Opinion
88 Civ. 4486 (LAP)
August 25, 2003
MEMORANDUM AND ORDER
I. Background
Before the Court is Application 102 of the Independent Review Board ("IRB") of the International Brotherhood of Teamsters ("IBT") to affirm the disciplinary action taken against IBT members William T. Hogan, Jr. ("Hogan") and Dane M. Passo ("Passo").
Hogan and Passo were charged with bringing reproach upon the IBT and violating the IBT Constitution by colluding with a non-union employer to enter into a sub-standard contract with IBT Local 631, to the detriment of IBT members. The IRB conducted a hearing on the charges on October 18 and 19, 2001. By decision dated May 29, 2002 (the "IRB Decision"), the IRB concluded that the charges were established and permanently expelled Hogan and Passo from the IBT.
Hogan and Passo filed lengthy objections to the IRB Decision, the Chief Investigator filed a Memorandum of Law in Support of Application 102, and Hogan filed a reply.
A. Hogan and Passo
Hogan and Passo held high-level positions with the IBT during the time period covered by the instant charges. Prior to his expulsion, Hogan had been a member of the IBT for some 40 years, Objection of William T. Hogan, Jr. to Application 102 of the IRB ("Hogan Br.") at 33, and had served as an IBT International Representative, President of IBT Joint Council 25, and Director of Organizing and Political Director of IBT Local 714, Vice President of IBT Local 179; he was a member of IBT Local 714 in Chicago, IRB Decision at 3; IRB Investigative Report ("IRB Rep.") Ex. 14, at 3-5; IRB Hearing Transcript ("Tr.") at 279-80. Hogan was appointed an IBT International Representative by IBT General President James P. Hoffa ("Hoffa"). Id. at 14. Hogan was appointed to his position with Local 714 by his son, Robert Hogan, the current Secretary-Treasurer and principal officer of Local 714. Id. at 5.
From 1990 until 1996, Hogan had served as Secretary-Treasurer and principal officer of Local 714. IRB Rep. Ex 16 at 8. Hogan was appointed to that position by his father, William Hogan, Sr. Id. When William Hogan, Sr. retired, William Hogan, Jr. appointed his brother, James M. Hogan, as President of Local 714. Id. In 1996, the IRB recommended that the IBT place Local 714 in trusteeship because it found that the Local was not being run for the benefit of its members but "for the benefit of its principal officer, William Hogan, Jr., President James M. Hogan, Recording Secretary Robert Hogan and their family and friends." Id. at 1.
Hogan has extensive experience in the convention and trade show industries, both in Chicago and around the country. IRB Decision at 3. Hogan dealt for decades with conventions and trade shows at McCormack Place, the major convention center in Chicago, and was involved with the Chicago Convention and Tourism Bureau. Tr. 280-84. Nevertheless, General President Hoffa never appointed Hogan to any International position concerning that industry and never appointed him to any position that would give him any authority or assignment with respect to Local 631 in Las Vegas. IRB Rep. Ex. 78 at 35.
Hogan had served as Director of the IBT's Trade Show and Convention Centers Division under former IBT General President Jackie Presser. IRB Rep. Ex. 15 at 14-15; Tr. at 288. Although Hogan asked General President Hoffa to appoint him to that same position following Hoffa's election as General President (IRB Rep. Ex. 15 at 15; Ex. 78 at 19), Hoffa declined and has not appointed anyone to serve in that position. IRB Rep. Ex. 78 at 18. In a conversation recorded by Local 631 Business Agent Roberta Whitfield, Passo explained that the position remains vacant at the IBT "[b]ecause all the heat with the FBI, the Justice Department and the Second Circuit Courts in New York, [and] with the IRB, is [in] the conventions and the movie division." IRB Rep. Ex. 218 at 10.
Prior to his expulsion, Passo had been a member of the IBT since 1971. IRB Rep. Ex. 20 at 4. In January, 1999, following General President Hoffa's election to office, Passo was hired to serve on the General President's staff as a member of the transition team. IRB Rep. Ex. 11 at 3. On March 23, 1999, General President Hoffa appointed Passo to serve as an International Representative. IRB Rep. Ex. 11 at 8. On April 13, 1999, General President Hoffa appointed Passo to serve as the Special Assistant to the General President. IRB Rep. Ex. 11 at 10. No other person held that same title at the IBT. IRB Rep. Ex. 78 at 13. On November 5, 1999, General President Hoffa appointed Passo as his Personal Representative to Teamsters Local 631. IRB Rep. Ex. 10. Before his involvement with Local 631, Passo had never negotiated a contract on behalf of the IBT and he had no experience in the convention industry. IRB Decision at 2; Tr. at 455, 505.
Passo's title of Special Assistant to the General President was removed in October, 2000, following complaints from IBT Vice Presidents about his job performance in connection with Local 631. IRB Decision at 2; IRB Rep. Ex. 20 at 24-25; Ex. 78 at 13.
B. Rick Simon and United
United Services Companies ("United") was founded in Chicago forty years ago by Ben Stein ("Stein"). IRB Decision at 4; IRB Rep. Ex. 28. For decades, United has supplied convention services, including janitorial and maintenance services, to the McCormack Place convention center in Chicago and to convention centers in other major cities. IRB Rep. Ex. 27. Stein was convicted in 1966 of labor racketeering and bribery in connection with United's services at McCormack Place. IRB Decision at 4; IRB Rep. Ex. 28. Specifically, Stein made payoffs to IBT officials in Chicago to allow his non-union employees to work at McCormack Place. Id. Although his conviction was overturned on appeal, Stein subsequently pled guilty to bribing Teamster officials and was sentenced to a year in prison. Id. Stein also associated with organized crime figures in Chicago, including La Cosa Nostra ("LCN") member Dominic Senese ("Senese"), the former President of IBT Local 703 in Chicago. IRB Exs. 28-31. Senese was expelled from the IBT in 1990 for being a member of organized crime and for knowingly associating with other LCN members in Chicago. IRB Rep. Ex. 29. See United States v. IBT ("Senese"), 941 F.2d 1292 (2d Cir. 1991).
