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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK


DOCUMEtffiiTED STATES
ELECTRONICALLY F
DOC#:
AMERICA,
Defendants.
Brief Of Patrick Nee And Levy Messenetti In Response To Courts Request For Submissions
Table Of Contents
Table of Authorities
Whether The Issues Remain Ripe For Consideration.
The Review Officer Does Not Have The Authority To Remove Elected Officials
This Was A Disciplinary Action
Local I 57 Was Not A Party To The Entry Of The Stipulation
The Natural And Historical Sense Of The Term 'Veto'
The Review Officers Greatly Expanded Authority u n e r ~ 5.b ..
~ 5.f.
Conference Held On April3, 2013
Position Of The Parties Prior To The Stipulations Entry
This Can Only Be Considered State Action
Conclusion
Footnotes
Table of Authorities
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2
3
6
7
8
9
10
12
14
15
17
18
Bergerv. Heckler, 771 F.2d 1556, (2d Cir.I985) 9
Bison Capital Corp. v. ATP Oil & Gas Corp., 2010 WL 2697121, (2010) 9
Bricklayers, Plasterers' & Stonemasons Union v. Bowen, 183 N.Y.S. 855, 5
(Sup.Ct.l920),
Burnet v. Chicago Portrait Co., 285 U.S. I, (1932) 17
Chevron USA Inc. v. Natural Resources Defense Council. Inc., 467 U.S. 837, 104 S. 17
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Ct. 2778, 81 L. Ed 2d 694 (1984).
FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27, 32 (1981)
FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745-746 (1973)
FTC v. Co/gate-Palmolive Co.,380 U.S. 374,385 (1965)
GSJ Commerce Solutions, Inc. v. BabyCenter, L.L. C., 618 F.3d 204, (20 10)
Gulickson v. Forest, 290 F. Supp. 457, (1968)
Hanly v. Kleindienst, 471 F.2d 823, 829 (2d Cir.l972)
Koukly v. Canavan, 154 Misc. 343, 277 N Y.S. 28 (Sup.Ct.l935).
Local Unions 20 v. Carpenters, Joiners of America, 223 F. Supp. 2d 49,(2002).
Madden v. Atkins, 4 A.D.2d I, 162 N.Y.S.2d 576, (2d Dep't 1957)
Maltese v. Dubinsky, 304 N.Y. 450, 108 N.E.2d 604 (1952).
NL.R.B. v. Greensburg Coca-Cola Bottling Co., Inc., 40 F.3d 669, (3rd Cir. 1994).
NLRB v. Brown, 380 U.S. 278, (1965)
Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, (2d Cir.2008)
Social Security Board v. Nierotko, 327 U. S. 358, 369 (1946)
Talton v. Behncke, 199 F.2d 471, (7th Cir. 1952)
TRAVELERS CAS. v. Dormitory Authority-State of NY, 735 F. Supp. 2d 42, (201 0).
United States v. Atlantic Refining Co., 360 U.S. 19, (1959)
United States v. Broad. Music, Inc., 275 F.3d 168, (2d Cir.2001)
United States v. Dist. Council of New York City, No. 90 Civ. 5722,2010 WL
5297747, (S.D.N.Y. Dec. 21, 2010)
United States v. District Council, 880 F. Supp. 1051, (S.D.N.Y. 1995)
United States v. lnt'l Bhd. ofTeamsters, 247 F.3d 370,386 (2d Cir.2001)
Universal Camera Corp. v. NL.R.B., 340 U.S. 474, 71 S.Ct. 456, 464, 95 L.Ed. 456
(1951).
US v. District Council of New York City, 941 F. Supp. 349, (S.D.N.Y. 1996).
Volkswagenwerk v. FMC, 390 U. S. 261, 272 (1968)
Websterv. Luther, 163 U.S. 331,342 (1896)
Statutes:
29 u.s.c. 185
29 U.S. Code 43l(a)(5)(H)
Whether The Issues Presented Remain Ripe For Consideration.
