Memorandum in Support of the Bilello Motion.docx

8/7/2019 Memorandum in Support of the Bilello Motion.docx

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------x April 3, 2011

UNITED STATES OF AMERICA :

Plaintiff, :

-against- :

DISTRICT COUNCIL OF NEW YORK CITY : 90 Civ. 5722 (RMB)

AND VICINITY OF THE UNITED BROTHERHOOD :

OF CARPENTERS AND JOINERS OF AMERICA, :

et al., :Defendants, :

--------------------------------------------------------------x

SUBMISSION IN SUPPORT OF THE BILELLO MOTION

FROM WILLIAM S. LEBO A 25 YEAR MEMBER OF THE NYCDC

Your Honor,

I stand in support of Michael Bilellos motion seeking an order to schedule elections for the New

York City District Council of Carpenters (NYCDCC) and a declaration that the trusteeship

imposed on the district council be terminated upon installation of the newly elected district

council officers.

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On February 8, 2011 this Court held a conference on this motion. At said conference everybody

involved seemed to agree with the motion and the timeline suggested. The only difference of

opinion was how to elect the officers of the district council.

Mr. Conboy stated; With respect to governance, your Honor, the consent decree has at its heart

the notion of union democracy. The problem, however, is that union democracy has a hallow ringwhen in the immediate aftermath of two court supervised elections, the principal elected officer

has gone to prison, and Im referring of course to Messrs. Devine and Forde. What is critically

necessary is a comprehensive review of what kind of democratic mechanism ought to be in place

here to minimize this ongoing problem. The United Brotherhood is of the view that there should

be a significant change in the way the officers of the district council and the executive board are

elected. (see pages 4&5 of the conference transcripts at p4 - 21 thru 25 and p5 -1 thru 7). Mr.

Conboy goes on to describe how the UBC believes democracy would be better served if officers

of the council were elected by a delegate election and that these delegate elections are held in

councils throughout the brotherhood.( see page 5-at 11 thru 25 of the conference transcripts).

Mr. Conboy also describes what appears to be a new and improved delegate body system. (See

p5 at 22-25 and p6 at 1 thru 13).

Mr. Conboy seems to infer that the cause of the corruption we have faced in our council here in

New York is due at least partly to rank and file elections for the district councils officers.

As Mr. Bilello stated at the conference, prior to 1995, the NYCDCCs elected the officers of the

council by delegate vote, those elections by delegates, ended with Paschal McGuiness as

president, Teddy Maritas as president, and Fred Devines first presidential term.

Therefore, I submit, that no specific type of election is fool proof in keeping corruption out.

However, it is far easier to control the votes of a few delegates, (even one hundred and fifty),

then it is to control the votes of twenty thousand rank and file members. Thats a simple fact.

Over the 21 years the NYCDCC has been under the Consent Decree the Decree has protected the

memberships democratic right to elect our District Council officers, by direct rank and file vote.

The Consent Decree on page 2 states: Whereas, the parties agree that one of the purposes of this

Consent Decree is to ensure that the District Council and its constituent local unions shall be

maintained and run democratically, and without unlawful influence from outside its membership.

The Consent Decree on page 10 at (i) Election Supervision (1) states:

Supervision of 1995 District Council Executive Board Election.

The Investigations and Review Officer shall supervise all phases of a secret ballot election of the

District Council Executive Board by the rank and file membership of the constituent local unions

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of the district Council scheduled for June 1995 and any special District Council elections that

occur prior to then.

Again at Page 10 (i) (2) under: Vacancies in District Council Offices prior to June 1995 it states:

In the event the office of president of the District Council Executive Board becomes vacant prior

to the June 1995 rank and file election, that office shall be filled for the remainder of its term

pursuant to a special rank and file election supervised by the Investigation and Review Officer

pursuant to the provision of this subparagraph.

And again on page 10 at (i) (3) it states; under, Issuance of Rules:

The Investigator and Review Officer shall draft rules for the conduct of a rank and file secret

ballot election for the District Council Executive Board.

My point being in all this is that, nowhere in this Consent Decree is there, nor has there ever

been, any mention or allowance for an indirect election for the officers of the district council. Infact, the Consent Decree specifies rank and file elections for those officers.

In 1997 and 1998 there were two cases before the Court of Judge Haight, who as you know,

ruled on the Consent Decree for many years.

One case was brought by the many local unions of the NYCDCC, Local Unions 20, 135, 246,

257, 296, 531, 740, 902, 1456, 1994, and 2287, et al., -Plaintiffs against- UNITED

BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, et al., Defendants.

97Civ.5538 (CSH)

The other case was; JOHN A. HARKIN, JOSEPH LAUER, and WILLIAM LEBO, et al.,Plaintiffs against-UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF

AMERICA, et al., Defendants. 98Civ.1778(CSH)

Both these cases were consolidated. On page 5 of a Memorandum Opinion and Order from Judge

Haight dated February 5, 1999, on a matter in these cases, Judge Haight refers to the IROs Tenth

Interim Report. The IRO was Mr. Kenneth Conboy at the time. Judge Haight, in regards to

District council elections for the Executive Board of the District Council states:

The most recent submissions of the IRO and the UBC show that those supervising the District

Council trusteeship are now focusing upon the drafting of new by-laws and the holding of aseries of three elections.

As stated in the IROs Tenth Interim Report at 3, in September 1998, the UBC submitted to the

IRO and to the government a set of by-laws proposed for use at the District Council, which

would effect radical changes in the system of elections and governance used by the District

Council.Id. The Consent Decree required at p12 that new District council by-laws be submitted

to the IRO and to the government for their examination, and possible objection on the ground

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that the by-laws were inconsistent with the terms and objectives of the Consent Decree. In the

event of such an objection, the Court determines the validity of the proposed by-laws.

