case 1-90-cv-05722-rmb-thk document 1231

7/29/2019 Case 1-90-cv-05722-RMB-THK Document 1231

1/8

------

\.0L..1-T t:leS O O ~ : ~ February 27, 2013 (SHonorable Richard M. Bennan RiCHARDM. BERrANU:S.D.'J

United States District Judge if"I'SUnited States District Court (SDNY)Daniel Patrick Moynihan United States Courthouse500 Pearl Street, Courtroom 12New York, NY 10007

USDCSDNYDOCUMENTELECTRONICALLY FDOC#:DATE FILED: 2/27/1

Re:United States v. District Council ofNew 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 & DistrictCouncils attempt to circumvent the tenets & specific requirements of the ConsentDecree for violations of Prong 1, the elimination of racketeering; and, Prong two, therestoration of democracy by engaging in a continual and prolonged pattern andcampaign to negate the requirements therein as well as negating specific provisions ofthe NYDCC By-laws dated August 5,2011 cited herein; and Federal labor law asregarding long settled law & precedent decisions of the NLRB, Appellate Courts andthe United States Supreme Court.The District Council By-laws at section 5, 12 & 20 state:SECTION 5: POWERS AND DUTIES OF THE COUNCIL DELEGATEBODYThe Council Delegate Body shall have the following enumerated powers and duties:(B) Without limiting the Council Delegate Body's responsibilities or authority, theCouncil Delegate Body must:8. Review and approve or reject, in advance, all Collective Bargaining Agreementsfollowing a recommendation from the Executive Committee. If a CollectiveBargaining Agreement is rejected, the Delegate Body shall promptly inform theExecutive Committee in writing of any provision(s) that caused, or will cause asindicated 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 shallconsist 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


2/8

the membership directly, and the President, Vice-President and Executive SecretaryTreasurer.(I) The Executive Committee shall have the primary responsibility for negotiating, andrecommending to the Council Delegate Body for approval, all Collective BargainingAgreements.SECTION 20: COLLECTIVE BARGAININGFollowing recommendation by the Executive Committee, the Council Delegate Bodyshall have the exclusive power and authority to ratify and execute CollectiveBargaining Agreements for and on behalf of its affiliated Local Unions. except to theextent the International Union exercises its jurisdiction or authority. The DistrictCouncil Delegate Body shall adopt rules and procedures governing the method ofcollective bargaining ratification. The District Council has established, and shallmaintain, procedures for processing grievances filed pursuant to District Councilcollective 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 areinextricably bound to the March 3, 1994 Civil Rico Consent Decree, # 90-CV-5722, aprivate contract wherein they waived their collective rights, thus agreeing to be boundby its terms & conditions. The District Council Delegate Body's powers enumeratedabove were put into effect as a check against the dictatorial control of an allconsuming EST running amok via autocratic fiat or back-door deals made withcorrupt individuals, firms or assodations of employersSection 5 (B) 8 POWERS AND DUTIES OF THE COUNCIL DELEGATE BODY islegally incorrect as written and approved.Under Section 12(1), the Executive Committee although having the primaryresponsibility for negotiating and recommending to the Council Delegate Body forapproval, 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 theCouncil 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] CollectiveBargaining Agreements for and on behalf of its affiliated Local Unions".The Executive Secretary-Treasurer Michael Bilello and the Executive Committeecannot unilaterally waive or ignore the Council Delegate Body's ultimate authority to



3/8

''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 orany 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 ofthe Consent Decree.Accordingly, NYCDCC By-Laws, Section 5 (B) 8 must be amended to expunge/deletethe phrase "by a non-binding vote," as this language "limits the Council DelegateBody's responsibility or authority" defined by (B).The "subject to" language by the UBCJA International's Douglas J. McCarron mustbe expunged as the LMRDA Trusteeship extension has terminated effective January11, 2012 because it violates the Garlock Doctrine under Board precedent for a Vetopower; and due to the UBCJA Constitution being declared facially unlawful inCarpenters Local 43 (McDowell Building & Foundation) and Kevin Lebovitz, 12-3109, slip opinion, upheld in the September 2010 supplemental Decision & Order by theBoard, without qualification.The rationale & nexus warranting expunging NYCDCC By-laws, Sec. 5(B) 8 "by anon-binding vote" and Sec. 20 Collective Bargaining, Sentence one at "except to theextent the International Union exercises its jurisdiction or authority." is furthersupported 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 toencourage collective bargaining, and to protect the 'full freedom' of workers in theselection of bargaining representatives of their own choice. To this end Congressmade it illegal for an employer to interfere with, restrain or coerce employees inselecting their representatives. Congress attached no conditions whatsoever to theirfreedom of choice in this respect. Their own best judgment, not that of someoneelse, was to be their guide. 'Full freedom' to choose an agent means freedom topass upon that agent's qualifications."NYCDCC By-laws, Section 20, sentence two states; "The District Council DelegateBody shall adopt rules and procedures governing the method of collective bargainingratification." 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, mustbe agreed upon in express words and not merely implied." Here, in the instant