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II
5,6
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6
3
6
6
16
17
II
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4
I 0,11
9
8
II
NIO
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The UBC Constitution gives us a cognizable expectation of remaining in our elected offices
unless removed in accordance with it procedures. "Any officer may be removed after due trial
upon charges preferred in conformity with Sections 51 and 52 of the Constitution and
32) The UBC Constitution further provides that "[t]he regular terms of elected officers shall be
three years in Local Unions ..... or until their successors are elected, qualified and
31 C).(see Attachment A)
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Since this removal was contrary to our organizations constitution, we are entitled to the
stipends we would have received had this unlawful action not occurred. The UBC Constitution
in 51 D holds: "An officer or Business Representative may be suspended without pay but if
such an officer or Business Representative is found not guilty of all charges, by a Trial
Committee or on appeal, he or she shall be entitled to recover all back pay withheld from the
Local Union, District or Regional Council, or Industrial Council." Which comes to $43,842.50
for Nee as President, and $9,230 for Messenetti as Recording Secretary for the twenty-five
months which remained in our terms, plus $1,950 each for the thirteen months which remained
in our terms as delegates. (See Attachment B)
"A union constitution is a contract between labor organizations. As such, in an action
brought under 29 U.S.C. 185, it may be enforced like any other contract." Local Unions 20 v.
Carpenters, Joiners of America, 223 F. Supp. 2d 491,498 (SONY 2002). (citation omitted).
We both currently hold elected offices, Messenetti is both a delegate and an Executive
Board member and Nee is a delegate. We are not expected to live under the hangman's noose
and hope that the Review Officer does not act in excess of his authority again. The fact that our
terms expired while this action was still pending in the courts makes it plain that review by the
courts does not adequately protect our rights and thus are entitled to have the court enter a
decision which will ensure that we are not so exposed again.
The proposed Stipulation which is currently before the court would bar us from being
Council Officers in our union; and the situation has already occurred where a member who had
met all the criteria required to become a Council Representative was denied position because of
the stigma that the prior unlawful removal had created. This unquestionably shows that the
Review Officer's action impacts on our future rights in our union, it has damaged our reputations
and will continue to present a hurdle which must be crossed every time someone seeks to
discredit us. We are entitled to have the stigma created by this unlawful action removed.
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(:
'
The Review Officer Does Not Have The Authority To Remove Elected Officiais_lll
The United Brotherhood of Carpenters, the New York District Council of Carpenters and
Local 157 are separate legal entities, and the authority held by the UBC over its subordinate
bodies is only that which it is granted in the unions constitution. This is made plain in the eighth,
ninth and tenth prefatory "Whereas" paragraphs that precede the substantive provisions of the
Stipulation:
"WHEREAS, the United Brotherhood of Carpenters and Joiners of America ("UBC")
determined that "the affairs of the District Council are being conducted in a manner detrimental
to the welfare and best interests of the District Council, the UBC, and its members, and/or
contrary to the provisions and requirements of the UBC Constitution. and that the continued
operation of the District Council is in jeopardy." .... "pursuant to the UBC Constitution and
Laws, the UBC appointed a trustee (the "UBC Trustee") to assume full supervisory authority
over the District Council, including the power to assume and exercise full and complete authority
over the conduct of the District Council's affairs," .... "the UBC Trustee of the District Council is
empowered under the UBC Constitution to consent to the relief contained herein on behalf of the
District Council and its constituent locals, and so binds these entities and their members to the
terms and conditions of this Stipulation and Order Regarding Appointment of a Review Officer."
(emphasis added)
These paragraphs describe both the authority held by, and the actions taken pursuant to that
authority by the UBC. To allow that the Review Officer holds the authority to remove elected
officials would require one to read those prefatory paragraphs as holding, that upon determining
that the District Council was conducting its affairs in a manner contrary to the provisions of the
UBC Constitution, the UBC was empowered to have the affairs of the District Council
conducted in a manner contrary to the provisions of the UBC Constitution.
"An unincorporated society such as this, so far as procedure is concerned, has no
governing law other than and except its Constitution and By-Laws which constitute a
binding contract between all the members and officers. levator Operators. elc .. v.
