157 Tac

Case 2:12-cv-09324-DDP-VBK Document 157 Filed 10/23/13 Page 1 of 151 Page ID #:2591
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PATRICK ADAMS, individually, and on behalf of all others similarly situated; Plaintiffs, vs. INTERNATIONAL UNION OF OPERATING ENGINEERS, a trade union; JAMES T. CALLAHAN, an individual; BRIAN E. HICKEY, an individual; WILLIAM C. WAGGONER, an individual; PATRICK L. SINK, an individual; JERRY KALMAR, an individual; RUSSELL E. BURNS, an individual; RODGER KAMINSKA, an individual; JAMES M. SWEENEY, an individual; ROBERT T. HEENAN, an individual; DANIEL J. MCGRAW, an individual; DAREN KONOPASKI, an individual; MICHAEL GALLAGHER, an individual; GREG LALEVEE, an individual; TERRANCE E. MCGOWAN, an individual; LOUIS G. RASETTA, an individual; VINCE GIBLIN, an individual; CHRIS BROWN, an individual; PAUL BENSI, an individual; SANDRA ACOSTA, an individual: CORNEL SNEEKES, an individual; JIM SCRANTON, an individual; DENNIS LUNDY, an individual; ABLE ENGINEERING SERVICES, a business entity of unknown type; ABM ENGINEERING SERVICES; a business entity of unknown type; ENRIQUE ALCALA, an individual; ED CURLY, an individual; JOHN T. AHERN, an individual; JOHN M. HOLLIDAY, an individual; KUBA J. BROWN, an individual; BRUCE MOFFATT, an individual; JAMES T. KUNZ, JR. , an individual; JAMES ZAZZALI, an individual; MICHAEL R. FANNING, an individual; CVS CAREMARK CORPORATION, a Delaware corporation;
Page 2 THIRD AMENDED CLASS ACTION COMPLAINT
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
TRIVANTAGE PHARMACY STRATEGIES, LLC, a business entity of unknown citizenship; TRUVEN HEALTH ANALYTICS, INC., a Delaware corporation; KENNETH CAPEHART, formerly sued as Doe 1; and, DOES 2 through 100, inclusive, Defendants.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. 3. 2.
TABLE OF CONTENTS TABLE OF CONTENTS ....................................................................................... i I. INTRODUCTION ..........................................................................................1 II. JURISDICTION AND VENUE......................................................................1 III. THE PARTIES TO EACH CLAIM FOR RELIEF .........................................2 A. Plaintiffs ..................................................................................................... 2 B. Defendants .................................................................................................. 5 1. 2. 3. 4. 5. 6. The IUOE Defendants ........................................................................ 5 The ABM Defendants ......................................................................... 9 The Able Defendants ........................................................................ 10 Local 501-Affiliated Defendants and Related Professionals ........... 11 Caremark/PBM Defendants.............................................................. 11 Removed Defendants and Doe Defendants ...................................... 12
IV. DEFENDANTS MISCONDUCT ................................................................14 A. Misconduct by the Able and ABM Defendants Caused Injury to TaftHartley Trust Funds Created to Benefit Plaintiffs and Local 501 Members ................................................................................................... 14 1. Plaintiffs Discovered Evidence That ABM and Able Conspired with the IUOE to Divert or Withhold Millions of Dollars from Numerous Member Benefits Funds .................................................. 14 ABM and Able Conspired with IUOE to Operate DoubleBreasted and Deprive Local 501 of Members and Revenues ........ 19 IUOE Conspired With ABM and Able to Allow Them to Circumvent Their Contract With Local 501 and Use Retired Employees to Avoid Benefit Fund Obligations ............................... 22 Able and ABM Management Employees Are Improperly Participating in the Central Pension Fund ........................................ 23
Page i THIRD AMENDED CLASS ACTION COMPLAINT
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
5.
Able and ABM Targeted Local 501 Employees Sympathetic to the Resistance and This Lawsuit ............................................................ 25
B. Caremark Overcharged Local 501 Members and Other Members Nationwide and IUOE Conspired with Caremark to Make This Possible..................................................................................................... 26 1. Defendants Diverted Caremark Reimbursements from Local 501s Health & Welfare Fund to IUOE and Imposed Caremark on IUOE Despite the Excessive Costs ............................................................. 26 2. 3. 4. IUOE Conspired with Caremark to Force Caremark on Members, Despite Caremarks Higher Prices ................................................... 27 Caremark Unilaterally Increased Rates to Pay for a Settlement in Which It Had to Reimburse for Overcharges ................................... 29 Caremark and IUOE Engaged in Bid Rigging and IUOE Threatened Retaliation Against Locals to Ensure That Caremark Was Selected as the PBM in all of the Largest IOUE Locals .......... 31 5. In Addition to Unilaterally Raising Rates, Caremark Engaged in Unfair and Deceptive Practices to Overcharge Locals Health & Welfare Funds................................................................................... 33 C. IUOE Forced Plaintiffs Serving As Officers or Employees of Local 501 and Others to Contribute to the Presidents Club/EPEC, a Political Action Fund .............................................................................................. 34 D. Plaintiffs Discovered Many Examples of Embezzlement and Asset Diversion from Local 501 and IUOE Accounts Created for the Benefit of Union Members, But the IUOE Defendants Undermined Efforts to Recover Diverted Assets by Engaging in Conduct Violative of Their Duties of Loyalty to Members ................................................................. 38 1. Dennis Lundy Embezzled from the Apprenticeship Trust Account 38
Page ii THIRD AMENDED CLASS ACTION COMPLAINT
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
2. 3. 4. 5. 6. 7.
IUOE President Giblin Protected Lundy by Providing Him Employment at IUOE ....................................................................... 39 After Lundys Departure from Local 501, Audits Uncovered the Substantial Amount of Lundys Embezzlement............................... 39 Lundy Helped Operate a Sham BOMA and EPA 608 Certification Testing System ................................................................................. 41 Lundy Absconded with Re-Election Campaign Funds .................... 44 Plaintiffs Advised the DOL and IUOE About Lundys Embezzlement .................................................................................. 44 Pressure to Abandon the Lundy Investigations, Originating From Giblin, Was Applied to Local 501; Meanwhile, the Employer Trustees Loyal to Giblin Failed to Pursue Lundy ............................ 46
8.
Jim McLaughlin Unsuccessfully Attempted to Appease Giblin, Who Frequently Expressed His Intention to Kill Those Who Challenged Him ................................................................................ 48
9.
Giblin Forced Out the Duly-Elected Business Manager of Local 501 .................................................................................................... 50
10. After the Ouster of Jim McLaughlin, Plaintiffs Again Sought Assistance from the DOL ................................................................. 56 11. Newly Appointed Business Manager Chris Brown Was Ordered by Giblin to Fire Plaintiffs Pette and Himmelberg ............................... 62 12. IUOE and Curly, Acting Under IUOE Orders, Embezzled Monies From Local 501 Members Related to the Members Efforts to Protect Mr. Pette and Mr. Himmelberg ............................................ 63 13. Giblins Demand that Local 501 Settle the Acosta Lawsuit to Avoid His Deposition ....................................................................... 64
Page iii THIRD AMENDED CLASS ACTION COMPLAINT
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
14. IUOEs Leadership Used Threats of Physical and Economic Violence, and Suborned Perjury, to Suppress Investigations and Usurp Control Over Local 501, All of Which Conduct Violated IUOEs Obligations to Its Members ................................................. 65 E. Professionals Under IUOEs Control Acted at the Direction of IUOE to Harm Local 501........................................................................................ 74 F. Giblin and IUOE Selected Zazzali to Fabricate the Appearance of Ethical Conduct by IUOE, While Actually Using Zazzali as Another Tool for the Oppression of Members Challenging IUOEs Widespread Corruption ................................................................................................ 75 G. Election Abuses and Related Misconduct Harming Local 501s Members ................................................................................................... 78 1. Decertification Election Tampering by Giblin and IUOE at UCLA Cost Local 501 Roughly 600 Members and Was Used as One Pretext for Terminating McLaughlin ............................................... 78 2. IUOE and IUOEs Hand-Picked Operatives Refused to Permit Local 501 Members to Nominate and Elect Delegates of Their Choosing to Attend the IUOE General Convention in April 2013 .. 80 3. Curly, Capehart, and Other Incumbents, with IUOEs Help, Conspired to Steal the Recent Election, Using Such Tactics as Withholding State Worker Address Corrections from the Master Mailing List Used for Ballots to Reduce Votes from Demographic Groups Viewed as Hostile to Curly, Capehart and the Other Incumbents........................................................................................ 84 4. Rick Alcala, Leading a Separate Spoiler Slate of Candidates, Harassed City of Los Angeles Employees Who Spoke with the Resistance Slate as Part of His Plan to Ensure That Curlys Incumbent Slate of Candidates Won the Election ............................ 85
Page iv THIRD AMENDED CLASS ACTION COMPLAINT
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
H. Defendants and Their Agents Destroyed or Removed Records That Should Have Been Retained by Local 501 for 5 Years ........................... 90 V. CLASS ACTION ALLEGATIONS ..............................................................91 VI. CLAIMS FOR RELIEF ................................................................................96 FIRST CLAIM FOR RELIEF ..............................................................................96 SECOND CLAIM FOR RELIEF .......................................................................103 THIRD CLAIM FOR RELIEF ...........................................................................121 PRAYER FOR RELIEF .....................................................................................128
Page v THIRD AMENDED CLASS ACTION COMPLAINT
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3. II. 1.
I.
INTRODUCTION
Officers of labor unions are held to the highest standards of
responsibility and ethical conduct in administering the affairs of the union. Unfortunately, while some union officers and trustees do place members interests above their own and act in accordance with the high standards governing their conduct, others, as this case unquestionably demonstrates, do not. This action arises from years of illegal activity by the International Union of Operating Engineers (IUOE or the International) and its controlling officers and coconspirators. Local 501, a local trade union, and its members, were victimized by those many years of illegal activity, both by the IUOE and local officers of Local 501 and trustees of its employee benefit plans. The unlawful abuses suffered by Local 501 and its members takes three predominant forms. First, millions upon millions of dollars were withheld and/or embezzled from Local 501, its affiliated trusts, and its membership, including Plaintiffs and class members. Second, Local 501 was prevented from expanding its membership; the employers violating their contracts with Local 501 were protected by Defendants, who were receiving kickbacks for their protection. And, third, the membership of Local 501 was denied the right to freely select its own officers and General Convention delegates, through fair and honest elections.
2.
The conduct of Defendants harkens back to the days of unrepentant
racketeering by organized crime, which makes some sense here. The IUOE conducts its affairs with the same disregard for others rights as the mob. JURISDICTION AND VENUE
The action is brought, among other bases, under the Interstate
Commerce Clause of the United States Constitution, and under ERISA. In addition, this action is brought pursuant to Article 1, Section 1 of the Constitution of the State of California and other statutes and laws of the State of California.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
4.
Jurisdiction is specifically conferred on this Court by various federal
statutes including, but not limited to ERISA 502(e)(1), 29 U.SC. 1132(e)(1). Original jurisdiction lies with this Court as to the federal questions raised herein, pursuant to 28 U.S.C. 1331.
5.
Jurisdiction over any California state law claims for relief contained in
this Complaint arises under the doctrine of supplemental jurisdiction, 28 U.S.C. 1367(a).
6.
Venue as to each Defendant is proper in this District because
Defendants are engaged in interstate and foreign commerce, and a substantial part of the events giving rise to the claims for violations of Federal law occurred in this District, all in the course of interstate and foreign commerce. Venue is also proper in this District pursuant to ERISA 501(e)(2), 29 U.S.C. 1132(e)(2).
III. A. 7.
THE PARTIES TO EACH CLAIM FOR RELIEF
Plaintiffs Plaintiff Finn Pette is, and at all relevant times was, a member of Local
501. Mr. Pette also previously was financial secretary of Local 501, and a Business Representative for Local 501. Other than as to Defendants Able, ABM, Scranton, Sneekes, and Bensi, who were not parties to any agreement between Mr. Pette and IUOE, Plaintiff Pette limits his claims in this action to those events occurring on or after May 1, 2012. Plaintiff Pette was employed by Defendant ABM until 2002.
8.
Plaintiff James McLaughlin is, and at all relevant times was, a member
of Local 501. Mr. McLaughlin served as a Business Manager of Local 501. Mr. McLaughlin was the chairman of Local 501s Health & Welfare Trust, and the Apprenticeship Trusts of Southern California and Southern Nevada. Mr. McLaughlin was also the Vice President of the Western Conference of Operating Engineers. From April 1998 to June 30, 2009, Mr. McLaughlin served as a Vice President of the IUOE General Executive Board. He was re-elected by the general
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
members of the IUOE every 5 years to serve as a Vice President of the IUOE. On June 30, 2009, there were 14 Vice Presidents that served on the General Executive Board. At the time he was forced to resign as Vice President, he was the second most senior Vice President of the IUOE. Other than as to Defendants Able, ABM, Scranton, Sneekes, and Bensi, who were not parties to any agreement between Mr. McLaughlin and IUOE, Plaintiff McLaughlin limits his claims in this action to those events occurring on or after May 1, 2012.
9.
Plaintiff Daniel Himmelberg is, and at all relevant times was, a
member of Local 501. Mr. Himmelberg was Chairman of the JAC, a Taft Hartley trust fund at Local 501, and also served Local 501 as its Assistant Business Manager. Other than as to Defendants Able, ABM, Scranton, Sneekes, and Bensi, who were not parties to any agreement between Mr. Himmelberg and IUOE, Plaintiff Himmelberg limits his claims in this action to those events occurring on or after May 1, 2012.
10.
Plaintiff Glenn Szalay is, and at all relevant times was, a member of Plaintiff Jay Brophy is, and at all relevant times was, a member of Plaintiff Anne Brophy is, and at all relevant times was, a member of Plaintiff Robert (Bob) Fox is, and at all relevant times was, a
Local 501.
11.
Local 501. Mr. Brophy is retired.

12.
Local 501. Mrs. Brophy is retired.

13.
member of Local 501. Robert Fox is a former Business Manager of Local 501 and former Vice President of the IUOE. Mr. Fox retired as Business Manager of IUOE Local 501 and IUOE Vice President in 1992.
14.
Plaintiff John Crooks is, and at all relevant times was, a member of
Local 501 assigned to the Las Vegas division of Local 501. He served as assistant training director of the JAC until January 2010, when he resigned.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
15.
Plaintiff Nye Nelson is, and at all relevant times was, a member of
Local 501 and is retired from the position of Local 501 Business Agent in Los Angeles.
16.
Plaintiff Linda Pette is, and at all relevant times, was: (a) (b) the spouse of Local 501 member Finn Pette; and, a beneficiary of member Finn Pettes pension and healthcare benefits, provided by the Central Pension and the Health & Welfare Fund, respectively.
17.
Plaintiff Judy McLaughlin is, and at all relevant times, was: (a) (b) the spouse of Local 501 member James McLaughlin; and, a beneficiary of member James McLaughlins pension and healthcare benefits, provided by the Central Pension and the Health & Welfare Fund, respectively.
18.
Plaintiff Christine Himmelberg is, and at all relevant times, was: (a) (b) the spouse of Local 501 member Dan Himmelberg; and, a beneficiary of member Dan Himmelbergs pension and healthcare benefits, provided by the Central Pension and the Health & Welfare Fund, respectively.
19.
Plaintiff Erik B. Smith is, and at all relevant times was, a member of
Local 501. He was employed by Defendant Able Engineering Services until he was terminated in and around January 2013 at least in part as retaliation for his unwillingness to put up with the wrongful conduct of Able and/or IUOE.
20.
Plaintiff Christopher Menor is, and at all relevant times was, a member Plaintiff Patrick Adams is, and at all relevant times was, a member of
of Local 501.
21.
Local 501. Plaintiff Patrick Adams last served in the position of Super Chief before being terminated by Defendant Able Engineering Services for cooperating with Local 501 members actively resisting IUOEs efforts to control Local 501 and
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
oppress its members. Mr. Adams was employed by Able from April 2008 to December 31, 2012. Mr. Adams has been employed by ABM since February 11, 2013.
22.
All the Local 501 member Plaintiffs identified above are participants
and/or beneficiaries in the Operating Engineers Local 501 Security Fund (more commonly known as the Health & Welfare Fund, which describes its healthcare benefit function) and the Local 501 Southern California Operating and Maintenance Engineers Apprenticeship and Training Trust (more commonly known as the Training Trust, the JAC, or Joint Apprenticeship Committee). All Plaintiffs were participants in the Central Pension Fund, with the exception of the spouses of members, and they are beneficiaries under the Central Pension Fund.
23.
The Plaintiffs identified as members of Local 501 are also intended
beneficiaries of all collective bargaining agreements entered into on their behalf with employers, including but not limited to defendants ABM and Able. In March 2013, it was announced that Local 501 retirees would be dropped from the Health & Welfare plan unless they paid the full price of coverage, which, for some retired members, would cost at least $1,000 per month, and often much more, compared to the several hundred dollars per month that retired members were paying for many years prior.
24.
Plaintiffs reserve the right to seek leave to amend this complaint to add
new plaintiffs, if necessary, in order to establish suitable representative(s) of the Class proposed herein and/or any necessary sub-Class.
B.
Defendants
1.
The IUOE Defendants
25.
Defendant International Union of Operating Engineers (IUOE or
the International) is a trade union that primarily represents operating engineers, who work as heavy equipment operators, mechanics, and surveyors in the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
construction industry, and stationary engineers, who work in operations and maintenance in building and industrial complexes, and in the service industries. IUOE also represents nurses and other health industry workers, a significant number of public employees engaged in a wide variety of occupations, as well as a number of job classifications in the petrochemical industry. Founded in 1896, IUOE today has approximately 400,000 members in approximately 123 local unions throughout the United States and Canada. IUOE is the 10th largest union in the AFL-CIO. Local 501 is a stationary local.
26.
Defendant James T. Callahan is the General President (GP) of
IUOE, allegedly selected in November 2011. Callahans ascension to the position of GP was nothing than an appointment by outgoing GP Giblin, as all officers of GEB swear allegiance to the GP and to his named successor. There has never been a contested election in the history of the IUOE for the position of General President. Defendant Callahan served as the IUOE General Secretary-Treasurer and was chosen as IUOE Vice President in 2008. Defendant Callahan is also a Trustee of the IUOE General Pension Fund.
27.
Defendant Brian E. Hickey is General Secretary-Treasurer of IUOE,
chosen in November 2011. Mr. Hickey has served as an IUOE Vice President since 2001. Defendant Hickey is also a Trustee of the IUOE Central Pension Fund and also Business Manager of Local 399, located in Chicago, Illinois. Local 399 is also a stationary local. Defendant Hickey is the Treasurer of IUOEs EPEC Political Action Fund.
28.
Defendant William C. Waggoner is the First Vice President of IUOE.
Mr. Waggoner was first chosen as an IUOE Vice President in 1980. Mr. Waggoner is also the Western States Director and Business Manager of Local 12 headquartered in Pasadena, California.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
29.
Defendant Patrick L. Sink is the Third Vice President of IUOE. Mr.
Sink was first chosen as an IUOE Vice President in 2004. Mr. Sink is Business Manager of IUOE Local 18 headquartered in Cleveland, Ohio.
30.
Defendant Jerry Kalmar is the Fourth Vice President of IUOE. Mr.
Kalmar was first chosen as an IUOE Vice President in 2005. Mr. Kalmar is the Business Manager of IUOE Local 39.
31.
Defendant Russell E. Burns is the Fifth Vice President of IUOE. Mr.
Burns was first chosen as an IUOE Vice President in October 2006. Mr. Burns is the Business Manager for IUOE Local 3 headquartered in Alameda, California.
32.
Defendant Rodger Kaminska is the Sixth Vice President of IUOE. Mr.
Kaminska was first chosen as an IUOE Vice President in 2008. Mr. Kaminska is the Business Manager for IUOE local 101 headquartered in Kansas City, Missouri.
33.
Defendant James M. Sweeney is the Seventh Vice President of IUOE.
Mr. Sweeney was first chosen as an IUOE Vice President in 2009. Mr. Sweeney is Business Manager for IUOE Local 150 headquartered in Countryside, Illinois.
34.
Defendant Robert T. Heenan is the Eighth Vice President of IUOE.
Mr. Heenan was first chosen as an IUOE Vice President in 2009. Mr. Heenan is the Business Manager of IUOE Local 542 headquartered in Fort Washington, Pennsylvania.
35.
Defendant Daniel J. McGraw is the Ninth Vice President of IUOE.
Mr. McGraw was first chosen as an IUOE Vice President in 2011. Mr. McGraw also has served as the Northeast Regional Director for the IUOE and is headquartered in Albany, New York. He is also the Business Manager for IUOE Local 158 headquartered in Albany, New York. IUOE locals in Albany, Rochester, Binghamton and Syracuse were merged to form Local 158. The merger was completed in January 2012.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
36.
Defendant Daren Konopaski is the Tenth Vice President of IUOE. Mr.
Konopaski was first chosen as an IUOE Vice President in 2011. Mr. Konopaski is the Business Manager of IUOE Local 302 headquartered in Bothell, Washington.
37.
Defendant Michael Gallagher is the Eleventh Vice President of IUOE.
Mr. Gallagher was first chosen as an IUOE Vice President in 2011. Mr. Gallagher is the Business Manager of IUOE Local 793 headquartered in Oakville, Ontario, Canada.
38.
Defendant Greg Lalevee is the Twelfth Vice President of IUOE. Mr.
Lalevee was first chosen as an IUOE Vice President in 2011. Mr. Lalevee is the Business Manager for IUOE Local 825 headquartered in Springfield, New Jersey.
39.
Defendant Terrance E. McGowan is the Thirteenth Vice President of
IUOE. Mr. McGowan was first chosen as an IUOE Vice President in 2011. Mr. McGowan is also a Trustee of the IUOE General Pension Fund. He is the Business Manager of IUOE Local 139 headquartered in Pewaukee, Wisconsin.
40.
Defendant Louis G. Rasetta is the Fourteenth Vice President of IUOE.
Mr. Rasetta was first chosen as an IUOE Vice President in 2012. Mr. Rasetta also serves as the Chairman of the Board of the IUOE General Pension Fund. He is Business Manager of IUOE Local 4 which is headquartered in Medway, Massachusetts.
41.
Defendant Vincent (Vince) Giblin was General President of IUOE Defendant John (Jack) T. Ahern is the current Business Manager of
from about 2005 until his retirement in November 2011.

42.
Local 30, located in Richmond Hill, New York. Mr. Ahern served as a General Executive Board Member for IUOE and is currently serving on the GEB as one of five trustees for IUOE (the trustees on the GEB are constitutional positions tasked with monitoring the financial activities of the GEB).
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
43.
Defendant John M. Holliday is the current Business Manager of Local
917, located in Chattanooga, Tennessee. Mr. Holliday is currently serving on the GEB as one of five trustees for IUOE.
44.
Defendant Kuba J. Brown is the current Business Manager of Local
94, located in New York City, New York. Mr. Brown is currently serving on the GEB as one of five trustees for IUOE.
45.
Defendant Bruce Moffatt is the current Business Manager of Local
955, located in Edmonton, Alberta, Canada. Mr. Moffatt is currently serving on the GEB as one of five trustees for IUOE.
46.
Defendant James T. Kunz, Jr. is the current Business Manager of Local
66, located in Pittsburgh, Pennsylvania. Mr. Kunz is currently serving on the GEB as one of five trustees for IUOE.
47.
Defendant James Zazzali is a retired New Jersey Supreme Court
Justice. Mr. Zazzali is currently associated with the law firm Zazzali, Fagella, Nowak, Kleinbaum, and Friedman, located in Newark, New Jersey. He was appointed by former IOUE General President to the position of Ethics Officer in 2007. His hiring was ratified at the General Convention in 2008.
48.
Defendant Michael R. Fanning is the Chief Executive Officer for
IUOEs General and Central Pension Funds.

2. 49.
The ABM Defendants
Defendant Cornel Sneekes was, at some relevant times, a management
employee of ABM. Mr. Sneekes served as an employer/management Trustee on the Local 501 JAC board. ABM had under-contributed to the JAC Trust Fund during many of the years that Mr. Sneekes served as a Trustee. Sneekes took no action, as a fiduciary, to halt this conduct, to the detriment of the beneficiaries and participants whose interests he was required to serve with a single eye.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
50.
Defendant Jim Scranton was, at relevant times, the President of ABM
Engineering Services. Mr. Scranton served as an employer/management Trustee on the Local 501 JAC board. ABM had under-contributed to the JAC Trust Fund during many of the years that Mr. Scranton served as a Trustee. Mr. Scranton served as a Trustee for the Health & Welfare Trust Fund through at least August 2009, and then again in 2012. ABM had under-contributed to the Health & Welfare Trust Fund during many of the years that Mr. Scranton served as a Trustee. Scranton took no action, as a fiduciary on these funds, to halt this conduct, to the detriment of the beneficiaries and participants whose interests he was required to serve with a single eye.
51.
Defendant ABM Engineering Services is a business entity owned by
ABM Industries, Inc. which has employed many class members and certain of the named Plaintiffs, as discussed above.
3. 52.
The Able Defendants
Defendant Paul Bensi is the CEO of Able Engineering Services and a
Trustee of the Central Pension Fund for the IUOE. Mr. Bensi, at all times relevant, served as an employer/management Trustee on the Local 501 JAC board. Mr. Bensi has served as a Trustee for the Health & Welfare Trust Fund through at least 2013, becoming the Chairman of the Trust earlier this year. Mr. Bensi is one of only two Employer Trustees for the Local 39 Pension Plan. Mr. Bensi is also one of only two Employer Trustees on the Local 39 Annuity Trust Fund. Mr. Bensi also serves on the Joint Apprenticeship Committee for Local 39. Bensi has knowingly allowed under-contributions by Able to these funds while serving as a fiduciary to the funds participants and beneficiaries.
53.
Defendant Able Engineering Services is a business entity wholly
owned by Able Services, which has employed many class members and certain of the named Plaintiffs, as discussed above.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
4. 54.
Local 501-Affiliated Defendants and Related Professionals
Defendant Ed Curly is the current Business Manager of Local 501,
with fiduciary duties in that capacity to the members of Local 501. Defendant Curly was appointed by IUOEs GP to this position after Chris Brown was terminated by Callahan following Mr. Browns appointment by former GP Giblin. Defendant Ed Curly is currently operating Local 501 under the supervision of the current IUOE President, James Callahan. Mr. Curly has served, at relevant times, as a Trustee for the Health & Welfare Trust Fund.
55.
Defendant Kenneth Capehart, formerly sued as Doe 1, is the current
President of Local 501, with fiduciary duties in that capacity to the members of Local 501.
56.
Defendant Sandra Acosta was, at all relevant times, an employee of Defendant Dennis Lundy was, at relevant times, the Director of JAC.
IUOE Local 501. Mrs. Acosta served as a business representative.

57.
Dennis Lundy also serves on the Joint Apprenticeship Committee, California Unit #12, for Local 39. Dennis Lundy now serves as Western Regional Director of IUOE.
58.
Defendant Enrique (Rick) Alcala is a member of Local 501. He was
at one time an instructor for the JAC. He recently ran against Ed Curly and Finn Pette for Business Manager in Local 501s election that took place in August 2013, finishing last.
5. 59.
Caremark/PBM Defendants
Defendant CVS Caremark Corporation is a Delaware corporation.
CVS Caremark Corporation (Caremark) was formed following the 2007 merger of CVS Corporation and Caremark Rx, Inc. Defendant Caremark is not currently
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
qualified to conduct business in California, according to the California Secretary of States website.
60.
Defendant Trivantage Pharmacy Strategies, LLC is a business entity
organized in a state not currently known to Plaintiffs. In 2009, Trivantage Pharmacy Strategies, LLC was acquired by Thomson Reuters. In 2012, Thomson Reuters agreed to sell Thomson Healthcare, including Trivantage Pharmacy Strategies, LLC, to Veritas Capital. The new company that was created out of this sale is Truven Health Analytics.
61.
Defendant Truven Health Analytics, Inc. is a Delaware corporation
and the successor-in-interest to the obligations of Defendant Trivantage Pharmacy Strategies, LLC a business entity acquired by Thomson Reuters in 2009. On information and belief, Defendant Truven Health Analytics is financially responsible for the misconduct of Defendant Trivantage Pharmacy Strategies, LLC, though it is not alleged that Defendant Truven Health Analytics participated in any manner in the misconduct perpetrated by Defendant Trivantage Pharmacy Strategies, LLC.
6. 62.
Removed Defendants and Doe Defendants
James Van Dyke, no longer sued herein, was the Chief of Staff for Richard Griffin, no longer sued herein, was General Counsel for IUOE Chris Brown, no longer sued herein, was the former Business Manager
IUOE, but he is now retired.

63.
and has since left that position.