In point of fact, the IRO approved the by-laws proposed by the UBC, with one exception. The

proposed by-laws provide for the election of the District Council executive committee, which

includes the executive secretary/treasurer and other officers of the council, by delegates to theCouncil, following the delegates election [*13] by the rank and file. The IRO takes the position

that the section of the proposed by-laws providing for the indirect elections of the executive

committee by the delegates, rather than the direct election by the rank and file, is not consistent

with the Consent decrees objective of placing electoral power for executive officer selection in

the hands of the rank and file. Tenth Interim Report at 8. The government takes the same

position. See letter of AUSA Marla Alhadeff, dated October 19,1998, at 2.

Furthermore, in a Special Interim Report of The Investigations and Review Officer in this

matter of the proposed by-laws, the IRO states:

This special interim report sets forth the conclusions of this office based on its formal review of

a written plan to restructure the District Council submitted by the United Brotherhood of

Carpenters and Joiners of America (the International).

Under Preliminary Statement on page 2 of this report the IRO states:

The restructuring plan consists of three primary and related elements which together should

serve not only to significantly impede racketeering activity and corruption but will broadly

enhance democratic values in the Carpenters union. This plan gives to the rank and file members

real power in their unions governance and meaningful control of vigilance over their unions

fiscal resources and relationships with employer contractors.

The IRO goes on to explain:

First, the council will be run as a Full Service District Council through centralization of

administration an oversight. The District Council will be governed by a greatly expanded

delegate body and officers who shall be accountable to that body.

This concept clearly failed miserably. The delegate body the IRO spoke of has been controlled as

easily as the 16 delegates from years prior to the restructuring. The delegate body, as the

restructuring plan allowed, was for the most part, 75% Council employees, who owed their jobs

to the executive secretary treasurer (Michael Forde). In order for the delegate body to work, the

delegates must not be Council employees whose jobs can be in jeopardy if they disagree with the

executive officers or take them to task. The delegates must be free of that threat.

In the ROs (Dennis Walsh) statement in the conference transcripts on page 12 at 16 thru 24 Mr.

Walsh states:

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I specifically suggested that delegates be empowered and that a way be found for them to be

able to question authority without fear of, for instance, economic reprisal. One of the phenomena

that we have seen over the years is that if one questions the acts of senior managers at the

council, if you are employed at the district council, you run the risk of getting fired. And there

are also ways of freezing people out in the work force in the construction industry if they

question authority. Weve seen that.

Further down page 2 of the IROs Special Interim Report, the IRO states: The international is

categorically committed to direct rank and file elections for all these positions.

The IRO is referring to the officers of the District Council, the executive committee, and the

delegates to the Council.

This statement is confusing because throughout the Country the UBC has been vehemently

against direct vote of the rank and file elections for the Council officers, and espouses

representative democracy.

The point here is that throughout Mr. Conboys term as IRO, Mr. Conboy consistently and rightly,

acknowledged, that one of the objectives and terms of the Consent Decree was direct elections

by the rank and file for the executive officer of the District Council in order to place the

electoral power in the hands of the rank and file. Thats a fact.

It is therefore my submission that the Consent Decree clearly and unequivocally guarantees the

members of the NYCDCC direct rank and file elections for the Council executive officers.

I also want to state that, the problems of corruption that arose under Devine and Forde were not

the fault of the elections by the rank and file of the executive officers of the district council, but a

direct result of an inefficient, easily controlled and corrupted delegate body system.

There are other issues that also move to direct election by the rank and file.

In the Case of Harrington vs. Choa, U.S. Court of Appeals 1 st Circuit 04-1144, Plaintiffs argued

that the delegate elections that were held for the New England Regional Council of Carpenters

(or NERCC) executive officers were in violation of the LMRDA, 29 U.S.C. 401-531, which

requires the direct election of the NERCC officers because the NERCC is a local labor

organization within the meaning of the Act, id. 401(b), notwithstanding the UBCsdesignation of it as an intermediate body. The LMRDA (Labor Management Recording and

Disclosure Act, 29 U.S.C. 401-531, requires the direct election of officers of a local labor

organization. The plaintiffs argue that since the UBCs restructuring of the Councils and locals in

the New England area into the NERCC the locals have no power and are mere administrative

arms of the NERCC, and that since the NERCC has taken over all those powers and that since

the NERCC performs all the functions and purposes once performed by those local unions, then

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the NERCC itself must be considered a local union under the Act and be required to hold its

elections under the Act as a local union.

The LMRDA does not define the terms local labor organization, or intermediate body. The

Act does give examples of several intermediate bodies though. These include, general

committees, system boards, joint boards, or joint councils. See 29 U.S.C. 481 (d).

The plaintiffs argue, Given the lack of specific definitions of intermediate and local bodies in

the Act, the possibility existed that labor organizations would attempt to label their constituent

entities as local or intermediate for the purpose of dictating which method of election would

be used. To curb this potential, Congress authorized the Secretary of Labor to promulgate

regulations concerning how she would determine whether an organization was local or

intermediate. Id. 489 (b) . Pursuant to this authorization, the Secretary has supplemented the

Acts limited guidance on the definitions of local and intermediate bodies with regulations

providing that:

The characterization of a particular organizational unit as a local, intermediate, etc., is

determined by its functions and purposes rather than the formal title by which it is known or how

it classifies itself. 29 C.F.R. 452.11.

