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Ted
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U.S. Supreme Court
MASSACHUSETTS v. MORASH, 490 U.S. 107 (1989)

490 U.S. 107
MASSACHUSETTS v. MORASH
CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

No. 88-32.

Argued February 21, 1989
Decided April 18, 1989
Petitioner Commonwealth issued criminal complaints charging that, in failing to compensate two discharged bank vice presidents for vacation time they accrued but did not use, respondent bank president had violated a Massachusetts statute making it unlawful for an employer not to pay a discharged employee his full wages, including vacation payments, on the date of his discharge. Respondent moved to dismiss on the ground that the bank's vacation policy constituted an "employee welfare benefit plan" under 3(1) of the Employee Retirement Income Security Act of 1974 (ERISA), and that the prosecution therefore ran afoul of 514(a) of ERISA, which pre-empts "any and all State laws insofar as they . . . relate to any employee benefit plan." The trial court reported the preemption question to the Massachusetts Appeals Court for decision. For the purpose of answering the reported question, the parties stipulated that the bank had agreed to pay employees in lieu of unused vacation time, and that such payments were made out of general assets in lump sums upon employment termination. The Supreme Judicial Court of Massachusetts transferred the case to its docket on its own initiative and held that the bank's policy constituted an "employee welfare benefit plan" and that the prosecution was therefore pre-empted.

Held:
A policy of paying discharged employees for their unused vacation time does not constitute an "employee welfare benefit plan" within the meaning of 3(1) of ERISA, and a criminal action to enforce that policy is therefore not foreclosed by 514(a). Pp. 112-121.

(a) Although 3(1) defines an "employee welfare benefit plan" as "any plan . . . maintained for the purpose of providing . . . vacation benefits," the reference to such benefits - when viewed in the context of the many other, related types of welfare benefits listed in the section and in light of ERISA's primary purposes of preventing the mismanagement of accumulated plan funds and the failure to pay benefits from such funds - must be understood not to relate to ordinary vacation payments, which typically are fixed, due to known times, not dependent on contingencies outside the employee's control, and payable from the employer's general assets; rather, it encompasses only those vacation benefit funds which accumulate over a period of time and in which either the employee's right to a benefit is contingent upon some future occurrence or the employee [490 U.S. 107, 108] bears a risk different from his ordinary employment risk.

The regulations of the Secretary of Labor, which are entitled to deference as the reasonable interpretations of the official specifically authorized to define ERISA's terms, adopt this understanding of the statute by providing that numerous "payroll practices" are not "employee welfare benefit plans," including the payment of (1) vacation benefits out of an employer's general assets rather than from a trust fund and (2) premium rates for work during special periods such as holidays and weekends, which position the Secretary has consistently followed even when the premium pay is accumulated and carried over to later years. Pp. 112-119.

(b) There is no merit to respondent's argument that the bank's policy did not constitute an exempted "payroll practice" under the Secretary's regulations because employees were allowed at their option to accumulate vacation time and defer payment for such time until termination. Although neither regulation explicitly covers this precise practice, the reasons for treating premium and vacation payments as payroll practices are equally applicable here, and the vacation benefit cannot be transformed into an "employee welfare benefit plan" solely because the employees did not use their vacation days prior to their formal termination. Moreover, except for the fact of deferral, the payments in question are as much a part of regular basic compensation as overtime pay or salary payments made while the employee is on vacation; amount to the same kind of premium pay that is available for holiday or weekend work; and, unlike normal severance pay, are not contingent upon employment termination. Pp. 119-121.

402 Mass. 287, 522 N. E. 2d 409, reversed and remanded.

STEVENS, J., delivered the opinion for a unanimous Court....

                             III
Moreover, except for the fact that the payment has been deferred, such payments are as much a part of the employees' regular basic compensation as overtime pay or the payment of salary while the employee is absent on vacation. If in the end the employee elects to receive additional compensation instead of a paid vacation, he or she is receiving the same kind of premium pay that is available for holiday or weekend work. The fact that the payments in this case were due at the time of the employee's termination does not affect their character as a part of regular compensation. Unlike normal severance pay, the employees' right to compensation for accrued vacation time is not contingent upon the termination of their employment.

In reaching this conclusion, we emphasize that the case before us - and the Secretary's regulations on which we rely - concern payments by a single employer out of its general assets. An entirely different situation would be presented if a separate fund had been created by a group of employers to guarantee the payment of vacation benefits to laborers who regularly shift their jobs from one employer to another. Employees who are beneficiaries of such a trust face far different risks and have far greater need for the reporting and disclosure requirements that the federal law imposes than those whose vacation benefits come from the same fund from which they receive their paychecks. It is sufficient for this case that the Secretary's determination that a single employer's [490 U.S. 107, 121] administration of a vacation pay policy from its general assets does not possess the characteristics of a welfare benefit plan constitutes a reasonable construction of the statute.18

The judgment of the Massachusetts Supreme Judicial Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.
_________________________

Whereas NYCDCC is a multi-employer and said Funds are held in Trust (hate that word) for the Benefit of the Rank & File member who rightly earned same, to use as they see fit.

The worker keeping his or her Wages & Vacation Wages...to use as they see fit....what a novel concept ladies?


Ted
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Ted
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Is he still on Vacation? (irony mind ya)

When is the DC going to bring him back into the fold and restore his place and standing?
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Ted
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February 10, 2012
Contact:
Office of Public Affairs
 202-273-1991
 publicinfo@nlrb.gov
 www.nlrb.gov


In a settlement with the National Labor Relations Board, a Texas scaffolding company has agreed to pay $323,116 in backpay, per diem and interest to 73 former employees who were discharged in violation of federal labor law.
 
The agreement, signed February 3, also requires Atlantic Scaffolding Company to expunge its records of the discharges and send written notification of the action to the employees.
 
The settlement follows a Board decision in March 2011 that found the company unlawfully terminated the 73 employees for engaging in protected concerted activity. The Board later denied the employer’s motion for reconsideration.
 