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Newman, 30 Cal.2d 799, 186 P.2d I. Whether such an association acts properly is to be
determined by the authority granted, not by virtue of any statute but by virtue of the
Constitution and By-Laws under which it exists and by which the propriety of all its
actions is measured. By this compact, plaintiffs, defendant and all other members were
bound. Consequently, in examining the validity of the actions of the Board of Directors,
we can have recourse only to the question of whether the Constitution and By-Laws
authorize the action taken." Talton v. Behncke, 199 F.2d 471,473 (7th Cir. 1952)
What an ambiguous interpretation of the Stipulation can be construed to mean is of no
moment where such relief is contrary to the UBC Constitution, as the UBC Trustee would not
have the authority to enter into such an agreement. The UBC Constitution does not allow for the
summary removal of officers and describes only one method to effect the removal of an officer
other than by placing the subordinate body under trusteeship, whereby "[ a]ny officer may be
removed after due trial upon charges preferred in conformity with Sections 51 and 52 of the
Constitution and 32) The UBC Constitution further provides that "[t]he regular terms
of elected officers shall be three years in Local Unions ..... or until their successors are elected,
qualified and 31 q_l2
1
Section 51 lists the various charges which may be brought
against a member and Section 52 describes the process which any officer can expect before they
can be lawfully removed from office prior to the conclusion of their three year term. The officer
is entitled to a fair and impartial hearing with a jury of their peers; to be present at all times when
evidence is being received; to have the accuser's case presented first; to confront and cross-
examine witnesses and recall witnesses; to call witnesses of their own; and to make a closing
statement.
In Gulickson v. Forest, 290 F. Supp. 457, 465,467 (1968) the court held:
"Under New York law mere ritualistic compliance is not sufficient See Bricklayers',
Plasterers' & Stonemasons' Union v. Bowen, 183 N.Y.S. 855, 859 (Sup.Ct.l920), ajf'd
mem., 198 App. Div. 967, 189 N.Y.S. 938 (4th Dep't 1921) ('the law insures to every
member of such an association a fair trial, not only in accordance with the constitution
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and by-laws of the association, but also with the demands of fair play'). Due process is
not a condiment to make a raw deal appear more palatable." ....... 'There is nothing in
the record to suggest that, had Gulickson objected to the form of the tribunal, another
trial body would have been constituted. A union may not, by relying on the doctrine of
implied waiver, shift to a suspect the responsibility of providing a fair trial. The primary
responsibility for qffording the essentials of due process rests on the accusers, not the
accused Where necessary to insure due process, a union's constitution must be modified
to assure fair tribunals. "(emphasis added)
While the constitution might allow for an officer to be removed after proceedings pursuant
t ~ 5.f., which gives at least the same level of process as the constitution, the constitution
cannot said to allow for the summary removal of officers without the requisite process, any
contract entered into under the authority of the constitution is plainly void where the terms of
that contract are contrary to the UBC Constitution.
This Was A Disciplinary Action
The Review Officers has previously relied on United States v. Int '1 Bhd. of Teamsters, 247
F.3d 370,386 (2d Cir.2001) ("Carey") to support the position that he is not required to provide
due process. A close reading of the court's decision actually shows a contrary result here, as the
Carey court qualified the holdings relied on by the Review Officer with the preface: "Neither the
IBT Constitution nor the Consent Decree grants IBT members compulsory process rights in
disciplinary proceedings." (see 247 F.3d at 385).
The UBC constitution does contain compulsory process rights and that is what is applicable
here. Since the UBC's authority to enter into the Stipulation was derived from the constitution,
what is relevant is whether the UBC Constitution deems the action to be disciplinary. In
Gu/ickson 290 F. Supp. 464 the Court held that:
"The contractual nature of the rights under the Union Constitution is especially clear in
the case of a member who is a salaried union official, paid by the union and elected to
his position pursuant to the provisions of the constitution. His election to a post whose
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duties are defined in the constitution amounts to an agreement that his employment will
be governed by its terms. Maltese v. Dubinsky, 304 N.Y. 450, 108 N.E.2d 604 (1952).