The Secretary found in favor of the NERCC and would not bring suit. The plaintiffs brought suit

in Federal Court against the Secretary arguing that her decision not to sue was arbitrary and

capricious. The plaintiffs argue that: The Secretaries decision to the contrary is arbitrary and

capricious because it failed to apply properly the functions and purposes test of the applicable

regulations, 29 C.F.R. 452.11.

The Court found in favor of the plaintiffs and ordered the Secretary to file suit. The Secretary

appealed the decision to the 1st Circuit. Initially the Appellate Court found the decision of the

Secretary was arbitrary and capricious in a limited sense that the Secretarys statement of

reasons was inadequate given the applicable regulations and the Secretarys position in other

cases. 280 F.3d at 59-60.

The Court remanded the Secretary to reopen and advised her that if she again decided not to sue,

a new statement of reasons which addresses both the application of the functions and purposes

test of 29 C.F.R. 452.11, and whether her decision is consistent with her precedents would be

required. Id. at 61-61.

On January 31, 2003, the secretary issued a Supplemental Statement of reasons (SSR) that

found, once again, that the NERCC is an intermediate body under the LMRDA and is thus not

required to conduct direct elections.

The plaintiffs challenged the decision and moved for a summary judgment. The District Court

relying largely on Harrington 1 granted the motion on October 8, 2003 and found the Secretarys

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decision was arbitrary and capricious and ordered the Secretary to take appropriate action

consistent with its determination.

On February 20, 2004 the Appellate Court stayed the District Courts order pending resolution of

the Secretarys appeal.

In explaining the Secretarys conclusion that the NERCC was an intermediate body, the SSR

outlined three basic principles [that] may be discerned from the language and purpose of the

LMRDA and the applicable regulations. SSR, at 3.

First the Secretary stated that she had not abandoned the applicable regulations and explained

that classifying a union entity as intermediate or local does indeed require looking to the entitys

functions and purposes rather than its formal title or nominal placement within [the]

organization. Id. The critical inquiry, the SSR continued, is thus whether the intermediate body

has taken on so many of the traditional functions of a local union that it must in actuality itself be

considered a local union. Id.

Second, the SSR explained that the legislative history of the Act made clear that intermediate

bodies are permitted to wield real and significant authority within a labor union without being

treated as local bodies for purposes of the LMRDA.Id.at4. The SSR identified those powers

as including the negotiating of collective bargaining agreements and the discipline of union

members.

Third, the SSR stated that an entitys placement within the structure of a union is also highly

relevant in determining whether it is local or intermediate. Id. at 5. As a consequence, the SSR

conclude that, although the Secretary will not defer to a unions own characterization of an

entity as an intermediate body or a local labor organization, it is proper for the Secretary to take

account of an entities placement in the unions structure in making the determination whether it

is an intermediate body or local organization. Id.

The Secretary looked at the functions and purposes of the NERCC and concluded that although

the NERCC performed many of the functions traditionally those of the local union, many of

those functions were being performed by intermediate bodies at the time the LMRDA was

enacted. Such as, negotiating collective bargaining agreements, and that many were

increasingly handled by intermediate unions throughout the 1950s when the Act was passed.

But the SSR declined to articulate a list of functions exclusively performed by an intermediate

organization as contrasted to a local body.

The SSR also looked to the functions and purposes of the local unions, on the theory that if the

middle tier subsumed so much authority from its subordinate unions it must have itself also

become a local labor organization subject to the Acts election requirements.

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In this case, the SSR opined that the subordinate locals are not mere administrative arms of

the NERCC but instead play a significant role in dealing with their members. The locals are

independently chartered, have identifiable memberships, elect their own officers, have their own

bank accounts, keep separate offices and bank accounts, and may hold their own meetings. They

also determine and collect monthly dues, and may make rules consistent with the UBC

constitution and laws. Moreover, the local unions also have various responsibilities and

liabilities: they are responsible for the carelessness or negligence of their officers; they collect

fines for dues or fees in arrears; and most grievances are resolved by local stewards (although

those stewards are appointed by the NERCC). Local unions also exert influence over the UBC

International and the activities of the regional councils. Changes to UBC by-laws can be initiated

when three local unions join together and locals play a role in ratifying collective bargaining

agreements. Based on consideration of these functions, the SSR determined that there was no

basis for concluding that the NERCC must . . . be considered a local to carry out the purpose of

the statute.

The Secretaries reply brief notes, on the basic point that when an intermediates role becomes so

overwhelmingly or omnipresent in union affairs, the requirements for direct elections must

apply.

The plaintiffs complained that the Secretary focused on the functions and purposes of the locals

themselves, instead of just the Council. The plaintiffs claimed this was a contradiction of the

regulations language as well as the Secretarys prior application of the regulation in

Boilermakers and Humble oil. Donovan V. International Brotherhood of Boilermakers 736 F. 2d

618 (10th Cir. 1984) Employees Federation of the Humble oil & Refining Co., No. 69-C-54

1970 U.S. Dist. Lexis 12288 (S.D. Tex March 31,1970). The plaintiffs claim that the Secretary

was required to categorize various functions and purposes as either intermediate or local and then

determine with which functions and purposes the NERCC was more closely aligned.