Stein's companies are managed today by United chairman Rick Simon ("Simon"), who had worked closely with Stein and has been with Stein's companies for thirty years. IRB Decision at 4; IRB Ex. 28. In 1988, the FBI interviewed Simon about the mob-related shooting that year of Senese. IRB Rep. Ex. 30. In that interview, Simon acknowledged that "he had known Dominic Senese and his family for so long he could not remember how long." IRB Rep. Ex. 30 at 1. Currently, United has ties to both the Stein and Hogan families. Stein's daughter, Carol Stein, now owns United. IRB Decision at 4. Hogan's brother, Michael Hogan, is an officer of United. IRB Decision at 5. Michael Hogan was also the CEO of Show Biz USA, a trade show contractor in Las Vegas. IRB Decision at 5. Michael Hogan had been chief steward at IBT Local 714 in the trade show division in the 1970s. IRB Decision at 5; IRB Rep. Ex. 175 at 128.
Michael Hogan's son, Michael Hogan Jr., has also worked for United in Chicago. IRB Rep. Ex. 173 at 19-22.
Hogan has known Simon for ten to fifteen years. IRB Rep. Ex. 15 at 30. Hogan also knew Stein and his daughter Carol from their involvement with the Chicago convention and tourism industries. Id. at 59. C. Local 631
Hogan challenges the IRB's reliance on hearsay evidence in the record establishing Stein and United's long history of involvement with organized crime in Chicago. Hogan Br. at 20 n. 12. It is well established, however, that reliable hearsay is admissible in IRB disciplinary proceedings. See, e.g., United States v. IBT ("Senese Talerico"), 941 F.2d 1292, 1297-98 (2d Cir. 1991). Here, the newspaper articles concerning Stein are detailed and corroborate one another. Moreover, Simon's relationship with Senese is corroborated by an FBI report, which is also in the record. IRB Rep. Ex. 30. Hogan has not disputed Stein's criminal conviction for labor racketeering, which is a matter of public record. Nor did Hogan offer any evidence, such as the testimony of his friend Simon, to contradict the Chief Investigator's evidence on these issues. Finally, while Hogan states that there is "no evidence" in the IRB's Decision that "that Hogan knew or ever even met Stein", Hogan Br. at 20, Hogan in fact admitted at his deposition that he knew and had met Stein; indeed, he admitted he knew that Stein had owned United, and that he had contact with Stein in connection with the Convention Bureau in Chicago. IRB Rep. Ex. 15 at 59.
Local 631 is an IBT local union in Las Vegas Nevada, with approximately 4,500 members. IRB Decision at 6; Tr. at 403. Local 631 had a collective bargaining agreement with trade show contractors in Las Vegas, including Greyhound Exposition Services ("GES") and Freeman Decorating ("Freeman"). IRB Decision at 6. Pursuant to this contract (referred to as the "Red Book contract"), these trade show contractors were required to call upon Local 631 when they needed workers. Id. Local 631 responded to such calls by dispatching workers to the contractors through its dispatch office in accordance with dispatch lists. Id. The list was open to both IBT members, who paid dues to Local 631, and to non-IBT members, who paid Local 631 a dispatch fee. Id. When Local 631's dispatch office ran out of registered workers to send to a contractor, Local 631 would contact other IBT local unions in Las Vegas for additional available workers to send; and when those other IBT locals were exhausted as a source of workers to respond to a call, Local 631 would contact other Las Vegas unions, such as the Carpenters and Electricians, for any members of those unions who needed work. IRB Decision at 8. All workers, including those from other IBT locals and other unions, who were dispatched through Local 631 were entitled to the wages and benefits of the Red Book contract. IRB Decision at 9. Under the Red Book contract, wages and benefits depended upon the number of hours worked in the industry and the time of day worked. During the relevant time period, IBT members (and other workers dispatched through Local 631) were paid hourly wages ranging from $12.40 per hour to $20.53 per hour. Id. at 7.
Passo, who had no experience in the convention and trade show industries and no prior experience with Local 631, actively opposed Local 631's long-standing practice of contacting other labor unions for additional workers to dispatch to the contractors when the local ran out of IBT members to send. See, e.g., Tr. at 63-64. Of course, without those additional union workers to dispatch, Local 631 would exhaust its dispatch list earlier, making it more likely that Local 631 could not meet the call. When Local 631 could not meet the call, the contractors were permitted to use United's non-union workers, id., a result obviously to the detriment of IBT members.
United served as a labor broker in Las Vegas and could supply non-union workers to trade show contractors at cheaper rates than the wages required by the IBT under the Red Book contract. Unfortunately for the contractors, the Red Book contract allowed them to avoid paying the relatively higher IBT wages and benefits only when Local 631's dispatch lists were exhausted. If the dispatch lists were not exhausted and the contractor nevertheless used United workers (or other workers who were not dispatched by Local 631), the contractor would be in violation of the contract and the IBT would have the right to file a grievance and seek compensation from the contractor. IRB Decision at 30, 36. While trade show contractors like GES and Freeman had an economic interest in avoiding payment of the Red Book wages and using United's cheaper, non-union labor instead, the Red Book contract provided that any worker who performed Teamster bargaining unit work must be paid the contract wages, even if not dispatched through Local 631. IRB Decision at 9; Tr. at 64-65. Accordingly, for United (including Simon and Michael Hogan) to profit by providing its non-union labor to contractors (at rates substantially lower than those paid to IBT members under the Red Book contract), United needed a separate agreement with the IBT that would allow United workers to perform Teamster bargaining unit work at wages other than those provided under the Red Book agreement.
In fact, GES violated the Red Book contract during a major Las Vegas trade show in 2000 by using United workers to perform Teamster work. IBT members complained loudly and in great numbers to the local. In response, Local 631 filed grievances against GES. IRB Decision at 30, 36, 39.
II. Hogan and Passo Collude to Have Local 631 Enter into a Contract with United
Simon had attempted to enter into an agreement with Local 631 that would allow United to supply its non-union labor to trade show contractors whenever Local 631's dispatch list was exhausted. IRB Decision at 10. Simon approached the leadership of Local 631 about his proposal prior to the 1998 local union election, but that administration had rejected the proposal. Id. In 1998, IBT member Tim Murphy ("Murphy") was elected Secretary-Treasurer and principal officer of Local 631. Id. Murphy hired David Breyman ("Breyman") as a dispatcher. Id. A. Murphy Rejects Simon's Proposal
The following year, Michael Hogan of United approached his brother, William Hogan, and requested an introduction to the new leaders of Local 631. IRB Decision at 5, 10; Tr. at 306-08. Hogan agreed and made the introductions. IRB Decision at 5, 10; Tr. at 136. In June or July 1999, Murphy and Breyman met with Simon and Michael Hogan at a restaurant in Las Vegas. Id. At that meeting, Simon and Michael Hogan proposed that Local 631 enter into an agreement with United under which United would supply its non-union workers to trade show contractors after Local 631 had exhausted its dispatch list. IRB Decision at 11. Simon proposed that the workers would be dispatched directly by United, not through Local 631. IBT Decision at 11-12. According to Murphy, Simon also said that he would pay the local and Murphy himself a "service fee" amounting to seven or eight dollars for each worker dispatched by United. Tr. at 137. In contrast, other non-union workers who were dispatched through Local 631 paid the Local 631 a dispatch fee of $40. IRB Decision at 12. Both Murphy and Breyman rejected Simon's proposal. Tr. 137, 388. In fact, Murphy considered the proposal "possibly illegal." Tr. at 137. Either Michael Hogan or Simon told William Hogan that Murphy and Breyman had rejected United's proposal. IRB Decision at 12; Tr. 309.
