I think in order to formulate an opinion on those subjects to withstand the rhetoric of the opposition, you have to know what the opposition is saying. Please read; It's long, but a must read.
NICE POST RICHARD. can you put up the gov'ts argument to this?
There are actually a lot of concerns & issues presented from the three varyings sides in this issue - the actors being the Government, the NYCDCC & the Contractor Association.
The central issue being the issues of "Full Mobility & Administration of the OOWL" which then brings forth NLRB Board precedent caselaw on old/settled issues & brings forth new ones regarding States Rights vs. Federal Rights in Employment Law via differing views regarding Right to Work States & Non Right to work States; thus putting on the table Federal Pre-emption Statutes of Labor Law application as related to interstate commerce under the NLRA.
In RTW States - the Contractors Association argument passes muster
In Non-RTW States - The Contractor Association arguments do not.
The issues discussed in the limited excerpt of the Gov'ts case presented (need to see the Gov't argument too) in the 50/50 system allow the contractor(s) to select 50% Company Men, and then on top of that allow them to make an additional 50% request by name (if they could fill all their positions) from the NYCDCC's OWL.
This methodology of selection pretty much gives the Employer Associations unfettered control of the entire Hiring Hall and all job opportunities from 50% min. limits to 100% are in their hands, under their power and leave the men with nothing.
In essence, it eqautes to a "closed shop or an exclusive hiring hall" arrangement. It flies in the face of major NLRB Baord precedent, re: Mountain Pacific.
On the other hand, the UBC's approach to grant the Contractor Association requests for "FULL MOBILITY" also flies in the face of the same precedent noted above and amounts to a collusive effort btwn. the associations & the UBC to flaunt & ignore NLRB Board precedent & Federal Labor Law as it now stands.
This approach would stand and be acceptable in RTW States. It does not however stand in the Non-Right to Work States like New York.
The NYCDCC is a non-profit Private Organization (on paper anyhow) and given the fact that New York is not a RTW State, the District Council can prescribe/preserve and make the jurisdictional claims for work to members of the Locals who live, work, shop, have homes & pay property taxes in those areas......"to the exclusion of all others", travelers included and/or undocumented/illegal aliens, cash workers, 1099 workers etc.
Ultimately this could come down to a battle between State Rights and those of Federal Pre-emption of States Rights via the Full Mobility obviously now in place. The NYCDCC is flat out ignoring the fact that NY is not a Right to Work State and is operating the OWL lists in cahoots with the Contractor Associations as if New York were a Right to Work State.
Mobility or Full Mobility is the enactment of RTW Laws is Non RTW states like NY. The UBC & Contractor Association have done an end run around the NY State Legislators authority to write, enact & pass legislation & declared by autocratic fiat that is be so, so it is so.
For those in Doubt, all RTW States are Non-Union, all Non Right to Work States are Union and allow Unions, via the security clause to exclude & limit membership and to create jurisdictional areas for work opportunities available to its members. The NYCDCC 50/50 Rule all but declares NY a RTW State and the UBC has usurped the powers of the State of NY to write and enact its own laws. It should be challenged & it should not stand.
That is what Mobility is, or Full Mobility.....the right not to exclude and the Elimination of the Union Security Clause under Collective Bargaining Agreements which allow Unions to have jurisdictional control of the areas they work & live in. The 50/50 rule as implemented here hands all control to the Contractor Associations & Thomassen, although playing the Court here as a caring fartherly figure, concerned for his boys....he is just play acting as he is deep in bed with them - against the interest of his membership.
re: The UBC's proffered test case, which the UBC created to test these very Waters in UBC Local 43 (McDowell Bldg & Fndn) and Kevin Lebovitz. Note that this case issued from Hartford, CT branch of the NLRB & that Harrington v. Chao issued from a case in Boston with NERCC. Note that the PNWRCC 20/20 system is being tried out on the West Coast....all of them evince diversionary tactics by the UBC.
