panel and Election
Protest ............................................................................................56

i. The LMRDA Guarantee of a Fair Hearing ........................56

ii. The IBT Constitutional Prohibition ...................................58

c. Aloises Role in Alvarados Failure to Modify the Locals

Sabbatical Policy............................................................................59

V. Conclusion ...............................................................................................................................60

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 I. INTRODUCTION

On February 10, 2016, the Independent Review Board (IRB) issued its investigative

report (the Charge Report) on Rome Aloise to the International Brotherhood of Teamsters

(IBT) General Executive Board (GEB) recommending that three charges be filed against

Aloise (the Charges). 1

Charge One alleges that Aloise brought reproach upon the IBT, violated the Taft Hartley

Act, 29 U.S.C. 186(b), engaged in acts of racketeering and violated the injunction in paragraph

E(10) of the Consent Order, by requesting and receiving things of value from IBT employers in

violation of Article II, Section 2(a) and Article XIX, Section 7(b)(2), (11) and (13) of the IBT

Constitution. In particular, the IRB alleged that, in 2013, while an International Vice President,

President of Joint Council 7 and Principal Officer of Local 853, Aloise requested and received

things of value from Southern Wine and Spirits, an employer of Teamster members with whom

Aloise was negotiating. The alleged things of value were six admissions to a Playboy Super Bowl

party for another Teamster official and his family and friends, a job for Aloises cousin, and the

retention of his cousin in his job after the employer determined he (the cousin) was not performing

as required. In addition, in February and March 2013, Aloise allegedly requested a thing of value,

a job for the same cousin, from Gillig Corporation, a Teamster employer.

Charge Two alleges that Aloise brought reproach upon the IBT, violated Article XII,

section 1(b) and Article XIV, Section 3 of the IBT Constitution and Article IV, Section 6 and

Article XVIII, Section 6 of the Local 853 Bylaws in violation of Article II, Section 2(a) and Article

XIX, Section 7(b)(1) and (2) of the IBT constitution. Specifically, Count Two alleges that, in 2004

1
A disc of that investigative report with cover letter and exhibit list are labeled Independent
Disciplinary Office Exhibits 1 and 1A, and a separate disc containing the associated exhibits is
labeled Exhibit 1B. (Hereinafter, all IDO exhibits will be identified as IDO-[number]).

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and subsequent years, while Principal Officer of Local 853, Aloise entered into collusive, sham

collective bargaining agreements with an employer, the Grand Fund LLC (GrandFund). Mr.

Aloise allegedly allowed the employer to select the bargaining agent for his employees and caused

Local 853 to commit an unfair labor practice in violation of 29 U.S.C. 158(b)(1)(a) by interfering

with the employees right to select their representative. In addition, Aloise failed to follow IBT

constitutional and Local 853 Bylaw requirements regarding contract negotiations and

ratifications. Further, in 2012, Aloise allegedly allowed an ineligible person to obtain and retain

membership in Local 853, in violation of Article XIV, Section 3 of the IBT constitution.

Lastly, Charge Three alleges that Aloise brought reproach upon the IBT through a pattern

of misconduct in connection with the Local 601 officer election that included: violating the

prohibition against using union resources to promote a candidate in a union election, in violation

of Title 29, United States Code, Section 481(g); breaching his fiduciary duties under Title 29,

United States Code, Section 501(a); attempting to interfere with members LMRDA rights under

Title 29, United States Code, Section 411(a)(2), (4) and (5); and violating Article XIX, Sections

1(a) and 7(b)(10) of the IBT Constitution; all in violation of the IBT Constitution, Article II,

Section 2(a) and Article XIX, Section 7(b)(1), (2) and (10). Specifically, the IRB alleges that, in

2013, while an International Vice President, and Principal Officer of both Joint Council 7 and

Local 853, Aloise engaged in a pattern of misconduct designed to prevent a fair officer election in

Local 601, including by using union resources to support a candidate and subvert her opponents

and attempting to deny members LMRDA rights to free speech, to sue and to fair hearings. In

addition, Aloise allegedly breached his fiduciary duties by ignoring, when known to him, his

chosen candidates wrongdoing and also by failing to act to end her known defiance of the General

Secretarys instructions concerning her locals sabbatical policy. By failing to ensure the internal

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political rights of IBT members to a fair election, Aloise is also alleged to have breached his

fiduciary duties under Title 29, United States Code, Section 501(a).

Under the Final Agreement and Order (the Final Order), approved on February 17, 2015,

in United States v. International Brotherhood of Teamsters, et al., 88 Civ. 4486 (LAP), the matter

was transferred to the jurisdiction of the Independent Disciplinary Officers (IDO).

II. PROCEDURAL HISTORY

On February 23, 2016, General President James P. Hoffa (hereinafter, the General

President) adopted and filed the Charges against Aloise. (IDO-2). The IBT initially noticed a

panel hearing for April 26, 2016. (IDO-3). Following an extension request by the IBT (IDO-4),

the then-Independent Review Officer (IRO), Benjamin Civiletti, set a new deadline of July 17,

2016 for the IBT to make a determination on the Charges. (IDO-5). On April 7, 2016, the IBT

noticed a new hearing date of June 6, 2016. (IDO-6).

By letter dated May 24, 2016, Viet Dinh, Esq., counsel for the IBT, informed the

Independent Investigations Officer (IIO) that Aloises counsel had been advised by the

Department of Justice (DOJ) that Aloise was the target of an investigation relating to the same

conduct implicated in the IIOs charges and, therefore, the IBT intended to seek a stay of the

hearing until after the DOJ completed its investigation. (IDO-7). Mr. Civiletti denied any further

extension of the IBTs deadline to adjudicate the Charges for failure to show just cause. (IDO-8).

On June 3, 2016, Mr. Dinh notified Mr. Civiletti that DOJs investigation necessitated an indefinite

extension of the hearing on Aloises charges and that, therefore, the IBT had suspended the hearing

previously scheduled to begin on June 6, 2016. (IDO-9). In response to the IBTs decision to

suspend the hearing, Mr. Civiletti requested a reply within 20 days as to whether or not the IBT

would proceed with a hearing on the charges and render a decision prior to the September 15, 2016

deadline, indicating that if the IBT chose not to hold a hearing, the IRO would convene a de novo

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hearing and render a decision. (IDO-10). On August 5, 2016, Mr. Dinh advised that the IBT

would not hold a hearing and referred the matter back to the IRO for adjudication. (IDO-11). The

IRO issued a notice for an October 11, 2016 hearing. (IDO-12).

On September 15, 2016, counsel for Aloise submitted a letter to Mr. Civiletti stating that

he would be soon be undergoing surgery and would not be able to attend the scheduled hearing in

October but would be available in January 2017. (IDO 14). On October 6, 2016, the IDO issued

notice of postponement of the hearing. (IDO-15). On October 11, 2016, Mr. Civiletti tendered his

resignation as IRO to the Honorable Loretta A. Preska, United States District Judge for the

Southern District of New York. (IDO-16).

On December 16, 2016, Judge Preska approved the joint application by the IBT and the

United States Attorneys Office to appoint me as the IRO. On January 11, 2017, I advised Aloise

that the de novo hearing would be held on March 14, 2017. Aloise submitted a letter motion

requesting that the hearing again be adjourned until the completion of DOJs investigation. (IDO-

23). See supra p. 3. On February 21, 2017, I denied the request and ordered that the hearing

proceed as scheduled. (IDO-25). On March 10, 2017, in response to a notice from the IIO that

he intended to call Aloise as a witness at the hearing, Aloises counsel requested an adjournment

of the hearing in order to have additional time to prepare Mr. Aloise to testify. (IDO-26). I denied

Aloises requested adjournment but granted him two additional days to prepare for the hearing.

(Id.).

The de novo hearing was held on March 14 and 16, 2017, at the Sheraton Fishermans

Wharf, in San Francisco, California. Mr. Aloise testified in his own defense. Pamela McKenna,

Vice President of Human Resources and Labor Relations at Gillig LLC; Dennis Howard, President

and CEO of Gillig LLC; and Lawrence Yoswa, Principal Officer of Local 792 and President of

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Joint Council 32, were all called to testify on Aloises behalf. Aloise was also called as the sole

witness by the IIOs lead investigator, Charles Carberry, who conducted the hearing for the IIO.

In addition to his direct examination of Aloise on his own case, Mr. Carberry cross-examined him

on the defense case. (March 2017 Hearing Transcript (Hearing Tr. or Tr.)).

Following the conclusion of the hearing in this action, and after careful, complete

consideration of the testimony of the above-listed witnesses, the exhibits, and the parties post-

hearing submissions, I now make the following findings of fact and conclusions of law.

III. FINDINGS OF FACT

A. Aloises Background

Rome Aloise is a fifty-year veteran of the IBT. (Hearing Tr. at 124). He began his IBT

career as a member at the age of 16. (Id.). He landed his first position as an IBT employee in

1975. (Id. at 125). In addition to holding many IBT jobs over the years, Aloise has served in

numerous leadership roles in his local and throughout the IBT for decades. (Id. at 125-35). At the

time of the hearing, Aloises impressive array of positions in the IBT included: (i) principal officer

of Local 853, the largest local in Northern California with a total of approximately 11,500 members

(id. at 126; 244-45); (ii) president of IBT Joint Council 7 (id. at 127-28); vice president at-large

for the GEB (id. at 130); director of the Dairy Conference (id. at 131); director of the Food

Processing Division (id. at 132); trustee and chairman of the investment committee for the Western

Conference of Teamsters Pension fund (id. at 133-34); trustee for the Teamsters Benefit Trust (id.

at 134); a trustee for the Voluntary Employee Benefits Fund (id.); board member for the IBT

401(k) plan (id. at 134-35); and executive vice president for the California Labor Federation, a

non-Teamster labor organization (id.).

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B. The Super Bowl Party Admissions for William C. Smith

In late January 2013, William C. Smith, the Executive Assistant to General President Hoffa

and the President of Local 891 (Ex. 1 at 7), received tickets to the upcoming Super Bowl in New

Orleans. (Tr. 181). Smith had asked Aloise to assist him in gaining access to a liquor industry

party held before the Super Bowl. (Tr. 187-88). Smith did not know the name of the party at the

time of his request to Aloise. (Id.; Ex. 84). By January 30, 2013, just a few days before the Super

Bowl, Aloise was still working on identifying the party and obtaining access for Smith. (Ex. 84).

At the same time that Aloise was trying to fulfill Smiths request for access to a liquor

industry party at the Super Bowl, Aloise was helping IBT Local 792, located in Minneapolis,

Minnesota, in contract negotiations with Southern Wine and Spirits (SWS), a large nationwide

liquor distributor and significant Teamsters employer. (Tr. at 37, 168-69; Ex. 1 at 87-88). Local

792 had rejected a previous contract proposal from SWS in October 2012. (Tr. at 37, 266-67; Ex.

195 at 1). At the request of SWS, on January 30th, Aloise joined Local 792s principal officer,

Lawrence (Larry) Yoswa, to negotiate on behalf of the union. (Tr. at 267-79). Aloise had

approximately thirty-five years of experience negotiating with SWS. (Tr. 168). Aloise spent the

day of the 30th hammering out a deal with SWS for the Local. (Tr. 184-85). Simultaneously, he

was working through SWSs outside counsel, Stuart Korshak, to procure admissions to a party for

Smith. (Tr. 186). In an e-mail dated January 30, 2013, Korshak wrote to the President and CEO

of SWS, Wayne Chaplin, and described the days negotiations with Local 792. (Ex. 78). In

addition to praising Aloise for his contribution to the negotiations, Korshak passed along Aloises

solicitation of assistance in procuring access to a liquor industry party at the Super Bowl for an

associate of General President Hoffa. (Id.; Tr. at 186). The e-mail from Korshak to Chaplin, which

Korshak forwarded to Aloise the same day, states,

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 Rome has lead [sic] the negotiations for the [Local] all day and caucused with
Yoswa several times when he was balking at a rationale [sic] deal. We will get a
good deal done tonight. When you talk to Rome about Washington and California
legislation, you should thank him for his assistance on Minnesota. It would have
continued to be a mess without him. . . . Also, Rome wants to get six tickets for
Hoffas team to the liquor industrys party at the Super Bowl this weekend. Can
SWS help?

(Ex. 78). Chaplin did not know the name of the liquor industry party, so he asked Korshak for

more information. (Id.; Tr. at 187). Korshak sought assistance from Aloise to identify the party,

which Korshak suggested could be the Playboy Party Presented by Crown Royal (the Super Bowl

Party or Party). (Ex. 82). After some research by Korshak and Smith, it was ultimately

determined that the Playboy Party was the one that Smith wanted to attend. (Tr. at 188; Exs. 87,

89, 90).

The next day, January 31, 2013, in an e-mail, Korshak identified the party for Chaplin and

reiterated that Aloise would like to get one of Hoffas key guys 6 passes or tickets to [the Super

Bowl Party]. His name is WC Smith. I told [Aloise] you would try to help. (Ex. 87). Diageo,

the producer of Crown Royal, was a sponsor of the Party. SWS is a distributor of Diageo products.

A SWS employee forwarded Korshaks e-mail to Chaplin to Mark Hubler of Diageo seeking

assistance. (Id. (See below, can you help me with this? Happy to pay. Thanks.)). Shortly

thereafter, Hubler confirmed that he could provide access to the Party for six people under Smiths

name but that he needed the name of all of Smiths guests, per Playboys rules. (Id.). Korshak

forwarded the e-mails with Hubler to Aloise. (Id.). Korshak also forwarded an e-mail to Aloise

between him (Korshak), Chaplin and others at SWS, in which Korshak advised Chaplin, I told

[Aloise] you are working on getting Hoffas guy the passes for tomorrow nights Super Bowl Party

in New Orleans. He said to thank you. (Ex. 88).

By the evening of January 31, 2013, Aloise was assured that he had obtained access to the

Super Bowl Party for Smith. (Ex. 90). In an e-mail to Smith, Aloise advised Smith of such and

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highlighted the role that SWS played in procuring the admissions to the Party from Diageo. (Id.).

Aloise wrote,

The owner of Southern Wine and Spirits made the call to Diageo who owns Crown
Royal, and there will be six tickets under your name. I should have the confirmation
tomorrow. All those bunnies, Nancy will have you in handcuffs!!!!