Breyman denied hearing Simon offer Murphy a kickback.
B. Murphy is Fired and Replaced with Wilkerson and Frates
In 1999, Passo informed General President Hoffa about complaints that he had begun receiving from members of Local 631. IRB Rep. Ex. 113. Some of those complaints had been solicited from Local 631 members by IBT member Vito Locasio ("Locasio"). Locasio was a convicted felon, a former member of Hogan's local in Chicago, and a close confident of Passo. IRB Decision at 13. At Passo's urging, General President Hoffa appointed Passo as his Personal Representative to Local 631 in November, 1999. IRB Decision at 13; IRB Rep. Ex. 20 at 13-14; Ex. 21 at 259-60. On March 1, 2000, Hogan, Passo, and other IBT officials confronted Murphy and demanded certain personnel changes at the local. IRB Decision at 15. At the time, Hogan had no IBT responsibilities in Las Vegas and no official role with respect to Local 631. At the IRB hearing, Hogan acknowledged that he had "no official position there" but explained that he was "there just joining in with the guys. . . . I just went along with friends of mine." Tr. at 317. That same day, Hogan and Passo met for lunch in Las Vegas and discussed Local 631. IRB Rep. Ex. 20 at 127. Thereafter, Passo expressed to the International Union his view that Local 631 should be placed into trusteeship. Id. at 137.
Locasio's criminal history includes convictions for stealing a truckload of television sets, burglary, and uttering a forged instrument. IRB Rep. Ex. 147 at 13-15. Passo nevertheless actively assisted Locasio in his efforts to run for union office at Local 631 and secured employment for him with the local. See IRB Decision at 41. Passo also caused the IBT to pay for at least 87 meals at which Locasion was present, including 28 meals at which only Passo and Locasio were present. Id. at n. 46.
A trusteeship at Local 631 had previously been recommended to General President Hoffa by IBT Vice President James Santangelo, who had also been appointed as a Personal Representative to Local 631. IRB Rep. Ex. 3.
On April 5, 2000, General President Hoffa placed Local 631 in trusteeship. IRB Decision at 15. Between the March 1 meeting with Murphy (at which Hogan had no official role) and the April 5 trusteeship, records show at least 32 telephone calls between Passo and Hogan. IRB Decision at 15. On the day Passo and others effected the trusteeship at the local, Passo and Hogan spoke to each other at least seven times. IRB Decision at 16. When the IBT put Local 631 into trusteeship, Murphy and Breyman (who had opposed the proposed arrangement with Simon) were fired. IRB Decision at 16.
General President Hoffa thereafter appointed James Wilkerson ("Wilkerson") to serve as trustee of Local 631, IRB Decision at 15, and Marty Frates ("Frates") as Assistant Trustee, id. During the trusteeship, Wilkerson acted in the capacity of principal officer of the local, with authority to enter into agreements on behalf of the local.See IRB Decision at 19 n. 31.
C. Wilkerson and Frates Reject Simon's Proposal
After the local was placed in trusteeship by the International Union, Hogan renewed his efforts to assist Simon in securing an agreement with Local 631, by, inter alia, introducing Simon to Passo in the summer of 2000. IRB Decision at 18; IRB Rep. Ex. 20 at 64; Tr. at 322, 444-45. Thereafter, Simon and Passo engaged in extensive discussions towards a contract between United and Local 631. IRB Decision at 18-19. However, Hogan never introduced Simon to Trustee Wilkerson, the official at Local 631 with authority to reach an agreement with United. IRB Decision at 18, 19 n. 31. In fact, no Local 631 officials participated in any of the direct discussions between Passo and Simon. IRB Decision at 19. Rather, Simon requested concessions from the Red Book contract from Passo, and Passo, in turn, pressed Local 631 to agree to the terms proposed by Simon. IRB Decision at 19.
In fact, when Passo ultimately submitted to the International Union the changes to the Red Book contract he was proposing for the contract with United, the proposed terms Passo submitted were written in Simon's handwriting. Tr. at 495-96.
Trustee Wilkerson and Assistant Trustee Frates both opposed Passo's proposal to contract with Simon. IRB Decision at 19; Tr. at 66; Ex. 82 at 54. Even a representative of Freeman, an employer, told Passo and Hogan that an agreement between Local 631 and United that allowed United workers to be paid less than IBT members were being paid under the governing Red Book contract would undermine the local's bargaining position with Freeman given that the existing contract with Freeman was up for renegotiation in 2001. IRB Decision at 27. As Assistant Trustee Frates put it, "it would have been asinine to go in and negotiate something less [with United] right before negotiations" with the trade show contractors. IRB Decision at 22; IRB Rep. Ex. 82 at 55.
D. Wilkerson and Frates are Fired
In an attempt to persuade Wilkerson to support the contract proposal, Passo falsely told Wilkerson that James Santangelo, an IBT Vice President, and Carlow Scalf, Executive Assistant to General President Hoffa, both wanted him to sign the contract. IRB Decision at 19, 24; Tr. at 65. In an attempt to persuade Frates to support the proposal, Simon similarly told Frates that Santangelo and Scalf supported the proposal. IRB Decision at 35; IRB Rep. Ex. 82 at 56-57, 63. Passo also attempted to persuade Local 631 Business Agent Roberta Whitfield to agree to Simon's proposal, suggesting that he could get Whitfield an appointed position with the International Union. IRB Decision at 41; IRB Rep. Ex. 218 at 10. But Whitfield too opposed the proposal. IRB Decision at 21; Tr. at 184. Passo also requested that Local 631 attorney Joe Kaplon persuade Wilkerson that the proposed contract with United was acceptable. IRB Decision at 23. But Kaplon too sided with Wilkerson. Id.