64.
of Local 501, having been appointed by GP Giblin to fill the vacancy created when Giblin forced Mr. McLaughlin to resign as the duly elected Business Manager of Local 501. Mr. Brown was later removed from that position by Callahan after Mr. Brown disclosed Callahans instruction to Mr. Brown to provide false testimony at
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
a deposition. Mr. Brown also served as a Trustee for the Health & Welfare Trust Fund.
65.
Louis Levy, no longer sued herein, was an attorney that represented
the Board of Local 501 and membership of Local 501. Mr. Levy previously worked for IUOE three years earlier, performing legal services.
66.
Cynthia Escanuelas, no longer sued herein, was, at relevant times, the Randy Henningfield, no longer sued herein, was a Certified Public
office manager for JAC.

67.
Accountant hired to audit Trusts for Local 501, including the Apprentice Training Fund (JAC). Henningfield was married to Cynthia Escanuelas.
68.
Mike Russell, no longer sued herein, is a former President of Local Plaintiffs do not know the true names or capacities of the persons or
501 and former local Executive Board member, at times relevant herein.
69.
entities sued herein as DOES 2-100, inclusive, or have not determined the nature of extent of their liability to Plaintiffs, and therefore sue said Defendants by such fictitious names. Each of the DOE Defendants was in some manner legally responsible for the violations alleged herein. Plaintiffs will amend this complaint to set forth the true names and capacities of these Defendants when they have been ascertained, together with appropriate charging allegations, as may be necessary.
70.
At all times mentioned herein, the Defendants named as DOES 2-100,
inclusive, and each of them, were residents of, doing business in, availed themselves of the jurisdiction of, and/or injured Plaintiffs and aggrieved employees in the State of California, among other locations.
71.
At all times mentioned herein, each Defendant was the agent, servant,
or employee of the other Defendants and in acting and omitting to act as alleged herein did so within the course and scope of that agency or employment. Defendants acted in concert or participation with each other, and/or aided and abetted one another, and/or were joint participants and collaborators in the acts
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
complained of, and/or were the agents or employees of one another in doing the acts complained of herein, each and all of them acting or omitting to act within the course and scope of said agency and/or employment by the others, each and all of them acting in concert one with the other and all together. Each Defendant was the co-conspirator, aider and abettor, agent, servant, employee, assignee and/or joint venturer of each of the other Defendants and was acting within the course and scope of said conspiracy, agency, employment, assignment and/or joint venture and with the permission and consent of each of the other Defendants.
72.
The term Defendants as used herein includes DOES 2-100
(Defendant Capehart has been identified herein as Doe 1).

IV.
DEFENDANTS MISCONDUCT
A.
Misconduct by the Able and ABM Defendants Caused Injury to Taft-Hartley Trust Funds Created to Benefit Plaintiffs and Local 501 Members
1.
Plaintiffs Discovered Evidence That ABM and Able Conspired with the IUOE to Divert or Withhold Millions of Dollars from Numerous Member Benefits Funds
73.
Able, a signatory to contracts with IUOE local unions, controls ABM, a signatory to contracts with IUOE local unions, control roughly When Mr. Pette became the Financial Secretary of Local 501 in June
roughly 25% of all stationary engineering positions in the state of California.

74.
70% of all stationary engineering positions in the state of California.

75.
2007, he was asked by Mr. McLaughlin to investigate Lundys possible embezzlement of funds from the Training Trust (sometimes referred to herein by its other common name, the JAC Fund). Ultimately, in addition to discovering that Lundy had, in fact, embezzled tens of thousands of dollars by submitting personal
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
expenses, such as lunches with his mistress, for reimbursement, Mr. Pette also observed that contributions to the Training Trust seemed insufficient and requested an audit. After an audit, it was determined that, in 2009, ABM had shorted the Training Trust approximately $180,000 and Able had shorted the Training Trust approximately $280,000. The shortfall should have been easy to detect and correct, were it not for the invidious usurpation of control of Local 501 by Defendants.
76.
Under the BOMA contracts that were in effect for the 5-year period
spanning 2007-2011, the Training Trust received $179 per member per year from a signatory employer employing a member. Because membership numbers are relatively stable, the contributions to the Training Trust should also be stable. However, an examination of IRS form 990 shows that this was not the case. Year 2004 2005 2006 2007 2008 2009 2010 Employer Contributions $484,739.00 $438,760.00 $613,517.00 $719,827.00 $590,124.00 $1,079,473.00 $1,273,390.00
The 2009 and 2010 figures represent the payments after Able and ABM were forced to address the shortfalls in their contributions.
77.
Paul Bensi of Able, and Jim Scranton and Cornel Sneekes of ABM, sat
as Employers Trustees of the Training Trust, including in 2009. In that capacity, they helped conceal for years the underpayments by Able and ABM to the Training Trust. They also used their influence to prevent audits of years prior to 2009.
78.
The $179 annual payment that Able and ABM were obligated to pay
into the Training Trust for each member was not the only benefit fund contribution
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
that Able and ABM were obligated to pay for members. In addition to that annual payment, Able and ABM both agreed, pursuant to the BOMA CBAs, to contribute to members other benefit funds, including the Health & Welfare Fund and the Central Pension Fund. Contributions to the Health & Welfare Fund and the Central Pension Fund were and are calculated on an hourly basis. That is, the more hours a member worked each year, the higher the contributions to those benefit funds.
79.
Despite their obligations under the BOMA CBAs, Able and ABM
were also shorting their contributions to the Health & Welfare Fund at Local 501, established to purchase benefits, like healthcare plans, for members. The shorting scheme was fairly simple: Members were required to work a specific number of hours to be eligible for benefits through the Health & Welfare Fund. Once an employer reported that an employee worked the necessary number of hours, the employer was obligated to contribute money for each hour worked by the employee. After a certain number of hours were worked the employee-member would have fully funded that years benefits.
80.
For full-time employees, Able and ABM reported the number of hours
needed to entitle the employee-member to full benefits for the year in question, but then Able and ABM stopped reporting all additional hours worked in order to eliminate their obligation to keep contributing to the Health & Welfare Fund beyond the minimum necessary to fund benefits. (Many class members worked far more than the minimum hours needed to become entitled to full benefits for the year.) While this would facially seem to cause no harm to Local 501 members, it was, in fact, highly prejudicial to the interests of members. When a member received additional Health & Welfare Fund contributions beyond the minimum necessary, those additional contributions would have, had they been paid, provided for payment of benefits in future years, including upon retirement. By underfunding the Health & Welfare Fund, Able and ABM deprived Local 501 members of this supplemental benefit cushion, causing great financial harm to
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
them. It is believed that Able and ABM may have jointly underfunded the Health & Welfare Fund by millions of dollars over the Class period.
81.
Paul Bensi, Jim Scranton and Cornel Sneekes also used their influence
on the Health & Welfare Fund to ensure that the results of a promised audit of contributions of Able and ABM to the Health & Welfare Fund were never completed or presented.
82.
Beyond the underfunding of the Health & Welfare Fund, the
underreporting of hours resulted in a staggering cascade of other harm to Local 501 and its members, including the underfunding of the Central Pension Fund for Local 501 members. As explained above, since contributions to the Central Pension Fund also depend on the number of hours worked, Able and ABM were underfunding their contributions to the Central Pension Fund, by underreporting hours worked by members for benefit purposes. In addition to the underfunding of benefit funds, the underreporting of hours worked by members deprived Local 501 of much needed administrative operating contributions that would have been much higher had the correct number of hours been reported. This harmed Local 501s ability to operate.
83.
Despite this patent disregard of contractual obligations intended to
benefit Local 501 members (and other locals members around the country), Able and ABM were allowed to financially benefit by Defendants, including, but certainly not limited to, IUOE and Vince Giblin, who should have demanded the cessation of under-reporting and under-contributing. In return, Able and ABM rewarded the other Defendants.
84.
One example of the improper exchanges of favors and kickbacks
between IUOE and contractors ABM and Able involved Dennis Giblin, son of Vince Giblin. Dennis Giblin was criminally charged under ERISA for receiving an improper gratuity. Under federal law, it is a crime for an employee of an ERISAcovered fund to receive or solicit any fee, kickback, commission, gift, loan, money, or thing of value because of any of the individuals actions, decisions, or other
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
duties relating to such fund. In 2010, Dennis Giblin pleaded guilty in Newark federal court to receiving kickbacks and embezzling in connection with a business transaction during his tenure as head of Local 68s job training and education program. The guilty plea was entered relatively quickly by Dennis Giblin to discourage deeper investigation into Local 68, which would have uncovered widerranging kickback schemes with Able and ABM.
85.
Due to his conviction, Giblin was ineligible to work for IUOE or Local
68 under the LMRDA. So Vince Giblin approached Paul Bensi at Able and sought a kickback for Ables continued ability to operate double-breasted and underfund a number of Trusts created for the benefit of rank and file union members, including members of Local 501. Defendant Bensi created a high-paying position at Able for Dennis Giblin, despite his conviction, and Dennis Giblin was immediately hired by Able as consideration to Vince Giblin for allowing it to underfund member benefit funds and engage in other wrongful conduct related to the Central Pension Fund (offering access to management-level employees who were not union members). On one occasion, believed to be in and around May 2010, while Lundy was working for IUOE in support of a Senate re-election campaign, Lundy received a call from Vincent Giblin. Lundy used a speakerphone on the call. Others overheard the call. Vincent Giblin advised Lundy that he had completed a deal with Able to employ Dennis Giblin following Denniss criminal charges in Local 68. Vincent Giblin also said that he made all audits in 501 go away. The audits referred not only to the audits directed at Lundy, but the audits targeting Able and ABM as well, and likely to uncover the extent of underpayments to JAC, the Health & Welfare Fund, and the Central Pension Fund.
86.
And Lauren Lundy, the daughter of Dennis Lundy, was given a job by
Bensi and Able in its Chicago, Illinois division, despite the fact that Dennis Lundy left Local 501 after looting the Training Trust.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1/27/2011 Date: 12/30/2010

87.
2.
ABM and Able Conspired with IUOE to Operate DoubleBreasted and Deprive Local 501 of Members and Revenues
Union contracts with ABM and Able require, at minimum, that any
building that is unionized through Local 501 must remain unionized in subsequent labor contracts and new buildings added must be opened to Local 501 for organization of the labor force in those new buildings. Among other things, ABM and Able are obligated to provide the names and contact information for all employees in non-unionized buildings added subsequent to the entry of the most recent labor contract. ABM and Able, with the cooperation of IUOE following the payment of some of their improperly retained profits to IUOE leadership, did not comply with their labor contracts.
88.
Instead, ABM and Able blatantly operate double breasted. In labor
parlance, double breasted refers to the side-by-side operation of unionized and non-unionized workforces, though it is a term that is also, and more commonly, used to describe a business owner creating a second company to circumvent a collective bargaining agreement. For example, in a January 28, 2011 email, Maira Rodriquez circulated job opportunities at ABM and requested feedback on any necessary changes. The job opportunities listed both union and non-union stationary engineer positions: Position Available Union Journeyman Engineer Details Job No.
Multiple Locations - Los 16092923RWS Angeles/ Orange County. M-F days. Starting ASAP. Pay Rate Union scale. Deadline until filled. San Diego, Day shift, starting ASAP, $18-$35/hr, Operations and maintenance engineer must be experienced [sic] in HVAC boilers, chillers, and energy management systems, as well as electrical and 1677TE
Building Engineers (Chief, Assistant Chief, Utility Engineer, and Building Engineer)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8/3/2010 NU Engineer - Bldg. Engineer 8/3/2010 NU Engineer - Bldg. Engineer 11/23/2010 6/10/2010 Date: 4/15/2010 Position Available 3/30/2010 Union Journeyman Engineer 1/14/2011 Journeyman Building Engineer
plumbing. Deadline until filled. 600 W. 7th Street. Los 16043160RD Angeles, Swing shift M-F, starting ASAP, Data Center, pay rate Union scale, strong electrical background, deadline until filled. Century Plaza Towers, Century 16054042RWS City, Mon-Fri swing shift, Starting ASAP, Class A High Rise, Union Scale, Experience needed, Deadline until filled.
And, in a December 30, 2010 email, Maira Rodriquez circulated job opportunities at ABM and requested feedback on any necessary changes. The job opportunities listed both union and non-union stationary engineer positions, including the sample listed below:
Details
Job No. 1652CVB
Certified/ Non Certified Newport! Irvine, M-F days, OMP starting ASAP, Class "A" Complex, Union BOMA Contract payscale, 5-8 years OMP experience, deadline until filled. Union Cert One Person West LA, M-F Days, Starting Plant ASAP, Union Scale, 5-8 years or higher of OPP experience. Deadline until filled. Central Plant Operator 900 Corporate Pointe, Culver City, Days M-F, January 1st, central plant campus, $38-$40/hr. deadline until filled. Beverly Hills, day shift M-F, starting date to be determined, Mid- rise, $30-$35, Strong HVAC and strong electrical, EPA cert in refrigeration, deadline until filled. Beverly Hills, day shift M-F, starting date to be determined,
1602CVB
16042877RD
1607KS
1604RD
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3/24/2010 Non-Union Engineer (Part-Time) 3/30/2010 Union Journeyman Engineer 3/30/2010 Union Journeyman Engineer
Mid- rise, $30-$35, Strong HVAC and strong electrical, EPA cert in refrigeration, deadline until filled. Miracle Mile, Los Angeles, M-F days (8-4), Starting ASAP, Class A High Rise, Union Scale, Experience needed. Deadline until filled. 16042014RWS
16054042RWS Century Plaza Towers, Century City, Mon-Fri swing shift, Starting ASAP, Class A High Rise, Union Scale, Experience needed, Deadline until filled Los Angeles,Part Time, 2-3 days per week, Starting ASAP, $35/hr, Strong HVAC and strong electrical, EPA Cert in refrigeration, Deadline until filled. 16093080KS
N/U or NU are non-union job opportunities.

89.
ABM also failed to disclose to Local 501 its contract to provide Able also engages in widespread double-breasted operations. In one
stationary engineers to the entire California Courts system.

90.
such case, referred to as the Jamison contract, notorious double-breasted building owner, Dr. David Lee (through Jamison Services, Inc.), contracted with exclusively with Able Engineering for staffing engineers in his buildings. But a comparison of the complete listing of all Able Engineering properties under the Local 501 CBA with that list of David Lee properties obtained from his company's website, reveals numerous buildings never disclosed to Local 501 for organization by Able. Well over 100 properties are missing from the Local 501 contract.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
91.
3.
IUOE Conspired With ABM and Able to Allow Them to Circumvent Their Contract With Local 501 and Use Retired Employees to Avoid Benefit Fund Obligations
Stationary Engineers are sometimes difficult to temporarily replace
when they are unavailable for work for any reason. A policy was put in place to allow retired employees to work up to 40 hours a month in temporary coverage positions while still retaining their Central Pension Fund benefits. The purpose was to allow retired employees to cover spot vacancies for permanent employee members, when, for example, the permanent employee took a two week vacation or needed to take sick leave. Able and ABM misused the provision, bringing in retired employees for longer periods. Able and ABM then paid them by 1099 to hide them from detection during simple audits. Normally, Able and ABM would have been required to pay a portion of Health & Welfare benefits for those retired employees and pay into the Central Pension Fund for these retired employees working in excess of 40 hours a month in any given month. Able and ABM never paid their share of the Health & Welfare benefits and never paid into the Central Pension Fund for the time worked by those retired members.
92.
The use of 1099 payments hid this practice from Local 501. Mr. Pette,
Mr. Himmelberg and Mr. McLaughlin were removed by Mr. Giblin to prevent them from detecting the full scope of this activity. This practice harmed Local 501 membership but benefitted Bensi, who received enhanced bonuses based on lowered labor costs, and benefited Able and ABM, which avoided payments they should have made if they reported honestly.
93.
Because they were also Health & Welfare Fund Trustees, Mr. Bensi,
for Able, and Mr. Scranton, for ABM, knew that Mr. Pette and Mr. Himmelberg were initiating audits into Ables and ABMs practices causing underpayments to JAC, Health & Welfare and the Central Pension Fund. Vincent Giblin, whose son was employed by Able following his criminal ventures at Local 68, could not allow
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
anything to upset his relationship with Able. Vincent Giblin immediately began his campaign to remove Mr. Pette, Mr. Himmelberg and Mr. McLaughlin from any position of authority in Local 501.
94.
The actions of Able and ABM were harmful to Local 501. An active
member, next on deck, who should have been employed, was denied work due to the use of retired workers in the 1099 scheme. This harmed Local 501 and the active member denied employment, as well as the various funds that did not receive contributions for hours worked.
4.
Able and ABM Management Employees Are Improperly Participating in the Central Pension Fund
95.
At least 27 management employees of Able and ABM are improperly
participating in the Central Pension Fund (erroneously labelled the general pension fund in the First Amended Complaint), and there are undoubtedly more. Bob Fox called the Central Pension Fund and spoke with Mike Fanning in an initial attempt to identify the individuals improperly participating in that Fund. Mike Fanning said that the information would not be provided to him, could only be provided at the request of the local business manager, Curly, who has thus far (to Plaintiffs knowledge) refused to make such a request.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
96.
Other participants include the following:
PAGAC, BRIAN V MCTAGUE, LOU MIRZAYAN, GEORGE PAXTON, WILLIAM SITZMAN, KURT SESTO, ROMEO M TURKICH, JOHN WONG, STEVEN MANNING, BRUCE C SNEEKES, CORNEL SORENSEN, E LUTES, ROBERT MICHAEL
1,039.98 1,039.98 1,039.98 1,039.98 1,039.98 1,039.98 1,039.98 1,039.98 1,140.00 0.00 0.00 0.00
42,897.96 63,816.67 20,320.30 41,223.71 62,723.39 46,176.83 20,089.29 58,118.59 58,600.60 21,447.17 32,479.89 36,719.42
$6,239.88 $6,239.88 $6,239.88 $6,239.88 $6,239.88 $6,239.88 $6,239.88 $6,239.88 $6,840.00 $0.00 $0.00 $0.00
$135,000.44 $199,110.83 $63,272.38 $66,476.36 $196,262.29 $157,320.25 $101,044.93 $196,316.66 $170,680.05 $55,102.74 $99,038.77 $117,964.82
02/13/1960 09/04/1960 10/18/1958 06/07/1956 10/03/1959 04/07/1956 08/04/1969 01/27/1962 05/11/1958 08/30/1956 07/01/1965 01/20/1970
04/84 07/82 10/89 11/78 03/83 01/88 02/03 01/86 10/78 08/82 05/88 01/91
YES YES YES YES YES YES YES YES YES YES YES YES
06/12 06/12 06/12 06/12 06/12 06/12 06/12 06/12 06/12 12/06 02/10 10/07
22.00 26.00 10.50 20.00 30.00 23.00 9.70 27.00 27.10 10.90 16.00 17.00
$3,520.89 $5,676.63 $1,445.37 $2,014.69 $5,636.54 $4,355.20 $2,240.22 $5,591.95 $4,555.00 $1,814.08 $3,006.87 $3,933.11
97.
Ables ability to access the Central Pension fund and include Ables
non-union personnel in the IUOE Central Pension Fund could not be approved on a local union level and had to be approved by the International General President, at that time, Vincent Giblin. Able grew rapidly as a result of assistance from IUOE that included permission to offer participation in the IUOE central pension fund (restricted to IUOE members) to managerial employees of building owner/operators as an enticement to leave ABM and hire Able to provide stationary engineering services. IUOE encouraged Ables growth through these unlawful means so that ABMs position in the industry would weaken and IUOE could play ABM and Able off against each other. Able grew in a matter of a few years from an obscure company to the second largest in the country with regard to the number of buildings it manages. Once Able had attained an adequate market share, Giblin could credibly offer Bensi a Trustee position on the Central Pension Fund as well, further ensuring Bensis and Ables loyalty to Giblin and IUOE leadership.
98.
Jim Scranton was a managerial-level employee at ABM and was not
eligible to participate as a management employee in the IUOE Central Pension

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Fund. Nevertheless, Mr. Scranton is currently receiving distributions from the Central Pension Fund.
99.
The inclusion of non-union members in the Central Pension Fund
unreasonably exposes union member plan participants to the risk that, in the event of an underfunding, the union members will be forced to contribute additional funds to cover distributions to non-members in a pension fund that was established exclusively for IUOE members. When Giblin allowed such behavior to occur, he breached his fiduciary duties to members, both in his role as a union officer and as a Trustee. Likewise, James Callahan breached his fiduciary duties to members, both in his role as a union officer and as a Trustee. Paul Bensi, a Trustee on the Central Pension Fund, has also breached his fiduciary duties to members as a Trustee. The GEB members, who all continue to passively permit this inappropriate arrangement, have also breached their fiduciary obligations to IUOE members in the Central Pension Fund.
100.
The inclusion of non-member, management employees creates
conflicting incentives regarding compensation and benefits packages, since management-level employees benefit from any emphasis on pension benefits, to the exclusion of other forms of compensation for union members. The creation of this inappropriate incentive also violates fiduciary obligations to union members.
5.
Able and ABM Targeted Local 501 Employees Sympathetic to the Resistance and This Lawsuit
101.
Individuals known or believed to be sympathetic to or cooperative with
the resistance in Local 501 are now being targeted in retaliation by Able and ABM. Pat Adams, a Super Chief, and Erik Smith were terminated from their positions with Able because it was believed that they were sympathetic or cooperative with the resistance in 501. Able personnel were at union meetings and observed Mr. Smith and others wearing clothing or pins indicating their support for the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
resistance at Local 501. Able personnel observed resist buttons on Mr. Smith and others at their job site.
102.
Eric Sorenson, an ABM Vice President, attended the December 2012
semi-annual meeting of Local 501. At that meeting, he took pictures of all individuals wearing the Man in Black shirt that is a sign of support for the resistance to IUOEs ongoing, unlawful dominion over Local 501.
103.
Able and ABM also conspired with IUOE to influence the outcome of
the 2010 election at Local 501. For example, in that election, ABM blocked electioneering emails to union members from resistance candidates, while permitting through their mail servers the electioneering emails sent on behalf of candidates approved by IUOE.
B.
Caremark Overcharged Local 501 Members and Other Members Nationwide and IUOE Conspired with Caremark to Make This Possible
1.
Defendants Diverted Caremark Reimbursements from Local 501s Health & Welfare Fund to IUOE and Imposed Caremark on IUOE Despite the Excessive Costs
104.
Defendant Vince Giblin was Chairman of the Board for Horizon Blue
Cross at the same time he became General President of the IUOE. Because of his dual roles, Giblin was able to require use of Blue Cross as the healthcare benefits provider to local unions, including Local 501. Blue Cross utilizes Caremark as its Prescription Benefits Manager (PBM). Because of the number of members utilizing the Blue Cross/Caremark benefit, members are entitled to receive a rebate from Caremark, reflecting the members substantial buying power. The Caremark rebates should have been paid out to each local union. Instead, they were paid to IUOE. IUOE, in turn, failed to account to Local 501 (and other local unions) for the rebates the Locals should have received.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
105.
When Caremark does provide a rebate, and a Local requests
justification for the amount of rebates and charges, Caremark will not provide the documentation to support the charges and rebates. Local 501 has never received a thorough, transparent and auditable accounting of rebates from Caremark.
2.
IUOE Conspired with Caremark to Force Caremark on Members, Despite Caremarks Higher Prices
106.
In 2006, IUOE reported that it had engaged Trivantage Solutions to
solicit bids for PBM services for all of IUOE. PBM refers alternatively to prescription benefits manager or pharmacy benefits manager, both describing the same benefit.
107.
In late 2007, Giblin, then General President of the IUOE and also
Chairman of the Board of Directors for Horizon Blue Cross/Blue Shield of New Jersey, sought to finalize an agreement between the IUOE, all of the IUOE locals, and Caremark as the PBM. As Chairman of the Board of Directors for Horizon Blue Cross/Blue Shield of New Jersey, Giblin declared substantial compensation in connection with this position.
108.
In April of 2008, the 37th International General Convention for IUOE
was held in Las Vegas. During the course of this Convention, General President Vincent Giblin met with the General Executive Board (GEB) and key business managers for the larger IUOE Locals to gain support for the new PBM, Caremark.
109.
The inclusion of the Locals with the largest membership numbers was
critical to the General Presidents plans with Caremark. These included, at a minimum, Locals 3, 12, 18, 68, 94,150, and Local 501. The total membership in the IUOE is roughly 400,000, according to IUOEs own website. Local 3 claims to have 42,000 members. Local 12 had roughly 21,000 members. Local 18 claims to have 15,000 members. Local 68 claims to have 5,863 (all stationary) members. Local 94 claims to have 5,835 members (all stationary). Local 150 claims to have
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
22,425 members. Local 501 has roughly 10,000 members. Although some other Locals had larger memberships than 94 and 68, both of the latter Locals are all stationary engineers. Local 399 with its 9,227 members, Local 324 with its 15,530 members and Local 39 with its 16,762 members (all with loyal GEB members at the helm), were equally important to the Caremark contracts. Totaling the membership from the IUOE Locals that Giblin knew he could count on to support his Caremark deal, he had at least a total of 62,354 members (Locals 18, 39, 68, 94, 399) providing support for his Caremark plan. However, this was less than 20% of the total IUOE membership. In order for Giblins plan to succeed, he needed Locals 3, 12, 150 and 501 to sign on as well to his plan. In total, these Locals held just shy of 100,000 members.
110.
Several of the larger Locals investigated other PBM providers prior to The contract with Caremark is held by IUOE, not Local 501. Terms
agreeing under duress to accept Caremark as their PBM service provider.