The employer then provided records to the Board’s Regional Office so that backpay could be calculated. After extensive review of the payroll records, assessment of the interim earnings of the terminated employees, and consultation with the employer and the United Brotherhood of Carpenters, Local 502, the Region concluded that $274,916 in backpay and per diem were due, with daily compound interest through January 31, 2012 adding $48,200.
 
The records also established that the job for which the employees were hired had concluded in May 2008 and the discriminatees were therefore not entitled to reinstatement.
 
The settlement was made possible by the hard work of Region 16 trial attorney Jamal Allen, Compliance Officer Charlene Donovan and Compliance Assistant Tracy Williams-Fisher.
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Ted
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The Thirteenth Amendment reads: 

"Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
 
"Section 2. Congress shall have power to enforce this article by appropriate legislation."
 
U.S.C. Title 8, Section 56, reads:
 
"The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in any Territory or the United States, and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void."
 
U.S.C. Title 18, Section 444:
 
"Whoever holds, arrests, returns, or causes to be held, arrested, or returned, or in any manner aids in the arrest or return of any person to a condition of peonage shall be fined not more than $5,000, or imprisoned not more than five years, or both."
________________________________

The UBC's Master Plan for a yearly $256M Extortion scheme, which is soon to be a half Billion Dollar per year $512M Extortion scheme from members vacation wages or any form of wages for that matter, does not pass scrutiny.

To force and coerce involuntary servitude via leaflet, banner, picket duty etc. and disguise it as a refund and/or via a name change to "working dues", or "working dues assessment" also does not pass muster, morally, legally or otherwise, notwithstanding the bamboozling of a senile old judge under the Federal RICO Consent Decree.

Massachusetts now requires the Union's form an employment contract with the person performing the leaflet, banner or picket duty, so that proper application of employment laws, liability and recoupment of income taxes etc attach.
   This includes both Union Members and/or bums they find on the street. In the south and southwest, the UBCJA regularly hires non carpenters or bums off the street to perform these duties as Union members refuse to do so. The International which creates these policies and condones their continued use by individual EST's and District or Regional Councils also do not withstand scrutiny.

In the NYCDCC, the fact that Roger Newman, IRO Judge Conboy and the current RO endorsed the policy and the illegal exactions also does not save it from the inherent illegality. Because the USAO & IRO ran to Court under the guise of an internal Union Rule and simple By-law change, it was by design meant to intimidate the rank & file member to believe that it had an air of credibility. It does not. Rather, it was used as part of the coercive scheme to continue the extortion, fraud and involuntary servitude under threat of fine, expulsion or removal from the OWL list; under the so called watchful eye of the United States Attorneys office and the power of the Federal Government who is admittedly engaged in a private contract making it complicit in the scheme to defraud rank & file members to either cough up the tribute money to the DC & the UBC International, or - to submit, become indentured initially for 2-seven (7) hour days and subsequently one (1) seven (7) hour day against their will.

The United States Attorneys Office is charged with enforcing the laws, not willfully or by gross negligence assisting the UBCJA & NYCDCC continue violating the laws as are the other attorneys and parties of record in the matter of the Federal RICO Consent Decree.

Regardless of whether a rank & file members submits or pretends not to and thus claims it is voluntary, in either case the indentured servitude remains and it does not remove it from illegal conditions mandated by Federal law or State law(s).

The UBCJA International seems to believe that its venerable UBC Constitution stands supreme above all the laws of the land, including the Federal Constitution and State laws; and, once we start discussing the total take, the extortionate part of said scheme becomes clear and plain for all to see. The BLUE CARD is a Brinks Job of grand proportion.

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Ted
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Dated, Washington, D.C. February 14, 2012
Mark Gaston Pearce, Chairman
Brian E. Hayes, Member
Richard F. Griffin, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED AND MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD


An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post, mail, and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.

WE WILL NOT fail and refuse to bargain collectively and in good faith with General Truck Drivers, Warehousemen Helpers, Sales and Service and Casino Employees, Teamsters Local Union No. 957 as the exclusive collective-bargaining representative of the employees in the following unit by failing to continue in effect all the terms and conditions of employment of the unit as set forth in our October 1, 2009 to September 30, 2012 collective- bargaining agreement, by failing to remit to the Union the union dues deducted from employees’ paychecks as provided in article VI, subsection 6.2 of the agreement; failing to make the weekly contributions on behalf of unit employees to the Union’s Ohio Conference of Teamsters & Industry Health and Welfare Fund as provided in article XX of the agreement; and failing to pay our employees their accrued vacation pay as provided
in article XIV, subsection 14.1 of the agreement.

The unit is:
All Fuels Specialist personnel employed by us at Wright Patterson Air Force Base, Fairborn, Ohio excluding all office clerical employees, all professional employees, guards, lab technicians and supervisors as defined in the Act.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above.

WE WILL remit to the Union the dues deducted from employees’ paychecks pursuant to our 2009–2012 agreement, in the amount totaling $3277.50, plus interest.

WE WILL make all weekly contributions that we have failed to make to the Union’s Ohio Conference of Teamsters & Industry Health and Welfare Fund on behalf of unit employees pursuant to our 2009–2012 agreement, in the amount of $61,600, plus interest.

WE WILL make the unit employees whole for our failure pay them their accrued vacation pay pursuant to our 2009–2012 agreement, by paying them the amounts set forth in the Board’s Order, the total of which is $53,221.18, plus interest.
FOUR WINDS SERVICES, INC.
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Ted
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Judge Conboy, Latham & Watkins conflict of Interest: re: As the IRO who in concert with the U.S.A.O. were the parties with standing delegated to preserving the rank & file Union Carpenters interests under the Federal RICO Civil Consent Decree, former Judge Conboy had a specific and unique duty to said union members to not accept individual and/or his firms employment by Douglas J. McCarron & the UBCJA International as it is clear that he has changed every position formerly held as the I.R.O. and now advocates directly and squarely against rank & file NYCDCC Union Carpenter interests, therein abusing his former postion of trust and his joint power to act in concert with the United States Attorneys Office.