Thereafter, Passo caused the IBT to fire both Wilkerson and Frates. IRB Decision at 19; IRB Ex. 78 at 57, 61; Ex. 12 at 84-87. Throughout this period, Passo and Hogan continued to consult extensively. IRB Decision at 25-34. E. Wilkerson is Replaced with Jacobson; Hogan Seeks to Negotiate the New Trade Show Contract
Before Wilkerson was terminated as trustee, Wilkerson had complained to IBT Vice President Santangelo about Passo's proposed arrangement with Simon, and Santangelo requested that the IBT investigate Simon's background. On September 12, 2000, based on the information about Simon discovered as a result of that investigation, the IBT instructed Passo to stop all dealings with Simon. IRB Decision at 43-44.
On November 6, 2000, the IBT replaced Wilkerson with a new trustee for Local 631, Ed Jacobson ("Jacobson"). IRB Decision at 47, 50. During the next few months, United employees repeatedly performed Teamster work on GES trade shows, causing Local 631 business agents and stewards to file repeated grievances with GES for violating the existing contract. IRB Decision at 50-52. In January, 2001, GES representatives from Las Vegas met with Hogan in Chicago and complained about the number of grievances being filed by Local 631. IRB Decision at 54. The GES representatives also discussed with Hogan the upcoming negotiations for a new Las Vegas convention contract, since the existing contract was scheduled to expire May 31, 2001. IRB Decision at 54-55. During these discussions with GES, Hogan still had no officially sanctioned role in Las Vegas or in connection with Local 631. Id. at 54.
Since the IBT had barred Passo from further dealings with Simon, see note 12, supra, the only way for United to supply (and for contractors to permissibly hire) United's non-union workers at United's lower wages was for Local 631 to enter into a new contract with the trade show contractors that would expressly permit the contractors to hire non-Teamsters to perform Teamster work at less than Teamster wages. IRB Decision at 55. To that end, in March 2001, following his meeting with GES representatives, Hogan requested that General President Hoffa appoint him to negotiate the new agreements with GES and the other Las Vegas contractors. Id. Hogan also asked Scalf to let him negotiate Local 631's new contract with the trade show contractors.Id. During these discussions with Hoffa and Scalf, Hogan never disclosed to either Hoffa or Scalf that he had met with GES representatives in Chicago nor did he ever disclose that his brother Michael held positions with United and with Show Biz USA, the Las Vegas trade show contractor.Id. at 55-56. Both Hoffa and Scalf refused to let Hogan negotiate with the contractors. Id.
Procedural History
I. The IRB ChargesOn May 23, 2001, the IRB recommended that the IBT file charges against Hogan and Passo for colluding with Simon to enter into a substandard contract and to have United employees perform Teamster work in the Las Vegas trade show and convention industries for less pay and benefit fund contributions than the existing collective bargaining agreement required. On May 25, 2001, IBT General Secretary-Treasurer C. Thomas Keegel adopted and filed the IRB's proposed charges and advised the IRB that the IBT would appoint a union panel to hear the charges. On July 26, 2001, Mr. Keegel advised the IRB that the IBT's General Executive Board ("GEB") had voted to refer the charges back to the IRB for adjudication. In accordance with its Rules, the IRB scheduled a hearing on the charges.
General President Hoffa (who appointed Passo and Hogan as International Representatives; appointed Passo as his Special Assistant and as his Personal Representative to Local 631; put Local 631 into trusteeship; fired Trustee Wilkerson; and personally met for lunch with Simon, Hogan, and Passo) recused himself from consideration of these charges.
General President Hoffa also recused himself from the GEB vote on whether to refer the charges back to the IRB for adjudication.
II. Passo and Hogan's 2001 Action
On October 9, 2001, shortly before the IRB's hearing was scheduled to commence, Hogan and Passo sued the IRB members in this Court and sought an emergency order restraining the IRB from proceeding with its hearing. Hogan and Passo claimed, among other things, that the charges exceeded the IRB's jurisdiction and violated their rights to free speech. On October 11, 2001, this Court denied Hogan and Passo's application for a TRO.
First, Hogan and Passo's challenge to the IRB's jurisdiction, was rejected:
It has long been determined that the jurisdiction of the IRB is not confined to the very limited phrases of the Consent Decree which plaintiff's counsel have relied on. Rather, the IRB has been held time and again to have the general president's authority to construe the IBT constitution to determine what does and does not bring reproach upon the IBT.
Transcript of Proceedings, United States v. IBT, 88 Civ. 4486 (S.D.N.Y. Oct. 11, 2001), at 2. Hogan and Passo's argument that the charges interfered with their free speech rights under the First Amendment and the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA") was also rejected. With respect to the constitutional claims, the Court observed that "it has been held many times that the IRB is not a state actor." Id. The Court also held that "[p]laintiffs' First Amendment rights do not extend to advocating collusive contracts with entities with a history of organized crime contacts and racketeering." Id. at 3.
Following denial of emergency relief, Hogan and Passo voluntarily dismissed their 2001 action.
III. The IRB Hearing
On October 17 and 18, 2002, the IRB held its hearing in Las Vegas, Nevada, on the charges against Hogan and Passo. The transcript reflects that Hogan and Passo were represented by counsel at the hearing and were provided an opportunity to respond to the charges and cross-examine the witnesses who testified against them. In all, seven witnesses (including Hogan and Passo) testified at the hearing. Hogan did not call as a witness either his brother, Michael, or his long-standing business friend, Simon. The IRB also admitted into evidence over 300 exhibits, including the sworn depositions of Hoffa, Scalf, Hogan, Passo, Murphy, Breyman, Wilkerson, Frates, Whitfield, and Jacobson. The documentary evidence also included a transcript of a recorded conversation between Simon and Whitfield and the telephone records showing the timing and length of the extensive telephone conversations between Passo, Hogan, and Simon. IV. The IRB's Decision
On May 29, 2002, the IRB issued a 79-page decision, finding that the charges had been established. The IRB unanimously concluded that Hogan and Passo brought reproach upon the union and violated the IBT Constitution "by colluding with Simon in an attempt to allow him to avoid a Teamster governing contract to the detriment of Local 631 members." IRB Decision at 57. The IRB, which had the opportunity to observe the demeanor of Passo and Hogan when they testified, specifically found their testimony, including their explanations for wanting Local 631 to contract with Simon, to be incredible. IRB Decision at 71-74. With respect to Hogan's intent to benefit his brother, the IRB specifically cited Hogan's own deposition testimony, in which he testified: "I don't know what's wrong with helping my family, but apparently somebody has got a problem with that." IRB Decision at 73 n. 78. With respect to Passo's relationship with Hogan, the IRB specifically found Passo's testimony incredible when he denied even knowing that his close friend's brother was involved with United. Id. at 77-78.