The Court stated: The plaintiffs more substantial argument appears to be at the root, that

collective bargaining and member discipline have previously been classified by both the

Secretary and the courts in Boilermakers and Humble oil as intrinsically local, rather than

intermediate, functions. Indeed, the Boilermakers court described the functions of the union body

at issue, which included negotiating the basic terms of collective bargaining agreements and

grievance handling (which may have included member discipline), to be functions of a local. See

736 F. at 623. And the court in Humble oil similarly classified collective bargaining and member

discipline as local functions. 1970 U.S. Dist. Lexis 12288, at *13. Even the SSR included

collective bargaining and disciplinary functions as within a common core of functions

performed by local unions.

The Court goes on to explain that the Secretary points out that in Boilermakers the entity

reviewed was at the lowest level of the union because there was no subsidiary entities. See 736 F.

2d at 622-23. Also, the question was whether the entity was a labor organization at all and if so

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was it national or local. In Humble oil the entity also had no subordinate organizations and

claimed that it could not be a local because its divisions were themselves separate locals, a

contention the court rejected when it found the divisions to be mere administrative arms. See

1970 U.S. Dist. Lexis 12288, at *11-*12.

The Secretary pointed out that, the line between local and intermediate functions is not fixedand immutable. From this the Secretary concludes that, Boilermakers and Humble oil do not

purport to address precisely which functions and purposes are so intrinsically local in nature that

any labor organization having these functions and purposes must be a local union for the

purposes of the LMRDA. The court found this to be reasonable.

The plaintiffs final major argument takes issue with the SSRs conclusion that the functions and

purposes of the subordinate local unions should also be scrutinized to ensure they are

performing meaningful functions and continue to exist for purposes associated with local

labor organizations. The plaintiffs claim this is irrelevant to determining whether the NERCC is

an intermediate body.

The court found this argument to be ironic since, the Secretarys examination of the locals

actually benefits potential plaintiffs by acting as a check on the powers entities labeled as

intermediate and ensuring that locals have meaningful responsibilities. The court found the

Secretarys position to be reasonable.

The Court reversed the judgment of the district court and the case was remanded with instruction

to enter judgment for the Secretary.

In this case it is important to note, one of the Circuit Judges dissents, and one concurs, with

concerns.

Judge Lipez concurring States: Recognizing the differential standard that we must apply, I agree

with Judge Lynch that the Secretary of Labors characterization of the NERCC as an

Intermediate union body was not arbitrary and capricious.

Nevertheless, drawing on scholarship about union organization at the time of the LMRDAs

enactment and the LMRDAs legislative history, I write separately to register my concern the

Secretarys approach may be a departure from the more ideal form of union democracy that the

Congress sought to protect through its enactment of the LMRDA.

Judge Lipez goes on to explain: The legislative history of the LMRDA and contemporary

scholarship on union government suggest that Congress did not associate intermediate bodies

with a full range of functions historically performed by local unions. Rather, there is reason to

believe that Congress understood that locals would continue to exercise primary or exclusive

authority over most traditionally local functions, particularly those that directly affected ordinary

union members. Thus, by requiring local unions to select local union officers by direct

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membership election, Congress protected the rights of rank and file union members to exercise

control over the decisions and activities that affected their daily working lives. Consequently, the

Secretarys willingness to allow intermediate bodies to assume an ever-increasing number of

local union functions without subjecting them to the LMRDAs direct election requirements

represents a threat to union democracy and may eventually stray too far from Congresss intent

in adopting Title IV of the LMRDA.

He further states: Contract negotiations was only one aspect of the collective bargaining

process, however, and other representational functions remained distinctly local. In particular,

contract enforcement, described as the enforcement of the agreement through the grievance

procedure or through informal adjustment procedures was overwhelmingly in the precinct of the

local union.Id. at 144: see also Bok & Dunlop, Labor and the American Community , at 51,

(stating that even in sector where control over collective bargaining has gravitated to the

national or regional level . . . locals still retain considerable influence over the administration of

the contract); Donald R. Anderson, Note, Landrum- Griffin and the Trusteeship Imbroglio, 71

Yale L.J. 1460, 1464 (1962) (noting that despite increased centralization within some unions,

the grievance machinery necessarily remains in local hands, primarily run by the on-the job

stewards). Similarly, union constitutions generally vested in local unions the power to authorize

strikes, either independently or subject to international approval. While wage issues were

sometimes settled at the level of the intermediate or international organization, the issue of work

rules remained for local negotiation.

Judge Lipez quotes Lahne , The Intermediate Union Body in Collective Bargaining, at 164

(When the role of the individual local in collective bargaining and grievance handling is

reduced to participation in the deliberations of the delegate body, an important source of local

union validity is surrendered to a species of outsider.). Judge Lipez states, in regards to this that:

This criticism reflected a concern that the appropriation by intermediate bodies of most or all of

the representational activities traditionally performed by local unions denied an important

measure of participation in union affairs to rank-and-file members, who could participate in

intermediate bodies only indirectly through representatives of their locals.

While considering the legislative history of the LMRDA, Judge Lipez , notes how vigorously

Senator Barry Goldwater lobbied to include intermediate bodies in the LMRDAs definition of

labor organizations so that they would not be exempt from the statutes prohibitions and

sanctions. Senator Goldwaters amendment was adopted on the Senate floor.

Judge Lipez Notes: Thus, the author of the amendment that brought intermediate bodies under

the purview of the LMRDA viewed them as organizations that 1) were composed of

representatives of local unions rather than employees, 2) did not engage in collective bargaining

activities.

