7-3-2013 mwa attorney scott trivella letter to judge berman doc. 1354

Case 1:90-cv-05722-RMB-THK Document 1354 Filed 07/08/13 Page 1 of 12

usOC SDNY DOCUMENT ELECTRONiCALLY f\LED

DOC #:_--..-r-----=.--DATE FILED: q t

RIVELLA & FORTE, LI/ffit:~.~ ATTORNEYsATLAw CJr11

1311 MAMARONECK A VENUE, SUITE 170 WHITE PLAINS, NEW YORK 10605

(914) 949-9075/FACSIMILE (914) 949-4752

July 3, 2013

VIA OVERNIGHT EXPRESS DELIVERY:

Hon. Richard M. Berman United States District Court Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 10007-1312

CHAMBERS OF RICHARD M. BERMAN

U.S.D.J.

Re: Response to 6/28/13 Letter to the Court from Spivak Lipton, LLP regarding US v District Council, 90 Civ. 5722 and Manufacturing Woodworkers Association of Greater New York, Inc. v District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America, 13 Civ. 4473

Dear Judge Berman:

This office is counsel to Manufacturing Woodworkers Association of Greater New York, Inc. ("MWA") in the action Manufacturing Woodworkers Association of Greater New York. Inc. v District Council ofNew York City and Vicinity ofthe United Brotherhood of Carpenters and Joiners of America, 13 Civ. 4473 filed 6/27/13. The MWA is a multiemployer collective bargaining association representing for almost 40 years employers in the millwork industry. In the 13 Civ. 4473 action the MWA has requested immediate injunctive relief enjoining current strike activity by the District Council ofNew York City and Vicinity ofthe United Brotherhood of Carpenters and Joiners of America pending a hearing and determination of an arbitration filed by the MWA against the District Council ofNew York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America.

This office just last night at 5:19P.M. received the attached 7/2/13 letter addressed to Judge Nathan from Spivak Lipton LLP, counsel for the District Council ofNew York City and Vicinity ofthe United Brotherhood of Carpenters and Joiners of America. The 7/2/13 letter contained a 6/28/13 Spivak Lipton LLP letter to Your Honor requesting you take action relating to the 13 Civ. 4473 action. The 6/28/13 letter we received for the first time last night in the 7/2/13 letter. Spivak Lipton, LLP engaged in sharp practice in not copying this office on the 6/28/13 letter when Spivak Lipton, LLP delivered the letter to Your Honor. The failure to notify this office of the existence of the 6/28/13 letter at the time it was delivered to Your Honor was also a violation of Your Honor's Individual Practices. It is clear the reason Spivak Lipton LLP did not copy this office was to prevent this office from timely responding to the 6/28/13 letter and, by ex parte communication in requesting a reassignment of the action, a blatant attempt to delay the pending motion for injunctive relief. For the reasons that follow we respectfully submit


Hon. Richard M. Berman July 3, 2013 Page 2 of3.

the 13 Civ. 4473 action is properly before Judge Nathan and should be returned to Judge Nathan for hearing and a determination.

The 13 Civ. 4473 litigation before the Honorable Judge Alison Nathan is a standard motion seeking injunctive relief in aid of arbitration which does not require Your Honor's attention and which has a pending motion for injunctive relief that requires the immediate attention of Judge Nathan. Since the relief requested in that action is immediate injunctive relief, and since the motion is currently scheduled to be heard before Judge Nathan this Monday, we respectfully request that Your Honor return the 13 Civ. 4473 litigation to Judge Nathan so that Judge Nathan can hear the application for injunctive relief without the further delay which will result if the case is reassigned. Every day that the illegal strike is continuing is costing the MW A employers lost revenue and is threatening to cause MW A employer members to go out of buisness. The District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America attempt to reassign the 13 Civ. 4473 action is designed to delay that proceeding and the hearing requesting injunctive relief so that the strike can continue to irreparably harm the MW A. This conduct by the District Council should not, respectfully, be condoned by this Court.

The June 28, 2013 letter from James Murphy mentions the District Council Review Officer is reviewing the legality of the District Council's strike. Upon information and belief, there is no motion filed by the Review Officer or anyone else in federal court seeking to hold the District Council in contempt of the Consent Decree. There is therefore no need for Your Honor's assistance at this time. If the Review Officer after completing his investigation finds conduct that impacts the Consent Decree, I am sure he will contact you and/or file a motion and the issue can be addressed at that time. For these reasons, and to prevent delaying the MWA's pending application for injunctive relief, the MW A respectfully requests this Court immediately return 13 Civ. 4473 to Judge Nathan.

SO OR~f.Ef.:. Date:~ Richard M. Berman, U.S.D.J.


Hon. Richard M. Berman July 3, 2013 Page 3 of3.