As a sanction for their collusive scheme to benefit Simon and Michael Hogan to the detriment of IBT members, the IRB permanently expelled Hogan and Passo from the IBT.
Discussion
I. Standard of ReviewThe standards governing review of IRB disciplinary decisions are well established. This Court reviews determinations made by the IRB under an "extremely deferential standard of review." United States v. IBT ("Carey Hamilton"), 247 F.3d 370, 379 (2d Cir. 2001); United States v. IBT ("Simpson"), 120 F.3d 341, 346 (2d Cir. 1997); United States v. IBT ("DiGirlamo"), 19 F.3d 816, 819-20 (2d Cir. 1994). The IRB Rules, which were approved by this Court and the Court of Appeals, provide for review of decisions of the IRB under "the standard of review applicable to review of final federal agency action under the Administrative Procedure Act." IRB Rules ¶ O. See United States v. IBT ("IRB Rules"), 803 F. Supp. 761 (S.D.N.Y. 1992), aff'd as modified, 998 F.2d 1101 (2d Cir. 1993).
In accordance with that standard, this Court reviews "the IRB's findings of fact for `substantial evidence' on the whole record." United States v. IBT ("Giacumbo"), 170 F.3d 136, 143 (2d Cir. 1999). "The substantial evidence test is deferential." Id. "Substantial evidence is `something less than the weight of the evidence,' DiGirlamo, 19 F.3d at 820, but something `more than a mere scintilla.'" Simpson, 120 F.3d at 346 (quoting United States v. IBT ("Cimino"), 964 F.2d 1308, 1311-12 (2d Cir. 1992)). "Substantial evidence includes such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Simpson, 120 F.3d at 346 (internal quotations omitted). Moreover, the mere possibility of drawing two inconsistent conclusions from the evidence does not prevent the IRB's finding from being supported by substantial evidence. Carey Hamilton, 247 F.3d at 380 (citations omitted). Because the IRB conducts the disciplinary hearings, it is best equipped to evaluate the demeanor, credibility and, ultimately, the culpability of those who appear before it. Carey Hamilton, 247 F.3d at 380; accord United States v. IBT ("Carey Disqualification"), 156 F.3d 354, 365 (2d Cir. 1998); Cimino, 964 F.2d at 1313 (refusing to re-weigh evidence or question credibility determination made by Independent Administrator). Accordingly, the inferences drawn by the IRB from the facts are "discretionary and can only be disturbed if they are `arbitrary and capricious.'" Giacumbo, 170 F.3d at 143.
II. Hogan and Passo's Challenge to the IRB's Interpretation of the Red Book Contract and the Proposed United Contract
Hogan and Passo argue first that this Court should review the Red Book contract and the proposed United contract de novo and reverse the IRB's decision because the Board allegedly misinterpreted those contracts. Hogan Br. at 1-14; Passo Br. at 1-4. The issue before the IRB was not one of contract interpretation, however, but one of Hogan's and Passo's conduct. That conduct included: engineering the termination of Wilkerson and Frates; lying to local union officials about the terms of the proposed deal with Simon; lying to local officials about International support for the proposed arrangement with Simon; lying to the International about why Wilkerson and Frates should be terminated; failing to disclose material facts to their supervisors at the International; and using extensive union resources (including expenses for travel, hotels, phone calls, and countless lunch and dinner meetings) to secure a collusive deal with United. Because their conduct was largely undisputed, the central question remaining for the IRB to decide was not how to interpret the various contracts but whether Hogan and Passo engaged in this improper conduct and acted in concert with a non-union employer with the intent to benefit Hogan's friend Simon and his brother — all to the detriment of Local 631 — Michael Hogan, (as the IRB charged) or with the intent to benefit Local 631 (as Hogan and Passo claimed).
As Hogan's counsel acknowledged at the IRB hearing, "[t]he contested issues in this case are not so much about the facts, but rather the conclusions that are to be drawn from those facts. And those facts, as I say, are not in substantial dispute." Tr. at 29. Passo's counsel agreed, observing correctly that the central issue was one of intent: "It's not a who did it. It's not even a what happened. It's a why it happened." Tr. at 40. Since the question of intent does not turn upon the interpretation of any contract but depends upon the reasonable inferences to be drawn from Hogan and Passo's undisputed conduct, the standard of review is clear: inferences drawn by the IRB from the facts are "discretionary and can only be disturbed if they are `arbitrary and capricious.'" Giacumbo, 170 F.3d at 143. The IRB's conclusion that Hogan and Passo colluded with Simon for the purpose of benefitting Simon, Hogan's long-time business friend from Chicago, and Michael Hogan, his own brother — all to the detriment of Local 631 — is neither arbitrary nor capricious. To the contrary, that conclusion is compelling and inescapable.
Passo and Hogan were afforded the opportunity at the IRB hearing to explain to the IRB all of the reasons why they pursued an arrangement with Simon. The IRB's extremely detailed and thorough opinion scrutinizes their explanations and finds them to be incredible. See Carey Hamilton, 247 F.3d at 380 ("In accordance with the great deference owed to the IRB's determinations, law in this circuit establishes that a court `will not substitute its assessment of a witness's credibility with that of the IRB.") (citation omitted). For example, while Hogan and Passo claimed that they ultimately intended to organize United's employees as Teamsters, the IRB rejected that explanation as incredible, finding "no evidence of any organizing effort by either Hogan or Passo." IRB Decision at 58. The IRB's conclusion that Hogan and Passo had no intent to organize United is amply supported by the facts. As the IRB found, "[n]either Passo nor Hogan nor anyone under their direction ever spoke to any United employee." IRB Decision at 58. Having never spoken to the United employees, Passo and Hogan had no idea what terms these employees would even want from their employer. Id. at 60. Passo never spoke to the Local 631 staff organizers about organizing United and never requested organizing assistance from the International. Id. at 59. In fact, Hogan and Passo's own words betray their claims. Passo admitted that he "wasn't representing anybody." Id. at 58. For his part, Hogan testified that he considered the proposed contract with United to be a "contract for services," not a collective bargaining agreement. Id. Indeed, as the IRB suggested, for Hogan and Passo to attempt to organize United's employees by dealing exclusively with Simon, the employer, would violate the National Labor Relations Act, which grants employees the right to choose their own collective bargaining representative. Id. at 59. As the IRB observed, "[t]he employer['s] choosing his employees' bargaining representative is an indici[um] of a prohibited sweetheart deal between an employer and a union." Id. at 59. Based on these facts, it was reasonable for the IRB to infer that Hogan and Passo had no intent of ever organizing United employees as Teamsters, as they incredibly claimed at the hearing.