(Id.). Smith replied, Your [sic] the best . . . . . Thanks. (Id.). During the afternoon of February

1, 2013, the day of the Party, Aloise forwarded an e-mail chain to Smith to confirm that the

admissions were indeed lined up. (Ex. 92 (Read all the way down. You should be set. Any

problems call the person on the bottom of the email string. Have fun!!)). The e-mail chain

includes e-mails between Chaplin of SWS and Hubler of Diageo. (Id.). In one e-mail in the chain,

Hubler offered Chaplin the assistance and phone number of Diageos GM of TX/LA in the event

that there were any issues with Smiths access to the Party, to which Chaplin responded, Mark

thanks for your help very much appreciated. (Id.).

The Super Bowl Party was a private, invite-only event hosted by Playboy and sponsored

by Diageo and others. (Exs. 373 at 9-10; 387 at 2). According to a Playboy representative, the

company spent approximately $400,000 to $500,000 to produce the event. (Ex. 373 at 12). And

sponsors, like Diageo (through Crown Royal), paid a sponsorship fee, which allowed them both

naming rights and a set number of admissions to the Party. (Ex. 373 at 8, 12-13). Admissions to

the Party could be obtained primarily through the sponsors. (Ex. 373 at 16-17). In addition,

Playboy sold admissions, both individual tickets and tables, to a ticket broker that could sell them

on the secondary market. (Exs. 379, 381, 382, 383; 373 at 15-16). The ticket broker, National

Event Co. (NECO), paid approximately $1,000 per admission for 100 admissions. (Ex. 373 at

15-16). McIlhenny Tabasco, one of the Partys sponsors, also paid $1,000 per admission for those

admissions above the amount allotted to it through its sponsorship. (Ex. 377).

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 Smith, his wife, and two of his friends attended the Playboy Party on the night of February

1, 2013. About a week later, Aloise wrote to Chaplin to thank him (and his father, the SWS

Chairman) for getting the Playboy Party admissions for Smith. (Ex. 332 (I am remiss in not

thanking you and your dad for the passes into the Super Bowl party. Hoffas Ex Asst and his

friends loved it.)).

C. Aloises Efforts to Help Mark Covey Get a Job

Mark Covey is Aloises cousin. (Tr. 161). Covey is also a Teamster. (Id.). As described

by Aloise, Covey, who is in his late 50s, is mentally challenged and has little formal

education. (Id.). In around late 2012, Covey lost his job with Caterpillar, a union employer that

closed the facility in which Covey worked. (Id.). After losing his job, Covey turned to Aloise for

assistance getting employment. (Id. at 162).

1. Gillig

Gillig LLC is a union employer that manufactures buses. (Tr. 89; Ex. 174 at 7). Gillig

employs hundreds of members of Local 853. (Tr. at 89). In 2013, the Local 853 business agent

for Gillig was Bo Morgan. (Ex. 5 at 37). In 2012, Gillig took over the facility from Caterpillar

where Covey had worked. (Ex. 107). On February 25, 2013, Aloise sent an e-mail to Pamela

McKenna, Gilligs Director of Human Resources and Labor Relations, asking her to hire Covey.

(Ex. 98). The subject of the e-mail was Mark Covey. (Id.). Aloise wrote,

Mark is my cousin who worked at Caterpillar parts warehouse prior to you guys
taking over. He is a bit backward but is a good snd [sic] constant worker. He filled
out an app today and I would consider it a personal favor if you can find him
something. Even the janitor starting intro job would be wonderful.

(Id.). Two days later, Aloise forwarded McKenna an e-mail he received from Covey in which

Covey expressed concern that Gillig did not have an open position for his skillset. (Ex. 108).

McKenna replied. (Id.). She informed Aloise that Covey was in a group of applicants who would

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be interviewed for a position with the company, although there were no janitorial positions open

at the time. (Id.). Aloise wrote her back: Thanks, always need someone to sweep whatever, I

appreciate all you are doing. (Id.).

Gillig interviewed Covey. (Tr. at 103; Ex. 117). The company decided not to hire him.

According to McKenna, the interviewers did not believe that Covey would be a good assembler,

the job that was available at the time. (Tr. at 104). On March 20, 2013, McKenna informed Aloise

of the companys decision. (Ex. 109). Aloise was not pleased. He wrote to McKenna to try to

persuade her to give Covey further consideration. He implored McKenna,

Over the years I have asked for very few favors. Can you push this around a little
and give him some considerstion [sic]. Maybe get some dispensation from the top.
He is never going to be a disciplinary problem and will be there everyday [sic]

(Ex. 109). In McKennas eyes, Aloise was just asking her to help [him] out a little bit, like a lot

of other people might do. (Tr. 105-06).

Aloise was upset that Gillig had rejected his cousin. (Tr. at 164). He contacted Bo Morgan,

Local 853 vice president and the business manager for Gillig. (Ex. 106). Via e-mail, Aloise

advised Morgan that Gillig had rejected a job application from Covey after an interview and that

he was pissed at [McKenna] . . . Fuck [Gillig] from now on, they get no favors, everything gets

taken on, and she can go fuck herself. (Id.). In closing, Aloise reiterated to Morgan what he had

previously written to McKenna, he was asking McKenna for a favor in hiring Covey: I very

seldom lower myself to ask for a favor, but that is how I asked her . . . . (Id.). After Morgan

offered to assist Aloise by asking McKenna to revisit Coveys application or grovel a bit,

Aloise wrote, [f]uck [McKenna], I have a long memory. (Id.). Even without an explicit request

from Aloise, Morgan called McKenna. (Ex. 5 at 44). He told her that by rejecting Coveys job

application she had angered Aloise. (Id.). McKenna responded that she did not do so intentionally.

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(Id.). Gillig has strict hiring procedures that Covey could not surmount. (Id.). No further steps

were taken by Aloise or anyone else at Local 853 with respect to Gillig. (Tr. 108).

2. SWS

On March 22, 2013, two days after Aloise learned that he had failed in his initial attempt

to land Covey a position at Gillig, Aloise contacted Robert Strelo, one of Local 853s business

agents for SWS (Ex. 6 at 6, 13), to seek Strelos assistance on Coveys behalf. (Ex. 114). A few

weeks later, on April 8, Covey updated Aloise on the SWS situation; there were no jobs in the

warehouse listed on the SWS on-line system and Strelo had not yet contacted him. (Ex. 118).

Aloise again contacted Strelo to find out if Strelo had talked to anyone at SWS about Coveys

interest in a job. (Ex. 111). Strelo apprised Aloise that he had indeed contacted Tom Passantino,

who was in the human relations department at SWS, about Covey. (Ex. 116). Aloise requested

that Strelo tell [Passantino] to hire the little sob [sic], as a janitor in the [warehouse] whatever.

(Id.).

In early May, Covey checked in with Aloise to let him know that there had been no progress

on SWS. (Ex. 121). Aloise forwarded the e-mail to Strelo. (Id.). Strelo committed to reaching

out to SWS via Tom Steeno, SWSs Vice President of Operations, and Passantino. (Id.). By May

13, 2013, Covey had been to SWS three times, but there was no job opening. (Ex. 123). Aloise

grew impatient at the lack of progress. (Tr. at 205). According to SWS policy, Covey could not

apply for a job until a vacancy was posted on the SWS website. (Ex. 123). Strelo reported to

Aloise that he complained to SWSs Steeno to get Covey an interview, which was successful

despite a policy of conducting interviews only after a position is available. (Id.). Internally at

SWS, Coveys ties to Aloise were noted. (Ex. 129). Passantino urged his colleagues to keep on

top of the Covey situation because if Mr. Covey somehow is overlooked Im certain that [Aloise]

will not be amused. (Id.).

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 As Aloise began his push for Covey at SWS, he was involved in negotiations with SWS

on a number of issues, including over the staffing of a new supply center in Tracy, California and

the organizing of direct sales delivery (DSD) salespeople. (Tr. 193-200; Ex. 1 at 95-97; Ex.

110; Ex. 112; Ex. 120; Ex. N42). The very people sitting across the table from Aloise in the

negotiations were the individuals he sought help from for Covey. On May 14, 2013, Rick Krakoff,

an attorney for SWS, wrote to Aloise about an upcoming meeting the next day between Local 853

and SWS and Youngs Market Company (YMC) in connection with the unions efforts to

organize the DSD salespeople. (Tr. at 207-09; Ex. 124). Krakoff notified Aloise that Tom Steeno

was expected to attend for SWS. (Ex. 124). Aloise replied, If Steeno doesnt hire mark covey I

might now show up; i.e., Aloise would have to talk to Steeno in person if nothing was done to

advance Coveys job search by the time of the meeting. (Ex. 124; Tr. 209-10). Krakoff answered

that he had just talked to Steeno and that Steeno represented that he was working with Bob Strelo

on getting Covey a job at SWS. (Id.). Aloise again expressed his frustration that there was no

progress on Covey. (Tr. at 210-11; Ex. 126). To which Krakoff assured Aloise that there was

movement at SWS. (Ex. 126). The daytime janitor (a swamper) position had been posted, which

would go to the current nighttime janitor, thus, opening up the nighttime janitor position for Covey

to apply. (Id.). Krakoff believed that the open position should go to Covey. (Id.). As he had

warned, (see above), Aloise attended the meeting with Steeno on May 15. (Ex. 127).

The SWS nighttime janitor position became available on May 17 th. (Ex. 128). By May

20th, SWS determined that there were no internal union applicants for the nighttime janitor

position, so the position would be posted for the general public. (Ex. 129). The CBA that governed

the relationship between the union and SWS permitted SWS to consider applicants nominated by

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Local 853 as well as nonunion members. (Ex. 115 at Art. 2, Sec. 1). 2 SWSs Passantino invited

Covey to go to SWS to submit his application. (Ex. 128). SWS kept Aloise in the loop regarding

the advancement of Coveys application. (Ex. 129; 131). SWS hired Covey on June 10, 2013.

(Ex. 103; Tr. at 213-14).

Aloise understood the value of a job at SWS. (See Ex. 103 (Keep that job until you

retire.); Ex. 135). Covey, however, nearly lost the job before his probationary period was

complete. (Tr. at 214-17).3 SWS was concerned that Covey could not handle the responsibilities.

(Id.; Ex. 102). This was not an ordinary union member struggling to keep up with the demands of

a new job -- this was Aloises relative. When a colleague asked Steeno to advise on how best to

handle Covey, Steeno forwarded the message to SWSs outside lawyers, Korshak and Krakoff.

(Ex. 102). He wrote, This is Romes relative that he gave me so much crap about hiring. Lots

[sic] of pressure on both Strelo and me to get it done. Any suggestions? (Id.). Korshak forwarded

Steenos message to Aloise. (Id.). He asked Aloise What do you want me to do? (Id.). Aloise

preferred that SWS retain Covey despite his apparent shortcomings. (Id.). SWS did as Aloise

wanted. (Tr. at 217; Ex. 347 (Tom [Passantino] will make sure the guy [Covey] keeps working

for SWS . . . .)). Strelo, in an e-mail with the subject Cousin Mark, informed Aloise that he

and Steeno came to an agreement that as long as [Covey] isnt lazy . . . then Steeno can live with

it! (Ex. 136). Aloise, for his part, gave Covey a pep talk (You need to work harder and get the

2
The CBA between SWS and the Union states, in pertinent part,
Article 2 - Union Security
Article 2, Section 1. Hiring
2.1.1 When new or additional employees are needed, the Employer shall notify the Union having
jurisdiction of the number and classification of the employees needed. Said Union shall have forty-
eight (48) hours to nominate applicants for such jobs.
2.1.2 The Employer shall choose between any nominees of the Union and any other applicants on
the basis of their respective qualifications for the job. No applicant will be preferred or
discriminated against because of membership or nonmembership in the Union. The Employer
agrees to notify the Union promptly of all employees leaving its employment.
3
Covey was subject to firing without recourse during the probationary period. (Ex. 115 at Art. 5, Sec. 3.1).

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#5569313.1
jobs done faster and more completely), and reminded him that Coveys failure would reflect

poorly on him (Aloise). (Ex. 193 (Step up and get it done. I dont need ypu [sic] to embarrass

me.)).

D. GrandFund and Charles Bertucios Membership in Local 853

1. Background

GrandFund is an intermediary that connects service providers in the healthcare and pension

sectors with union funds. (Tr. at 140). The companys principal and sole owner is Charles

Bertucio. (Id.; Ex. 2 at 6). Bertucio and Aloise have known each other for over thirty years. (Tr.

at 140; Ex. P at 196).4 They are not particularly close (friendly acquaintances), but they socialize

on occasion and they have spent time together at union-related events. (Tr. at 141-43; Ex. P at

196). For instance, both were on the Executive Committee of the James R. Hoffa Memorial

Scholarship Fund (the Hoffa Fund) (Ex. 1 at 33; Ex. 2 at 24-25). Bertucio has also maintained

personal relationships with other union leaders, including General President Hoffa and his

Executive Assistant, William C. Smith. (Ex. 2 at 28-32). Bertucio participated in an annual golf

trip with IBT leaders such as Hoffa and Smith. (Id.). Aloise did not join them.

Bertucio founded GrandFund in 1989. (Ex. P at 140-41). He sold his 100% ownership

stake in the company to Ullico in 2001. (Id. at 141). In late 2003, Bertucio reacquired GrandFund.

(Tr. 145). Edward Logue worked for Bertucio in the early days at GrandFund and rejoined the

company in early 2004 as a full-time W-2 employee. (Ex. P at 150; Tr. 144-45). Logue was a

three-time cancer survivor who was interested in joining the IBT in order to secure health benefits.

(Ex. 2 at 19 (Logue told Bertucio of his interest in joining the union); Ex. P at 151-52). He was

also a friend of Aloise. (Tr. at 144). Aloise and Logue had worked together when Logue was a

4
Lettered exhibits refer to the exhibits submitted on behalf of Aloise at the de novo hearing.

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#5569313.1
representative of the machinist union. (Id.; Ex. 1 at 57). After returning to GrandFund, Logue

sought out Aloise for advice on how to secure health and welfare benefits. (Id. at 145; Ex. 1 at

57). The two men discussed what would go into a collective bargaining agreement in response to

Logues concerns. (Id.; Ex. 1 at 59). At the time, GrandFund had only two employees, Logue and

Lisa Ramsey, Bertucios sister. (Id. at 146). Ramsey started working at GrandFund on March 1,

2004. (Ex. P at 117-18; Ex. 4 at 5-6; Ex. 36). Vicky Lanini, a third employee, joined soon after.

