– Elected New York City District Council Delegates Removed Mid-Term.
In Reply To
New York City District Council Delegates Silenced Again.
Local Union 157 Members Voice, Delegates Greg Kelty, Executive Committee Member, John “Terror” Carty and I have been removed from the Delegate Body by Local 157 President Graham McHugh. He was ordered by NYCDCC, Chief Compliance Officer, Joshua Leicht to remove the members or explain why they should remain and fulfill their three year, elected position. In Section 31D of the UBC Constitution it states “A member who retires after being elected may complete the term for which elected unless receiving a pension under the UBC Pension Plan”. Everyone one can clearly see this is a way to remove Delegates who speak out for the membership at meetings and bring up sensitive issues affecting members. Attached is my letter sent in reply to these allegations. It was ruled I was not eligible to serve and removed February 13, 2018, the day before the Delegate meeting without any of my questions answered.
At the February 15, 2018 Local 157 meeting it was stated my status has changed from early retiree to active, regular member with the implementation of a new UBC Personified system that was put in place. No one was notified in writing of this new UBC format, when it actually took place and the ramifications it would have on a working retiree. With this new change, the rule in Section 32 states a steward who abandons a job before it is over will lose all referrals and be placed on the back of the list. A retiree is on permitted to work 39.5 hours a month but is being penalized for following the directive from the Benefit Funds. President McHugh stated I left two jobs early and was not depending on the trade. I was only following the contradictory rule permitted to work 39.5 hours, not abandoning the job.
Dear Sir and Brother:
I am in receipt of your unofficial email dated January 29, 2018 (herein referred as “Eligibility Determination”) filed pursuant to Section 31D of the U.B.C. Constitution including anonymously raised questions and New York City District Council of Carpenters,(NYCDCC), Chief Compliance Officer (CCO) Josh Leicht’s Delegate eligibility opinion.
Section 33-A states, “The President shall determine all questions of eligibility for office” which you ruled we were eligible proceeding nominations and by accepting the election results of the May 18, 2017 election. However, I received a letter via certified mail on February 5, 2018 regarding (CCO) opinion, stating I am not currently eligible to serve and finish my term as a duly member elected position as Delegate to the Council. There is no provision in Section 53G or the Consent Order for a CCO to determine one’s eligibility. However Section 53G does provide, in part, that, (a)ll protests directed to the conduct of nominations or elections, or election procedures, in any subordinate body may appeal to the General President within (30) days from the date of the election. There were no protests directed in the allotted time permitted making the CCO’s opinion moot.
This “Official” Local 157 correspondence will oblige your demand for my review of all documents and respond with evidence in my defense. We spoke briefly on the phone January 31, 2018, when you informed me of the communication you received from Mr. Leicht. I am not exactly sure what I am “defending” myself from. If there is uncertainty I have not remained a “member in good standing” at all times, privy to a timely official protest or an issue collecting my “on the tools” pension, please provide clarification.
In regards to the correspondence you received from Mr. Leicht that you will be basing your determination of my eligibility, I will address my concerns and look forward to your reply. I am perplexed why the (CCO) has not had any quandaries about the status or eligibility of Mr. Carty, Mr. Kelty or myself up until the results of the recent (NYCDCC) Executive Committee Election. We have all honorably served as Delegates, without any official protests for nineteen months, lacking an investigation from the Government appointed, Independent Monitor or anyone else. The only complaint was from (NYCDCC) President, Steve McInnis who stated: “There is too much Theatre at Delegate Meetings.”
My eligibility turns upon the language which evaluates whether I am:
1. [w]orking for a livelihood in a classification within the trade autonomy of the United Brotherhood as defined in “Section 31D” “or in employment which qualifies me for membership or is depending on the trade for a livelihood”. The segment of “Section 31D”, “in employment which qualifies me for membership” has been in the past and continues to be ignored. Any employment I secure is unquestionably assisting in my family’s wellbeing and financial responsibilities. I am trying to meet requirements of his/her household on a sustainable basis with dignity. A member who is collecting their pension is indeed “depending on the trade for a livelihood”. This is my interpretation and everyone will have their own “opinion”, including the omnipotent who reign over others. Review Officer, Dennis Walsh has stated several times, in writing, he considered anyone who is collecting their pension to be “depending on the trade for a livelihood”. For the record, the Webster Dictionary’s definition of the word “Livelihood: a means of securing the necessities of life: eg: "People whose livelihoods depend on the rain forest". However, some may construe the word Livelihood to fit their needs. The nonexistence of a bright line/mathematical directive from the U.B.C., NYCDCC Bylaw’s or the CCO regarding what actually constitutes “depending on the trade for a livelihood” can yield varying results in these matters. Such outcomes can be arbitrary and capricious when the Local Union President - and ultimately the General President - use their own judgment in how the rule is to be applied. The period for a bright line/mathematical directive on this matter is long overdue. Please state the rule in a clear statement (i.e., what constitutes depending on the trade and what does not) as well as the precedent upon which you may be basing on your ruling.
