Reply – Re: Out of Towners?
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Re: Out of Towners?
— by Ted Ted
re: Proposed W & C CBA Full Mobility & area's of the law which the DC Officers cannot ignore in their attempt to fashion any agreement or subsequent Motion to Judge Richard M. Berman, the U.S.A.O. & the R.O.
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pg. 12, July 14, 2011 2:08 am
In reply to this post by BKLYN
BKLYN, PG. 60-67 Excerpt, response to UBC's Restructuring Plan dated May 26, 2011 & which has been submitted to the Court.

NATIONAL LABOR RELATIONS ACT (NLRA) SECTION 14(b)
APPLICABILITY TO THE NERCC/UBCJA’S MOBILITY CLAUSE


14(b) [Agreements requiring union membership in violation of State law] Nothing in this Act [subchapter] shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law. Currently, there are 28 - Non-Right to Work States & 22 - Right to Work States.

NLRA Section 14(b) operates in two ways:
In all Non-RTW States (Union), Federal Pre-emption is applicable to the entire Act. In RTW States (Non-Union), Federal Pre-emption is waived under the Tenth Amendment, and the NLRB Board & General Counsel are free to apply the “Mobility” Provision to said Non-Union States, as State law(s) are controlling in the Right to Work (RTW) States.

 In Non-RTW States (Union States), the 12-31-09 slip Opinion issued in Lebovitz has no application. The reason is fairly obvious, once people understand the base NLRA 9(a) & (8f) Representation issues as applicable to the Construction Industry. Once a “bargaining representative” has been chosen and subsequently “certified” by the NLRB; and, after the Contractor, Firm, Organization complies with the proviso to Sec. 8(a)(3) regarding the collection of Dues & Initiation Fees and the requisite 30-Day hold for Sec. 9(a) and 7-Day hold for Sec. 8(f), and after Workers or Employees are properly advised of their Beck Rights, to refrain from any & all activities under NLRA Sec. 7 – application of the Lebovitz Ruling is out.

The CBA is a “contract”. Within said contracts for particular Locals, District & Regional Councils of the UBC are well Defined Geographical Jurisdictional areas, comprised of cities, towns, counties or combinations thereof as the case may be in a particular Non-RTW (Union) state. The “Defined Geographical Jurisdiction” of a UBCJA Contract (CBA) is “intangible property”.

In [Kaiser Aetna v. United States, 444 US 164 (1979), the United States Supreme Court noted….”one of the most essential sticks in the bundle of rights that are commonly characterized as property – the right to exclude others”.

In a RTW State wherein Federal Pre-Emption operates as a waiver under the Tenth Amendment, Workers & Employees are free to be employed, or work anywhere they so choose, without exception, thus – the UBCJA signatory General Contractors or Subcontractors conducting their Union operations in any of the 22-Right to Work States, where a Union Security Clause is of no force or effect, in such States, the Mobility Clause would fall under the respective State Law.

In a Non-Right to Work State such as New York and the remaining 27-non RTW States, and as here applicable to NYCDCC Union Carpenters & all other Trade Unions operating Exclusive or Non-Exclusive Hiring Halls (re: Employer Chooses, Worker or Employee Solicits or Union Hiring Hall(s) select candidates for employment), the intangible property right of exclusion, to the defined geographical jurisdiction becomes effective, or operative.

 After all other factors are properly weighed and compliance is had, the Locals are thus free to enforce the right of exclusion limiting this to the defined geographical jurisdiction, to the benefit of their properly indentured workers and employees; and, are free to employ their members first, all members – to the exclusion of all others.

The exclusion principle includes, Non-Union Workers, UBC Union Travelers – whether inter-state or intra-state, 1099 Independent Contractors, Cash Workers and Illegal Aliens/ Undocumented Workers & any others working off the books.

The NLRB Board, the UBCJA or their 36-subordinate Regional or District Councils cannot usurp the Congressional Authority to legislate. The UBC Constitution & Bylaws have been ruled “facially unlawful” as per slip opinion No. 354-122 Carpenters Local 43 (McDowell Building & Foundation) and Kevin Lebovitz dated 12-31-09. The union-security clause explicitly requires compliance with the Union’s constitution and bylaws, a requirement which violates Section 8(b)(1)(A). See Stackhouse Oldsmobile, Inc. v. NLRB, 330 F.2d 559, 560 (6th Cir. 1964) (finding that employer did not violate the Act by refusing to sign a collective-bargaining agreement in which the union-security clause unlawfully required compliance with the union’s constitution and bylaws)

Even when illegal provisions within both documents are properly severed and they are then deemed to be in compliance with all mandates and requirements of law – the UBC Constitution & By-Laws do not supersede or usurp Congressional authority legislate.

