COLLECTIVE BARGAINING Section 17 NYCDCC By-Laws

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"The Executive Committee shall have the exclusive power and authority to negotiate, the Delegate Body to consider and finally approve, and the Executive Secretary-Treasurer to execute Collective Bargaining Agreements for and on beahlf of its affiliated Local Unions and as per the Constitution of the United Brotherhood. (THE FOLLOWING IS TO BE DELETED) except to the extent the International Union exercises its authority and jurisdiction."

ver-batim word for word account......

Per the First & Second IRO Report, and as per Kenneth Conboy's May 26, 2011 5-page cover letter to the Court, (Judge Berman), the source of the fraud and corruption has been eliminated, as has the presence of LCN forces. Parties have been subssequently convicted and sentenced, therein negating the need for the continuation of the LMRDA Trusteeship imposed by the UBCJA International.

Moreover, without more - it goes without saying that the International UBCJA and the District Council, the USAO, IRO and the Court executed a waiver of the UBCJA Internationals authority to control any portion of the curent Contract (CBA) Negotiations.

FACT: "EXCEPT TO THE EXTENT THE INTERNATIONAL UNION EXERCISES ITS AUTHORITY AND JUSRISDICTION" was deleted from the NYCDCC By-Laws and effectively waived by the UBC International and its counsel of Record, LATHAM & WATKINS, LLP.

Accordingly, the condition precedent to the current Contract Negotiations is the UBCJA International - and hence, Doug McCarron, Frank Spencer and John Ballantyne's express waiver of any right to negotitate any Contract, Extension or Successor Agreements for, on and in behalf of any Local Union Member of any affiliated Local Union in the New York City District Council of Carpenters.

These bylaws were not waived when the Contract Negotiations and the re-opener letters issued, prior to its expiration on June 30, 2011. Per Section 158 NLRA, all such letters were required to be filed and on Record by one or both parties 90-days prior to the start of talks. Said talks have been underway since January (off the record).

The illegal actions of the UBCJA International and the NYCDCC and the subsequent Unilateral actions of the USAO & IRO, with the UBCJA International and its counsel of record to change the By-Laws in question after the fact of the contract re-opener, do not negate these facts, nor do they preclude the filing of charges or suit in Court.

Any prospective candidate for EST better address this and you need to file for Injunctive Relief immediately.

The post facto Unilateral Change of the current By-Laws (which were in place unchanged prior to the Contract Re-Opener letters) to accomodate the illegitimate ends of the UBCJA Internationals desire to eliminate any/all remaining remnants/forms of Democracy and/or Section 7 & 8 rights under the NLRA cannot be legally imparted under the LMRDA Trusteeship.

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excerpt, pg. 9-11 pro-se movants Response to Restructuring Plan (final 6-29-11, 9:34 pm) filed/rec'd by the Court on 7-1-11

On March 1, 2011, the attorneys representing the NYCDCC, DeCarlo, Connor & Shanley, via letter, sought an opinion from the Court to allow “interested parties, e.g. parties to the collective bargaining agreement in question, the Consent Decree, and other interested parties, the opportunity to make submissions to the Court regarding their position on this issue, and have the Court issue a ruling that would clarify the matter.”

The reference was made to the “Final Order and Judgment of Contempt and Remedy” (Order) Docu-ment #961, dated May 26, 2009 with respect to the 67% - 33% Request System for Hiring Workers and Employees from the NYCDCC Out of Work List (OWL).
On April 1, 2011, via letter, DeCarlo, Connor & Shanley stated “The District Council wishes to ex-plore with the Association of Wall-Ceiling and Carpenter Industries of New York, Inc. (“Associa-tion”) a resolution of the issue that is acceptable to all parties and in accordance with the Order. Thus, the District Council does not wish to burden the Court at this time with this issue.” Brian F. Quinn subsequently withdrew the request prior to the April 6th Conferencing session.

On May 26, 2011, 10-days after pro-se Movants filed the motion for relief, the UBCJA International and the NYCDCC published a 138-page Restructuring Plan, wherein their new position to avoid compliance with the Court Order dated May 26, 2009 regarding the 67% - 33% mandate for hiring from the OWL would be replaced by the UBCJA & the Wall & Ceiling Association simply eliminating the 50-50 Rule and the 67%-33% May 26, 2009 Court Order altogether.

