– Re: 50-50% or 67-33% or 90%-10% EXCLUSIVE NYCDCC HIRING HALL
In Reply To
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 RESPONSE TO
BRIEF AMICUS CURIAE OF THE COURT–APPOINTED INDEPENDENT
MONITOR GLEN G. McGORTY
excerpt, pages 4-8
III. THE WAY FORWARD
The Independent Monitor suggests that the Board attempt to a avoid a conflict with the District Court’s Orders by remanding this proceeding to ALJ Green to “provide him and the General Counsel the opportunity to bring this matter before the Court to discuss the possibility of a mutually agreeable accommodation of the Court’s oversight of the District Council under the Consent Decree.” (Brief Amicus Curiae at 5). There will be no mutually agreeable accommodation. It is not in the interest of the General Counsel, The Northeast Regional Council of Carpenters (Charging Party), or the public interest, to make concessions after prevailing at an unfair labor practice hearing. As ALJ Green stated at the hearing in reference to the matching provisions, “[t]here are many ways of dealing with and getting appropriate preferences that are - - that could be applicable to this situation. There are a number of different ways of accomplishing that. But if it’s based on union membership then I have no choice and I don’t think the Board would have a big - - have any choice, but to enforce the law as it was written. You know, we don’t make a law and then say okay, but for equitable purposes we’ll ignore it for this particular set of circumstances.” (Tr. 82). The General Counsel wholly rejects the circular suggestion of remanding the case back to the ALJ. Given that Respondent, the Party In Interest, and the Independent Monitor do not assert that the clauses at issue are lawful and have had ample time to submit revised clauses that do not violate the NLRA for Judge Berman’s approval, it is not unreasonable to conclude that the Independent Monitor’s request to remand represents an attempt to “run out the clock” until the agreement expires rather than revise the facially invalid provision now.
Remanding this matter to ALJ Green provides no path forward to putting it before Judge Berman in District Court. The Independent Monitor was present at the hearing before ALJ Green on March 25, 2015, had an opportunity to give his perspective on the record, and had an opportunity to file a brief amicus curiae. It is not at all clear to the General Counsel what the Independent Monitor hopes to achieve by remanding the case, other than to delay the affirmation and enforcement of ALJ Green’s Order. If the Independent Monitor is in essence proposing settlement discussions by reference to a “mutually agreeable accommodation” then remanding is not a path to settlement either. The Independent Monitor could have attempted to involve the parties in formal or informal settlement talks at any time during the course of these proceedings, but to the General Counsel’s knowledge has not done so. Essentially, there is no path forward unless the Independent Monitor is willing to draft non-discriminatory language to replace the contractual provisions at issue and to then present such language to the interested parties and Judge Berman for approval. There are undoubtedly ways to craft language that would not violate the Act, yet still achieve anti-corruption objectives. For example, a modification of the unlawful clauses as required by a Board order, could also comply with the consent decree, and the District Court would not be precluded from reviewing such a modification pursuant to its jurisdiction over the Consent Decree. Notably, the contract itself allows for the parties’ return to the former court-approved job referral procedure contained in the expired contract should the district court “or any court of competent jurisdiction” reject the “full mobility” provision. 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 would pass muster under the consent decree as well. Thus, the General Counsel does not presume to draft such language, select the criteria for
the matching provisions, or devise anti-corruption mechanisms itself, but rather leaves this to the parties governed by the Consent Decree.
Second, in regards to remanding the case, the Independent Monitor does not explain why whatever discussions he wishes to hold can only occur before ALJ Green and not before the District Court or simply among the parties. If the Independent Monitor is truly interested in bringing this matter before Judge Berman then he does not require the permission of the Board, ALJ Green, or the General Counsel to do so. The Independent Monitor, as he is appointed by the District Court, is free to go before Judge Berman at any time using whatever procedural mechanisms are at his disposal in order to seek approval of a revised collective-bargaining agreement that conforms with the Act. The Independent Monitor has never presented to ALJ Green or the General Counsel any procedural mechanism by which this type of NLRB unfair labor practice hearing could be brought before a District Court. Moreover, the General Counsel does not believe it has any authority to do so if it were so disposed, which it is not.
Third, the General Counsel disagrees with the notion that June 30, 2017, the date the collective-bargaining agreement between the Party In Interest and the Association of Wall-Ceiling and Carpentry Industries of New York (WCC) expires, in any way serves as a “natural time” at which the agreement at issue “could be further normalized to statutory expectations of how unionized construction industry jobs may be staffed.” The WCC is not a party to these proceedings, and the WCC agreement, while a template for the agreement at issue, it not itself at issue before the NLRB. Conversely, the General Counsel argues that several opportunities for the Independent Monitor, or prior to January 1, 2015 his predecessor Dennis Walsh, Esq., to bring this matter before the District Court have already come and gone with no action from the Independent Monitor. The Independent Monitor could have attempted to go before the District
Court after the initial unfair labor practice charge was filed on April 21, 2014; after the Complaint issued on December 31, 2014; on March 30, 2015 at oral argument before Judge Berman in a peripheral case (GC Exh. 1(q)); after the ALJ’s Decision issued on May 21, 2015; upon the expiration of the Agreement on June 30, 2015; or in any of the past 18 months since the charge was filed. However, the Independent Monitor has seemingly failed to do so, without explanation.