Removal in violation of the terms of this employment agreement is a breach of contract
for which a union may be held liable." ...... "In addition, higher judicially imposed
standards to insure impartiality in union disciplinary proceedings have been read
regularly into union charters by New York courts. See, e. g., Madden v. Atkins, 4 A.D.2d
I, 162 N.Y.S.2d 576, 592-593 (2d Dep't 1957), aff'd, 4 N.Y.2d 283, 174 N.Y.S.2d 633,
!51 N.E.2d 73, 74 A.L.R.2d 772 (1958)(impartial union tribunal); Koukly v. Canavan,
!54 Misc. 343, 277 N.Y.S. 28 (Sup.Ct.l935). See also Summers, The Law of Union
Discipline: What the Courts Do in Fact, 70 Yale L.J. 175,204-05 (1960) (collects New
York cases)".
The action taken by the Review Officer is considered to be a disciplinary action under the
UBC Constitution
13
1 and thus is a disciplinary action in the Stipulation, and the fact that the
action taken here would require disciplinary proceedings under the Consent Decree further
supports the finding that disciplinary proceedings were required. The courts have also
consistently held that removal from office is disciplinary, but that it does not fall under the
purview of 'otherwise disciplined' in the LMRDA which only deals with members rights as
members, and that an officer is only entitled to those proceedings contained in their unions
constitution, but the courts have never gone so far as to suggest that it was not a disciplinary
action.
Local !57 Was Not A Party To The Entry Of The Stipulation
We were not District Council officers, we were officers of the local union, which is a
separate legal entity. (See Attachment D Pg. 3-6 & D I Pg. 8-9) Officers ofthe locals are elected
to their office at the local, and our terms and powers are set forth in the constitution, and as such
we were neither employees nor officers of the District Council.
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The District Council's only
authority in regards to the removal of a local union's officer is the power to conduct trials of
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members within its jurisdiction subject to Sections 51 and 52 of the Constitution, and does not
extend so far as to allow the Council to create a tribunal which does not meet these strictures:
"A District Council or Regional Council shall have the power to conduct trials of
members or Local Unions within its jurisdiction who have been charged with violating the
Constitution and Laws, violating the District Council or Regional Council Bylaws and/or
Trade Rules or violating the Trade Rules of a Local Union when such violation occurs within
the District Council's or Regional Council's jurisdiction, and impose such penalties as they
may deem the case requires, subject to Sections 51 and 52 and the right of appeal under
Section 53 (UBC 26F) rsr
"[I]t is a principle of general application in Anglo-American jurisprudence that one is
not bound by a judgment in personam in a litigation in which he is not designated as a party
or to which he has not been made a party by service of process." Hansberry v. Lee, 311 U. S.
32, 40 (1940). See, e. g., Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327, n. 7
(1979); Blonder-Tongue Laboratories, Inc. v. University Foundation, 402 U.S. 313,328-329
(1971); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969). This rule
is part of our "deep-rooted historic tradition that everyone should have his own day in court."
18 C. Wright, A. Miller,& E. Cooper, Federal Practice and Procedure 4449, p. 417 (1981)
(hereafter 18 Wright). A judgment or decree among parties to a lawsuit resolves issues as
among them, but it does not conclude the rights of strangers to those proceedings." Martin v.
Wilks, 490 U.S. 755, 761-2, 109 S. Ct. 2180, 104 L. Ed. 2d 835 (1989).
The Natural And Historical Sense Of The Term 'Veto'
Black's Law Dictionary 2nd Ed. defines the term 'veto' as:
"The veto-power is a power vested in the executive officer of some governments to
declare his refusal to assent to any bill or measure which has been passed by
the legislature. It is either absolute or qualified, according as the effect of its exercise is
either to destroy the bill finally, or to prevent its becoming law unless again passed by a
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stated proportion of votes or with other formalities. Or the veto may be merely
suspensive. See People v. Board of Councilmen (Super. Buff.) 20 N Y Supp. 51.