It is quite clear that he is incapable of making that distinction, and instead acts contrary to the law and on behalf of his own personal financial interest as well as that of his firms. He should recuse himself from the Consent Decree in its entirety and barring that, the Federal Court should take this issue upon itself and issue a ruling thereon.

U.S. Fire Ins. Company v. Sheppard, Mullin, Richter & Hampton (2009) 171 Cal. App. 4th, 1617 Cal. Rptr. 3rd.

Freeman v. Schack, supra, 154 Cal.App.4th 719, involved facts very close to this case. There, a lawyer was sued by two clients for breach of contract, breach of fiduciary duty, and professional negligence, based on allegations that he had entered into an attorney-client relationship with one of the plaintiffs, but abandoned that representation in order to assume the role of attorney in the same litigation, as well as a second matter, for another client, the other plaintiff. The trial court granted the attorney's special motion to strike on several grounds, including that the acts on which the suit was based constituted protected activity under the anti-SLAPP statute. (Id. at pp. 722-723.)

 In reversing the trial court's decision, the appellate court disagreed that the "principal thrust" of the complaint related to actions taken by the attorney in the course of the second representation, including the filing or settlement of that litigation: "[T]he 'activity that gives rise to [Schack's] asserted liability' [citation] is his undertaking to represent a party with interests adverse to plaintiffs, in violation of the duty of loyalty[ fn. 7 ] he assertedly owed them in connection with the [original] litigation. '[I]f the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion.' [Citation.] In our view, plaintiffs' allegations concerning Schack's filing and settlement of the [second] litigation are incidental to the allegations of breach of contract, negligence in failing to properly represent their interests, and breach of fiduciary duty [171 Cal.App.4th 1627] arising from his representation of clients with adverse interests." (Id. at p. 732.)

 In Benasra, supra, 123 Cal.App.4th 1179, the plaintiffs were former clients of the defendant law firm who sued both the firm and individual lawyers in it, alleging that the defendants had breached a duty owed to them when they accepted the representation of a subsequent client that had interests adverse to the plaintiffs. The lawyers filed an anti-SLAPP motion, arguing that the protected activity which formed the basis of the former client's suit consisted of statements made by the attorneys during the course of the subsequent representation. (Id. at p. 1186.) The appellate court disagreed, noting that the claim was based on violation of rules 3-310(C) and 3-310(E) of the State Bar Rules of Professional Conduct, fn. 8 which did not turn on whether any confidences of the former client were actually revealed by the attorneys during the subsequent, adverse representation. (Id. at p. 1187.) Citing its earlier decision in American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, the court stated that breaches of loyalty alleged as a result of violations of conflicts of interest rules of professional responsibility occur regardless of whether confidences are actually revealed in the adverse action. (Benasra, supra, 123 Cal.App.4th at p. 1187.)

 Because the breach of loyalty is presumed, the court emphasized that the misconduct was not what occurs in the courtroom during the second representation, but the very acceptance of that adverse engagement. "The breach occurs not when the attorney steps into court to represent the new client, but when he or she abandons the old client.
 Therefore, respondents' argument that section 425.16 applies to this tort must fail. In other words, once the attorney accepts a representation in which confidences disclosed by a former client may benefit the new client due to the relationship between the new matter and the old, he or she has breached a duty of loyalty. The breach of fiduciary duty lawsuit may follow litigation pursued against the former client, but does not arise from it. Evidence that confidential information was actually used against the former client in litigation would help support damages, but is not the basis for the claim. As appellants so aptly put it, their claim is not based on 'filing a petition for arbitration on behalf of one client against another, but rather, for failing to maintain loyalty to, and the confidences of, a client.' " (Benasra, supra, 123 Cal.App.4th at p. 1189.)
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Ted
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ERISA § 1108(c)(2) excerpt 2nd Cir. 8-20-02

Before: MINER and SACK, Circuit Judges, and BERMAN, District Judge.*
The clear intent of § 1108(c)(2) is to allow a fiduciary, which is otherwise prohibited from engaging in self-dealing transactions by § 1106, to receive reasonable compensation for the administration of a retirement fund. As we stated in Lowen v. Tower Asset Mgmt., Inc., 829 F.2d 1209, 1216 n. 4 (2d Cir.1987), "the services exempted under ERISA Section [1108(c)(2)] are services rendered to a plan and paid for by a plan for the performance of plan duties." Lobbying, and litigation against plan beneficiaries or their trustees cannot be construed "plan duties."
__________________________
Yet McCarron, Forde & Thomassen & Conboy did just that by running to Federal Court, intentionally with-holding the operative language of the fraudulently obtained & coerced Blue Card authorization forms from Judge Haight. They willfully perjured themselves in Court and submitted it as a simple internal rules change of the bylaws. Instead of calling it a "FINE" which all knew would be illegal under the NLRA, they lied and called it "working dues" to give it an air of credibility.

The United States Attorney's Office failed to bring these facts to light before Judge Haight and whether through gross negligence or direct collusion with the UBCJA & DC, failed to do its job as the party with standing that had a joint duty with the Independent Review Officer (IRO) Judge Conboy to defend the rank & file Union Carpenter interests, thus allowing the extortion plan to continue unabated from 1998 to the present day.

When the Federal Court allows a former federal Judge to march into its Courtroom and proffer a Hobbs Act racketeering scheme with a corrupt International Union, wherein the Judge was a chief author & proponent which it is assigned to monitor and correct under a Federal Consent Decree; and, when it allows the United States Attorneys Office to sit idly by and go along with the scheme, the Court itself loses all credibility and authority.

The Benefit Funds maintain Fiduciary Liability Insurance Policies for this exact kind of malfeasance, fraud and corruption. All of them have a 6-year statute of limitations.