111.
were negotiated by Trivantage, an entity retained by IUOE, not the Health & Welfare Trust Fund at Local 501. Five cents from every prescription were charged to Local 501s Health & Welfare Trust Fund to pay Trivantage, even though Trivantage is not under contract with Local 501. Truven Health Analytics, Inc. acquired Trivantage as part of the acquisition of the healthcare consulting business sold by Thomson Reuters, and Truven Health Analytics, Inc., is the successor-ininterest to Trivantage.
112.
Efforts to obtain less expensive PBM services were and are futile so
long as IUOE imposes its dominion and control over Local 501s affairs. In October 2009, John St. John, an attorney at St. John, Wallace, Brennan & Folan LLP, warned the Trustees of the Health & Welfare Trust Fund that efforts to replace Caremark as the PBM had political overtones. For example, in an October 20, 2009 e-mail, Mr. St. John wrote:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
I think some complaint should be made to the IUOE about Trivantages non response. However, this might have political overtones, so I'll leave it up to you to decide whether such a complaint should be made, and if so whether it should come from you (or someone else at Local 501) or from me. Let me know. As explained above, Trivantage was employed by IUOE to negotiate the terms of PBM services with Caremark and disregarded the representatives of the Local 501 Health & Welfare Trust Fund.
113.
Vince Giblin had a financial incentive to ensure that his Caremark
schem succeeded. Vince Giblin received as much as $199,625 from the Blue Cross Board while simultaneously serving as GP of IUOE. Despite this conflict of interest demonstrated in the most severe manner when Giblin forced Locals to use over-priced Caremark PBM services in direct violation of fiduciary duties to Health & Welfare Fund participants and beneficiaries at Locals, including Local 501, Giblin suffered absolutely no adverse action through Ethics Officer Zazzali for this unethical conduct. Vince Giblins LM-30 filings confirm the conflicting employment. Shockingly, IUOE attorney Griffin caused several of those LM-30 filings to be hand-delivered to the U.S. Department of Labor, but he evidently never counseled GP Giblin against pursuing this very real conflict that manifested itself in Giblins Caremark scam. The IUOE Constitution explicitly prohibits selfdealing in connection with any member welfare plans. Constitution, Article XVI, Section 7.
3.
Caremark Unilaterally Increased Rates to Pay for a Settlement in Which It Had to Reimburse for Overcharges
114.
In 2009, Caremark reached a settlement in New England Carpenters
Health Benefits Fund, et al. v. First DataBank, Inc. and McKesson Corporation, U.S. District Court, District of Massachusetts Case No. 05-11148-PBS, as a result
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
of allegations of overcharging third party payors, such as Local 501s Health & Welfare Trust Fund. In response to being forced by this settlement to reimburse third party payors for overcharges, Caremark asserted a right to unilaterally increase rates charged to Local 501s Health & Welfare Fund for PBM services. Regarding this behavior, counsel to Local 501s Health & Welfare Fund said wrote to the Trustees: I have said before that, as fiduciaries, you should not consent to the modification unless the Fund receives something in exchange. If in fact (i) Caremark would not offer the new contract (or any new contract) to the Fund unless you consented to the modification, and (ii) the Fund could not obtain a contract from another PBM that was at least as good as Caremark's proposal, then it would be legally appropriate to give your consent to the modification. Of course, "consent" appears to be moot here, since Caremark has already unilaterally implemented the pricing change. I doubt that my recent letter to Caremark's counsel will prompt Caremark to unring the bell and reinstate the pre-September pricing method. This means that recovery of the excess charges under the modification would require some action by you, meaning litigation. So "consent" would mean a decision not to take any action against Caremark. A couple of points here. First, as fiduciaries you are not compelled to take legal action on behalf of the Fund if the anticipated costs and risks of litigation outweigh the anticipated benefits. As I said earlier, it looks to me that the pricing modification implemented by Caremark will cost the Fund about $30,000 (although this is a very rough estimate). There is no provision for attorneys' fees in the contract, so even if you won in any suit the Fund would have to bear its own legal fees.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
So, in simpler terms, Caremark got away with one because (a) the Trustees believed that the cost of litigation was an impediment to making them do the right thing, and (b) IUOE was making sure that no such litigation occurred to protect the sweetheart deal arranged by Giblin.
115.
The rate increase imposed on Local 501 was not isolated. In fact,
Caremark unilaterally claimed a right to increase rates on Locals around the country because it had been caught overcharging other third party payors. Caremark passed on a portion of the settlement of its illegal charges to other payors, essentially leaving IUOE Locals responsible for a portion of Caremarks illegal behavior.
4.
Caremark and IUOE Engaged in Bid Rigging and IUOE Threatened Retaliation Against Locals to Ensure That Caremark Was Selected as the PBM in all of the Largest IOUE Locals
116.
McLaughlin, after threats from Giblin, advised other Local 501 Health
& Welfare Fund Trustees that Local 501 had to accept Caremark and that Giblin had threatened retaliation if they refused. The Trustees stopped soliciting bids from other PBM providers, regardless of the price bids, even though they already had lower-priced bids in hand. The defendant Trustees and fiduciaries of Local 501s Health & Welfare Trust Fund acquiesced to this extortionate pricing by Caremark, the PBM imposed on them by Giblin and IUOE.
117.
Caremarks rates for PBM services are significantly higher than the
rates charged by comparable competitors. For example, Local 3, another IUOE Local in California, put the PBM package out for competitive bid. Denver Management handled the bidding process for Local 3. Caremarks bid was fourth by price. Caremarks bid was roughly $4 million higher than the winner of the bidding process. Giblin was told that Medco had won the bid process, so Giblin
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
was aware that Caremarks rates were significantly higher than other options, and that continued insistence on the use of Caremark was detrimental to members and contrary to the fiduciary obligations of Fund trustees and Union leadership to their members.
118.
The Business Manager of Local 49, Glen D. Johnson, was dissatisfied
with Caremarks service and lack of transparency. The Trustees of Local 49s Health & Welfare Trust Fund put the PBM contract out for competitive bid to replace Caremark. Vince Giblin told Johnson to put Caremark back in. Mr. Johnson declined, saying that Local 49 was ready with a new PBM provider and that Mr. Johnson had no vote on the Board of Trustees of their Health & Welfare Trust Fund. Mike Treanor, Interim Director of Research & Education, was dispatched by IUOE and Giblin to Minnesota to demand a second round of bids for PBM services and to attempt to stack the deck for Caremark. Even with that interference, Caremarks bid was not the low bid. Counsel advised the Trustees that they would be violating fiduciary duties if they didnt move forward with new contract. Glen Johnson, a Member of the IUOE General Executive Board, was told by Giblin to resign from the Executive Board as a Trustee. Mr. Johnson was next told by John Hamilton, Second Vice President of IUOE at the time, to resign as Vice President of the North Central States Conference. Hamilton was the President of the North Central States Conference at that time. The effect of these actions is to leave Johnson isolated at Local 49.
119.
Immediately prior to the award of the PBM service contract to
Caremark, officers from IUOE Local 3 that had not yet accepted Caremark received an angry call from General President Giblin. With all of the Locals officers in the room, Giblin screamed for some time at them by telephone, demanding that they sign on to the Caremark deal he proposed. During the course of this call, Giblin threatened to put the Local under trusteeship if the Officers of the Local failed to deliver the Local into the Caremark deal.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
120.
Soon after the telephonic berating by Giblin, at IUOE Local 3, a
meeting was held to discuss Caremark. Representatives from the Local, from Trivantage, and from IUOE were all present. The IUOE representative demanded access to the bids for PBM services obtained by the Local. The Local acquiesced to the demand, and, not surprisingly, Caremarks subsequent revised bid was suddenly less than the lowest bid that the Local had obtained and then delivered to IUOEs representative upon his demand. This illegal bid-rigging allowed Giblin to secure the critical mass of acceptance of Caremark that he needed to force Caremark on all of IUOE. While this Local was being extorted and threatened, Local 12, helmed by loyal and powerful GEB Vice President Waggoner, was given permission to negotiate its own deal with Caremark. The only demand placed on this Waggoner was that he keep it a secret that the deal his Local negotiated was a little better than the deal obtained by IUOE for every other Local in IUOE. This deal was conducted without the assistance of Trivantage.
121.
Representatives of IUOE and Trivantage conspired within the state of
California to engage in unlawful conduct designed to ensure that Caremark was selected as the PBM for all Locals in IUOE. This conspiracy included a concerted plan of action directed at Locals and their members, bid-rigging, extortion, and other anti-competitive conduct that actually injured beneficiaries throughout the State of California and the United States. After conspiring to take certain actions in furtherance of that goal, the plan was implemented and Caremark did, in fact, secure business from the vast majority of Locals in IUOE nationwide.
5.
In Addition to Unilaterally Raising Rates, Caremark Engaged in Unfair and Deceptive Practices to Overcharge Locals Health & Welfare Funds
122.
In mid-2012, auditors at Local 3 completed a review of Caremarks
PBM services. They discovered that, in just one aspect of Caremarks services,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Caremark had illegally overcharged the Locals health & welfare fund in excess of $6.5 million for the relatively short period covered by the audit review. This same illegal practice was in place throughout the nation, and Caremark is under investigation by states around the country for this improper practice. The affected beneficiaries around the country may have been harmed in excess of $200 million by this one illegal scheme operated by Caremark. Caremark has received a demand from the Local that performed the review to refund these overcharges. Caremark refused, but did not deny that the illegal practice occurred. Caremark only challenged the amount of the alleged damage.
123.
Because Caremark was aware that its contract was with IUOE, and
IUOE was forcing Locals to accept the Caremark arrangement, Caremark had no incentive to deal honestly and fairly with Locals seeking to negotiate terms that were in their best interest. Lacking a direct, arms-length relationship with Locals, Caremark took maximum advantage of the captured Locals that were forced to deal with it.
124.
In and around October 2013, on information and belief, well after the
filing of this lawsuit, Local 501 has made a decision to discontinue the use of Caremark as its PBM, in recognition that the costs of using Caremark are and have been excessive, as alleged by Plaintiffs in this lawsuit. Local 501s officers and Health & Welfare trustees, including but not limited to Curly and Capehart, breached their fiduciary duties to members by waiting for years to take this action.
C.
IUOE Forced Plaintiffs Serving As Officers or Employees of Local 501 and Others to Contribute to the Presidents Club/EPEC, a Political Action Fund
125.
Vince Giblin, as General President of IUOE, dramatically increased
contributions to IUOEs Political Action Fund, the Presidents Club/EPEC, previously and sometimes still known just as EPEC. However, he did so by
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
engaging in illegal conduct. Giblin required any officer, organizer, instructor, coordinator, business agent or district representative of a local union or its affiliate operation, such as a training trust, to contribute to the Presidents Club. Officers were told that if they wanted to serve as an officer, organizer, instructor, coordinator, business agent or district representative, they had no choice but to contribute to the Presidents Club, in amounts ranging from hundreds to thousands of dollars a year. On information and belief, the obligation to contribute extended beyond the local level to IUOE employees and affiliates of IUOE.
126.
In addition to plaintiffs Pette, Himmelberg and McLaughlin, plaintiffs
Nelson and Crooks were required to, and did, make mandatory EPEC contributions, under the threat of loss of employment of they refused to do so.
127.
All other Local unions were similarly required to contribute, on a
mandatory basis, to the Presidents Club Political Action Fund. The annual contribution to the Presidents Club Fund from the employees and officers of all Local unions is estimated to exceed $2.5 million per year and is in the range of $2 million to $3 million per year. In 2012, the total contributions to the fund were $3,023,901.12. A small portion of those contributions were additional contributions from other members, but the vast portion consists of mandatory contributions from officers and employees of Locals around the country. The FEC Committee ID for the Fund is C00029504.
128.
The mandatory nature of the contributions was part of IUOEs and
Giblins desire to elevate the stature of IUOE as a political force through aggressive donations to political candidates. These contributions are used, in part, to shield IUOE from the full intensity of regulatory scrutiny. IUOEs average expenditures doubled in 2006 and reached an unprecedented level in 2012:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
129.
Rather than soliciting contributions from members, IUOE, in
violation of the Federal Election Campaign Act and Federal Election Commission rules, mandated that officers and employees contribute to the Presidents Club/EPEC, in the amount of 1% of compensation, up to 1% of $80,000. Contribution forms are included as part of the new-hire paperwork. Individuals are first encouraged to complete the authorization paperwork. When mere encouragement fails, hardball tactics are applied, and the resisting individual is told that they must contribute if they want to keep their job. All employees, whether or not directly threatened themselves, know that the threat of loss of employment exists, and make contributions subject to that threat.
130.
In California, at least $10,000 of EPEC funds were used to defeat
Proposition 226, the so-called Paycheck Protection initiative, which would have required unions to obtain written permission annually before they could use their members dues for political activity. Choice is anathema to IUOE.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
131.
The end result was that union employees around the county were
forced into political contribution schemes without voluntarily consenting to participation. The results of this illegal behavior speak for themselves, as IUOEs political collections and expenditures skyrocketed under Giblins control. In the 37th Convention Program, Giblin boasted about the results of his unlawful political contribution collection schemes when he wrote: Also, the IUOE today ranks near the top of national lists as one of the most active union political players in terms of influence and voluntary contributions. Considering that three years ago we couldnt be found on anyones political list, this is a very noteworthy accomplishment and one we have every intention of continuing to improve on as we move forward. What is implausible about this claim is the characterization of contributions as voluntary. At that same convention, contributions from members were mandated to be included in collective bargaining agreements, and officers and employees of locals around the country experienced extortive pressure to contribute upon threat of job loss, eliminating any pretense of choice. Financial threats of economic harm and retaliation, in violation of the Hobbs Act, among other laws, were used, at the direction of IUOE and Giblin, to obtain the dramatically increased contribution levels about which Giblin boasted.
132.
The mandatory five-cent deduction rule implemented in many locals
was never implemented in Local 501, because, despite IUOE instructions, Jim McLaughlin, as Business Manager, refused to implement it, which decision likely contributed to his improper ouster by Giblin.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
D.
Plaintiffs Discovered Many Examples of Embezzlement and Asset Diversion from Local 501 and IUOE Accounts Created for the Benefit of Union Members, But the IUOE Defendants Undermined Efforts to Recover Diverted Assets by Engaging in Conduct Violative of Their Duties of Loyalty to Members
1.
Dennis Lundy Embezzled from the Apprenticeship Trust Account
133.
In 2007, Dennis Lundy was in charge of the Local 501 Apprenticeship
Trust. At about that time, Mr. McLaughlin questioned certain expenditures by Mr. Lundy, which were found to be excessive. A spending limit was imposed on Mr. Lundy, requiring a second signature on checks, at least above a pre-determined limit, if not on all checks. Lundy bypassed Mr. McLaughlin and Don Mear and sought out JAC Trustee Cornel Sneekes, his personal friend, to sign checks and permit Lundy to continue his excessive spending and embezzlement from the JAC Fund. Sneekes was aware that the expenditures were excessive and unlawful. By signing the checks, Sneekes helped to conceal Lundys illegal conduct. In his position as Trustee of the Local 501 Training Trust, Lundy also forged Mr. McLaughlin's signature on checks from that fund.
134.
Mr. Lundy also charged many thousands of dollars in lunches to the
fund, though the lunches were not for any Fund business purposes. Instead, Mr. Lundy was cavorting with Cynthia Escanuelas, an employee of Local 501 with whom he was having an affair. Mr. Lundy also charged substantial amounts of liquor or other alcoholic beverages and even pornographic video to the Fund. The pornographic video was charged to a hotel room charge during Lundy's visit to New York City to attend an award ceremony from an Irish-American group to John T. Ahern. The room was rented in the name of John T. Ahern, Business Manager of IUOE, Local 30 and an International Trustee. Local 501 Bylaws prohibit alcohol charges. Moreover, there were no room charges to Local 501 for any Local 501
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
employee that attended the award ceremony. Local 501 was advised that John T. Ahern would take care of all of the charges. The hotel itself would have been within Local 30s jurisdiction and used operating engineers.
2.
IUOE President Giblin Protected Lundy by Providing Him Employment at IUOE
135.
In 2007, to provide Lundy with an avenue of escape from Local 501
before the full extent of his misconduct was discovered, Mr. Giblin created Regional Director positions and promoted Mr. Lundy to the position of Western Regional Director. Mr. Lundy is a personal friend of Defendant Giblin from their time together in New Jersey. Following Mr. Giblin's appointment of Dennis Lundy to the position of Western Regional Director, Mr. Lundy hired Cynthia Escanuelas, his mistress, as his new assistant. Thus, she became an employee of the International.
136.
In fact, Lundy is so fully protected by Giblin, that he, Giblin, and,
later, Van Dyke, are the only individuals allowed to work full time for the IUOE and draw their full pensions from the General Pension Fund simultaneously along with their work as union members. While this arrangement is a violation of the General Pension Fund rules, as applied by previous General Presidents and General Executive Board members, Giblin exerted such control over IUOE and its Trustees and General Executive Board other officers that it was allowed without challenge. The Fund's rules were never changed to prevent this double-dipping.
3.
After Lundys Departure from Local 501, Audits Uncovered the Substantial Amount of Lundys Embezzlement
137.
After Mr. Lundy started his new job, Mr. McLaughlin reviewed the
Apprenticeship Trust financial records and found a number of improper, personal charges related to food, beverage, and travel purchases. Mr. McLaughlin
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
immediate1y began an investigation and brought in Finn Pette, a Business Representative and elected officer of Local 501, and Daniel Himmelberg, the Assistant Business Manager, to assist in the investigation.
138.
Messrs. Himmelberg and Pette investigated the embezzlement charges.
They hired an accounting firm and retained a separate lawyer, who was not affiliated with Local 501. They also notified the Department of Labor and filed revised reports for the trust account. Messrs. Himmelberg and Pette received a report from the accounting firm and sent Mr. Lundy a demand for repayment of roughly $4,000.00. The auditors could not examine charges prior to December 2006, though they noted that the card existed since July 2003. Lundy concealed from Business Manager Jim McLaughlin that he had obtained a Visa for the JAC Trust. Lundy lacked the authority to apply for the Visa for the JAC without the Trustees authorization or the authorization of the Business Manager. No such authorization was given.
139.
An outside auditor concluded that of $56,670.51 charged to the
Apprenticeship Trust Fund by Lundy from January 2007 to July 2007, $13,087.19 constituted meals and entertainment, $13,223.70 constituted travel and lodging, and $16,810.45 constituted books and equipment. Many of Lundy's charges were for nothing more than expensive lunches with his mistress, Cynthia Escanuelas. Over 20% of the charges to the fund had no supporting receipt. The unsupported charges amounted to $19,401.23. At least $4,970.19 of Lundy's meal charges appeared to have no business purpose.
140.
The outside auditor also examined charges to Amex and Visa cards
issued for the Trust, for the billing period of January 2006 to December 2006. During that time, of $84,352.58 charged, $20,634.05 constituted meals and entertainment, $24,397.52 constituted travel and lodging, and $30,380.11 constituted books and equipment. Over 20% of the charges had no receipts. 62 meal transactions, totalling $7,944.78, were undocumented. Total unsupported
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
charges amounted to $28,981.54. It is believed that some of the unsupported charges were false submissions used to embezzle funds for a cosmetic breast augmentation procedure Lundy obtained for Cynthia Escanuelas.
4.
Lundy Helped Operate a Sham BOMA and EPA 608 Certification Testing System
141.
The Building Owner Managers Association (BOMA) created a
certification intended to ensure that stationary engineers certified by BOMA were properly educated about certain safe operating. This certification gave building owners the assurance that their engineers were capable of safely operating in their buildings. In return, certified engineers received $5 per hour more in pay. This increase in pay also created a benefit for the locals, which were compensated by employers based on hourly pay rates in effect for their members.
142.
Local 501 was designated as the central testing center for BOMA and
EPA 608 certification. Locals around the United States, including Locals 30, 68, 94, and 399, were to send their test grading fee to Local 501, where the test would be graded and returned. Unfortunately, under Lundy, the system was corrupted.
143.
Cynthia Escanuelas would often take tests sheets and grade them
herself at the request of Dennis Lundy because the applicant was a friend of his or of some particular Chief Engineer for ABLE or ABM. When tests were walked through in this manner, those certification applicants always passed.
144.
The test questions and answers were made available to many members
at other local unions. Members at other local unions paid $50 for their test grading, and Local 501 received 100 or more tests from other locals each month, but there is no record of any test payment being deposited in the Training Trust at Local 501. It appears that Lundy embezzled all of the test payments from other locals, depositing only the payments from Local 501 members.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
145.
The propagation of sham certifications affects both public and private
employers, since governmental entities also hire union stationary engineers to operate and maintain government buildings.
146.
When Himmelberg and others audited the JAC for 2007 and 2006,
they were unable to locate any checks from any of the Locals paying for test grading and certification issuance.
147.
The new JAC Director following Lundy, and other Local 501 members
that investigated, were never able to locate a single check deposited in an account or a single certification application following Lundys departure.
148.
When Lundy left, the entire program stopped because Locals no longer
submitted tests for grading or requested certifications. Lundy may have embezzled $60,000 or more while he operated the BOMA and EPA-608 certification program involving the other IUOE locals scattered across the country. All of those individuals who received certifications through the Lundy certification operation at the JAC today carry certification cards noting they received their certifications from Local 501. They now work as certified engineers, at least in the states of New Jersey, New York, and Illinois.
149.
Enrique Acala was an instructor at JAC. Mr. Acala sold the entire
BOMA test question set through a website. Mr. Pette filed a grievance about this issue. Ed Curly, the Business Manager at the time, found no merit to the grievance in order to stifle the claim. The refusal to control this practice jeopardizes JAC. It also jeopardizes the public in general in that it means that employees in positions requiring these safety certifications may not be qualified for those positions. Attached as Exhibit 1 is a true and correct copy of Mr. Alcalas website, where he offered test questions for sale. Mr. Alcalas website could only be accessed via wire communication, and the method for contacting Mr. Alcala to purchase test questions was limited to e-mail, also requiring a wire communication. Correspondence and memos expressing concern about Mr. Alcalas practices
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
(wherein he was erroneously referred to as Rick Ocala), involved Cornel Sneekes and Eric Sorensen, who were aware of these allegations but did nothing to ascertain the scope of the problem other than recommend temporary suspension of testing. As members of the JAC Board, Cornel Sneekes and Eric Sorensen had fiduciary obligations to determine the extent of past testing irregularities and correct it. Trustee and Business Manager Edward Curly also breached his fiduciary obligations, both under ERISA, as a Trustee, and his obligations as an officer of Local 501, to determine the extent of past testing irregularities and correct it.
150.
From a financial standpoint, each certified engineer receives $5.00
additional per hour for each hour worked dating to the date of their certification. If the certification is false, then each week the sham certification is renewed by the $200 additional wages the falsely certified worker receives. In essence, there may be thousands of IUOE members with improperly obtained certifications working in positions in at least the states of New Jersey, New York and Illinois.
151.
The potential damages to the Local 501 JAC program by virtue of
Lundy's actions far exceed the $5.00 per hour additional compensation received by the certified stationary engineers. IUOE Local 501 Apprenticeship and Training Programs could lose their certification from the DOL, State & Federal, for unlawful practices. All apprenticeship and training programs that qualify for certification from the DOL are then tax exempt and the contributing employers get the benefit of the tax exemption. This is a very important benefit to all contributing employers.
152.
The 501 apprenticeship program might have to be dismantled and
obtaining recertification from the DOL State and Federal would take years, if it were ever possible. The membership of IUOE Local 501 will no longer be recognized by owners and employers as a source of well-trained apprentices and journeymen. The legitimate employers and owners will seek help outside of the Union. Any certified journeyman who passed the BOMA Test will be suspect as to how he/she got qualified and the employers could legitimately demand that the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
$5.00 per hour increase be returned, retroactively. The misconduct in the testing program harms the reputations of all IUOE members and will expose them to financial risk arising from doubts related to the integrity of the BOMA Test.
5. 153.
Lundy Absconded with Re-Election Campaign Funds
In addition to embezzling from the JAC, Lundy left 501 with more
than $10,000 in campaign re-election funds. Those funds were collected from Local 501 members who had voluntarily donated money to the fund for use by the current elected officers when running for re-election. Retired Business Manager Bob Fox called upon Lundy to correct his misconduct and remember the Local that provided for him for so many years. His entreaties fell on deaf ears.
6.
Plaintiffs Advised the DOL and IUOE About Lundys Embezzlement
154.
Messrs. Himmelberg and Pette also brought the results of their
investigation to the attention of the Department of Labor (DOL) on multiple occasions: The first interaction with DOL EBSA was in November of 2007. Agent Julie Lowrie showed up at the Los Angeles office of Local 501 to inform them she was conducting a "criminal investigation" of fund money abuses of Mr. Dennis Lundy, formerly the Director of the Los Angeles JAC. After interviewing Jim McLaughlin, Dan Himmelberg and Finn Pette she left and said she would "be in touch". She wasn't. In Late April or early May of 2008, Robert H. Fox Jr., former Business manager of Local 501 and Finn Pette both made a visit to the Pasadena office of the EBSA to check in with Ms. Lowrie. At that time, they were interviewed for four to five hours. In addition to providing all the documentation that encompassed the internal investigation, they provided
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
her with a complete description of how, and why the Trustees "covered up" the excess charges and told her details regarding the undue influence of General President Vincent Giblin, and the threats and intimidation techniques he used. Ms. Lowrie assured Mr. Pette and Mr. Fox that she would "get back" to them. She never did. Several months elapsed and again Mr. Fox and Mr. Pette scheduled an appointment at the Pasadena office of EBSA. Upon their arrival, they were told that Ms. Lowrie has retired, and in fact the day of their last interview was her last day at the office. They went through all the details again with a different agent, spending another four to five hours telling the exact same story they had already told. Again, several months went by and Mr. Fox and Mr. Pette made another appointment at the Pasadena office. When they arrived they were told that the gentleman they had met the last time had transferred to another office and they were introduced to yet another DOL-ESBA agent and again went through the whole story. They said there was an "ongoing" investigation and they could not disclose what was happening, but, again, said they would "be in touch". They never were.
155.
At the last International Convention, in 2008, several officers of Local
501 approached Richard Griffin, who was, at that time, the general counsel for IUOE, and provided him with a package containing audit data that they had collected at that time. Attorney Griffin was advised that Lundy had engaged in crimes involving embezzlement of Trust account funds and Local 501 member monies. The 501 officers asked for help from Attorney Griffin. Attorney Griffin took the package and promised to "get back to them" soon. Instead of providing assistance, Attorney Griffin did nothing other than deliver information to Giblin and IUOE, as evidenced by Giblin's sudden involvement to suppress the investigation.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
156. 7.
Pressure to Abandon the Lundy Investigations, Originating From Giblin, Was Applied to Local 501; Meanwhile, the Employer Trustees Loyal to Giblin Failed to Pursue Lundy
Pressure to abandon the Lundy investigation came from many fronts.
Mr. Lundy's friend, Sandra Acosta, called Mr. McLaughlin and told him Mr. Lundy wasn't going to pay the money back to the trust and that Mr. McLaughlin had "better back off" on insisting Mr. Lundy pay the money back to the trust because Mr. Lundy had "friends." Mrs. Acosta was undoubtedly informed and sincere in her warning, given that she vacationed annually with William Waggoner and his wife, Patty Waggoner. Mr. McLaughlin received an angry call from the then IUOE General President Vince Giblin around the early part of 2008. Mr. Giblin demanded Mr. McLaughlin "drop" the investigation. Mr. Giblin told Mr. McLaughlin that he "owed" Mr. Giblin because Mr. Giblin knew Mr. Lundy was going to run for Business Manager and told Mr. McLaughlin that he had "[taken] Dennis off [his/McLaughlin's] hands."
157.
Mr. McLaughlin told Mr. Giblin that he couldn't stop the investigation.
From early 2008, until June 2009, Mr. Giblin harassed and threatened Messrs. McLaughlin, Himmelberg, and Pette. Mr. McLaughlin was the 2nd Vice President of the IUOE Executive Board and was a trustee on the Central Pension Trust. Mr. Giblin displayed contempt for Mr. McLaughlin at Board and Pension Trust meetings, and when Mr. Giblin found out that Messrs. Himmelberg and Pette had accompanied Mr. McLaughlin to an IUOE meeting in Chicago, Mr. Giblin told Mr. McLaughlin if he saw either Mr. Himmelberg or Mr. Pette he would fire them "on the spot," notwithstanding that, at all times relevant, Himmelberg and Pette were employees and elected officers of Local 501. Mr. Giblin also told Mr. McLaughlin that he was going to "punch their ticket," referring to Messrs. McLaughlin, Himmelberg, and Pette.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
158.
In an unprecedented move and based solely upon the receipt of
anonymous letters, Mr. Giblin directed the IUOE ethics officer former New Jersey Supreme Court Judge James R. Zazzali to investigate Mr. McLaughlin. It is now known, Michael Russell, a Local 501 employee based in Las Vegas, and personal friend of Dennis Lundy wrote the anonymous letters at the request and encouragement of Dennis Lundy. Mr. Russells testimony setting forth this admission is attached hereto as Exhibit 2. However, no charges were brought against Mr. McLaughlin because Mr. McLaughlin provided documents and responses that supported Mr. McLaughlins position that he had done nothing wrong. To the knowledge of all class representatives in this action, ethics officer Zazzali failed to finalize a report detailing his findings in connection with Local 501. After ethics officer Zazzali agreed to consider and begin an investigation based upon Mike Russells anonymous letters to him regarding Local 501, a flood of anonymous letters regarding Local 501 began to flow in to the ethics officer. Rather than investigating the merits of these other anonymous letters as he did with respect to Mr. McLaughlin, and realizing he had created a serious problem, ethics officer Zazzali caused an article to be published in the IUOE publication concerning anonymous letters. A copy of that article is attached hereto as Exhibit 3.
159.
Meanwhile, JAC Trustees under Giblins control worked on their end
to also shield Lundy from accountability. Jim Scranton moved to suspend the investigation into Lundy. Scranton separately moved to exonerate Lundy from all charges related to his excessive expenditures related to alcohol and almost daily lunches with his secretary-mistress Cynthia Escanuelas because, Mr. Scranton observed, there were no specific rules saying that the purchase of large quantities of alcohol or daily lunches with ones mistress were specifically prohibited under the JAC bylaws or employee conduct regulations. But Scrantons motion was inconsistent with 30 years of past practice, wherein it was not permitted to spend
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
JAC monies in manner that Lundy did. Mr. Fox has advised Lundy in 2008 that were he still the Business Manager, he would have prosecuted Lundy to the fullest extent possible, despite having hired Lundy many years ago. In short, Scranton sought to conceal what a founding member of Local 501 would have prosecuted.
160.
In June 2009 Robert Fox, the previous Business Manager of Local 501
and former International Vice President received a call from Defendant Vincent Giblin, IUOE General President. Mr. Giblin was extremely upset with James McLaughlin, the Business Manager of Local 501 at that time. Mr. Giblin said to Mr. Fox, "I told that fat fuck [James McLaughlin] to make that Lundy thing disappear and he never did. That lazy fat fuck has to go!" Mr. Fox was a trusted confidant of Mr. McLaughlin and knew about the Lundy reference, having already heard from Mr. McLaughlin that Mr. Lundy had embezzled funds from the Apprenticeship Trust at Local 501.
161.
From late 2007 to 2009, James McLaughlin faced multiple obnoxious
and often threatening telephone calls weekly from Vincent Giblin. It was clear to McLaughlin and the other union officers that the tone and posture of Vincent Giblin was increasing in intensity. Although McLaughlin received the calls directly, Giblins screaming into the phone at McLaughlin was heard by other officers and employees alike working in the Local 501 office.
8.
Jim McLaughlin Unsuccessfully Attempted to Appease Giblin, Who Frequently Expressed His Intention to Kill Those Who Challenged Him
162.
As Vincent Giblin was increasing the level of pressure applied to
Local 501 to shut down investigations that would uncover his improper transactions with Able and ABM, Jim McLaughlin attempted to appease Giblin. For example, James McLaughlin reached out to Attorney Michael R. Fanning, the Chief Executive Officer for the General and Central Pension Funds, over the issue of
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Jackie Foley, a retired Local 501 employee. Prior to reaching out to Attorney Fanning, McLaughlin had received numerous calls from Vincent Giblin accusing him of having allowed Jackie Foley to work in excess of 35 hours in any given month. Although McLaughlin had advised Vincent Giblin that this never happened, as did Jackie Foley, Vincent Giblin was relentless in his pursuit of the false Foley allegations with James McLaughlin as a pretext for finding a reason to force the resignation of McLaughlin. At all times relevant, James McLaughlin, a trustee on the Pension Trust Board, understood and abided by the rules governing the employment of retirees, including Jackie Foley. The perverse irony of this false accusation was that Giblin had required the Trustees of the General Pension Fund to create an exception for him and Dennis Lundy, allowing them to work fulltime and also collect their General Pension Fund benefits, in violation of the Funds administration rules. The IUOE Constitution requires the GP position to be a fulltime position. At the same time, Giblin was receiving a salary from Horizon Blue Cross/Blue Shield as the Chairman of the Board. Despite both these handsome salaries, Giblin forced the Trustees to violate the General Pension Fund rules and provide yet another source of revenue.
163.
Contrary to both James McLaughlins and Jackie Foleys statements to
Attorney Fanning, Attorney Fanning took the position and advised McLaughlin to admit he had permitted Foley to work in excess of 35 hours in a month. McLaughlin protested that this was not true, but Attorney Fanning stated to McLaughlin that Vincent Giblin was not going to drop this issue or leave McLaughlin alone until the Fund could put this issue to rest. Attorney Fanning advised McLaughlin that Giblin would drop the issue and everything could go back to normal if he admitted the false allegation that Foley worked in excess of 35 hours. McLaughlin finally agreed to allow Attorney Fanning to take an admission back to Vincent Giblin concerning the false Foley allegation, while continuing to protest that it was untrue. Attorney Fanning, an officer of the Court, not only
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
advised a trustee of the Fund to lie, but indicated that unless McLaughlin did lie as directed, Vincent Giblin would continue to target Local 501 and McLaughlin with continuing harassing calls, threatening calls, and action adverse to Local 501, its officers, and its membership. Shortly thereafter, while en route to Washington to attend a meeting of the Central Pension Fund Trustees, McLaughlin received a telephone call from Vincent Giblin demanding his immediate resignation from his position as Central Pension Fund trustee.
164.
Local 501 originated the Central Pension Fund. Local 501 deposits
started that fund. Because of this, Local 501 does not have its own local pension like many other Locals do. When Giblin forced out Mr. McLaughlin, a sitting VP of the IUOE, the Business Manager of Local 501, and a Trustee of the Central Pension Fund, this left Local 501 with no elected official capable of attempting to protect Local 501 memberships' interest in the Central Pension Fund, which is Local 501's only pension fund.
9.
Giblin Forced Out the Duly-Elected Business Manager of Local 501
165.
On or about the morning of June 11, 2009, Mr. Giblin called Mr.
McLaughlin and ordered Mr. McLaughlin to resign as Business Manager and Vice President of the GEB. Mr. Giblin had recently removed Mr. McLaughlin as a Trustee of the IUOE Central Pension Trust. Initially, Mr. McLaughlin refused to submit his resignation, stating that he had done nothing wrong. Mr. Giblin threatened to separate the Las Vegas membership from Local 501 if Mr. McLaughlin didn't resign. Mr. Giblin told Mr. McLaughlin that if he didn't resign, he would be "the Business Manager of nothing!" Mr. Giblin ended the conversation by telling Mr. McLaughlin that he had to direct all communications to the IUOE's general counsel at that time, Richard Griffin. Mr. Giblin then abruptly hung up the phone.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
166.
Mr. McLaughlin called a meeting with Mr. Pette and Mr. Himmelberg
in his office. They decided to contact Local 501's attorney to find out what could be done. Mr. McLaughlin called attorney Adam Stern and attorney Stern agreed to come to the Local 501 office later that morning. At about the same time, Mr. Fox came into Mr. McLaughlin's office. Mr. Fox told Messrs. McLaughlin, Himmelberg, and Pette about the recent conversation he had with Mr. Giblin and Mr. McLaughlin told Mr. Fox about the conversation that he had with Mr. Giblin earlier that morning, and about Mr. Giblin's prior punch their ticket death threats directed at Messrs. McLaughlin, Himmelberg, and Pette. Mr. Fox agreed to stay and tell attorney Stern about his conversation with Mr. Giblin.
167.
Mr. Stern arrived on or about the morning of June 11, 2009 with one of
his law partners, attorney Lewis Levy. Mr. Fox told Messrs. Stern and Levy about his previous phone conversation with Mr. Giblin and Messrs. McLaughlin, Himmelberg, and Pette reminded attorneys Stern and Levy about the Lundy matter and Mr. Giblin's retaliatory acts. Mr. McLaughlin then asked Mr. Stern to call the IUOE and speak to the general counsel to the IUOE, Attorney Griffin, to "get the IUOE off my back." Mr. Stern told everyone present that the IUOE had no basis to place Local 501 into trusteeship and specifically called Mr. Giblin's actions "bullshit." Mr. Levy then told Mr. McLaughlin that Mr. Stern was "too emotional" and that he would speak to Attorney Griffin. Messrs. Levy and Stern left Mr. McLaughlin's office and went to a private room in the offices of Local 501 to call Attorney Griffin. Messrs. Levy and Stern returned and Mr. Levy stated to everyone that Attorney Griffin said Mr. Giblin was demanding Mr. McLaughlin resign. Attorney Stern insisted that they fight Mr. Giblin and the IUOE. Messrs. McLaughlin, Himmelberg, Pette, and Fox agreed with Attorney Stern.
168.
However, Attorney Levy told Mr. McLaughlin that he must negotiate a
resignation with the IUOE because Attorney Griffin told him Mr. Giblin was threatening to either separate Las Vegas from the Local or place Local 501 under
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
trusteeship. Attorney Levy told Mr. McLaughlin that Mr. Giblin was prepared to take action immediately.
169.
Mr. McLaughlin told Attorney Levy he didn't want to resign as
Business Manager of Local 501 but he also did not want Local 501 to be broken apart or placed under trusteeship. Attorney Levy told him his only option was to resign. At this point, Mr. Pette left the meeting to attend another meeting where he was leading the negotiations on a new union contract for Local 501 members.
170.
After Mr. Pette left, Mr. McLaughlin asked Attorney Stern and
Attorney Levy for their advice. Mr. Levy told Mr. McLaughlin that he had to negotiate with Attorney Griffin and that he should propose his own terms. Mr. McLaughlin told Attorney Levy that he would agree to resign; however, he wanted his pensions from his position as Business Manager as well as 2nd Vice President of the IUOE. Additionally, Mr. McLaughlin wanted his medical benefits. Attorney Levy agreed to pass that on to Attorney Griffin. Messrs. Levy and Stern left the room to call Attorney Griffin.
171.
Messrs. Levy and Stern returned to Mr. McLaughlin's office about 20
minutes later. Attorney Levy stated that as part of the deal to "leave Local 501 alone," Mr. McLaughlin not only had to resign, but before he resigned, Mr. McLaughlin also had to fire Finn Pette as Business Representative. Mr. Pette was the originator of various audits into employer contribution shortfalls concerning both the JAC Fund, and the Local 501 Health & Welfare Fund. Mr. Pette was also investigating massive double-breasting issues involving defendants Able and ABM.
172.
Mr. McLaughlin told Attorney Levy that Mr. Pette was "not part of the
deal." Mr. McLaughlin had been grooming Mr. Pette to potentially succeed him as Business Manager when Mr. McLaughlin retired. Mr. McLaughlin was a mentor to Mr. Pette and assigned Mr. Pette to high profile negotiations. Mr. McLaughlin took Mr. Pette to IUOE working meetings throughout the country. Upon being forced to resign, it was Mr. McLaughlin's goal to have Mr. Pette succeed him as
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Business Manager and to keep Mr. Himmelberg as Assistant Business Manager to assist Mr. Pette in performing his job duties.
173.
Mr. McLaughlin told Attorney Levy that he would not fire Mr. Pette.
Messrs. Levy and Stern left the room to call Attorney Griffin. In the meantime, Mr. McLaughlin tried to call Mr. Pette but did not reach him.
174.
Messrs. Levy and Stern returned to Mr. McLaughlin's office a few
moments later. Attorney Levy told Mr. McLaughlin that if Mr. McLaughlin didn't agree to fire Mr. Pette, or get Mr. Pette to resign, that "Dan is next." Messrs. Fox, McLaughlin, and Himmelberg understood this to mean that Attorney Griffin and the IUOE would demand that Mr. Himmelberg's employment be terminated if Mr. McLaughlin didn't fire Mr. Pette.
175.
Attorney Levy asked Mr. McLaughlin why Mr. Giblin wanted Mr.
Pette removed as Business Representative. Mr. McLaughlin reminded Attorney Levy and Attorney Stern that Mr. Giblin had a vendetta against Mr. Pette and Mr. Himmelberg because they were both involved in the investigation of Dennis Lundy, who was under Giblin's protection, and audits of the various Local 501 Funds. Mr. McLaughlin asked attorneys Stern and Levy if the IUOE's acts were a violation of Taft-Hartley or the LMRDA. Attorney Levy merely responded that Mr. McLaughlin "shouldn't pick a fight with [Mr.] Giblin or the International."
176.
Mr. McLaughlin told Mr. Levy that he couldn't risk Mr. Himmelberg's
job because Mr. Himmelberg had Parkinson's disease and Mr. Himmelberg wouldn't be able to get a job as an engineer. Mr. McLaughlin told Attorney Levy that Mr. Griffin knew Mr. Himmelberg had Parkinson's disease because Mr. McLaughlin told Attorney Griffin at an IUOE meeting when Attorney Griffin asked why Mr. Himmelberg's hand was shaking. Attorney Levy then suggested Mr. McLaughlin make a counterproposal. Mr. McLaughlin decided to propose that Mr. Pette would resign in late spring of 2010. Mr. McLaughlin proposed this date because this would give Mr. Pette time to finish some major negotiations which
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
would be publicized. Mr. Pette could then use this positive publicity to increase his chances of winning the Business Manager position in the elections the following year.
177.
Although Mr. Pette was not present, Mr. McLaughlin told Attorney
Levy that he would agree to convince Mr. Pette to resign in the late spring of 2010. Attorney Levy told Mr. McLaughlin that this appeared "fair" and he would speak to Attorney Griffin. Messrs. Levy and Stern left the room and returned shortly. Upon returning to the room, Attorney Levy told Mr. McLaughlin that Mr. Giblin was demanding that if Mr. Pette was going to resign, he had to resign by October 31, 2009. Mr. Levy told Mr. McLaughlin that he had to make a decision at that moment and to not bother with a counter-offer because Attorney Griffin told him that Mr. McLaughlin had to "take it or leave it" and if Mr. McLaughlin didn't "take it," Attorney Griffin would next demand Mr. Himmelberg's resignation or termination.
178.
Mr. Levy told Mr. McLaughlin that this was a "good deal," and that
Mr. McLaughlin should accept Attorney Griffin's demand. Mr. McLaughlin relied on the advice and counsel of Mr. Levy and agreed to the term. Mr. Levy then notified Attorney Griffin that the term requiring Mr. Pette's resignation by October 31, 2009 was "accepted." Mr. Levy left to call Attorney Griffin and then returned about 30 minutes later. Mr. Levy told Mr. McLaughlin that he had to propose a person to replace him as Business Manager. Mr. Levy told Mr. McLaughlin that Mr. McLaughlin couldn't propose "that guy with the hat [Mr. Pette] or Himmelberg, or that broad [Sandra Acosta]." Mr. McLaughlin told Mr. Levy that he wanted Mr. Pette to take over as Business Manager. Mr. Levy responded that it was not a good idea to propose Mr. Pette's name. Mr. McLaughlin then proposed Ronald Frease. Mr. Levy left to call Attorney Griffin and returned a few moments later and said that Mr. Frease was "unacceptable" to the IUOE. Mr. McLaughlin then proposed Edward Curly. Attorney Griffin told Mr. Levy that Mr. Curly was
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
also "unacceptable" to the IUOE. Finally, the IUOE agreed to allow Chris Brown to replace Mr. McLaughlin as Business Manager of Local 501.
179.
Mr. Pette returned to the Local 501 office about 3 hours later. Upon
Mr. Pette's return, Mr. Levy and Mr. McLaughlin told Mr. Pette that he would have to resign his position as Business Representative and Financial Secretary. Mr. McLaughlin told Mr. Pette that did not want to fire Mr. Pette nor did he want Mr. Pette to resign. Mr. McLaughlin told Mr. Pette that he didn't have a choice because Mr. Levy told him that he didn't have a choice. Mr. Pette asked if he had a say in the decision. Mr. Levy then told Mr. Pette "What they said was, we better accept these terms because they could have taken Himmelberg out too."
180.
Mr. Pette asked Mr. Levy "What does that mean?" Mr. Levy replied,
"Either you're fired, or everyone is fired. Take it or leave it." Mr. Pette asked Mr. Levy "Do you want me to sign something?" Mr. Levy replied "That won't be necessary." Mr. Pette immediately told Mr. Levy, "Like hell it won't! I want this in writing!" Mr. Levy told Mr. Pette, "Okay, Finn, I'll take care of it."
181.
Mr. Pette then asked "so I have to resign when Jim does?" To which
Mr. Levy responded "I got you a reprieve until October 31st." The meeting then ended and Mr. Levy prepared a letter with the terms of the June 11, 2009 negotiations and distributed it to Messrs. Griffin, McLaughlin, Himmelberg, and Pette. Attorney Levys contemporaneous notes of the meeting are attached hereto as Exhibit 4.
182.
Notwithstanding the above "agreement" "negotiated" between IUOE
General Counsel Griffin and attorneys Stern and Levy, the IUOE did not live up to its end of the bargain. From this point forward, Local 501 was fully at the mercy of IUOE, Giblin and Griffin. Local 501's new Business Manager Christopher Brown received instruction from James Van Dyke, Chief of Staff for General President Vincent Giblin, who instructed Mr. Brown to fire Mr. Pette two weeks earlier than October 31, 2009.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
183.
Although Levy documented the "agreement" that was "negotiated"
with IUOE, Levy later prepared a falsified version of his correspondence in subsequent litigation and provided the falsified version to the Court in an attempt to conceal the conspiracy to oust Mr. Pette and undermine his insurgent candidacy potential. That falsified letter omitted the "cc" notation indicating that it had been sent to Mr. McLaughlin and omitted key provisions of the "agreement," such as it was.
10.
After the Ouster of Jim McLaughlin, Plaintiffs Again Sought Assistance from the DOL
184.
In August of 2009, while IUOE Chief of Staff, Jim Van Dyke, was
performing an internal audit of Local 501, two DOL agents showed up at the Los Angeles offices of Local 501. Mr. Van Dyke ushered them into a private meeting and they were sequestered there for over an hour. When they left, Mr. Pette approached the agents and asked who they were. Mr. Pette was introduced to Michael Blas and a fellow investigator from the DOL Office of the Inspector General. Mr. Pette asked what they were doing there and they said they had received a call from a "member" that something was going on at Local 501. Mr. Pette confirmed that there most certainly was something going on, and Mr. Blas asked Mr. Pette to contact him at his office in West Covina.
185.
Several days passed until Mr. Pette could schedule an appointment to
meet with Mr. Blas at his office. When he arrived, he was escorted to an interrogation room where Mr. Blas and his fellow agent asked him what was happening at Local 501. Mr. Pette was very upset, having not obtained any help from the offices at EBSA, and so he raised his voice and started yelling at them for not doing their job. At that time Mr. Blas pulled his gun and smashed it on the table and said, "Well you're not dealing with ESBA anymore! We're the guys who carry the guns and get things done!"
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
186.
Mr. Pette proceeded to tell him of the investigation into the
misappropriated funds at the Apprenticeship, and how General President Vincent Giblin had intimidated and halted a legal and necessary investigation of abuses of a Taft-Hartley Fund. Mr. Pette also described how he had caused the termination of elected officials (Jim McLaughlin and Mr. Pette) and that this appeared to be a clear example of labor racketeering.
187.
Mr. Blas asked Mr. Pette to return with copies of the internal records
from the JAC and to spend some time telling him the entire story of what had transpired at Local 501. They scheduled an appointment approximately a week later.
188.
When Mr. Pette returned with all the JAC documentation, it was given
to Agent Blas. Mr. Pette proceeded to tell him that Vincent Giblin had ordered the halt of the internal investigation, that he had threatened Jim McLaughlin, and that he had disrupted the order of the membership. Mr. Giblin had ordered terminations and retaliated for the investigation into Dennis Lundy. This meeting lasted from approximately 9 a.m. until well after 3 p.m. At the end Agent Blas asked, "Do you think the IUOE runs like the mafia?" Mr. Pette replied, "Do you guys even talk to the folks that run your east coast offices? Not only do we run like the mafia, we're controlled by it!"
189.
Agent Blas said he would keep in touch with Mr. Pette via e-mail as
the situation progressed. He also asked Mr. Pette to inform him of various issues as time went on via e-mail, which Mr. Pette did.
190.
Approximately one month later, Agent Blas asked Mr. Pette to meet
him again at his West Covina office. He had looked through the JAC files and come across the "forged checks" that Dennis Lundy had filled out in Jim McLaughlin's name. He said that if they had the originals (they currently held copies) they could send them to the FBI for handwriting analysis. Agent Blas continually hinted around the fact that if they had the original checks they could do
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
something with the case. Mr. Pette finally asked Agent Blas, Do you want the fucking checks? Agent Blas indicated to Mr. Pette that he did. On that basis, Mr. Pette obtained the original checks for Agent Blas.
191.
A few days later, Mr. Pette arrived for another appointment with Mr.
Blas. When Mr. Pette showed him the checks he immediately left the room and returned wearing rubber gloves and carrying an "evidence" bag. He confiscated the checks and placed them in the clear "evidence" bag and sealed it. Mr. Pette told him he would need them back, and Mr. Blas replied, "They are in evidence of the DOL now." He told Mr. Pette that he would return them prior to Mr. Pettes scheduled termination date of October 31.
192.
Eventually Mr. Pette received a letter from the Washington D.C. DOL
Office of the Inspector General saying that they were no longer investigating the case. Agent Blas quit returning Mr. Pettes e-mails. Several requests were made to have the forged checks returned, but to date they remain in possession of the Department of Labor, to the best of Plaintiffs knowledge.
193.
Much later, when Mr. Pette was cooperating with the 14-month long
investigation by the Department of Labor, Office of Labor Management Standards (OLMS), into the election misconduct at Local 501, Mr. Pette spoke with Agent Ed Oquendo about the issues he had with the DOL-ESBA. Mr. Oquendo told Mr. Pette that his supervisor has worked at the Pasadena office for years and Mr. Pette should talk to him.
194.
District Director Alan Weiss gave Mr. Pette the number of the "head"
of the Pasadena office of ESBA. He placed a call to this individual. She told Mr. Pette that the case against Dennis Lundy was closed. Mr. Pette asked her under what condition it was "closed" and she got very hostile. Mr. Pette said, "If the case is closed, it should be a matter of public record. Can I set a time to come by the office and look over the file?" At this point the woman actually started to yell at Mr. Pette, screaming, "IF YOU WANT ANY FURTHER INFORMATION ON
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
THE DENNIS LUNDY MATTER YOU CAN FILE A FREEDOM OF INFORMATION ACT REQUEST TO OUR D.C. OFFICE!" She hung up the phone.
195.
Mr. Pette was concerned at this juncture that someone within the DOL
very high up, perhaps even Hilda Solis herself, was derailing the investigations into all issues surrounding the Operating Engineers. It is well known within the Operating Engineers that Hilda Solis' congressional election campaign was heavily funded by the Operating Engineers, and Mr. Pette learned that she was flown to Washington D.C. for her swearing in on Local 12's Private Jet. William Waggoner, the Business Manager of Local 12, bragged to Jim McLaughlin that he was flying Hilda Solis back to DC to be sworn in. Mr. Pette was so concerned that he actually e-mailed Alan Weiss and asked him what her involvement would be with the election case. Last year, after agents of the DOLs Office of the Inspector General were advised about her multiple unreported flights on Defendant Waggoners jet while a member of Congress, Secretary Solis resigned her Cabinet position.
196.
The harm to Local 501s members resulting from failed enforcement (a) (b) (c) IUOE placed Brown in control of Local 501 without complying with IUOEs constitution or Title IV of the LMRDA; Brown was instructed by IUOE to terminate Blair Brim; Brown was subsequently prevented by IUOE from defending the suit brought by Brim when Brown, acting outside the scope of his fiduciary duties to Local 501, terminated Brim; (d) When Mr. Pette attempted to provide information and evidence to use in defense of Brims suit, he was told that it would not be utilized by Local 501; (e) Brim obtained a judgment in excess of $6 million dollars against Local 501 as a direct result of IUOEs illegal racketeering and
of the LMRDA is substantial. For example:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (k) (j) (i) (h) (g) (f)
DOLs failure to intercede in the ongoing abuse of Local 501 by IUOE; In 2011, Brim offered to compromise his judgment in the amount of approximately $1.5-1.7 million (depending upon whether certain benefits were included), but Brown was instructed by IUOE to reject that offer. If Local 501 had democratically elected leadership, they could have resolved Mr. Brims judgment without ever having to file for bankruptcy protection; Brims attorney, Lee Feldman, was contacted by IOUE, through Callahan and Van Dyke. Callahan and Van Dyke threatened to place Local 501 in bankruptcy if Brim did not accept pennies on the dollar for his judgment; In anticipation for the bankruptcy filing, IUOE caused Local 501 to withhold a small amount of per capita payments from IUOE so that IUOE would be an unpaid creditor with additional rights and powers over Local 501 in the bankruptcy; Local 501 filed for bankruptcy protection at IUOEs instruction, and Callahan breached his fiduciary duty to Local 501s members when he directed Curly to file for bankruptcy protection rather than negotiate with Mr. Brims attorney; IUOE then placed Curly in charge of Local 501 in part because Brown admitted during discovery in Brims suit that he was following orders from IUOE, and Brown failed to get amnesia as instructed by Callahan. IUOE appointed Curly without complying with IUOEs constitution or Title IV of the LMRDA; In November 2012, Local 501 refused to hold elections for delegates to the General Convention of the International Union
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (o) (n) (m) (l)
of Operating Engineers. IUOE used the per capita underpayment as a pretext for denying Local 501 members their constitutional right to participate in the General Convention; At the end of 2012, Brim filed suit against IUOE in Los Angeles Superior Court, seeking a declaration that IUOE was the alter ego of Local 501 as a result of its systemic control imposed on Local 501; In early 2013, Brim offered to settle his claim for $2.5 million, or almost $1 million more than had been rejected in 2011. Curly was instructed by IUOE to advise the Board that Brims offer had to be rejected because IUOE was not released from Brims suit against IUOE; In March 2013, Curly, on orders from IUOE, instructed the board to accept a new settlement demand that also released IUOE, though several board members objected to the increased cost of the settlement to Local 501 to provide IUOE with a release. In March 2013, the unlawfully appointed leadership of Local 501 advised retiree members of Local 501 that they would no longer receive health care benefits unless they paid the entire cost themselves, at an increased cost of roughly $1,000 or more per month, varying by marital status. Members of 35 years, who rely on this benefit, may no longer have the means to pay for it as a result of the catastrophic failures by IUOEs appointed figureheads running Local 501 and the years of inaction by Trustees of the Health & Welfare Fund to pursue Able and ABM for their double-breasted operations and other fund underpayment schemes (capping benefit payments at 40 hours
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
197. 11.
and utilizing 1099 employees to circumvent contribution obligations). (p) This pattern of inaction in the face of documented illegal activityover a period of years rendered futile any efforts by Local 501 members to exhaust administrative remedies through the Department of Labor or Local 501 or IUOE. Any exhaustion obligations should be excused in the face of this complete failure by the DOL to discharge its mandate. Newly Appointed Business Manager Chris Brown Was Ordered by Giblin to Fire Plaintiffs Pette and Himmelberg On or about October 17, 2009, Mr. Brown fired Mr. Pette as Business Representative as well as from the positions of Trustee on both the Apprenticeship and Health and Welfare funds.
198.
Contrary to the IUOE Constitution, Article 24, Subdivision 7, Section
E, Mr. Pette was charged by the IUOE with allegations that would have mandated his removal from the office of Financial Secretary. Mr. Pette served his entire term as Financial Secretary of Local 501. If, in fact, General President Giblin and Ethics Officer Zazzali believed the charges filed against Mr. Pette had merit, Ethics Officer Zazzali had a duty to recommend the removal of Mr. Pette to Mr. Giblin, and Mr. Giblin, as General President, had the authority and fiduciary obligation to remove Mr. Pette from elected office, and thereby protect the membership of Local 501. Neither believed that the charges were legitimate.
199.
Further, in an additional breach of the "agreement," in and around
November 2009, Mr. Van Dyke ordered Mr. Brown to fire Mr. Himmelberg as Assistant Business Manager, even though Mr. Brown told Mr. Van Dyke that he needed Mr. Himmelberg's experience and knowledge and wanted to keep him as Assistant Business Manager. Mr. Van Dyke told Mr. Brown that Mr. Giblin was
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ordering Mr. Brown to fire Mr. Himmelberg. Reluctantly, Mr. Brown obeyed Mr. Giblin and terminated Mr. Himmelberg's employment.
12.
IUOE and Curly, Acting Under IUOE Orders, Embezzled Monies From Local 501 Members Related to the Members Efforts to Protect Mr. Pette and Mr. Himmelberg
200.
When false charges for allegedly improper expense account use were
levied at Mr. Pette and Mr. Himmelberg to scuttle their efforts to lead an insurgent slate of candidates into office at Local 501, members supporting their efforts to root out corruption collected monies and paid IUOE all of the money that Mr. Pette and Mr. Himmelberg were falsely accused of taking. Giblin took the members money and then declared that it would not resolve the issue because Mr. Pette and Mr. Himmelberg didnt pay it themselves.
201.
After Mr. Pette and Mr. Himmelberg were cleared of the bogus
charges, the members expected that their payments would be returned to them. Jack Pena, Erik Smith, Christopher Menor and Jay Brophy, among others, contributed to the fund created to reimburse all monies used as the pretext for creating fabricated charges against Mr. Pette and Mr. Himmelberg.
202.
On November 20, 2012, Ed Curly, the Business Manager installed at
Local 501 after Chris Brown was removed by IUOE, refused to reimburse members for the monies they contributed in their effort to respond to the fabricated charges against Mr. Pette and Mr. Himmelberg. At that time, Mr. Curly admitted that he was operating under the direction of IUOE and would not reimburse their payments. However, Mr. Pettes payment that he made for the bogus fines was refunded to him.
203.
In addition to withholding thousands of dollars paid by Local 501
members on behalf of Mr. Pette and Mr. Himmelberg, IUOE has yet to issue the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
promised letter to the members of Local 501, indicating that all charges against Mr. Pette, Mr. Himmelberg and Mr. McLaughlin were either withdrawn or invalid.
13.
Giblins Demand that Local 501 Settle the Acosta Lawsuit to Avoid His Deposition
204.
Defendant Sandra Acosta, a Business Agent and employee of Local
501, filed a sexual harassment lawsuit ("Acosta Action") against Local 501 and Messrs. McLaughlin and Pette in early 2009. The Acosta Action was active in June 2009, and Adam Stern and Lewis Levy represented Local 501 in the Acosta Action, also representing Messrs. McLaughlin and Pette, as individuals, in the lawsuit.
205.
In or around late 2009, plaintiffs counsel in the Acosta Action served
a deposition subpoena on Mr. Giblin. Mr. Giblin told Mr. Levy that he didn't want his deposition taken and to make the Acosta thing go away. (Giblin and other IOUE General Presidents understandably do not want to be placed under oath.) Mr. Giblin also learned that Sandra Acosta had audio-taped a conversation she had had with Giblin, when Giblin called her. Shortly thereafter, Mr. Levy negotiated a settlement with Ms. Acosta and the case was dismissed, with a settlement paid by Local 501 believed to be in excess of $239,000. The settlement included Acostas ability to return to the staff of Local 501 in a manner comparable to the proposed Blair Brim settlement agreed to in March 2013. At all times relevant, information on the settlement was withheld from the membership of Local 501. Although the Local 501 insurance carrier paid this settlement, the settlement resulted in a change of status for purposes of insurance ratings, and costs associated with insurance coverage. The initial ramification of this settlement was an increase in the deductible associated with the coverage. Later, this settlement played a role in Local 501 being dropped by the carrier, forcing Local 501 to seek new, higher cost, insurance due to the loss rating.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
206.
At all times relevant, the International and Vince Giblin had no vested
financial interest in the outcome of the Acosta litigation. The membership of Local 501 were the only parties of interest and they were deprived of actual knowledge to prevent future losses to Local 501 by the International, Vincent Giblin and Levy, Stern & Ford, working in concert each with the other.
14.
IUOEs Leadership Used Threats of Physical and Economic Violence, and Suborned Perjury, to Suppress Investigations and Usurp Control Over Local 501, All of Which Conduct Violated IUOEs Obligations to Its Members
207.
On or about March 10, 2010, Robert Fox received a threatening call
from Vince Giblin, then General President of IUOE. While Mr. Fox had been a friend to the family of General President Giblin for more than 30 years, dating back to Vincent Giblins father, Mr. Giblin did not communicate in the respectful manner typical of their prior conversations. When Mr. Fox advised Mr. Giblin that he did not want Giblin to take action against Jim McLaughlin, Dan Himmelberg and Finn Pette, the conversation became even more confrontational and Mr. Giblin stated that he would kill or have these three union officers killed.
208.
Mr. Fox believed the threats from Mr. Giblin to be genuine. Mr. Fox
believed that Vince Giblin had the ability to order the deaths of Mr. Mclaughlin, Mr. Himmelberg, and Mr. Pette because of Mr. Giblins connection to organized crime in New Jersey, Vince Giblins home territory. Mr. Fox, a founding member of Local 501 and its longest serving Business Manager, was responsible for the Las Vegas territory and negotiated the first collective bargaining agreement with the Flamingo Hotel in Las Vegas, controlled at that time by Bugsy Siegel, an individual known to be a ruthless and feared gangster in his day. Mr. Fox was aware of the real dangers posed by organized crime families, including those close to Mr. Giblin.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
209.
In direct response to the death threat made by Giblin, Mr. Fox
contacted these three individuals and strongly suggested they purchase guns to protect themselves. Mr. Fox refused to discuss anything over the phone because he knew Giblin had a penchant for wiretapping and eavesdropping on calls and Mr. Fox feared his own phone was tapped by Giblin. Moreover, he refused to meet the subjects of the death threats at his home for his safety, his wife's and the safety of Mr. Mclaughlin, Mr. Pette, and Mr. Himmelberg.
210.
In fact, for the past several years, IUOE has exercised total control
over Local 501, all for the purpose of preventing any discovery or disruption of the many kickback schemes in place that divert money from Local 501 and its members to leaders of IUOE (where ABM and Able share revenue saved from double-breasted operations with leaders of IUOE or individuals they designate), including past IUOE General President Vince Giblin, the current General President, Callahan, high ranking IUOE employees of headquarters and the past and current Vice Presidents that do the bidding of the IUOE General President. For example, after Giblin used threats of violence and termination to obtain Mclaughlins resignation as Business Manager and the appointment of Chris Brown as the replacement Business Manager, Mr. Brown has stated publicly in many District 1 union meetings that he had no choice in Local 501 matters and that Mr. Giblin was directing his actions. Similarly, Mr. Curly and other current officers have frequently stated that IUOE was deciding how various matters would be handled, including the decision to file bankruptcy and the terms of the settlement with Blair Brim. In a complete breach of his fiduciary duties, Mr. Curly frequently acted contrary to the best interests of Local 501 and its members and for the benefit of IUOE, his true principal, which directed his actions.
211.
On November 19, 2009, Giblin wrote to Bob Fox, telling him that
Local 501 would soon be placed under monitorship. As part of his warning to Mr. Fox, Giblin said:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
As part of the monitorship, I am instructing the local to conduct its Executive Board meetings in executive session. The board will call into its meetings any member, agent, employee, consultant or professional that adds to its deliberations. Meeting in executive session will allow the board to maximize its attention and energy on the road ahead and not the road already traveled. All deliberations of the executive board will be reported at the next regular membership meetings. This executive session requirement by definition excludes from participation all non-board members, including retired officers, agents and others who have previously served the local union. Thank you for your attention in this matter. This requirement, imposed by IUOE and Giblin, eliminated the risk that any members not under the control of IUOE could easily learn about and object to the decisions imposed on Local 501s members by Giblin and IUOE prior to their implementation.
212.
Immediately before seizing control of Local 501, in and around late
2009, Giblin reached into 501 through Ron Frease, then the duly-elected President of Local 501. Giblin ordered Mr. Frease to cancel a scheduled executive board meeting, before Local 501 was placed under monitorship. The purpose of the order was to prevent Local 501 from leading itself. No protections exist for the monitorship condition under the IUOE constitution which, in fact, does not even expressly authorize monitorship of a Local by the International.
213.
When officer elections were scheduled to occur at Local 501 in 2010,
some Local 501 members attempted to assemble a slate of candidates to restore control of Local 501 to Local 501 members. Once IUOE learned of an organized election challenge, it became clear that IUOE, through its GP and GEB, would take all steps necessary, including directing Mr. Browns actions, to prevent the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
resistance slate from running in the election. In particular, the Election Committee was rigged. Executive board members were supposed to offer up names of members and a vote should have taken place until all the positions were filled. Mr. Brown instead had a pre-selected list of members for the Election Committee, and he forced it through the vote of the Executive Board. Mr. Murphy was elected to head up the Election Committee and it became clear that Mr. Murphy would do whatever he could to prevent the election of any resistance slate members.
214.
In order to seize control of Local 501 from its duly elected leadership,
IUOE hired an Ethics Officer, James Zazzali, to investigate anonymous reports of violations. This Ethics Officer position does not exist in the IUOE Constitution. Nevertheless, Zazzali was paid $30,000 per month to investigate anonymous ethics complaints, as set forth in LM-2 available from the Department of Labor. Not coincidentally, as soon as Mr. McLaughlin was forced to resign from Local 501 following extortionate threats, Giblin announced that the IUOE would no longer investigate anonymous ethics complaint letters. Giblins announcement that anonymous ethics complaint letters would no longer be investigated coincided with the submission of anonymous ethics complaint letters to the IUOE that discussed Lundys unethical behavior while still employed by Local 501. The IUOE shut down the ethics investigations to protect Lundy, but only after they had seized control of Local 501 and forced out members interested in auditing activities at Local 501. When Zazzali participated in the misuse of his position as Ethics Officer, he breached his fiduciary duties to the members of Local 501 and IUOE generally.
215.
At this juncture, in or about December 2009, the IUOE brought
trumped-up charges against Mr. Pette and Mr. Himmelberg for the purpose of preventing them from running for office. In furtherance of the scheme, the Election Committee disallowed both Messrs. Pette and Himmelberg from running for office based on the false charges discussed above, though they were later found to be
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
innocent of the trumped-up charges. Furthermore, the resistance slate was denied a slate position on the ballot. The remainders of the resistance members running for office were then listed on the ballot as individuals. The Election Committee then imposed arbitrary rules regarding the collection of signatures in violation of the LMRDA, with the Election Committee changing the arbitrary rules several times in an effort to prevent resistance members from qualifying for the ballot. Although Local 501 members requested that the Election Committee members appear at monthly district meetings, they refused to appear and be held answerable for blatantly changing the rules with no explanations offered.
216.
It was evident to union members who attended the District meetings
that the entire operation of Local 501 was being run by IUOE and that Mr. Brown was simply a mouthpiece for IUOE. Mr. Brown frequently admitted he effectively had no autonomy in that when he would be questioned by members he replied that he would "have to check with the International". The cellular telephone billings for the phone assigned to Mr. Brown conclusively establish the domination and control the International had over all union activity at IUOE Local 501. As the cellphone bills establish, often multiple calls on a daily basis were made to the International IUOE to Defendants Giblin, Griffin, Van Dyke and other employees holding positions at the IUOE International Headquarters. Following the retirement of Mr. Giblin and the appointment of Defendant Callahan, cellular phone calls were made to Defendant Callahan.
217.
While Plaintiffs Pette and Himmelberg were running for elected office
in late 2009 or early 2010, an anonymous email chain was circulating amongst union members from The Man In Black, informing them about IUOEs efforts to control Local 501 and prevent Pette and Himmelberg from running for office. It was discovered around that time that ABM representatives were advising Local 501 members working for ABM that Mr. Pette had no chance of winning the election. Moreover, those Local 501 members with email addresses from Able were
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
suddenly unable to receive the Man In Black email newsletters through their Able email addresses. In other words, ABM and Able were working in concert with the IUOE to impede fair elections in Local 501, Able by blocking insurgency email communications and ABM by spreading anti-insurgency predictions.
218.
After Dan Himmelberg was terminated without cause, Mr.
Himmelberg sued for wrongful termination. On February 24, 2012, during that litigation, Chris Brown, the Local 501 Business Manager that delivered the termination message to Mr. Himmelberg, was deposed by attorney Lee Feldman. During the deposition, Mr. Feldman asked Mr. Brown why Daniel Himmelberg was terminated as the Assistant Business Manager of Local 501 in November 2010. Mr. Brown asked to take a break and one was provided. Mr. Brown left the room where the deposition was being conducted.
219.
Mr. Brown returned a few moments later and asked if he could speak
off the record before going back on the record. Mr. Feldman agreed. Mr. Brown told Mr. Feldman that James Callahan, the General President of IUOE, told him to get amnesia about the true facts related to Mr. Himmelbergs termination and to say he made the decision himself. Mr. Brown also told Mr. Feldman that General President Callahan instructed Mr. Brown to testify that Mr. Brown alone made the decision to terminate Mr. Himmelbergs employment as Assistant Business Manager of Local 501. The Declaration of Attorney Lee Feldman, confirming the admission of Chris Brown, is attached hereto as Exhibit 9.
220.
During a deposition in another lawsuit against the IUOE and Mr.
Brown brought by Blair Brim, Mr. Brown testified to the IUOEs instructions regarding the removal of McLaughlin and Pette: Q. Finn Pette, did you make the decision to fire him? A. No, I didn't. Q. Okay. The international [IUOE] directed you to do it?
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
A. Yes, that was part of the deal for McLaughlin to have to leave, that Pette had to go, as well. Q. But it wasn't your decision? A. No. (March 7, 2011 Deposition of Brown, at 149:14-23.)
221.
After IUOE had successfully seized control of Local 501 and
prevented the resistance candidates from mounting a successful challenge, Vince Giblin instructed Defendant Bensi of Able not to employ Mr. Pette. Defendant Bensi instructed all of the Chief Engineers employed by Able that they were not to employ Finn Pette. Finn Pette was blackballed coast-to-coast.
222.
Bob Fox was also threatened by Callahan. In January 2012, Callahan
flew across the United States and went out of his way to mention individuals known by Bob Fox to be connected with East Coast mafia. At the January 17, 2012 District 1 meeting for Local 501, James Callahan rose to speak: Thank you Chris. Aah, I would just like to say hello. Ill be brief here. I want to introduce myself. Im a 33 year member of the operating engineers hoisting and portable out of New York City. I was asked to take this job on as General President and aah Ill try to do my best. Umm its an honor to come out here, umm under the turmoil that aah you guys have gone through and there is one announcement that we that we discussed today and what Im going to do aah aah and one of my first duties is to assign the General Secretary Treasurer aah Brian Hickey to assemble a small committee to release you from monitorship. I expect that report to be done and in front of the General Executive Board by April and umm I dont fore see any issues. Aaah aah youve youve gone through turmoil, aah for anyone that doesnt know my histories I took over my aah in some aah some
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
uncertain times and aah the best thing I aah advice I could give you is solidarity because there are a lot of wolves at the door that are looking at to take us apart. And no matter what are differences are they should stay in this room. Because they are just waiting to take us apart and they love to see us all at each others throats and whatever our differences are should be settled here. They should be settled democratically, so everyone gets their fair share. So with that like I said you you aah my first duties as General President will be to release you from monitorship. And I wish you all luck if there is anything I can ever do to you, Mr. Fox it is an honor to see you again, thank you aah, I dont know if you remember me from a long time ago with Tom Maguire aah junior and Senior. Bob Fox responded, Sure do. Callahan continued: And aah a friend of yours from New York, a fellow by the name of Dan Murphy, knew I was coming out here and he said if I saw you to send you his regards aah you know good health. Bob Fox responded, Thank you.
223.
For more than 25 years Tommy Maguire served as the Business
Manager of IUOE Local 15, New York City. However, in 2005, shortly before his 69th birthday, Maguire, alongside three other union officers, admitted to taking bribes from contractors in a scheme that had helped to vastly inflate the cost of construction. Going back to 1989, he acknowledged in court, he had accepted payoffs, sometimes in the form of Christmas gifts, from at least two contractors. Until his resignation, he was the leader of the 6,000 engineers who run New York city's cranes, backhoes, bulldozers, and hoists. He headed Local 15s powerful statewide organization, and ran its wealthy political action fund, which gave hundreds of thousands of dollars annually to favored politicians. Most of the bribepassing was done through two former business agents, including Maguire's son-inPage 72 THIRD AMENDED CLASS ACTION COMPLAINT
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
law, Thomas McNamara, and Daniel Murphy, both of whom pled guilty alongside Maguire. Attached hereto as Exhibit 10 is the indictment filed against McGuire, McNamara, Murphy and Anthony Quaranta.
224.
Callahan, the current Business Manager of Local 15 and General
President of IUOE (in violation of the IOUE Constitution since the President position is a full time position), knew that Bob Fox would be aware of the names of these convicted racketeers who had just finished serving their federal prison terms. Bob Fox knew that Callahans references to Tom Maguire and Dan Murphy were a warning and thinly-veiled threat directed at him. Moreover, the threat was delivered in a way that would not have been obvious to many of the Local 501 members without Bob Foxs history with the IUOE and familiarity with with East Cost organized crime-related IUOE activity.
225.
At that same January 17, 2012 meeting, Callahan pulled Mr. Pette to
the back of the room to have a conversation. He asked Pette, "What do you want?" Mr. Pette had made a motion that the Local Union begin accepting Dan Himmelbergs dues because they refused to accept them while he hadn't paid his sham fine. Mr. Pette began to explain the situation regarding Mr. Himmelbergs dues, assuming that was what Callahan was referring to with his question. He immediately stopped Mr. Pette, and said, "I don't give a shit about Dans dues! What do you want?" Startled, Mr. Pette asked, "What do you mean?" Callanhan said, "What do you think I mean? What do you want to make all of this go away?" Mr. Pette asked, "Are you talking about the lawsuits?" Mr. Callahan asked, "What do you think I'm talking about?" Mr. Pette asked him to give him a little time, but Callahan said he wanted to handle it immediately. Mr. Pette told Callahan that he wasn't prepared for Callahans question and said, "It's a little hard to swallow. I've been at war with the International for three years and you walk up and say what do I want? I mean, its hard when the most powerful guy in the International talks to you when nobody would return a phone call for three years you know?" He
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
responded, "Let's get something straight, you are the most powerful man in the IUOE, Johnny! And I don't need anything we talk about showing up on the fucking internet tomorrow, got it?" Mr. Pette knew that Callahan was referring to the "Man In Black" e-mails that had become so prevalent in the past several years as a source of information to members of the Operating Engineers union.
226.
Mr. Pette asked to confer with Dan Himmelberg and agreed to meet
the following morning at the Bonaventure Hotel in downtown Los Angeles with a list of what they wanted. The following morning, they presented a settlement demand on behalf of themselves and Mr. McLaughlin that included a demand for an admission by IUOE that they were falsely accused. Callahan said they would never receive a penny from IUOE because they weren't responsible. Mr. Pette and Mr. Himmelberg discussed the actions of Vincent Giblin, Dennis Lundy, Jim Van Dyke and Callahan said, "Look, I can't undo what happened before me. I can't spit on Vincent, he gave me the job." They repeated their settlement proposal and told Callahan that the proposal was what they wanted. Callahan promised to take their requests to the General Executive Board.
E.
Professionals Under IUOEs Control Acted at the Direction of IUOE to Harm Local 501 To further its scheme to seize control of Local 501 and protect its long-
227.
standing kickback arrangements with Able and ABM, the IUOE utilized a number of professionals to operate as its agents supporting its unlawful agenda.
228.
For example, as described above, Levy conspired with IUOE to
convince Mr. McLaughlin to resign, thereby allowing IUOE to seize control of Local 501 and remove other Plaintiffs from positions where they might continue challenging Defendants conduct, conduct audits, and expose the many kickback operations in place. The removal of officers attempting to audit and expose
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
financial misconduct constitutes a breach of the fiduciary duty owed by IUOE, the GEB, and the GPs, to the members of Local 501.
229.
Randy Henningfield, charged with auditing Local 501 funds, including
the Training Trust, instead conspired to conceal evidence of malfeasance by Lundy and Henningfields wife, Escanuelas, to the detriment of Local 501. For his misconduct, Randy Henningfield was rewarded with additional assignments by Local 501 and IUOE.
F.
Giblin and IUOE Selected Zazzali to Fabricate the Appearance of Ethical Conduct by IUOE, While Actually Using Zazzali as Another Tool for the Oppression of Members Challenging IUOEs Widespread Corruption
230.
While Ethics Officer Zazzali was ostensibly appointed to ensure
ethical behavior throughout the IUOE by investigating ethical violations and reporting to the IUOE Board, the truth of Zazzalis purpose was far different. The ethics rules were not applied to the IUOE leadership or their made men.
231.
Callahan has escaped the scrutiny of Ethics Officer Zazzali. Callahan
serves both as General President of IUOE, acting as the Chairman of the Executive Board, and as Business Manager to Local 15. An IUOE Press Release identified Callahans dual roles. This dual service is prohibited by the IUOE Constitution, which states that the General President shall devote his full time to the duties of his office. Constitution, Article VI, Section 5.
232.
Similar to Giblin, John M. Hamilton, the Business Manager at Local
324 and former Second Vice President of IUOE also served on the Board of Blue Cross/Blue Shield of Michigan. Blue Cross/Blue Shield of Michigan provides Health Benefit Claims Administration for the Trust at Local 324. But Zazzali, who resigned earlier this year, never reported that Hamilton is operating in a position of perilous ethical impairment.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
233.
In addition to the conflict posed by Mr. Hamiltons work for the Board
of Blue Cross/Blue Shield of Michigan, he engaged in very public dealings with a convicted investment fund embezzler. As a quid pro quo for promising to invest over $60 million of union pension funds with John Orecchio of AA Capital Partners, Mr. Orecchio is alleged to have arranged for the purchase of Mr. Hamiltons home at a significantly inflated price. Mr. Hamilton exercised his Fifth Amendment privilege when asked to testify by the SEC. Ethics Officer Zazzali apparently found nothing irregular with this conduct either.
234.
Terrence Terry McGowan was accused in a NLRB complaint of a
series of threats of violence and economic retribution directed against any member of Local 139 who filed any charges against the union with the NLRB. McGowan settled the complaint and, at about that same time, was appointed to the General Executive Board as a Vice President, suggesting that conduct such as McGowans was rewarded by IUEO, not punished. As with misconduct by other IUOE leadership, Ethics Officer Zazzali saw nothing with respect to Mr McGowan worth investigating, let alone worth the filing of ethics charges.
235.
IUOE Board Trustee John Jack Ahern has also escaped scrutiny by
Ethics Officer Zazzali. (Zazzali would likely demur that he has no obligation to investigate anyone where no complaint is filed and anonymous ethics complaints are no longer accepted, now that Zazzalis business with Jim McLaughlin and Local 501 is concluded; of course, no member interested in his own safety and livelihood would file a complaint against any IUOE Board Member if he had to subscribe his name to it). In June 2007, Dennis Lundy stayed at the Millenium Hilton, in Richmond Hill, New York. But Mr. Lundy didnt pay for that room; it was provided to him by John Ahern (although Mr. Lundy did charge his incidental alcohol and pornography to the American Express card he routinely abused while working for the Training Trust at Local 501). John Ahern didnt pay for the Millenium Hilton room either. It was comped to him by Millenium Hilton.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Millenium Hilton is a signatory to a collective bargaining agreement with IUOE. As an employer of union members, Millenium Hilton is prohibited from giving, and all IUOE members and employees are prohibited from receiving, any gifts from Millenium Hilton. The room received by Ahern and given to Lundy constitutes a prohibited employer kickback to IUOE members. Once again, Ethics Officer Zazzali took no action, which is consistent with his purpose: create the illusion of a Code of Ethics and then enforce it without due process against any members who dare to challenge the IUOE leadership.
236.
Regarding Dennis Giblin, the son of Vince Giblin, Zazzali was
required to respond to a complaint contenting that Dennis Giblin, who pled guilty to embezzlement charges filed by the government, should be expelled from IUOE. Zazzali concluded that because Dennis Giblin was then on withdrawal from IUOE Local 68, he did not need to be expelled. This ruling by Zazzali paves the way for Dennis Giblins eventual return to IUOE after he rides out enough years at Able.
237.
In Section III, entitled Financial Practices, the IUOE Code of Ethics
says: C. The Union shall not permit any of its funds to be invested in a manner that results in the personal profit or advantage of any Union officer, employee or representative. Mr. Giblin was permitted to obtain personal advantage as a result of this relationship with Blue Cross, in violation of the IUOE Code of Ethics. Ethics Officer Zazzali, who acts to serve the interests of the IUOE leadership that selected him, did nothing. Yet while he disregarded IUOEs General Presidents gross conflict of interest, Ethics Officer Zazzali seemed very concerned about the potential conflict of interest that could occur if a Chief Engineer at Local 501 served as a District Representative because of the tension between serving the interests of members and the interests of the employer.
238.
Mr. Pette wrote letters to Ethics Officer Zazzali, outlining the
embezzlement of Training Trusts by Dennis Lundy and stating Pettes belief that
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Ethics Officer Zazzali was being used as a weapon against Jim McLaughlin in retaliation for the Lundy investigation. Ethics Officer Zazzali never responded to Mr. Pettes letters about Lundy and McLaughlin.
239.
Although Article 8 of the IUOE Constitution requires written
determinations by Ethics Officer Zazzali, in all cases involving Local 501, as far as any member of Local 501 knows, Ethics Officer Zazzali failed to prepare any written Reports for submission to the General Executive Board of IUOE.
240.
Since the filing of this action, IUOE Ethics Officer Zazzali has
resigned, or at least has claimed to have resigned, from his position as IUOEs ethics officer. In failing to fairly investigate all ethics concerns, instead acting as an instrument of retaliation for IUOEs GEB and GPs, Zazzali breached his fiduciary responsibilities to the members of IUOE, including members of Local 501.
G.
Election Abuses and Related Misconduct Harming Local 501s Members

