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4-11-13 DDS (12pgs) to RMB Doc. 1307

4-11-13 DDS (12pgs) to RMB Doc. 1307

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Published by Latisha Walker
4-11-13 DDS (12pgs) to RMB Doc. 1307
4-11-13 DDS (12pgs) to RMB Doc. 1307

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Published by: Latisha Walker on Apr 14, 2013
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11206Demian D. Schroeder14 Meadow StreetBrooklyn, NYApril 11, 2013
CHAil-18EHSL:F
RICHARD
M.
BERMAN
U.S.D.J.
HonorableRichard
M.
Berman
U.S.
District
Judge
U.S.
District
Court
(SDNY)
Daniel
Patrick
Moynihan United
States
Courthouse
500
Pearl
Street,
Courtroom
12
(1«,,,
~.
J.,1c.t
J.
SO
ORDERED:
____
Iltt..8
RICHARD
M.
SD.J~
--
'1/,t/'J
onc
4
~
--
-
___ _
DArE
FILED:~.IJLr?"
New York,
NY
10007SUbjectU.S.
v.
District Council
of
New
York and Vicinity
of
the United Brotherhood
of
Carpenters
&
Joiners
of
America, et al; (Index No. 90 Civ. 5722) (RMB)(THK)Reference:
February
13, 2013
Order,
Doc. No. 1255
MOU
response
of
Review Officer
&
D.C. Attorney James M. Murphy
Dear
Judge Berman:
In
TEAMSTERSLOCAL
v.
LABOR
BOARD,
365
U.S. 667 (1961)
the
court
stated:
The
Board recognizes that the hiring hall came into being "to eliminate wasteful. timeconsuming. and repetitive scouting for jobs
by
individual
workmen
and haphazard uneconomicalsearches
by
employers." Id . 896. n. 8.
The
hiring hall at times has been a useful adjunct
to
theclosed shop.J.
But
Congress
may
have thought that
it
need
not
serve that cause, that in fact
it
hasserved well both labor and management -particularly
in
the maritime field and
in the
buildingand construction
ndustry.~
In
the
latter
thecontractor
who frequently
is a
stranger
to
the
area
wherethe work
is
done
requires
a
"central
source"for
his
employment
needs;,S,
and
a
man
[365 U.S.
667,673]looking
for
a
job
finds
in
the hiring
hall
"at
least
a
minimumguarantee
of
continuedemployment.
"§
Congress has
not
outlawed the hiring hall. though
it
has outlawed the closed shop except withinthe limits prescribed in the provisos
to
8 (a) (3).7 Senator Taft made clear his views that hiringhalls are useful, that
they
are
not
illegal
per
se, that unions should be able
to
operate
them
so longas
they
are
not
used
to
create a closed shop:"In order to make clear the real intention
of
Congress,
it
should be clearly stated that the hiringhall is
not
necessarily illegal.
The
employer should
be
able
to
make a contract
with
the union
as
an
employment agency.
The
union frequently is the
best
employment agency. The employershould
be
able [365 U.S. 667, 674]
to
give notice
of
vacancies, and in the normal course
of
events
to
accept
men
sent
to him
by the hiring hall. He should
not
be
able to bind himself,however,
to
reject nonunion
men
if
they
apply to him;
nor
should he be able
to
contract
to
accept
menon
a rotary-hiring basis
....
""
...
The
National
Labor
Relations Board and the courts did
not
find hiring halls as
such
illegal,
but
merely certain practices under them.
The
Board and the court
found
that
the
manner
in
Case 1:90-cv-05722-RMB-THK Document 1307 Filed 04/12/13 Page 1 of 12
 
