UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
THE CEMENT LEAGUE
and Case 03-CA-126938
NORTHEAST REGIONAL COUNCIL OF
NEW YORK CITY AND VICINITY DISTRICT
COUNCIL OF CARPENTERS (PARTY IN
GENERAL COUNSEL’S ANSWERING BRIEF
TO THE PARTY IN INTEREST’S EXCEPTIONS TO THE
DECISION OF THE ADMINISTRATIVE LAW JUDGE
excerpt, page 3-6
Moreover,the Party In Interest,by stating that the Court dealt with and approvedthe same contractual hiring language at issue, disingenuously implies that Judge Berman was aware
of the pending unfair labor practice charges in this matter and that he analyzed the language in the context of both RICO and the NLRA. As the General Counsel was not a party to United States v. District Council, et al., 90-CV-5722, it is not aware, and there is no record evidence, that the district court considered or decided the issue of whether the clause at issue, the “fullmobility” clause, is lawful under the Act, which it is not.
The General Counsel is unaware of and there is no evidence that the Section 7 rights of employees and Section 8(a)(1) implications of the contractual hiring language were ever raised and evaluated by Judge Berman, or the full-time Monitor (Review Officer) appointed by the Court, or any of the parties. The General Counsel can only conclude that no such analysis was ever undertaken or Respondent and/or the Party In Interest would have introduced such evidence. Why Respondent, the Party In Interest, and/or the Review Officer have still not made application to the Court to bring the contract and Consent
Decree into compliance with the NLRA, even 15 months after the charge was first filed in April 2014, remains inscrutable to the General Counsel.
The Party In Interest excepts to the fact that the ALJ’s Decision is in direct conflict with the Consent Decree and the Orders of the Court in United States v. District Council, et al., 90-CV-5722. (J Exh. 2).
Again, as the General Counsel is not a party to the District Court proceedings under Judge Berman, it does not pass on the extent of the conflict between the ALJ Decision and the Consent Decree. However, the General Counsel does dispute the assumption that in the event of a direct conflict the public policy interests of employees’ Section 7 rights would yield to the anticorruption public policy interests of RICO, and not vice versa. The Board or a federal court may eventually be required to resolve any such direct conflict, but at this stage there has been no factual record developed for such a ruling.
Notably, the parties’ contract itself allows for the parties to return to the former court approvedjob referral procedure contained in the expired contract should the district court “or any
court of competent jurisdiction” reject the “full mobility” clause. (GC Exh. 2, Article 19). As the ALJ correctly found, “if the contract provisions violate the Act, they need to be remedied.”
(ALJD at 6:39-40). Essentially the sum and substance of the Party In Interest’s arguments is that RICO trumps the NLRA and that the case law and precedent of the District Court trumps that of the National Labor Relations Board. Therefore, the General Counsel should have exercised its prosecutorial discretion by not issuing its Complaint and the Board should now dismiss the Complaint because the anticorruption public policy goal of the Consent Decree is so overwhelming. The General Counsel is not, however, estopped from issuing complaint and the Board from finding a violation because the district court did not consider or decide the issue of whether the “full mobility” clause is lawful under the Act. There is no indication that the district court in its October 23, 2013 order was made aware of the possibility that the “full mobility” violates federal labor law. Rather, the Court decided the only issue it had retained jurisdiction to consider, i.e., whether the “full mobility” clause complies with the RICO consent decree.
See e.g., Tri-County Roofing, Inc., 311 NLRB 1368, 1368, n.1 (1993)(district court’s decision in RICO case did not preclude Board’s order remedying union’s unlawful hiring hall practices),enfd.mem. 148 LRRM 2640 (3d Cir. 1995).
Further, a Board order requiring modification of the “full mobility” clause would not conflict with the district court order of October 23 or jurisdiction over the consent decree.
The Court’s October 23 approval of the “full mobility” clause was not premised on the conclusion that only the “full mobility” clause would satisfy the decree’s anti-corruption requirements. A modification of the “full mobility” clause, as required by a Board order, could also comply with the consent decree, and the court would not be precluded from reviewing such a modification pursuant to its jurisdiction over the consent decree. In that regard, requiring a 1:1 match from the hiring hall for every non-hall selection (rather than only for non-member selections) would be lawful under the NLRA and also acceptable under the consent decree as well.
The same arguments presumably apply to the Court’s April 27, 2015 order, which also does reference Section 7 rights of the NLRA. As noted above, the contract itself provides for the return to the former job referral procedure from the expired contract should a court of competent jurisdiction reject the “full mobility” provision.
Finally, the Party In Interest’s reliance on defenses to the allegations from only outside of the scope of the NLRA should be viewed as an implicit admission that the contractual hiring provisions at issue do in fact violate Section 8(a)(1) of the Act under Board case law.
B. Oral Argument on the Party In Interest’s Exceptions is Unwarranted.
The Party In Interest fails to identify any special circumstances requiring oral argument
before the Board that it could not have or did not already raise at the hearing before the ALJ, in its post-hearing brief, or in its memorandum of law supporting its exceptions. Oral argument is unwarranted as the Party In Interest has already had a full opportunity to present its case by calling or subpoenaing witnesses and cross-examining the witnesses of other parties. Nonetheless, the General Counsel is fully prepared to present its case to the Board by means of oral argument if so desired by the Board.
For all the reasons set forth above, General Counsel respectfully requests that the Board deny the Party In Interest’s Exceptions to the Decision of the Administrative Law Judge in their entirety.
DATED at Albany, New York, this 16th day of July 2015.
Counsel for the General Counsel
National Labor Relations Board
Third Region, Albany Resident Office
Leo W. O’Brien Federal Building
11A Clinton Avenue, Room 342
Albany, New York 12207
Very interesting, so no one ever brought up the fact that 100% Full Mobility violates Federal Labor Law; right R.O. Dennis Walsh, right D.C. legal counsel James Murphy, right USAO's Benjamin Torrance & Preet Bharrara?
"As the General Counsel was not a party to United States v. District Council, et al., 90-CV-5722, it is not aware, and there is no record evidence, that the district court considered or decided the issue of whether the clause at issue, the “fullmobility” clause, is lawful under the Act, which it is not."
"The General Counsel is unaware of and there is no evidence that the Section 7 rights of employees and Section 8(a)(1) implications of the contractual hiring language were ever raised and evaluated by Judge Berman, or the full-time Monitor (Review Officer) appointed by the Court, or any of the parties."
"There is no indication that the district court in its October 23, 2013 order was made aware of the possibility that the “full mobility” violates federal labor law."
All of the aforementioned 'players' above were made aware via numerous member filings to the court appointed Review Officer, via e-mail, letter, orally at so called Town Hall Forums & Judge Berman & the Review Officer were made aware via formal docketed submissions to the Federal District Court.
(wink-wink right ladies)