dissenting:
When evidence is presented that the head of an employers’ trade association is a major figure in organized crime and acted to perpetuate organized crime’s influence over a Teamster local through a relationship with the union’s negotiator, it is not surprising that adjudicators responsible for administering a consent decree intended to purge the Teamsters of criminal control should impose sanctions against the union’s negotiator. But the fact that evidence suffices to permit a result does not necessarily mean that the result has been adjudicated according to legal standards that courts are required to observe. Because I believe that the proceeding resulting in the penalty imposed on appellant Bernard Adelstein was' fundamentally unfair, I dissent from the judgment that upholds the penalty.
The unfairness, substantial enough to render the administrative decisionmaking arbitrary and capricious, occurred because the basic allegation against Adelstein cannot support a sanction on this record and a significantly different allegation emerged in the course of the adjudicatory process and was ultimately relied on to justify the sanction against him.
Adelstein was an officer of IBT Local 813, which represents sanitation workers in the New York City area. Under the IBT consent decree, he was charged by the Investigations Officer with violating the IBT Constitution by conducting himself in a manner to bring reproach upon the IBT and by violating his oath. The sole specification for these two forms of misconduct was precisely set forth in the -charging document as follows:
TO WIT, while an officer of Local 813, you knowingly associated with members and associates of La Cosa Nostra including James Failla [and Matthew Ianniello and Anthony Corallo].
Since the sanction was imposed solely for Adelstein’s association with Failla, I confine my consideration to that relationship, as does the Court.
It is undisputed that during the relevant times, Failla was the president of the Trade Waste Association, the employers’ organization that represents New York’s private garbage collection companies, and was the principal negotiator for the Association. It is also undisputed that Adelstein was an officer of Local 813 and the principal negotiator for the Union. Obviously, a union negotiator must “associate” with an employers’ negotiator, .and the bare fact of an association arising from the negotiating relationship cannot suffice to warrant punishment of the union negotiator. Just as the Supreme Court has recognized that a parolee prohibited from associating with ex-convicts may not be penalized for contacts with ex-convicts working for his employer, see Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126 (1971), there can be no doubt that Adel-stein cannot be punished simply because he “associated” with the employers’ negotiator.
The Court does not dispute this basic proposition. - Instead, the Court upholds the sanction, as did the Independent Administrator and the District Court, by taking two critical steps, one involving an extension' of the facts and a second involving a fundamental change in the charge.
First, the Court accepts the “finding” that Adelstein’s contacts with Failla were “‘beyond that required in [Adelstein’s] official capacity.’ ” 998 F.2d at 126. The evidence to support such “extra” association is either *128non-existent or not probative of wrongdoing. The Court notes that Adelstein admitted being in the company of Failla at charity affairs and funerals. A union negotiator is inevitably going to be invited to charity affairs at which the employers’ representative is present, and, after years of a negotiating relationship, he cannot be condemned for attending a funeral of a common friend. This is precisely the sort of “fleeting or casual” contact that we have ruled does not constitute an impermissible association. See Birzon v. King, 469 F.2d 1241, 1243 (2d Cir.1972). The Court suggests that Adelstein “could have refused social invitations on behalf of the organization Failla represented.” 998 F.2d at 126. Of course he could have, but his failure to do so cannot possibly be evidence of wrongdoing. What union negotiator in his right mind would snub the employer association he must regularly negotiate with by declining to attend the association’s social events?
The insubstantiality of these indications of an “association” beyond the bounds of legitimate negotiating impels the Court to take the same serious second step taken by the Independent Administrator and the District Court — a change in the fundamental allegation. Where the charge initially alleged only that Adelstein “associated” with Failla, it was transformed to the far more serious allegation that Failla dominated Adelstein to effect control of Local 813 for the benefit of organized crime. The change first occurs in the decision of the Independent Administrator:
Given the substantial evidence that Failla and Adelstein worked together to effect control over Local 813 for the benefit of the Gambino Family, I find that the contacts between Adelstein and Failla extended far beyond legitimate Union business and thus, evidence a clear, prohibited association with a member of La Cosa Nostra.
Independent Administrator’s decision at 14. The association between Adelstein and Failla is actionable not because it exists, as the charge alleges, but because it was used by Failla to exert organized crime’s control over the Union.
The District Court similarly shifted from an allegation of association to an allegation of corrupt control:
The record clearly supports the Independent Administrator’s finding that the relationship between Mr. Failla and Mr. Adelstein was collaborative, rather than adversarial, and that this relationship provided the means by which the Gambino Crime Family exerted control over IBT Local 813.
998 F.2d at 125. This Court adopts the same approach by noting that the District Court “described the relationship between Adel-stein and Failla as ‘collaborative, rather than adversarial,’ ” and by relying on “evidence that the putative business associations themselves were not wholly legitimate.” 998 F.2d at 126.
I do not doubt that Adelstein could have been charged and perhaps found guilty of violating the Union’s constitution by permitting the Union to be dominated by the Gam-bino Family. But that was not the charge. The allegation was simply that he “associated” with Failla. His contacts with the man he was obliged to negotiate with as the representative of the employers’ organization were not shown to be an impermissible “association.” He stands condemned for the different offense of selling his union out to organized crime. That is a serious charge, and whether or not he is guilty of it, he is entitled to have it presented in a charging document and to have the entire proceeding focused on it. The decision to punish him on a charge of mere “association” is arbitrary and capricious because it lacks evidentiary support for what was alleged and is ultimately upheld on the basis of what was not alleged.
I respectfully dissent.