They play around with differing issues in different courts & venues.....does anyone find it ironic that all these issue never were put forth in New York Courts? Of course not, then you'd get the Federal Scrutiny warranted under the consent decree, and their motivations and fraudulent acts would be seen for what they are and be exposed.
EXCERPT FORM FRANCIS MCARDLES's letter
The rules for selecting additional workers or for satisfying the geographic local requirement are critical to contractors. They need the ability to find people that can fit into the team, both with the skills and the ability to team. The contractor should never be asked to take on an unknown, with unknown job skills and unknown teaming abilities. They do not want to be burdened with someone who can't do the work required and/or work in a team. If they get such a person, they will just send them back. They will keep sending people back until they get what they need. To do otherwise is to cost them productivity and profit. Carrying someone who can't do the work or work in a team becomes apparent to all and punishes the team to which the individual is assigned. The team will throw them out if management doesn't, particularly in the many circumstances where there are bonus opportunities based on safety and productivity.
The current agreement, won at the table in the context of the over all financial and conditions settlement that was reached, provides that the contractor may request people to meet the District Council's 50% manpower off the out-of-work list by name, provided that they are from the local that geographically covers the work site. This provision, now under challenge by some, allows the contractor to expand its work force with people whose skill set and team building skills are known. It reduces the number of people that are 'tried out and sent back'. It cuts the contractor's costs of work force acquisition and the time and production lost on a job when someone who is referred cannot meet the expectations of the job.
Reading the above puts forth a lot of the "code" language GC's & Sub's use to get 100% of what they are after.....always, always attack the skill level of the worker, always say they are fat, drunk, stupid, lazy, unqualified etc....always claim they are not team players.
This is all part of the game they play to cover for the fact that they regularly abuse workers, do not come equipped with the proper tools, do not work safely and when caught, challenged & the steward or men on the job Question or challenge being made to work like dogs, or animals, like the non-union element - the modus operandi is to attack the man, make up some horse-shit about how they are not team players.
This crap is as old as dirt & should be recognized for what it is.
Bonus opportunities based on safety & productivity, CODE for "Piece Work" which they have been bringing back, albeit slowly
EVERYONE in the business, any trade or any other business for that matter has that very samll percentage of assholes with no skills, dead weight w/o a work ethic who want to stand around & do nothing all day....got that, but it certainly is not every single man or woman who comes out of a Union Hiring Hall.
You have to view it this way.....this shit, when presented in Court sounds true to people who've never been on a construction site, so with a good bullshitter & liar like Thomassenn & the Contractor Association's rehearsed speel & a smart ass attorney.....they can & do sell it, but overall it is a false proposition.
Ted: excellent post, I want to thank all of you for your intelligent postings. You are all providing great content and making this forum a wealth of information. This is a good issue to bring up at the Review Officers forum on Wednesday.
This post was updated on .
In reply to this post by John Musumeci
Your welcome John.
I believe we all need to think Globally and act Locally.....
as in these are Global issues for all UBC rank & file brothers & sisters....what effects one, effects all. Like I said, we are dealing with sophisticated players here (whom we fund & whom work against our collective interests, illegally & at will) who know how to play & how to game the system.
My aim is to expose the not so obvious methods they use to distract members, divide & conquer tactics....while we take the bait & run off to fight, x, y or z....the UBC International laughs while we spin in circles to address something.....meanwhile, they are off in another part of the Country playing an entirely different game in another Court or Jurisdiction.
Recognition of their tactics is step one, your petition with AUD is step 2 & collective input on a more National effort on our part will lead to Identification of the "core issues" impacting all of us.
In reply to this post by Ted
50/50 with the second 50% being requested by name, is somehow a threat to the union?
If all workers are union and are really the ones that pump the money into the "funds" that make it possible for the 900 hr members to get any benefits, at all, than what is the problem?
