Reply – Re: 50-50% or 67-33% or 90%-10% EXCLUSIVE NYCDCC HIRING HALL
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Re: 50-50% or 67-33% or 90%-10% EXCLUSIVE NYCDCC HIRING HALL
— by Ted Ted
International Union of Operating Engineers, Local 627 April 17, 2013, excerpt @ pg. 7-9

Three things here:

1)   Thank Gene Clarke for standing up for your rights & note that his case remains "good law" and is being cited continually through the present day

2)   With respect to Court mandated 67% - 33% Hiring/Referral Hall OWL procedure ordered by Judge Haight via a standing order dated May 26, 2009; the 33% Hiring Ratio ordered by the Federal District Court is a mandate to the District Councils Officers, Agents, Principals and Contractors for a 33% EXCLUSIVE HIRING HALL arrangement.

3)   See citation @ Footnote 13 at bottom of page relative to your ability to view the OWL Hiring/Referral list

Understand your rights here.

Under Judge Haights Court Order, the 67% of hires subject to "Non-Exclusive Hiring Hall" status are employer direct hires or those you have shaped and/or solicited directly upon your own volition & effort.

The remaining 33% of Hires by definition & by Court Order are "Exclusive Hiring Hall" status as all such hires must come directly from the District Council's court mandated Out of Work List (OWL), thus, they cannot be accorded "non-exclusive status" contrary to the District Council's false claims of non-exclusive status, the District Council & the corrupt Wall-Ceiling & Carpentry Industries of New York, Inc. must comply under the terms and conditions of the March 3, 1994 Consent Decree and via the District Councils waiver of rights under same.

Wall & Ceiling has no legal "standing" in the Federal District Court to either contest the decision & order of Judge Haight, but more importantly to hold the contract (CBA) negotiations hostage for 2+ years under the directed and extortive threat that should the D.C. refuse to turn over 100% control of all hiring to it and its Contractor members, that the Wall-Ceiling Contractor Association will refuse to negotiate in good faith or bargain to impasse.

It is an untenable and very illegal attempt to extort the rank & file union carpenters federally protected section 7 rights from them and it cannot be sustained under any rationale or legal basis. Their actions here, in concert with McCarron, Conboy, Quinn and others are the very predicate of criminal racketeering that the Consent Decree was allegedly designed to cure. Conboy's cutely worded letter describing the extortion effort, via the May 26, 2011 Restructuring Plan does not save any or all of their actions from the inherent illegality of the conduct.

It's quite obvious here that the DOJ's USAO, the UBCJA International, DC & Contractor Assocation attorneys all failed labor law 101. The Federal District Court standing order of Judge Haight cannot be negotiated away by a corrupt International Union, District Council or Contractor Association or their associated legal counsel of record.
 
_______________________________
OPERATING ENGINEERS LOCAL 627 NLRB BOARD D & O 4-17-13, excerpt pg. 7-9

III. DECISION AND ANALYSIS
A. Alleged Denial of Requests to Examine the Out-of-Work List

The Acting General Counsel, at complaint paragraphs 5(b) and 6, alleges that the Union violated Section 8(b)(1)(A) of the Act by refusing Loerwald’s requests to examine the exclusive hiring hall work referral list and referral records.

Section 8(b)(1)(A) of the Act provides that it is an unfair labor practice for a labor organization or its agents to restrain or coerce employees “in the exercise of the rights guaranteed in section 7 [section 157 of this title]: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.” The rights guaranteed in Section 7 include, in pertinent part, the right “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.”

As a judicially recognized protection implicit within the Act, a union has a duty of fair representation to its members. See Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). More specifically, in Vaca v. Sipes, 386 U.S. 171, 177 (1967), the Supreme Court defined this duty as “a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” The Board thus has determined that a union’s breach of the duty of fair representation qualifies as an unfair labor practice under the Act. See Miranda Fuel Co., 140 NLRB 181, 185 (1962), enf. denied 326 F.2d 172 (2d Cir. 1963).