4/8

matter of the ongoing Contract Negotiations between the District Council and theWall & Ceiling Contractor Association, the past practice by the District Council isthat every contract be ratified by its members as was done during the contractratification vote by its members on March 27, 2012.

Unless the union and employer have agreed otherwise, "ratification is an internalunion 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 ofa contractual "ballot clause" similar to a ratification provision, such a clause dealsonly with relations between the employees and their unions. It substantially modifiesthe collective-bargaining system provided for in the statute by weakening theindependence of the 'representative' chosen by the employees. It enables theemployer, in effect, to deal with its employees rather than with their statutoryrepresentative. 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., 280NLRB 350, 351 (1986) ("even i f ratification were a precondition, we find thatRespondent has no standing to question the Validity of the procedures used by theUnion in ratifying the agreement. It is well settled that ratification is an internal unionmatter which is not subject to Question by an employer.The Wall & Ceiling Contractor Association, the and UBCJA International have soughtand continue to maintain an illegal & untenable position providing them with'standing' to intervene in matters which weakens the independence of therepresentatives chosen via a court monitored & supervised Election process forDistrict Council Delegates which specifically states: "The District Council DelegateBody shall adopt rules and procedures governing the method of collective bargainingratification. "The DC's past practice under the contract for a successor agreement under the newBy-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, reviewedand approved by both the Review Officer and the United States Attorney's Office andthis honorable Court under the stipulated terms & conditions of the Consent Decree,waiver of rights, have thus established the 'condition precedent' for this Court to issuea binding order upon the District Council and each & every Contractor Assodationrequiring the condition precedent to execution of any written contract be a mandatory& binding ratification vote by its rank & file members as duly authorized by theCouncil Delegate Body.



5/8

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.



6/8

Respectfully submitted,NYCDCC Rank & File Carpenters

Local Union No.Name: Date:

Tuesday, March 27, 2012 157blogspot.comUnion carpenters reject work-rule changes

http:///reader/full/157blogspot.comhttp:///reader/full/157blogspot.com


7/8

\ ' t - ' " 1 ~ ~ . < . > . , "... ~ " " " ' .. ~ < . <

Click to enlarge.Carpenters turn down several contracts negotiated with contractor associationslast year-a blow to the builders pressing fo r more hiring flexibility.By Erik E n g q u i s ~ Members of the carpenters union have soundly rejected four contracts negotiatedwith contractor associations last year-a blow to contractors because the dealsincluded a number of work-rule changes that they have long coveted.The primary one was "full mobi lity" provision that would have enabled contractors toselect any member of the union to work fo r them; the current system compels themto hire at least one-third of their workers via union referrals.Voting results were revealed to members of the New York City District COLindl ofCarpenters Tuesday. Agreements with the Building Contractors Assodation, CementLeague and Wall, Ceiling and Carpet Industries were al l rejected by nearly 2-to-1margins, with nearly 2,400 votes cast on each, according to the union. A deal with theGreater 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 newexecutive secretary-treasurer of the 25,OOO-member carpenters union, Mike Bilello,had argued against "full mobili ty" during his election campaign but did not take aformal position on the deals, except to say they deserved a vote."There were some unpopular things [in the agreements], in particular the full



8/8

mobility," Mr. Bilelo said. "It was really a referendum on full mobility."Another clause that some members disliked would have allowed two-person jobswithout a shop steward. But the prospect of turning over al l hiring to contractors wasthe primary issue fo r many rank-and-file members.One carpenter, Demian Schroeder, said: "By giving the contractors 100% control overhiring, and no work-referral system, carpenters would be less likely to makecomplaints about noncompliance with the contract, labor law violations and safetyviolations. I voted against al l of those contracts because they are profoundlyantiunion agreements that eviscerated the fundamental union prindples of ourorganization. "Mr. Bilelo said he expected to begin negotiating agreements within a week. Thecontracts expired June 30, 2011, but an "evergreen clause" keeps them in effect forone 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 commentsLabels: Bilello, District Council, wage freeze

Attachment No. 1


case 1-90-cv-05722-rmb-thk document 1231

Documents