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SPIVAKLIPTONLLP

ATTORNEYS AT LAW James M. Murphy jmurphy@spivaklipton.com 1700 Broadway New York, NY 10019 T 212.765.2100 F 212.765.8954 spivaklipton.com

MEMORANDUM TO: Dennis M. Walsh, Esq., Review Officer United States v. District Council, et. al., 90 Civ. 5722 (RMB) (S.D.N.Y.) James M. Murphy, Esq. Adrian Healy, Esq. Bridget M. Rohde, Esq., Counsel to the Review Officer Margery Feinzig, Esq., Review Officer Team Josh Leicht, Esq., Chief Compliance Officer Scott Danielson, Inspector General Michael Bilello, Executive Secretary-Treasurer Steven McInnis, President Michael Cavanaugh, Vice President Matthew Walker, Director of Operations January 18, 2013 Notice of Possible Action – Referral of Charges to New York City District Council of Carpenters Trial Committee (John Musumeci)

FROM:

CC:

DATE: RE:

I.

Introduction

This memo responds to your request of January 14, 2013 for a statement of position on whether the District Council Executive Committee’s January 10, 2013 referral to the District Council Trial Committee of charges filed by District Council member (and then President) William S. Lebo on July 25, 2012 was proper under the LMRDA and controlling caselaw. Mr. Lebo charged member and Delegate of Local Union 157 John Musumeci with violations of the Constitution of the United Brotherhood of Carpenters (“UBC”) and the District Council’s Bylaws. For the reasons discussed below, the Executive Committee acted properly. Mr. Musumeci’s request that you veto the charges should be denied. As detailed below, (1) Mr. Musumeci’s LMRDA rights are not violated by the charges; (2) the legal authorities cited by Mr. Musumeci do not compel a different result, and (3) in any event, Mr. Musemci’s request for relief is premature and misplaced.

II.

Factual Background

Mr. Lebo’s July 25, 2012 charges allege that Mr. Musumeci violated the UBC Constitution Section 51A, subsections (1), (8), and (12). Those subsections respectively prohibit, “[c]ausing dissension among the members of the United Brotherhood;” “[d]ivulging to any unauthorized person, the business of any subordinate body without its consent;” and “(12) “[v]iolating the obligation.” Mr. Musumeci is also charged with violating sections (2) and 12(G) of the District Council Bylaws. Bylaw Section (2), states that the object of the District Council shall be to “promote and protect the interest of our membership;” and Bylaw Section 12(G) provides that the District Council Executive Committee has the authority and responsibility to provide information about the District Council to the public and membership. 1 Mr. Lebo’s statement in support of the charge provides greater detail. It specifies that on July 18, 2012, Mr. Musumeci posted on his public internet blog (www.local157.blogspot.com) information about District Council legal strategies in connection with a pending grievance arbitration (the “MWA matter”). The charge alleges that the “MWA arbitration issue is an extremely complicated one” and that the “legal strategies had to be kept confidential so that we could proceed on the best possible ground.” The charge asserts, in sum that by posting the information— including the District Council’s planned retention of co-counsel—Mr. Musumeci has divulged confidential information that may compromise the District Council’s position in the MWA matter. We understand that at its first reading of the charges on January 10, 2013, the Executive Committee referred the charges to the District Council Trial Committee. Mr. Musumeci’s request for a veto then followed. III. Processing Internal District Council Charge

Section 52 of the UBC Constitution explains the role of the Executive Committee in the charge and trial process. When charges are filed, they are first presented to the Executive Committee under Constitution Section 52(D). The Executive Committee will examine the charging document and determine whether it adequately specifies the rule or bylaw violated. Assuming it does, the Executive Committee may only dismiss the charges because they are untimely or because the accuser fails to appear in support of the charges. Alternatively, the Executive Committee refers the charge to the Trial Committee. Thus, the Executive Committee is given little discretion by UBC Constitution Section 52(D). It does not examine the merits of a charge, determining only whether the charge states a decipherable claim. Under Section 52(D)(2)(a) the Executive Committee has the authority to dismiss charges only “for reasons stated in paragraph 1 above [i.e., because the charges allege conduct that took place too long ago] or because the accuser fails to appear before the Executive Committee . . . .” It does not have the express power to dismiss charges for any other reason, so long as the charge states a cognizable violation of the rules or Bylaws.

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While a violation of Bylaw Section (2) is listed on Mr. Lebo’s charge form, it is in fact Bylaw Section (3) that states the purpose of protecting the membership.

