On May 3, 1999, International President McEntee received a letter from Keith Faufata, Angel Santiago-Cruz and Keith Chudzik, who are members of United Public Workers, Local 646, AFSCME, AFL-CIO (UPW), in which they filed charges against Gary Rodrigues, the State Director of Local 646, and Clifford Uwaine, the editor of UPW's newspaper. Local 646 is a state-wide local in Hawaii.

The charges received by President McEntee followed earlier correspondence from the charging parties in which they made a series of allegations against Gary Rodrigues. In response, President McEntee sent a letter dated April 20, 1999, in which he asked the charging parties to advise him whether it was their intent to file charges against Brother Rodrigues. His letter specifically advised the charging of the information the charges would have to contain as to the actions which were alleged to constitute the basis for the charges.

If you wish to file charges, Article X, Section 6 of the International Constitution requires that the charges "be specific, citing in detail the nature, date, and the circumstances of the alleged offense and, where a violation of a constitutional provision S alleged, the specific section shall be cited, along with the specific act or failure to act which constitutes the violation."

President McEntee also advised the charging parties at to how they should identify the persons against whom they were filing charges.

The charges must identified by name, the member or members against whom they are being filed. Unless ail of the charges are being filed against the same member or members, each charge must identify the member or members against whom it is filed.

 

The charges received by President McEntee on May 3 did not include many of the allegations that had been made by the charging parties in their earlier correspondence. That letter, which specifically referred to President McEntee's April 20 letter. named only Gary Rodrigues and Clifford Uwaine as the persons against whom the charges were being filed.

The letter filing the charges requested that the international Union take

original jurisdiction over the charges (and) that request was granted by President McEntee. However, since Gary Rodrigues is a member of the Judicial Panel Article XI, Section 10 of the International Constitution prohibited the Judicial Panel from hearing the case and required that it be heard by a member of the International Executive Board serving as a trial officer.

In accordance with Article XI, Section 8 of the International Constitution, trial officer selection lists containing the names of ail members of the International Executive Board were sent to the parties. After the parties were given an opportunity to strike names from the lists, International Vice President Bruno Dellana was appointed to serve as trial officer. With due notice to all parties, a hearing was held on July 13, 1999, in Honolulu, Hawaii. Ail testimony was given under oath and transcribed by a professional court reporter.

A copy of the charges filed in this case is attached. Early in the hearing, the trial officer summarized the charges, with the agreement of charging party Chudzik, who presented the case for the charging parties. The charges were summarized as follows:

1. That the accused published articles in the UPW newspaper, Malama Pono, that "defamed" them and retaliated against them and other members for signing a petition raising questions about the finances of UPW;

2. That the accused violated the constitution by spending UPW funds for the publication of those issues of Malama Pono without authorization from the either the State Executive Board or the Oahu Executive Board; and

3. That their rights were violated by a policy adopted by the State Executive Board restricting access to the minutes of State Executive Board meetings and certain financial records of UPW.

In a communication sent to the international Union on July 3, the charging parties questioned why the charges were treated as having been filed only against Bothers Rodrigues and Uwaine, stating that their third charge includes both Rodrigues and the State Executive Board as accused." As stated earlier, the charges in this case identified by name only Brothers Rodrigues and Uwaine Although the third charge did contain a reference to the State Executive Board that was not sufficient under the international Constitution to make the un-named members of that executive board accused parties in this case, and the charging parties were so advised in a letter from President McEntee dated July 6,1999.

In their July 3 communication, the charging parties also requested information about the "subpoenaing of witnesses and records that are held by our union hall." In his July 6 response, President McEntee advised them that:

The International Constitution does not provide the power to subpoena witnesses or otherwise force them to appear at internal union trials. However, the Rules of Procedure of the Judicial Panel provide for the issuance of an Administrative Request to Appear to any person a party wishes to call as a witness. I have enclosed a copy of the Rules for your reference. If you wish us to issue any Administrative Requests to Appear, such requests should be directed to my office and should be made sufficiently before the hearing date to allow witnesses to make arrangements to appear if they choose to do so.

 

Pursuant to Article X1 Section 13F of the International Constitution, you have the "right to compel the production of union records pertinent to the case." Any requests for union records should be directed to the official of the union having custody of those records and must be limited to records that are "pertinent" to the specific charges you have filed in this case.