Additionally, on February 10, 2015, Respondent filed a request for postponement of the hearing in which was stated, “Independent Monitor McGorty, whose tenure with the District Council began on January 1, 2015, has requested a one month adjournment of the trial to afford him the time to review the facts and legal issues and make a determination as to what position he will take and recommend to the Court.” (GC Exh. 1(j)). However, the General Counsel never received any further information and can only conclude that the Independent Monitor never made any recommendation to the District Court up to the present, despite representations that he would do so by about March 2015. Therefore, it appears that the Independent Monitor has no sincere interest in speedily bringing this matter and a non-discriminatory agreement before Judge Berman. The General Counsel’s impetus to avoid any further delay arises from its desire to carry out its own obligations under the Act and from the knowledge that with the passage of time the Charging Party is likely suffering greater harm. The discriminatory matching provisions in the Agreement have had the effect of encouraging at least 275 individuals to switch their union membership from the Charging Party to the Party In Interest. (Tr. 96). These 275 individuals likely changed their Union membership due to unlawful coercion between October 2013 and March 2015 alone. (Tr. 96). As several more months have since passed, the General Counsel can
only presume that these numbers will increase. The Independent Monitor argues for an equitable outcome, but takes no account of the harm being suffered by the Charging Party.
As the Independent Monitor’s suggestion is unacceptable, the General Counsel urges that the Board wholly affirm the ALJ’s decision. The Independent Monitor without awaiting further rulings from the Board, can inform Judge Berman of the current status of this case and the ALJ’s decision, or engage in discussions with all parties to the Agreement in order to remove or modify the unlawful language.
WHEREFORE, the General Counsel respectfully requests that the Board affirm the ALJ’s decision in its entirety.
DATED at Albany, New York, this 5th day of November, 2015.
/s/ John J. Grunert
JOHN J. GRUNERT
Counsel for the General Counsel
National Labor Relations Board
Third Region, Albany Resident Office
Leo W. O’Brien Federal Building
11A Clinton Avenue, Room 342Albany, New York 12207
"As ALJ Green stated at the hearing in reference to the matching provisions, “[t]here are many ways of dealing with and getting appropriate preferences that are - - that could be applicable to this situation. There are a number of different ways of accomplishing that. But if it’s based on union membership then I have no choice and I don’t think the Board would have a big - - have any choice, but to enforce the law as it was written."
WOW - No bias here.
"Appropriate preferences" is code for the D.C. to take on non citizens, minorities, woman, the lgbt crowd and of course the liberals favorite people - criminal aliens. Oop's, excuse me, the undocumented & their anchor babies. Appropriate preferences my ass. That statement in & of itself is cause for appeal and a further example of the NLRB Code which in their warped little minds means that the NYCDCC cannot use any preference for its own dues paying members; but the General Counsel could conceivably craft "appropriate preferences" to suit their own political agenda which oft times inures to the NLRB & General Counsel wholly ignoring the law and its own precedent to suit its own illegal political agenda & causes which never involve protecting any white guys.
Whose kidding who here? The General Counsel followed this gem with an even better one - one which readily admits what they do day in, day out:
"You know, we don’t make a law and then say okay, but for equitable purposes we’ll ignore it for this particular set of circumstances."
Bullshit - The NLRB does it every single day as part of its politically driven modus operandi!
Of course, after the NLRB "Equitable Purposes" "Appropriate Preferences" group of new hires were put on the projects for the statutory minimum time frame of 7 to 30 days, then the District Council would be forced to take on new members it does not necessarily want nor need and in the process the General Counsels alternative"equitable purposes" "appropriate preferences" program for those described above then permanently displaces dues paying members working from the Hiring Hall; yet the ALJ or General Counsel openly support that kind of discrimination as it only concerns caucasions and it would have the added remedy of legitimizing non citizens and speed their path to citizenship or amnesty; the NLRB's end all be all cure for America.
"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 would pass muster under the consent decree as well." See above comments. The NLRB can openly discriminate but the NYCDCC when it protects its own members cannot. (wink-wink)
"The discriminatory matching provisions in the Agreement have had the effect of encouraging at least 275 individuals to switch their union membership from the Charging Party to the Party In Interest. (Tr. 96). These 275 individuals likely changed their Union membership due to unlawful coercion between October 2013 and March 2015 alone."
More bullshit - Assumes facts not admitted in evidence and presumes members cannot make a decision of their own free will & accord w/o the NLRB holding their hand; thus requiring the protection of the Boards favorite groups described above, notwithstanding the fact that the entire case is a typical UBCJA International test case; funded wholly by the International to further the illegal agenda of their monetary interests as well as their corporate puppet masters & fellow racketeers a.k.a developers & contractor associations.
"The Independent Monitor has never presented to ALJ Green or the General Counsel any procedural mechanism by which this type of NLRB unfair labor practice hearing could be brought before a District Court."
Simple - File a Motion to be heard. Done.
"The WCC is not a party to these proceedings, and the WCC agreement, while a template for the agreement at issue, it[is] sic not itself at issue before the NLRB."
Hardly, as the "template" it is the cruxt of the matter and were the General Counsel actually doing its job, it would see through the back door agenda of the corrupt UBCJA International and its General Presidents corporate puppet masters attempt at cementing an illegal 100% Full Mobility hiring program designed for the UBCJA's corrupt contractor associations and developers to NLRB Board precedent while wholly ignoring other sections in the NLRA which unequivocally would render the McCarron & Northeast Regional Council scheme to a further criminal RICO conspiracy and further Hobbs Act violations.
The Mob is back ladies and it simply went from one side of the river to the other. This newly formed Jersey Mob replete with its corporate puppet masters makes the previous one involving the NYCDCC look like a Girl Scout troop by comparison.
That however, would require the General Counsel to use its bean, do some long overdue homework and research and file its own charges sua-sponte and since it involves white guys and does not favor its favorite class of individuals noted above - the General Counsel will ignore what is right under its nose to further its own "equitable purposes" "appropriate preferences" agenda; itself a criminal act via the GC's failing to abide by its sworn oath to uphold the laws and precedent(s) as written and to enforce them.