Hogan and Passo also argue that the IRB may not discipline them because the contract with Hogan was never finalized. However, that Hogan and Passo ultimately failed to achieve their corrupt objective is beside the point. In any event, ample evidence supports the IRB's conclusion that Passo and Simon had reached an agreement that they considered final.See, e.g., IRB Rep. Ex. 82 at 68. Passo told Whitfield (in a recorded conversation) that he had submitted his agreement with Simon to the IBT for review. IRB Decision at 41-42. In fact, Passo submitted to the IBT Legal Department "the amended language of the contract" with United. IRB Rep. Ex. 84. In that letter, Passo acknowledged that "[e]verything else [in the contract with United] will remain the same as in the GES Exposition contract." Id. Accordingly, the IRB concluded that, as far as Passo and Simon were concerned, the "negotiations" were over and the terms of the proposed contract with United were agreed upon.
Finally, to the extent the inferences of intent drawn by the IRB required an understanding of how the contracts at issue operated, the Board's understandings were not only reasonable but fully consistent with the understandings of the experienced Local 631 officers who actually enforced the contract. See Tr. at 64-65, 111-12, 401; IRB Rep. Ex. 5 at 19; Ex. 82 at 41-43; Ex. 26 at 63; Ex. 2 at 186-87; Ex. 203 at 27; Ex. 1 at 162. While Hogan and Passo now offer competing interpretations of these contracts, their subjective understandings of the contracts would be relevant only to the extent that, if honestly held at the time, they might provide evidence that Hogan and Passo acted in a good faith belief that their actions benefitted the local. The evidence, however, does not support such a claim. For example, it is undisputed that Hogan never even read any of the contracts at the time. Thus, the post-hoc interpretations by his counsel in this Court are simply irrelevant to his intent at the time. For his part, Passo's own testimony actually supports the IRB's understanding of the how the Red Book contract operated. See Tr. at 501 ("Q. You knew that under the Red Book contract that was then in effect that anybody who performed Teamster work was supposed to be paid at the contract rate; is that correct? A. Correct. Q. And it didn't matter from what source they came; correct? A. Correct."). Accordingly, the competing interpretations offered by Hogan and Passo after the fact do nothing to call into question the IRB's conclusions about their intent.
III. Hogan and Passo's Challenge to the IRB's Jurisdiction
Hogan and Passo again raise the claim included in the 2001 action that the IRB's disciplinary action exceeded its jurisdiction because the Consent Decree limits the IRB's jurisdiction to specific crimes and corrupt acts only. As the October 11, 2001 ruling in that action found, this argument is without merit.
The IRB's authority to interpret the IBT Constitution and discipline IBT members is now beyond serious dispute. See United States v. IBT ("IRB Rules"), 998 F.2d 1101 (2d Cir. 1993); United States v. IBT ("Friedman Hughes"), 905 F.2d 610, 613 (2d Cir. 1990). The Consent Decree expressly confers upon the IRB the same disciplinary authority that the IBT Constitution confers upon the General President and the General Secretary-Treasurer. See Consent Decree ¶ G.12(b). Since the IBT Constitution authorizes the IBT General President "to interpret and apply" the IBT Constitution and "to decide all questions of law thereunder," see IBT Const. Art. VI, Sec. 2(a), the IRB's disciplinary authority "necessarily includes the final authority to decide what constitutes an offense subject to discipline under the IBT Constitution."Friedman Hughes, 905 F.2d at 619 (describing Independent Administrator's authority). Recognizing this, the IRB Rules expressly authorize the IRB to investigate "conduct that in the IRB's view brings reproach upon the Union." IRB Rules, 803 F. Supp. at 802 (emphasis added), aff'd as modified, 998 F.2d 1102 (2d Cir. 1993). The IRB's conclusion that Hogan and Passo's misconduct brought reproach upon the union is a reasonable interpretation of the constitutional standard and, therefore, well within its designated authority.
Contrary to Hogan and Passo's argument, the scope of the Consent Decree is not limited to matters involving organized crime or to violations of specific federal criminal laws. See United States v. IBT ("Bastian Weisenburger"), 175 F.3d 1009, 1999 WL 97236, at *2 (2d Cir. 1999) (IBT Consent Decree not limited "to matters involving organized crime or to matters arising under federal labor laws"). Rather, it is clear that "'conduct that is not itself criminal can constitute a violation of the IBT Constitution.'" United States v. IBT ("Ross"), 826 F. Supp. 749, 758 n. 3 (S.D.N.Y. 1993) (quoting United States v. IBT ("Ligurotis"), 814 F. Supp. 1165, 1182-83 (S.D.N.Y. 1993)), aff'd mem., 22 F.3d 1091 (2d Cir. 1994). "In fact, a great number of grounds for discipline in the IBT Constitution are not criminal violations, including the failure to cooperate with internal IBT investigations, knowingly associating with members of organized crime, violating a Local Bylaw and disrupting Union meetings." Ligurotis, 814 F. Supp. at 1183. Thus, 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.See United States v. IBT ("Reardon"), 803 F. Supp. 734, 738 (S.D.N.Y. 1992) ("The flaw with these arguments is that Reardon is not objecting here to a conviction under [the LMRDA] in a criminal action. Rather, he is objecting to the Independent Administrator's findings that he violated [the IBT Constitution] in an internal disciplinary proceeding."); United States v. IBT ("Parise"), 777 F. Supp. 1133, 1138 (S.D.N.Y. 1991) (rejecting disciplined member's argument that "his actions were not `corrupt,' and that his suspension is therefore inappropriate because the misdemeanor to which he pleaded guilty is not an offense for which he can be barred from union office under [the LMRDA]."), aff'd, 970 F.2d 1132 (2d Cir. 1992). Accordingly, the IRB had jurisdiction to discipline Hogan and Passo regardless of whether their conduct violates the specific federal criminal statutes identified in the Consent Decree.