No party requested that the International President's office issue an Administrative Request to Appear to any potential witness. Although the trial officer was prepared to issue such requests at the hearing, and to adjourn the hearing for period of time to make it more convenient for any potential witnesses, no such request were made to the trial officer. The charging parties did make an extensive document request of UPW shortly before the hearing. When UPW failed to produce any of the requested documents, the charging parties complained to the undersigned at the hearing. After carefully reviewing the extensive list of records sought by, the charging parties, the trial officer found that the documents requested were not pertinent to the charges filed in this case. Instead, every one of those records related to the alleged financial irregularities that had been referred to in the letters that preceded the charges, but not in the charges that were the subject of this case. For that reason, the trial officer ruled that UPW could not be compelled to produce those records for this hearing.

The relevant facts are largely undisputed.

A number of articles appeared in the Honolulu Star-Bulletin containing allegations of various financial improprieties involving UPW, and particularly Brother Rodrigues. After those articles appeared, the charging parties and some other members of UPW raised questions about those allegations at union meetings and signed a petition asking for answers to those questions (1). The witnesses called by the charging parties testified that they were threatened with ~ being sued or retaliation on the job if they signed the petition. - There was no testimony or other evidence that the accused either made those threats or caused others to make them, and there was no claim that any of those witnesses were sued or suffered retaliation that affected their employment. However, an

article was published in the March issue of Malama Pono, which listed the names of at least some of those who had signed the petitions and made derogatory statements about them, characterizing them as "friends" of the StarBulletin, which everyone seemed to agree is an anti-union newspaper The charging parties submitted a rebuttal to that article that was not published The following issue of Malama Pono contained another article that made derogatory references to "the three friends of the" Star-Bulletin, apparently referring to the charging parties.

No evidence was offered by the charging parties to support their claim that the spending of UPW funds on the publication of these articles required the approval of either the Oahu (2) or the State Executive Boards or that there was no such approval, even if it was required

The only evidence offered by the charging parties as to the existence of a policy adopted by the State Executive Board restricting access to the minutes of State Executive Board meetings and financial records of UPW was their testimony as to statements made to them (or their witnesses) by Joe Rodrigues who apparently heads up the Oahu Division of UPW, and 1$ a member of the State Executive Board, that they could not get the information they were seeking because of the existence of such a policy. No evidence was offered to show the existence of such a policy. Even if we were to assume that such a policy exists, the charging parties offered nothing to support their claim that Gary Rodrigues was responsible for it.

Article XII, Section 12J of the International Constitution provides that the accused parties have the "right to be presumed innocent unless proven guilty, and section 14C requires that the persons bringing the charges "assume the burden of proof. In this case, the charging parties have failed to sustain that burden. With respect to each charge, the charging parties have either made allegations that are not chargeable offenses under the International Constitution; failed to prove that the alleged violation occurred; and/or failed to prove that the accused committed the acts which are alleged to constitute the violation.

The first charge alleges that Brothers Rodrigues and Uwaine defamed the charging parties by listing their names (along with those of many of the members who signed the petitions) in an article in Malama Pono which contained derogatory comments about the persons listed and by publishing an article in a later issue that made derogatory comments about three un-named "friends" of the Star-Bulletin. These actions are claimed to be chargeable offenses under Article X, Section ~ F and/or J.

The charging parties offered no evidence to show that the accused were responsible for the contents of the publication, but that issue does not appear to be disputed. However, even if it is assumed that they were responsible and that the derogatory statements regarding the charging parties and others who signed the petitions were untrue and/or in retaliation for their signing the petition, that does not establish a chargeable offense under the International Constitution.

The three subsections of Article X, Section 2 that were referred to in this charge are: Subsection Aviolation of the constitution; Subsection F-failure to carryout decisions of the International President, the International Executive Board, the International Convention or the convention or executive board of their subordinate body (UPW); and Subsection J-interfering with an official of the union in carrying out such official's lawful duties.