(Ex. P at 47). Lanini already had medical insurance when she was hired for GrandFund; primary

through her previous employer and secondary through her husband. (Id. at 52). Upon joining

GrandFund and the union, Lanini received her medical insurance through them. (Id. at 52-53).

Aloise has been the sole business agent for GrandFund for the entirety of its relationship

with the union. (Ex. 1 at 56-63; Ex. 34; Ex. 174 at 4). Logue was the initial shop steward. (Tr. at

151). Logue died in 2006. (Ex. P at 163). Thereafter, Lanini became shop steward. (Tr. at 151).

2. The 2004 CBA

Aloise negotiated the initial GrandFund collective bargaining agreement (CBA) with

Bertucio (with input from Logue) in early 2004. (Tr. at 147-48). Aloise was not present for a

vote by the two GrandFund employees to approve the proposed CBA. (Id. at 148). On March 4,

2004, Aloise signed a subscribers agreement resulting in health coverage, among other benefits,

for Bertucio and the GrandFund employees through the Teamsters Benefit Trust (TBT). (Ex.

27 at 4; Exs. 41-43). The CBA was executed on March 8, 2004, with Aloise signing on behalf of

the union and Bertucio as the employer. (Ex. 27). The same day, Aloise and Bertucio finalized

the Application and Subscribers Agreement for the Teamster Benefit Trust and supplemental

applications for the TBTs Retirement Security and 401(k) Plans. (Exs. 41-43). Ramsey and

Logue signed their union authorization cards on March 24, 2014. (Exs. 36, 37). Lanini began

working at GrandFund on May 3, 2004, and joined the union on May 19, 2004. (Ex. 38). There

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#5569313.1
was little internal discussion about the initial contract amongst the employees at GrandFund before

it was approved. Logue told Ramsey about the CBA, and Ramsey simply said okay. (Ex. P at

132). At no time did Ramsey discuss the CBA with Aloise. (Id. at 132-33).

The 2004 CBA contained basic protections and benefits for the GrandFund employees.

(Ex. 27; Tr. at 149). In addition to minimum wage guarantees, overtime pay, sick leave, a vacation

accrual system, and a grievance procedure, employees received health and welfare benefits

through a Teamsters Benefit Trust Plan and a pension through the Supplemental Income 401k Plan

Trust Fund. (Ex. 27). In particular, sales representatives were guaranteed a monthly base salary

of $5,000.00, with the opportunity to earn commissions, the amount of which was left [t]o be

determined. (Id. at 4, Art. 11). There was only one sales representative, Lanini. Clerical

employees were to be paid an hourly rate of $20, which was to increase $1 per year for the life of

the CBA. (Id.). There was only one clerical employee, Ramsey, who was not aware that her salary

was controlled by the terms of the CBA. (Ex. P at 123-24). In addition to her salary, Ramsey was

paid a discretionary bonus not reflected in the CBA. (Id.).

The health and welfare benefits, which also included life insurance, a dental plan,

orthodontia coverage, vision care benefits, and prescription drug benefits, were to be supported by

monthly contributions from GrandFund of $675.00 per employee. (Ex. 27 at 4, Art. 8). Although

the CBA provided for employee and employer contributions to a 401(k) plan, the employers

contribution amount was not determined until 2005. (Id. at 5, Art. 12; Exs. C, D).

Pursuant to the subscribers agreement on the TBT application, Bertucio, even as a non-

collectively bargained employee was covered as a supervisor. (Ex. 41; Ex. P at 165-67).

Accordingly, Bertucio received the same health benefits under the CBA as his employees. (Id.).

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#5569313.1
 3. The 2007 CBA

The GrandFunds second CBA was executed in 2007. (Ex. 28). There is scant evidence

of how the negotiations were conducted or who took part in them. In general, Aloise would

negotiate with Bertucio based on the opinions voiced by GrandFunds employees regarding what

changes they would like to see in the contract. (Tr. at 155). He had no specific recollection of

meeting with any employees before his negotiation with Bertucio. Ramsey, one of two GrandFund

employees at the time, was aware that a new CBA was coming up, but left it to Lanini, the shop

steward, to review the CBA to determine what, if any, changes would be requested. (Ex. P at 108,

132). Ramsey simply told Lanini that whatever she (Lanini) thought was good would be fine with

Ramsey. (Id. at 111-12). Lanini had no recollection of the contract negotiations. (Id. at 59-60).

The new CBA was nearly identical in form and substance to the previous contract except

that employer contribution amounts to the health and welfare fund were increased and the pension

contribution was defined to match the supplemental agreement between Aloise and Bertucio from

2005. (Ex. 28 at 4-5). In addition, the clerical employee salary rate contained in the 2007 CBA

inexplicably reduced Ramseys salary. (Id.). Whereas the 2004 CBA provided for Ramsey to

receive $22 per hour in 2006, the new CBA granted her a $20 per hour salary in 2007, to go up $1

per year through 2011. (Id.). Ramsey did not notice the mistake when she reviewed the 2007

CBA. (Ex. P at 109-10, 127). The apparent error eluded Lanini as well. (Id. at 60-61).5

Ultimately, Ramsey was not paid according to the 2007 CBA. (Id. at 122-130). Laninis sales

commission rate was left [t]o be determined. (Ex. 28 at 4).

5
Bertucio maintains that the decreased salary number was merely a typographical error. (Ex. P at 164 (its just
something that I didnt watch . . . . I just didnt look at it closely, just assuming that it was going to up a dollar a
year.).

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#5569313.1
 4. The 2012 CBA

When it came time to renew the CBA for 2012, Aloise notified Lanini that a new contract

needed to be negotiated. (Ex. P at 61-62). Lanini set up a meeting with Aloise and Bertucio. (Id.

at 62). The meeting with Bertucio, Aloise and Lanini took place over lunch. (Ex. P at 63, 171).

There was some discussion about the new CBA and what they were having for lunch. (Id. at 63).

Following the lunch meeting, Lanini and Ramsey also met over lunch at a restaurant to review the

new CBA. (Ex. P at 65-68; Ex. 3 at 12-13). Ramsey was fine with the contract despite the fact

that her hourly rate was based on the erroneously lower rate set in the prior contract. (Id.; Ex. 29

at 5, Art. 11; Ex. 28). Other than an address change for Bertucio, the contract remained

substantially unchanged. (Ex. 29). The sales commission calculation continued to be left out of

the contract. (Ex. 29 at 4, Art. 11). Aloise had never before negotiated for Local 853 members

with commission based employees that failed to set a rate for commission payments. (Ex. 1 at

60).6

5. The 2015 CBA

In advance of the expiration of the 2012 CBA, on December 20, 2014, Aloise e-mailed

Bertucio to advise him that negotiations over the new contract were needed. Aloise wrote, We

need to meet to renew your contract, have actual negotiations and a vote, signed into by all people

covered by the contract, or I have to disclaim interest. Lets talk during the week. (Ex. 55).

Aloise sent the e-mail after having read an IRB opinion involving an improper contract. (Ex. 1

at 63). The IRB opinion motivated him to follow the directives of the IRB regarding the proper

procedures for a CBA renewal.

6
The IIO points out that in Laninis initial testimony, in 2016, she said that she did not know how her commission
payments were determined. (Ex. 3 at 10-12). When it came time to testify before the IBT panel in the Bertucio
matter, however, Lanini had no trouble explaining the commission rate she was paid at GrandFund. (Ex. P at 69,
92-93). Whether Laninis newfound knowledge of her commission rate was genuine or not, the CBA was silent on
the issue in 2004, 2007, and 2012, and left to the sole discretion of Bertucio.

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#5569313.1
 At no point during Ramseys union membership did she ever talk to anyone at Local 853

(other than clerical staff regarding dues payments), including Aloise, the business agent for

GrandFund. (Exs. 4 at 10; P at 131-33).

6. Bertucios Membership in the Union

In around early 2012, following a health and welfare audit of GrandFund, Bertucio received

a telephone call from an auditor or a lawyer who advised him that if he wanted to maintain his

benefits he would have to join the union. (Ex. 2 at 20-21). 7 Although Bertucio could have obtained

health insurance on the open market at a comparable rate to what he had been receiving through

the union, he insisted that the continuity and convenience of dealing with only one insurance

company (as opposed to two if he had the companys insurance and his own separate insurance)

was of value to him. (Ex. P at 168-69).8 At the time, Bertucio described himself as the president

of GrandFund. (Exs. 30, 58).

Bertucio then put the wheels in motion to join Local 853. On March 5, 2012, Lanini

contacted Aloise via e-mail with the news that Bertucio was possibly going to join the local. (Ex.

63). Laninis wrote, We have a couple of changes to the contract, if necessary??? The name is

now Corp instead of LLC and the company address has changed. Also, Im not sure if Charlie

was joining us, as a member of 853, did he tell you?? I can ask him if need be. Who do I need to

send these changes to??? (Id.). Although Aloise responded to Laninis e-mail, he did not address

the possibility of Bertucios membership. (Id. (Me or Jennifer)). About a month later, Bertucio,

7
Bertucio suggested that his change in status at GrandFund to an employee by virtue of the company changing from
an LLC to an S corporation may have prompted the call from the auditor. (Ex. 2 at 21; Ex. P at 167-68).
8
Bertucio has also claimed that private health insurance would not necessarily have been more expansive than the
group coverage he received through the union. (Ex. P at 170). There is nothing in the record to confirm or
contradict this claim.

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#5569313.1
through his sister, sought advice from Lanini and Aloise on the appropriateness of joining the

union. (Ex. N22). Ramsey wrote to Lanini,

Charlie asked me to follow up with you that the contract with Local 853 and the
GrandFund has been done? Also he again wants me to confirm with you and Rome
that it is O.K. with him joining the union. I filled out his application but he asked
me to check with you one more time before I mail it.

(Ex. N22).9 Lanini confirmed that it was acceptable for Bertucio to join the union. She also

indicated that she had spoken to Aloise about Bertucios membership application. Laninis e-mail

to Ramsey states, Yes, you are fine to put Charlie in the Teamsters. Rome did say there is an

initiation fee. . . . (Id.).10

Bertucios membership application was received by the union on or about April 19, 2012.

(Ex. 30). He paid his initial fee on or about May 11, 2012. (Id. at 5). Aloise maintains that he

was not aware that Bertucio joined the union until 2015, when Aloise called Bertucio because he

had learned that Bertucio received a deposition subpoena from the IIOs chief investigator. (Tr.

at 158-59). I find it more likely than not that Aloise was aware that Bertucio was joining the union

in 2012. As reflected in Laninis e-mail above, Aloise was consulted on Bertucios membership

in 2012, (Ex. 63), and he advised Lanini that Bertucio would have to pay an initiation fee (Ex.

N22).

E. The 2013 Local 601 Election

1. Background

Local 610 is located in Stockton, California. It is part of Joint Council 7. Aloise had been

the president of Joint Council 7 since 2009, and was during the relevant time period. (Tr. 128). In

9
Ramsey similarly testified before the IBT Panel in the Bertucio hearing that, [Bertucio] got the papers to fill out
and sign, and he had asked me to check with Vickie to check with [Aloise] to make sure it was okay for him to join
before I turned the papers in for him. (Ex. P at 112).
10
During her testimony before the IBT Panel in the Bertucio matter, Lanini could not recall whether she actually
spoke to Aloise or a middleman, possibly Aloises assistant, Jeanine. (Ex. P at 71-72).

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#5569313.1
December 2013, following November nomination meetings, Local 601 held an officer election.

(Exs. 202, 203). Ashley Alvarado was running for re-election as the Locals principal officer.

(Exs. 200, 205, CCC). She ran against two opposition slates, one led by Rolando Pimentel and the

other by Juanlucio Reyes. (Exs. 212, 213). Reyess father had been the Secretary-Treasurer of

the Local prior to Alvarados victory in 2010. (Ex. 288). Ultimately, Alvarado prevailed in the

2013 election.

2. Aloises Support for the Alvarado Campaign

In early 2013, Aloise made his support for Alvarado, the incumbent, clear in an e-mail to

John Hailstone, a former Local 948 business agent. (Ex. 205). Aloise wrote:

Rumor has it that you or someone that is being advised by you are planning to
become involved in the Local 601 election. I hope that is not true . . . . 948 is open
season, I understand that, but I dont want any interference in Local 601.

(Id.). When May came around and Aloise learned from Alvarado that Hailstone had not heeded

his warning, Aloise again contacted Hailstone to express his displeasure. (Ex. 200). Aloise did

not mince words: Let me make it clear anyone who runs against [Alvarado] is running against

me and I will treat them accordingly from now on and forever. (Id.). Aloise used his Teamsters

e-mail account for both communications.

a. Aloises Creation of Campaign Leaflets for Alvarado

In August 2013, again using his union e-mail account, Aloise communicated with Alvarado

to discuss her campaign. In particular, he created a promotional leaflet (on the union system) and

proposed that Alvarado use it to attack and destroy one of her rivals, Reyes. (Exs. 206, 207).

The draft leaflets that Aloise created were made using a union computer. (Ex. 1 at 142-43; Ex.

213). He further provided advice on how and where to distribute the leaflets. (Exs. 207, 323). In

early November, as the election grew closer, Aloise continued to provide counsel via his union e-

mail on the most effective way to distribute misinformation to neutralize both of Alvarados rivals.

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#5569313.1
(Exs. 211, 212, 213). Around the same time, Aloise asked a vendor to design literature for

Alvarados campaign. (Exs. 218, 220). An associate of the vendor communicated with Aloise,

over his union e-mail account, on design suggestions. (Exs. 216-17, 221, 223, 224-31). The

vendors creations were apparently never distributed in the campaign, nor was the vendor paid.