which
the
hiring halls operated created in effect a closed shop in violation
of the
law.
Neither the law nor these decisions forbid hiring halls. eyen hiring halls operated by the unionsas long as they are not so operated as
to
create a closed shop with all
ofthe
abuses possible undersuch an arrangement. including discrimination against employees. prospective employees.members
of
union minority groups, and operation
ofa
closed union."
S.
Rep. No. 1827, 81stCong., 2d Sess., pp. 13,
14.
There being no express
ban
of
hiring halls in any provisions
of
the Act, those who
add
one,whether
it be
the Board
or
the courts, engage in a legislative act.
*********************
Please reference our prior letter dated February 27, 2013, Doc. No. 1231, 8-pages regardingthe NYCDCC August
5,
2011 by-laws, Section 5, 12,
&
20. Section 4(A)
of
the By-lawsapproved by the Court vesting the Executive
&
Legislative power in the District Council. TheEST holds limited powers via the Executive branch
ofthe
District Council under the by-lawstructure, Section
10
(A)
to
(N)
as
established by the United States Attorney, the Review Officerand
as
approved
by
the Court.The Council Delegate Body (CDB) holds the Legislative powers, without limitation under bylaws Sec. 4(A) and under Sec. 4(B), it holds the full plenary power and authority as a check(mandated by the
RO.
&
U.S.A.O.) on an out
of
control and dictatorial EST such as was presentwithin the Forde administration. Accordingly and contrary to the UBCJA International dictates toEST Bilello, it is the legislative branch
of
the New York City
&
Vicinity District Council
of
Carpenters (NYCDCC) who in the first instance must initiate any and all proposed changes tothe May 26, 2009 standing order
of
Judge Haight for the 67% Contractor to 33% HiringlReferralHall Out
of
Work (OWL) list register.The UBCJA International and it counsel
of
record, Latham
&
Watkins and/or the NYCDCCor the Wall, Ceiling
&
Carpentry Industries
of
New York and their associated counsel
ofrecord
do not have or hold the vested legal power or rights under the representative form
of
democracy(which they have all jointly
&
severally pushed the court to accept) established and claimed byUBC General President Douglas
J.
McCarron since the advent
of
the District Council structurenegated the right
of
rank
&
file members to secure via private secret ballot election, a vote forthe business agents and officers they choose; rather, McCarron and his counsel
of
record and theDistrict Council and their counsel
of
record intentionally went before the Department
of
Labor(DOL) via two lawsuits, Harrington
v.
Herman and Harrington
v.
Chao within the First CircuitCourt
of
Appeals arguing for the representative form
of
democracy.At page 47-49 in the member response, July 1, 2011, to the UBCJAlnternational's RestructuringPlan, we stated:
AUTHORITY TO LEGISLATE:In A.L.A. Schechter Poultry Corp.
v.
UNITED STATES, 295 U.S. 495 (1935)
at
ChiefJustice Hughes stated:
First. Two preliminary points are stressed by the government with respect to the appropriateapproach to the important questions presented. We are told that the provision
ofthe
statute
2
Case 1:90-cv-05722-RMB-THK Document 1307 Filed 04/12/13 Page 2 of 12
 
authorizing the adoption
of
codes must be viewed in the light
of
the grave national crisis withwhich Congress was confronted. Undoubtedly, the conditions to which power is addressed arealways
to
be considered when the exercise
of
power is challenged.
Extraordinary
conditions
may
call for
extraordinary
remedies.
But the argument
necessarily stops
shortofan
attempt
to justify action which lies outside
the sphere of
constitutional authority.
Extraordinary
conditions
do
not
create
or
enlarge
constitutional power.
!!
The
Constitutionestablished a national
government
with powers deemed to be
adequate,
as they have
proved
to be
both
in
warand
peace,
but
these powers
of the
national
government
are
limited
by the
constitutional
grants.
Those who
act
under
these
grants
are
not
at
liberty
to
transcend the
[295 U.S. 495, 529] imposed limits because they believe
that
more
or
different
power
is
necessary. Such assertions
of
extra-constitutional
authority
were anticipated
and
precluded
by the
explicit
terms of the
Tenth
Amendment-
'The powers not delegated to the United Statesby the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or tothe people.'Douglas
J.
McCarron proffered a false dogma
of
extra-ordinary circumstances created by the"sophisticated regional Contractors working intra-state and inter-state, therein requiring theMobility
of
the Contractor workforce. This policy was presented in 1997 under the Consentdecree and was implemented nationally in 1999.Predecessor actions to this new policy were reflected in the UBCJA Internationals prior lawsuitswherein they convinced the 6
th
Circuit that Union By-Laws created the right to vote for BusinessRepresentatives, therein, that right could be taken away by another by-law rules change, per, 992F.2d. 1418 (1993) UBCJA Dresden Local No. 267
v.
UBCJA International and Sigurd Lucassen(92-3746) at 42 .. As a matter
of
law, the 6
th
Circuit erred in stating "looking at the actual mechanics
of
theloss
of
the right to elect a business representative, the district court reasoned it was theadoption
of
the Council by-laws, not the reorganization that eliminated the Local's rightto elect a business representative. Indeed, it was the Capital District Council by-laws thatcreated the right in the first place."
In
Lechmere, Inc.
v.
NLRB, 502 U.S. 527 (1992),
Justice
Thomas
at
II
A
stated
"Section 7
of
the NLRA provides in relevant part
that"
[e
]mp loyees shall have the right to self-organization, toform, join, or assist labor organizations." 29 U.S.C. 157. Section 8(a) (1)
of
the Act, in turn,makes it an unfair labor practice for an employer "to interfere with, restrain,
or
coerce employeesin the exercise
of
rights guaranteed in [502 U.S. 527, 532]
[7]."
29 U.S.C. 158(a)(1).
By
itsplain
terms.
thus.
the
NLRA
confers ri2hts only on employees.
not
on unions
or
their
non employee or2anizers."The District Courts reasons in Dresden are not in accordance with the text
of
the NLRA or itsLegislative history. No other Circuit Court has made such a similar ruling, nor could they
as
it isfactually and legally incorrect, and can therefore not stand. The Sixth Circuit's decision inDresden Local 267 issued on April 27, 1993, some 15-months after the Lechmere decision issuedon January 27, 1992.
3
Case 1:90-cv-05722-RMB-THK Document 1307 Filed 04/12/13 Page 3 of 12

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