Thank you for the Court's kind attention to this matter. Please notify this office immediately of the Court's decision.

Enclosures SPT:ac

Very truly yours,

TRIVELLA & FORTE, LLP

Scott Trivella

Scott Trivella

cc: James Murphy, Esq. (via electronic mail); (Attorney for the District Council); Review Officer Dennis M. Walsh, Esq. (via electronic mail); B. Torrance, Esq. (via electronic mail).


SPNAKLIPTON LLP ATTORNEYS AT LAw

July 2, 2013

VIA E-MAIL: ([email protected]) Hon. Alison J. Nathan Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007

Re: Manufacturing Woodworkers Association of Greater New York v. New York City District Couacil of Carpenters. 13 Civ. 4473

Dear Judge Nathan:

1700 Broadway New York, NY 10019 T 212.765.2100 F 212.765.8954 spivaklipton.com

This firm represents the Defendant in the above-referenced case. I write to provide you with a copy of the enclosed correspondence submitted to Judge Richard M. Berman on June 28, 2013 in connection with United States v. District Council. et al.. 90 Civ. 5722.

Pursuant to Your Honor's Individual Practices, I am copying counsel for Plaintiff on this letter by e-mail.

Encl.

cc: BY HAND

Hon. Richard M. Berman United States District Judge Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 1 0007

Respectfully submitted,


SPNAKLIPTON LLP ATTORNEYS AT LAw

Hon. Alison J. Nathan Manufacturing Woodworkers Association of Greater New York v. New York City District Council of Carpenters, 13 Civ. 4473 July 2, 2013 Page2

BY E-MAIL

Scott P. Trivella, Esq. Denise A. Forte, Esq. Jonathan Bardavid, Esq. Trivella & Forte, LLP 1311 Mamaroneck Avenue Whrte Plains, NY 10605


SPIVAKLJP1"()N LLP ATTORNEYS AT LAW

BY HAND

Hon. Richard M. Berman United States District Judge Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312

June 28, 2013

Re: United States v. District Council. eta/., 90 Civ. 5722 (RMB)

Dear Judge Berman:

1700 Broadway New York, NY 10019 T 212.765.2100 F 212.7658954 splvaklipton.com

As you know, this firm represents the New York City District Council of Carpenters.

I write to advise Your Honor that there is an action in the court that was filed yesterday that, according to the plaintiff's correspondence to the Review Officer on June 26, 2013, implicates the Consent Decree and the Stipulation & Order entered in the matter of United States v. District Council. As such, prudence and judicial economy counsel that this newly filed action should be before Your Honor under 90 Civ. 5722.

The action is Manufacturing Woodworkers Association of Greater New York v. New York City District Council of Carpenters, 13 Civ. 4473 (filed 6/27/2013 and currently before Judge Sidney H. Stein on plaintiffs application for a TRO and otherwise assigned to Judge Alison J. Nathan).

On June 26 2013, the attorneys for plaintiff wrote to Review Officer Dennis M. Walsh alleging that the District Council's possibly commencing an economic strike against plaintiff's member-employers upon expiration of the current collective bargaining agreement on June 30, 2013 would constitute a violation of the Consent Decree. A copy of that letter from plaintiff's attorneys to the Review Office is enclosed.

The Review Officer requested specifics of how the Consent Decree or other orders of the Court are implicated and would be violated by the District Council. In response, the attorneys for plaintiffs cited to Paragraph 5(e)(i) of the Stipulation and Order. Copies of that June 26, 2013 e-mail correspondence are enclosed.


SPIVAKI .lP'T'()N LLP ATTORNF.YS AT LAW

Hon. Richard M. Berman United States District Judge Re: United States v. District Council, et al., 90 Civ. 5722 (RMB) June 28, 2013 Page2

The District Council understands that the Review Officer has taken the allegations of plaintiff's attorneys under advisement. If the Review Officer should agree with plaintiff's attorneys, then he would have to move before Your Honor to find the District Council in contempt of the Consent Decree and the Stipulation & Order. If Your Honor so found, then a remedy would have to be fashioned. Consequently, prudence and judicial economy counsel in favor of this newly filed action being assigned to Your Honor as a related case.