It is time to put the Insurers on Notice and to file suit against the holders of said policies to recover the ill gotten gains and issue the rank & file union Carpenters their respective refunds with interest and all other damages and costs allowed by law.
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Re: BLUE CARD BOY LIVES

John Musumeci
Administrator
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1993 Board precedent, which remains "good law" & which has yet to be over-turned.

re: BLUE CARD & TWO TIERED WAGE SYSTEM WHICH INCLUDES....

"HELPERS"!


(b) Post the criteria and standards required in paragraph (a) in all exclusive hiring halls operated by the Union and mail a copy of the criteria and standards to every employee-member of Local 30 and Local 30B.

(c) Provide copies of the criteria and standards required in paragraph (a) to the Regional Director and to the chief court liaison officer appointed pursuant to the decree of the United States District Court for the Eastern District of Pennsylvania in Civil Action No. 87-
7718.
 (say it ain't so....)

(d) Select and refer applicants for employment without discrimination against the applicants by reason of membership or nonmembership in the Union or any of its components or Locals, or on the basis of union activity. Any and all distinctions in referrals to roofing employment within the jurisdiction of Locals 30 and 30B based on divisional membership are prohibited. Membership in one division, section, or part of the
Union may not be a bar to employment in any division, section, or part of the Union or industry.
  (re: Grading Wages bar in UBC Constitution, which obviously includes Helpers, Pre-Apprentices, Journey-Level Apprentices, DC Assignees, Cash Workers, Illegal Aliens and/or Foreign Nationals)

(e) Place hiring hall referral lists in conspicuous places within the exclusive hiring halls operated by the Union so as to provide for easy access and inspection by all applicants seeking job referrals.

(f) Make David Suda and other employee-members of Local 30B and helpers whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner, and in respect to the persons, set forth in sections XIII(C) and XIV(A) of the judge’s decision and as set forth in this decision.

(g) Maintain, for 2 years, written records of its referrals from every hiring hall operated by the Union, including information sufficient to disclose the basis of each referral, and make the records available to the Regional Director and to the chief court liaison officer for examination and copying upon the request of either.

(h) Submit quarterly reports to the Regional Director, with copies to the chief court liaison officer, concerning referrals of employee-members of Local 30B and helpers to employers that are members of the Roofing and Sheet Metal Contractors Association of Philadelphia & Vicinity in the manner set forth in section XIII(B) of the judge’s decision.

(i) Preserve and, on request, make available to the Board or its agents for examination and copying, all hiring hall records, membership lists, and all other records necessary to determine the amounts due under the terms of this Order.
__________________________________
This NLRB case dates to 1987-1989 & took and additional 4-years to resolve notwithstanding the RICO decree for criminal racketeering

Local 30 workers were paid $20 & change while Local 30B workers were paid 40% less at $14 dollars & change for performing the same essential work. In either instance, the Board majority and the resulting precedent was:

 (d) Select and refer applicants for employment without discrimination against the applicants  by reason of membership or nonmembership in the Union or any of its components or Locals, or on the basis of union activity.

The core elements of the above are patently clear - selection & referral of all applicants, members & non-members w/o discrimination, which includes the "two-tiered helper wage system" for this "exclusive hiring hall in any component or Locals, or:

 - "ON THE BASIS OF UNION ACTIVITY"

The NYCDCC "Blue Card" and all corresponding orders from Judge Haight for the "MANDATORY UNION PARTICIPATION" requirement for Leaflet, Banner or Picket Duty were, are and remain facially unlawful under the Act & the LMRDA.
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Ted
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page 11 excerpt (Local 30 & Local 30B....the "helper local")

Judge Bechtle found that on numerous occasions in the 20-year period 1968 through 1987, members of Local 30, or persons operating on their behalf:

- firebombed and otherwise violently destroyed the property of roofing contractors who, for one reason or another, had disagreements with the Union. On one occasion the destruction was effected via the massed efforts of about 1,000 men.

- savagely beat individuals associated with such companies (sometimes their owners, sometimes their employees), on occasion with rocks, clubs, axes, and/or monkey wrenches. The injuries resulting from such beatings included broken facial bones, broken ribs, punctured eardrums, and permanent neurological damage.

- threatened disfavored roofing contractors and employees with death and/or grave physical injury and with destruction of their property.

The Union’s membership often made it clear that it supported these methods of persuasion.

For instance:


- the Union paid for and installed a plaque at the Union hall that honored eleven members convicted of destroying a non-union contractor’s property.

- when union members were convicted and imprisoned for some of the above activities, the Union made payments to them and/or their families during their period of incarceration.

- the Union’s membership voted to allow some of the union’s business agents accused of such conduct to keep their union-supplied automobiles ‘‘if trial goes against them.’’

Based on the facts outlined above, along with many others spelled out in his decision, Judge Bechtle found that—many members of the Union as well as many contractors and subcontractors . . . fear attending meetings at the Union Hall. Their fear is that if they go to the Union Hall to resolve a dispute or problem or to negotiate a contract they will be outnumbered, intimidated, threatened with physical violence and/or physically beaten.

The court finds that such fear is actual, legitimate, and well-founded. Such fear stems from, inter alia,

(1) the undemocratic and brutal policies and practices of the former officers of the Union; (2) the perception that at least some
___________________________________
So much for playing the APATHY CARD!

The NYCDCC has been under Federal scrutiny since September 6, 1990, or a Grand Total of

8,237 Days or,

22.56 Years or,

1,176.71 Weeks

and has incurred the exact same issues as above. The Consent Decree has been in place for 18-years and the Court has just recently recognized that Prong 2....."restoration of Democracy" requires members be afforded the right to select their bargaining representatives for the purposes of negotiating their wages, hours, terms & conditions of employment.

The RO waxes vein about member apathy when he well knows the entire purpose of murders, beatings etc is to keep the members away and living in fear. This is how the UBCJA prefers it and it is how they got away with changing the by-laws & Constitution to allow McCarron to rule by autocratic fiat and establish his Dictatorship.