A veto is the power to unilaterally stop an official action. A veto only gives power to stop
changes, not to adopt them, thus a veto allows its holder to protect the status quo. When allowed
its natural sense, which is consistent with the demarcation given to it in the Consent Decree, one
finds the term exactly where one would expect to in the Stipulation and Order, juxtaposed with
the Review Officers greatly increased authority over actions taken at the District Council. There
is nothing to suggest that the term has somehow acquired a new meaning and now holds an
unnatural sense in the Stipulation. (See United States v. Broad. Music, Inc., 275 F.3d 168, 175
(2d Cir.2001) ("deference is to be paid to the plain meaning of the language of a decree and the
normal usage of the terms selected."(citing Berger v. Heckler, 771 F.2d 1556, 1568 (2d
Cir.1985)) (See also Bison Capital Corp. v. ATP Oil & Gas Corp., 2010 WL 2697121, at *9
(S.D.N.Y. 2010)). Clear contractual language does not become ambiguous by virtue of the
interpretation given by a party to litigation .
The situation here is similar to that in United States v. Atlantic Refining Co .. 360 U.S.
19,23-4, (1959), where the Supreme Court gave weight to an interpretation "where the language
of a consent decree in its normal meaning supports an interpretation and where that interpretation
has been adhered to over many years by all the parties, including those government officials who
drew up and administered the decree from the start," and upheld that interpretation even though
"another reading might seem more consistent with the Government's reasons for entering into
the agreement in the first place."
The court rejected a strained construction which could not be reconciled with the consistent
reading which had been given to the decree, by both the United States and the appellees, for the
some sixteen years prior to the commencement of that action; which is the same length of time
that the term 'veto' has retained its natural sense prior to the entry of the Stipulation and Order.
(see Atlantic Refining, 360 U.S. at 22.)
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The Review Officers Greatly Expanded Authority under, 5.b .
If one compares the authority held by the Review Officer 5.b. with the authority
held by prior court appointed officers in this matter, one finds that the power of the Review
Officer has been expanded tremendously in the Stipulation and Order. By adding "require the
District Council to rescind its action, proposed action, or lack of action," in addition to the
authority to veto actions of the District Council, the Review Officer was given tremendous
power beyond merely being able to protect the status quo, in that he could require the District
Council to act, ("rescind its lack of action"), or even require that an action already committed be
undone, ("rescind its action").
Yet the Review Officers urges that where the Stipulation allows him veto authority, it
should be separated from this following construction which are all specifically directed at actions
be held thus: "Upon such a determination in the case of the District Council, the Review Officer
may veto," but even this does not allow the Review Officer the authority he seeks, the term
'veto' brings both its natural sense and its history with it, and neither can be construed to allow
the Review Officer to remove an elected official, but only to protect the status quo.
Which is probably why the construction which follows the term 'veto,' which allows the
Review Officer to do more than protect the status quo is always included when promoting this
interpretation, (e.g: "authorizes the RO to "veto or require the District Council to rescind its ... lack
of action,"), in order to suggest that the veto authority is somehow more than the sum of its parts
and somehow applicable to that which it is not. "Courts may not by construction add or excise
terms, nor distort the meaning of those used and thereby make a new contract for the parties under
the guise of interpreting the writing." (citation omitted)." TRAVELERS CAS. v. Dormitory
Authority-State of NY, 735 F. Supp. 2d 42,56-7 (S.D.N.Y. 2010).
li[
In order to resolve any presumed ambiguity in a contract, one must first look to the four
comers of the document for a resolution. The plain language 5.b &f. do provide
clarification in 5.b requires the Review Officer to determine that the matter reviewed is
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contrary 5.b.iii.(a)-(e), 5.f.i. contains the only method in the Stipulation for
determining whether someone has committed "any violation of federal, state, or local law; any
violation of union rules, by-laws, or constitutional provisions; any violation of the Consent
Decree or any order of this or any other court; or any act that furthers the direct or indirect
influence of organized crime or the threat of such influence now or in the future."
Since the only method provided in the Stipulation to determine whether someone is guilty
of misconduct is contained 5.f., and specific language prevails over an assumption that if
"[t]he Review Officer is granted the authority to review the persons currently holding office or
employment" and is authorized to 'veto' matters under review if he determines that an action is
contrary to those listed 5.b.iii,(a)-(e), one may take an unsupported leap and give the term
veto an unnatural sense and allow the Review Officer to remove elected officials from their
positions without having to use the only procedures given in the Stipulation for making that
determination.
