– Re: R.O. Walsh Forum
In Reply To
The key & controlling issue is Harrington v. Chao, wherein the UBC through a test case or a set up case if you prefer, through NERCC Counsel & and incompetent EST (Tommy Harrington) proffered a bogus case through the local courts in Boston, MA through this decision in the First Circuit (neck & neck with the 9th Circuit for having Liberal & inept judges and for being overturned by the Sup. Ct.) which ENDED RANK & FILE UBC members right to VOTE in secret ballot Elections.
The UBC International has used this case to wipe out the vote in the other 49 States & District of Columbia - and this is exactly where Conboy (ironic name....con-boy, rather descriptive of what he is doing). They fully intend on doing it in NYCDCC, which remains the last bastion of UBC Democracy which Locals have a right to vote in "direct elections" under the Constitutional provision of "One Man, One Vote".
Below are controlling issues & central themes which when, reviewed, disected & discussed intelligently with Dennis Walsh, will give way to "causes of action" in a seperate suit and/or form the basis of a brief, which he as an Attorney can surely draft.
SECTION 151, last par: POLICY of UNITED STATES
...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.
The controlling portion of this last phrase is: BY PROTECTING THE EXERCISE BY WORKERS....by who....."BY WORKERS"......of what: "FULL FREEDOM OF ASSOCIATION, SELF ORGANIZATION", and for what purpose: "DESIGNATION OF REPRESENTATIVES OF THEIR OWN CHOOSING".....of who's own choosing....?....."WORKERS".....of what right under full freedom of association (a protected Constitutional Right under the First Amendment).....h'mm - that would be "DESIGNATION OF REPRESENTATIVES" of "THEIR OWN CHOOSING".......whose choosing?...."THEIR OWN".....who is "THEIR".........OH, WHAT DO YOU KNOW MR. WALSH, WE GET RIGHT BACK TO...."BY WORKERS" in a simple straightfoward line.
HOW DO WE DESIGNATE PEOPLE IN THE U.S.A. TO REPRESENT US....YES, WE HAVE ELECTIONS.....WHAT DO ELECTIONS ENCOMPASS.....H'MMM - THAT'S RIGHT DOUG.....a VOTE.
WHO IS THE REPRESENTATIVE?..answer....see DEFINITION BELOW...."THE INDIVIDUAL"........who is the "INDIVIDUAL"........?........"THE WORKER"......who are the workers in the UBC?.......the RANK & FILE!!
Accordingly, the myth, premise, fallacy proffered by the UBC that Council twits & appointees, at will employees beholden to an autocratic & dictatorial EST somehow choose the representatives for the rank & file......."for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection", as guaranteed by the NLRA ACT, under the preamble & POLICY of THE UNITED STATES is a false dogma or proposition, or more aptly - a boldface lie by slick UBC International & Council Attorneys.
Moreover, all COUNCIL & INTERNATIONAL PERSONNEL are SUPERVISORS as defined under the NLRA, NLRB Board precedent, Appellate & Supreme Court precedent & accordingly this is not a dual agancy status test as the Supreme Court has ruled long ago that you cannot have a seat at both sides of the negotiating table!
That is the essence of Harrington v. Chao & the end result is that the First Circuit clowns, in ruling 2-1 have circumvented via judicial decree (legislating from the Bench) Congress's express authority under the U.S. Constitution to write/author, amend and approve legislation. This usurption of authority is not well tolerated by the U.S. Supreme Court.
Also of note, one ruling in one appellate court certainly does not establish precedence. Yet, McCarron & Conman Conboy are gonna run to Court with this case & try to bullshit their way past this new Judge Bermen...hopefully he is up to the task & will see it for what it is.
Also of note is, should he issue a Ruling under the consent decree agreeing with the UBC & Chao....Walsh, as our lead attorney has a duty to preserve all rights and all avenues of Appeal & the last stand is at the Supreme Court.