1.
Decertification Election Tampering by Giblin and IUOE at UCLA Cost Local 501 Roughly 600 Members and Was Used as One Pretext for Terminating McLaughlin
241.
Roughly 600 active members of Local 501 were employed at UCLA.
A decertification vote was scheduled to be held at UCLA. IUOE, through Giblin, ordered Lundy to stuff ballots at a decertification vote at UCLA. As a result of overzealous ballot stuffing, duplicate ballots were discovered by state officials overseeing the election. Local 501 was given the option of facing charges or walking away and allowing decertification. Giblin ordered Local 501 to walk away to avoid any investigation into his orders. Giblin told Chris Brown, "Dennis and I stuffed the ballots and you can't even hold onto something when I hand it to you." As a result of the decertification, Local 501 lost roughly 600 active members. The
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
decertification was later used as one pretext for demanding the resignation of McLaughlin at Local 501 and terminating him from positions at IUOE. Election tampering by Giblin and IUOE constitutes a substantial violation of their fiduciary duties to Local 501 members, and the use of the results of that tampering as a pretext to remove the duly elected Business Manager of Local 501 constitutes a willful and wanton aggravating factor, demonstrating the remorselessness with which Giblin and IUOE disregard the exceptionally high duties they owe to Local 501 members.
242.
In a lawsuit later brought against Levy, Attorney Griffin provided a
false declaration. In it, Attorney Griffin claimed that Levy would not have succeeded if IUOEs monitorship declaration was challenged. Attorney Griffin swore under oath that the decertification was a reason for removing McLaughlin, but that was false since the decertification was an entirely pretextual reason not a legitimate or true reason for the removal of McLaughlin. At the time he executed this sworn declaration, Attorney Griffin in fact knew that his own client Giblin had directed the ballot stuffing effort in the UCLA decertification vote. Griffins suggestions, under oath, that IUOE was concerned with McLaughlins responsibility for the decertification and wanted him removed were false and misleading because the decertification was the direct result of Giblins wrongful ballot stuffing orders. And Attorney Griffin also knew that the other pretextual reasons the false Foley employment allegations offered for McLaughlins removal were unlikely to support the imposition of a Trusteeship in Local 501.
243.
But Griffins declaration was honest in a few respects. First, Griffins
declarations cataloged many instances where IUOE actually or effectively seized control of local unions. Second, and more significantly, Griffin declared that IUOE has an affirmative duty to monitor the operation of its local unions. Had IUOE, through the GEB and GPs, fulfilled that obligation in the case of Local 501, it would have demanded action against ABM and Able for their double-breasted
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
operations, their underpayments to benefit funds, and the refusal of their Trustee representatives to act in the best interests of the funds they served for Local 501.
2.
IUOE and IUOEs Hand-Picked Operatives Refused to Permit Local 501 Members to Nominate and Elect Delegates of Their Choosing to Attend the IUOE General Convention in April 2013
244.
Once every five years, every member of IUOE is entitled to participate
in the IUOE General Convention through democratically nominated and elected delegates. In the case of Local 501, the membership of Local 501 has paid many millions of dollars in per capita contributions to IUOE (approximately $100,000 per month) which conferred the right to participate in the General Convention on Local 501s members.
245.
On Tuesday, January 15, 2013, IUOE Local 501 held the District 1
meeting at 2405 W. 3rd Street, Los Angeles CA 90057. Over 20 members were in attendance. At the beginning of the meeting, Local 501 President Ken Capehart advised the members that there would be No Special Order of Business. At that time, member Patrick Adams raised his hand and asked if the nominations for the General Convention Election were supposed to take place that evening, following a motion made at the December 2012 Semi-Annual General Membership Meeting of Local 501. President Capehart informed the membership that the motion was ruled out of order by the Executive Board, and further stated that the Executive Board had voted to cancel the election due to budgetary concerns.
246.
At that time, Plaintiff Finn Pette, also in attendance, raised his hand
and informed President Capehart that he could not cancel the election, stating that it was a protected act under the National Labor Relations Act. President Capehart disagreed, claiming that he could cancel the election and asserting that the decision was authorized in the By-Laws and Constitution. Mr. Pette had with him the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Department of Labors Election of Officers of Labor Organizations booklet, discussing 29 CFR Chapter IV, Subchapter A, Part 452. Mr. Pette proceeded to read Section 452.22, entitled Delegates To A Convention: Under certain circumstances, delegates to a convention of a national or international labor organization, or an intermediate body, must be elected by secret ballot among the members in good standing of the labor organization they represent even though the delegates are not officers of the organization. Such election is required by the Act. Again, President Capehart said, I disagree.
247.
A heated discussion then occurred. Mr. Pette again read from the
Department of Labors booklet, at Subpart G, entitled Campaign Safeguards. Mr. Pette read aloud from Section 452.66, entitled Statutory provisions: The opportunity for members to have a free, fair, and informed expression of their choices among candidates seeking union office is a prime objective of title IV of the Act. Voters can best be assured opportunity for an informed choice if certain campaign rights are guaranteed to candidates and their supporters. To this end, the statute provides that adequate safeguards to insure a fair election shall be provided, and states certain specific safeguards. These safeguards apply not only to candidates for officer positions as defined in the Act but also to candidates for delegate posts, if the delegates are to nominate or elect officers.
248.
Mr. Pette followed this section with a reading from Section 452.99,
entitled Notice of Election: Elections required by title IV to be held by secret ballot must be preceded by a notice of election mailed to each member at his last known home address not less than fifteen days prior to the election. The members then challenged President Capehart with the question of sending out
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
notification, to which he responded, The By-Laws give the Executive Board the power to overturn the election. We decided it would cost too much. Again, a heated debate followed. Mr. Pette asked Mr. Capehart to provide a copy of the ByLaws and Constitution and he refused. Member Patrick Adams had a Constitution and copy of the Local By-Laws with him and Mr. Pette asked to see them.
249.
Upon finding the relevant passages, Mr. Pette again addressed
President Capehart. Mr. Pette asked if he would acknowledge that the Constitution Mr. Pette held was the governing document of rules for the Union. Mr. Capehart stated that it was the correct Constitution. Mr. Pette proceeded to read sections of Article III section 3, entitled Composition of Convention, at paragraph 2: The election of delegates shall be conducted by secret ballot. In order to be eligible to be a candidate for delegate, a member must, at the time of nomination, be in good standing with respect to payment of dues and meet the requirements contained in the second paragraph of Article XXIV, Subdivision 1, section (b). In addition, Local Unions may impose in their bylaws a requirement that candidates for delegate must file nominating petitions in support of their candidacies signed by not more than two-hundred (200) members or two percent (2%) of the entire membership, whichever is less. Adequate safeguards to insure a fair election shall be provided by the Local Union in accordance with International Constitution, applicable law, and such rules and regulations as may be promulgated by the General executive Board. After reading this passage from the IUOE Constitution out loud to President Capehart, Mr. Pette again asked, Where does that say you have the right to stop the election? Mr. Capehart again said, I disagree.
250.
At that time a very heated discussion took place. The members were
extremely angry and were told that if they didnt like it to file a complaint. Mr. Pette pointed out that the complaint process of the IUOE Constitution would take
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
so long that the election would be a moot point. President Capehart simply smiled at Mr. Pette in response.
251.
In violation of members LMRDA Title 1 rights, Local 501 managed
by IUOE puppet Curly - made no effort to request bankruptcy court permission to spend money on the ordinary business activity of sending delegates to the General Convention. The failure to make this request was likely a direct instruction of IUOE, which has previously suggested it could merge Local 501 into another local union, which would be done to diminish the ability of Local 501 members to seek redress. This decision was appealed by Mr. Pette, and the Department of Labor was made aware of this serious breach of the rights of union members to equal protection. Once again, the Department of Labor failed to protect Local 501s members.
252.
Local 501 members paid for five years to obtain the Title 1 privilege of
selecting their representation at the 38th Annual General Convention. The IUOE has maintained control of Local 501 during most of the last five years, and is now using that control to prevent Local 501 members from selecting the delegates that will represent their interests in decisions that will remain in place for the next five year. For the last five years, IUOE took a percentage of the dues paid by members to secure this very right. Every dollar IUOE collected from Local 501 members for the past five years should be restored to Local 501s members. The Court should impose a constructive trust on IUOE, sequestering those per-capita contributions from 2009 through 2013. Since there were no adequate measures available to restore members rights prior to the 38th Annual General Convention, Local 501 members should be excused from all per-capita contribution obligations until such time as control of Local 501 is restored to its members and a meaningful democratic processes is put in place both at Local 501 and IUOE. Any actions directed at Local 501 from the 38th Annual General Convention, or any changes directed at members generally, should be abrogated as a result of IUOEs years of
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
misconduct and the absence of LMRDA-guaranteed equal protection rights for Local 501 members.
3.
Curly, Capehart, and Other Incumbents, with IUOEs Help, Conspired to Steal the Recent Election, Using Such Tactics as Withholding State Worker Address Corrections from the Master Mailing List Used for Ballots to Reduce Votes from Demographic Groups Viewed as Hostile to Curly, Capehart and the Other Incumbents
253.
In August 2013, Local 501 conducted an election that was, at the
direction of the DOL, supposed to correct for the deficient election conducted in 2010. Defendants Ed Curly and Ken Capehart took a number of steps to ensure that the 2013 election was anything but fair.
254.
Curly and Capehart directed business agents to campaign for the
incumbents. The campaigning occurred during working hours, and was accomplished at times with union vehicles.
255.
In early 2013, at a meeting that included many of the incumbent
candidate slate members, the threat posed by California State employees voting in large numbers was discussed. The California State employees were known to be, as a group, highly dissatisfied with Local 501 leaders and representatives, including Sandra Acosta. The incumbent slate members admitted that a plan had been implemented to reduce the number of California State employees voting in the election. Specifically, throughout 2013, the employee at Local 501 responsible for maintaining current addresses for California State employee members from reports provided to Local 501 was instructed to leave old addresses on the Local 501 mailing list. This same employees past practice was to update address information every month from the reports provided by the state.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
256.
Curly, Capehart, and other incumbent candidate slate members,
including Sandra Acosta, engaged in prohibited electioneering behavior by meeting with employee groups under the sham excuse of discussing their sudden success in obtaining contracts that had been unresolved for years. Other candidate slates were not provided equal access to these large employee groups.
257.
IUOE organizers were used to campaign for Curly and his incumbent
slate. The improper use of IUOE organizers was discovered when the Resistance slate sent candidates to Atascadero State Mental Hospital to meet with state employee members of Local 501. A human resources representative at the hospital identified the IUOE organizer that engaged in improper electioneering for Curlys slate. The IUOE, despite claiming that is does not involve itself in local union elections, had a vested interest to see the Resistance did not win the election.
258.
Capehart told members at the Donovan state prison not to let
Resistance slate representatives in for a meeting that had already been scheduled. Capehart issued the instruction while visiting the prison and handing out t-shirts emblazoned with his incumbent slate logo.
4.
Rick Alcala, Leading a Separate Spoiler Slate of Candidates, Harassed City of Los Angeles Employees Who Spoke with the Resistance Slate as Part of His Plan to Ensure That Curlys Incumbent Slate of Candidates Won the Election
259.
Defendant Alcala is a City of Los Angeles Instrument Mechanic
Supervisor 1 with Public Works, Department of Sanitation. Alcala ran for the office of Business Manager on with his slate of candidates that called themselves the Clean Slate, a third slate of candidates running against Curlys Pro Union slate and Plaintiff Pettes Resistance slate. When Finn Pette, Pat Williams and Erik B. Smith visited the Hyperion Plant on August 8, 2013, to meet with union
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
members, Alcala a City employee and Supervisor, engaged in unprofessional, intimidating, harassing and threatening behavior and actions toward City employees and Plaintiffs Finn Pette, Pat Williams and Erik B. Smith.
260.
The City of Los Angeles maintains a substantial set of workplace
behavior guidelines: WORKPLACE VIOLENCE POLICY & GUIDELINES. Threats, Threatening behavior or acts of Violence against an employee, a customer, a visitor, or any other individual cannot and will not be tolerated. Verbally abusive or intimidating language or gestures will not be tolerated. Cooperate with the public, co-workers, supervisors, and management. Improper conduct, to disobey rules, to fail to be productive, to be insubordinate, to be discourteous, to endanger others, or to engage in conduct unbecoming a City employee. Employees are expected to adhere to standards of reasonable and prudent conduct. Employees in supervisory positions and those performing safety/security functions are generally expected to demonstrate a higher level of conscientiousness and integrity with respect to their employment. Accordingly, these employees may be subject to more severe levels of discipline for violations of behavior and/or performance standards because they are held to a higher standard of conduct. IMPROPER BEHAVIOR WITH SUPERVISORS, FELLOW EMPLOYEES, OR THE PUBLIC Standard: Employees must cooperate and work well with the public, supervisors and co-workers. 4. Making threats (verbal or non-verbal) or engaging in a confrontation with the public, supervisors or co-workers Employees must cooperate and work well with the public, supervisors and co-workers. (See Note B) Note B. Employees who: (1) make threats or engage in confrontational behavior;
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Making threats (verbal or non-verbal) or engaging in a confrontation with the public. City employees are expected to comply with Federal and State laws and regulations and City policies including applicable mayoral directives ensuring equal employment opportunity and a discrimination and harassment free workplace. City employees are expected to demonstrate sensitivity to and respect for individual and personal differences when working with other employees and the public. Actions that create a hostile, offensive, threatening, or intimidating work environment will not be tolerated. Employees who: (1) make threats or engage in confrontational behavior. Supervisory Standard: Failure to maintain a harassment free workplace for subordinates; failure to foster a discrimination free workplace by ones own individual actions or failure to act; or allowing subordinates to retaliate against an employee for filing a discrimination complaint, for participating in a discrimination complaint investigation, or for opposing discriminatory actions. Mr. Alcala, on several occasions, violated those guidelines, as well as provisions of the LMRDA, when he threatened subordinate employees for arranging meetings or actually meeting with Finn Pette, Pat Williams and Erik B. Smith.
261.
On July 11, 2013, Plaintiffs Erik Smith and Pat Williams attended a
meeting with Local 501 members in the Mechanics Shop at Hyperion Treatment Plant in Playa Vista. Neither Erik Smith nor Pat Williams are employees of any City of Los Angeles facility. Approximately 15 union members attended that meeting during their scheduled meal break to discuss the Resistance platform ideas related to the Local 501 election.
262.
During the July 11, 2013 meeting, information was distributed to those
in attendance, informing them of issues facing the union and inviting them to a barbeque on July 27, 2013.
263.
A few employees from the Hyperion Plant attended the barbeque.
During the barbeque, members of the Resistance group were invited to have a meeting at the Hyperion Plant for all Local 501 members, given that the prior meeting was only with the Mechanics Shop Group. The invitation to speak with all Hyperion union members was to help the Plant Employees understand equally the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
platforms of each candidate slate. Resistance members were told the Clean Slate group with Rick Alcala and the Pro Union incumbent group had both been at the facility, had handed out literature and spoken with members in all shops on the property. The Resistance group was the only group who had not had prior access to all shops.
264.
A Hyperion plant employee, Mr. Fogler, was interested in helping the
election process by inviting Finn Pette, Pat Williams and Erik B. Smith to the Hyperion Plant. Mr. Fogler was attempting to assure an open, fair and honest election for in Local 501 by providing employees with access to the Resistance slate message. The Hyperion plant was important in that Local 501 represents over 100 City employees at the Hyperion Plant. Mr. Fogler contacted Steve Fan, Plant Manager and Ms. MeeHae Oh, Plant/Admin at Hyperion to request the use of a meeting room for the Resistance slate presenation.
265.
A meeting with Finn Pette, Erik Smith and Pat Williams was
scheduled. However, Pat Williams was later notified that the meeting was cancelled due to complaints to the Plant Manager Mr. Steve Fan (now retired) by Local 501 business agent Gavin Koon and Rick Alcala, a Controls Systems Supervisor 1. The meeting was rescheduled with the help of a Department of Labor agent and the City Attorney.
266.
On August 8, 2013, on the morning of the meeting, Pat Williams, a
retired Local 501 member, was standing outside of the building where the meeting was to begin. Mr. Alcala approached Ms. Williams, voiced surprise at seeing her in front of the building and asked the whereabouts of Gavin Koon, Local 501 Business Agent. Ms. Williams informed Mr. Alcala that Mr. Koon has not been invited and the meeting was for the Resistance Group to have the same access that both Mr. Alcalas slate and the Pro Union group had previously enjoyed. Mr. Alcala stated he had complained about the meeting to Local 501 Business Manager Curly and the meeting was to be canceled by Gavin Koon and Local 501. Mr.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Alcala claimed that the Resistance Group had no business being at the Facility. Ms. Williams responded the meeting was scheduled and fully authorized with Plant management. Mr. Alcalas response again was that he and Local 501 had the meeting canceled. Mr. Alcala then went upstairs to the meeting room while Ms. Williams remained outside for a few more minutes to direct members to the meeting.
267.
Mr. Alcala, upon entering the room, told the members present that the
meeting was unauthorized and was not to take place according to Gavin Koon and Local 501. When Mr. Alcala was told by Pat Williams that the meeting was authorized and the room scheduled with Plant management, he insisted the meeting was supposed to have been canceled by Steve Fan, Plant Manager. Mr. Smith asked Mr. Alcala to leave and said it was not Mr. Alcalas meeting and he was not welcome. Mr. Alcala said it was his facility and he had a right to be there and at the meeting. Again, Mr. Alcala is a City of Los Angeles Supervisor 1, fully capable of intimidating workers under color of authority.
268.
Mr. Alcala looked around the room at the members present, pointed
his finger at them and said, I know you guys who scheduled this meeting. Mr. Fogler said he had it approved by the Plant manager. Mr. Alcala asked Mr. Fogler two times, "Does your supervisor know about this?" and "Does your Supervisor know you are here?" Mr. Fogler said, Yes, he does. Mr. Alcala told Mr. Fogler, I am going to call your supervisor to tell him you are here, and then Mr. Alcala picked up his phone and began trying to make the call. Mr. Smith again asked Mr. Alcala to leave the meeting. Mr. Alcala said he was going to call security and 911 to have the Resistance slate representatives removed. Ms. Williams asked Mr. Alcala to leave the meeting and informed him that, as a Supervisor, his behavior was unacceptable and he was intimidating, threatening and harassing the Plant employees, who wanted to hear from all the groups running for office, including the Resistance slate. Mr. Alcala said that no one was going to ask him to leave his
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
facility. While all of this was going on, two members got up and left the room, and two other members entering the room saw Mr. Alcala, turned around, and left.
269.
Mr. Alcala walked over to the front of a table and tossed down a stack
of his election materials in front of a Plant worker and told him to pass the material out. The man at the table later said he felt singled out by Mr. Alcala. He did not pass around the material. Mr. Alcala left the room and the meeting continued, though everyone was unsettled by the threatening, intimidating and harassing behavior of Mr. Alcala and its effect on the union members present.
270.
After the meeting, Ms. Williams contacted the Department of Labor
Investigator Supervising the election and told him about the incident. No action was taken to address this substantial and prejudicial violation of members rights, secured by the LMRDA, to have open, fair and free elections, where each members vote counts as much as the next and no member is singled out for abuse or retaliation on account of their positions on candidates.
H.
Defendants and Their Agents Destroyed or Removed Records That Should Have Been Retained by Local 501 for 5 Years While Chris Brown worked as the Business Manager of Local 501, he
271.
was observed downloading approximately ten flash drives full of emails and other electronic records near the time of his departure in 2011. In addition, the contents of an entire room filled with file boxes belonging to Local 501 were shredded at the behest of IUOE to limit the ability of auditors to investigate underpayments and other wrongdoing by Able and ABM.
272.
Sandra Acosta, who operated the Bakersfield office for Local 501,
removed or destroyed files maintained in that office and relating to employees working in positions in and around Bakersfield.
273.
Sandra Acosta also operated her own business out of the Bakersfield
office of Local 501. Her business, On The Greene LLC, was formed July 8,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
2003 according to records on file with the California Secretary of State. On The Greene LLC sells custom golf markers and other promotional gift items. On The Greene LLC sold golfing promotional items across country to various local union chapters. In particular, On The Greene LLC sold its merchandise to IUOE Locals 138, 30, 68 and 12. Jim McLaughlin learned of the business when Bill Duffy called Local 501 about an order.
274.
Thus, it is also possible that documents Acosta destroyed in
Bakersfield were records related to other businesses that Acosta owned or invested in, including On The Greene LLC and Foothill Resources, Inc.
275.
In late 2009, Van Dyke, as an agent of IUOE, removed current records
of Local 501 and delivered them to IUOE. The removal of those records from California is a violation of the LMRDA 5-year record retention requirement. IUOE continues to violate Title II of the LMRDA by retaining custody of documents belonging to Local 501 and that should be retained at Local 501.
V. 276.
CLASS ACTION ALLEGATIONS
Plaintiffs bring this action individually, as well as on behalf of each
and all other persons similarly situated in a concerted effort to improve wages and working conditions for other, similarly situated employees, and thus, seek class certification under Fed. R. Civ. Proc. 23.
277.
The proposed Local 501 Class consists of and is defined as:
All individuals that are or have been members of the International Union of Operating Engineers Local 501 at any time within the five years prior to the filing of this action. Excluded from the Class are all Defendants in this action; Class Counsel and their employees and members; all persons within the third degree of relationship to any of the excluded individuals and any judge who hears or decides any matter in this litigation.
278.
The proposed Caremark Class consists of and is defined as:
All individuals who are or have been members of Local 501 at any time within the five years prior to the filing of this action, or the beneficiary of any such member, who received pharmacy benefit
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
management services through Local 501s Health & Welfare Trust Fund from CVS Caremark Corporation or its subsidiaries. Excluded from the Class are all Defendants in this action; Class Counsel and their employees and members; all persons within the third degree of relationship to any of the excluded individuals and any judge who hears or decides any matter in this litigation.
279.
The proposed Local 501 Benefit Class consists of and is defined as:
All individuals who are or have been participants and/or beneficiaries of any employee benefit plan(s) provided through the International Union of Operating Engineers Local 501 at any time within the five years prior to the filing of this action. Excluded from the Class are all Defendants in this action; Class Counsel and their employees and members; all persons within the third degree of relationship to any of the excluded individuals and any judge who hears or decides any matter in this litigation.
280.
The proposed EPEC PAC Class (sometimes referenced herein as the
Local 501 employee sub-class) consists of and is defined as: All officers and employees of Local 501or any of its affiliated trusts and employee benefit plans who contributed at any time during the five years prior to the filing of this action to the International Union of Operating Engineers EPEC Fund, FEC Committee ID: C00029504. Excluded from the Class are all Defendants in this action; Class Counsel and their employees and members; all persons within the third degree of relationship to any of the excluded individuals and any judge who hears or decides any matter in this litigation.
281.
Plaintiffs reserve the right to establish sub-classes, or modify any Class At all material times, Plaintiffs were or are members of the Class. There is a well-defined community of interest in the litigation and the (a) Numerosity: The members of the class (and each subclass, if any) are so numerous that joinder of all members would be unfeasible and impractical. The membership of the entire class is unknown to Plaintiffs at this time, however, the smallest of the defined classes is estimated to be greater than 100 individuals and the identity of such membership is readily ascertainable by inspection of Defendants records.
or sub-Class definition, as appropriate.