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Nonetheless, Mr. Musumeci has asked you, acting pursuant to your authority under Paragraphs 5.b.i, and 5.b.iii, or 5.f.v of the June 3, 2010 Stipulation and Order in United States v. District Council, et al., 90 Civ. 5722, to halt this process because he claims that the charges violate his free speech rights LMRDA §101(a)(2), 29 U.S.C. § 411(a)(2). IV. The Charges Do Not Violate LMRDA Section 101(a)(2)

LMRDA Section 101(a)(2), 29 U.S.C. § 411(a)(2) provides, Every member of any labor organization shall have the right to . . . express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations. (emphasis added). LMRDA § 101(a)(2) protections covers a wide range of union member speech on union matters. Libelous, offensive, and even false speech is protected. So too are critical attacks on union leadership, profanity, and petty name-calling. E.g., Petramale v. Local 17 of Laborers Int’l Union, 736 F.2d 13 (2d Cir. 1984) (Union cannot discipline member for slanderous statements critical of union officers); Farrell v. Hellen, 367 F.Supp. 2d 491 (S.D.N.Y. 2005) (Continuously calling union officers “mother-fuckers” was part of protected speech). On the other hand, “free speech” under 101(a)(2) is not limitless. The statute does not extend to all member speech. A union may proscribe conduct, even if it interferes with interests protected by § 101(a)(2), as long as the union’s prohibition is “reasonably related to the protection of the organization as intuition.” United Steelworkers of Am. v. Sadlowski, 457 U.S. 102, 111-12 (1982). Mr. Musumeci’s request for your veto of the current charges entirely disregards the proviso highlighted above. The present charges do not attack Mr. Musumeci’s right to speak out against union leadership or policies. Indeed, no member has ever sought to silence Mr. Musumeci’s speech on account of his viewpoints. His blog is continuously updated, with much material that could be considered disparaging at best, and defamatory at worst. And he concedes that no charges have even been filed against him. Here, the central focus of Mr. Lebo’s charges is Mr. Musumeci’s disclosure of information that could damage the union’s position in a pending legal proceeding. That allegation states a violation of UBC Constitution Section 51A(8). And union rules that seek to protect sensitive union information from outsiders are reasonable attempts to preserve confidentiality and fall within the LMRDA § 101(a)(2) proviso. Quigley v. Giblin, 569 F.3d 449 (D.C. Cir. 2009).

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In Quigley, members alleged violations of § 101(a)(2) when their international union passed a resolution requiring that union campaign websites would be password protected and accessible only to members. Id. at 452-53. The plaintiffs alleged that the rule frustrated and interfered with the campaigning members’ right to communicate with other members. Id. at 454. The court held that while the rule affected member interests under § 101(a)(2), it was reasonable and permissible under the proviso because it related to the union’s legitimate interest in protecting sensitive union information. Id. at 456-57. The same principles apply here. UBC Constitution Section 51A(8) prohibits unauthorized divulgence of union business. Mr. Musumeci is alleged to have publicly distributed sensitive information about the union’s legal strategy in connection with the MWA matter. Section 51A(8) appears to be reasonably applicable here. The District Council has a legitimate interest in shielding its litigation and grievance strategies from the public, lest an employer or party-opponent could receive portions of that information and use it to the Union’s detriment. In this connection, the lower court in Quigley (with whom the D.C. Circuit Court of Appeals agreed) noted that the union has a valid interest in protecting information about “negotiating, organizing, and grievance handling strategy and tactics.” Quigley v. Giblin, 582 F.Supp.2d 1, 12 (D.D.C. 2008). Retention of counsel is unquestionably an aspect of strategy. Mr. Musumeci, along with only the other District Council delegates, received an email from the District Council on July 16, 2012 about the possible retention of special outside counsel. Moreover, Mr. Musumeci’s blog article reveals the following about how MWA matter will be handled: “[t]he attorneys will ‘dispute the arbitrators [sic] decision’ and present questions which will involve the calculation of the ‘damages’ . . . .” You have asked whether Mr. Musumeci was put on notice that the information in the July 16, 2012 email was confidential or proprietary. The very fact that the email was sent to this select group for action (as opposed to distributed in a public forum) indicates that the information contained therein was private. You have also asked whether the District Council suffered any harm as a result of the publication of Mr. Musumeci’s article. But the LMRDA does not require a showing of actual harm in order for a reasonable rule to be imposed upon member communications. In Quigley, the D.C. Circuit held that “'[s]ection 101(a)(2) does not impose an evidentiary burden but requires only that a union rule be ‘reasonable.’” 569 F.3d at 456. The union was therefore not required to offer evidence that actual harm fell on the union from members broadcast of sensitive information. Id. V. The Authorities Relied Upon by Mr. Musumeci Are Not Applicable Here