(Ex. 1 at 144).

b. Aloises Letter of Support for Alvarado

In October 2013, in response to a request by Alvarado and her campaign manager, Aloise

penned a letter of support for Alvarado on IBT letterhead, which he signed as International Vice

President. (Exs. 349-51; Tr. at 225-26). In relevant part, the letter stated,

Unfortunately, the leadership at Local 601 prior to you let many companies run
away from the Union contracts and allowed many workers to be exploited and
abused by the bosses. You have dedicated yourself and the Local to put an end to
these abuses, and also to help those workers who need the Union in their workplace.
This takes real leadership, which you have exhibited since you were
overwhelmingly elected by the membership of Local 601. I look forward to
working with you and your staff in the future to bring success to our program, which
without your help and dedication, would not be in existence now.

(Ex. 349).

c. The October Disciplinary Hearing

Pimentel and Salas filed a disciplinary complaint with Joint Council 7 against Alvarado

and others in the leadership of Local 601 in late June 2013. (Ex. 258). A Joint Council panel was

constituted to hear the charges in July, but Pimentel and Salas withdrew their complaint. (Exs.

258, 282 at 15-16, 287 at 2, 315). When they refiled charges in September 2013 (Ex. 259), Aloise

changed the panels composition. (Ex. 278 at 6-7; Tr. at 226-27). 11 The original panel that Aloise

chose for the July 2013 hearing consisted of Carlos Borba, Dave Hawley, and Vic Shada, Jr. (Ex.

11
The charges Pimentel and Salas filed were as follows: (1) Alvarado; Ted Parmentier, Local 601 President; and
Alberto Zamora, Trustee violated the IBT Constitution and Local Bylaws by paying business agents and other staff
wages never discussed with or approved by the executive board or the general membership, and (2) Alvarado
brought reproach on the union by knowingly associating with a convicted felon. (Ex. 278 at 7).

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#5569313.1
287). For the October 8th panel, Aloise replaced Borba with Sam Rosas. (Ex. 260). Aloise and

Rosas had previously engaged in a number of communications regarding their support for and

involvement in Alvarados campaign (Exs. 207, 311, 312, 314). Before appointing Rosas to the

panel, on September 16, Aloise forwarded Rosas an e-mail containing the refiled charges. (Ex.

313). Aloise advised Rosas, Keep this to yourself, but lets talk about it. (Id.). On October 11th,

the panel determined that Alvarado had not committed the alleged offenses. (Ex. 267). Aloise

approved the panels decision the same day. (Id.). The Joint Council approved the panels decision

during a Joint Council Executive Board meeting on October 29, 2013. (Ex. 268 at 8).

d. The October 9th Letter

After the panel disciplinary hearing was concluded, Alvarado and an attorney for Joint

Council 7, John Provost, complained to Aloise that Pimentel had attempted to take photographs of

Alvarado during the hearing. (Tr. at 227). The next day, by e-mail, Alvarado complained to Aloise

that her election opponents, including Pimentel, were using a doctored and unflattering photograph

of her from the Unity Conference (not the disciplinary hearing) in their campaign materials. 12 (Ex.

269).

Aloise sprang into action. After receiving a draft of a letter from Provost, (Tr. at 228),

Aloise instructed a Joint Council employee to put the letter on Joint Council letterhead. (Ex. 273).

In substance, the letter warned Pimentel and Zacharias Salas, a member of Pimentels slate, that

12
Alvarados e-mail to Aloise stated,
Salas, Pimentel and Reyes are handing out the same leaflet in all the plants that are still running. A
leaflet in which they used a picture of me at the Unity Conference and phot shop my hand to appear
like I am giving the bird. They are so low class! Juanlucio started distributing the leaflets first and
about two days later Salas and Pimentel starting distributing them too. Some of my members have
approach [sic] me to let me know that they know it is not my hand. Last night at Eckert Cold Storage
Escalon, a member came and said could they not find a skinny hand like yours? they use a fat
hand that looks fake, we know your hands are small and thin. They are idiots and people dont like
that. This is what he said and I am glad people are smarter than that. Thank you Rome.
(Ex. 269).

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#5569313.1
they could be in violation of an unidentified Joint Council rule that prohibits the taking of

photographs at Joint Council hearings. (Ex. 273; Ex. 1 at 137). The letter warned,

I have been informed that one or both of you took pictures of Ashley Alvarado and
Alberto Zamora during yesterdays hearing on your charges against them. I do not
have first-hand knowledge of whether you did so or not but I am writing to advise
you that the Joint Council absolutely prohibits the taking of pictures during its
hearings.

If any pictures of anyone in attendance at the hearing should surface I am going to

hold both of you accountable. That would be a chargeable offense and appropriate
charges against you under the IBT Constitution would be brought. If you did not
take any pictures, thats fine. But if you did, I suggest you destroy them rather than
risk them being published at some point, whether by your action or otherwise.

(Id.). As instructed, the letter was put on Joint Council 7 letterhead, signed by Aloise as Joint

Council President, and distributed to Pimentel and Salas. (Exs. 257, 271). The Joint Council does

not have a rule prohibiting the taking of photographs during its hearings. (Tr. at 229). The IBT

Constitution does prohibit disruptive conduct at union proceedings. (Tr. at 230).

e. The Kenneth Absalom Letter

On October 22, 2013, the Pimentel and Salas slate filed a defamation lawsuit against

Joaquin Ramirez, a member of Local 601, for allegedly disseminating pro-Alvarado leaflets that

contained accusations that Pimentel and Salas were convicted felons. (Ex. 240). Pimentel and

Salas were represented in the case by an attorney named Kenneth Absalom. (Id.; Tr. at 233).

Ramirez was represented by the Beeson Firm. 13 (Exs. 241, 242). Absalom was a labor attorney

who Aloise viewed as working for the opposition to Alvarado; namely the Pimentel slate. (Tr. at

233). On Aloises behalf, an attorney at the Beeson firm drafted a letter for distribution to the

principal officers within Joint Council 7 advising them not to work with Absalom. (Ex. 237; Tr.

234). The letter stated, in pertinent part,

13
The Beeson firm also represented Joint Council 7 throughout 2013. (Ex. 282)

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#5569313.1
 Kenneth Absalom, an attorney from San Francisco, recently filed a lawsuit against
a Teamster who supports the reelection of Ashley Alvarado, Secretary-Treasurer of
Teamsters Local 601. In my opinion, this lawsuit appears politically motivated and
calculated to chill Teamster members from getting involved in their Local Union
election. . . . If your Local Union currently retains Kenneth Absalom as legal
counsel, you may want to consider another Union side law firm.

(Ex. 237). Aloise signed the letter and had it distributed on Joint Council letterhead on November

5, 2013 (the November 5th Letter). (Exs. 198; 239). November 6, 2013 was the start of the

Local 601 nominations meetings. (Ex. 202). Alvarado, Reyes, and Pimentel were nominated to

run for Secretary-Treasurer. (Id.).

Aloises intention in sending the November 5th Letter was expressed in an e-mail he sent

to attorney David Rosenfeld. (Exs. 201; 237). Aloise wrote to Rosenfeld, This guy [Absalom]

is definitely tied into Lucio Reyes and Hailstone who have formed this unholy alliance to remove

[Alvarado] from 601 . . . and take things back over. This will happen over my dead body. (Ex.

201).

f. Attacking Pimentels Campaign Manager

A few days later, on November 12, 2013, shortly before ballots were to be distributed for

the December election (ex. 252), Robert Bonsall, an attorney at the Beeson firm, e-mailed Aloise

about Joseph Romero, Pimentels campaign manager. (Ex. 236). Bonsall laid out for Aloise two

options for attacking Romero as a means to damage Pimentels campaign. (Id.). Option one

involved filing a complaint against Romero with the Department of Labor for providing free

services to the Pimentel campaign despite being a union employer. (Id.). Bonsall suggested that

this option would be better left to after the election in the event that Alvarado lost. (Id.). The

second option would involve Aloise or Barry Broad (see below), contacting politicians for whom

Romero worked to express to the politicians their great displeasure that someone from [the

politicians] staff was getting deeply involved in the politics of a Local Union within [the

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#5569313.1
politicians] jurisdiction . . . . (Id.). According to Bonsall, the second option could result in the

politicians (Romeros presumed employers) putting pressure on Romero to disclose valuable

information to Alvarado about who was supporting the Pimentel and Reyes slates at [a] very

critical time in the campaign. (Id.).

Aloise, using his Teamster e-mail, forwarded Bonsalls e-mail to Barry Broad and Doug

Bloch. (Id.). Broad was the legislative representative for a Teamsters state lobbying organization,

the California Teamsters Public Affairs Council (CTPAC). 14 (Ex. 254; Tr. at 240). Bloch was

the political coordinator for Joint Council 7. (Tr. at 240). Aloise requested that Bloch and Broad,

check this out and if [Romero] is in fact working for these people [the politicians].
I want them to have an earful and let them know that this will be a problem for them
now and in the future. Let me know what you find out. [Romero] is doing the
work for the person running against Ashley Alvarado.

(Ex. 236). Aloise was upset that the politicians might allow one of their staff members to

interfere in an election of a Local Union affiliated with the Joint Council. (Ex. 184 at 32).

Aloise himself contacted one of the politicians believed to be employing Romero,

Congressman John Garamendi. (Id.; Tr. at 240-41). The congressman informed Aloise that

Romero had been nothing more than a campaign volunteer. (Ex. 263). Before Broad contacted

State Senator Lois Wolk, Aloise reminded him that he (Aloise) take[s] this extremely personal

and [the State Senator] should know that [Romero] will have some [Department of Labor] issues

over this that can drag her into it if she is paying him. (Id.). Broad contacted Wolk and learned

that Romero did not work for her either. (Ex. 184 at 32.).

14
CTPAC was supported through two California Joint Councils, 7 and 42, by a per capita tax paid from members
dues. (Ex. 255). Aloise is one of the Co-Chairs of its Executive Committee. (Id.).

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 3. The Election Protest Hearings

Following Alvarados election victory, Pimentel, Reyes, and Salas filed protests with the

Joint Council. (Exs. 316, 317).15 On February 13, 2014, the protests were heard by a panel that

Aloise selected and which was composed of Dave Hawley, Carlos Borba, and Jim Tobin. (Ex.

330 at 6; 319 at 2). On June 4, 2014, the hearing panel concluded that the protests were without

merit. (Ex. 319 at 8). The Joint Council Executive Board, which included Aloise and Sam Rosas,

approved the hearing panels decision the same day. (Ex. 318 at 7).

4. Alvarados Failure to Comply with IBT Directives

The IBT conducted an audit of Local 601 in 2011. (Ex. 306). The audit covered the period

November 1, 2008 through December 31, 2010. (Id.). Alvarado was the principal officer for the

Local during the audit, but not during the period audited. One of the results of the audit was a

finding that the Locals sabbatical policy was convoluted and lacked specificity. (Id. at 8). The

auditor instructed the Local to review its sabbatical policy and adopt a specific policy taking into

consideration the IBT Constitution and the Locals contract with the California Processors that

was intended to be the basis for the policy in the first place. (Id.). In addition, the auditor requested

15
Pimentels protest letter contained the following charges: (1) the Local declined to conduct the election during the
peak food processing season when most members would be present to vote, as opposed to December when many
of the members are away because the food processing work of the Locals members is seasonal; (2) Alvarado and
her supporters picked up ballots from members, filled out ballots of members, and offered money or turkeys to
members who voted for her slate through a raffle, participation in which was limited to members who produced
evidence that they had cast ballots for Alvarados slate; and (3) Alvarados slate improperly obtained addresses and
telephone numbers of members by using the access she and her supporters had to such information because of her
position as the Locals principal officer, all of which was not disclosed to or shared with other candidates. (Ex.
316). Reyess protest letter, in sum and substance, alleged that Alvarado and her supporters: (1) offered tickets to a
raffle for $1,000 in exchange for votes; (2) improperly obtained and used members contact information; (3)
campaigned at an employers property where other slates members were not permitted to enter; (4) gave out turkeys
in exchange for votes; (5) intimidated a member to vote for Alvarado; (6) tampered with ballots; and (7)
manipulated rules and procedures for ballot counting to benefit Alvarado. (Ex. 317).

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#5569313.1
that the Local list accrued vacation and sabbatical as an obligation on the Trustees Report. (Id.

at Schedule D-1).

By October 2011, the auditors instructions had not been followed. (Ex. 294). A letter

from the General Secretary-Treasurer of the IBT, dated October 24, 2011, set forth a list of the

auditors directives and noted that the Local had fallen short of fulfilling its obligations to enact

remedial responsive measures. (Id.). Having received no response from Local 601 by January

2012, the General Secretary-Treasurer again wrote to Alvarado seeking an update on the auditors

recommendations. (Ex. 295). Finally, on January 24, 2012, Alvarado responded. (Ex. 296). In

her letter to the General Secretary-Treasurer, Alvarado claimed that the Local Union is in the

process of reviewing its sabbatical leave plan which should be completed within the next sixty

(60) days. (Id.). She further contended that the Locals Monthly Trustee Reports would include

all accrued leave obligations, both vacation and sabbatical, on its books. (Id.).

Nonetheless, as of March 2013, none of what Alvarado claimed that the Local would do to

comply with the auditors recommendations had been completed. (Ex. 297). On March 1, 2013,

prompted by Alvarados inaction, the General Secretary-Treasurer again requested an update on

the Locals action items with respect to the sabbatical policy and related accounting. (Id. [A]s

of the January 2013 Trustees Report . . . the Local still has not made the necessary adjustments to

reflect the obligation and the Special Fund.)). Two months later, the General Secretary-Treasurer

wrote to Alvarado to advise her that he had not yet received a response to his March 1, 2013 letter.

(Ex. 298). He demanded an immediate response. (Id.).

In the summer of 2013, Alvarado received advice from attorney Bonsall at the Beeson law

firm on how to deal with her belated response to the auditor. (Ex. 299). In a June 24, 2013 e-mail,

Bonsall instructed Alvarado on steps she could take to fulfill two of the auditors directives: (i)

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#5569313.1
establish a Special Fund account and (ii) include the sabbatical and vacation obligations in the

monthly Trustee Report. (Id.). As to the need to revise the Locals sabbatical policy, Bonsall

noted that the best route would be to eliminate it altogether. (Id.) In Bonsalls view, total

elimination would make the most sense because a policy that covers all of her staff would not be

sustainable, but drafting one that covers only select individuals would be difficult. (Id.). He

suggested that Alvarado wait to address the sabbatical policy until after the December 2013

election because it would create[] a political problem for her in an election year. (Id.). To do

this, he advised her to move on the Special Funds and Trustee Report issues but to delay (again)

on the sabbatical policy. (Id.) Finally, Bonsall suggested that Alvarado confer with Aloise. (Id.).