282. 283.
class is readily ascertainable:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
(b)
Typicality: Plaintiffs are qualified to, and will, fairly and adequately protect the interests of each class member with whom there is a shared, well-defined community of interest. Plaintiffs claims are typical of all class members claims. For example, Plaintiffs were members of Local 501 within the class period, like all other Class members, and Plaintiffs were injured by manipulation of Local 501 and by the harm to their employee benefit plans as all other Class members were.
(c)
Adequacy: Plaintiffs are qualified to, and will, fairly and adequately protect the interests of each class member with whom there is a shared, well-defined community of interest and typicality of claims, as demonstrated herein. Plaintiffs acknowledge that Plaintiffs have an obligation to make known to the Court any relationship, conflicts or differences with any class member. Plaintiffs attorneys, the proposed class counsel, are versed in the rules governing class action discovery, certification, and settlement.
(d)
Superiority: A Class Action is superior to other available methods for the fair and efficient adjudication of the controversy, including consideration of: 1) 2) The interests of the members of the class in individually controlling the prosecution or defense of separate actions; The extent and nature of any litigation concerning the controversy already commenced by or against members of the class; 3) 4) The desirability or undesirability of concentrating the litigation of the claims in the particular forum; and The difficulties likely to be encountered in the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
285. 284.
management of a class action. (e) Public Policy Considerations: Labor organizations are intended to protect employees from the potential for employer abuse of power, but when the parent union conspires with employers, a local union is powerless to protect itself from abuses originating from multiple directions. Current union members are often afraid to assert their rights out of fear of direct or indirect retaliation. Former union members know the reputation of large labor organizations as violent and dangerous when challenged. Class actions provide the class members who are not named in the complaint with a type of anonymity that allows for the vindication of their rights at the same time as their privacy and safety is protected. There are common questions of law and fact as to the class (and each subclass, if any) that predominate over questions affecting only individual members, including but not limited to: (a) (b) (c) (d) (e) Whether Defendants violated the LMRDA; Whether Defendants violated ERISA and breached fiduciary duties thereunder: Whether Defendants breached common law fiduciary obligations to the Class; Whether Defendants violated the UCL, and, The appropriate amount of damages, restitution, or monetary penalties resulting from Defendants violations of law. This Court should permit this action to be maintained as a class action (a) The questions of law and fact common to the class predominate over any question affecting only individual members;
pursuant to Fed. R. Civ. P. 23 because:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
(b)
A class action is superior to any other available method for the fair and efficient adjudication of the claims of the members of the class;
(c) (d)
The members of the class are so numerous that it is impractical to bring all members of the class before the Court; Plaintiff, and the other members of the class, will not be able to obtain effective and economic legal redress unless the action is maintained as a class action;
(e)
There is a community of interest in obtaining appropriate legal and equitable relief for the statutory violations, and in obtaining adequate compensation for the damages and injuries for which Defendants are responsible in an amount sufficient to adequately compensate the members of the class for the injuries sustained;
(f)
Without class certification, the prosecution of separate actions by individual members of the class would create a risk of: 1) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for Defendants; and/or 2) Adjudications with respect to the individual members which would, as a practical matter, be dispositive of the interests of other members not parties to the adjudications, or would substantially impair or impede their ability to protect their interests, including but not limited to the potential for exhausting the funds available from those parties who are, or may be, responsible Defendants; and,
(g)
Defendants have acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief appropriate with respect to the class as a whole.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
286.
Plaintiffs contemplate the eventual issuance of notice to the proposed
members of the class that would set forth the subject and nature of the instant action. The Defendants own business records, or those of Local 501, may be utilized for assistance in the preparation and issuance of the contemplated notices. To the extent that any further notices may be required, Plaintiff would contemplate the use of additional mailings.
VI.
CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF (Violation of Bill of Rights and Information Access Rights Secured by Labor Management Reporting and Disclosure Act, 29 U.S.C. 411, 431) By Plaintiffs against Defendants Ed Curly, Ken Capehart, IUOE, Giblin, Callahan, and the previously identified IUOE GEB Defendants
287.
Plaintiffs re-allege, and incorporate by reference, each and every This Claim for Relief is asserted against Defendants Ed Curly, Ken
paragraph herein.
288.
Capehart, and IUOE, Giblin, Callahan, and the IUOE GEB Defendants identified previously in Section III.B. (collectively referred to for purposes of this Claim for Relief as the LMRDA Defendants).
289.
Violations of the LMRDA, Title I (Bill of Rights) and Title II
(Reporting by Labor Organizations, Officers and Employees of Labor Organizations, and Employers), occurred within the Central District of California where Local 501 is headquartered. As such, venue for this claim is proper in this District pursuant to 29 U.S.C. 412, 440.
290.
Violations of the LMRDA, Title IV (Elections), occurred within the
Central District of California where Local 501 is headquartered, and the Department of Labor is presently engaged in an election monitoring process with
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Local 501. However, Plaintiffs do not assert Title IV violations, referring instead to the related action filed by the DOL. In the event the DOL challenges the results of the latest election, which, on information and belief, has not yet been certified as valid by the DOL, Plaintiffs reserve the right to seek leave to amend to include allegations regarding that action by the DOL.
291.
Plaintiffs are members of the IUOE, in the Local 501 Chapter of that Defendant IUOE is a labor organization as defined in 29 U.S.C. The other LMRDA Defendants are officers of labor organizations and The LMRDA Defendants egregiously and repeatedly violated LMRDA
labor union.
292.
402(i). Local 501 is a labor organization as defined in 29 U.S.C. 402(i).