Is the idea to keep jobs and the companies that do them union? If so, what good is it to tie the hands of the contractors that choose to be union? The union can only control/punish those companies that are union. So, is it better to chase them away? If all contractors had to be union than there would be no need for the bullshit organising department, would there? The union is an honorable idea, but, the truth is we are only as strong as the the money we generate. The only way we can remain competative is by putting our best men in the game. Often these are men who are affiliated with a company, as long as they are union men who cares how they got there? A steward should be there to keep things under a watchful eye, and all contractors and their men should be audited in some fashion. It is unfortunate, but, "stupid, lazy, unqualified etc", is not the small fraction that you would like to believe. What you will find is that almost never is that the case with company men who are real union men, ones that are the heart, soul, bread and butter. They are the ones that keep the fucking lights turned on and make it possible for the less hireable to go to the doctor. No offense.
"(Company workers) are really the ONES that pump the money into the "funds"
"the truth is we are only as strong as the the money we generate."
"company men who are real union men, ones that are the heart, soul, bread and butter. They are the ones that keep the fucking lights turned on and make it possible for the less hireable to go to the doctor."
To the CHOSEN ones (the ones with a name): Stop recruiting people into a union thats collect dues and allows two classes on workers under its' name. What is the point of being in a union that cannot in good faith give you an opportunity to make a living?
Contractors don't go union because they embrace the union spirit. Unions represent the able labor that they need in order to make money. The exchange is fair treatment, workable conditions, benefits and ABOVE ALL a living wage. You seem to have it backwards.
Richard - John..forgive the length of post, but bare with me here: Nice brief by the AG. I presume he won the argument/case. WHAT EXACTLY IS THE RULE AS OF TODAY? WHAT RULINGS/ADJUSTMENT WERE MADE?
On top of what was going on here, via the Consent Decree mandate(s) for the 50/50 Rule lie cases which have been around forever & which were not cited by the AG or the UBC.
In 125 NLRB 116 Local Union 2058 UBC & Harold & William Stockton (12/23/59) the relevant issues were on Closed Shop Preferential Hiring & Oral Contracts with the BA & Contractors involved for Exclusive & Discriminatory Hiring Hall arrangements without complying to the standards in MOUNTAIN PACIFIC 119 NLRB 126 (12/14/57).
For this blog I will focus on Mountain Pacific as related to the NYCDCC 50/50 Rule, noting that the UBC INT'L is fully versed & aware of these cases & their implications relative to Thomassens false statements...being mindful of their flouting or ignoring caselaw when it suits their 'position' or 'claim'.
Excerpt - Mountain Pacific, pg 894
"The Respondents do not, nor could they, argue that this contract does not make employment conditional upon union approval, for a more complete and outright surrender of the normal management hiring perogative to a union could hardly be phrased in contract language. The fact that the Agreement limits the unions exclusive control to a 48-hour period after a request for employees is immaterial, for if unqualified exclusive delegation of hiring to a Union is unlawful, the vice is not cured by a reversion back to the employer of the hiring privilege after the union is unable to enjoy the power conferred upon it."2
The 50/50 Rule as used in NYCDCC gave unqualified exclusive delegation of hiring to the Contactor Associations vis a vis the Employer.....& NYCDCC's excuses made through Thomassen via the vice being cured by giving it back to the Contractors was Thomassens & the UBC International's way of reverting back to preferential hiring through exclusive halls - simply through a rules change which they knew all too well to be facially unlawful.
MOUNTAIN PACIFIC - cont. (cruxt of the ruling) pg. 897
"The basis for a Unions referral of one individual and refusal to refer another may be any selective criterion which an employer could lawfully utilize in selecting from among job seekers.
We believe, however, that the inherent and unlawful encouragement of union membership that stems from unfettered union control over the hiring process would be negated, and we would find an agreement to be nondiscriminatory on its face, only if the agreement explicitly provided that:
(1) Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies, or requirements.
(2) The employer retains the right to reject any job applicant referred by the union.
(3) The parties to the agreement post in places where notices to employees and applicants for employment are customarily posted, all provisions related to the functioning of the hiring arrangement, including safeguards that we deem essential to the legality of an exclusive hiring agreement."