"The rules of contract construction require us to adopt an interpretation which gives
meaning to every provision of the contract." Paneccasio v. Unisource Worldwide,
Inc., 532 F .3d I 0 I, I I I (2d Cir.2008). Also, "specific language in a contract will
prevail over general language where there is an inconsistency between two
provisions." GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., 618 F.3d 204,
214 (2d Cir. 2010) "In interpreting a contract under New York law, words and
phrases should be given their plain meaning, and the contract should be construed
so as to give full meaning and effect to all of its provisions. A court should not
adopt an interpretation which will operate to leave a provision of a contract without
force and effect." (citations omitted)." TRAVELERS CAS. v. Dormitory Authority-
State of NY, 735 F. Supp. 2d 42,56-7 (S.D.N.Y. 2010).
The essence of the argument S.f. being applicable in the instant matter is that
"[Paragraph]5.f applies to intra-union charges, members bringing charges against other
members and, in some instances, [the RO] wishes to bring disciplinary charges in terms of your
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membership rights, expulsion, suspension from membership or fines. The procedures that were
promulgated between the [D]istrict [C]ouncil and the [RO] under 5.fwould apply in those
situations" but not to the present cases. (Hr'g Tr. at 16:16--24.)" United States v. Dist. Council of
New York City, No. 90 Civ. 5722,2010 WL 5297747, at *5, N7 (S.D.N.Y. Dec. 21, 2010)
This is entirely inconsistent with one of the basic rules of contract interpretation, that a
contract must be construed based on its express language, which gives effect to all of its
provisions. 'If 5.f. cannot be restricted to 'intra-union charges' because the plain language of 'If
5.f. does not allow such a restriction:
The Review Officer is granted the responsibility and authority to ensure that the
District Council develops, implements, and maintains fair and effective procedures to
discipline officers, employees, agents, representatives, or members of the District
Council and its constituent locals for misconduct. "Misconduct" as used herein
includes, without limitation, any violation offtderal, state, or local law; any violation
of union rules, by-laws, or constitutional provisions; any violation of the Consent
Decree or any order of this or any other court; or any act that furthers the direct or
indirect influence of organized crime or the threat of such influence now or in the
future. (emphasis added)
If there had ever been an intention oflimiting 'If 5.fto 'intra-union charges,' it is hard to
think of more inapt language. "Without limitation" excludes everything else from consideration,
and where it speaks of "any violation of federal, state, or local law, union rules, by-laws, or
constitutional provisions, the Consent Decree or any order of this or any other court; or any act
that furthers the direct or indirect influence of organized crime or the threat of such influence
now or in the future,'' it does not allow 'If 5 .f provisions to be relegated to intra-union charges.
What 'If 5.fplainly describes is the process that is to be used "to determine whether charges
of misconduct have been established, and if so, what punishment or remedy should be imposed
on the person who has committed misconduct" and 'without limitation' does not allow artificial
strictures to be placed upon it.
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Conference Held On April3, 2013
At the conference held on April 3, 2013, the Review Officer made the following statement:
"What crystallized for me in observing that meeting was that there was a kind of
preemption issue presented, that I had always operated within the four corners of the
stipulation and order and felt that not only was it proper, but required that if an
official function had occurred and I had determined that the district council bylaws
had been respected and that indeed I had closely scrutinized from the beginning to
the end of the process, that it was simply not permitted by the stipulation and order
that a rank and file committee composed of five members could supersede the
decision of the review officer and decide perhaps for political reasons or personal
reasons, that it would indeed present an opportunity for chaos because there's no
limit to charges that can then be brought, for instance, regarding local union
expenditures, that persons who disagree with the propriety of an expenditure under
29 U.S.C. 501 would then bring charges against a union official for having the idea
in the first place after I had received notice of the proposed expenditure and found
that it was fine."(see Attachment F, 4/3/13 Hr'g Tr.at 22, 24)1
6
1
There is nothing in the plain language of '1[ 5.f. which supports the contention "that it was
simply not permitted by the stipulation and order that a rank and file committee composed of five
members could supersede the decision of the review officer," since '1f 5.f. iii. requires that the
"disciplinary procedures described above must provide for the Review Officer to be able to
initiate disciplinary proceedings in a manner that is satisfactory to the Review Officer," where
the adjudicatory body would be the ones to determine whether the charges had been established,
not the Review Officer, there is nothing to support the contention he is excluded from that which
falls under the umbrella of 'without limitation,' so as to allow for a "streamlined removal of
individuals.''
