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February 27, 2013 ~ , (S
Honorable Richard M. Bennan RiCHARDM. BERrANU:S.D.'J
United States District Judge if"I' S
United States District Court (SDNY)
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street, Courtroom 12
New York, NY 10007
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 2/27/1"3.
Re:United States v. District Council of New York and Vicinity of the United_
Brotherhood of Car12enters & Joiners ofAmerica. et al: (Index No. 90 Civ. 5722L
(RMB)
Dear Judge Berman,
This letter is in response to the Wall & Ceiling Contractor Association & District
Councils attempt to circumvent the tenets & specific requirements of the Consent
Decree for violations of Prong 1, the elimination of racketeering; and, Prong two, the
restoration of democracy by engaging in a continual and prolonged pattern and
campaign to negate the requirements therein as well as negating specific provisions of
the NYDCC By-laws dated August 5,2011 cited herein; and Federal labor law as
regarding long settled law & precedent decisions of the NLRB, Appellate Courts and
the United States Supreme Court.
The District Council By-laws at section 5, 12 & 20 state:
SECTION 5: POWERS AND DUTIES OF THE COUNCIL DELEGATE
BODY
The Council Delegate Body shall have the following enumerated powers and duties:
(B) Without limiting the Council Delegate Body's responsibilities or authority, the
Council Delegate Body must:
8. Review and approve or reject, in advance, all Collective Bargaining Agreements
following a recommendation from the Executive Committee. If a Collective
Bargaining Agreement is rejected, the Delegate Body shall promptly inform the
Executive Committee in writing of any provision(s) that caused, or will cause as
indicated by a non-binding vote. in whole or in part, the rejection.
SECTION 12: EXECUTIVE COMMITrEE
(A) The Executive Committee shall be a subcommittee of the Delegate Body and shall
consist of one member of each Local Union nominated and elected by secret ballot of
Case 1:90-cv-05722-RMB-THK Document 1231 Filed 02/27/13 Page 1 of 8
the membership directly, and the President, Vice-President and Executive Secretary
Treasurer.
(I) The Executive Committee shall have the primary responsibility for negotiating, and
recommending to the Council Delegate Body for approval, all Collective Bargaining
Agreements.
SECTION 20: COLLECTIVE BARGAINING
Following recommendation by the Executive Committee, the Council Delegate Body
shall have the exclusive power and authority to ratify and execute Collective
Bargaining Agreements for and on behalf of its affiliated Local Unions. except to the
extent the International Union exercises its jurisdiction or authority. The District
Council Delegate Body shall adopt rules and procedures governing the method of
collective bargaining ratification. The District Council has established, and shall
maintain, procedures for processing grievances filed pursuant to District Council
collective bargaining agreements, as set forth in a separate document dated April 18,
2011, which is incorporated herein by reference.
In New York City, the District Council of Carpenters and the UBCJA International are
inextricably bound to the March 3, 1994 Civil Rico Consent Decree, # 90-CV-5722, a
private contract wherein they waived their collective rights, thus agreeing to be bound
by its terms & conditions. The District Council Delegate Body's powers enumerated
above were put into effect as a check against the dictatorial control of an all
consuming EST running amok via autocratic fiat or back-door deals made with
corrupt individuals, firms or assodations of employers
Section 5 (B) 8 POWERS AND DUTIES OF THE COUNCIL DELEGATE BODY is
legally incorrect as written and approved.
Under Section 12(1), the Executive Committee although having the primary
responsibility for negotiating and recommending to the Council Delegate Body for
approval, all Collective Bargaining Agreements, their direct status is that of an
"appointed sub-committee" and one with a designated power of "recommending";
and, in any event - said textual discrepandes within the by-laws are over-ruled by the
Council Delegate Body's defined role in Section 20 which clearly state that they
"shall have the exclusive power and authority to ratify and execute [the] Collective
Bargaining Agreements for and on behalf of its affiliated Local Unions".
The Executive Secretary-Treasurer Michael Bilello and the Executive Committee
cannot unilaterally waive or ignore the Council Delegate Body's ultimate authority to
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''bind & execute" any or all contracts (CBA's) negotiated for, on or behalf of the rank
& file members, including this one with the Wall & Ceiling Contractor Association or
any other contractor association.
The NYCDCC By-laws did not grant to the aforementioned parties any such authority,
thus, their intended course of action stands in direct violation of Prong 1 & Prong 2 of
the Consent Decree.
Accordingly, NYCDCC By-Laws, Section 5 (B) 8 must be amended to expunge/delete
the phrase "by a non-binding vote," as this language "limits the Council Delegate
Body's responsibility or authority" defined by (B).