So 22.56 years in and the United States Attorneys Office and the RO has yet to scrub, sever & expunge the UBC Constitution for clear illegalities which conflict with Federal laws which they are sworn to uphold while monitoring the NYCDCC under the Consent Decree.

When an E-Board convenes and conducts a dog & pony show to Vote for a change to the By-Laws or the UBC Constitution - it is incumbent for the USAO/RO to review any & all proposed changes for conformance to all Federal Laws as well as landmark & and other precedent setting cases, whether from the NLRB, the Appellate Courts or the United States Supreme Court and not allow the illegal changes to become operative.

The U.S. Attorneys Office has failed miserably in this simple endeavor or exercise if you prefer; thus, by default of their duties, they have prolonged the Consent Decree by a decade or more.

This should have been done day one....March 4, 1994
______________________________________________

The By-Laws for the Benefit Trust Funds have not been published or released for review & scrutiny by the members in time for any review prior to their submission of a Vote on the Contracts.

Given they are "controlling legal documents", the current voting, w/o full disclosure and full transparency is a sham, as members have not been allowed to see the language giving effect to or controlling their Contracts (CBA's). There is no excuse for this whatsoever, not from the USAO, the RO or any of the new Officers or Delegates installed/seated.

Where are the By-Laws for the Benefit Trust Funds which control the CBA's?
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excerpt NLRB v. AMAX COAL 453 U.S. 322 (1981), Chief Justice Stewart at II

As explained by Senator Ball, one of the two sponsors of the provision, the "sole purpose" of 302 (c) (5) is to ensure that employee benefit trust funds "are legitimate trust funds, used actually for the specified benefits to the employees of the employers who contribute to them . . . ." 93 Cong. Rec. 4678 (1947).

Senator Ball stated that "all we seek to do by [ 302 (c) (5)] is to make sure that the employees whose labor builds this fund and are really entitled to benefits under it shall receive the benefits; that it is a trust fund, and that, if necessary, they can go into court and obtain the benefits to which they are entitled." Id., at 4753; see H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 66-67 (1947), 1 NLRB, Legislative History of the Labor-Management Relations Act, 1947, p. 570 (1948) (Leg. Hist. LMRA). The debates on 302 (c) (5) further reveal Congress' intent to cast employee benefit plans in traditional trust form precisely because fiduciary standards long established in equity would best protect employee beneficiaries.

For example, one opponent of the bill suggested that 305 (c) (5) was unnecessary because even without that provision, the "officials who administer [the fund] thereby become trustees, subject to all of the common law and State safeguards against misuse of funds by trustees." 93 Cong. Rec. 4751 (1947) (Sen. Morse). Senator Taft. the primary author of the entire Act, answered that many existing funds were not created expressly as trusts, and that 302 (c) (5)'s requirement that each fund be an express and enforceable trust would ensure that the future operations of all such funds would be subject to supervision by a court of chancery. 93 Cong. Rec. 4753 (1947). See also id., at 4678 (Sen. Ball); id., at 3564-3565 (Rep. Case, author of House bill on which 302 (c) (5) was patterned). In sum, the duty of the management-appointed trustee of an employee benefit fund under [453 U.S. 322, 332]   302 (c) (5) is directly antithetical to that of an agent of the appointing party. 14  
 
Whatever may have remained implicit in Congress' view of the employee benefit fund trustee under the Act became explicit when Congress passed the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829. ERISA essentially codified the strict fiduciary standards that a 302 (c) (5) trustee must meet. See 29 U.S.C. 1002 (1) and (2); H. R. Conf. Rep. No. 93-1280, pp. 296, 307 (1974). Section 404 (a) (1) of ERISA requires a trustee to "discharge his duties . . . solely in the interest of the participants and beneficiaries . . . ." 29 U.S.C. 1104 (a) (1). 15 Section [453 U.S. 322, 333]   406 (b)
(2) declares that a trustee may not "act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries." 29 U.S.C. 1106 (b) (2).

Section 405 (a) imposes on each trustee an affirmative duty to prevent every other trustee of the same fund from breaching fiduciary duties, including the duty to act solely on behalf of the beneficiaries. 29 U.S.C. 1105 (a).

Moreover, the fiduciary requirements of ERISA specifically insulate the trust from the employer's interest. Except in circumstances involving excess contributions or termination of the trust, "the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan." 403 (c) (1), 29 U.S.C. 1103 (c) (1). Finally, 406 (a) (1) (E) prohibits any transaction between the trust and a "party in interest," including an employer, and 407 carefully limits the amount and types of employer-owned property and securities that the trustees may obtain for the trust. 29 U.S.C. 1106 (a) (1) (E), 1107. 16 In sum, ERISA vests the "exclusive authority and discretion to manage and control the assets of the plan" in the trustees alone, and not the employer or the union. 29 U.S.C. 1103 (a).
 
The legislative history of ERISA confirms that Congress intended in particular to prevent trustees "from engaging in actions where there would be a conflict of interest with the [453 U.S. 322, 334]   fund, such as representing any party dealing with the fund." S. Rep. No. 93-383, pp. 31, 32 (1973). In short, the fiduciary provisions of ERISA were designed to prevent a trustee "from being put into a position where he has dual loyalties, and, therefore, he cannot act exclusively for the benefit of a plan's participants and beneficiaries." H. R. Conf. Rep. No. 93-1280, supra, at 309. 17    
_______________________________________

(2) declares that a trustee may not "act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries." 29 U.S.C. 1106 (b) (2).

McCarrons interests, given they are adverse to the interests of NYCDCC members, need not be considered by the Trustees. He has no right to appoint any Trustee for the NYCDCC benefit Funds; and, those so appointed need be removed - if necessary, by suit and an apppropriate order from the District Court.