Judge Lipez further states:

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Although the LMRDA does not define the terms local labor organization or intermediate

bodies the final act clearly distinguished between the two kinds of union bodies in its definition

of labor organizations. For the purpose of the act, a labor organization is one that is:

Engaged in an industry affecting commerce and includes any

organization of any kind, any agency, or employee representation

committee, group, association, or plan so engaged in which

employees participate and which exists for the purpose, in whole

or in part, of dealing with employers concerning grievances, labor

disputes, wages, rates of pay, hours, or other terms or conditions of

employment and any conference, general committee, joint or

system board, or joint council so engaged which is subordinate

to a national or international labor organization, other than a state

or local central body.

29 U.S.C. 402 (i). Notably, intermediate bodies are not included among those organizations

composed of employees or dealing with employers concerning grievances, labor disputes,

wages, rates of pay, hours, or other terms or conditions of employment. Rather, they a described

in terms of their formal label (conference, general committee, joint or system board, or joint

council), their structural position in the union hierarchy (subordinate to a national orinternational labor organization), and their general function (engaged in an industry affecting

commerce). See Julius Rezler, The Definitions of LMRDA, in Symposium on LMRDA 267

(1961) (noting that the LMRDA divided labor organizations into two groups: first, organizations

in which employees participate and which exist for the purpose of dealing with the employers

concerning the terms and conditions of employment; and second, the so-called intermediate

bodies not necessarily composed of employees or dealing with employers, but subordinated to

national or international unions). Although this definition does not prevent intermediate bodies

from engaging in collective bargaining activities neither does it include intermediate bodies in its

description of labor organizations that interact directly with union members and negotiating with

employers over issues concerning the terms or conditions of employment.

Judge Lipez goes on to say: As the SSR noted, the Senate Committee Report to the LMRDA

stated that intermediate bodies can exercise responsible governing power, without elaborating

upon the nature or scope of that power. See S. Rep. No. 86-187, at 20 (1959), reprinted in 1959

U.S.C.C.A.N. 2318, 2336. However, the report also included a broader statement of Congresss

objectives in enacting the LMRDA, and in particular Title IVs election provisions:

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It needs no argument to demonstrate the importance of free

and democratic union elections. Under the National Labor

Relations and Railway Acts the union which is the bargaining

representative has power, in conjunction with the employer

to fix a mans wages, hours, and conditions of employment.

The individual may not lawfully negotiate with his employer.

he is bound by the union contract. In practice, the union also

has a significant role in enforcing the grievance procedure

where a mans contract rights are enforced. The Government

which gives unions this power has an obligation to ensure

that the officials who wield it are responsive to the desires

of the men and women whom they represent. The best

assurance which can be given is a legal guarantee of free

and periodic elections.

S. Rep. No. 86-187, at 20 (1959), reprinted in 1959 U.S.C.C.A.N. 2318, 2336. This statement

demonstrates that Congress sought to Protect the rights of rank-andfile members to participatefully in the operation of their union through processes of democratic self-government, and,

through the election process, to keep the union leadership responsive to the membership. Wirtzv. Hotel, Motel & Club Employees Union Local 6, 391 U.S. 492 , 497, (1968); see also Am. Fed.Of Musicians v. Wittstein, 379 U.S. 171, 181 (1964) (As a part of the [LMRDAs ] purpose of

protecting and fostering participation by the rank and file in affairs of the union, Title IV

contains elaborate statutory safeguards for the election of union officers.);

Judge Lipez also quotes: Clyde W. Summers, Judicial Regulation of Union Elections, 70 L.J.

1221, 1221 (1961) (The LMRDA recognizes the key role of union elections, which are the

main nerve centers of union democracy, for it is through the officers that the will of the membersis translated into effective action.) As Senator Robert Griffin co-sponsor of the Senate bill that

ultimately became the LMRDA, later commented: Landrum-Griffin focused upon a basic

precept the principle that each individual member should be able to play a participatory role in

the affairs of his union. Robert Griffin. The Landrum-Griffin Act: Twelve Years of experiencein Protecting Employees Rights, 5 Ga. L. Rev. 622, 622 (1971).

Judge Lipez goes on to quote various union historians and texts that all state the importance of

union democracy, and how it relates to the union members participatory rights in their unions

governance.

Judge Lipez concludes his statement with this summary:

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In light of the historical context and congressional history of the LMRDA, I believe that there is

some force to the plaintiffs claim that the Secretarys decision not to recognize the NERCC as a

local union is inconsistent with the LMRDA, considered as whole. Although intermediate bodies

engage in representational activities at the time that the LMRDA was enacted, many important

labor union functions were perceived as distinctly local, and the trend toward centralization

was criticized for its effect on union democracy. Senator Goldwaters view that intermediate

bodies did not engage in collective bargaining, the LMRDAs definition of labor organizations,

and the Acts underlying goal to encourage participation of ordinary members in union affairs

and assure the responsiveness of their representatives further suggest that Congress understood

intermediate bodies to possess limited powers.

As Judge Lynch ably explains, we must uphold the Secretary of Labors decision not to sue

under the LMRDA unless it is so irrational as to constitute the decision arbitrary and

capricious. Dunlop v. Bachowski, 421 U.S. 560, 573 (1975). The Secretarys approach and

conclusion survive review under this highly deferential standard. Nevertheless, I believe it is

incumbent upon the Secretary to remain vigilant that her enforcement actions are consistent with

the principles of union democracy that Congress sought to vindicate when it required the direct

election of local union officials in Title IV of the LMRDA.

The dissenting Judge, Judge Torruella, discusses his opinion that in Harrington I the Secretarys

decision not to sue under Title IV of the LMRDA departed from her established policies and

practices.