IV. Hogan and Passo's Free Speech Claims
Hogan and Passo argue again, as they did in the 2001 action, that the IRB's disciplinary action violates their rights to free speech because the IRB sanctioned them for mere advocacy of a proposed contract. As the October 11 ruling found, this argument is also without merit. As an initial matter, Hogan and Passo were not disciplined for mere advocacy of their views; they were disciplined for engaging in a pattern of concerted activity designed to benefit Simon and Michael Hogan to the detriment of Local 631. Passo did not simply advocate an idea; he repeatedly lied to local and International officials and engineered the elimination of the IBT officials who opposed him. For his part, Hogan actively used his considerable influence and connections to accomplish his corrupt goals. He introduced Simon to Passo, to Local 631 officials, and to International officers, including General President Hoffa. Indeed, Hogan himself initiated the scheme with the intention of benefitting his friend and his brother. Thus, the IRB did not discipline Hogan and Passo for their "thoughts" and "ideas" but for their active conduct in pursuit of an improper arrangement detrimental to Local 631.
That Hogan and Passo used speech to accomplish their corrupt ends does not mean that they are immune from disciplinary action. As noted in the October 11 findings, Hogan and Passo's free speech rights "do not extend to advocating collusive contacts with entities with a history of organized crime contacts and racketeering." Transcript of Proceedings,Hogan and Passo v. IRB, 01 Civ. 8620 (S.D.N.Y. Oct. 11, 2001) at 3. Indeed, "it has never been deemed an abridgment of freedom of speech . . . to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney v. Empire Storage Ice Co., 336 U.S. 490, 502 (1949). Here, the advocacy that Hogan and Passo claim is protected was the vehicle by which they committed the offense charged. As such, it is not protected. See United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir. 1990) ("[S]peech is not protected by the First Amendment when it is the very vehicle of the crime itself. E.g., . . . (conspiracy).") (citation omitted); see, e.g., Jews for Jesus, Inc. v. Jewish Community Relations Council of N.Y., Inc., 968 F.2d 286 (2d Cir. 1992) ("[T]he First Amendment is no bar to liability under the general common law prohibition of tortious interference with contract, which . . . is directed against conduct, not speech."). The First Amendment does not give IBT members the right to engage in collusive conduct detrimental to the IBT simply because the successful implementation of their corrupt scheme required both conduct and advocacy.
To the extent Hogan and Passo suggest that their discipline violates the free speech guarantees of the United States Constitution, that argument is contrary to well settled and controlling authority. It has long been firmly established that actions taken by the officers appointed pursuant to the Consent Decree, including disciplinary actions taken by the IRB, do not implicate the Constitution because they do not constitute state action. See, e.g., United States v. IBT ("Carey Disqualification"), 156 F.3d 354 (2d Cir. 1998); United States v. IBT ("Senese Talerico"), 941 F.2d 1292, 1296 (2d Cir. 1991); United States v. IBT ("Sansone"), 981 F.2d 1362, 1371 (2d Cir. 1992); United States v. IBT ("Star Market"), 954 F.2d 801, 806 (2d Cir. 1992); United States v. IBT ("Hickey"), 945 F. Supp. 96, 99 (S.D.N.Y. 1996); Erbaci, Cerone, Moriarty, Ltd. v. United States, 939 F. Supp. 1045, 1054 (S.D.N.Y. 1996); United States v. IBT ("Simpson"), 931 F. Supp. 1074, 1108 (S.D.N.Y. 1996), aff'd, 120 F.3d 341 (2d Cir. 1997); United States v. IBT ("Simpson Subpoenas"), 870 F. Supp. 557, 560 (S.D.N.Y. 1996).
Hogan and Passo make no argument that has not been made and rejected before. The two recent Supreme Court cases they cite do not in any way change the governing analysis or otherwise call these controlling decisions into doubt.
Nor does section 101(a)(2) of the LMRDA immunize Hogan and Passo from disciplinary action. Although the LMRDA protects the free speech rights of union members, as demonstrated above, those rights do not extend to the type of collusive conduct engaged in by Hogan and Passo. Furthermore, the free speech rights guaranteed by section 101(a)(2) are not absolute. The statute expressly permits a labor union to "enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations." 29 U.S.C. § 411(a)(2). Thus, even if Hogan and Passo's advocacy of their arrangement with Simon qualified as protected speech, the statute permits a union to defend itself by disciplining members for conduct that "threaten[s] the union as an institution and interfere[s] with the union's duties as collective bargaining agent." Ferguson v. International Ass'n of Bridge, Structural Ornamental Iron Workers, 854 F.2d 1169, 1174 (9th Cir. 1988). Here, Hogan and Passo engaged in conduct that betrayed the IBT as an institution and interfered with the collective bargaining obligations of Local 631. The IRB was entitled to enforce the IBT Constitution's standards of conduct and to discipline them for engaging in that conduct.
V. The IRB's Choice of Sanction
Finally, Hogan and Passo challenge the IRB's choice of sanction as excessive and disproportionate to the offense. Hogan Br. at 33; Passo Br. at 18-21. These arguments ignore both the governing standards and the seriousness of the egregious and harmful misconduct that Hogan and Passo engaged in.
The IRB, which heard all the testimony and considered all the evidence, is "best situated" to judge the culpability of those who appear before it and to fix an appropriate sanction. Cimino, 964 F.2d at 1311-13. Accordingly, "[t]he IRB has `wide discretion' in imposing sanctions." United States v. IBT ("O'Donnell"), 29 Fed. Appx. 685, 688, 2002 WL 243247, at 2 (2d Cir. 2002) (quoting Giacumbo, 170 F.3d at 144). In reviewing IRB sanctions, this Court asks only whether the sanction imposed represents an "allowable judgment" in the choice of the remedy.United States v. IBT ("Wilson, Dickens, Weber"), 978 F.2d 68, 73 (2d Cir. 1992) (citation omitted). "[T]he reviewing court should not overturn the . . . choice of sanctions unless it finds the penalty unwarranted in law or without justification in fact." Simpson, 120 F.3d at 348 (citing Wilson, Dickens, Weber, 978 F.2d at 73).