UBC Attorneys for NERCC claim that the Mobility provision of the Contract (CBA) is an exception to the general rule, and this is where it runs afoul of the Law and where it must fail as a matter of law. This is also a clear example of the UBC International and its Regional/District Councils shopping NLRB Board Regions for favorable decisions gained in one Region and unilaterally applying the decision and order to all 50-States.

 The NLRB Board and its General Counsel and Regional Director have failed to enforce the specific requirements of their original or amended Decision & Order (D & O) or to correct and strike the illegal languages from the NERCC 6-State Contracts (CBA’s). Their participation in this case, as a means to backdoor a legislative amendment to the NLRA, in collusion with the UBCJA warrants an investigation into the Inferior Agency of the Executive Branch…the NLRB & its Region 1 Office by the United States Department of Justice or Office of the Inspector General. The Board Agents and the General Counsel are sworn to uphold the law, not circumvent it for political reasons. Their actions are grossly negligent and warrant at a minimum fines and suspensions form the practice of law.

Douglas J. McCarron, Frank Spencer and John Ballantyne have suspended all NYCDCC Local’s autonomy as a fraudulent means to change the By-Laws, exercise a veto power, and to put forth a Restructuring Plan which incorporates 100% Full Mobility throughout the NYC District Council of Carpenters and one which incorporates the entire State of New York; and which merges and consolidates Local Union rank & file workers/employees. {Restructuring Plan dated 5-26-11 at pg. 131 at 2. and at By-Laws Section 38, pg. 123 of 138, or pg. 28 of bylaws as a separate document}

 Under the law(s), this is fraudulent inducement, as the UBC International, with malice & fore-thought has intentionally deceived the US Attorney, the Independent Review Officer and the Court by with-holding these facts from them. Coupled together with the current 67% - 33% Rule, favoring Contractor Association workers and employees, wherein Contractors can increase the 67% ratio with other added rules under the Consent Decree, the Mobility provision fairly said – eats away an additional 30% in the Contractor Association and Contractor favor and effectively grants exclusive control and license to them of the Union Hiring Halls and the Out of Work List (OOWL). Not only does this disenfranchise workers and employees who rely upon the OOWL & Hiring Hall Rules under the Consent Decree, it is openly discriminatory and provides the  Contractor Associations a monopoly control over all hiring and violates the terms and conditions of the Consent Decree.


In NLRB Mountain Pacific, page 894, the portions not over-ruled, the Board noted:
"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 prerogative 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


Mobility & Primary Job Situs:

PRIMARY JOB SITUS – PER THE UNITED STATES SUPREME COURT, NLRA Sec. 14(b)
U.S. Supreme Court
Oil Workers v. Mobil Oil Corp., 426 U.S. 407 (1976) Oil, Chemical & Atomic Workers International Union, AFL-CIO v. Mobil Oil Corp. No. 74-1254 , Argued March 29, 1976  Decided June 14, 1976  426 U.S. 407  Syllabus


Section 8(a)(3) of the National Labor Relations Act permits union- or agency shop agreements between employers and unions, but § 14(b) authorizes States to exempt themselves from § 8(a)(3) and to enact "right-to-work" laws prohibiting union or agency shops. About two years after petitioner unions and respondent employer had entered into an agency shop agreement covering seamen employed on respondent's oil tankers, respondent brought suit claiming that the agreement was invalid and unenforceable because it violated Texas' right-to-work laws. Since, inter alia, all final decisions for hiring the seamen are made in Texas, the majority of the then employed seamen reside in Texas, and respondent's personnel records are maintained and payroll checks are written there, the District Court held that Texas had an "intimate concern" with the agreement, notwithstanding that the seamen spend the vast majority of their working hours away from Texas on the high seas, and that therefore Texas' right-to-work laws were applicable under § 14(b) and rendered the agreement void and unenforceable. The Court of Appeals affirmed, stressing that Texas was the place of hiring.
Held:

1. lt is the employees' predominant job situs, rather than a generalized weighing of factors or the place of hiring, that triggers operation of § 14(b), and, under § 14(b), right-to-work laws cannot void agreements permitted by § 8(a)(3) when the situs at which all the employees covered by the agreement perform most of their work is located outside of a State having such laws. Pp. 426 U. S. 412-419.

(a) Insofar as § 8(a)(3) deals with union and agency shop agreements, it focuses both in effect and purpose on post-hiring conditions, conditions that have a major impact on the job situs. Pp. 426 U. S. 414-416.

Page 426 U. S. 408

(b) Similarly, § 14(b)'s primary concern is with state regulation of the post-hiring employer employee-union relationship, the center of which is the job situs, i.e., the place where the work that is the very raison d'etre of the relationship is performed; and because of this close relationship between § 14(b) and job situs, § 14(b) does not allow enforcement of right-to-work laws with regard to an employment relationship whose principal job situs is outside of a State having such laws. Pp. 426 U. S. 416-418.