This “position” does not make law. Moreover, said position is an express violation of the Consent Decree and the Court Order and is a Unilateral Change to both the Collective Bargaining Agreement and the Consent Decree, as per NLRB v. Katz, 369 US 736 (1962); and, as such is a prima-facie vi-olation of NLRA Sec. 8(a)(5).

The UBC statements regarding establishment of a Labor-Management Corporation are patently false, as one already exists, and members are already taxed and assessed for these services.

Moreover, their commentary that “and Wall & Ceiling and other employers’ willingness to participate may well hinge on the elimination of the so-called 50-50 rule” (Latham & Watkins letter at pg. 5) have no basis in fact or law. It is what they stated in their March 16, 2011 letter, nothing more than a “position”.

Painting it as a critical issue with the notation that UBC General President Douglas McCarron will seek a meeting with Review Officer Dennis Walsh and Assistant United States Attorney Benjamin Torrance within the next ten days to do so”, lends no more credence to their position.  Ref: UBC at 5, Latham & Watkins 5-26-11 letter.

 Movants request the Court issue an Order to Show cause, per standard Court Motion Practice and force the UBCJA International and the NYCDCC and their attorneys to bring the issues they wish to discuss directly to the Court. Movants further request a permanent Injunction re-straining the UBCJA International & the NYCDCC from any further attempts to back-door their desire to re-write the Consent Decree terms and conditions to suit their own agenda, and that of what has proved to be a corrupt Contractor association via informal Conferencing pro-cedures and relaxed Court Rules.

The United States Court of Appeals for the Second Circuit which decision issued February 20, 2007 made it amply clear at 9, pg. 7 “The Consent Decree is clear and unambiguous. King, 65 F. 3d. at 1058. The Consent Decree addresses CBA’s in two places: Paragraph 4(f)(1)(b) and Job Referral Rule 5(B). However, neither empowers the Union to circumvent the Consent Decree through a CBA.”
At 14, pg 8, the Court of Appeals stated “Rule 5(B) does not permit the Union to make unlimited changes to the Job Referral Rules in a CBA. This is particularly true when Job Referral Rule 5(B) is read in conjunction with Consent Decree Paragraph 11, which again, provide that “[t}o the extent that this Consent Decree conflicts with any current or future rights, privileges or rules applicable to the District Council or its membership, the District Council…hereby waives compliance with any such right, privilege or rule an agrees that it and its membership will act in accordance with this Consent Decree.”
At 21, pg. 8, the Court of Appeals stated “Paragraph 11 further requires the Union to make the Job Referral Rules part of the District Council By-Laws.”

 Movants note that the UBCJA International, the District Council and its attorneys of record have failed to abide by this specific requirement and include the Job Referral Rules part of the District Council By-Laws as ordered by the Court. Ref: Exhibit “C”, pg. 94-125 of Latham & Watkins May 26, 2011 138-page Restructuring Plan – Status Update.

 Movants respectfully request the Court issue a contempt Order and direct the UBCJA, the District Council, its agents and attorneys of record and the Wall & Ceiling Contractor Associa-tions from making any such changes, and/or issuing any Unilateral Contract changes to the CBA’s; and again respectfully request that the contract be extended for one-year, to preserve and maintain the status-quo until such a time as the Local Union Elections, the District Coun-cil Elections are held, all statutory election challenges, if any are heard and resolved per DOL/OLMS requirements of law and the Local Union and District Council limited suspension of their autonomy is restored as required by law.

 Movants note that the 18-month statutory period has expired, and has a limited extension which we ask be rescinded by Order of this Court. Movants request that intervening supervi-sion be placed under the control of the United States Attorney’s office, the Independent Re-view Officer and the District Councils new Director of Operations.