• Section 31D States, “A member who retires after being elected may complete the term for which elected unless receiving a pension under the U.B.C. Pension Plan”. There is no evidence in the U.B.C. Constitution or NYCDCC Bylaws stating one must maintain criteria of work hours after they are elected, however, I do fulfill my 39.5 hours, remain in good standing, pay full dues, represent as a Certified Steward and do my Member Participation numerous times throughout the year. General President McCarron is collecting his “on the tools” pension and continues to work. In the June 2016 Delegate election in question, I was vetted by the Review Officer, Local 157 President, Election Committee, fulfilling all the requirements in Section 31D.
• § 452.41 - Working at the trade:
(a) It would ordinarily be reasonable for a union to require candidates to be employed at the trade or even to have been so employed for a reasonable period. In applying such a rule an unemployed member is considered to be working at the trade if he is actively seeking such employment. Such a requirement should not be so inflexible as to disqualify those members who are familiar with the trade but who because of illness, economic conditions, or other good reasons are temporarily not working.
(b) It would be unreasonable for a union to prevent a person from continuing his membership rights on the basis of failure to meet a qualification which the union itself arbitrarily prevents the member from satisfying. If a member is willing and able to pay his union dues to maintain his good standing and his right to run for office, it would be unreasonable for the union to refuse to accept such dues merely because the person is temporarily unemployed. Where a union constitution requires applicants for membership to be actively employed in the industry served by the union, a person who becomes a member would not be considered to forfeit his membership in the union or any of the attendant rights of membership merely because he is discharged or laid off.
(c) Ordinarily members working part-time at the trade may not for that reason alone be denied the right to run for office.
• § 452.53 - Application of qualifications for office.
Qualifications for office which may seem reasonable on their face may not be proper if they are applied in an unreasonable manner or if they are not applied in a uniform way. An essential element of reasonableness is adequate advance notice to the membership of the precise terms of the requirement. A qualification which is not part of the constitution and bylaws or other duly enacted rules of the organization may not be the basis for denial of the right to run for office, unless required by Federal or State law.
• Please consider the NYCDCC Benefit Fund that employ instructors and workers at the Labor Technical College who are not NYCDCC employees. They do not work under a collective barging agreement as we do. They are basically a non-union organization that has always been considered separate from the District Council. How can an instructor be considered “working in the trade” in Section 7 and be the President of a local union or Delegate? This is a clear example of one not working in the trade in the UBC Constitution but still they are permitted to be nominated and run for elected positions. If it’s “good for the goose, it’s good for the gander”.
• Mr. Leicht grounded his judgment referring to Mr. McCarron’s response noting: I only worked for 53.3 hours as of May 30, 2017. He conveniently disregarded that I was anticipating employment on the Out of Work (OWL) list from April 3, 2017. That’s six weeks trying to securing work, calling several companies I have previously worked for, which is considered depending on the trade.
• Mr. Leicht refers: I had no reported hours in the months of February, March and April 2017; Perhaps Mr. Leicht can provide the reason he omitted I was actively trying to secure employment by making phone calls to companies and waiting patiently on the OWL for six weeks. One can check if doing a proper investigation, this was a very slow time for employment for all Carpenters in New York City. For the record, my wife was in poor health needing frequent attention during February and March. I hope no member has been in this situation and it was clearly expressed to U.B.C. investigator, Anthony Pena. He indicated in his report I had “family matters”. I guess it does not matter in our Union because my obligation was absent from his report.
• Mr. Leicht refers: In the first four and one-half months of 2017, I earned more income from my pension benefit than I did from qualifying employment. Please provide guidance in writing, where it refers to this work requirement or calculation in the Bylaws. This pension income ratio has never surfaced until now and is not in the UBC Constitution.