293.
have reporting duties imposed pursuant to 29 U.S.C. 431.

294.
with respect to Plaintiffs and class members, as shown by the facts previously alleged and incorporated herein and by the allegations below.
295.
Section 411 of the LMRDA, 29 U.S.C. 411, provides in part:
(a)(1) Equal rights Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws. (2) Freedom of speech and assembly Every member of any labor organization shall have the right to meet and assemble freely with other members; and 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. 29 U.S.C. 411(a)(1) and (2).
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
296.
Defendants Ed Curly and Ken Capehart mandated that all Local 501
Business Agents, and possibly other non-administrative employees, contribute to Curlys re-election fund. By imposing and enforcing, or threatening to enforce, an illegal contribution requirement on Local 501 employees, which provided Curlys election slate with huge financial advantages in the recent union election, defendants Curly and Capehart deprived Plaintiffs of their right to honest, open, fair and free elections, and thus effectively deprived them of their right to vote to determine the leadership of Local 501. In addition, at the direction of Defendant Curly, union employees were threatened with financial harm if they failed to support Defendant Ed Curlys incumbent slate, in violation of the LMRDA and the Hobbs Act, 18 U.S.C. section 1851. Defendants Curly and Capehart thus violated and frustrated union members LMRDA section 411 right to freely speak and assemble, and in particular, to freely express their views about union matters and malfeasance without fear of illegal retaliation. See also paragraphs 253-270, supra, incorporated by reference (discussing embezzlement of union assets and efforts to steal election by improper means by Curly and his slate in the last election). Further, as alleged in paragraphs 253-258 above, Defendants intentionally attempted to ensure that union members who they expected would not support Curlys slate would not receive ballots, and in fact Curly and Local 501 did not send ballots to certain members, directly depriving them of their right to vote. On information and belief, defendant Callahan, IUOEs General President, and other agents of the IUOE working at his direction, worked behind the scenes with Curly to ensure that Curly would win the election by any means necessary over his rival, Plaintiff Pette. In addition, as alleged previously, Plaintiffs Pat Adams and Erik Smith were terminated by Able at least in part because they opposed the wrongdoing of Curly and the IUOE. The firing of these dissident plaintiffs was intended, at least in part, to quell dissent and to prevent them from exercising their rights protected in Title I. In sum, Plaintiffs and class members were deprived of
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
their rights under Title I in connection with the misconduct relating to the recent Local 501 election.
297.
The Department of Labor has determined that Local 501s 2010
election process violated members rights under the LMRDA. The Department of Labor, as of the filing of this Third Amended Complaint, is investigating reports of election misconduct, in violation of the LMRDA, related to the conduct of the 2013 election. In the recent do over election, as discussed above, Defendants again acted improperly and contrary to the rights of members under Title I.
298.
As a result of threats of physical and economic violence, demonstrated
as credible through the forced terminations of Local 501 employee-members and the forced resignations of duly-elected Local 501 officers (described more fully above), Plaintiffs reasonably concluded that internal procedures were futile and that IUOE and its leadership would not permit a democratic process to proceed. Plaintiffs believed this because of the IUOEs past wrongs toward Plaintiffs, discussed in detail above, and current antipathy toward Plaintiffs and fear that the candidate plaintiffs, if a fair democratic process were permitted, would prevail and institute litigation against IUOE; likewise, and relatedly, plaintiffs Pette, McLaughlin, Fox, Himmelberg and others understood fully that the IUOE and its officers wish to protect their established interests in receiving unlawful kickback payments and/or other personal favors from ABM and Able.
299.
The IUOE Defendants (other than Giblin) identified above knew of
and, on information and belief, directly participated in Curly and Capeharts violations of Title I of the LMRDA, as alleged above and in the allegations incorporated by reference. Winning the election was critical for the IUOE and its leadership because they knew that, had Plaintiffs Pette and the other resistance candidates prevailed, they would likely have filed suit (perhaps in a non-class action context) on behalf of Local 501 against the IUOE based on its misconduct set forth above. In connection with the recent election, Defendant Curly is believed
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
to have communicated regularly with the IOUE Defendants, who Curly claims are not exercising dominion over Curly and Local 501. Curly, on information and belief, used a burner phone (or at least a phone other than his union cell phone and the office phone) for the purposes of attempting to avoid discovery of his communications with the IUOE Defendants who control him and, through him, Local 501. An IUOE representative was located at one of Local 501s offices in the months leading up to the election. To the extent the IUOE Defendants did not directly control and direct Curly and Capeharts illegal actions and strategies in the last election, they knew of and ratified Curly and Capeharts efforts to quell dissent and to win the election by any means necessary, including through the improper use of union resources and the refusal by Curly and Capehart and their underlings to provide equal access to address lists and other information needed for campaigning to members opposed to Curly and the IUOEs corruption, including Plaintiff Pette and his resistance slate. It is believed that an IUOE representative may also have been present during meetings when winning at any costs, including by illegal efforts such as those described above, was discussed. Another IUOE representative directly participated in campaigning in favor of the incumbent Curly slate. Further, certain of Plaintiffs and others acting to support them in their efforts to root out union corruption complained in writing to the IUOE about the Local 501 officers election misconduct, and the IUOE did nothing to stop that misconduct, instead continuing to support Curly and his slate. The IUOE, Callahan and the GEB Defendants are, for these reasons, liable for ratification of the Local 501 Defendants Title I violations.
300.
Section 431 of the LMRDA, 29 U.S.C. 431, provides, in part:
(b) Annual financial report; filing; contents Every labor organization shall file annually with the Secretary a financial report signed by its president and treasurer or corresponding principal officers containing the following information in such detail
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
as may be necessary accurately to disclose its financial condition and operations for its preceding fiscal year (1) assets and liabilities at the beginning and end of the fiscal year; (2) receipts of any kind and the sources thereof; (3) salary, allowances, and other direct or indirect disbursements (including reimbursed expenses) to each officer and also to each employee who, during such fiscal year, received more than $10,000 in the aggregate from such labor organization and any other labor organization affiliated with it or with which it is affiliated, or which is affiliated with the same national or international labor organization; (4) direct and indirect loans made to any officer, employee, or member, which aggregated more than $250 during the fiscal year, together with a statement of the purpose, security, if any, and arrangements for repayment; (5) direct and indirect loans to any business enterprise, together with a statement of the purpose, security, if any, and arrangements for repayment; and (6) other disbursements made by it including the purposes thereof; all in such categories as the Secretary may prescribe. (c)Availability of information to members; examination of books, records, and accounts Every labor organization required to submit a report under this subchapter shall make available the information required to be contained in such report to all of its members, and every such labor organization and its officers shall be under a duty enforceable at the suit of any member of such organization in any State court of competent jurisdiction or in the district court of the United States for the district in which such labor organization maintains its principal office, to permit such member for just cause to examine any books, records, and accounts necessary to verify such report. The court in such action may, in its discretion, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorneys fee to be paid by the defendant, and costs of the action.
301.
Defendants Ed Curly and Ken Capehart withheld from Local 501
members material information about the dire financial status of the Health & Welfare Trust Fund, in violation of the LMRDA, Title II. That material information about the financial status of the fund was withheld specifically to influence the 2013 election in Local 501. Thus, Defendants Ed Curly and Ken Capehart violated Title II of the LMRDA by withholding material information
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
about members Health & Welfare Trust Fund condition and violated the Title I requirements set forth above.
302.
Plaintiffs and union members, at all relevant time, had a statutory right
to access and examine all documents relevant to their right to review and audit the truth of filings made pursuant to the LMRDA. The LMRDA Defendants deprived them of that right and continue to do so, including by destroying or sequestering documents that would reveal the full nature of misconduct by the LMRDA Defendants and others. For example, as alleged above, a number of document destructions or concealments occurred: Mr. Van Dyke, at the direction of IUOE, seized documents from Local 501 and transported them back to IUOE headquarters in and around September 2009. In 2009, Sandra Acosta destroyed union records stored at Local 501 facilities in Bakersfield. In late 2011 or early 2012, Chris Brown, at the direction of IUOE, destroyed a large volume of records stored at Local 501s headquarters. At that same time, Chris Brown copied and removed computer files and emails from Local 501s headquarters.
303.
The violations of the LMRDA by the identified Defendants are current Plaintiffs are suing under Titles 1 and 2 of the LMRDA, which provide Plaintiffs seek equitable orders requiring open access to records held
and ongoing in nature.

304.
for private rights of action.