Restoration of Democracy under Prong 2 of the Consent Decree requires that McCarrons last minute appointment of Trustees to oversee your funds, your monies are vetoed, given they expired with the expiration of the illegal extension of the LMRDA Trusteeship.

Repreresentatives of your choosing inures to the Trustees moreso than the Officers, as it is they who have unfettered fiduciary control to manage the benefit Trust funds for:

"the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan."

Violating NYCDCC Rank & File members fundamental right under 7 of the Act to "refrain from any & all activity"; and further violating said members "First Amendment right to Free Speech" via forced Mandatory Union Participation requirements put forth via words on Leaflets, Banners or Picket signs which is subsequently coerced by both  "fine" and "assessment" cannot be justified by the former Vacation Fund Trustees, nor the current Welfare Fund Trustees, nor can either action be falsely justified or considered as a reasonable expense of providing benefits to participants in the plan and their beneficiaries. [emphasis added]

Everything you have been told to date by the Trustees relative to the administration and collection of the monies for the Blue Card Extortion scam is illegal under the NLRA and ERISA. The UBCJA International, the District Council, the United States Attorney's Office and the RO's Office cannot salvage their bogus claims by arguing the refund of the fine monies negating the prior bad acts save them from fiduciary liability. It does not!

If it did, the corresponding duty incumbent upon said Trustees (fiduciaries) would be to issue the corresponding refund of the illegal assessments collected, which the Trustees to date have refused to do. In either instance, both actions - "fines and assessments" are clearly illegal.

There is a reason that the RO's Office limits the Local Union Officers monies available to hire legal counsel.....simply put, it is by design meant to prevent you, the rank & file members from securing the rights afforded under Federal Law and to see to it that a suit for the illegal Blue Card Extortion scheme nevers sees the light of day. The USAO, the RO, the lawyers for the DC & UBCJA International have counted on one thing...their superior legal knowledge as compared to that of the average rank & file member. They play this card to threaten, coerce and intimidate members into complacence and to taking no action to preserve what is rightfully their's....their Vacation Check, not some of it....all of it.

The fact is, they played their Brennan Card - to again coerce you into the false belief that they had the members interest as their only concern - and, to attempt to justify and preserve the remainder of their illegal Extorotion Scheme, so that Doug McCarron can roll it out on the National Stage and collect $256M per year at $500 Dollars per head and a subsequent $512M Dollars per year when he alone unilaterally raises the Fines via decree to all EST's to $1k per head. Of course, with the Brennan penance paid for their illegal acts came the obvious, the confidentiality agreement wherein they admit no wrong.

The question for those newly elected Executive Committe members, Council Delegates, Local Union & District Council Officers is very simple....when will you stand up and move to sue the Welfare Fund Fiduciary Liability Insurer's to recoup the ill gotten gains on behalf of your members which stand in direct and flagrant contravention to the NLRA, LMRDA & ERISA statute's?
____________________________

ERISA § 1108(c)(2) excerpt 2nd Cir. 8-20-02

Before: MINER and SACK, Circuit Judges, and BERMAN, District Judge.*
The clear intent of § 1108(c)(2) is to allow a fiduciary, which is otherwise prohibited from engaging in self-dealing transactions by § 1106, to receive reasonable compensation for the administration of a retirement fund. As we stated in Lowen v. Tower Asset Mgmt., Inc., 829 F.2d 1209, 1216 n. 4 (2d Cir.1987), "the services exempted under ERISA Section [1108(c)(2)] are services rendered to a plan and paid for by a plan for the performance of plan duties." Lobbying, and litigation against plan beneficiaries or their trustees cannot be construed "plan duties."
__________________________
Yet McCarron, Forde & Thomassen & Conboy did just that by running to Federal Court, intentionally with-holding the operative language of the fraudulently obtained & coerced Blue Card authorization forms from Judge Haight. They willfully perjured themselves in Court and submitted it as a simple internal rules change of the bylaws. Instead of calling it a "FINE" which all knew would be illegal under the NLRA, they lied and called it "working dues" to give it an air of credibility.

The United States Attorney's Office failed to bring these facts to light before Judge Haight and whether through gross negligence or direct collusion with the UBCJA & DC, failed to do its job as the party with standing that had a joint duty with the Independent Review Officer (IRO) Judge Conboy to defend the rank & file Union Carpenter interests, thus allowing the extortion plan to continue unabated from 1998 to the present day.

When the Federal Court allows a former federal Judge to march into its Courtroom and proffer a Hobbs Act racketeering scheme with a corrupt International Union, wherein the Judge was a chief author & proponent which it is assigned to monitor and correct under a Federal Consent Decree; and, when it allows the United States Attorneys Office to sit idly by and go along with the scheme, the Court itself loses all credibility and authority.

The Benefit Funds maintain Fiduciary Liability Insurance Policies for this exact kind of malfeasance, fraud and corruption. All of them have a 6-year statute of limitations.

It is time to put the Insurers on Notice and to file suit against the holders of said policies to recover the ill gotten gains and issue the rank & file union Carpenters their respective refunds with interest and all other damages and costs allowed by law.
Ted
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Re: BLUE CARD BOY LIVES

Ted
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oppose General President McCarron
From: The 1999 Bilello
email:
Date: 08 Apr 2012
Time: 11:42 AM

Comments

My Name is Michael Bilello. I have been a member of the United Brotherhood since 1975 when I joined Local 257. I am 42 years old, and currently a member of Local 157, which was formed when Locals 135 and 257 were dissolved in 1998. I came into the union as a first year apprentice and have worked every aspect of the trade from finish woodwork to dockbuiider diver. I have worked as a foreman and a job superintendent for much of my time in the union and I have worked out of the shape hall for the other half, serving much of it as a steward. In 1995 I ran for First Vice President of the District Council on the American Dream Slate, in the first district council election by the rank and file.