He states: Therefore her two options were (1) to initiate suit, or (2) to decline to do so and to

acknowledge that she is adopting a new enforcement policy and interpretation of the Act, and

provide her reasons for altering her prior policy. Harrington v. Choa, 280 F. 3d 50, 61 (1st

Cir.2002) (Harrington I) (Torruella,J., concurring).

He suggested that it would be futile for the secretary to decline to initiate suit and to attempt to

clarify for the court why she believes her decision is consistent with the governing regulations

and established past practice.

Judge Torruella further states: Nevertheless, this is precisely the path the Secretary has chosen. I

dissent because I continue to believe that the Secretarys decision represents a departure from

precedent and that such a deviation from prior interpretations without sufficient explanation may

be considered arbitrary and capricious and therefore subject to judicial reversal. Harrington I,

280 F. 3d at 58-59; Honeywell Intl, Inc. v. NLRB, 253 F. 3d 119, 123 (D.C. Cir. 2001) (Without

more, the [agencys] departure from precedent without reasoned analysis renders its decision

arbitrary and capricious. ).

Judge Torruella did not disagree with the Secretarys consideration of the NERCCs placement

within the unions structure. He states: In fact, the NERCCs placement within the UBCs

organizational structure is precisely what brings us to the question before us : whether the

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NERCC has assumed the functions and purposes of a local labor organization regardless of its

intermediate position within the UBCs structure.

Judge Toruella states the question as: The question, then is not whether the Secretary was

forbidden to consider where the NERCC was situated within the UBCs structure but whether the

Secretarys application of the regulations function and purposes test represented a departurefrom precedent.

The SSR acknowledges that the functions and purposes approach has required determination of

whether the intermediate body has taken on so many of the traditional functions of a local union

that it must in actuality itself be considered a local union, SSR at 3. As the Secretary points out,

any other rule would enable intermediate bodies to completely devalue members direct

participation in officer elections in a manner that is inconsistent with key purposes and

provisions of the Act. SSR, at 9. Regardless of an entities position in the middle tier of a union,

the Secretary concedes, there must be some point at which an entity at the middle tier subsumes

so much authority from its subordinate unions that itself also becomes a local labor organizationsubject to the Acts direct election requirements.

Perhaps the most important statement Judge Torruella made as far as our case is concerned was:

The Majority notes, quoting the secretarys reply brief that both parties agree on the basic point

that when an intermediates role becomes so overwhelmingly or omnipresent in union affairs, the

requirements for direct elections must apply and that the dispute is therefore not one of

principle, but over where to draw the line. The question the SSR needed to answer, then, was

whether the NERCCs functions and purposes are so overwhelming and omnipresent in union

affairs that the statutory requirement of direct elections applies. It is my opinion that if the SSR

had indeed addressed this question, the Secretarys own description of the NERCCs functions

would have led inevitably to the conclusion that the NERCC has taken on so many of the

traditional functions of a local union that it must in actuality itself be considered a local union.

Judge Torruella argues: The SSR acknowledges that the NERCC performs a number of

important responsibilities, some of which may be traditionally associated with local unions.

Rather than proceeding to address whether the functions and purposes of the NERCC

demonstrate an assumption of authority sufficient to render the NERCC subject to the LMRDAs

direct election requirements, however, the SSR concludes that because the locals that are

subordinate to the NERCC . . . . are not merely administrative arms of the union but play such a

significant role in dealing with their members . . . there is no basis for concluding that NERCC

must also be considered a local to carry out the purpose of the [LMRDA].

Judge Torruella states in reply to this: The SSR thus ultimately formulates the issue as a

question of the irreducible minimum that must remain in local unions if higher bodies are not to

be subject to the direct election requirement. SSR at 9. The NERCC locals meet that

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minimum, in the Secretarys opinion, because the NERCC locals are independently chartered,

have identifiable memberships, have officers, and have their own bylaws. Although initially

appointed by a NERCC representative stewards are local members, and resolve most grievances

without the participation of or input from NERCC representative. The locals also administer all

job referrals on a local, rather than a regional, basis (the referral process which is determined by

the NERCC representative, may vary from local to local.) The locals determine and collect

monthly dues. A person joins the UBC by becoming a member of a local union, and a members

journeyman level is determined by the local upon admission. A member can withdraw from the

union only by submitting a clear and unequivocal resignation in writing to the Local union.

Although the UBC Constitution provides that charges shall be filed and tried by a Regional

Council, NERCCs trial procedure requires that alleged violations first be referred to the relevant

locals executive board for an informal hearing with the goal of an informal resolution before

charges are filed with the NERCC.

Although collective bargaining agreements may be negotiated by the NERCC on a multi-local

basis, locals are parties to the agreement and conduct ratification votes among local members. In

addition to these functions, the locals also hire their own clerical employees, maintain offices,

maintain bank accounts, hold meetings, engage in voluntary organizing drives, lobby, and

administer scholarship and disability funds.

The SSR rests its decision on the grounds that the local unions that are subordinate to the

NERCC continue to perform functions and purposes traditionally associated with local unions,

and in these circumstances, neither the Departments regulation, nor any applicable precedent,

compel a conclusion that the Secretary should require the NERCC to conduct elections in

accordance with the LMRDAs election rules for local unions. SSR at 10.

The SSR summarizes this new test as follows:

If the subordinate organizations in fact continue to perform

functions and exist for purposes traditionally associated with

local labor unions, the unions characterization of an entity

placed structurally between such organizations and the

international union as an intermediate body will be upheld

even though the intermediate body also performs some other

functions traditionally associated with local unions.