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excerpt pg. 91 Response to UBC Restructuring Plan which Region 22 of the NLRB & the Board have in their possession since July 2011

EMPLOYER & UNION INTERFERENCE & DOMINANCE:
Illegal “VETO POWER” over labor organizations

In 167 NLRB No. 58, 9-15-67 the Board found “That save for Trusteeship, the general tenor of these powers is that of limited, procedurally safeguarded, restraint on local bargaining activity. The general president has no authority either to formulate local bargaining goals or to compel strike action to carry them out….While International Trusteeship could eliminate local control over bargaining, this danger appears to be somewhat muted by Sec. 302 of the Landrum-Griffin Act (29 U.S.C. Sec. 462) which limits the purpose for which trusteeships can be imposed, and the pursuit of a pension fund financial interest would appear to fall outside the list of permitted objectives.”
“In sum, we find the constitutional powers permit only a limited entry into local bargaining activity, and that the Local constitutes the initiating and pervasive force in dealing with employers.”

In 226 NLRB No. 65, 10-18-76 the Board found at, 489 at (3) “Not only do the Advisory Committee's bylaws and Respondent's admissions establish that one purpose of the Committee is to deal with the Respondent concerning employees' grievances, labor disputes, and conditions of work but, additionally, as described in detail supra, the employees in fact transmit grievances and requests to the Committee concerning their conditions of work which the Committee brings to the attention of Respondent which takes these matters under consideration and, in some instances, has acted favorably upon them.'

Based on all of the circumstances set forth above, I find that the Advisory Committee is an organization in which employees participate and which exists for the purpose, in part, of dealing with the Respondent concerning grievances, labor disputes , and conditions of work, thus, it is a labor organization within the meaning of Section 2(5) of the Act. I have carefully considered Respondent's argument that the Committee is not a labor organization because it does not bargain with the Respondent. Specifically, Respondent urges:

The committee is limited to advising management or advising the department heads as to the existence of a problem. They are free to propose solutions. However, they have no authority whatsoever, to take any final action or to negotiate with management regarding what action, if any, should be taken. Its function is solely to advise management of the existence of a problem, to delve into it and make the details available so that management can make an intelligent decision.”

 At 490, “The United States Supreme Court, however, has rejected this argument, holding that a committee may be "dealing with" an employer-and hence be a labor organization as defined in Section 2(5), even though its activities may not be equated with the usual concept of collective bargaining. N. L. R. B. v. Cabot Carbon Company, supra at 210-211, 214, and fn. 15. I am persuaded that the record herein establishes that the Advisory Committee was created and exists for the purpose, at least in part, of "dealing with" the Respondent within the meaning of Section 2(5) of the Act.”


… “Only after top management read over and approved the planning committees ideas was it given the authority to schedule elections to elect representatives for the advisory committee”.

At 490 at (2) “Respondent is in a position to exercise and in fact does exercise substantial control over the administration of the Advisory Committee.”

 Respondent exercised a veto power over the adoption of the Committee’s bylaws. The bylaws went into effect only after Respondent’s top management read an approved their content”

At 491, the Board stated “Based upon the aforesaid circumstances, taken in their totality, I find the Advisory Committee is a dominated labor organization, thus, as alleged in the complaint, I further find that the respondent has violated Section 8(a)(2) and (1) of the Act.”….” The statute forbids all employer interference or domination whether benevolent or malevolent, NLRB V. Newport News Shipbuilding & Dry Dock Co. 308 US 241 (1939).”
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The LMRDA Trusteeship and its extension have ended.

The Local Unions are the predominant and driving force behind Contract Negotiations, per the Supreme Court.

The UBCJA & NYCDCC have waived their former rights, under both the Consent Decree, the Garlock Doctrine and the expiration of the LMRDA Trusteeship to control or veto any successor agreements for the Collective Bargaining Agreement (CBA).

This of course includes the express langauage which the UBCJA International left buried within the new By-Laws, Section 20 for Collective Bargaining; noted as follows:


SECTION 20:   COLLECTIVE BARGAINING  
Following recommendation by the Executive Committee, the Council Delegate Body shall have the exclusive power and authority to ratify and execute Collective Bargaining Agreements for and on behalf of its affiliated Local Unions, except to the extent the International Union exercises its jurisdiction or authority. The District Council Delegate Body shall adopt rules and procedures governing the method of collective bargaining ratification. The District Council has established, and shall maintain, procedures for processing grievances filed pursuant to District Council collective bargaining agreements, as set forth in a separate document dated April 18, 2011, which is incorporated herein by reference.

