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UNITED STATES v. HOTEL EMPLES. & RESTAURANT EMPLES

May 6, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES, INTERNATIONAL UNION, Defendant. In re Appeal of John N. Agathos, Sr., Appellant.



The opinion of the court was delivered by: BROWN

 BROWN, District Judge

 This matter comes before the Court on the appeal of John Agathos, Sr. from the October 16, 1996 and November 25, 1996 decisions of the Court Appointed Monitor Kurt W. Muellenberg. For the reasons set forth herein, the Court will affirm the Monitor's decisions.

 I. BACKGROUND

 On September 5, 1995, this Court executed a consent decree in United States of America v. Hotel Employees and Restaurant Employees Int'l Union, 974 F. Supp. 411, 1997 U.S. Dist. LEXIS 11880. The consent decree resolved that litigation, in which the United States claimed that organized crime groups had dominated the Hotel Employees and Restaurant Employees International Union ("HEREIU") for twenty-five years, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. ยงยง 1961 et seq.

 The consent decree appointed Kurt Muellenberg as Monitor, and gives him the power to investigate the HEREIU, to review and veto various HEREIU actions, and to bar individuals from seeking elected office therein. Consent Decree PP 8-10. The consent decree also provides that the Monitor may remove or otherwise discipline

 
any officer, representative, agent, employee or person holding a position of trust in the HEREIU and its constituent entities when such person engages or has engaged in actions or inactions which: (i) violate the injunctive prohibitions of this Consent Decree, (ii) violate any criminal law involving the operation of a labor organization or employee benefit plan, or (iii) further the direct or indirect influence of any organized crime group or the threat of such influence now or in the future.

 Id. P 12. With respect to members, the consent decree similarly provides as follows:

 
The Monitor shall have the right and power to impose discipline up to and including expulsion from union membership when a member of the HEREIU or its constituent entities engages or has engaged in actions or inactions which: (a) violate the injunctive prohibitions of this Consent Decree; (b) violate any criminal law involving the operation of a labor organization or employee benefit plan; or (c) further the direct or indirect influence of any organized crime group or the threat of such influence now or in the future.

 Id. P 13.

 The consent decree contains a detailed procedure by which the Monitor shall dispose of disciplinary charges against union officials and members. It explicitly states that the Monitor will first adjudicate the charges and render a final decision, pursuant to the rules generally applicable in labor arbitration proceedings. Id. P 14. The consent decree provides:

 
When exercising his/her disciplinary rights and powers, the Monitor shall afford the subject of the potential disciplinary action written notice of the charge(s) against him/her and an opportunity to be heard. The Monitor shall conduct any hearing on any disciplinary charges, render the final decision regarding whether discipline is appropriate and impose the particular discipline. The charged party shall have 20 days to answer the charges against him/her and may be represented by counsel at any hearing conducted by the Monitor.

 Id. Only then may an aggrieved party appeal the Monitor's decision to this Court. Id. P 15.

 In or about September 1983, appellant Agathos became President of HEREIU Local 69 in Secaucus, New Jersey, and a trustee for the Local 69 Pension and Health and Welfare Funds (hereinafter "Local 69 Funds"). On or about January 22, 1996, the Monitor charged that Agathos, inter alia, knowingly associated with members or associates of an organized crime group from at least the 1970s until at least July 5, 1992 and beyond. See Agathos v. Muellenberg, 932 F. Supp. 636, 637 (D.N.J. 1996). In response, Agathos filed an application for a declaratory judgment before this Court that the charge was outside the scope of the Monitor's jurisdiction under the consent decree because it sought to discipline him for conduct prior to execution of the consent decree. By Opinion dated May 3, 1996, this Court denied Agathos' application and dismissed Agathos' application for lack of jurisdiction since the Monitor had not yet rendered an appealable decision. See id. at 638.

 On August 9, 1996, the Monitor served Agathos with a superseding charge which alleged that Agathos:

 
. Has in the past, and continues to knowingly associate with members and associates of the Genovese Crime Family ("GCF") an OCG [organized crime group], in violation of PP 12 and 13 of the Consent ...

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