Alvarado forwarded Bonsalls e-mail to Aloise. (Id.). She wrote, I cannot make any

changes to the Sabbatical leave right now because as I explained to Bob, it could be a political

issue with my EB, and in general. (Id.). She further asked Aloise to talk to the General Secretary-

Treasurer on her behalf to help her delay changes to the Sabbatical policy until after the election

so that [she does not] have to deal with the political risk? (Id.). Aloise agreed to talk to the

General Secretary-Treasurer on her behalf. (Id. (Yes I will do it.)). At the time, Aloise was not

aware for how long Alvarado had been delaying implementation of a new Sabbatical policy. (Tr.

at 254). On July 2, 2013, Bonsall forwarded his earlier e-mail to Alvarado to prompt an update.

(Ex. 307). Alvarado again turned to Aloise. She forwarded Bonsalls latest e-mail to Aloise and

asked him if he had talked to the General Secretary-Treasurer regarding giving [her] some time

to make the changes regarding Sabbatical after the election as I feel this may be an issue for a

couple of people on my board. (Id.).

Aloise met with the General Secretary-Treasurer about a week later. (Tr. at 255). He has

no memory, however, of talking to the General Secretary-Treasurer about Alvarados failure to

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follow through on her commitment. (Tr. at 255-56). On September 5, 2013, Alvarado sent the

General Secretary-Treasurer a status report summarizing the Locals progress on the pending

issues. (Ex. 302). She followed Bonsalls advice from June. (Id.; Ex. 299). She represented that

the Local was still reviewing and evaluating its sabbatical policy and was hopeful of completing

[the] process and implementing a revised . . . plan by January 1, 2014. (Ex. 302). The General

Secretary-Treasurer sent no additional reminders or inquiries until September 25, 2015, following

another audit that covered the period from January 1, 2011 through May 2015. (Ex. 303). The

Locals sabbatical policy still had not been revised. (Id.). After one more letter from the General

Secretary-Treasurer, on November 2, 2015, (ex. 304), Alvarado replied to say that, amongst other

things, a new policy, which would eliminate sabbatical leave for all employees, would be in place

by December 31, 2015. (Ex. 305).

IV. LEGAL CONCLUSIONS

A. Standard of Proof

In order to uphold the charges against Aloise, I must find that they are supported by a

preponderance of reliable evidence. See Rules Governing the Authorities of Independent

Disciplinary Officers and the Conduct of Hearings (hereinafter, The Rules), at Para. C; see also

United States v. IBT [Simpson], 931 F. Supp. 1074, 1089 (S.D.N.Y. 1996), affd, 130 F.3d 341 (2d

Cir. 1997). The reliable evidence can include both direct and circumstantial evidence, as well as

hearsay. See The Rules at paragraph L (all evidence and testimony offered at the hearing may be

accepted . . . to be weighed post-hearing in light of the hearing testimony and post-hearing

submissions). See also United States v. IBT [Adelstein], 998 F.2d 120 (2d Cir. 1993); United

States v. IBT [Wilson, Dickens, and Weber], 978 F.2d 68, 72 (2d Cir. 1992).

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B. Aloise Improperly Solicited and Accepted Things of Value

In 2013, Aloise improperly requested Super Bowl Party admissions from an IBT employer,

SWS, for the Executive Assistant to the General President while in the midst of negotiations with

SWS over the Local 792 contract. He then compounded this offense by asking Gillig, another IBT

employer, to do him a favor by hiring his out-of-work Teamster cousin, Mark Covey. When Gillig

rejected Covey, Aloise turned back to SWS for help at a time when he was negotiating with the

company on two fronts in California. These actions jeopardized the integrity of the unions

collective bargaining process and supposed arms-length negotiations with employers.

1. The Law

The Labor Management Relations Act (LMRA or Taft-Hartley Act) prohibits labor

union officials from requesting, demanding, receiving or accepting a thing of value from a union

employer. 29 U.S.C. 186(b) ([i]t shall be unlawful for any person to request, demand . . . or

accept . . . any payment . . . or thing of value). Similarly, the IBT Constitution prohibits

[a]ccepting money or other things of value from any employer or any agent of an employer, in

violation of applicable law. IBT Const., Art. XIX, 7(b)(13). As a general proposition, the

purpose of the Taft-Hartley Act was to combat corruption in unions. See, e.g., United States v.

Cody, 722 F.2d 1052, 1057 (2d Cir. 1983). The amendments to the Act, as expressed in the Labor

Management Reporting and Disclosure Act (LMRDA or Landrum-Griffin Act), evidenced

Congresss view that labor officials were to serve as fiduciaries to their members. (Id.).

To establish a violation of Section 186, the preponderance of the reliable evidence must

show that: (1) Aloise was an officer of a labor organization; (2) Aloise directly or indirectly

requested, demanded, received, accepted, or agreed to accept, delivery of a thing of value; (3) the

employer who was requested to deliver or who did deliver the thing of value employed individuals

who were members of a labor organization of which Aloise was an officer; (4) the employer was

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in an industry affecting interstate commerce; and (5) Aloise acted knowingly and willfully. See,

2-51, Modern Federal Jury Instruction Criminal, 51.02 (Matthew Bender). As a general intent

crime, to establish willfulness under Section 186, the IIO need only prove that Aloise intended to

do the act in question and intended the reasonable and probable consequences of that act. See

United States v. Georgopoulos, 149 F.3d 169, 172 (2d Cir. 1998); United States v. Francis, 164

F.3d 120, 12122 (2d Cir. 1999) (In the case of general-intent crimes, the government need prove

only that the defendant intended to do the act in question and intended the reasonable and probable

consequences of that act. The government would not need to prove that the defendant intended to

violate the law or bring about some specific result.) (citations omitted). Moreover, there is no

need to demonstrate that Aloise acted with a corrupt purpose to find a violation of the statute. See

United States. v. IBT (Perrucci), 965 F. Supp. 493, 499 (S.D.N.Y. 1997) (citing United States v.

Ricciardi, 357 F.2d 91, 99 (2d Cir.), cert. denied, 384 U.S. 942 (1966)); United States v. Pecora,

484 F.2d 1289, 1294 (3d Cir. 1973) (rejecting need to demonstrate corrupt purpose for violation

of Section 186(b)).

A violation of Section 186 is also a listed act of racketeering under Title 18, United States

Code, 1961(1), which equates to a violation of Article XIX, Section 7(b)(11) of the IBT

Constitution and paragraph E(10) of the Consent Order. See 18 U.S.C. 1961(1)(C) (defining

racketeering activity as any act which is indictable under Title 29, United States Code, Section

186); IBT Const., Art. XIX, 7(b)(11) (defining basis for charge against a member as

[c]ommitting any act of racketeering activity as defined by applicable law.); Consent Order,

E(10) (permanently enjoining IBT members from committing acts of racketeering). Article XIX,

Section 7(b)(2) of the IBT Constitution prohibits violations of the oath of loyalty to the Local

Union and the IBT. See IBT Const., Art. XIX, 7(b)(2). Finally, the IBT Constitution requires

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#5569313.1
each member to conduct himself in such a way as to avoid bringing reproach upon the Union. See

IBT Const., Art. II, 2(a).

A thing of value under the relevant statutes and rules can have both an objective and

subjective connotation. See United States v. Roth, 333 F.2d 450, 453 (2d Cir. 1964) (Value is

usually set by the desire to have the thing and depends upon the individual and the

circumstances.); United States v. IBT (Perrucci), 965 F. Supp. 493 (S.D.N.Y. 1997) (finding

alleged worthless boat to be thing of value in light of recipients conduct evidencing value he

placed in boat). This follows from courts consistent broad reading of the term thing of value

under bribery and associated statutes. See Roth, 333 F.2d at 453 (Congress gave the broadest

possible scope to the statute by adding to the word money the words or other things of value);

United States v. Williams, 705 F.2d 603, 605 (2d Cir. 1983) (The phrase anything of value in

bribery and related statutes has consistently been given a broad meaning to carry out the

congressional purpose of punishing misuse of public office.) (internal citation omitted); United

States v. Schwartz, 785 F.2d 673, 680 (9th Cir. 1986) (Ordinarily . . . the measure of value is not

limited to commercial or monetary worth . . . . [t]hat value commonly extends in scope to include

intangibles has been the conclusion of various courts when faced with the task of construing

criminal statutes that contain the term thing of value.) (emphasis in original). In other words, just

because something is free does not mean it is worthless, or without value, under the bribery laws.

An individuals desire for an object or intangible item, such as a service or employment, can

suffice. See, e.g., Roth, 333 F.2d at 453; United States v. Douglas, 634 F.3d 852, 858 (6th Cir.

2011) (finding jobs are things of value under Section 186). Put another way, whether someone

can be improperly influenced is not measured by whether the offered thing has a particular

monetary value so long as it is an object of desire. See Schwartz, 785 F.2d at 680.

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 2. Discussion

a. Aloise Requested and Received Free Super Bowl Party Admissions

Through SWS

Aloise requested things of value, the Super Bowl Party admissions (the Party Admissions

or the Passes), from a union employer, SWS, during the course of contract negotiations. Aloise

takes great pains to attack the objective value of the Party Admissions in order to strip them of any

legal value. While perhaps raising doubts about the actors in the secondary ticket sales market,

Aloise cannot overcome common sense. Most importantly, the Passes had subjective value for

Smith. Smith wanted the Passes. He made his desire evident to Aloise. (Exs. 89, 90). Smith also

put in effort to determine which party was being hosted by a liquor industry member. (Id.; Tr. at

188). Aloise, in turn, through SWSs attorney, made it evident to SWS that Smith, a high-ranking

Teamster close to the General President (i.e.; one of Hoffas key guys (ex. 87)) wanted access

to a Super Bowl party. (Ex. 78). And Aloise wanted to procure the Passes for Smith. The request

from Aloise had the desired effect on SWS. The companys top people sprang into action and

procured the passes from Diageo, even offering to pay for them. (Ex. 87).

Put in simplest terms, a union employer procured something for a top union official that

the union official wanted and could not otherwise obtain without paying, all because of a request

from Aloise. Section 186 was designed to prevent the procuring of favors for union officials by

employers to avoid an employer winning the allegiance of a union official whose loyalty is to run

to the members, not the employer. See Roth, 333 F.2d at 453 (The purpose of the statute was to

prevent employers from tampering with the loyalty of union officials, and disloyal union officials

from levying tribute upon employers.) (quoting United States v. Ryan, 225 F.2d 417, 426 (2d

Cir. 1955)). SWS did a favor for Aloise in the middle of a contract negotiation. Whether or not

Aloise lacked corrupt intent is of no moment. See IBT (Perrucci), 965 F. Supp. at 499 (a violation

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of Section 186 does not require that the transfer of a thing of value to a union official be done with

a corrupt purpose).

Furthermore, Aloises claim that he lacked the requisite mental state to violate Section 186

is unsuccessful. (See Aloise Br. at 61-63). Section 186 is a general intent crime. As such, the

evidence must show only that the defendant intended to do the act in question and intended the

reasonable and probable consequences of that act. United States v. Francis, 164 F.3d 120, 121

22 (2d Cir. 1999). Aloises contention that he could not violate Section 186 because he did not

believe that promotional items, such as the Party Passes, would have any monetary value does not

counter the evidence that he knew what he was doing would result in an employer giving a thing

of value to a union official. Even without knowing what value secondary market sellers put on the

passes, Aloise was well aware that Smith desired to get into the Party and could not do so without

the help of SWS. Thus, although free, the Passes were far from worthless. Aloise also knew that

SWS was willing to pay for the Passes in order to satisfy a favor for one of Hoffas key guys.

(Ex. 87). Aloise himself placed value in the tickets because he was willing to risk his reputation

by asking for a favor for a high-ranking Teamster official from an employer during a contract

negotiation. He was not just helping out a friend, he was helping out a powerful friend in the IBT.

Moreover, it is of no moment that Aloise was not interested in attending the Party. He wanted the

Passes so that he could provide them to Smith.16

16
To the extent it is necessary to establish the elements of a violation of Section 186, there is no dispute that SWS is
in an industry affecting interstate commerce. (See Ex. 1 at 87-88; Tr. 168).

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#5569313.1
 b. Aloise Requested and Accepted Employment for His Cousin Mark Covey

Aloises requests to two union employers for a job for Mark Covey also violates the

statutory prohibition of Section 186 and the related IBT Constitutional provisions. There is no

question that a job can be a thing of value under Section 186. See United States v. Douglas, 634

F.3d 852, 858 (6th Cir. 2011) (finding jobs thing of value under LMRA; [t]he value of a job . .

. is undeniable.). Employment as a thing of value under the law does not hinge on whether it is

a legitimate job or an illegitimate job, such as a no-show. It is enough that Aloise requested and

received something that he coveted (i.e., subjective value) from union employers in service of one

person, his cousin. See Roth, 333 F.2d at 453 (Value is usually set by the desire to have the

thing). When he put family before the union, he breached his fiduciary duty to those he served.

In support of charges of bringing reproach upon the Union against officials in a Local who

recommended relatives of union members for jobs, former General President Carey explained,

[a]n appearance of nepotism and favored treatment is created by any hiring of a relative of a Local

Union official by an employer with which that Local Union has a collective bargaining

relationship. Employers who hire relatives of union officials with whom they bargain may believe

that they are owed something in return. General President Careys Decision in Teamsters Local

Union 299, Oct. 23, 1993 (available on IRB Cases at http://www.irbcases.org/). Aloises conduct

was likewise reproachful.

Aloise contends that his efforts on Coveys behalf are nothing more than what any union

leader would and should do for an unemployed member. Here, Aloises words are his own

undoing. He repeatedly described what he did for Covey as seeking a personal favor for his

cousin, (Exs. 98, 109), and that Coveys failure would reflect poorly on him (Aloise). (Ex. 193).

Aloises bluster may have been just that, but it does negate the fact that he actively sought a favor

from an employer.