Judge Torruella states: This determination of the NERCCs intermediate status based on the

functions retained by the locals clearly constitutes a departure from the traditional functions and

purposes test, which asked not whether the locals retained any of their traditional functions and

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purposes but whether the entity at the middle tier subsumes so much authority from its

subordinate unions that it must be deemed to have itself become a local labor organization

subject to the Acts direct election requirements.

In conclusion Judge Torruella quotes the appellees:

As Appellees brief laments, if every union could infuse so-called intermediate bodies with the

functions and purposes of a local labor organization without having to be held accountable under

the same election law of a local, then the intent of the LMRDA in this regard would be

emasculated and millions of union members would be effectively disenfranchised. Surely this

was not Congresss intent.

I respectfully dissent.

In our case at bar here in New York in regard to the New York City District Council of

Carpenters (NYCDCC), the Secretarys test of local labor organizations would show that our

locals do not have the traditional functions and purposes of a local labor organization.

Here are some of the differences and similarities between the NERCC and the NYCDCC and

their constituent local unions:

Similarities:

The NERCC locals are independently chartered, so are the NYCDCC locals.

The NERCC locals have identifiable memberships, elect their own officers, and have their own

bylaws, so do the locals of the NYCDCC.

The NERCC locals determine and collect monthly dues, so do the locals of the NYCDCC,

however, a large portion of the dues the locals here collect, go to the NYCDCC.

The NERCC locals hire their own clerical employees, maintain offices, maintain bank accounts,

hold meetings, and administer scholarship, and disability funds, so do the locals of the

NYCDCC.

This is where the similarities end:

Here are the differences:

In the NERCC stewards are local members. Here in the NYCDCC stewards are sent to jobs off

the OWL and cross local union jurisdictional lines. For example a job steward who is a member

of local union 45 can be a job steward on a job in local union 157s jurisdictional area. Here there

really arent any local jurisdictional boundaries.

In the NERCC stewards resolve most grievances without participation of or input from the

NERCC representatives. Here in NYCDCC this is only the same in a very small sense. When an

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issue of jurisdictional dispute between the trades happens, it usually takes the intervention of

business representatives to end the dispute.

The NERCC locals administer all job referrals, on a local, rather than a regional basis.

The locals of the NYCDCC dont administer job referrals at all, it is all done through the

NYCDCC out of work list, and any member can work in any local area from the list.

The NERCCs trial procedure requires that alleged violations first be referred to the relevant

locals executive board for an informal hearing with the goal of an informal resolution before

charges are filed with the NERCC.

Here in the NYCDCC all charges and trails are handled through the NYCDCC. We have no such

system of informal hearings on a local basis.

Although the NERCC negotiates all collective bargaining agreements on a multi-local basis,

locals are parties to the agreement and conduct ratification votes among local members.

The NYCDCC locals are not party to negotiations and we have no contract or agreement

ratification vote by the membership.

In the NERCC a person joins the UBC by becoming a member of a local union, and a members

journeyman level is determined by the local upon admission.

In the NYCDCC locals a person wanting to join the UBC as a journeyman must have a letter of

intent to hire, from a contractor, who states that person is a journeyman and the contractor

intends to hire him/her as such. Usually, that person joins the local union in which local

jurisdictional area the job is that he/she will be working. But this is not always the case,sometimes the person is allowed in another local as long as that person has the letter of intent to

hire. The contractor not the local determines the journeyman level.

Even more so than in NERCC, the local unions here in the NYCDCC, have no real and or

traditional function or purposes of local unions. The NYCDCC handles all of the functions and

purposes that the locals once did.

In the Review Officers First Interim Report Part 1 on Page 35 under section H. An Observation

Regarding Local Unions, sub section (1) is called, Local Unions Have Outlived Their Original

Purpose. This in itself speaks volumes as to my argument that locals in the NYCDCC are leftwith no functions or purposes.

It is my contention that the NYCDCC has therefore become so overwhelmingly and or

omnipresent in our unions affairs and that our local unions have become mere administrative

arms or in fact mere satellite offices of the NYCDCC that the NYCDCC has itself become a

local labor organization under the meaning of the LMRDA , 29 U.S.C. 401-531, and is

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thereby, no longer an intermediate body therefore must be held to the same laws under the

LMRDA as a local labor organization.

Therefore the NYCDCC must hold elections for the Officers of the NYCDCC by a direct rank

and file secret ballot election by members in good standing every three years. [29 U.S.C. 481

401(b)].

Also therefore all dues, initiation fees and assessments must be decided by a rank and file vote of

the membership in accordance with 29U.S.C.411 101 (3) (A) (i) (ii).

In 1998 there was a hearing on THE IMPEDIMENTS TO UNION DEMOCRACY, before the

Subcommittee on Employer Employee Relations , Committee on Education and Workforce at

the United States House of Representatives. The late Professor Clyde W. Summers was one of

the many people to speak on the issue. Professor Summers was a law professor who taught at

Pennsylvania and Yale Universities, as well as, Toledo and Buffalo Universities. He published

more than 125 law review articles, and co-edited five casebooks on labor and employment law.

In 1958 Professor Summers drafted a Bill of Rights for Union Members for the American Civil

Liberties Union, much of which are included in the Landrum- Griffin Act. This led to his

working with Senator John F. Kennedy in drafting major parts of the Landrum- Griffin Act.

Professor Summers, whom I had the extreme privilege to ride next to in a seat on a bus from

Philadelphia to the hearing, stated at the hearing: (I have attached a copy of Professor Summers

statement to this document).