3-KEY POINTS HERE: from above
...."for if unqualified exclusive delegation of hiring to a union is unlawful, the vice is not cured by a reversion back to the employer of the hiring privilege"......"after the union is unable to enjoy the power conferred upon it".
THE NYCDCC & Thomassen knew full well that they were violating the consent decree & simply passed the magic ball to the employers, and then utilized the false claim or premise that it was on or upon the will of the men and was for their benefit via Greaneys bogus claims. I am amazed that it took the government 4-years to catch on??? That leads to having to ask, who if anyone from the government side of the equation was in bed with them....who sold out?
As far back as December 14, 1957 the UBC's constitution, bylaws, rules, regulations, policies, requirements and the obligation are moot....facially unlawful.....or if you prefer, of no force or effect. This case was reiterated by the Board in UBC Local 43 & Lebovitz, wherein they ruled the UBC Constitution & Bylaws to be facially unlawful, without qualification.
The current BTEA PLA Hiring Language & Referral policies all need to be opened up & examined for compliance to NLRB Board precedent.....are they running an Illegal Exclusive Hiring Hall another words? Who is running it, the employer side, or the union side? Does it comply with Federal Labor law & the Consent Decree or was it another give-away/kiss to the Contractor Associations? Obviously, the $7.54 an hour reduction in the Total Package was, as is the Unilateral Wage Freeze by Spencer to with-hold the $2.13 raise, but are NYCDCC members getting slammed with the trifecta & being deined work on these projects too, in favor of the company men? Another words, the UBC lost in 2005, so are the PLA's simply another means or vehicle for them to end run the Gov't Consent Decree again, and thus hand the hiring back to the employer associations & go back to how it was before the suit in 2005?
Obama didn't say theyr're busting civil, public service unions he said this is Union Busting!
THANKS CEO DOUG McCARRON/NYCDCC.
And just how did you accomplish this.
By watching every council violate every Provision & Doctrine Ted quotes !
In reply to this post by Pete
Pete - If you have followed my posts to this & other issues, you would see that I believe we over Organize and that we take in too many unqualified members (mud buckets carpenters w/ the K-Mart tools, no skills, no experience, pass the drug test, congratulations...your now a UBC Journeyman).
If we are gonna put our best men in the game - should that not also include the management level, should we not have BA's & Organizers with actual real world business experience?
How does building signs from strapping for politicians, handing out bumper stickers & t-shirts, doing turkey raffles & the occasional volunteer project make you qualified to run & manage a corporation that takes in $600M to $900M per year (round numbers 17-25M Man-Hours @ $35 per hour).
They may be great guys, but it hardly qualifies them to run & manage the men or the funds and that fact, that our managers are unqualified & in many cases inept/incompetent in these matters leads to a similar idea or program for NYCDCC Management - what they apply to the men, should be applied to them by Walsh.
We get a 50/50 rule, they get a 50/50 rule & Walsh as the RO knows what this entails.....the NYCDCC hiring from outside of the UBC & bringing aboard qualified & competent help to manage the funds. That would apply to the field as well.
How can you be a business manager if you have never managed a business? Some of these people couldn't balance their checkbook, let alone run a company.
There are schelps from the hall & there are those from the the Companies as well, don't kid yourself. I'll take a man with a work ethic who may be lacking in certain skills over a back-stabber or brown-noser any day of the week because you can work with that, a man who shows up on time, who is willing to improve as you can make something of him.
You cannot work with men who sell their fellow union brothers down the river, stab them in the back, stand around shooting the shit in packs while deriding men from the hall....that occurs regularly, all over the UBC nationwide....company guys know it & the
so do the hall guys.
Many of these so called company men, the ones you claim generate all the UBC cash are the ones engaging in the back room deals, paying company guys full rate while making hall guys work for cash under threat of going back on the list & are the same firms doing the wink-wink deals with the illegals & the 1099 crowd.