• Mr. Leicht refers: I added my name to the OWL for the first time in 2017 on April 3, 2017, and referred for employment on May 15, 2017. This is confirmation I waited on the list for six weeks depending on the trade, trying to secure the necessities of life. I added my name back on the OWL on May 16, 2017 and was dispatched to a two hour “show up time” job. I was consequently referred for employment, on May 17, 2017. Mr. Leicht refers: “Walsh did not subsequently re-add his name to the OWL”. This is not a true statement. I was dispatched to Supreme Woodwork on May 21, 2017, for 35 hours, satisfying my monthly retiree status quota. I proceeded to enter my name on the OWL June 23, 2017, discovering I was placed on the back of the OWL. I was penalized losing all my referrals only adhering to the contradicting rules and deemed deserting the job, as per Section 32 of the District Council’s Job Referral Policy. I was dispatched on June 26, 2018, to Girandola & Shutkind and remained with them securing 79 hours of employment to help with my family’s financial responsibilities. Perhaps the Mr. Leicht should have listened to the continuous complaints made by Retiree’s and Delegates who work their monthly allotted hours as Certified Stewards only forced to leave a job because of incompatible Section 32. Retirees are still being discriminated against for obeying rules, cast as a “deserters” losing their referrals and put to the back of the OWL. Where’s the compliance, common sense to this scenario and when will this issue be addressed? Please note, this rule was put in place to stop stewards from leaving jobs right before their days were up to beat the OWL. It was not put in place to discover retirees who are only trying to work and supplement their pensions after all the deductibles, premiums and co-pays they are subjected to. For one to try and say a retiree deserted a job because he doesn’t really want to work is preposterous.
• Mr. Leicht refers: “Walsh does not solicit work on his own. Although Walsh could work up to 39 hours per month in “Covered Employment” (within the collective bargaining jurisdiction of the District Council) under terms of the NYC Pension Plan, he does not do so.” This untruth I do not “solicit my own work” was discussed with Mr. Pena. I clearly explained to him, for example, the January 2016/2017 two weeks (40 hours) employment with American Wood Installations was by me soliciting employment. I am a Certified Steward for over 30 years and generally gain employment from the OWL but not exclusively. My name was entered on the OWL June 23, 2017 because I anticipate “back to back” two-week employment at the end of the month, as do most retired Stewards. For the past eleven months, from April 2017, I have uninterruptedly been “Depending on the Trade” employed or waiting on the Out of Work List” up until today.
Mr. Leicht felt it necessary to intensify his reasoning with what he considers “facts” deeming me ineligible to hold office as a Local 157 Delegate.
• Mr. Leicht states: In 2016, a total of 166.5 hours of work was reported to the District Council Benefits Funds for Walsh; U.B.C. Representative Pena requested my incomes tax W-2’s records for 2016 for his investigation which I graciously provided. Mr. Pena only used five months in 2017 to make his determination for his report. Why Mr. Leicht thinks this information from two years ago is pertinent to introduce now is puzzling.
• Mr. Leicht states: Mr. Walsh has placed his name on the OWL since June 2017; My name was placed on the OWL April 3, 2017. Over the previous eleven months, I have been uninterruptedly “Depending on the Trade” working or waiting on the Out of Work List”. Why he left out April and May is just poor analysis in my work history and misleading.
• Mr. Leicht states: Mr. Walsh worked 39 hours or less in July, August, September, October and December 2017; I was in fact on the OWL in November trying to gain employment which is depending on the trade. Omitting this fact is just poor analysis of my work history and misleading.
• Mr. Leicht states: No hours were reported to the District Council Benefits Funds for Mr. Walsh in November 2017; In fact I was on the OWL in November trying to gain employment which is considered to be depending on the trade. Omitting this fact is just a poor analysis in my work history and misrepresenting.
• Mr. Leicht states: In 2017, Mr. Walsh “abandoned” two jobs where he had been appointed Shop Steward; Dedicated Retired Stewards and I have been penalized losing referrals many times only adhering to contradicting rules, being deemed an absconder, as per Section 32 of the District Council’s Job Referral Policy. The CCO neglected complaints made by retiree’s and Delegates who work their monthly allotted hours as a Certified Stewards only forced to leave a job because of incompatible Section 32. Retirees are still being discriminated and scorned against for following the rules cast as a “deserter” losing their referrals and put to the back of the OWL. Where’s the common sense to this scenario? Perhaps now Mr. Licht will address this issue for future Carpenters. As usual, there are only knee-jerk reactions to problems after they are reported, never before. Once again, Please note, this rule was established to stop stewards many years ago from leaving jobs right before their 25 days were up to beat the OWL. This system is not even in place to toady and needs to be updated with the new referral rules. It was not put in place to weed out retirees who are only trying supplement their pensions after all the deductibles, premiums and co-pays they are subjected to. For one to try and say a retiree deserted a job because he doesn’t really want to work and not depending on the trade is absurd. Mr. Leicht omitting these facts is just a poor evaluation and capricious.