(c) Under the job situs test, as opposed to a "place of hiring" test, the possibility of patently anomalous extraterritorial applications of any given State's right-to-work laws will be minimized, and parties entering a collective bargaining agreement will easily be able to determine in virtually all situations whether a union or agency shop provision is valid. Pp. 426 U. S. 418-419.

2. Under the job situs test, Texas' right-to-work laws cannot govern the validity of the agency shop agreement in question, because most of the employees' work is done on the high seas, outside the territorial bounds of Texas. It is immaterial that Texas may have more contacts than any other State with the employment relationship involved, since there is no reason to conclude under § 14(b) that, in every employment situation, some State's law with respect to union security agreements must apply, and it is fully consistent with national labor policy to conclude, if the predominant job situs is outside the boundary of any State, that no State has a sufficient interest in the employment relationship, and that, hence, no State's right-to-work laws can apply. Pp. 426 U. S. 420-421.

504 F.2d 272, reversed.

MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J., filed a concurring statement, post, p. 426 U. S. 421. BURGER, C.J., concurred in the judgment. POWELL, J., filed an opinion concurring in the judgment, post, p. 426 U. S. 421. STEWART, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 426 U. S. 422.

Page 426 U. S. 409

A) UBCJA INTERNATIONAL - RESTRUCTURING PLAN dated May 26, 2011

The Consolidation and re-chartering of new Local Unions will illegally shift some 8,000 rank & file workers/employee Union Carpenters from the specific protections accorded under the Consent Decree, and take then permanently & forever outside of its control and protection. Accordingly, the RO must reject and veto the proposed Restructuring Plan. The entire predicate behind it is to evade the Consent Decrees terms & conditions and the Court must recognize and see it for what it is – a plan of evasion and deception. The fact that it is being done so boldly is ample proof of the UBC’s contempt of its own members, and more importantly, contempt for this honorable Court.

The same methods of fraudulent inducement apply in the same manner and form to the 100% Mobility Rule. This rule/exception to the rule is proffered as being required to accommodate the “sophisticated Contractors” all of whom work in multiple UBC intra-state Jurisdictions throughout New York and inter-State Jurisdictions.

While these so called sophisticated Contractors are working in Non-Union States, running double-breasted non-union entities and/or alter-ego corporations, State Law for Right to Work States prevails as it applies to the 100% mobility rule issued in NLRB No. 354-122, Carpenters Local 43 (McDowell Building & Foundation) and Kevin Lebovitz, slip opinion dated 12-31-09 as per the NLRA Section 14(b) deferral granted to the States so choosing enact Right to Work legislation.

 In the State of New York and specifically within the NYCDCC any & all form of the Mobility Exception must fail as a matter of Federal Law, the Federal Constitution and the separation of powers doctrine embedded therein AS MOVANTS so noted within our June 1, 2011 response to the UBCJA Internationals counsel of record Latham & Watkins, LLP. The United Brotherhood of Carpenters & Joiners of America and the National Labor Relations Board stepped far outside their area of authority allowed under the Federal Constitution, noted as follows:

In NLRB v. Marine Workers, 391 US 418 (1968), Justice Douglas noted - ”There cannot be any justification to make the public processes wait until the union member exhausts internal procedures plainly inadequate to deal with all phases of the complex problem concerning employer, union, and employee member. If the member becomes exhausted, instead of the remedies, the issues of public policy are never reached and an airing of the grievance never had. The Court of Appeals recognized that this might be the consequence and said that resort to an intra-union remedy if it imposed unreasonable delay or hardship upon the complainant.” 379 F2d. at 707.

Congressman Griffin at 13 “[T]he proviso was not intended to limit in any way the right of a union member under the Labor-Management Relations Act of 1947, as amended, to file unfair labor practice charges against a union, or the right of the NLRB to entertain such charges, even though a 4-month period may not have elapsed”.

Notwithstanding this fact lies the mandate of the Consent Decree that under 17 – “Retention of Jurisdiction and Application to the Court. This Court shall retain exclusive jurisdiction to supervise implementation of this Consent Decree and shall have exclusive jurisdiction to decide any and all issues arising under the Consent Decree, and any and all disputes growing out of the issuance, interpretation or application of this Consent Decree.” “At 18, Future Actions. Except as specified in paragraph 15, nothing herein shall preclude the Government, or any of its department or agencies, from taking any appropriate action in regard to any of the defendant signatories hereto in reliance on any federal laws.”