My limited purpose today is to provide some background on the Labor Management Reporting

Act of 1959, more commonly known as the Landrum Griffin Act. I want to focus particularly

on the fundamental premises and purposes of the statute, for understanding those premises and

purposes is essential for any constructive consideration of how to promote union democracy.

Professor Summers then begins at the roots of the statute, which was the National Labor

Relations Act (Wagner Act)of 1935, which he states, the declared national policy was to

encourage the practice and procedure of collective bargaining. One of the basic purposes of

the statute, often lost from view today, was to give workers an effective voice in determining the

terms and conditions of their employment.

Professor Summers then quotes Senator Wagner who states:

The principles of my proposal were surprisingly simple. They were founded on the acceptedfacts that we must have democracy in industry as well as government; that democracy in industry

means fair participation by those who work in the decisions vitally affecting their lives and

livelihood; and that workers in our great mass production industries can enjoy this participation

only if allowed to organize and bargain collectively through representatives of their own

choosing.

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Professor Summers then states:

Collective bargaining, however, can serve this purpose of industrial democracy only if unions

are democratic; workers gain no voice in the decisions of his working life if they have no voice

in the decisions of the union which represents them. This is the basic premise of the Landrum-

Griffin Act: the ultimate goals of collective bargaining can be achieved only if union membersare guaranteed their democratic rights within the union.

He further states:

The focus of Landrum-Griffin, therefore, was to protect the democratic rights of union members

and the democratic process in union decision making.

Later, in Professor Summers statement he says:

This is not time for me to make specific recommendations for strengthening the statute. I

would, however, identify four points for attention:

1. Direct election of officers by the members is required only in local unions. Officer of

national unions or intermediate bodies can be elected by conventions or delegate bodies.

There is little question that direct elections make union officers more responsive to the

members and strengthen the democratic process.

2. Intermediate bodies such as joint boards or joint councils are treated as equivalent to

national unions or left unregulated. They, in fact, often perform the functions normally

performed by local unions. National unions, by restructuring to move functions from the

local union to intermediate bodies, can significantly decrease the union members

effective voice in those functions.

3. Title III of the statute was designed to limit the ability of national officers to deprive local

unions of their autonomy, particularly where trusteeships were imposed to repress

opposition to the national officers. The statute does not reach the substitute device of

abolishing local unions or merging them with other local unions without the members

consent to repress opposition.

4. The primary breeding grounds for corruption are union funds. The only policing is by

union members suing for access to union books when they have substantial evidence of

misuse of funds, and lawsuits are expensive. The government should bear most of theresponsibility for auditing of all union related funds, and closer supervision of pension

and other trust funds.

Professor Summers also states:

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The union political process is a one party process, not a two party process. The

incumbent officers have predominate if not complete control over communication within

the union, access to the membership and dispensing of patronage. Rarely is there a

continuing opposition group with a political base or financial resources. The incumbents,

with their built-in political organization and control of communications have an

enormous advantage over any opposition group which may form. The tendency,

particularly at the national level, is that union leadership tends to become a self-

perpetuating bureaucracy. It is not surprising that incumbent national officers are seldom

defeated in elections.

If union members are to have an effective voice and officers are to be made responsive to

the members preferences, the fact of this gross imbalance in the political process must be

recognized. Union members need greater protection of freedom of speech and assembly

within the union than citizens in the body politic. Election rules need to be designed to

reduce the imbalance. Local autonomy needs to be protected so that opposition groups

may build a political base. The advantage of incumbents can never be fully offset, but the

opposition should be given a measure of hope to encourage them to make their views

heard.

It is clear that, the author of the foundation of the LMRDA, Professor Clyde W.

Summers, recognizes that intermediate bodies are taking on the functions and purposes of

the local unions and that this is detrimental to the voice of the rank and file membership

and democracy in the union, without which the officers of the union dont need to be

responsive to the memberships will and or needs.

The UBC president Douglas J McCarron in his zealous quest to restructure and

reorganize the councils and local unions through, trusteeships and mergers, of said

councils and locals throughout the United Brotherhood of Carpenters and Joiners, has,

inadvertently or intentionally, skirted the edges of the LMRDAs statutes of direct

elections of officers. This has been accomplished by, emasculating the local labor

organizations through the removal of the functions and purposes of the local unions and

empowering the Councils or intermediate bodies with those functions and purposes. In

this the UBC has gone too far. By these acts the UBC has turned the NYCDCC into a

local labor organization, bound to the statute as a local labor organization.

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Just as a point of interest, a Platform of the UBC in the UBC Constitution is:

Adoption of legislation requiring the election of all public officials by direct vote of the

people.

Ubi jus, ibi remedium, (where there is right there is remedy).

There is right here and remedy.

Although the Consent Decree guarantees rank and file elections for the executive officers

of the NYCDCC, there are other issues that need to be fixed.

I therefore, pray this Court declare, the New York City District Council of Carpenters tobe, a local labor organization, by virtue of the Secretary of Labors test, of whether an

intermediate body has taken on so many of the traditional functions and purposes of the

local unions, that the NYCDCC itself has become a local labor organization, and that,

because the locals have been stripped of so many of their traditional functions, and

therefore are not performing any meaningful functions and do not continue to exist for

the purposes associate with local labor organizations that they have become mere

administrative arms of the council.

Respectfully submitted,

William S. Lebo

xxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxx

E-Mail - [email protected]

Cc: RO Dennis Walsh by email

Mr. Torrence

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Michael Bilello by email

Supervisor of the NYCDCC Frank Spencer by email

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Documents

Memorandum in Support of the Bilello Motion.docx