Permanent expulsion from the IBT represents an "allowable judgment" in the IRB's choice of sanction because it is expressly authorized by the IBT Constitution. See United States v. IBT ("Boggia"), 167 F.3d 113, 120 (2d Cir. 1999)("There is no dispute that the IBT Constitution provides that a member may be stripped of membership rights if found guilty of misconduct."); United States v. IBT ("Bane"), 2002 WL 654128, at *16 (S.D.N.Y. 2002) ("A lifetime ban on membership and employment with the union is a permissible sanction because it is authorized by the IBT Constitution and rules."), appeal docketed, Dkt. No. 02-6153 (2d Cir.);accord Carey Hamilton, 247 F.3d at 390 ("Carey has sympathetic arguments that the penalty imposed on him is harsh given his many years of service to the union; nonetheless, the penalty has a basis in the IBT rules and the Consent Decree."). Accordingly, the IRB's choice of sanction here was not "unwarranted in law."
Furthermore, the IRB acted well within its broad discretion when it concluded that permanent expulsion was warranted by the facts of this case. By engaging in their collusive scheme with United, a non-union labor broker, Hogan and Passo betrayed the IBT membership at Local 631 in an effort to benefit Hogan's brother and his business friend. Their misuse of their union authority resulted in the termination of innocent local officers, threatened to undermine Local 631's bargaining position with trade show contractors and amounted to an unfair labor practice. Furthermore, Hogan and Passo committed these actions while they were both high-ranking IBT officials: Hogan was an International Representative, President of Joint Council 25, and an officer of a local union; Passo was an International Representative, Special Assistant to the General President, and a Personal Representative of the General President. It is well within the IRB's broad discretion to conclude that Hogan and Passo's misconduct deserved a particularly severe sanction precisely because they held such high-level positions with the IBT. See Carey Hamilton, 247 F.3d at 389 ("Caselaw in this circuit supports the IRB's holding that because of Carey's position as the highest union official his misconduct was more serious."); Simpson, 120 F.3d at 349 ("It was well within the IRB's discretion to conclude that, precisely because Simpson was a trusted, high-level official in the IBT, his conduct . . . was more culpable."); Bane, 2002 WL 654128, at *16 ("Bane's relatively high-level position in the union — President of a large local union and International Representative — justifies the sanction."); cf. United States v. IBT ("O'Donnell"), 164 F. Supp.2d 328, 338 (S.D.N.Y. 2001) ("It seems appropriate that each of the consequences delineated by O'Donnell relates to the high positions of authority, responsibility and trust that he previously held in the IBT and Local 817 and that he now must forfeit as a direct result of his own wrongdoing."), aff'd, 2002 WL 243247 (2d Cir. 2002). A permanent bar sends precisely the right message to the IBT membership: that corruption by high-ranking IBT officials will not be tolerated — no matter how longstanding their memberships and no matter how many of their relatives are also members.
Passo notes that he was not an elected official and, incredibly, denies that he was a nationally recognized leader of the IBT. Dane Passo's Objection to Application 102 at 21. The above recitation of his positions put the lie to his denial.
Hogan argues that, even accepting the IRB's factual findings, the evidence established only that he advocated a contract that he "honestly" believed had merit. Hogan Br. at 33. Not only did the IRB make no finding that Hogan had an "honest" belief about the merits of the proposal with Simon but, to the contrary, it specifically found that Hogan's explanations for why he promoted the agreement with Simon were not credible. IRB Decision at 71-73. For example, with respect to Hogan's claim that he never even read the Red Book contract, the IRB found: "Either his testimony is false or he didn't care about the red book contract but only the best arrangement for Simon." Id. at 72. Similarly, the IRB observed that Hogan apparently gave "false" testimony at the IRB hearing when he denied knowledge of the "most favored nations" clause of that contract. Id. at 73 n. 77. Thus, the IRB's actual findings, including the findings that he misled his superiors and clandestinely aided Passo in an effort to benefit his own brother and his friend, belie any suggestion by Hogan that his beliefs at the time were "honest."
Passo argues that his sanction is excessive because, at most, he merely "attempted" to engage in the deal with Simon and that "the event never happened because Passo dropped it." Passo Br. at 19-20. Passo also argues that his conduct resulted in "no actual harm to any union member." Id. at 21. These arguments are not only contrary to the IRB's findings, they are disingenuous. Passo "dropped" his efforts to contract with Simon only because Scalf, his immediate superior, ordered him to stop dealing with Simon. IRB Decision at 44. Furthermore, the IRB expressly found that Passo and Hogan's misconduct caused harm to IBT members; in fact, the IRB found that IBT members were "repeatedly harmed." Id. at 57. The IRB also found that Passo used his authority as an International appointee to engineer the terminations of Wilkerson and Frates. Id. at 64. Finally, while there is substantial evidence of actual harm here, the obligation upon all IBT members to refrain from conduct that "brings reproach" upon the Union can be violated without any actual injury to the IBT. See,e.g., Friedman Hughes, 905 F.2d at 623 (conviction of IBT officer for embezzlement of non-IBT funds brought reproach upon IBT). Even without considering the actual injury he caused, it would certainly be reasonable for the IRB to conclude that Passo's misconduct, which included misusing his union authority, lying to local officials, and lying to his superiors — all to benefit a non-union company — brought reproach upon the IBT.
Passo also challenges his sanction on the ground that it is disproportionate to the misconduct and inconsistent with penalties imposed in other Consent Decree disciplinary proceedings. Passo Br. at 20-21. As an initial matter, Passo has not identified any IBT member who received a lesser sanction for engaging in misconduct remotely similar to his own. Even if he could identify an IBT member who engaged in comparable misconduct but received a lesser sanction, however, "it is well established that sanctions given in other cases are not relevant to the Court's inquiry as to whether a particular sanction is unwarranted or without justification." Bane, 2002 WL at 654128, at * 16; accord Giacumbo, 170 F.3d at 144 ("Uneven application of sanctions does not normally render the sanction imposed in a particular case arbitrary or capricious."); accord Sansone, 981 F.2d at 1371-72. In Sansone, the Court of Appeals rejected the officer's argument that his penalty should be overturned because it was more severe than penalties imposed in similar cases. Id. Despite noting that Sansone's penalty was "admittedly drastic" and that the Court "might not have reached the same conclusion," the Court nevertheless declined Sansone's invitation to substitute its judgment for the Independent Administrator's: "The apparent discrepancy between the penalty imposed here and those imposed in other cases does not inexorably compel the conclusion that the Independent Administrator acted arbitrarily or capriciously." Id. at 1372; see also Ross, 826 F. Supp. at 762 (Independent Administrator has authority to impose sentence more severe than that imposed on other IBT members who committed similar conduct). Accordingly, any alleged disparity between Passo's sanction and the sanctions imposed on others does not render the sanction arbitrary and capricious.
CONCLUSION
Application 102 is granted, and the IRB's decision is affirmed in all respects.