Within the Union’s broad duty of fair representation there exist a number of more specifically defined obligations in the exclusive hiring hall context. One of these obligations is that unions must provide their members access to its job referral
lists so that the members may determine whether or not their referral rights are being protected. See Operating Engineers Local 324, 226 NLRB 587 (1976); Electrical Workers IBEW Local 24, 356 NLRB No. 89, slip. op. at 1 fn. 3 (2011). The Board has explained that a member’s right to referral information must be respected by the union because it is the member’s only means to “fully investigate whether or not [their] referral rights [are] being protected.” Operating Engineers Local 324, supra. Accordingly, the Board has found on numerous occasions that a union operating an exclusive hiring hall commits an unfair labor practice when it denies members access to its referral records. See, e.g. Plumbers Local 32, 346 NLRB 1095, 1096 (2006); Boilermakers Local 197(Northeastern State Boilermaker Employers), 318 NLRB 205 (1995) (finding that the Respondent union arbitrarily denied one of its members a photocopy of referral records in violation of Section 8(b)(1)(A)); Iron Workers Local 709, 296 NLRB 199 (1989) (affirming the administrative law judge’s decision that union violated the Act by refusing to let a members review the out-of-work list). Some Board cases have articulated a more stringent standard, requiring the union to permit inspection of the referral records upon a “reasonable belief” that the union treated him unfairly. See, e.g., Boilermakers, supra.

Turning to the instant case, even under the more stringent standard, I find that Loerwald reasonably believed she was being treated unfairly by the hiring hall for a number of reasons. As discussed fully in the statement of facts, she believed that the Union should have referred her to the Northwest Crane job because she was the first qualified member on the OWL, yet she was never sent to the jobsite. Farris acknowledged that
she should have been sent. (GC Exh. 3, pp. 31–34.) In addition, Loerwald learned that Farris was not moving members to the bottom of the list after three job refusals, as the bylaws require. (GC Exh. 3, p. 30.) Finally, I find the repeated denials of access themselves, and the arguments that ensued during Loerwald’s attempts to see the OWL, reasonably caused Loerwald to believe it was not being properly maintained.

It is undeniable that on numerous occasions the Union refused Loerwald access to the OWL. Beginning on November 2, both the Union’s business manager, Stark, and the Union’s
business agent, Farris, continuously withheld the referral list from Loerwald, citing to a variety of inadequate excuses

On November 2, Stark told Loerwald that it was not the Union’s policy to show members the OWL every day. (GC Exh. 8, pp. 2–3.) At the end of their discussion, when asked if he
was refusing Loerwald access to the list, Stark replied, “You’re on the out-of-work list, and that’s all I need to tell you. Go talk to your attorney about it.” (GC Exh. 8, p.7.) I find this to be an unlawful denial of the Charging Party’s right to review theOWL.

On November 23, Loerwald again requested to see the OWL. This time Farris denied her access, stating that he did not currently have a copy printed out and that he was installing a new system on his computer that would make it impossible for her to see the list until after Thanksgiving. (GC Exh. 15.) Given the nature of the OWL and the constant updates it requires, I find it implausible that Farris was unable to produce a copy of the list for Loerwald at this time. Additionally, the Union’s bylaws explicitly state that the OWL “shall be posted at Local 627’s office.” (Jt. Exh. 4.) This rule thus demonstrates the
Union’s recognition of its own duty to have the list available to its members, and therefore runs contrary to Farris’ excuses.13 I therefore find this also to be an unlawful denial of Loerwald’s rights.

On November 30, after Thanksgiving, Loerwald attempted to follow up on Farris’ promise; however he again refused her access to the OWL. This time Farris claimed that she was not allowed to see the list because he had written notes with other members’ personal information on it. (GC Exh. 16.) I find this excuse to also lack merit. The record has shown that the OWL is a computer-generated document. Therefore if the notes Farris
referred to were hand written, he could have easily printed out a new copy of the list. If the notes had been made on the computer, this too could have easily been cured with some form of redaction or revision. Indeed, under Farris’ rationale, the Union could feasibly never have to show members the list because of personal notes on the document. This runs contrary to the Act and established precedent, and I find that it was an unlawful denial of Loerwald’s right to inspect the OWL.