305.
by Local 501, the return of records to Local 501 that were seized by IUOE, and the best possible cataloging of the records destroyed at the direction of IUOE. Plaintiffs also request attorneys fees for the violations of their LMRDA rights. Plaintiffs also request punitive damages for Defendants malicious and oppressive violations of their LMRDA rights.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
307. 306.
SECOND CLAIM FOR RELIEF BREACHES OF ERISA AND FIDUCIARY DUTIES ARISING UNDER COMMON LAW By Plaintiffs Against Defendants Paul Bensi, Jim Scranton, Cornel Sneekes, Ed Curly, Kenneth Capehart, ABM Engineering Services, Able Engineering Services, Vince Giblin, James T. Callahan, Brian E. Hickey, Terrance McGowan, Caremark, Truven, Trivantage, the GEB Defendants, Zazzali and Does 2-100 Plaintiffs re-allege, and incorporate by reference, each and every ERISA VIOLATIONS The goal of Title I of ERISA is to protect the interests of participants and their beneficiaries in employee benefit plans. Defendants sued herein violated ERISA. This portion of this Claim for Relief is stated against Defendants Cornel Sneekes, Jim Scranton, Paul Bensi, Ed Curly, Kenneth Capehart, ABM Engineering Services, Able Engineering Services, Vince Giblin, James T. Callahan, Brian Hickey and Terrance McGowan, referred to herein as the ERISA Defendants.
308.
paragraph herein.
Among the ERISA Defendants identified above are the defendants
previously identified in Section III.B above as trustees of, administrators of, and/or local officers affiliated with Local 501s Health & Welfare (H&W) Trust Fund and Joint Apprenticeship (JAC) Trust Fund, and/or the Central Pension Fund, in which Plaintiffs are participants or beneficiaries. Such ERISA Defendants have, as a matter of law, assumed fiduciary obligations under ERISA to Plaintiffs and Class Members and are, for purposes of ERISA, fiduciaries. These ERISA Defendants include the individuals identified below, who are referenced herein collectively as the ERISA Fiduciary Defendants:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
(a)
Paul Bensi, Able CEO, who has served for years on the JAC Board of Trustees and the H&W Board of Trustees, and is currently the H&W Fund chairman, after defendant Curlys decision to pass that position off to Bensi earlier this year. Bensi also sits as a trustee on the Central Pension Fund;
(b)
Cornel Sneekes, who served as a JAC trustee while the company for which he was an officer or senior management employee, ABM, was under-contributing significantly to the JAC Fund;
(c)
Jim Scranton, who, as the President of ABM, served as a JAC trustee while ABM was double-breasting and under-contributing significantly to the JAC Fund, and as a H&W Fund Trustee while ABM was double-breasting and under-contributing significantly to that fund; later, in 2012, after retiring as President of ABM, he again served as a trustee of the H&W Fund while ABM was under-contributing and double-breasting;
(d)
Ed Curly, Local 501s Business Manager, who served as a trustee (and, previously, the Chairman) of the H&W Fund and owed fiduciary duties on that basis and in his role as Business Manager;
(e)
Kenneth Capehart, Local 501s President, who owed fiduciary duties in his role as a key officer of Local 501 because he exercised some discretionary authority or control over the management or disposition of plan assets and/or over the administration of the Health & Welfare and JAC Trust Funds.
(f) (g)
Dennis Lundy, who served as the Director (administrator) of the JAC Fund and embezzled from it, as previously alleged; James T. Callahan, the IUOE General President, who sits as a trustee for the Central Pension Fund with defendant Paul Bensi;
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
309.
(h) (i) (j)
Brian Hickey, an IUOE GEB member who sits as a trustee for the Central Pension Fund; Terrance McGowan, an IUOE GEB member who sits as a trustee for the Central Pension Fund. Vincent Giblin, who was the IUOE General President, and thus a fiduciary for that reason, and who also was a trustee for the Central Pension Fund at relevant times.
ERISA 502(a)(2), 29 U.S.C.A. 1132(a)(2), authorizes a plan
participant or beneficiary to bring a civil action for appropriate relief under ERISA 409, 29 U.S.C.A. 1109. Section 409 requires any person who is a fiduciary who breaches any of the duties imposed upon fiduciaries to make good to such plan any losses to the plan Section 409 also authorizes such other equitable or remedial relief as the court may deem appropriate
310.
ERISA 502(a)(3) authorizes suits (A) to enjoin any act or practice
which violates any provision of [Title I] or the terms of the plan, or (B) to obtain appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of [Title I] or the terms of the Plan. 29 U.S.C. 1132(a)(3).
311.
As previously alleged, Plaintiffs and Class Members are or were at
relevant times participants and/or beneficiaries in the ERISA-governed plans alleged herein, including the JAC Trust Fund, the H&W Fund, and the Central Pension Fund.
312.
ERISA 404, 29 U.S.C. 1104, provides in relevant part that
fiduciaries shall discharge their duties with respect to a plan solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of administering the plan and shall do so "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
enterprise of a like character and with like aims... by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.
313.
Thus, an ERISA fiduciary, like each of the ERISA Fiduciary
Defendants named herein, owes multiple duties. First is a duty of loyalty pursuant to which all decisions regarding an ERISA plan must be made with an eye single to the interests of the participants and beneficiaries. Second, ERISA imposes an unwavering duty to act both as a prudent person would act in a similar situation and with single-minded devotion to the plan participants and beneficiaries. Third, ERISA fiduciaries must act for the exclusive purpose of providing benefits to plan participants and beneficiaries.
314.
The ERISA Fiduciary Defendants violated their fiduciary duties under
404 of ERISA by all of the acts set forth in the prior, incorporated factual allegations regarding misconduct concerning ERISA-governed employee benefit plans, including by breaching their duties as described below. ERISA Fiduciary Breaches Regarding Caremark and the H&W Fund
315.
The ERISA Fiduciary Defendants associated with the H&W Fund
(Bensi, Scranton, Curly, Capehart) breached their fiduciary duties by allowing former General President Giblin to impose Caremark as the PBM for Local 501, as alleged in paragraphs 104-113, 116-121 above, even though Caremark was not the most qualified bidder and the costs associated with the use of Caremark significantly exceeded those that would have been encountered with other PBMs. Then, after the excessive costs became clear, the Trustees further breached their fiduciary duties by continuing to utilize Caremark for years, to the detriment of the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
fund, doing nothing to stop, account for or correct the misconduct of Giblin and Caremark in the bid-rigging scheme alleged above. No reasonably prudent trustee or ERISA fiduciary would have chosen Caremark rather than the other bidders, if not for the wrongdoing of Giblin, the IUOE and Caremark, accompanied by the fiduciary breaches by the H&W fund fiduciaries themselves. The selection and ratification of Caremark as PBM for Local 501 plainly was not solely in the interests of participants and beneficiaries - such as Plaintiffs - of Local 501s H&W Fund, but rather was done primarily to serve the financial interests of Giblin, IUOE and Caremark.
316.
Likewise, no reasonably prudent H&W Fund trustee or fiduciary
acting in accordance with the requirements of ERISA 404 would have waited years to discontinue the use of Caremark as PBM, given the readily apparent nature and extent of Caremarks overcharges and misconduct to anyone fulfilling his or her duties as a H&W Fund fiduciary. Yet defendants herein allowed Caremark to gouge H&W participants and beneficiaries for years, even after Giblin was no longer General President. Only in the days before the filing of this Third Amended Complaint, knowing that amended allegations of ERISA violations were forthcoming, that Local 501s H&W Fund fiduciaries finally voted to discontinue the use of Caremark at Local 501, thereby belatedly admitting Caremarks unsuitability as PBM. ERISA Fiduciary Breaches Regarding Able and ABM and the H&W, JAC and Central Pension Funds
317.
Certain ERISA Fiduciary Defendants associated with the JAC Trust
Fund and/or the H&W Trust Fund (namely, Curly, Sneekes, Scranton, Bensi, Capehart) likewise breached their fiduciary duties under section 404 in relation to the wrongful conduct by Able and ABM as to those funds, as described above in paragraphs 73-82, incorporated herein by reference.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
318.
First, these ERISA Fiduciary Defendants breached their fiduciary Defendants Sneekes and Scranton, as officers or senior management
duties by knowingly allowing Able and ABM to operate double-breasted.

319.
employees of ABM, plainly knew, to the extent required for liability, that ABM was operating double-breasted when ABM was required to allow Local 501 to unionize at all its covered sites. Plaintiff Finn Pette repeatedly raised the issue of double-breasting with defendant Scranton at fund meetings, to no avail. Such double-breasting, as alleged in paragraphs 87-90 above, caused harm to the funds, to Local 501, and to Local 501 members. Yet Sneekes and Scranton, siting as trustees of the JAC Trust Fund, and, in Scrantons case, a trustee of the H&W Fund, did nothing, while they and their company acted contrary to the interests of beneficiaries and participants of the funds on which they sat as trustees.
320.
Similarly, defendant Bensi, as the CEO of Able, plainly knew that
Able was operating double-breasted, causing harm to the funds, to Local 501, and to members. Such double-breasting, as alleged in paragraphs 87-90 above, caused harm to the funds, to Local 501, and to Local 501 members. Yet Bensi continued to sit as a trustee, doing nothing, while his company acted contrary to the interests of beneficiaries and participants of the JAC and H&W funds on which he sat as a trustee.
321.
Likewise, Curly and Capehart have known for years that ABM and
Able were double-breasting, yet have taken no steps consistent with their duties to put the interests of beneficiaries and participants first, such as demanding that ABM and Able cease their wrongful conduct, suing ABM and Able, and/or demanding the resignation of Messrs. Bensi, Scranton and Sneekes as trustees.
322.
In addition to double-breasting, Able and ABM were knowingly
under-contributing monies that they owed on behalf of union employees, such as Eric Smith and Pat Adams, to the JAC, H&W and Central Pension Funds, as alleged in paragraphs 73-82 above, by virtue of their under-counting of hours on
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
which contributions were based.
Plaintiff Pette actually sought to perform a full
audit demonstrating under-contributions, and was thereafter silenced. Defendant Scranton initially authorized an audit but then, on or about the next day, resigned from his trustee positions on the JAC and H&W funds. On information and belief, he later rejoined the H&W board of trustees for a period of time.
323.
The ERISA Fiduciary Defendants did nothing to demand the
repayment of the under-contributed monies, though, as alleged above, ABM did begin contributing properly to the JAC Fund, after a long period of underpayments which were never, to Plaintiffs knowledge, accounted for or remedied.
324.
Defendants Sneekes and Scranton sat as JAC trustees, and Scranton sat
as a H&W Fund trustee, during the period in which ABM was under-contributing to those funds. Demonstrating that their allegiance was to ABM and not the fund beneficiaries and participants, they took no steps to ensure that ABM made good on all of its contribution obligations. These defendants knew that Able was acting improperly and yet allowed its conduct to continue, in breach of their fiduciary duties. Scranton resigned from his trustee positions in 2009 just as contemplated audits were being authorized to occur. Those audits were never completed, however, because the IUOE stopped them and the people who wanted to pursue them, as alleged previously.
325.
Similarly, Able CEO Bensi has been sitting as a trustee on the JAC
Fund, the H&W Fund, and the Central Pension Fund while Able has been undercontributing to those funds. Bensi, as CEO, plainly had knowledge, to the extent required by law, that his company was under-contributing, and thereby breached his own ERISA fiduciary duties to Plaintiffs and class members, instead demonstrating his allegiance to Able. Plaintiffs believe that, in total, millions of dollars were not contributed to the funds that should have been contributed by Able.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
326.
The Local 501 officer defendants, Curly and Capehart, have taken no
steps to institute litigation or otherwise ensure that contributions owing on behalf of employee members to the JAC and H&W Funds have all been made as required. The breaches by these defendants harmed the funds as well as the fund beneficiaries and participants, including Plaintiffs.
327.
For the same reason that the ERISA Fiduciary Defendants associated
with the H&W and JAC Funds breached their fiduciary duties in connection with Able and ABMs under-contributing and double-breasting, as discussed above, the ERISA Fiduciary Defendants associated with the Central Pension Fund (Bensi, Callahan, Giblin, Hickey and McGowan) breached their fiduciary duties with respect to the Central Pension Fund by allowing Able and ABM to under-contribute and engage in double-breasting.
328.
The IUOE defendants (Giblin, Callahan, Hickey and McGowan), have
allowed Bensi to under-contribute, taking no remedies against him or his company. Instead, they have permitted him to offer non-union member employees of property management companies the right to participate in the Central Pension Fund, to the detriment of that fund and its participants and beneficiaries, as discussed above in paragraphs 95-100. Bensi has done so, with the IUOE Defendants knowledge, not to benefit class members but rather to market his own company and to benefit himself and his company. The IUOE defendants have themselves offered participation in the Central Pension Fund to others, without keeping a single eye on the interests of union participants and beneficiaries. Defendant Scranton, for example, is a member of the Central Pension Fund, as previously alleged.
329.
To summarize, Mr. Bensis company, Able, has under-contributed to
three employee benefit plans, as discussed above, and no one has done anything to fully rectify these harms to the plans and their participants and beneficiaries. Meanwhile, Mr. Bensi sits as a trustee on the board of all three of those benefit funds, and none of his co-trustees or fiduciaries has required his resignation. The
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
conduct of Mr. Bensi and his co-trustees is inexplicable and plainly inconsistent with their fiduciary duties under ERISA.
330.
In addition, as discussed previously, the IUOE and the Central Pension
Fund fiduciaries allow non-members, like Mr. Scranton, to participate in the Central Pension Fund, even though such persons have not earned the right to participate like member participants. Their inclusion is harmful to member participants and beneficiaries, as discussed at 95-100, and the defendant Central Pension Fund fiduciaries (Giblin, Callahan, Hickey, McGowan and Bensi) have breached their fiduciary duties by this practice.
331.
When Vince Giblin and James Callahan authorized Able and ABMs
misuse of the Central Pension Fund by non-members, they violated their own obligations under ERISA. In doing so, they are liable for the breaches of all cofiduciary Trustees on the Central Pension Fund, including Bensi and others. Giblin also violated his own obligations when he received an improper gratuity from Able in the form of employment for his son, who was ineligible to work for a union after pleading guilty to embezzlement of union assets. Vince Giblin and James Callahan both authorized Able and ABMs misuse of the Central Pension Fund by non-members. Giblin, in particular, did so while simultaneously receiving the improper gratuity from Able of employment for his son, who was ineligible to work for a union after pleading guilty to embezzlement of union assets.
332.
ERISA 406(b), 29 U.S.C. 1106(b) (Transactions between plan and
fiduciary) provides, in pertinent part, that plan fiduciaries shall not deal with plan assets in their own interest or for their own account and shall not receive any consideration for their own personal account from any party dealing with such plan in connection with a transaction involving plan assets. As discussed above in the allegations incorporated by reference, certain of the ERISA Defendants violated 406(b). Dennis Lundy, the Administrator (and fiduciary) of Local 501s JAC Fund, unquestionably embezzled monies from that fund, as alleged in paragraphs
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
133-134, 137-140 above. His doing so violated 406(b), as he used plan monies for his personal expenses and personal expenses related to his mistress.
333.
The other JAC trustee defendants, including Scranton, Sneekes and
Bensi, are liable as co-fiduciaries under ERISA 405(a)(3), for failing to take appropriate steps against Mr. Lundy and failing to ensure that all embezzled funds were returned. Indeed, defendant Sneekes, as alleged above, actually participated directly in assisting Lundys embezzlement through his endorsement of fraudulent reimbursement checks to Lundy, and is thus also liable under Section 405(a)(2). (See Paragraph 133.) And, in breach of his fiduciary duties, defendant Scranton was instrumental in shutting down full action against Lundy, ignoring that the use of trust fund assets to purchase alcohol is illegal - as he was advised by plaintiff Pette - and voting to not take action required of a JAC Trustee on the purported ground that there were no established JAC policies in place regarding the use of credit cards. By knowingly undertaking to prevent a full audit and accounting for Lundys wrongdoing, about which he was well aware, Scranton made himself liable for Lundys breaches under section 405(a)(1) of ERISA.
334.
ERISA 405(a), 29 U.S.C. 1105(a) (Liability for breach of co-
fiduciary) provides that [i]n addition to any liability which he may have under any other provisions of this part, a plan fiduciary shall be liable for a breach of fiduciary responsibility of another fiduciary with respect to the same plan (1) if he participates knowingly in, or knowingly undertakes to conceal, an act or omission of such other fiduciary, knowing such act or omission is a breach; (2) if, by his failure to comply with 1104(a)(1) of this title in the administration of his specific responsibilities which give rise to his status as a fiduciary, he has enabled such other fiduciary to commit a breach; or (3) if he has knowledge of a breach by such other fiduciary, unless he makes reasonable efforts under the circumstances to remedy the breach. All of the ERISA Fiduciary Defendants identified above are liable as co-fiduciaries for the breaches of each other.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
335.
For example, defendants Curly and Capehart are liable under Section
405(a) as co-fiduciaries for the breaches of employer trustees Scranton and Sneekes, discussed above. Among other things, these officer fiduciaries knew that ABM was underfunding contributions and engaging in double-breasting, and knew that Scranton and Sneekes were passively sitting by as trustees while ABM was doing so, in a gross conflict of interest that, to any reasonable trustee, would have indicated violations by Scranton and Sneekes of their fiduciary duties under ERISA. Yet the officer defendants took no reasonable efforts to remedy these breaches, such as demanding the removal of these trustees as trustees or pursuing ABM, through litigation or otherwise, for its wrongful conduct. As such, they are liable.
336.
Defendants Curly and Capehart also are liable under Section 405(a) as
co-fiduciaries for the breaches of employer trustee Bensi, the CEO of Able, discussed above. Curly and Capehart have known that Able was underfunding contributions and engaging in double-breasting, and have known that Bensi was passively sitting by as a trustee on the H&W Trust Fund, the JAC Trust Fund, and the Central Pension Fund, all while Able was shorting union members, in a gross conflict of interest that showed that Bensi was violating his fiduciary duties to trust beneficiaries and participants. Yet the officer defendants took no reasonable efforts to remedy these breaches, such as demanding the removal of Bensi as a trustee or pursuing Able, through litigation or otherwise, for its wrongful conduct. As such, they are liable.
337.
Similarly, Scranton and Sneekes are liable for the fiduciary breaches of
each other while sitting together as trustees on the JAC Trust Fund and, and Scranton and Bensi are liable for each others breaches while sitting together on the H&W Trust Fund, since they took no steps to promptly remedy the previously described fiduciary breaches of one another, as discussed above, despite knowing of those breaches.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
338.
The IUOE Central Pension Fund fiduciaries other than Bensi (Giblin,
Callahan, Hickey and McGowan) are also liable as co-fiduciaries for Bensis breaches in sitting as a trustee despite being the CEO of a company owing significant monies to the Central Pension Fund due to Ables double-breasting and under-contributions to the Central Pension Fund. These defendants have known of Bensi/Ables misconduct and yet have simply continued to serve with him, without doing anything to rectify his breaches or his companys wrongdoing, heretofore alleged, toward the plan and its participants and beneficiaries. They also enabled his continuing wrongdoing and breaches with respect to the Central Pension Fund, in violation of section 405(a)(2), by failing to adhere to their own obligation under section 404(a) to discharge their duties with respect to a plan solely in the interest of the participants and beneficiaries. Liability of Certain Defendants For Harm to the Funds and the Funds Participants and Beneficiaries Regardless of ERISA Fiduciary Status
339.
Defendants who might not qualify as fiduciaries under ERISA, such
as some of the defendants sued herein, may nevertheless also be sued when their conduct has caused damages to an employee benefit plan. ERISA 502(a)(3) admits of no limit on the possible universe of defendants. Harris Trust and Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 246 (2000). The focus is on redressing the act or practice which violates ERISA. Id. A defendant may be sued under 502(a)(3) even if it is not expressly subject to a duty under one of ERISAs substantive provisions. Id. As discussed below, ERISA Defendants ABM, Able, Caremark, Giblin, Callahan, the IUOE and the named IUOE GEB defendants, are liable for their role in ERISA violations that harmed Local 501-affiliated employee benefit plans and their participants and beneficiaries, including Plaintiffs, regardless of any role as ERISA fiduciaries.
340.
As discussed in the incorporated allegations in paragraphs 104-113,
116-121, supra, defendants Giblin and Caremark conspired to force Local 501
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
members to use Caremark as their PBM. IUOE and its GEB defendants, for their part, ratified Giblins conduct and approved Caremarks use notwithstanding their knowledge that his conduct was improper. The Health & Welfare Fund trustees at Local 501 then approved the use of Caremark for Local 501, notwithstanding that any reasonable person in their position would not have chosen Caremark to be the PBM, given its higher costs to members. The selection of Caremark as PBM, and resulting harm to the Local 501 H&W Fund and its participants and beneficiaries, was, in addition to being a breach of ERISA fiduciary duties by the H&W fiduciaries, as discussed previously, caused in large part by the wrongful actions and conspiracy of Giblin, the IOUE GEB defendants, and Caremark.
341.
Because of this bid-rigging scheme and Caremarks excessive costs, See paragraphs 114-124 supra,
the H&W Fund was damaged significantly, by paying excessive costs for prescription benefits, among other things. incorporated herein by reference. The damage to the condition to the H&W Fund
then led to a decision by Local 501 trustees to require Local 501 retired members -for the first time in history to either lose their coverage or begin cover the entire costs of their health insurance premiums, often amounting to more than a thousand dollars a year in extra costs to these retirees, who include many of the named Plaintiffs, such as Jay and Anne Brophy and others. By forcing Caremark on Local 501 members, Giblin and his IUOE cohorts breached their fiduciary duties as union officers, under both state law and the section 501 of the LMRDA, to Local 501 members, including the retirees who now must pay thousands of dollars more in insurance premiums. While Plaintiffs are not presently suing for LMRDA section 501 allegations, the IUOE Defendants duties thereunder exist regardless whether a formal claim for relief under that provision is stated against them, and likewise exist under California law and federal precedent. Caremark, Trivantage and Truven are liable to make the Fund and beneficiaries and participants whole because, regardless whether they are ERISA fiduciaries, they caused damage to the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
H&W Fund and to its participants and beneficiaries (including retirees) by their illegal and wrongful conduct alleged above.
342.
Defendants ABM and Able are also liable for their roles in harming the
H&W, JAC and Central Pension Funds, as previously discussed, by failing to make the contributions they were required to make on behalf of Local 501 member employees, and by engaging in double-breasting that harmed the funds. See paragraphs 73-82, 87-90 supra, incorporated herein by reference. Defendants ABM and Able, having harmed the funds, are liable under ERISA for the ERISA violations of the fund fiduciaries, including Scranton and Sneekes, as to ABM, and Bensi, as to Able. They are also liable for their own damage to the funds by undercontributing and double-breasting. They should be forced to pay for all harm suffered by the funds.
343.
Plaintiffs are not required to exhaust administrative remedies As a direct result of the activities alleged herein, the plans have lost
pertaining to breaches of fiduciary duty claims arising under ERISA.

344.
monies, and/or engaged in activities that a prudent person in the position of the fiduciaries would not engage in and have suffered losses as a result, in amounts not presently known with precision but exceeding $25 million. Plaintiffs request equitable and declaratory relief, including an order requiring Defendants or their bonding agents or insurers to make whole the ERISA-governed plans misused and/or harmed by Defendants. Common Law Breaches of Fiduciary Duties
345.
The defendants identified as defendants in this section of this Claim
for Relief have assumed common law fiduciary obligations to Plaintiffs and Class Members. These defendants (referred to hereinafter in this Claim for Relief as the Common Law Fiduciary Duty Defendants) are sued herein for breaches of
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
common law fiduciary duties in connection with misconduct not involving employee benefit program/trust funds governed by ERISA.
346.
The Common Law Fiduciary Duty Defendants include defendants
Curly, Capehart, Giblin, Callahan, the IUOE, Zazzali, and the IUOE GEB Defendants, with Giblin, Callahan, IUOE and the IOUE GEB Defendants sometimes referenced as the IOUE Defendants.
347.
The relationships between the Common Law Fiduciary Duty
Defendants herein, on the one hand, and Plaintiffs and Class members, on the other hand, impose a duty under California law on the Common Law Fiduciary Duty Defendants to act with the utmost good faith for the benefit of Plaintiffs and Class members, who were entitled to believe in the integrity of the Common Law Fiduciary Duty Defendants, but instead were left the victims of the Common Law Fiduciary Duty Defendants who chose not to serve their best interests. Unquestionably, union members are entitled to repose trust and confidence in their Business Manager, their national union officers, and their local union officers.
348.
The Common Law Fiduciary Duty Defendants have violated their
common law fiduciary duties and are liable under California law for those breaches of fiduciary duty that are unrelated to ERISA-governed employee benefit plans. Claims against union officials for breach of fiduciary duty under California law have been recognized by the courts.
349.
The Common Law Fiduciary Duty Defendants breached their fiduciary
duties under California law by the acts set forth above that are not related to ERISA-governed employee benefit plans, and Plaintiffs suffered damages as a proximate result thereof. Examples of the Common Law Fiduciary Duty Defendants breaches of duty alleged above and incorporated herein, which were inconsistent with Defendants common law fiduciary duties under California law, include, but are not limited to:
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
The illegal mandatory contributions to EPEC, required of the union employee Plaintiffs identified above and members of the class of employees, by the IUOE Defendants sued herein; The failure of the IUOE Defendants, including Giblin, Callahan, the IUOE GEB members, and Zazzali, to take action to stop the threats and illegal activities of Giblin and others who mandated illegal forced EPEC contributions; The failure of the IUOE Defendants, including Giblin, Callahan, and the IUOE GEB members to supervise Local 501 to ensure the absence of mismanagement and illegal conduct by union officers such as Lundy and Curly; Giblins intentional protection of Lundy and prevention of audits regarding Lundys wrongdoing, as alleged in paragraph 135-136, 156-183; The destruction of Local 501 documents by Curly and Local 501 officers, at the behest of IUOE, for the purpose of preventing audits into Able and ABMs wrongdoing, as alleged in paragraph 271; Giblins instruction that the Acosta matter be settled, at cost to Local 3 and its members, so that he would not have to be deposed, as alleged in paragraph 204-206; The failure to defend against the lawsuit of Blair Brim, which led to a multi-million dollar verdict that harmed Local 501s ability to operate on behalf of members, and to Local 501s bankruptcy, as alleged in paragraph 196, 210; The failure by the defendant Local 501 officers to take steps to remedy the embezzlement of Lundy of union re-election fund monies, as alleged in paragraph 153;
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
The recent illegal use and embezzlement of union resources paid for at least in part with member dues, by Curly, Capehart, and their election slate, alleged in paragraph 253-258; The pretextual firing of Plaintiff Jim McLaughlin by Giblin, which (though not a claim herein by Mr. McLaughlin), led to the installment of Chris Brown and the later reign of defendant Ed Curly, who has breached numerous fiduciary duties to members and otherwise violated the law as alleged herein; The conspiracies between the IUOE Defendants and Able and ABM to allow those employer defendants to circumvent their contracts with Local 501, in which Plaintiffs are intended beneficiaries, as alleged in paragraph 73-100; The fabrication of false charges against plaintiffs Pette and Himmelberg in an effort to influence a union election, as alleged in 200, 215, and the related improper acquisition and failure to return monies contributed by Local 501 members in support of plaintiffs Pette and Himmelberg after the fabrication of those false charges, as alleged in paragraph 202; The use by IUOE defendants, including Giblin, Callahan and others, of threats of physical and economic violence, in order to usurp control over Local 501 and its members, as alleged in paragraph 207-226; The failure by the defendant Local 501 officers to prevent doublebreasting and to pursue remedies for same, as alleged above; The failure of Local 501 officers to put the interests of class members ahead of the interests of outsiders such as the ABM and Able defendants, as alleged above;
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
350.
The failure by Local 501 officers, to undertake and complete audits uncover the extent of embezzlement and misuse of union monies, which come at least in part from member dues and/or member fringe benefits; The failure by Local 501 officers to institute legal actions or take any other reasonable steps to recovered embezzled monies; The failure by Curly, Capehart and Local 501 officers to pursue legal action against the IUOE based on its wrongdoing, as alleged in paragraphs 315 above; The failure, by Curly, Capehart and Local 501 officers to take action, including potentially the institution of legal proceedings, against employers as necessary to enforce the terms of CBAs, including the provisions against double-breasting and requiring accurate contributions by employers such as Able and ABM; The failure by Curly, Capehart and Local 501 officers to seek to remedy, including by litigation if necessary, the wrongdoing of Giblin, Caremark, Truven and Trivantage. And other acts, as alleged in the facts set forth and incorporated herein by reference, where, unrelated to ERISA-governed benefit programs, the Common Law Fiduciary Defendants placed their own interests ahead of those of the class members they were required to serve and protect given their roles, harming class members; By embezzling or otherwise unlawfully securing Plaintiffs and class members monies or services, by embezzling union assets, labor and/or services, and by failing to take steps that these fiduciary defendants are required to take to protect class members from malfeasance and harm and to place class members interests above their own, the Common Law Fiduciary Defendants breached their fiduciary duties under California law, and Plaintiffs and class members were
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
damaged. Plaintiffs and class members should be made whole, the Common Law Fiduciary Defendants should be required to pay all damages caused by their wrongdoing, and all profits earned by the Common Law Fiduciary Duty Defendants in breach of their common law fiduciary duty should be disgorged. People ex rel. Harris v. Rizzo, 214 Cal.App.4th 921, 951, n. 30 (2013).
351.
The conduct alleged above by the Common Law Fiduciary Defendants
warrants imposition of punitive damages against Giblin, Callahan, Curly and Capehart, as it was malicious, oppressive and fraudulent, as defined by California Civil Code section 3294. Defendants, who were fiduciaries, acted with a willful and conscious disregard of Plaintiffs and class members rights to (1) have union leaders who would in fact act in the members best interests while placing the members interests above their own, (2) keep their wages for themselves without forced contributions to the IUOEs EPEC fund, and (3) have a union not run by dishonest embezzlers, extortionists and General Presidents who threaten violence and financial retribution against those who stand up against corruption and violations of the high fiduciary standards applicable to defendants herein. THIRD CLAIM FOR RELIEF VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE 17200, ET SEQ. By Plaintiffs Against Defendants Curly, Capehart, Acosta, Giblin, Callahan, Alcala, IUOE, the IUOE GEB Defendants, Able Engineering, ABM Engineering, CVS Caremark Corporation, Trivantage Pharmacy Strategies, LLC, Truven Health Analytics, Inc. and Does 2-100
352.
Plaintiffs re-allege, and incorporate by reference, each and every Defendants, and each of them, are persons as defined under Business
paragraph herein.
353.
& Professions Code 17201.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
354.
Defendants conduct, as alleged herein, has been, and continues to be,
unfair, unlawful, deceptive and harmful to Plaintiffs, other Class members, and to the general public. Plaintiffs seeks to enforce important rights affecting the public interest within the meaning of Code of Civil Procedure 1021.5.
355.
Plaintiffs lost money and property as a result of Defendants illegal,
unfair and unlawful practices. Unlawful Conduct Under the UCL