SEC. 1  - LAST PARAGRAPH under POLICY OF UNITED STATES (PREAMBLE)
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.
Sec. 2. [§152.] When used in this Act [subchapter]--
(1) The term "person" includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in cases under title 11 of the United States Code [under title 11], or receivers.
(2) The term "employer" includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.
[Pub. L. 93-360, § 1(a), July 26, 1974, 88 Stat. 395, deleted the phrase "or any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual" from the definition of "employer."]
(3) The term "employee" shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act [this subchapter] explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.
(4) The term "representatives" includes any individual or labor organization.
(Labor Organization can be "one person, one individual", see other posts on topic)
(5) The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
(6) The term "commerce" means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country.
(7) The term "affecting commerce" means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.
(8) The term "unfair labor practice" means any unfair labor practice listed in section 8 [section 158 of this title].
(9) The term "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
(10) The term "National Labor Relations Board" means the National Labor Relations Board provided for in section 3 of this Act [section 153 of this title].
(11) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(SUPERVISORS = ALL COUNCIL & INT'L UBC EMPLOYEES are EXCLUDED FROM INCLUSION WITH THE RANK & FILE UNDER THE NLRA, the ACT, with very limited exception, mostly limited to the Hospital environment......thus preventing them from sitting at both sides of the NEGOTIATING TABLE, which the UBC & COUNCILS DO IN THE OTHER 49 STATES UNDER CHAO)
(12) The term "professional employee" means--
(a) any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes; or
(b) any employee, who (i) has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph (a), and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraph (a).
(13) In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.
(14) The term "health care institution" shall include any hospital, convalescent hospital, health maintenance organization, health clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged person.
[Pub. L. 93-360, § 1(b), July 26, 1974, 88 Stat. 395, added par. (14).]
Sec. 6. [§ 156. Rules and regulations] The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act [by subchapter II of chapter 5 of title 5], such rules and regulations as may be necessary to carry out the provisions of this Act [subchapter].
RIGHTS OF EMPLOYEES
Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].
SAME EXERCISE AS ABOVE:
The controlling phrase or word is: EMPLOYEE, as defined above.....who is the employee?
The RANK & FILE EMPLOYEE!
Who gets to "BARGAIN COLLECTIVELY THROUGH REPRESENTATIVES (INDIVIDUALS) OF THEIR OWN CHOOSING"?...........the employee, the rank & file
Who does not get a VOTE in the above matter? The "AT WILL, APPOINTED UBC UNION ORGANIZER, BUSINESS AGENT, BUSINESS REPRESENTATIVE, COUNCIL EMPLOYEE, JANITOR, KEYSTONE COP AND/OR MCCARRONS PERSONAL BODY GUARDS"....as defined under the Act & as listed and referenced in a length list of precedent caselaw...pretty much every case to come down the Pike since 1935!!!
Why don't they get a VOTE in the Matter? Because they are SUPERVISORS under the NLRA & they are beholden to the new UBC CORPORATE MANAGEMENT & CEO'S as they are now adding to Council Letterheads in CA & Oregon and other Western States.
CONBOY & MCCARRON & THEIR LEGAL COUNSEL uppon APPEARING NEXT TIME BEFORE JUDGE BERMEN TO ARGUE SAID MATTER ARE HOPING & PRAYING HE DOES REALIZE THESE VERY BASIC FACTS.
UNFAIR LABOR PRACTICES
Sec. 8. [§ 158.] (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title];
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 6 [section 156 of this title], an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;
The above portion of Section 8 is included to lend context:
Allowing the UBC INT'L & its 38 COUNCIL EST's / CEO's appoint/name their "at will Employee Supervisors" AS "delegates" IN A "REPRESENTATIVE DEMOCRACY"
which is exactly what Doug McCarron pitched & sold under Harrington v. Chao is a flase proposition, false dogma & boldface lie.