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 Moreover, Aloise pushed the case for Covey in the middle of negotiations with SWS, this

time for work in California, and an organizing campaign for workers employed by SWS. (Tr. 193-

200; Exs. 1 at 95-96; 110, 112, 120, N42). He was trying to place local members at SWSs Tracy

warehouse facility and to organize a new class of SWS salespeople, DSD workers. (Id.). By doing

this, he put his work on behalf of his members and future members on par with a personal favor.

This situation, while lacking the patina of organized crime or overt corruption, falls squarely within

the ambit of conflicts of interest that the LMRA was intended to preclude. Why SWS did Aloise

the favor of hiring Covey is not relevant. See Cody, 722 F.2d at 1059 (the employers purpose

for making a payment is irrelevant since all payments, aside from those statutorily excluded, are

unlawful). At the same time when Aloises position at the union was paramount in the minds of

SWS leadership, (Ex. 129), he put pressure on the company to hire his cousin. It was a strong

arm-tactic he utilized apparently with little thought to its propriety.

As reflected in SWS internal e-mails, SWS did not consider Covey just as any other

unemployed union member, he was Aloises cousin and someone who garnered significant

attention. (Exs. 129, 102). Additionally, the CBA permitted the union to endorse a candidate

outside of SWS in the event that no one from SWS applied for the job. The union, pursuant to

Aloises demand, endorsed Covey; no other unemployed Local 853 member was considered even

though Aloise admitted that there were other out-of-work Teamsters. (See Ex. 1 at 93 (Aloise

assumed that there were union members joining the ranks of the unemployed every day)). While

the night janitor job may not have been desirable to anyone within SWS, it had a definite upside

for unemployed Teamsters, as Aloise pointed out to Covey when Covey was on the brink of losing

the job. (Ex. 135 [t]his [job] has good pension and healthcare that you dont have to pay for,

there arent other jobs like this)).

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 In sum, I find that the IIO established by a preponderance that Aloises conduct with respect

to soliciting the Super Bowl Party Admissions for Smith and the jobs for Mark Covey violated

Section 186, and, thus, brought reproach upon the IBT, in violation of the IBT Constitution, Article

II, Section 2(a). I also find that Aloise violated Article XIX, Section 7(b)(13) of the IBT

Constitution by accepting favors from SWS in the form of the Admissions for Smith and a job

offer for Covey.

C. The GrandFund Collective Bargaining Agreements were Sham Contracts

As the business agent of GrandFund, Aloise failed to ensure that GrandFund employees

meaningfully negotiated, voted on, and had their employment governed by, the collective

bargaining agreements (CBAs) with their employer. Although the GrandFund CBAs certainly

provided some benefits to the employees of GrandFund, they could not be described as serving the

purposes of collective bargaining. For eleven years, Aloise did not communicate with GrandFund

employees, discuss the terms of the CBAs, or ensure that they supported ratification. Throughout

this period, the GrandFund CBAs did not govern the companys relationship with its employees

or even reflect the salary of the companys only salaried employee. This improper arrangement

was permitted, even encouraged, by Aloise as the business agent for GrandFund employees. As

such, the GrandFund CBAs were sham contracts in the simplest meaning of the word. Thus,

Aloise failed in his responsibilities as a representative for GrandFund employees, violating Article

XII, Section 1(b) of the IBT Constitution and Article XVIII, Section 6 of Local 853s Bylaws.

Accordingly, I find that Aloise brought reproach upon IBT.

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 1. The Law

Title 29, United States Code, Section 158(b)(1)(A) prohibits labor organizations and their

agents from restraining or coercing employees in the exercise of their right to organize or engage

in collective bargaining as provided in Section 157. See 29 U.S.C. 158(b)(1)(A); 29 U.S.C.

157; Intl Ladies Garment Workers v. NLRB, 366 U.S. 731, 736-39 (1961). Relatedly, Article XII,

Section 1(b) of the IBT Constitution17 and Article XVIII, Section 6 of Local 853s Bylaws require

member-employees to vote to approve collective bargaining agreements. 18 The process for voting

to approve a collective bargaining agreement, per the Locals rules, is as follows:

Whenever a collective bargaining agreement is about to be negotiated, modified, or

extended at the request of this Local Union, the principal executive officer shall
call a meeting at which the membership shall determine and authorize the
bargaining demands to be made.

(Ex. 47).19

Interference with the principles underlying the federal labor laws, the IBT Constitution and

Local Bylaws, such as proposing or enforcing sham contracts, brings reproach upon IBT. 20 See In

re: Bradley D. Slawson et. al. (IBT Hearing Panel Mar. 28, 2013) (Ex. 73); In re Robert F. Holmes

and Thomas Werthman (Local 337 Exec. Bd. Mar. 13, 2000) (Ex. 345). As defined by the IBT in

Slawson, a sham contract is an agreement that is entered into by a labor union which does not

17
IBT Constitution, Article XII, Section 1(b)(1), states, in relevant part that, [a]greements shall either be accepted
by a majority vote of those members involved in negotiations and voting, or a majority of such members shall direct
further negotiations before a final vote on the employers offer is taken . . . .
18
Article XVIII, Section 6 of the Local 853 bylaws provides that [r]atification of agreements or amendments shall
be subject to vote in the same manner as provided for in connection with bargaining demands as set forth in Section
27(a) . . . . Although there was no Section 27(a) in the Bylaws at the time, the omission was unintentional. (See
Ex. 47).
19
Charge Three also contains an allegation that Aloise violated Article XIV, Section 3 of the IBT Constitution. This
provision of the Constitution provides, in pertinent part,
Every member covered by a collective bargaining agreement at his place of employment authorizes
his Local Union to act as his exclusive bargaining representative with full and exclusive power to
execute agreements with his employer governing terms and conditions of his employment.
IBT Const., Art. XIV, Sec. 3.
20
IBT Constitution, Art. II, Sec. 2(a) requires each member to conduct himself in such a way as to avoid bringing
reproach upon the Union. See IBT Const., Art. II, 2(a).

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#5569313.1
have a legitimate collective bargaining purpose, such as when benefiting the supposed employer

is the real purpose for the relationship. Slawson at 25; see also Holmes, Ex. A Guidelines for

Avoiding Sham Contract Problems (A collective bargaining agreement should not be entered

into, renewed or maintained unless there is a legitimate union purpose for it.). Among the

purposes that are not legitimate are situations in which an agreement is entered into, renewed or

maintained the terms of which are not honored and which are not intended to be enforced. Id.

The Guidelines for Avoiding Sham Contract Problems, attached to the Holmes decision, further

advises, in relevant part, that (1) IBT and Local Bylaws with respect to ratification and adoption

must be followed; and (2) all CBAs shall be diligently policed and enforced. Id.

2. Discussion

In brief, the IIO charges that Aloise brought reproach upon the IBT by entering into sham

contracts with GrandFund. The IIO alleges that Aloise repeatedly violated the requirements in

the Locals Bylaws and the IBT Constitution regarding GrandFund contract negotiations

demonstrate[ing] that the contracts were shams. In support of the charge, the IIO highlights the

lack of member participation in the negotiation of the CBAs and lack of adherence to terms of the

CBAs.

In response to the IIOs charge, Aloise claims that it is unclear what constitutes a sham

contract such that that he was not on notice that his conduct as it relates to the GrandFund CBAs

was improper. In addition, Aloise distinguishes his situation, in which the GrandFund employees

benefited from the CBAs, with cases involving sham contracts that appeared to be made solely for

the purpose of benefiting the employer. Aloise also points out, correctly, that many IBT cases

involving sham contracts centered on improper and corrupt connections with organized crime

something completely absent from the instant case. See, e.g., In re: Anthony Antoun (IRB Sept.

21, 1999); In re: Michael Mirabello et al. (IRB Aug. 5, 1999). Other sham contract cases involved

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#5569313.1
clear instances of self-dealing by employers, also distinguishable from the instant case. See, e.g.,

In re: Larry Stein (IRB Oct. 18, 2000); In re: Bernard Tennenbaum et al. (IRB Apr. 20, 2000).

Finally, Aloise contends that there is no evidence that he engaged in self-dealing and that the IIO

is merely nitpicking the voting procedures of a small employer.

At the outset, I am not persuaded that there was a lack of clarity regarding what constitutes

a sham contract such that Aloise was not given fair notice of the line between proper and improper

conduct. The IBT itself, in Slawson, and Local 337, in Holmes, have provided ample details of

the contours of a sham CBA. See In re: Bradley D. Slawson et. al. (IBT Hearing Panel Mar. 28,

2013) (Ex. 73); In re Robert F. Holmes and Thomas Werthman (Local 337 Exec. Bd. Mar. 13,

2000) (Ex. 345). Even a simple perusal of the dictionary could have clarified what is a sham

and what is legitimate. See Merriam-Webster On-Line Dictionary, https://www.merriam-

webster.com/dictionary/sham, (defining Sham as an imitation or counterfeit purporting to be

genuine) (last visited Sept. 27, 2017). A contract purporting to provide bargained for rights of

employees that is neither bargained for nor contains the actual terms of the employees

employment is a sham. Moreover, there was no bargaining going on over the course of the

relationship, despite the employees general satisfaction with their employer and the CBAs

benefits.

I do not find, however, that the IIO has established by a preponderance that Aloise

improperly permitted Bertucio to choose Local 853 as its bargaining agent. The drive to unionize

appears to have come from Logues reasonable desire to obtain health care in light of his history.

(Ex. 1 at 57; Ex. 4 at 9-10; Ex. P at 102-03; Tr. at 145). And, in particular, Logue had a pre-

existing relationship with Aloise. (Tr. 144-45; Ex. P at 48). The sloppy paperwork surrounding

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the initiation of the Local 853-GrandFund relationship does not so much evidence bad faith on

Aloises part, but a casualness that later blossomed into something more problematic.

For example, Aloise cannot escape the conclusion that the GrandFund CBAs lacked a

legitimate collective bargaining purpose. See Slawson at 25. The contracts simply were not

followed. As described below, all of the terms of the GrandFund CBAs were not honored nor

intended to be enforced. See Holmes, Ex. A. Throughout the eleven years that Aloise spent as

GrandFunds business agent, Aloise treated his role with little interest. Aloise failed to consult

meaningfully with GrandFund employees about their demands or even ensure that they had an

opportunity to vote on their CBA. Aloise never spoke or met with Lisa Ramsey, the only salaried

employee at GrandFund, to determine whether she had bargaining demands or gauge her support

for any of the CBAs. (See Ex. P at 132-33). Tellingly, Aloise e-mailed Bertucio in December

2014, advising that GrandFund must have actual negotiations and a vote, signed into by all people

covered by the contract. This communication further evidences that no legally meaningful

negotiations or documented voting had occurred prior to that time.

When asked about the 2007 CBA approval process, Lanini did not recall even seeing the

erroneous salary calculation or voting on it. (See Ex. 3 at 12 (Laninis deposition testimony: Q:

Have you ever voted on that bargaining agreement? A: Yes. Q: When? A: In 12.)). As to the

2012 process, Lanini recalled talking to Aloise when he advised her that a new agreement was

needed, but beyond that they engaged in no other discussions about the contract outside the

presence of Bertucio. (Ex. P at 61-63). Without consulting with the covered employees before

engaging in negotiations with Bertucio, Aloise could not adequately represent the members.

Aloises conduct stands in sharp contrast to that of other Local 853 business agents who also

represented small shops. For example, Bo Morgan described having members come to the union

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hall to discuss a new CBA in advance of a ratification vote, after which a member of the Local

would conduct the vote. (See Ex. 5 at 26-27).

Most damaging, it is undisputed that the terms of the GrandFund CBAs did not govern the

financial arrangement between the employer and members. (Ex. P at 127-28). The CBAs, while

setting a monthly salary for the sales employee (Lanini), left the commission rates to be determined

by the employer. (Ex. 27 at 4; Ex. 28 at 4; Ex. 29 at 4). Aloise had never negotiated a CBA with

an indeterminate commission rate for salespeople. (Ex. 1 at 60). This omission evinces Aloises

lax attitude toward the CBA and his role as business agent for GrandFund. The 2007 CBA actually

reduced Ramseys salary below the 2004 CBA rate. Nonetheless, the salary provisions of the 2007

and 2012 CBAs were not enforced. (Ex. P at 127-28). Moreover, at the time of her testimony in

2015, Ramsey was unaware that the CBA even controlled her salary and had never spoken to

anyone at Local 853. (Id. at 123-24). Thus, by Aloise failing to ensure that the GrandFund CBAs

terms were implemented, he did not diligently police[] and enforce[] the CBAs. See Holmes,

Ex. A.

The preponderance of the evidence demonstrates that the process by which each of the

three GrandFund CBAs were negotiated and enforced contravenes the principles underpinning

collective bargaining, the IBT Constitution, and Local 853s Bylaws. Aloises course of conduct

reflects a lack of respect for his role as the sole business agent and representative of GrandFund

members. Aloise did not represent the GrandFund members in any meaningful negotiation with

their employer, as he never held any meetings to discuss and receive authorization to bargain for

their demands (see Ex. 47, Aug. 21, 2015 Aloise letter describing Local 853 procedure for CBA

negotiations), and he failed to monitor the enforcement of the CBAs. The CBAs served primarily

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#5569313.1
as a means for the members to obtain and then maintain health care. The rest of the contract was

essentially superfluous.

Further, Aloise cannot use the egregious circumstances surrounding the conduct at issue in

prior sham contract cases to excuse his own conduct. The GrandFund CBAs were sham contracts.

By failing to ensure a compliant collective bargaining process, Aloise violated Article XII, Section

1(b) of the IBT Constitution and Article XVIII, Section 6 of Local 853s Bylaws, and brought

reproach upon IBT.21

D. Aloise Engaged in Reproachful Conduct in Connection with the 2013 Local 601 Election

Aloises conduct in the lead up to and in the aftermath of the 2013 Local 601 election was

reproachful. His unbridled support for Ashley Alvarado, and the steps he took to ensure her

victory, crossed the line that divides protected, legitimate support for a candidate and abuse of a

system that places limits on advocacy. Aloise used union resources, from the IBT e-mail system

to his Joint Council 7 presidential letterhead, to support her candidacy. He threatened and bullied

Alvarados opponents and their supporters. Even where Aloises individual acts may not have

been violative of a particular IBT Constitutional provision or related law, the cumulative nature of

his conduct demonstrates a patent contempt for the rules and fair elections.