171
The Review Officer was given unilateral authority to create a tribunal which is capable of
,_. dealing with specified contrary acts, if the tribunal is not capable of doing what is required of it
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t:a
..
under the Stipulation, then it can only be because the Review Officer failed to fulfill his
obligation under 5 f The responsibility and authority of the Review Officer includes:
"The Review Officer is granted the responsibility and authority to ensure that the District
Council develops, implements, and maintains fair and effective procedures to discipline officers,
employees, agents, representatives, or members of the District Council and its constituent locals
for misconduct" .... "In the event the Review Officer disapproves the procedures proposed by the
District Council, and the District Council fails to revise the procedures to address the Review
Officer's objections within 60 days of the entry of this Stipulation and Order, the Review Officer
may unilaterally implement disciplinary procedures" .... "At any time, if the Review Officer
determines. in his sole and unreviewable discretion, that the disciplinary process as it is being
conducted by the District Council is not fair or effective, the Review Officer may require the
District Council to make whatever changes the Review Officer determines are necessary."
('lf5 .f.,ii., v.)
Position Of The Parties Prior To The Stipulations Entry
If one considers what was actually presented to the court prior to the entry of the
Stipulation and Order, there is nothing even remotely suggestive of the authority now
purportedly contained i n ~ 5.b. in any submission by the parties to the court. There is nothing
which alludes to this authority in the 'Joint Memorandum in Support of Entry of the Proposed
Stipulation and Order' submitted by the parties on April 30, 20 I 0,( nor was there any suggestion
made during the hearing into whether the proposed Stipulation and Order should be approved on
May 20, 20 I 0. (See Attachment G&H)
To the contrary what you have are the parties touting "the revamped disciplinary system for
the Review Officer's approval, which will ensure a process that is both fair to accused carpenters
and etTective in disciplining and deterring union members from participating or acquiescing in
corruption or illegality. /d. 'lf 5.f." (Att. G pg. 6 ~ 3) and the UBC's counsel,
181
John DeCarlo
asserting that:
191
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"I think th[ at] a lot of the disputes of the members will be handled through the
disciplinary mechanism that's supposed to be devised within 30 days after the hopeful
signing of the stipulation and order. So I think most of those complaints from the
members will be handled by that disciplinary procedure, which we intend to make it a
fair procedure where there's no cronyism involved and people get a square hearing.
And we're thinking of having these proceedings maybe videotaped to make sure that
that happens. So we think a lot of the member complaints can be handled internally."
(Att H, 05/20/2010 Hr'g Tr.at 32, 1-5)
In fact the only two categories of possible aggrieved persons that the UBC counsel could
conceive of, were: 'a trustee of the benefit fund' or 'a contractor that the Court signs a subpoena
for or that might, you know, balk at producing documents, but I don't think it will be a lot more
than what the Court is facing currently.'(Att. H, 05120/2010 Hr 'g Tr.at 26, 2-19)
During the hearing on May 20,2010, Judge Haight made no bones about the fact that he
was not prepared to sign off on the Stipulation unless he was "satisfied with all aspects of it" and
it is apparent from the transcript that he went into the minutiae to ascertain that this would be the
case. He expressed grave reservations regarding the Review Officers proposed authority to
disqualify potential candidates from an election and it is only by stretching credibility beyond
reason that one could suggest that he would be concerned with a person possibly being prevented
from running for office under, 5.k.iv. if he failed to ingratiate himself with the Review Officer,
but would hold no reservations that the same members tenure rested solely on the whim of the
Review Officer.
1101
It only stands to reason that Judge Haight understood the term veto to retain the sense it
holds in the Consent Decree, which is the only reasonable explanation for there being no
discussion related to it at the hearing .