On December 5 and 14, Loerwald again asked Farris if she could see the OWL. On both occasions, Farris refused. Accordingly, I find that these two instances amount to unlawful
denials of Loerwald’s right to see the OWL. At hearing, I granted the Acting General Counsel’s request

Therefore, I find that on January 4, 2012, Respondent again unlawfully denied Loerwald access to the OWL. Finally, in its brief, counsel for the Acting General Counsel notes two other occasions where the Union denied Loerwald access to the OWL that were not originally pleaded in the complaint. Counsel contends that because all of the relevant witnesses were available and testified about these instances, they were fully litigated and should be ruled on as well. I agree, and further find that the allegations are closely connected to the complaint allegations. See Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990); HiTech Cable Corp., 318 NLRB 280, 280 (1995), enfd. in part 128 F.3d 271 (5th Cir. 1997).14

The first additional alleged denial occurred on October 20, 2011. On that day, Loerwald requested to see the OWL, and Farris showed her the page she was on but did not let her see any other pages. (Tr. 61–62, 259). I find that this sort of limited access to the OWL was inadequate for allowing Loerwald to “fully investigate” whether or not the list was being properly maintained. Operating Engineers Local 324, 226 NLRB at 587; (Tr. 61). Therefore, because Farris stopped Loerwald from reviewing the entire OWL, I find that the Respondent again committed an unfair labor practice.

Lastly, the Acting General Counsel alleges that on January 17, 2012, Loerwald once more attempted to the see the OWL but was again denied. The transcript of Farris and Loerwald’s recorded conversation from that day reveals that she told him she was there to see the OWL. Farris’ eventual response, however, was to deny her access to the list and tell her that she should go “speak with [her] attorney” about it. (GC Exh. 22).
Accordingly, I find that the Respondent again unlawfully denied Loerwald her right to review the OWL.15

Respondent argues that once she was taken off the OWL, Loerwald had no right to see the list, and her attempts to do so were useless and futile. Respondent cites to no authority, most likely because none exists. The cases cited at the outset of this section hold that the right to see the list belongs to the employee-members, not just to those who are on the list.16 Certainly a claim, such as here, that a member was improperly
removed from a referral list, is “reasonably directed towards ascertaining whether the member has been fairly treated with respect to obtaining job referrals.” NLRB v. Carpenters Local 608, 811 F.2d 149, 152 (2d Cir. 1987), enfg. 279 NLRB 747
(1986). The GENE CLARKE case
 I therefore reject this argument and find that Loerwald had a right to see the OWL even when her name was not on it. To hold otherwise would sanction the act of arbitrarily removing a member from the list.

Overall, I find that each of the afore-mentioned denials was in breach of the Union’s duty of fair representation in violation of Section 8(b)(1)(A) of the Act.

B. Alleged Removal from the Out-of-Work List and Failure to Permit Re-Registration

The Acting General Counsel, at complaint paragraphs 5(c) and 7, alleges that the Union violated Section 8(b)(1)(A) and (2) of the Act as follows: “On or about November 7, 2011, and continuing to date, Respondent has failed and refused to permit Loerwald to register for referral from its exclusive hiring hall to employer-members of the Association or to other employers signatory or bound by the CBA or to permit Loerwald’s name to remain on the exclusive hiring hall referral list.”17 Section 8(b)(1)(A) is set forth in the Section A of this decision. Section 8(b)(2) makes it an unfair labor practice for a union: “To cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of [the Act] or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.”