Respectfully submitted,

d::::M~/::7j Enclosures

cc: BY E-MAIL

Dennis M. Walsh, Esq. Review Officer The Law Office of Dennis M. Walsh 415 Madison Avenue, 11th Floor New York, NY 10017

Bridget M. Rohde, Esq. Counsel to the Review Officer Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 666 Third Avenue New York, NY 10017

Benjamin H. Torrance, Esq. Tara LaMorte, Esq. Assistant United States Attorneys Civil Division Office of the United States Attorney for the Southern District of New York 86 Chambers Street New York, NY 10007


TRIVELLA & FORTE, LLP ATTORNEYS AT LAW

1311 MAMARONBCKAVBNUE WHITE PLAINS, NEW YORK 10605

(914) 9499075 TELECOPIBR (914) 949-4752

VIA EMAIL AND FIRST CLASS MAIL Dennis M. Walsh, Esq. Office of Dennis M. Walsh, Esq. Review Officer 415 Madison Avenue, 11th Floor New York. New York 10024

June 26, 2013

Re: Potential VIolation of the Consent Decree ln 90 CMl5722 (8DNY) Dear Review Officer Walsh:

As you know, my firm is counsel to the Manufacturing Woodworkers Association of Greater New York, Inc. ("MW A") with regards to labor and employment matters. I write to advise you of a potential contractual violation by the New York City District Council of Carpenters C'NYCDCC"), which I believe faUs within your purview as Review Officer.

As you know, the MW A and the NYCDCC are currently engaged in negotiations for a successor coUective bargaining agreement as the current collective bargaining agreement between the MWA and NYCDCC is set to expire on June 30, 2013. During a most recent telephone conversation with the attorney for the District Council, I was informed that a strike vote was taken and that the Union will strike as the parties could not reach agreement on the terms of a successor contract.

Article XXVII of the current contract entitled "Automatic Renewal and Expiration" provides, in pertinent part, "Once negotiations have eommeneed, neither party will seek to alter unilateraUy the terms or conditions of employment of employees covered by this Agreement until snch terms bave been ebanged by execution of a newly negotiated agreement. Neither party shall have the right to waive or modtty any provfsion of this Agreement without the mutual consent of both parties." Any job action post June 30, 2013 or any actions, which change the status quo, including but not limited to, revocation of recognition would violate this provision.

I send this letter to you in your official capacity as the Review Officer, in an effort to allow you to perform your duty and obligation to ensure that the NYCDCC docs not take any action in violation of its contractual obligations and that the NYCDCC does not engage any action that could lead to needless litigation which would waste the NYCDCC's valuable


resources. We trust that you will investigate this matter immediately so as to prevent UIU\ece&sary litigation and i~unctive relief.

Please be advised that in the event that I do receive written assurance from your office or the Union that the Union will not engage in any job action1 my office will petition the United States District Court for a Temporary Restraining Order and will seek to hold the Union responsible for any and all damages as a result of their breach of an express provision contained within the current collective bargaining agreement.

Should you have any questions please do not hesitate to call my office directly.

Sincerely,

~050~ -:p \,"'J~ Scott P. Trivella

cc: James Murphy, Esq. MW A Executive Board


James Murphy

From: Sent: To: Cc: Subject:

Thank you Denise.

Regards,

Dennis M. Walsh Review Officer 90 Civ. 5722 (SDNY)

Dennis Walsh [[email protected]] Wednesday, June 26,2013 5:40PM 'OEIOise Forte' James Murphy; 'Scott Trivella'; 'Jonathan Bardavid'; 'Bridget Rohde' RE: MWA and the NYCDCC

The Law Qf(ice of Dennis M Walsh 415 Madison Avenue, 11111 Floor New York. NY 10017 646.553.1357 (office) 914.610.1663 (mobile) www.dennismwalsh.com dwalsh@tknnismwaJshcom

[email protected]

This email is corifidential and may conJain privileged communications. It may be viewed and tlSed only by the intended recipient(s). If you have received it in error, please


On Wed, Jun 26, 2013 at l :56 PM, Dennis Walsh wrote: Dear Denise:

I have read the letter you forwarded. Please specifically cite any and all provision of the Consent Decree (and any other relevant order of the SDNY to which the District Council is subject) which you believe will be implicated and possibly violated should the District Council engage in a strike against the MW A.

Regards,

Dennis Walsh Review Officer Law Office of Dennis M Walsh 415 MadisonAvenue, I lthF!oor New York, NY 10017 646.553.1357 dwa/sh@,dennismwglsh.com JWW.dennismwalsh.com

This email is conjlderrtial and may containlegol~prM/eged comm11nicoliom. It may be liewed and used solely by the tnunded recipillll(s). Jfyqu hove recei~"td it m err01, plea.fe destroy fr and 1tori[v the sender.

On Jun 26, 2013, at 1 :40 PM, Denise Forte wrote:

Dear Review Officer Walsh Please see the attached correspondence regarding the above-referenced subject matter. Thank you. Denise

Denise A. Forte, Esq.

TriveJla & Forte, LLP 1311 Mamaroneck Avenue, Suite 170 White Plains, NY 10605 Tel: 914-949~9075 Fax: 914-949-4752

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Trivella & Forte, LLP 1311 Mamaroneck A venue, Suite 170 White Plains, NY 1 0605 Tel: 914-949-9075 Fax: 914-949-4752

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7-3-2013 mwa attorney scott trivella letter to judge berman doc. 1354

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