It is not a violation of the constitution to put out derogatory statements about another member, even if those statements are untrue. The charging parties also claimed that the Malama Pono articles violated their free speech rights under the constitution. However. they have to understand that free speech is a two-way street. Just as they had the right to make allegations (as Brother Rodrigues would characterize it), or raise questions (as they would describe t>, about the actions of Brother Rodrigues, he and Brother Uwaine had the right to attack or question their conduct or motives. The response from the accused did not prevent the charging parties from exercising their free speech rights The publication of the Malama Pono articles was not a violation of the constitution and was not a chargeable offense under Article X, Section 2A

There was no evidence that the actions of the accused described fl the first charge violated any lawful order of any of the union officials or bodies described in Article X, Section 2F. In fact there was no evidence that any of these officials or bodies issued any order that in any way pertained to the publication of the articles referred to in this charge. Therefore, the publication of the articles was net a chargeable offense under Article X, Section 2F.

Aside from the reference to Article X, Section 2J, the charges do not even allege that the conduct of the accused in any way interfered with any union official's conduct of the duties of his or her office and the charging parties did not prove that to be the case. Therefore, there is no violation of Article X1 Section 2J.

The second charge alleges that the accused violated Article X, Section 2A and B by using UPW funds to pay for the publication of the two articles without he approval of the State or Oahu Executive Boards The charging parties offered nothing to show that the expenditure of UPW funds for these particular articles required the approval of either executive beard or that either or both of these boards had failed to approve. As noted earlier, it is doubtful that the approval of the Oahu Executive Board would have been required for any expenditure of UPW that is made on a state-wide basis. it is also unlikely that the approval of the State Executive Board of UPW would have been required for any particular article in the Local's newspaper. In fact, the trial officer is not aware of any AFSCME local or council whose constitution requires that the executive board approve the expenditure of the union's funds for the publication of any particular article in the union's newspaper, and the charging parties have failed to show that the UPW is any different in' this respect. Therefore, the expenditure of UPW funds to publish these articles was not a violation of Article X, Section 2A or B.

The third charge alleges that the charging parties sought certain information (including executive board minutes and records regarding certain financial transactions involving UPW), and that they were prevented from obtaining the information by a policy adopted by the State Executive Beard. The charging parties claimed that Brother Rodrigues was responsible for the adoption of this policy by the Executive Board. However, they failed to show that they had even requested this information from UPW (4); that there was, in' fact, a policy that "privatized" the information requested; or that they were prevented from receiving the information by the alleged policy. Even if it is assumed that there was such an executive board policy and that it had the result claimed by the charging parties, the fact is that it is the Executive Beard that is ultimately responsible for the adoption of the policy. Brother Rodrigues cannot be held responsible for that action, even if he was the instigating force behind it, an allegation that the charging parties completely failed to support. Therefore, there is no basis for finding that Brother Rodrigues violated Article X, Section 2A or F by the actions alleged in' the third charge.

For the reasons stated, Gary Rodrigues and Clifford Uwaine are found not guilty of all charges filed against them in this case.

September 3, 1999
Pittsburgh, Pennsylvania

/s/ Bruno Dellana
International Vice President

Footnotes: 

1. In cross-examining the charging parties' witnesses, Brother Rodrigues described the questions raised fl their petitions by the charging parties as "allegations" and demanded that they produce evidence to support them. However, whether they were questions or allegations is not relevant to this case and the charging parties were under no obligation produce such evidence Brother Rodrigues also questioned those witnesses as to why the petitions were apparently sent to the International Union despite the fact that they were addressed to him at UPW. This issue was also irrelevant.

2. Since Malama Pono is a statewide publication of UPW, it seems extremely unlikely that approval of the Oahu executive board would have been required. 

3. The failure of the charging parties to properly name the members of the State executive board in this charge did not affect their ability to prove this charge against Brother Rodrigues. They failed completely to offer any evidence that if there was such a policy, he had any role in its issuance.

4. The charges alleged and the charging parties testified that they had requested this information at meetings of the Oahu Division' Executive Board, but no evidence was offered to show that had ever requested the information from either Brother Rodrigues or the State Executive Board. As stated earlier, the charging parties have claimed that they filed this charge against the executive board, in addition to Brother Rodrigues, and that the executive board was dropped" from the case by President McEntee. There is no basis for this claim. The April 20,1999 letter to the charging parties from President McEntee specifically advised them as to exactly how they had to identify any person against whom they wished to file charges (the "charges must identify, by name, the member or members against whom they are being filed") and the charging parties chose to ignore that advice. President McEntee did not drop the executive board from this case. The charging parties never filed charges against the executive board.

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