Causing or attempting to cause an employer to discriminate does not necessarily require an overt demand by the union to discriminate. Rather, the discrimination in some cases may take the form of the union’s mere failure to refer the employee for work, without any direction to the employer. In Electrical Workers IBEW Local 675 (S & M Electric Co.), 223 NLRB 1499 (1976), enfd. mem. 556 F.2d 574 (4th Cir. 1977), the Board noted:

The Board has consistently found a violation of Section 8(b)(1)(A) and (2) of the Act where a union has discriminatorily refused to refer an employee for employment pursuant to the terms of an exclusive referral system in effect between the union and the employer. Such union conduct, by its very nature, indirectly induces the employer to refuse employment to that employee in violation of Section 8(a)(3). [Footnote omitted.]
There is more than one way to prove a Section 8(b)(1)(A) and (2) allegation that a Union operating an exclusive hiring hall has managed its referral list to the detriment of a member’s employment status. When the allegation involves discrimina-

SEE NLRB BOARD DECISION

http://www.nlrb.gov/case/17-CB-072671


FOOTNOTES:

13 When questioned about how he interpreted the Bylaws’ posting requirement, Stark stated that he believed it just meant the list has to be “posted in a computer.” (Tr. 216). This interpretation is absurd.
Stark’s attempt to find refuge in the technological version of “post” also fails to comport with any reasonable definition of the term. In his testimony, he made the analogy of posting to Craigslist, which places items on-line and open for others to view. Indeed, the hope of posting an item for sale on such a site is that many will view the item and want
to buy it. This type of posting is in line with one of the term’s accepted definitions. For illustration purposes only, Merriam-Webster defines “post” as it relates to an electronic posting as: “to publish (as a message) in an online forum (as an electronic bulletin board).” See http://www.merriam-webster.com/dictionary/post. Maintaining a list in an internal computer system, without open access to the list, however, is out of line with any rational definition of the term. THIS INCLUDES THE UBCJA's & D.C.'s venerbale "ULTRA LIST" WHICH THEY ALWAYS DENY MEMBERS THE RIGHT TO SEE IN EVALUATING WHERE THEY STAND IN RELATION TO OTHERS. THE D.C. or YOUR LOCAL MUST MAKE A COMPUTER TERMINAL AVAILABLE TO YOU FOR YOUR OWN REVIEW & THEY CANNOT  LIMIT YOU TO A ONE PAGE OR ON LINE ULTRA PRINTOUT LIMITED TO YOUR NAME. IF 7 WHEN THEY PULL THIS WITH YOU, FILE A CHARGE & HOLD THEM ACCOUNTABLE Nonetheless, it is clear that Farris still did not satisfy his own interpretation of “post” because his computer was ostensibly unable to produce the list. to amend the complaint to allege another unlawful refusal on January 4, 2012. On that occasion, Loerwald received a copy of the OWL with all information blacked out except for the page numbers, the date the document was printed, and the workers’ qualifications. (Tr. 96). I find that without any identifying information, such as names or member numbers, the list was useless for purposes of determining whether or not Loerwald
was registered, or where she stood in comparison to others.

14 Though deciding these denials will not alter the remedy, I am ruling on the two additional allegations to make the record complete.

15 It is clear that the union business agents, including Coleman (Tr. 184), found Loerwald’s repeated attempts to see the OWL as a pain. This does not matter, absent evidence, which does not exist here, that Loerwald behaved in such a way as to lose the Act’s protection.

16 In any event, as discussed below, Loerwald should have remained on the OWL.

17 It appears as if the word “to” should appear after “signatory” but the allegation, though rather cumbersome, is clear enough. In his closing brief, the Acting General Counsel framed the allegation as removing Loerwald from the referral list and then failing to restore her to it. Though the complaint does not allege that she was unlawfully “removed” from the referral list, it does state that the Union refused to “permit Loerwald’s name to remain on the exclusive hiring hall referral list” as of November 7. Refusing to allow Loerwald’s name to remaing on the list and removing it from the list are effectively the same.tory motivation for engaging in activity protected by Section 7 of the Act, the Board has utilized the framework for proving claims of discrimination adopted in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). The Board has also recognized that when a Union operating an exclusive hiring hall fails to follow established procedures and acts in a manner that is arbitrary, provided the actions amount to more than occasional negligent mistakes, a violation may be found without regard to motive. Both are discussed below, and I note each paradigm relies on most of the same facts. The key difference is that the former
focuses on whether or not the facts support animus related to Section 7 activity, while the latter does not.