The "definitions" of the NLRA & legal definitions control the use of words under the Act & the term "representatives" has been duly defined as the "INDIVDUAL" both in the Preamble & POLICY OF THE UNITED STATES, SEC. 151, & UNDER SECTION 7.
BLACKS LAW DICTIONARY, 8TH ED.
REPRESENTATIVE:, n. One who stands for or acts or behalf of another
INDIVDUAL:, adj. 1. Existing as an indivsible entity 2. Of or relating to a single person or thing, as opposed to a group.
SEC. 151 & SEC 7, UPON DEFINING OF THE WORDS, CROSS OUT REPRESENTATIVE, INSERT "INDIVIDUAL"......SEC 151 "BY WORKERS" controls the remainder of the paragraph and in SEC. 7 "EMPLOYEES" controls the remainder of the paragraph.
The NERCC Counsel & McCarron & the International UBC Counsel, in arguing Harrington v. Chao, did so under the false prestense/claim of "REPRESENTATIVE DEMOCRACY" per the known Legal Definition of the NLRA Text as written, but not as the "words" of the text were defined under the NLRA or common legal usage as noted above.
Accordingly, the UBC's & NERCC's argument of "representative democracy" fails, per common legal usage, per Supreme Court standards for plain & clear meaning as to how Congress wrote the Act and specifically intended it to be read and it also fails under common English usage for the terms and words used/chosen to describe the rights & protections afforded under Law.
The very beginning of the NLRA Act, the preamble and Policy of the United States explains in great detail the reason why the law was enacted in the first instance, that being the unequl bargaining power between corporations & their collective association, might & wealth as compared to that of the every, ordinary man or individual and the great disparity between them.
The U.S. by encouraging collective bargaining and providing indivdual workers/employees the right to free association and to individual one man, one vote rights was evening the playing field in negotiating wages, benefits & working conditions. It should come as no surpris ethat this legislation was enacted post reconstruction, anti-trust & robber baron days, from 1865-1935 when management crushed the individual, killed workers via accidents, keystone cops, private security details at plants and factories and brought about the collpase of Wall Street & the Great Depression after 60 years of going unchecked and havong free reign do do whatever they damn well pleased to the working man, including murdering them.
The NLRA simply evened the playing field and thus established the Middles Class. The decision in Harrington v. Chao eliminates those rights, turns the clock back 100 years & hands the keys back to the wolves gurding the chicken coup - and in the UBC's case, the chicken coup is access to control of the Funds which amount to hundreds of billions of Dollars.
Step 1 for Dennis Walsh is to thus preserve the rank & file employees unmitigated right to have a seat at the table, via direct election, one man, one vote election of the rank & file - employee to sit at the table for Contract Negotiations - period.
Step 2 for Dennis Walsh is to comprehend & distinguish the known Legal Definitions of Right to Work States from Non-Right to Work States and why the Union Security Clause allowed under the NLRA do not allow Doug McCarron & the UBC International to come into a Council in a Non Right to Work State and dictate a policy of "FULL MOBILITY" throughout a Council as it end runs State Legislatures perogative to write it's own laws. Under the Federal Constitution, all issues not specifically delegated to the Federal Government are left to the States and Right to Work legislation and/or Non Right to Work legislations is one of them. Accordingly, this is not an issue of Federal Pre-emption wherein the NLRA or NLRB Board can over-rule State's Rights issues and author legislation to run and manage their own affairs. New York is not a RTW State, neither are any of the 6-New England States, thus Harrington v. Chao is ripe to be overturned on these base contentions - and if Walsh & his team of attorneys are worth their salt, they will find 20 more.
Step 3 for Dennis Walsh is to realize that under Chao, the Councils have become the Locals and are thus subject to the provisions of the LMRDA & OLMS and all eelction criteria therein. re: McCarron cannot be allowed to have it both ways.
the rank & file rest....what say you Mr. Walsh?
Mr. Musemeci...if you can, please foward this to Mr. Walsh - Thank You.
re: if you can get 10 people to meet with him on one issue - he will meet with them...