One of the main issues I had in that campaign was the failure of contractors to pay benefits to our members. Following that election I attended Cornell University Labor Studies Program from 1995 through 1998 and received certificates in Labor Studies, including Union Administration, Organizing, Collective Bargaining, Arbitration, Labor History, Construction Labor Law, Human Relations and Psychology for Unionists, Theory and Practice for Building Trades and Health and Safety. In August of 1997 I was hired to work for the Labor/Management Fund.

In April of 1998 I became a business agent for Local 157, which covers the eastside of Manhattan. I was fired from the business agent position in February of 1999 and went back to working on the tools.

What I saw while working for the L/M Fund and the council, was massive benefit fund fraud. A large amount of the membership was and still is working for cash. $25.00 an hour with no benefits was the average rate. This is one of the biggest problems for carpenters, dockbuilders, millwrights, timbermen, hod hoist carpenters, and millmen and all participants of our pension and welfare plans. Our council has to aggressively work to eliminate this problem.

When I worked in Labor/Management and as a business agent I aggressively attacked this problem. It is the primary reason I was fired as a business agent. I was told by Roger Newman, who was the supervisor of the district council at the time, that I wasn't "a team player".

 My response to this is "I wasn't part of their team, I was there to do the job for the members!" One way to keep our funds secure is to assure that for virtually every hour worked under our collective bargaining agreements, the negotiated contribution is made to our funds. When a new district council is elected in December, it also means new trustees to the funds will be selected with the final approval of the delegate body. This should mark the beginning of the process to bring administration and control of the funds back to New York.

This includes control of who the investment brokers are, the fees they are paid and overall fiscal responsibility. The rights and interests of our retiree members need to be addressed, insuring that every retired member who contributed to the funds for years, can live comfortably without having to choose between health insurance or eating. Active members need to know that they can look forward to retiring at the age of 55 and that the value of a pension credit will only increase from this point forward.

Aggressive enforcement of collective bargaining agreements, and insuring that benefits for all hours of work are paid into the funds will contribute to this goal. The Pension Benefit Guaranty Corporation in Washington will only pay 5 cents on the dollar if our pension plan is terminated. It is up to us to insure its well being.

Restoration of local union autonomy, including elected business agents is absolutely essential to the function and strength of this union. Business Agents need to do their jobs unimpeded by the threat of being terminated because of their politics, or their desire to do what's in the interest of their membership.

Job referrals and appointment of stewards in compliance with the consent decree, are functions that need to take place at the local level. This would require the amendment of the district council by-laws. Amending the by-laws is accomplished through the delegate body. Such changes would probably sail through the whole process in New York, but would hit a wall when they went to Washington for approval by the First General Vice President, as all by-law amendments must do.

Our next elected district council must look ahead to October of 2000 when the next general convention is held in Chicago and find candidates who are concerned about and will represent the rank and file members of this great union to oppose General President McCarron and his current administration. Vote ! December 10th and 11th, 1999 6:00 A M — 7:30 PM at the Borough of Manhattan Community College: 199 Chambers Street, New York, NY 10007 MICHAEL BILELLO For Executive Secretary Treasurer (EST) of The New York City District Council of Carpenters
_________________________________

So, the chronology is simple.

McCarron appoints Newman to supervise the NYCDCC

Newman & Conboy as IRO give birth to the BLUE CARD VACATION WAGE extortion scheme

Judge Conboy quits as IRO & goes to work for Doug McCarron

McCarron & the NYCDCC corrupt & now convicted & sentenced Forde Regime (which they all endorsed mind ya) keep the "extorted monies", or ill gotten gains if you prefer.


The UBC International also holds Fiduciary Liability Insurance for the misdeeds of it personnel. Time to dust off the policies ladies.
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Re: BLUE CARD BOY LIVES

marc ballroom
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ted ,in reading your last post about billellos 1999 report ,elections for ba,s should be in the near future.also interesting what was said then and what is happining now to the almost there/ retired members. Do you think there are two mike billellos
Ted
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Ted
This post was updated on .
marc ballroom - No I do not think there are two Mike Bilello's. You have another 13-years of history since 99, you have Harrington v. Herman which morphed into Harrington v. Chao (and which remains a precedent in one Circuit Court). You have an International, USAO & former IRO who were fully aware of Forde's misdeeds and sat back and watched while members were being fleeced and you have a corrupt NLRB, DOL and other federal agencies to deal with on top of the Federal Court. They have all been holding hands and singing kumbaya for 18-years under the Consent Decree in an Easy Money charade they feign as justice. Move this slow in the real world of business..."your fired"!

The Legacy of the newly elected Team shall come forth by the number one priority - how successful they are in Negotiating a New Contract. After 22-1/2 years total, 18+ on the Consent Decree, my advice is for all of you to focus there...collectively, through your Local Union Officers, Delegates and Executive Committee members all of whom you duly elected & trusted. Stand firmly behind them, support them and get this done and done right.

They're not going to do it all over-night as some wrongly expect. What you should expect is a listing of the priorities, finely tuned and limited to the big picture. Come up with too many and nothing will be accomplished...fine tune it, focus and watch and see what happens.

You elected them for 3-years and the others for 20-months. Follow the above and give it the time it needs to play out and you may be surprised. Also, no more PLA's. NYCDCC rank & file members have kicked back enough money in wages and benefits to the project owners, developers, GC's & Sub's. Meanwhile, wages at the DC, Contractor Associations and UBCJA International continue to rise - correct?

So, no PLA for Tappan Zee or Hudson Yards...that will be the L.U. Officer, Delegate & DC Officers collective defining moment as will the remainder of the contracts as previously noted here on 157.
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tester
JFK :
..."So let us begin anew--remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear. But let us never fear to negotiate.

Let both sides explore what problems unite us instead of belaboring those problems which divide us"...
Ted
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Re: BLUE CARD BOY LIVES

Ted
This post was updated on .
Inquiry Finds Ethics Violation at the N.L.R.B.