356.
Defendants activities, as alleged herein, are violations of federal and
California law, and constitute unlawful business acts and practices in violation of the Unfair Competition Law (UCL), California Business & Professions Code 17200, et seq. A violation of the UCLs unlawful prong may be predicated on the violation of any state or federal law or regulation.
357.
The mandatory EPEC contributions practice alleged above, which
affected some Plaintiffs and the members of the employee sub-class, was illegal according to the United States Supreme Court. It was also accomplished in violation of the Hobbs Act, 18 U.S.C. section 1851, and extortion under Cal. Penal Code 518, 519 et seq.), since it was accomplished by means of extortionate threats to employees job security. The EPEC practice also constituted embezzlement under the California Penal Code (see Cal. Penal Code 504, 506 and 508; see also 490a, stating that embezzlement now constitutes the crime of theft); grand theft under the California Penal Code (Penal Code 487), in connection with the theft and appropriation of monies, property and/or labor, worth in excess of $950; and receipt of stolen or extorted property, knowing that said property was stolen or extorted (Cal. Penal Code 496), since the IUOE defendants accepted extorted member contributions to EPEC.
358.
Defendants Curly, Capehart and Acosta engaged in embezzlement

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
under the California Penal Code (see Cal. Penal Code 504, 506 and 508; see also 490a, stating that embezzlement now constitutes the crime of theft); grand theft under the California Penal Code (Penal Code 487), in connection with the theft and appropriation of monies, property and/or labor, worth in excess of $950, such as the theft of union member forced contributions, and petty theft under the California Penal Code (Penal Code 487), in connection with the theft of monies and property worth $950 or less, by misusing union assets, including vehicles, for improper electioneering purposes, as alleged above. In addition, defendant Acosta violated these provisions by running a side-business out of the Bakersfield union office, using and appropriating union resources for her own benefit.
359.
The LMRDA Defendants, including Curly and Capehart, violated
sections 411 and 431 of the LMRDA, as alleged in paragraphs 253-258 above and in the First Claim for Relief, incorporated herein by reference. These acts and practices, which threaten to continue, should be enjoined.
360.
Defendant Lundy violated 18 U.S.C. 664 (theft or embezzlement
from employee welfare benefit or pension benefit plan or any fund associated therewith), as alleged above, as well as California Penal Code (see Cal. Penal Code 504, 506 and 508; see also 490a, stating that embezzlement now constitutes the crime of theft); grand theft under the California Penal Code (Penal Code 487), in connection with the theft and appropriation of monies, property and/or labor, worth in excess of $950, such as the theft of union member forced contributions, and petty theft under the California Penal Code (Penal Code 487), in connection with the theft of monies and property worth $950 or less, in connection with his heretofore alleged embezzlements from the JAC Fund.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
361.
Fraudulent Conduct Under the UCL By virtue of the incorporated allegations discussed above, Defendants
also engaged in conduct that was fraudulent under the UCL i.e., likely to mislead a reasonable person.
362.
For example, the IUOE Defendants demands for political
contributions from the employee sub-class members, in violation of the law, were fraudulent under the UCL, in that such demands were likely to mislead a reasonable person into believing that mandatory contributions to Defendants political action funds by the union officers who owed them the highest fiduciary duties were in fact required conditions of their employment, and to therefore part with their money.
363.
In addition, defendants Curly, Capehart knew but actively concealed,
and/or omitted to disclose -- despite a duty of disclosure imposed by virtue of, inter alia, their roles as fiduciaries -- the material facts that Able and ABM were engaging in massive double-breasting and were being permitted to under-contribute to the JAC, Health & Welfare, and Central Pension Funds. These material omissions were likely to mislead a reasonable person into believing that there was no need to audit and demand lost monies due to double-breasting or undercontributing, and to therefore forego obtaining those monies.
364.
Defendants ABM and Able, the employers of certain Plaintiffs and
many class members, also actively concealed and/or failed to disclose that they were under-contributing to employee benefit programs and double-breasting, thereby harming employees and their associated funds, as alleged above. This conduct was likely to deceive a reasonable employee into (1) continuing to work for his or her employer defendant without pursuing rights to seek enforcement of proper contributions; (2) taking no steps to demand and/or request audits to determine the extent of any under-contributions; (3) taking no steps to seek administrative or judicial relief as a result of the employer defendants misconduct.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
365.
Defendant Curly engaged in fraudulent conduct under the UCL by
failing to candidly disclose to Local 501 members that he is and has been effectively a puppet of the IUOE, doing its bidding regardless of the harm suffered by Plaintiffs and class members, in violation of his fiduciary duties to local members. Curly, on information and belief, purchased a burner phone(s) so that his calls and texts to his IUOE masters on the east coast, including during the recent corrupt election, would be harder to track and discover. By virtue of his fiduciary duties to class members owing as a result of his role as Business Manager, Curly was obligated to disclose that he was effectively the puppet of the International, and his omissions were likely to deceive a reasonable Local 501 member or agency fee member into acting differently than he or she would have had he known the full truth.
366.
Defendants Curly and Capehart also withheld material information, the
omission of which was likely to deceive a reasonable person, regarding the true condition of the Health & Welfare Trust Fund, which they knew about from as early as late 2012, until many months later, shortly before the election, thus preventing members from timely instituting or attempting to institute actions that might have prevented some of the harm to participants and beneficiaries in the Health & Welfare Trust Fund.
367.
Had Defendants not engaged in, and failed to disclose, the acts and
practices alleged herein, Plaintiffs would have acted differently. Unfair Conduct Under the UCL
368.
Defendants conduct, as alleged above and incorporated herein by
reference, and including, but not limited to, Defendants embezzlement of union and member assets and Defendants extortion of forced contributions to EPEC also is unfair under the UCL. Defendants heretofore alleged conduct violates established law and/or public policies, including but not limited to those
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
included in the LMRDA, federal RICO statutes, and California Penal Code provisions, which seek to protect citizens from theft and embezzlement schemes of the sort employed here, and to protect union members rights to free speech and assembly, among other things. The conduct engaged in by Defendants was and is directly contrary to established legislative goals and public policies of the State of California and the United States, and was and is unfair under the UCL.
369.
In addition, the harm to Plaintiffs, members of the general public and
Class Members outweighs the utility, if any, of Defendants wrongful acts and/or practices as alleged herein. Further, the conduct at issue, alleged in detail in previous allegations and claims for relief in allegations incorporated herein by reference, is and was immoral, unethical, oppressive, unscrupulous or substantially injurious to Plaintiffs and class members and thus unfair under the UCL.
370.
At all times relevant, the conduct at issue alleged herein caused: 1)
substantial injury to Plaintiffs, Class members and the public (i.e., the loss of money by Plaintiffs and class members and the loss or diminution of trust benefits and damage to the financial condition of Local 501 and the associated trusts), 2) had no countervailing benefit to Class members, consumers or competition that could possibly outweigh this substantial injury; and 3) caused injury that could not have reasonably been avoided by Plaintiffs and others similarly situated.
371.
The conduct of all of the named defendants identified in this Claim for
Relief, as heretofore alleged and incorporated herein, was unfair under the UCL. UCL Violations by Defendants Caremark, Truven and Trivantage
372.
Defendants Caremark, Truven and Trivantage engaged in unfair,
unlawful and fraudulent business practices, and received ill-gotten gains therefrom, as a result of acts and omissions alleged previously and incorporated herein by reference, including but not limited to: Failing to disclose that illegal bidrigging was used to secure the Caremark PBM contract; falsely asserting a
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
unilateral right to change contractual billing rates; collecting payments from the H&W Fund for unauthorized prescription charges; and collecting commissions derived from unlawful and unauthorized charges. Relief Requested for UCL Violations
373.
Plaintiffs, individually, and on behalf of Class members, are entitled
to, and do, seek such relief as may be necessary to disgorge money and/or property that the Defendants have, or may have, wrongfully acquired by means of the unfair, unlawful and fraudulent practices set forth above, and/or money and property in which Plaintiffs and the class members have a vested ownership interest but which has been withheld from Plaintiffs and the class members as a result of said practices.
374.
Plaintiffs, individually, and on behalf of Class members, are further
entitled to and do seek a declaration that the above described business practices are unfair, unlawful and/or fraudulent, and injunctive relief restraining the Defendants, and each of them, from engaging in any of the above-described unfair, unlawful and/or fraudulent business practices in the future.
375.
Plaintiffs, individually, and on behalf of Class members have no plain,
speedy, and/or adequate remedy at law to redress the injuries which they have suffered as a consequence of the Defendants unfair, unlawful and/or fraudulent business practices. As a result of the unfair, unlawful and/or fraudulent business practices described above, the Plaintiffs, individually, and on behalf of members of the putative Class, have suffered and will continue to suffer irreparable harm unless the Defendants, and each of them, are restrained from continuing to engage in the previously alleged violations of the UCL.
376.
Wherefore, Plaintiffs and Class members are entitled to equitable
relief, including restitution of all monies and property wrongfully taken from them, and of all monies and property withheld or owed to them in which they have a
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
vested interest, and restitutionary disgorgement of all profits accruing to Defendants due to their practices, to the extent such relief would be restitutionary in nature; injunctive relief including but not limited to a permanent injunction requiring Defendants to cease their illegal unfair practices and to comply with the law; declaratory relief of an equitable nature, an award of attorneys fees pursuant to California Code of Civil Procedure 1021.5 and other applicable laws; and an award of costs. PRAYER FOR RELIEF Plaintiffs, individually, and on behalf of all others similarly situated, pray for relief and judgment against Defendants, jointly and severally, as follows: Class Certification
377. 378. 379.
That this action be certified as a class action; That Plaintiffs be appointed as the representatives of the Class; and That counsel for Plaintiffs be appointed as Class Counsel. As to the First Claim for Relief
380. 381. 382. 383.
For compensatory and general damages, as shown according to proof; For temporary and permanent injunctive relief; For attorneys fees and costs pursuant to the LMRDA; For such other and further relief as this Court may deem proper. As to the Second Claim for Relief ERISA violations
384. 385. 386.
For temporary and permanent injunctive relief; For declaratory relief; For a declaration that the Trustees have breached their ERISA
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
fiduciary duties to the Funds and their participants;

387.
For appropriate make whole equitable relief authorized pursuant to The Trustees be found liable for the failure to exercise their fiduciary For imposition of a constructive trust; For attorneys fees and costs pursuant to ERISA; For such other and further relief as this Court may deem proper. Common Law Breaches of Fiduciary Duty For compensatory and general damages, as shown according to proof; Disgorgement of profits; For temporary and permanent injunctive relief; For declaratory relief; For appropriate make whole equitable relief; For imposition of a constructive trust; For punitive and exemplary damages; For such other and further relief as this Court may deem proper. As to the Third Claim for Relief
ERISA;
388.
duties;
389. 390. 391.
392. 393. 394. 395. 396. 397. 398. 399.
400.
That the Court declare, adjudge and decree that Defendants violated
California Business and Professions Code 17200, et seq. by the acts alleged above;
401.
For restitution to Plaintiffs and all class members and prejudgment For the appointment of a receiver to receive, manage and distribute any
interest from the day such amounts were due and payable;
402.
and all funds disgorged from Defendants and determined to have been wrongfully acquired by Defendants as a result of violations of California Business & Professions Code 17200 et seq.;
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
403.
For reasonable attorneys fees and costs of suit incurred herein For injunctive relief to ensure compliance with the UCL, pursuant to For such other and further relief as the Court may deem equitable and
pursuant to California Code of Civil Procedure 1021.5;

404.
California Business & Professions Code 17200, et seq.; and,

405.
appropriate. Dated: October 23, 2013 Respectfully submitted, MOORE & LEVIANT LLP By:
J. Mark Moore H. Scott Leviant
Attorneys for Plaintiffs
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: October 23, 2013
DEMAND FOR JURY TRIAL Plaintiffs demand a trial by jury. Respectfully submitted, MOORE & LEVIANT LLP By:
J. Mark Moore H. Scott Leviant
Attorneys for Plaintiffs
EXHIBIT 1
LOCAL 501 BOMA TEST ANSWERS: BOMA TEST QUESTION
http://boma501.blogspot.com/2012/03/boma-test-question.html
1 of 8
3/25/2013 3:30 PM
92) K type copper is what color Answer: Green 93) A sink , A toilet and a bathtub are all called Answer: A Fixture Reply
Rick
April 10, 2012 at 4:45 PM
75) What is the most critical factor regarding suction lift of a water pump: Answer: Distance 76) Best method to measure a full length of pipe is: Answer: end to end 77) Slight leakage of a centrifugal pump packing would not cause Answer: pump failure 78) In order to keep a centrifugal pump primed Answer: a Foot valve is installed on the Suction line
79) Size of the impeller determines Answer: the speed of the pump 80) A mushroomed chisel in your tool box should be Answer: Disposed of and replaced 81) Packing material for a motor should be made from Answer: Softer metals Like Copper and Lead 82) On A Site Plan 1 is equal to 10 what size would a 40 X 80 room Be Answer: 4X8 83) Welding Galvanized metals must be performed in a Answer: well ventilated space 84) The cheapest and most simplest of all pumps would be the Answer: Jet Pump 85) Location of the pump has nothing to do with the type of Answer: Packing you should use Reply Replies Rick April 12, 2012 at 4:40 PM
60) Screen or shield should be used in welding operation to: Answer: to protect nearby workers. 61) The diameter of the arc should be kept approximately: Answer: same diameter as the electrodes. 62) Primary used for basin wrench is: Answer: removal of nuts and small piping pieces from the under side of the sink. 63) A drainage fixture unit is equivalent to how many gallons of water flow? Answer: 7.5 gallons per minute (GPM). 64) Removal of solid metals and sand is accomplished with : Answer: sediment interceptor. 65) Consumable metallic electrodes used in AC arc welding are usually: Answer: heavily coated 66) Gasket material most recommended for water flow: Answer: sheet rubber or cloth inserted rubber
2 of 8
3/25/2013 3:30 PM
67) Class A fire is: Answer: A fire with ordinary combustible material (wood, paper, or cloth). 68) Disadvantage of centrifugal pump is: Answer: the head pressure is limited. 69) Power tools are not to be used with: Answer: frayed or damage water cord. 70) The type of valve goes to full open to full close on a quarter turn is: Answer: a plug valve. 71) Best method of measuring a piece of pipe with a fitting screwed into one end: Answer: end to center. 72) ___________ type of sprinkler head in an inverted position. Answer: pendent. 73) Fire suppression system required: Answer: Fire spandrels 74) Normal feed of lift on a suction side of a pump: Answer: 10 75) What is the most critical factor regarding suction lift of a water pump: Answer: Distance
Rick
April 12, 2012 at 4:45 PM
55) The most convenient way to show the dimension of the hole on a drawing is: Answer: Draw an extension line on each side of the hole and fill in the dimension. 56) Three types of traps are: Answer: P, T, and S traps 57) What can occur if the trap has an excessive pitch? Answer: Self syphoning could occur 58) If a drawing is drawn quarter scale, then the scale of the drawing is: Answer: Quarter inch equals one foot. 59) Before welding a second bead, the weld areas must be: Answer: cleaned to remove all slag. 60) Screen or shield should be used in welding operation to: Answer: to protect nearby workers. 61) The diameter of the arc should be kept approximately: Answer: same diameter as the electrodes. 62) Primary used for basin wrench is: Answer: removal of nuts and small piping pieces from the under side of the sink. 63) A drainage fixture unit is equivalent to how many gallons of water flow? Answer: 7.5 gallons per minute (GPM). 64) Removal of solid metals and sand is accomplished with : Answer: sediment interceptor. 65) Consumable metallic electrodes used in AC arc welding are usually: Answer: heavily coated 66) Gasket material most recommended for water flow: Answer: sheet rubber or cloth inserted rubber 67) Class A fire is: Answer: A fire with ordinary combustible material (wood, paper, or cloth). 68) Disadvantage of centrifugal pump is: Answer: the head pressure is limited.
3 of 8
3/25/2013 3:30 PM
69) Power tools are not to be used with: Answer: frayed or damage water cord. 70) The type of valve goes to full open to full close on a quarter turn is: Answer: a plug valve. 71) Best method of measuring a piece of pipe with a fitting screwed into one end: Answer: end to center. 72) ___________ type of sprinkler head in an inverted position. Answer: pendent. 73) Fire suppression system required: Answer: Fire spandrels 74) Normal feed of lift on a suction side of a pump: Answer: 10 Reply
Rick
April 15, 2012 at 7:54 PM
40) Standard Slop/pitch of a horizontal drain line should be Answer: per foot 41) Sprinkler system where the sprinklers are always open is Answer: A Deluge system 42) Welding gloves should have Answer: Long cuffs 43) The long round pin on a three prong plug is what Answer: The Ground wire and should never be removed 44) Type of wrench used on large diameter threaded pipe Answer: Chain wrench 45) Most common type of water circulation pump is a Answer: Centrifugal pump 46) Tubing and pipe are measured Answer: Differently OD / ID 47) Strength of a trap seal can be increased by Answer: Anti- syphon valve 48) Low speed Plain Journal bearing should be lubricated with a Answer: Low viscosity oil 49) Correct sequence of soldering procedures are Answer: Reaming, Cleaning, Assembling, Fluxing and Soldering 50) The Blue print states that an 1/8 equals 1 foot then 2 1/2 on a ruler would be Answer: 20 feet 51) The Seal inside a centrifugal pump is to prevent Answer: Air from seeping into the pump housing and to prevent water from leaking out
4 of 8
3/25/2013 3:30 PM
52) A main branch steam line take off of the main should be located: Answer: Top of the main 53) Safety shield and goggles are not required if you wear glasses: Answer: False 54) A standard length of threaded pipe is: Answer: 21 Feet
58) If a drawing is drawn quarter scale, then the scale of the drawing is: Answer: Quarter inch equals one foot. Reply
Rick
April 15, 2012 at 7:56 PM
21) Efficiency of a grease trap is determined by the Elevation between the ______ and the _____ in relation to the static water line. Answer: Inlet /Outlet 22) Best way to prevent back siphoning is with an Answer: Air Gap 23) Should safety Glasses be worn when using a hacksaw Answer: Yes 24) How many Gallons of water fit into one Cubic foot Answer: 7.48 gl. 25) Type of weld used to Fill a corner or a Tee joining is referred to as a Answer: Fillet Weld 26) Grease Classification are set by the Answer: N.L.G.I (National Lubrication Grease Institute} 27) Continuous Belt turnover is caused by Answer: Improper installation technique 28) How can you determine the scale of a Blue Print Drawing Answer: Checking the Specification Sheet 29) Type of plumbing fitting that can directly or indirectly contaminate the potable water Answer: Cross Connection 30) Traps provide protection from what from entering the house Answer: Sewer gas odor and vermin
31) The main purpose of lubrication is Answer: To reduce friction and wear 32) P-trap installation the vertical distance from the fixture may not exceed Answer: 24 from the bottom of the trap outlet 33) Gate Valves are always used to throttle fluid flow Answer: False
5 of 8
3/25/2013 3:30 PM
34) Purging the hoses of an Oxy. /Acet. Torch set should always be done Answer: When securing the torches for the day 35) An Oxy / Acet. torch set are mainly used for Answer: Brazing, Cutting and Silver Soldering brass or copper 36) Globe Valves and _____ are similar in design Answer: Needle Valves 37) A freshly packed pump is leaking what is the correct thing to do. Answer: Allow the pump to run for a short period of time to see if the packing seals itself 38) The volume of the waste entering grease trap is determined by the Answer: Size of the fixture feeding the grease trap 39) Over tightening of belts will cause Answer: Premature bearing and belt failure 40) Standard Slop/pitch of a horizontal drain line should be Answer: per foot Reply
Rick
April 15, 2012 at 7:58 PM
1) When starting a centrifugal pumps that is part of a manifold without a check valve you must Answer: Open the suction Valve then start the pump while slowly opening the discharge valve. 2) The Valve Inserted between the corporation valve and the Water Meter Answer: Curb Cock 3) To check sheave wear you can Answer: Inspect the Groove wear on the Sheave and inspect the belt for excessive wear and movement. 4) Adjustable/variable sheaves can be used to make what type of change to the blower RPM Answer: Small Changes 5) Absolute Pressure (PSIA) is equal to Gage Pressure (PSIAG) Answer: Plus 14.7psi 6) Three main types of Fire Suspension system are Answer: Wet Type Dry Type and Deluge type 7) Power is Equal to Answer: Torque X Weight X Distance 8) Torches should always be leak checked around the Answer: Tip. Valve connections and the hose connection 9) The three types of smoke detection are Answer: Photo- electric Scanners. Ionization chambers and Smoke Reflection Devices 10) If a coupling isnt correctly aligned what could happen Answer: More frequent failure of the coupling and bearings
11) ________ Are used to protect the pump and Motor for slight misalignment Answer: Flexible Coupling 12) The Coating on a metal welding electrode does what Answer: Stabilizes the flam and reduces Oxygenation 13) When Severing a length of 2 pipe a __________ should be used Answer: Pipe Cutter 14) The main purpose of a Fire, Life and Safety Power system is to Answer: Run only essential equipment to help maintain human safety 15) Baffles in a Grease trap interceptor help reduce the ______ inside the grease trap. Answer: Grease Flow
6 of 8
3/25/2013 3:30 PM
16) What is Parallel Alignment Answer: When the center lines of two shafts are parallel 17) A motor running hot will only run hotter if the load is Answer: Increased 18) Which Building Alarm will trigger the fire pumps Answer: Water Flow 19) Water fit for Human use and consumption is called Answer: Potable 20) The Valve with the least amount of pressure drop is a Answer: Gate Valve
21) Efficiency of a grease trap is determined by the Elevation between the ______ and the _____ in relation to the static water line. Answer: Inlet /Outlet 22) Best way to prevent back siphoning is with an Answer: Air Gap 23) Should safety Glasses be worn when using a hacksaw Answer: Yes 24) How many Gallons of water fit into one Cubic foot Answer: 7.48 gl. 25) Type of weld used to Fill a corner or a Tee joining is referred to as a Answer: Fillet Weld 26) Grease Classification are set by the Answer: N.L.G.I (National Lubrication Grease Institute} 27) Continuous Belt turnover is caused by Answer: Improper installation technique 28) How can you determine the scale of a Blue Print Drawing Answer: Checking the Specification Sheet 29) Type of plumbing fitting that can directly or indirectly contaminate the potable water Answer: Cross Connection 30) Traps provide protection from what from entering the house Answer: Sewer gas odor and vermin Reply
7 of 8
3/25/2013 3:30 PM
Comment as:
Home
Subscribe to: Post Comments (Atom)
Awesome Inc. template. Powered by Blogger.
8 of 8
3/25/2013 3:30 PM
LOCAL 501 BOMA TEST ANSWERS
http://boma501.blogspot.com/
Subscribe to: Posts (Atom)
Awesome Inc. template. Powered by Blogger.
1 of 2
3/25/2013 3:31 PM
http://boma501.blogspot.com/
2 of 2
3/25/2013 3:31 PM
Blogger: User Profile: Rick
http://www.blogger.com/profile/12878232326697695412
Gender View Full Size Industry Location
Male Engineering United States The Name is Rick and if you would like to recieve the rest of the 500 BOMA test questions contact me at this e mail eulogian_knight@yahoo.com Furthering the endevors of our Local 501
Introduction
Interests
Help Center | Terms of Service | Privacy | Content Policy | Developers Copyright 1999 2013 Google
1 of 1
3/25/2013 3:32 PM

157 Tac

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

157 Tac

Uploaded by

Copyright:

Available Formats

Case 2:12-cv-09324-DDP-VBK Document 157 Filed 10/23/13 Page 1 of 151 Page ID #:2591

Page 3 THIRD AMENDED CLASS ACTION COMPLAINT

Page iii THIRD AMENDED CLASS ACTION COMPLAINT

Page v THIRD AMENDED CLASS ACTION COMPLAINT

Officers of labor unions are held to the highest standards of

The conduct of Defendants harkens back to the days of unrepentant

The action is brought, among other bases, under the Interstate

Jurisdiction is specifically conferred on this Court by various federal

Venue as to each Defendant is proper in this District because

THE PARTIES TO EACH CLAIM FOR RELIEF

Plaintiff Daniel Himmelberg is, and at all relevant times was, a

Local 501. Mr. Brophy is retired.

Local 501. Mrs. Brophy is retired.

Page 3 THIRD AMENDED CLASS ACTION COMPLAINT

The Plaintiffs identified as members of Local 501 are also intended

The IUOE Defendants

Defendant International Union of Operating Engineers (IUOE or

Defendant James T. Callahan is the General President (GP) of

Defendant Brian E. Hickey is General Secretary-Treasurer of IUOE,

Defendant William C. Waggoner is the First Vice President of IUOE.

Page 6 THIRD AMENDED CLASS ACTION COMPLAINT

Defendant Patrick L. Sink is the Third Vice President of IUOE. Mr.

Defendant Jerry Kalmar is the Fourth Vice President of IUOE. Mr.

Defendant Russell E. Burns is the Fifth Vice President of IUOE. Mr.

Defendant Rodger Kaminska is the Sixth Vice President of IUOE. Mr.

Defendant James M. Sweeney is the Seventh Vice President of IUOE.

Defendant Robert T. Heenan is the Eighth Vice President of IUOE.

Defendant Daniel J. McGraw is the Ninth Vice President of IUOE.

Page 7 THIRD AMENDED CLASS ACTION COMPLAINT

Defendant Daren Konopaski is the Tenth Vice President of IUOE. Mr.

Defendant Michael Gallagher is the Eleventh Vice President of IUOE.

Defendant Greg Lalevee is the Twelfth Vice President of IUOE. Mr.

Defendant Terrance E. McGowan is the Thirteenth Vice President of

Defendant Louis G. Rasetta is the Fourteenth Vice President of IUOE.

from about 2005 until his retirement in November 2011.

Page 8 THIRD AMENDED CLASS ACTION COMPLAINT

Defendant John M. Holliday is the current Business Manager of Local

Defendant Kuba J. Brown is the current Business Manager of Local

Defendant Bruce Moffatt is the current Business Manager of Local

Defendant James T. Kunz, Jr. is the current Business Manager of Local

Defendant James Zazzali is a retired New Jersey Supreme Court

Defendant Michael R. Fanning is the Chief Executive Officer for

IUOEs General and Central Pension Funds.

The ABM Defendants

Defendant Cornel Sneekes was, at some relevant times, a management

Page 9 THIRD AMENDED CLASS ACTION COMPLAINT

Defendant Jim Scranton was, at relevant times, the President of ABM

Defendant ABM Engineering Services is a business entity owned by

The Able Defendants

Defendant Paul Bensi is the CEO of Able Engineering Services and a

Defendant Able Engineering Services is a business entity wholly

Local 501-Affiliated Defendants and Related Professionals

Defendant Ed Curly is the current Business Manager of Local 501,

Defendant Kenneth Capehart, formerly sued as Doe 1, is the current

IUOE Local 501. Mrs. Acosta served as a business representative.

Defendant Enrique (Rick) Alcala is a member of Local 501. He was

Defendant CVS Caremark Corporation is a Delaware corporation.

Defendant Trivantage Pharmacy Strategies, LLC is a business entity

Defendant Truven Health Analytics, Inc. is a Delaware corporation

Removed Defendants and Doe Defendants

IUOE, but he is now retired.

and has since left that position.

Page 12 THIRD AMENDED CLASS ACTION COMPLAINT