Mr. Musumeci, who is not an attorney, does a commendable job of recognizing certain LMRDA statutory goals. Yet, the legal authorities he cites are inapplicable here and actually cut against the position that he attempts to articulate. He recites a portion the Supreme Court’s Sadlowski decision regarding the legislative purposes behind enactment of LMRDA Title I. See Sadlowski, 457 U.S. at 111 (1982). Yet, he leaves out equally critical portions of the Court’s holding. The Court held that LMRDA’s free speech rights are not coextensive with the rights guaranteed by the First Amendment of the U.S. Constitution. Id. 111. (“There is absolutely no indication that Congress intended the scope of § 101(a)(2) to be identical to the scope of the First 4

Amendment.” And, “First Amendment principles may be helpful, although they are not controlling.”) Mr. Musumeci cites Knox County Local, Nat’l Rural Letter Carriers’ Ass’n v. Nat’l Rural Letter Carriers’ Ass’n, 720 F.2d 936, 937 (6th Cir. 1984) for the simple principle that LMRDA’s Title I free speech provisions are “modeled after the First Amendment.” He then appears to argue that the LMRDA’s free speech provisions are equivalent to the right to free speech under the U.S. Constitution. As stated above, the law plainly provides otherwise. Christian Legal Society v. Walker, 453 F.3d 853 (2005), a case referenced by Mr. Musumeci, where First Amendment rights where asserted (pursuant to one of the post-Civil War civil rights statutes, 42 U.S.C. § 1983) also has no application here. It is not an LMRDA case. Finally, Mr. Musumeci cites Price v. Carpenters' Dist. Council of Greater St. Louis & Vicinity, 10-CV-0741-MJR-PMF, 2010 WL 3958669 (S.D. Ill. Oct. 8, 2010). In that case, a Carpenters District Council representative tried to force member Price to get rid of a bumper sticker that criticized the union. Id. at *2. The representative told Price that the sticker would have to be removed from Price’s truck or else he would be brought up on charges. Id. Price did not remove the sticker and was charged, among other things, with “causing dissension amongst the Brotherhood” (under the UBC Constitution). The court granted Price’s application for a preliminary injunction to prevent the union from pursuing the charges. Price is inapplicable here, however, because that case dealt with an unreasonable content based prohibition on speech. The union’s application of the UBC Constitution in Price was plainly unreasonable because the member’s public expression of his views about the union by way of the bumper sticker were plainly within LMRDA § 101(a)(2)’s protections. The union there appeared to rely on an unreasonable rule that would interfere with Price’s speech. Here, the opposite is true. Mr. Musumeci’s communications have exposed sensitive union information and the union is entitled to curb dissemination of its private business information under the LMRDA § 101(a)(2) proviso. VI. The Request For Relief is Premature

Even setting aside the above discussion, Mr. Musumeci’s request for “veto” relief is premature. First, as discussed above, the Executive Committee’s discretion is strictly limited. It can only dismiss charges for specifically enumerated reasons. Mr. Musumeci asked the Executive Committee to dismiss his charges on the merits. A review and decision on the merits is not within the Executive Committee’s authority under UBC Constitution Section 52. Therefore, Mr. Musumeci’s request to the Executive Committee was misdirected, though it may still be raised before the Trial Committee. Second, Mr. Musumeci appears to rely on Stevens v. NW. Indiana Dist. Council of Carpenters, 20 F.3d 720, 721 (7th Cir. 1994) to suggest that exhaustion of intra-union remedies is not required prior to initiating a LMRDA Title I case. However, it is within the discretion of the courts to determine whether exhaustion of remedies is required. And the courts do so on a case by case basis. The courts “must balance the right of union members to institute suit against the policy of judicial noninterference in union affairs.” Maddalone v. Local 17, United Broth. of Carpenters & Joiners of Am., 152 F.3d 178, 186 (2d Cir. 1998) (quoting Johnson v. General Motors, 641 F.2d 1075, 1079 (2d. Cir. 1981) (internal quotation marks omitted)). The courts examine three factors in determining whether the exhaustion doctrine applies: 5

[F]irst, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim; second, whether the internal union appeals procedures would be inadequate either to reactivate the employee's grievance or to award him the full relief he seeks . . . ; and third, whether exhaustion of internal procedures would unreasonably delay the employee’s opportunity to obtain a judicial hearing on the merits of his claim. Maddalone, 152 F.3d at 186 (quoting Clayton v. Int’l Union, UAW, 451 U.S. 679, 689 (1981)). Mr. Musumeci presently seeks relief from you that would otherwise be available only in court before a U.S. District Judge. Therefore, an application of the exhaustion analysis is appropriate here. This inquiry starts and stops with the first factor. Here, no union official has any hand in the Trial Committee’s deliberations, proceedings, or adjudications. In short, there is no question that Mr. Musumeci will be entitled to fair consideration of his charges. VII. Conclusion

For the foregoing reasons, the District Council’s Executive Committee properly referred the charges against Mr. Musumeci to the Trial Committee. This memo expresses no other opinion aside from those specifically set forth herein.

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