• Mr. Leicht states: In both 2016 and 2017, it appears that Mr. Walsh earned much more income from his NYC Pension benefit than he did from qualifying employment. Please provide guidance in writing, where it refers to this newfound pension work requirement or calculation in the NYCDCC Bylaws. This pension income ratio has never surfaced until now and is not in the U.B.C. Constitution. Please present the mathematical bright line that presents this criterion and how it is to be satisfied.
Mr. Leicht states: While it appears Mr. Walsh is currently working close to the maximum hours allowed each month to maintain his ability to collect NYC Pension payments, he was not doing so during 2016 and up until the time General President McCarron’s determination that he was ineligible to serve as the Local 157 Recording Secretary.
I refer to Section 31D Stating, “A member who retires after being elected may complete the term for which elected unless receiving a pension under the U.B.C. Pension Plan”.
Mr. Leicht establishing his conclusions referring to U.B.C. Representative, Anthony Pena’s poor investigation, and Mr. McCarron’s ruling is problematic. Perhaps Mr. Leicht should have accurately investigated the facts before presenting his “opinion” putting his credibility in question. Mr. Leicht making his judgments of our eligibility has put Greg Kelty, John Carty and I in an uncomplimentary posture before our Brothers and Sisters. I am appalled by Mr. McCarron’s, Mr. Pena’s and Mr. Leicht’s lack of understanding, compassion, and proficiency that is presented for you to make an honest determination of our eligibility status.
In finding that I do not meet any of the quoted eligibility requirements, “in employment which qualifies me…..for membership”, in order to understand future uncertainty, please explain how if one works for a U.B.C. signatory contractor and not be considered “in employment which qualifies me for membership? Could you also clarify and provide guidance and cite any prior determinations, either made by yourself or by any of your predecessors as Local 157 President, in which these criteria were interpreted and applied.
That a member can be eligible not only by “working for a livelihood” but by “depending on the trade for a livelihood” necessarily seem to mean that a member can be eligible even if, in a period immediately prior to nominations, the member was not working at all, or not working whatever the requisite number of hours which would be deemed sufficient in itself: were this not the case the category of “depending” would be unnecessary-----only “working” and not “depending” would make one eligible. What is the definition of “working for a livelihood”? What is the definition of “depending on the trade for a livelihood?” Can you please provide guidance with respect to when a certain threshold level of hours of work that will be deemed “working for a livelihood” as opposed to working for some other purpose? What objective standards go into making this determination? When a member engaged in employment which qualifies him or her for membership and when a member is depending on the trade for a livelihood? Our membership deserves cohesive mathematical guidelines to move forward and not keep kicking the can down the road with this issue.
Based on the new information provided, “real” facts and circumstances, I ask you fairly find Mr. Carty, Mr. Kelty and I to be eligible to continue to serve as a Delegates of Local 157. All voices deserve to be heard and any attempt to silence a member will only destroy the Democracy our Union deserves. The silencing of outspoken members is one of the reasons we have been under the court’s supervision with the Consent Order United States v. Dist. Council of New York City, 972 F. Supp. 756, 763 (S.D.N.Y. 1997)
President McHugh, I understand you have been put in a very difficult position by anonymously raised questions and Chief Compliance Officer, Josh Leicht’s ensuing mission. It would be only fair to hear the names of those who raised concerns and why Mr. Leicht feels so strongly at this time to peruse this accusation with all the problems our Union faces.
Please consider I have been elected to three positions and served passionately as Recording Secretary for a full three-year term, without any tribulations. I was also elected in 2015 to the 41st General Convention and NYCDCC, 2016 Delegate Body. I am currently in the same “depending on the trade” status as I was in 2015 and up until the recent May 18, 2017, Local 157 nominations. There were no inquiries from the NYCDCC Chief Compliance Officer or the U.B.C. on my of “depending on the trade for a livelihood” status during the last few years, until NYCDCC, President, Steve McInnis asked his collaborators Mike Bilello and Dennis Gimblet to send (Protest) letters, as we entered the 2017 NYCDCC Executive Committee political season. The only complaint was from (NYCDCC) President, Steve McInnis who stated: “There is too much Theatre at Delegate meetings.”
In closing, the concept of “livelihood” is used in the fields such as political ecology in research that focuses on sustainability and human rights.
Thank you for your time and consideration.
William R. Walsh Local 157