 Thus, per 17 & 18 and per the Supreme Court ruling in NLRB v. Marine Workers, 391 U.S. 418 (1968), there is a bar to member remedies which precludes action through the NLRB. Given said preclusion and the fact that the NLRB is a quasi-judicial Federal Agency, with limited quasi-legislative rule-making authority under the Administrative Procedure Act (APA), with final rule-making per Federal Register procedures; and, the fact that the specific issues of fact & law are predicated upon the Federal Constitution, the Board and its General Counsel are barred from ruling upon the issues presented, thus, the Constitutional issues are properly before this Court as jurisdiction & venue are proper.

The UBC’s Section 38 Mobility provision and the application of Section 4(A), 4(B) & 4(C) of the proposed Restructuring Plan & By-Laws wherein all executive, legislative, judicial and plenary powers are vested in an all consuming dictatorial EST indicate the UBCJA’s willful & wanton violation of the NLRA, LMRDA and their intentional and fraudulent deception to the Court, which by design are intended to frustrate and exhaust the member. Accordingly as per NLRB v. Marine workers “instead of the remedies, the issues of public policy are never reached and an airing of the grievance never had.” Moreover, since the UBCJA International has the same very limited legislative role, specifically qualified to rulemaking under the same grant afforded to the NLRB, that of an Inferior Department of the Executive Branch, when one or both cross the line by subsuming the powers of all three branches, Movants note the following:


 “The separation of powers can be violated in two basic ways. One involves the aggrandizement of one branch at the expense of the other, Buckley v. Valeo, 424 US 1 (1976)….Another occurs when a law, despite no inter-branch aggrandizement. “disrupts the proper balance between the coordinate branches” by preventing one of the branches from accomplishing its constitutionally assigned functions” Nixon v. Adm’r. of Gen. Servs. 433 US 425 (1977).”

The Department of Labor and the National Labor Relations Board, its General Counsel, Officers, Regional Directors and employees are an Inferior Branch of the Executive Branch of Government as established by the United States Constitution. The NLRB Board and all of its constituent employees of the Federal Government Executive Branch quasi-judicial agency who has limited powers of Rule-making authority under the Administrative Procedures Act and which, when properly followed, its Board & General Counsel and constituent employees are mandated to follow specific requirements to enact rule changes through the Federal Register.

In A.L.A. Schechter Poultry Corp. v. UNITED STATES, 295 U.S. 495 (1935)

As Chief Justice Hughes amply stated at 8 “The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the [295 U.S. 495, 529]   imposed limits because they believe that more or different power is necessary”.
 

 The above statement by Chief Justice Hughes applies to the NLRB, its General Counsel, Officers, Attorneys and agents and to Douglas J. McCarron & the UBCJA International. That they and/or the UBC International General President, the NYCDCC, the Building Trades Employers Association (BTEA), the Building Construction Trades Council (BCTC) or any other Contractor Associations claim a Local, Regional or National crisis or extra-ordinary circumstances exist; and/or that new or emerging sophisticated Regional Contractors corporate business plans require, or a grave national crisis exists within the Construction Industry that require an exception are flat out wrong. Moreover, the NLRB cannot legislate from the Bench as was done in Lebovitz.

{The newly elected D.C. Officers & Executive Board and their counter parts at the W & C cannot negotiate away cases which have not been overturned as related to their never-ending desire to implement full mobility in direct violation of Federal law & standing decisions of the Supreme Court of the United States}


The UBC International shopped this test case throughout the NLRB Regions as a means to end run Congress’s legislative authority. The UBCJA’s limited legislative roles ascribe to the same restraints imposed upon each of the 3-branches of government under our Federal Constitution. The NLRB Board issued the decision & order, failed to enforce it and has allowed the UBC International to apply this policy for 100% Mobility to the full complement of 50-States. Its application and enforcement can only be effected in Right to Work States and no other. Under 28 USC, Sec. 2403 & USC Sec 517, the Attorney General of the 28 Non-Right to Work States need to be notified and joined. Movants request an Order from this Court directing the USAO to provide the notifications required by law to the effected 28 states.

The NLRB is a political animal and can and often is driven by political agenda’s predicated upon which party appoints whom to serve and for reasons peculiar to their political views. When the Board steps outside of its legal authority, in limited rule-making changes; and when it transcends that line and crosses over into the line of the Congressional authority to legislate – that decision and order must be over-turned.
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Where is the USAO's letter to the Court on these issues? Where is Cary-Kane's, the ERISA lawyer of the year?  The silence is deafening in that Courtroom, less the lies from the former Judge Conboy who is now destroying his own Judicial Legacy and from McGuire relative to the Benefit Funds.

Incompetence is not generally a cause for suspension or fines by the State Bar. However, perjury, contempt or malfeasance and collusion in an extortion scheme are not something to trifle with.