A lot of these Company hero's you love are the ones who push men to work like assholes w/o the proper tools, safety in place etc....and a lot forgot where they came from - many never should have been accepted into the UBC in the first instance.....the UBC takes in a lot of shitbags from the Non-Union element when these men are 30, 35 + and they bring with them their rat ways of doing things and their rat ways of treating people.
Don't be so damned naiive & pretend you don't know these things.
Instead of talking shit & selling your fellow union brother or sister out, next job, try teaching them something to make them a better worker, unless of course your afraid you will lose your job to them.
"Many of these so called company men, the ones you claim generate all the UBC cash are the ones engaging in the back room deals, paying company guys full rate while making hall guys work for cash under threat of going back on the list & are the same firms doing the wink-wink deals with the illegals & the 1099 crowd. "
This makes no sense whatsoever, the companies hire from the list because they are forced to, they are not going to pay this guy cash for the simple reason that the only reason they hired him was to show a match on the stewards report. If they were looking to get anyone to work for cash, it would be the company man where they might be able to avoid hiring another guy from the list.
The most effective thing which the union could institute as regards to organizing, would be to get members to simply register to vote.
In reply to this post by Ted
"over Organize" - I think this an accurate observation. And since Organizing was taken over by McCarron, can we speculate why he would do this?
Can it be to combat the decline in union membership? The organizing dept. tells us when X amount of jobs b turned over. we all applaud. Better yet: how many members were taken off the list because X "turn over" jobs? Or did we GAIN more members? Many who will be in the list with the rest of us?
Company men: IF we knew that the best carpenters became company men, I would not have a problem with it. But c'mon Pete, we all know that is not the case. Every fucking company crew has the no-nothing guys, the family relatives, the friends, the see-nothing guys, the guys that take all the shit, and THEN you have the able carpenters that carry the load for the rest. I have wondered how companies put up with so much waste? We are a UNION, every member in good standing has to be given the opportunity to make a living. No ifs and buts about it; we cannot exist as a trade union supporting two class of workers; the continuously working ones and the continuously unemployed.
Mack's take on the 50-50 & request system.
In reply to this post by anon
You obviously have not been exposed enough to projects where supers & company men get nailed by internal audits for "ghosting employees" or for employing the 1099/cash workers or the illegals & the owner comes in & fires the lot of them. When they're publicly traded Construction firms, that will never be reported to the stockholders or to the press.
Ok - so everyone is registered to vote & the UBC organizes every last man who is a carpenter in NY....Call it 50k men for example.......now you have it all & what does that get you? Simple - low ball bids, half assed work, more cash workers & more unemployment.
The Project base & Labor market anywhere U.S.A. is only so large.....enough with the Organizing bullshit for a while (take a 3-year hiatus) and focus on the men we do have.....when the District Council achives 95% employment, then & only then shall they open up and consider taking on more Apprentices. We retire a man in 30, not 40 or 50 years....one out.....one in.
What is the average no. of man-hours for NYCDCC for the last 25 years? What were the peak requirements for men & man-hours? Identify the highs & lows and put forth a model we can sustain, so we train the best & we keep them steadily employed a min. of 2080 hours a year @95% employment levels.
You will say what do we do when we cannot meet manpower requirements in boom years....simple, we take on prevailing wage workers give them a base 401k contribution & basic health care based on hours worked like eveyone else and when the peak is done, they walk away clean & so do we.....no liability for Pension or Annuity....we have them sign a waiver. If in the process we identify potential candidates for later admission, we put them on a list, again like the old days.
Try that model & we'll get back to picking from the cream of the crop of the new recruits & PW workers who may want to check us out from the other side. The UBC's never ending organizing campaign is a giant make work program for a lot of Organizers who simply produce no short or long term results for the members.....it needs to end.