The "subject to" language by the UBCJA International's Douglas J. McCarron must
be expunged as the LMRDA Trusteeship extension has terminated effective January
11, 2012 because it violates the Garlock Doctrine under Board precedent for a Veto
power; and due to the UBCJA Constitution being declared facially unlawful in
Carpenters Local 43 (McDowell Building & Foundation) and Kevin Lebovitz, 12-31
09, slip opinion, upheld in the September 2010 supplemental Decision & Order by the
Board, without qualification.
The rationale & nexus warranting expunging NYCDCC By-laws, Sec. 5(B) 8 "by a
non-binding vote" and Sec. 20 Collective Bargaining, Sentence one at "except to the
extent the International Union exercises its jurisdiction or authority." is further
supported by the United States Supreme Court in Hill v. Florida 325 U.S. 538 (1945)
where the Court stated:
"The declared purpose of the Wagner Act, as shown in its first section, is to
encourage collective bargaining, and to protect the 'full freedom' of workers in the
selection of bargaining representatives of their own choice. To this end Congress
made it illegal for an employer to interfere with, restrain or coerce employees in
selecting their representatives. Congress attached no conditions whatsoever to their
freedom of choice in this respect. Their own best judgment, not that of someone
else, was to be their guide. 'Full freedom' to choose an agent means freedom to
pass upon that agent's qualifications."
NYCDCC By-laws, Section 20, sentence two states; "The District Council Delegate
Body shall adopt rules and procedures governing the method of collective bargaining
ratification." In Martin J. Barry & Co., supra.; C & W Lektra Bat Co., supra at 1039,
the NLRB Board stated;
"ratification, to be a condition precedent to a collective bargaining agreement, must
be agreed upon in express words and not merely implied." Here, in the instant
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matter of the ongoing Contract Negotiations between the District Council and the
Wall & Ceiling Contractor Association, the past practice by the District Council is
that every contract be ratified by its members as was done during the contract
ratification vote by its members on March 27, 2012.
Unless the union and employer have agreed otherwise, "ratification is an internal
union matter which is not subject to question by an employer." Martin 1. Barry Co.,
241 NLRB 1011,1013 (1979). As the Supreme Court has explained, in a discussion of
a contractual "ballot clause" similar to a ratification provision, such a clause deals
only with relations between the employees and their unions. It substantially modifies
the collective-bargaining system provided for in the statute by weakening the
independence of the 'representative' chosen by the employees. It enables the
employer, in effect, to deal with its employees rather than with their statutory
representative. NLRB v. Borg-Warner Corp., 356 U.S. 342, 350 (1958).
12 Id. (summarizing and quoting from Childers Products Co., 276 NLRB 709, 711
(1985), review denied memo 791 F.2d 915 (3d Cir. 1986)); Newtown Corp., 280
NLRB 350, 351 (1986) ("even if ratification were a precondition, we find that
Respondent has no standing to question the Validity of the procedures used by the
Union in ratifying the agreement. It is well settled that ratification is an internal union
matter which is not subject to Question by an employer.
The Wall & Ceiling Contractor Association, the and UBCJA International have sought
and continue to maintain an illegal & untenable position providing them with
'standing' to intervene in matters which weakens the independence of the
representatives chosen via a court monitored & supervised Election process for
District Council Delegates which specifically states: "The District Council Delegate
Body shall adopt rules and procedures governing the method of collective bargaining
ratification. "
The DC's past practice under the contract for a successor agreement under the new
By-Laws put into effect by the Review Officer & the United States Attorneys Office,
NLRB Board precedent and the NYCDCC By-Laws, Section 20, as drafted, reviewed
and approved by both the Review Officer and the United States Attorney's Office and
this honorable Court under the stipulated terms & conditions of the Consent Decree,
waiver of rights, have thus established the 'condition precedent' for this Court to issue
a binding order upon the District Council and each & every Contractor Assodation
requiring the condition precedent to execution of any written contract be a mandatory
& binding ratification vote by its rank & file members as duly authorized by the
Council Delegate Body.
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The UBCJA International, the NYCDCC & the Contractor Associations only seek to
avoid the obvious here by ignoring their express waivers with the government and to
avoid compliance with Prong 2 - Restoration of Democracy as required by their
consent thereto. Moreover, public policy requires their adherence to the terms &
conditions of the Consent Decree as opposed to their never ending opposition to it and
their desire to end run it whenever possible.
The government and the review officer had more than ample time to correct the
known & obvious textual mistakes within the NYCDCC By-laws as expressly noted
herein and for reasons yet explained have failed to do so, thus allowing the Contractor
Association, the District Council & UBCJA International to continue playing games
with this honorable Court and with its rank & file members due process rights. Given
the parties with standing refuse to correct the deficiencies noted herein, we request
immediate intervention and the courts granting for 'standing' to protect our Federal
rights.