With respect to Section 20, Sentence one...."except to the extent the International Union exercises its jurisdiction or authority" must be stricken from the new By-Laws as it fails to comply with the requirements of the NLRB Board precedent, Appellate Court decisions, the Consent Decree (waiver) and United States Supreme Court precedent.

SECTION 21:   TRUST FUNDS
All allocations from negotiated total wage amounts to annuity, health and welfare, pension, funds sponsored by the International, apprenticeship, labor-management cooperation committees, vacation savings, and holiday plans, shall be determined by the Council Delegate Body.

With regard to Sect. 21, thank you Dennis Walsh for acknowledging that the NLRA gave birth & rise to the unions, which were followed by the Collective Bargaining Agreement (CBA) for wages and terms and conditions of employemnt - long before the first Benefit Trust Fund was ever established by Local and District Council contract negotiations.

The prior contracts unilateral control via Sect. 8 is not controlling with regard to allocation of CBA contractual raises which were negotiated in good faith. For too long, through the advent of slick attorneys, over decades of experience, the UBCJA & its District Councils have been allowed to subvert the inherent NLRA rights for direct Local Union control and allocation of pay raises by and through the CBA's.

Benefit Fund attorneys devised slick ways to end run the law by declaring the Funds seperate entities on paper (in name only) to cover for their malfeasance, direct or indirect fraud, waste and abuse in managing the Benefit Funds and thus by Section 8, allowing them to cover it up, steal the rank & files wages via fine, assessment or simply taking 95% of every wage increase directly from the hard working men & woman, via fraud, artifice or superior legal knowledge not possessed by the average rank & file carpenter.

Section 21 above restores some semblance and reversion of control back to the rank & file Union Carpenter wherein through their duly elected Council Delegate Body, they may have a say into the allocation of their wage increases (emphasis added), as opposed to the Benefit Fund attorneys false belief that it all belongs to them, and the members have no rights under the law. These abuses as we are all aware were the proximate cause of the the criminal RICO actions in the first instance and the subsequent Consent Decree which followed. Recognition of this fact with tighter controls and monitoring of employees and the hiring of Mr. Epstein, combined with ridding the Council of the former CPA, audit firms and Attorneys who all willfully overbilled while simultaneously turning a blind eye toward their contractual duties should go a long way toward bringing the Consent Decree to an end.

Section 21 should be supplemented with an expedited process for member ratification/vote on all contractual pay raises as the Act was designed per the preamble & Section 7 and the Policy of the United States.

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NATIONAL LABOR RELATIONS ACT
 

Also cited NLRA or the Act; 29 U.S.C. §§ 151-169
 

[Title 29, Chapter 7, Subchapter II, United States Code]
 

FINDINGS AND POLICIES

PREAMBLE:{the Board & its IT Group has deleted this from the online version, the Congress has not so deleted this from the Act}
 
 Section 1.[§151.] The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce by (a) impairing the efficiency, safety, or operation of the instrumentalities of commerce; (b) occurring in the current of commerce; (c) materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods from or into the channels of commerce, or the prices of such materials or goods in commerce; or (d) causing diminution of employment and wages in such volume as substantially to impair or disrupt the market for goods flowing from or into the channels of commerce.
 
 The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.
 
 Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.
 
 Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow of goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce. The elimination of such practices is a necessary condition to the assurance of the rights herein guaranteed
 
 It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.
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The Statutory text or Legislative history of the NLRA (the Act) nowhere provides Benefit Trust Fund Managers any substantive rights to control or participate in the negotiation of wages, hours, terms or conditions of employment or allocation of same in any form or manner. Said right are retained by those within the appplicable bargaining unit, the rank & file member and no other - meaning, non-members or non-union members have no rights under the Act reardless of how many invidious ways they scheme up to end run the law.

The Fiduciaries and particularly the Officers and Delegates to the NYCDCC must act prudently to keep these rights intact.