When you fail to produce in the private sector - your gone, end of story.....but not in the UBC....30, 40 & 50% UE in some Locals, but they will waste your time & resources chasing & spending money on lawyers chasing down some OT for some illegal aliens working some meaningless non-union site....chicken shit TI work on a 7-11....then some idiot gets the idea to make it a national campaign........and the make work program for unelected & unaccountable hacks continues unabated.
Sometimes the truth hurts anon, and Richards posting of the caselaw behind the 50/50 rules shows that as well as the arrogance of the UBC & Thomassen. It didn't work then & it aint working now.
You got a better model, ok, let's hear it....post a new topic and we'll all be glad to chime in. Try a more proactive approach though. I like many other guys want to hear good ideas and it does not matter whose it is.
I find it hard to believe that you are attempting to answer my post, your comments have very little to do with what I posted.
The reason that it is important to have a majority of members registered to vote is because politicians check, we have around 30%, so 157 would have say 3500 potential votes to offer, this matters when you are trying to get politicians to sign PLAs. This matters when you are looking for labor friendly legislation. More voters equals more jobs.
As for your theory on taking in prevailing wage workers during boom times, this was tried by other unions in the past. It has many downsides, besides the fact that I disagree with it, I think it shows a mindset which is totally against what a union is supposed to stand for.
I think that it is indicative of a faction within the union who feel they are owed a job, you aren't, this is supposed to be a labor organization, not an employment center.
we are never going to achieve a 95% employment rate, so it is matter-less. You also have not said what will be done with workers from companies whose workers vote to become unionized.
And the number of union workers is shrinking, so there is a whole lot of work out there that we are not doing.
Also, there is the fact that contractors are going to be more likely to work non union if they know we are not going to hassle them. So no organizing is just a no go, choosing to try and be an elite members only club is ridiculous
and you did not address what i said in relation to the fact that an employer is least likely to choose a guy from the list to pay cash, you seem to have created some other nonsense and attempted to put my name with it..
oh, and I actually would prefer the 50/50 that the contractors want, currently we are supporting half of New Jersey and God knows how many other states, you ever consider how much smaller the list would be if only NYC carpenters were on it? Thomassens 50/50 was 50% from the local whose jurisdiction the job was in and 50% from anywhere.
the current list has me meeting guys from all around the country who ride our list until their name comes up and then earn big money here with no sacrifice on their part.
The companies way would also weed out a lot of the dead weight. and it exceeds 5%, more like 25% dead weight, not counting stewards.
I don't believe I said that companies "embraced the union spirit". Seems to me your reply was just pasting my post, why did you stop and make that point up? Yes there is an occassional relative who knows nothing, but , compared to shit that more than occassionaly comes off the list, it is'nt even worth mentioning. The saddest of all facts is our membership is two classes of workers and alot of good men will rot on that fucking list because of the shit. The economy has alot to do with the wait for a job, but, when a qualified worker is 5364 on the west side alone you can bet your ass that alot of unqualified,make a quota, no tool having, should never have been let in the union garbage is gonna work before him. So, you tell me. The bosses cousin who is not taking up space on the bullshit list or the thousands ( yes thousands)
of hacks that the coalition would not have even represented. You choose.
No hard feelings, I havent read many of your post. I dont believe that we would be to far apart on many issues, maybe we can discuss further over a beer one day.
"occassional relative who knows nothing, but , compared to shit that more than occassionaly comes off the list, it is'nt even worth mentioning."
It's obvious what the real problem is: you! How can you tolerate two classes in your union? We all agree that we have our share of unqualified workers taking space on the list. But why does that list even exist? Oh yeah, good able carpenters stayed home while the BAs took care of their own and their favorite contractors.
I know that you didn't say that companies "embraced the union spirit", obviously you don't either.
In reply to this post by anon
Anon - How can they ride the List, when a NYC local is not their home Local....how do they even get on it? Is this part of the corruption or is there a loophole via the International Agreement.
I can see how, via a full mobility provision they come in for a specific job. But once the job is done, do they not go back to their own state? Why would the NYC Locals, knowing they were outsiders allow out of state travelers to put their name on your OWL's?
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