We remind the Court that the EST Michael Bilello and the District Council Delegates
have adopted the policy of rank & file member contract ratification as required by the
By-laws dated August 5, 2011 and as submitted by the R.O., U.S.A.O and approved
by this honorable court.
Therefore, we respectfully request that the issue of contract ratification be treated as a
motion for intervention and a motion ordering the D.C., UBCJA International & each
& every Contractor Association to:
a) Correct the By-laws & expunge the items noted herein; and,
b) To abide by the internal ruleslby-Iaws of the NYCDCC allowing rank & file
member voting on every contract prior to execution as duly authorized by the Council
Delegate Body;
c) To reject the W & C and UBCJA International & NYCDCC's request for "Full
Mobility" for the reasons set forth in the member response to the Restructuring Plan,
dated July 1, 2011, as though fully set forth herein and in due consideration of the case
law, settled law/precedents of the NLRB, Federal Labor & Public Policy, Appellate &
United States Supreme Court precedent decisions NOTED THEREIN.
d) The court issue an Order sua-sponte up-holding the prior 67% - 33% minimum
Hiring ratios as order on MAY 26,2009 BY Judge Haight.
We respectfully request a TRO & Permanent Injunction be issued preventing the
implementation of Full Mobility, as it impairs contractual prohibitions and Federal
Labor & public policy concerns regarding race, ethnicity, gender & age discrimination
and will disenfranchise 40% of the NYCDCC membership effectively ending the
careers of 4,000 - 5,000 dues paying men & woman of the District Council.
Case 1:90-cv-05722-RMB-THK Document 1231 Filed 02/27/13 Page 5 of 8
Respectfully submitted,
NYCDCC Rank & File Carpenters
Local Union No.
Name:
Date:
Tuesday, March 27, 2012 157blogspot.com
Union carpenters reject work-rule changes
Case 1:90-cv-05722-RMB-THK Document 1231 Filed 02/27/13 Page 6 of 8
".
.. ..
Click to enlarge.
Carpenters turn down several contracts negotiated with contractor associations
last year-a blow to the builders pressing for more hiring flexibility.
By Erik
Members of the carpenters union have soundly rejected four contracts negotiated
with contractor associations last year-a blow to contractors because the deals
included a number of work-rule changes that they have long coveted.
The primary one was "full mobility" provision that would have enabled contractors to
select any member of the union to work for them; the current system compels them
to hire at least one-third of their workers via union referrals.
Voting results were revealed to members of the New York City District COLindl of
Carpenters Tuesday. Agreements with the Building Contractors Assodation, Cement
League and Wall, Ceiling and Carpet Industries were all rejected by nearly 2-to-1
margins, with nearly 2,400 votes cast on each, according to the union. A deal with the
Greater New York Floor Coverers Assodation was defeated 123-94.
A single contract was approved, with the Hoisting Trade Assodation, by a 74-29 count,
union offidals said.
The carpenters' deals were negotiated by leaders who have since lost power. The new
executive secretary-treasurer of the 25,OOO-member carpenters union, Mike Bilello,
had argued against "full mobility" during his election campaign but did not take a
formal position on the deals, except to say they deserved a vote.
"There were some unpopular things [in the agreements], in particular the full
Case 1:90-cv-05722-RMB-THK Document 1231 Filed 02/27/13 Page 7 of 8
mobility," Mr. Bilelo said. "It was really a referendum on full mobility."
Another clause that some members disliked would have allowed two-person jobs
without a shop steward. But the prospect of turning over all hiring to contractors was
the primary issue for many rank-and-file members.
One carpenter, Demian Schroeder, said: "By giving the contractors 100% control over
hiring, and no work-referral system, carpenters would be less likely to make
complaints about noncompliance with the contract, labor law violations and safety
violations. I voted against all of those contracts because they are profoundly
antiunion agreements that eviscerated the fundamental union prindples of our
organization. "
Mr. Bilelo said he expected to begin negotiating agreements within a week. The
contracts expired June 30, 2011, but an "evergreen clause" keeps them in effect for
one year. The pressure is now on the union to get a new deal in place by June 30,
2012.
"We have got to come up with a contract that works for both sides," Mr. Bilelo said.
"We have to go fast. It cannot linger."
Posted by John Musumeci at 5:25 PM 2 comments ~
Labels: Bilello, District Council, wage freeze
Attachment No. 1
Case 1:90-cv-05722-RMB-THK Document 1231 Filed 02/27/13 Page 8 of 8