organization for a period of thirteen years. Under the statute, before granting an exemption to Section 504(a), the court is required to hold a hearing to determine whether a convicted person's service to the union would be contrary to the purposes of the LMRDA. See 29 U.S.C. § 504(a).
Pursuant to Section 5J1.1 of the United States Sentencing Commission Guidelines, which applies to instances in which an individual is convicted of a crime referred to in § 504:
. . . Relief shall not be given in aid of rehabilitation, but may be granted only following a clear demonstration by the convicted person that he or she has been rehabilitated since commission of the disqualifying crime and can therefore be trusted not to endanger the organization in the position for which he or she seeks relief from disability.
According to plaintiff's testimony, his arrest for possession of cocaine occurred after he had been drinking with friends for eight hours and had "blacked out". Plaintiff did not dispute the possession, but claimed that he had no memory of coming into possession of the cocaine. Plaintiff testified that his arrest forced him to face his twenty year history of alcoholism and seek treatment.
Plaintiff entered Greenbriar Treatment Center, where he completed a one week residential program and a three week out-patient program to address his alcohol dependency. plaintiff has continued to attend regular meetings of Alcoholics Anonymous, and has remained drug and alcohol-free since his arrest.
Plaintiff testified that he has always performed very well in every position to which he has been elected or appointed in the past, despite his problems with alcohol. He said that abstinence would further help his performance in future offices.
Plaintiff offered the testimony of Larry L. Miranda, his out-patient counselor from July 12 to August 26, 1991 at the Greenbriar Treatment Center. Mr. Miranda testified that, during the time of treatment, plaintiff was motivated and that his prognosis for controlling his alcohol addiction was good.
David Michael Parks testified that he has known plaintiff for 17 or 18 years; that they have been friends, that they worked together on the restoration of a house and that plaintiff had worked on the crew of which Mr. Parks had been the foreman. Mr. Parks testified that, before July, 1991, plaintiff was a capable worker with abilities few could match; but that he had a problem with tardiness and absenteeism related to his drinking. Mr. Parks said that from August 7, 1991 to January, 1992, he and plaintiff had worked together daily and that he noted a difference in plaintiff. According to Mr. Parks, plaintiff was much more "focused" than before, and was never tardy nor absent.
Finally, Leo P. Bigley, business agent for the plumber's union, testified that he is acquainted with plaintiff from their attendance at meetings of Alcoholics Anonymous. He asserted his belief that plaintiff has an impressive attitude and that plaintiff has "turned his life around". Moreover, Mr. Bigley noted that he, too, is an alcoholic; that he has not had a drink in fifteen years and that he has been able to make positive contributions to the union in his capacity as business agent.
Defendant opposes plaintiff's petition for exemption on the grounds that plaintiff has not demonstrated sufficient rehabilitation to justify the exemption and that an exemption would be contrary to the purpose of the LMRDA.
The court agrees with defendant's assertion. The testimony at the hearing established that plaintiff was on probation for an earlier conviction of driving while under the influence of alcohol at the time of his July, 1991 arrest for possession of cocaine. Moreover, plaintiff's "probation without verdict" term does not expire until October 29, 1992.
Notwithstanding plaintiff's recent positive efforts, plaintiff's criminal history, coupled with his admission of a twenty-year battle with alcoholism, raise doubts about the extent of plaintiff's rehabilitation. The evidence offered by plaintiff falls short of the "clear demonstration" required for an exemption under Section 504 that plaintiff is rehabilitated. It is simply too soon to determine whether plaintiff's rehabilitation has been successful to such an extent that he can be trusted in the future not to endanger Local 449 if he were to be elected to the office of business agent.
An order follows.
AND NOW, this 27th day of October, 1992 in accordance with the foregoing memorandum, it is hereby ORDERED as follows:
1. Plaintiff's request for declaratory judgment is denied.
2. Plaintiff's request for an exemption from the provision of Section 504 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 504, prohibiting him from serving as business agent of a labor organization, is denied.
William L. Standish
United States District Judge