1. The Law

a. The IBT Constitution and Local Bylaws

In addition to specifically charging Aloise with violating the reproach clause of the IBT

Constitution, Article II, Section 2(a), the IIO maintains that Aloises efforts to support Alvarados

campaign violates Section 2(a) even where individual acts may not have violated any particular

provision of the Constitution or other laws. As part of the unions membership oath, the IBT

21
I find that that IIO has failed to establish by a preponderance that Aloises conduct in connection with Bertucios
membership in the union was reproachful.

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#5569313.1
Constitution requires members to conduct themselves at all times in such a manner as not to bring

reproach upon the Union. IBT Const, Art. II, 2(a). The reproach standard is broad; it

encompasses both Constitutional violations and conduct that otherwise reflects negatively on the

union, including acts that violate criminal statutes. See United States v. IBT [Friedman and

Hughes], 905 F.2d 610, 619-20 (2d Cir. 1990) (rejecting attempt by union to limit scope of

reproach clause to only acts specifically prohibited in the IBT Constitution); United States v. IBT

[Hogan and Passo], No. 88 CIV. 4486 (LAP), 2003 WL 21998009, at *11 (S.D.N.Y. Aug. 22,

2003), aff'd sub nom. United States v. Hogan, 110 F. App'x 177 (2d Cir. 2004) (an IBT member

may be disciplined for conduct that brings reproach upon the union regardless of whether the

misconduct charged would also violate a criminal statute). Moreover, where individual acts

might fail to meet the bring reproach standard, but are part of a pattern of activity that

demonstrates general disregard for the law or rules of the union, a finding of reproachful conduct

can be upheld. See United States v. IBT [Ligurotis], 814 F. Supp. 1165, 1181-84 (S.D.N.Y. 1993);

United States v. IBT [Simpson], 931 F. Supp. 1074, 1090 (S.D.N.Y. 1996), affd sub nom. United

States v. IBT, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 120 F.3d 341 (2d Cir.

1997) (a pattern of conduct [can] constitute[] a violation of the IBT Constitution, even if no single

element of the pattern is itself a violation).

In addition, a violation of any of the provisions of the Constitution, a Locals bylaws or the

oaths of office or loyalty to ones Local or the IBT are chargeable offenses contained in a non-

exhaustive list of chargeable conduct in the Constitution. See IBT Const, Art. XIX, 7(b)(1) and

(2).22 The IBT Constitution also prohibits [r]etaliating or threatening to retaliate against any

22
Article XIX, Section 7(b)(1), provides that a basis for a charge can be a [v]iolation of any specific provision of
the Constitution, Local Union Bylaws or rules of order, or failure to perform any of the duties specified thereunder.
IBT Const, Art. XIX, 7(b)(1).

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#5569313.1
member for exercising rights under the IBT Constitution or applicable law, including the right to

vote, seek election to office, or support the candidate of ones choice. See IBT Const., Art. XIX,

7(b)(10).

b. The LMRDA

In Charge Three, the IIO further alleges that Aloise violated a number of provisions of the

LMRDA. The LMRDA was enacted to encourage democratic self-governance in unions and

to correct widespread abuses of power and instances of corruption by union officials. Kazolias

v. IBEWLU, 806 F.3d 45, 51 (2d Cir. 2015) (citing Franza v. Intl Bhd. of Teamsters, Local 671,

869 F.2d 41, 44 (2d Cir. 1989)). See also Sheet Metal Workers Int'l Assn v. Lynn, 488 U.S. 347,

354 (1989) (LMRDAs basic objective [is] to ensure that unions are democratically governed,

and responsive to the will of the union membership as expressed in open, periodic elections. )

(internal alterations omitted) (quoting Finnegan v. Leu, 456 U.S. 431, 441 (1982))); United

Steelworkers of Am., AFLCIOCLC v. Sadlowski, 457 U.S. 102, 112 (1982) (Congress adopted

the freedom of speech and assembly provision in order to promote union democracy. It recognized

that democracy would be assured only if union members are free to discuss union policies and

criticize the leadership without fear of reprisal.) (internal citations omitted).

i. Section 401

First, the IIO alleges that Aloise violated Section 401(g) of the LMRDA, Title 29, United

States Code, Section 481(g), through his use of union resources in support of Alvarado. Section

401(g) prohibits the use of union funds to promote a candidate. Specifically, the statute provides,

No money received by any labor organization by way of dues, assessment or similar

levy and no moneys of an employer shall be contributed or applied to promote the

Section 7(b)(2) provides that a charge may be brought for a [v]iolation of oath of office or of the oath of loyalty to
the Local Union and the International Union.
IBT Const, Art. XIX, 7(b)(2).

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#5569313.1
 candidacy of any person in any election subject to the provisions of this subchapter.
Such moneys of a labor organization may be utilized for notices, factual statements
of issues not involving candidates, and other expenses necessary for the holding of
an election.

29 U.S.C. 481(g). An expenditure of any size may constitute a violation. Donovan v.

Metropolitan Dist. Council of Carpenters, 797 F.2d 140, 145 (3rd Cir. 1986) (quoting Shultz v.

Local 6799, United Steelworkers of America, 426 F.2d 969, 972 (9th Cir. 1970). By extension, the

use of union resources, such as computers, the e-mail system, or fax machines to promote a

candidates campaign are prohibited. See Solis v. Local 9477, United Steelworkers, 798 F. Supp.

2d 701, 704 (D. Md. 2011) (in context of prohibition on use of employer money to support

candidate, court held that use of employers copiers, computers, and e-mail system violated

Section 401(g)); Donovan v. Local Union 70, Intl Bhd. Of Teamsters, 661 F.2d 1199, 1202 (9th

Cir. 1981) (Moneys as used within 401(g), has been interpreted as anything of value, whether

the expenditure be direct or indirect.). 23

ii. Section 501

Relatedly, the IIO alleges that Aloise violated his fiduciary duty as a union officer to

provide fair elections. Section 501 of the LMRDA, entitled, Fiduciary responsibilities of officers

of labor organizations, describes, among other things, the duties of union officers. See 29 U.S.C.

501(a). Specifically, the statute provides,

The officers . . . of a labor organization occupy positions of trust in relation to such

organization and its members as a group. It is, therefore, the duty of each such
person . . . to hold its money and property solely for the benefit of the organization
and its members and to manage, invest, and expend the same in accordance with its
constitution and bylaws and any resolutions of the governing bodies adopted
thereunder, to refrain from dealing with such organization as an adverse party or on
behalf of an adverse party in any matter connected with his duties and from holding
or acquiring any pecuniary or personal interest which conflicts with the interests of
such organization, and to account to the organization for any profit received by him

23
Charge Three also contains an allegation that Aloise improperly used union resources (e.g., e-mail, lobbyists) to
promote Alvarado by trying to pressure Pimentels campaign manager to quit. (See Charge Rpt. at 89-93).

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 in whatever capacity in connection with transactions conducted by him or under his
direction on behalf of the organization.

Id. The IIO contends that the duties of union officers contained in Section 501 extends not just to

their proper handling of union finances, but should be construed broadly to cover their general

responsibilities to the union. See Sabolsky v. Budzanoski, 457 F.2d 1245, 1250-51 (3d Cir. 1972)

(citing cases in support of broad construction of Section 501 in light of legislative history);

Semancik v. United Mine Workers, 466 F.2d 144, 155 (3d Cir. 1972) (Union officers. . . have a

fiduciary duty under Section 501 of the LMRDA . . . to insure the political rights of all members

of their organization.); United States v. IBT [Carey], 247 F.3d 370, 397 (2d Cir. 2001) (Union

democracy . . . is premised on fair elections. To that end, union officials . . . have a duty to ensure

the integrity of that process and to fulfill their obligations to union members by adhering to the

highest standard of governance.). Despite the IIOs citation to the broad language of Carey

described immediately above, the Second Circuit has taken a more restrictive review of the

obligations Section 501 imposes on union officers. See Dunlop-McCullen v. Pascarella, No. 97

Civ. 0195 (PKL)(DFE), 2002 WL 31521012, at *15 (S.D.N.Y. Nov. 13, 2002) (It is well settled

in the Second Circuit that the 501 fiduciary duty applies only to the money and property of the

union and that it is not a catch-all provision under which union officials can be sued on any ground

of misconduct . . . .) (quoting Gurton v. Arons, 339 F.2d 371, 375 (2d Cir. 1964)). Nonetheless,

because I find that Aloise violated Section 401 by using union resources to support Alvarados

campaign, I need not reach the issue of whether this conduct falls within Section 501.

The IIO also contends that Aloise breached his fiduciary duty under Section 501 of the

LMRDA by failing to take steps to put an end to Alvarados continued disregard for union

leaderships orders to make recommended changes to Local 601s sabbatical leave policy. As a

fiduciary, an IBT officer enjoys the trust of the general membership. In exchange for this privilege,

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each officer is bound to serve the memberships interest. United States v. IBT (Ross), 826 F.

Supp. 749, 756 (S.D.N.Y.), affd, 22 F.3d 1091 (Table) (2d Cir. 1994) (internal quotation marks

omitted). In order to serve the Union, its officers cannot be passive or exhibit willful ignorance.

United States v. IBT (Sansone), 792 F. Supp. 1346, 1354 (S.D.N.Y. 1992), affd, 981 F.2d 1362

(2d Cir. 1992). In other words, IBT officers cannot avoid responsibility by shutting their eyes

to allegations that their fellow IBT members engage in corrupt or improper activity. United

States v. IBT (Hahs), 652 F. Supp. 2d 447, 452 (S.D.N.Y. 2009) (quoting United States v. IBT

(Coli), 803 F. Supp. 748, 755 (S.D.N.Y. 1992)).

iii. Section 101(a)(5)

Charge Three also contains allegations that Aloise violated the right to a fair hearing that

members are guaranteed under Section 101(a)(5) of the LMRDA, 29 U.S.C. 401(a)(5), and the

IBTs related constitutional promise pursuant to Article XIX, Section 1(a). In particular, the IIO

maintains that Aloise improperly: (i) appointed an Alvarado supporter to sit on a disciplinary

panel that heard charges that Alvarados opponent, Pimentel, filed against Alvarado in October

2013; (ii) participated in the vote to affirm the disciplinary panels decision; and (iii) participated

in the election protest decision of Joint Council 7 based on Pimentels and Reyess protests of

Alvarados victory.

Article XIX, Section 1(a) of the IBT Constitution states, in relevant part,

[i]n no event shall any involved officer or member serve on a hearing panel,
participate in the selection of a substitute member of a hearing panel, or participate
in the decision making process of the trial body.

IBT Const., Art. XIX, 1(a). Section 101(a)(5) of the LMRDA Bill of Rights, entitled Safeguards

against improper disciplinary action, states that,

No member of any labor organization may be fined, suspended expelled or

otherwise disciplined except for nonpayment of dues by such organization or by
any officer thereof unless such member has been . . . afforded a full and fair hearing.

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29 U.S.C. 411(a)(5). The due process guarantee encompassed by Section 101(a)(5) includes the

right to a hearing before an unbiased panel. See Knight v. Intl Longshoremens Assn., 457 F.3d

331, 342 (3d Cir. 2006) (citing Falcone v. Dantinne, 420 F.2d 1157, 1166 (3d Cir. 1969)). In

keeping with Section 101(a)(5)s due process guarantee, courts have generally found that [a]

tribunal of the political opponents of those on trial offends our most basic notions of fairness. See

Semancik v. United Mine Workers of America District #5, 466 F.2d 144, 157 (3d Cir. 1972)

(holding that trial board containing supporters of victor in union election could not try supporters

of losing faction for acts related to election). Additionally, prejudgment by a single decision-

maker in a tribunal of limited size is sufficient to taint the proceedings and constitute a denial of

the right to a full and fair hearing under the LMRDA. Goodman v. Laborers Intern. Union of

North America, 742 F.2d 780, 784 (3d Cir. 1984); see also Falcone, 420 F.2d at 1167 (finding

violation of due process under LMRDA where one of three members of panel hearing disciplinary

charge had prejudged case).

iv. Section 101(a)(2)

The IIO further charges that Aloise violated members rights to free speech and to sue

under the LMRDA. In particular, the IIO maintains that Aloises threat to take disciplinary action

against Pimentel for allegedly taking Alvarados photograph at a Joint Council hearing violated

Pimentels free speech rights under Section 411(a)(2) of the LMRDA. Section 411(a)(2) states,

Every member of any labor organization shall have the right . . . to express any
views, arguments, or opinions; and to express at meetings of the labor organization
his views, upon candidates in an election of the labor organization or upon any
business properly before the meeting, subject to the organization's established and
reasonable rules pertaining to the conduct of meetings: Provided, That nothing
herein shall be construed to impair the right of a labor organization to adopt and
enforce reasonable rules as to the responsibility of every member toward the
organization as an institution and to his refraining from conduct that would interfere
with its performance of its legal or contractual obligations.

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29 U.S.C. 411(a)(2). The right to free speech under the LMRDA, however, is not unlimited.

Consistent with the purpose of the LMRDA to promote union democracy, the LMRDAs

protections focus on issues of union policies and issues that touch on concerns of the broader

membership. See Kazolias, 806 F.3d at 52 (affirming dismissal of retaliation claims under

LMRDA for redress of personal grievances, as opposed to broader policy concerns for union

membership). That is to say, the more the speech relates to matters of significant interest to the

membership as a whole, and the more it seeks to influence union policies or actions with respect

to such issues, the more such speech is likely to come within the scope of Section 411(a)(2). Id.

(this court has interpreted [Section 101(a)(2)] to protect speech that concerns union governance

and union affairs) (citing Maddalone v. Local 17, United Bd. Of Carpenters & Joiners of Am.,

152 F.3d 178, 183 (2d Cir. 1998)).

v. Section 101(a)(4)

With regard to the right to sue under the LMRDA, Title 29, United States Code, Section

411(a)(4) (also referred to as Section 101(a)(4)), the IIO claims that Aloise violated Pimentels

rights when he, Aloise, took steps to retaliate against a lawyer, Kenneth Absalom, representing

Pimentel in a lawsuit against an Alvarado supporter. In pertinent part, Section 101(a)(4) provides

that [no] labor organization shall limit the right of any member thereof to institute an action in

any court . . . irrespective of whether or not the labor organization or its officers are named as

defendants or respondents in such action or proceeding . . . . 29 U.S.C. 411(a)(4). The right-

to-sue provision was designed to give union members the tools to insure the effective and fair

operation of their union as a representative institution. Intl Union, Union Auto., Aerospace and

Agr. Implement Workers of Am. v. Natl Right to Work Legal Def. and Ed. Found. Inc., 590 F.2d

1139, 1149 (D.C. Cir. 1978).