By THE ASSOCIATED PRESS
 
Published: March 23, 2012

WASHINGTON (AP) — A Republican member of the National Labor Relations Board improperly revealed information about the agency’s private deliberations to outside parties who had cases pending before the board, an internal government watchdog said Friday.

Enlarge This Image
 
Terence Flynn, a Republican member, improperly shared information, a report says.

The board’s inspector general said the member, Terence F. Flynn, violated ethics rules by sharing confidential details on the status of pending cases and the likely votes of other members before decisions were released. A report from Inspector General David P. Berry also faulted Mr. Flynn for a “lack of candor” during the investigation.

[hey, sounds like the Board case wherein the President directs a Regional Director to bury a case in exchange for a very large PAC contribution (via Citizens United v. FEC) toward his re-election bid in 2012...from the UBC no less.

President Obama appointed Mr. Flynn and two others to the board in January. The report said Mr. Flynn committed the violations when he was still a staff lawyer at the agency, before he was elevated to one of its five members.

The N.L.R.B. oversees union elections and enforces rules on unfair labor practices. Its five board members — three Democrats and two Republicans — function much like judges on an appeals court, hearing cases and issuing legal decisions.

The 13-page report does not suggest what, if any, penalty Mr. Flynn might face. But the matter has been referred to the Justice Department for further investigation, said Brian Newell, spokesman for Representative John Kline of Minnesota, the Republican chairman of the House Committee on Education and the Workforce.

Representative George Miller of California, the ranking Democrat on the committee, also called on the Justice Department to investigate.

“Such actions threaten the integrity of the board’s most vital operations,” Mr. Miller said.

A board spokeswoman, Nancy Cleeland, said Mr. Flynn had no comment on the report.

The report said Mr. Flynn committed most of the violations in 2011, while serving as chief counsel to the board’s other Republican member, Brian Hayes. It said much of the information that Mr. Flynn passed on was shared with two former Republican board members who now work as lawyers in private practice and represent clients before the board.

Mr. Flynn told lawyers representing clients before the board about predecisional votes, the early positions of other members, the status of cases and the analysis of a pending rule-making that was planned to streamline union elections, the report said.

In one instance, the report said, Mr. Flynn even helped an outside lawyer conduct research on how to attack a board rule that required businesses to put up posters explaining union rights.

“Given Mr. Flynn’s position as chief counsel and his years of service, he knew, or should have known, that he had a duty to maintain the confidence of the information that he received in the performance of his official duties,” the report said.
__________________________________________

Sounds like he needs more than a slap on the wrist or sanctions. Time to make an example of this clown and revoke his license to practice law! Where is Hilda Solis the Secretary of Labor or Obama on this? Must be campaigning in one of the 57-states huh?

The Labor Board as a political animal requires members who abide by the laws vs. those who flaunt them. Flynn needs to go, as do the other members who legislate from the so called bench they believe they sit on.  This includes the majority of the Boards Regional Directors, most of whom are flunkies in the legal community. Let's face it, they were not all-stars at law school and the Board tends to find their lawyers after the private sector chooses the best and brightest.

Workers who sweat and toil in the factories and American industry and business day in and day out deserve better, as does the business community, all of whom should be calling for his immediate resignation.

The Inspector General has an incumbent duty to reveal all cases which were compromised by Board member Flynn. The DOJ should also be seeking his bar card and removal from the Board as well.
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Re: BLUE CARD BOY LIVES

joey beads
In reply to this post by Ted
  why don't they let the retired guy picket for the members and drop our dues ?
Ted
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Ted
There you go......$476.71 for Dental & Vision.........$500 dollar Fine for exercising your NLRA, LMRDA & First Amendment right to "refrain from any & all activity". Sounds like an action plan to me. Let the retirees do all the leaflet, banner & picket duty they want, up to their max. limits for earned income per IRS reg's and NYCDCC Pension requirements. Could be a workable plan. When said Pensioner does his one 7-hour day, he or she gets their Dental & Vision paid for the year - given that it amounts to $23.29 dollar more than what those two benefits cost the fund on average in FY 2008.

The remainder of this policy must be scrapped; and, the members must be reimbursed for the extorted Vacation Wage, with interest. Again, time to file suit against the Fiduciary Liability Insurance provider, as the actions of Forde, Greaney & their Trustees were, are and remain clearly illegal and criminal. The Fed's already convicted them and this case is a no-brainer for any attorney worth his or her salt. (someone may be disbarred in the process...but hey, when you screw up that bad, it should be expected, unless you are a moron)
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Re: BLUE CARD BOY LIVES

John Musumeci
Administrator
I agree it's time to file suit against the Fiduciary Liability Insurance provider, as the actions of Forde, Greaney & their Trustees were, are and remain clearly illegal and criminal.
Ted
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Ted
This post was updated on .
{www.laborrealtionscounsel.com}

D.C. Federal Court Finds NLRB Election Rule Invalid for Lack of a Quorum
by Stefan Marculewicz on May 14, 2012


In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. The federal court opinion explained:

Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle. Regardless of whether the final rule otherwise complies with the Constitution and the governing statute – let alone whether the amendments it contains are desirable from a policy perspective – the Board lacked the authority to issue it, and, therefore, it cannot stand.

The court noted, however, that nothing prevents the Board – which currently operates with five sitting members – from voting on the rule again. In the interim, however, “representation elections will have to continue under the old procedures.”

For the time being, based upon the Court’s decision, it would appear that the new rules, which went into effect on April 30, 2012, will no longer apply to representation cases, and the Board will have to return to the previous system. That said, it is likely this decision will be appealed.

The Board may also opt to conduct another vote on the election rules with its current composition. Pursuit of this option, however, is no guarantee that the rules would pass judicial muster under New Process Steel. As we indicated in an earlier posting, there are significant questions surrounding the legal authority of President Obama to make the three “recess” appointments he made in January of this year. Therefore, any decision made by a Board consisting of those members is subject to being overturned because it lacks a quorum.


https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv2262-45


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