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 2. Discussion

a. Aloise Used Union Resources to Support Alvarado

Aloises repeated use of Union resources in support of Alvarados 2013 re-election

campaign brought reproach upon the IBT. Aloise primarily used his IBT e-mail account,

computer, and letterhead to engage in campaign activities to further Alvarados efforts. He sent

multiple e-mails to Alvarado attaching draft campaign leaflets that he had created on the IBTs

computer system (see Exs. 206, 207, 211, 212, 213, 312, 322, 323). In the very same e-mails,

Aloise provided advice on how and where to use the campaign leaflets. (See id.). The cost of the

e-mails or draft leaflets to the union may be negligible, but the law mandates no minimum

threshold before a violation can be found when union resources are used to support a candidate.

See Solis, 789 F. Supp. 2d at 704. Further, it is of no moment that the e-mails Aloise sent to

Alvarado and her campaign team represented internal campaign communications which did not

lead to the distribution of the leaflets Aloise created to members. The e-mails and leaflets Aloise

created over a union computer and e-mail system represented campaign activity using union

resources in support of Alvarados re-election efforts. See 29 CFR 452.76 (officers . . . may not

campaign on time that is paid for by the union, nor use union funds, facilities, equipment,

stationary, etc. to assist them in such campaigning.).

In Solis, the court found that e-mails sent on an employers system to employees to ask

them to hand out campaign literature, sufficed to violate to Section 401(g). See 789 F. Supp. 2d

at 704. Nothing in the Solis opinion indicates that the offending use of the employers resources,

including fax machines and copiers (in addition to the e-mail system) required that the products be

distributed to potential voters. See id. Indeed, the e-mails soliciting assistance which were found

to be offensive in Solis were just the sort of internal campaign communications that Aloise argues

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could not run afoul of Section 401(g). Id.24 The IBTs own Code of Conduct prohibits the use

of International Union funds and resources to support or oppose candidates for internal union

office, and notes as a result, we must take particular care not to use International Union funds,

assets, time or resources to engage in internal political activity. (Ex. 192 at 14-15). Aloise, a

veteran IBT leader, took no such care.

Perhaps the more offensive conduct was Aloises use of IBT and Joint Council 7 letterhead

in the heat of the election season to praise Alvarado and to attack Pimentel and his supporters.

First, there is the October 17th letter Aloise sent to Alvarado. (See Ex. 351; Tr. at 225-26). The

letter was a gift to Alvarado to use as a campaign tool. Alvarado asked for it and Aloise gave it to

her. (Ex. 350). In it, Aloise praises Alvarados leadership and highlights her invaluable

contributions to the organizing efforts in the Central Valley, all on IBT letterhead and signed as

International Vice President. (Id.). At least in this instance Aloise admitted that he should not

have drafted the letter. (See Tr. at 226).

Second, on October 9, 2013, Aloise used Joint Council 7 letterhead, a Joint Council 7

employee, and union funds to send a letter (by certified and regular mail) to Pimentel and Salas.

(Ex. 257). Aloise claims that he sent the letter because he had been told by Alvarado and Provost

that Pimentel and/or Salas had photographed her at the October 8 th Joint Council hearing. In his

letter, he threatened Pimentel and Salas with discipline if any pictures of anyone in attendance at

the [Oct. 8th] hearing should be made public. (Id.). He contends he used the letter to make a

genuine attempt to enforce the IBT Constitutions ban on disruptive conduct during union

24
Aloises use of a DOL Statement of Reasons letter, dated April 17, 2015, does not change my opinion that the law
does not require distribution of campaign literature for a violation of Section 401(g) to be found. In the letter, the
DOL first found that the alleged offending e-mail did not promote the candidacy of any person in the election,
even though it criticized the complainant. At that point, the need for any further analysis of the e-mail was
unnecessary.

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meetings. (Tr. at 227). I am not persuaded by Aloises post hoc attempt to justify the threat letter.

Simply taking a photograph is hardly disruptive conduct. In fact, there is no Joint Council rule

that absolutely prohibits the taking of pictures during its hearings. (Ex. 257). This is a rule

Aloise made up to give his letter the veneer of legitimacy. He well knew that he could not prohibit

Pimentel and Salas from using photographs of Alvarado in their campaign literature, so he

threatened to discipline them for violating a rule that did not exist.25

Aloise also improperly used IBT resources in an effort to harm Pimentels campaign to

the benefit of Alvarado when he employed a Joint Council political director and Teamster

lobbyist in an effort to punish the man he believed to be Pimentels campaign manager, Joe

Romero. Aloise targeted Romero for no other reason than he (Aloise) believed that Romero may

have been working for Pimentel. He utilized a union resource, Barry Broad, a lobbyist employed

by the IBT, to threaten a state senator if she employed Romero. (Ex. 263 (I take this extremely

personal and [the state senator] should know that she will have some DOL issues over this that can

draft her into it if she is paying him.); 264). There is no plausible explanation for Aloises actions

here except that he was trying to advance Alvarados re-election campaign. Nor can Aloise

mitigate his conduct vis--vis Romero by claiming that he relied on counsel, Bonsall, in taking this

course of action. Bonsalls initial e-mail did not offer legal advice, it offered a strategy for

undermining Pimentels campaign through an attack on Romero. (See Ex. 236 (it is quite

conceivable that if pushed hard enough by his current employers, Romero might feel obligated to

sing about who is behind the Pimentel and Reyes slates . . . and give [Alvarado] all sorts of valuable

information at a very critical time in the campaign).

25
I need not address whether or not Aloises letter violated members free speech rights under Section 101(a)(2)
because it is sufficient to find that he violated Section 401(g)s ban on the use of union funds to promote a candidate
for office.

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 Similarly, Aloise took steps to discredit Kenneth Absalom, an attorney who represented

Pimentel in a lawsuit against an Alvarado supporter, in the November 5th letter he sent to local

leaders within Joint Council 7. Aloises contention that his November 5, 2013 letter, distributed a

day before the Local 601 nominations meetings, was motivated by reasons other than just

Absaloms representation of one of Alvarados opponents is belied by Aloises November 5 th e-

mail to David Rosenfeld. In the e-mail, Aloise made plain that Absalom was a target because of

his relationship to the insurgent candidates who were trying to unseat Alvarado:

This guy is definitely tied into Lucio Reyes and Hailstone who have formed this
unholy alliance to remove Ashley from 601 and Adam and take things back over.
This will happen over my dead body.

(Ex. 247). The November 5th letter itself draws the readers attention to the fact that Aloises

concern is Absaloms representation of a client who sued a Teamster who supports the reelection

of Ashley Alvarado . . . . (Ex. 239). Aloises references to Absaloms prior efforts to sue duly

elected officials does not convince me that it was those earlier incidents that led Aloise to draft

the letter. At least one of the prior lawsuits involved conduct in 2007 that had been resolved in

2009.

Here, Aloise used his position in the Joint Council and union resources, namely Joint

Council letterhead to support Alvarados candidacy by attacking an attorney representing

Pimentel in an action against an Alvarado supporter. This conduct by Aloise was a way of

publicizing his ability to punish Alvarados opponents. If Aloise was genuinely concerned about

Absaloms support for individuals filing lawsuits against union members, he need not say anything

more than that. Instead, he made the election the focal point of the letter. In this, he went a step

too far. At a minimum, the use of Joint Council letterhead was in violation of the LMRDAs

prohibition on using union resources to promote a candidate under Section 401(g). Whether

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Aloises efforts chilled a members exercise of rights under the IBT Constitution or the LMRDA

(e.g., the right to sue) is not clear on this record. His conduct was nevertheless reproachful. It was

the act of a bully using the office of the Joint Council President to ensure the success of his chosen

candidate.

b. Aloises Involvement in the Hearing Panel and Election Protest

i. The LMRDA Guarantee of a Fair Hearing

The IIO contends that Aloise violated the LMRDA guaranteed fair hearing right of

opponents of Alvarado by personally appointing a hearing panel that heard a disciplinary

complaint against Alvarado, participating in the vote to affirm the panels decision on the

disciplinary complaint, and participating in the Joint Councils consideration of an election protest

following Alvarados 2013 victory. Relatedly, the IIO maintains that Aloises conduct

contravenes Article XIX, Section 1(a) of the IBT Constitution, which prohibits an involved

officer from serving on a panel, selecting a replacement for the panel, or participating in the

decision making of a trial body. See IBT Const., Art. XIX, 1(a). Aloise counters that the IIO

misreads the involved standard from the IBT Constitution and the guarantee in the LMRDA.

Aloises selection of Rosas for the hearing panel, his own participation in the vote to affirm

the panel, and his involvement in the Joint Council consideration of the election protests each

violates the fair hearing guarantee of the LMRDA. See Knight v. Intl Longshoremens Assn.,

457 F.3d 331, 342 (3d Cir. 2006) (Section 101(a)(5) due process guarantee includes right to a

hearing before an unbiased panel) (citing Falcone v. Dantinne, 420 F.2d 1157, 1166 (3d Cir.

1969)). Aloise was well aware that Rosas was an Alvarado partisan. He and Rosas had engaged

in multiple communications regarding their mutual support for Alvarado, including e-mails

containing campaign strategies for Alvarado in the months preceding Aloises placement of Rosas

on the panel. For example, in August 2013, Aloise included Rosas on his e-mails providing advice

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to Alvarado on countering leaflets that the opposition was distributing. (Exs. 207, 311, 312). On

August 20, 2013, Aloise sent an e-mail to Rosas with an invitation to a February 2014 event that

included Alvarado as a speaker with the title of Secretary-Treasurer of Local 601. (Ex. 314). In

his e-mail forwarding the invitation, Aloise wrote to Rosas, Guess we better make sure she wins,

or this could be embarrassing for her . . . . (Id.). When Pimentel re-filed his charges against

Alvarado in September, Aloise took advantage of the opportunity to assist Alvarado by appointing

Rosas to the hearing panel. Although it was never established what Aloise and Rosas discussed in

response to Aloises cryptic message when he forwarded the re-filed charges to Rosas, ([k]eep

this to yourself, but lets talk about it (Ex. 313)), it is reasonable to conclude that Aloise advised

Rosas that he would be appointing Roses to the panel. By placing even one Alvarado supporter

on the panel of three Aloise ran afoul of the LMRDA. See Goodman v. Laborers Intl Union of

North Am., 742 F.2d 780, 784 (3d Cir. 1984) (prejudgment by a single decision-maker in a

tribunal of limited size is sufficient to taint the proceedings and constitute denial of the right to a

full and fair hearing under the LMRDA); see also Falcone, 420 F.2d at 1167 (finding violation

of due process under LMRDA where one of three members of panel hearing disciplinary charge

had prejudged case).

Aloise himself was incapable of giving Alvarados opponents a fair shake. Over my dead

body was where Aloise drew the line during the campaign. (Ex. 201). There was no way that

he would have an open mind when it came to considering charges against Alvarado during the

campaign or a challenge to the election results. Semancik v. United Mine Workers of Am. Dist.

#5, 466 F.2d 144, 157 (3d Cir. 1972) (holding that trial board containing supporters of victor in

union election could not try supporters of losing faction for acts related to election). Aloises

appointment of Rosas to the disciplinary hearing panel, his consideration of the panels decision

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and his involvement in affirming the election protest decision for the Joint Council executive board

violated the letter and spirit of Section 105(a)(5).

ii. The IBT Constitutional Prohibition

On the other hand, I do not find that Aloise violated the IBT Constitutions prohibition

against involved officers sitting in judgment of others. This standard is not the same as the due

process standard under the LMRDA described above. To be involved under the Constitution

requires the involved officers to have participated in the conduct that forms the basis of the

charges under consideration. See United States v. IBT, 951 F. Supp. 1113, 1129 (S.D.N.Y. 1997).

Nothing in the record before me sufficiently demonstrates that either Aloise or Rosas played any

role in the alleged mismanagement of Local 601. See supra n. 11. Similarly, the allegations in the

election protest are devoid of any links to Aloise or Rosas. See supra n. 15. Accordingly, they

were not involved as the term is used under the IBT Constitution and this claim is unfounded.

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 c. Aloises Role in Alvarados Failure to Modify the Locals Sabbatical
Policy

I find that the IIO failed to prove by a preponderance that Aloise violated Section 501 by

breaching his fiduciary duty to the IBT in relation to Alvarados defiance of the IBT directives to

modify Local 601s sabbatical policy. Alvarado should have followed the auditors

recommendation and the commands of IBT leadership in a timely manner. It is quite another thing

to say, however, that Aloise failed to meet his fiduciary duty to the union by not putting an end to

her obstinacy. Further, I am not persuaded that Aloise took any actions to intervene on Alvarados

behalf with General Secretary-Treasurer Hall.

***

In sum, Aloises conduct demonstrates a pattern of disregard for the rules that were

established to safeguard the democratic process in union elections. 26 Aloise was not just

aggressive[ ], to use his counsels words, in his support for Alvarado, he was dismissive of any

limitations on his power as a union officer. In doing so, he brought reproach upon the union.

26
Aloises claim that the results of the DOL investigations that were conducted in the aftermath of the 2013 Local
601 election somehow vindicate Aloise is unconvincing. No matter the motivation of Alvarados unsuccessful
opponents, they made no allegations to the DOL in the record regarding Aloises actions in the campaign. (See RA
Exs. PPP and QQQ). According to the DOL Statement of Reasons, the investigation covered allegations of (i) the
partiality of election tellers and their conduct; (ii) improper restrictions placed on election tally observers; and (iii)
the timing of the election. (See RA EX. QQQ). The conduct that makes up the bulk of the charged conduct here
could not have been known by anyone in the opposition camps. Thus, to say that the DOL investigation of
challenges that did not contain claims regarding Aloise have any bearing on the instant matter is misplaced.

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