If it had ever occurred to Judge Haight that there might be an attempt to give the term
'veto' an unnatural sense, which would be inconsistent with the historical sense the term holds in
the Consent Decree, due to his familiarity with the carpenters constitution he would have been
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aware that the UBC Trustee could not afford this relief under the unions constitution and most
certainly could not impose upon the Locals affiliated with the District Council (who were not
under supervision and who were not parties to the entry of the Stipulation) something so patently
contrary to the carpenters constitution.
111
1
This Can Only Be Considered State Action
One very striking thing about section 5.b. is that 5.b.iii(a)-(d) are all federal statutes and
laws. In United States v Inti. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of
Am., AFL-CIO, 941 F2d 1292, 1295-7 (2d Cir 1991) (Senese},(Br.30-3l) the court held that
because "the !A acted pursuant to the IBT Constitution - a private agreement - and not
pursuant to a "right or privilege created by the State." Thus, the charges he brought were
premised on violations of Article II, section 2(a) of the IBT Constitution, not on violations of any
federal or state law ...... Because the !A's decision to sanction Senese and Talerico was guided
only by the IBT Constitution, and not by any state or federal authority, Senese and Talerico's
characterization of the IA's decision as state action must fail."

Applying the Court's reasoning from Senese to the instant matter, one has a quasi-
governmental actor (941 F2d 1296, N5) acting pursuant to a federal law and this is state action.
"Under section IO(e) of the APA, 5 U.S.C. 706, a reviewing court determines de novo "all
relevant questions of law." Hanly v. Kleindienst, 471 F.2d 823,829 (2d Cir.l972), cert. denied,
412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973). "Our review of questions oflaw is
plenary." NL.R.B. v. Greensburg Coca-Cola Bottling Co., Inc., 40 F.3d 669, 673 (3rd Cir. 1994).
Greensburg arose under the National Labor Relations Act, but the scope of judicial review under
that statute is no different from that under the APA. Universal Camera Corp. v. NL.R.B., 340
U.S. 4 74, 487, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951 ). In considering a relevant question of law
under the APA, the reviewing court asks whether the agency's action was "arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A)." US v.
District Council of New York City, 941 F. Supp. 349,361-2 (S.D.N.Y. 1996) .
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Nor could the Review Officer escape the stare decsis of the courts as "The judiciary is the
final authority on issues of statutory construction and must reject administrative constructions
which are contrary to clear congressional intent. See, e.g., FEC v. Democratic Senatorial
Campaign Committee, 454 U. S. 27, 32 (1981 ); SEC v. Sloan, 436 U. S. I 03, 117-118 (1978);
FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745-746 (1973); Volkswagenwerk v. FMC, 390 U.S.
261,272 (1968); NLRB v. Brown, 380 U.S. 278, 291 (1965); FTC v. Colgate-Palmolive Co.,380
U. S. 374, 385 (1965); Social Security Board v. Nierotko, 327 U. S. 358, 369 (1946); Burnet v.
Chicago Portrait Co., 285 U. S. I, 16 (1932); Webster v. Luther, 163 U. S. 331, 342 (1896). If a
court, employing traditional tools of statutory construction, ascertains that Congress had an
intention on the precise question at issue, that intention is the law and must be given effect."
Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,843 at N9 104 S.
Ct. 2778, 81 L. Ed. 2d 694 (1984).
Conclusion
The authority claimed by the Review Officer fails on so many different levels that it passes
the point of absurdity. 'If 5.b.iii.(a)-(e) are all either laws, federal statues or a court order, as ~ u h
all would require due process, and would need to be decided by the courts. Even if the Review
Officer could be held to somehow have the authority to decide a federal question, it could only
be as a state actor and due process would not be optional.
The Stipulation was entered into under the authority held by the UBC under the unions
constitution, and neither the UBC or the District Council had the authority to remove an elected
official without process. The Stipulation and Order cannot be held to grant the Review Officer
authority where the parties held no authority to grant him this authority.
Local 157 was not a party to the entry of the Stipulation, and is a separate entity to the
District Council. The Stipulation is only binding upon the local only there the District Council
holds authority over the locals affairs, the locals officers do not fall under the Councils purview.
The plain language of the Stipulation requires that the Review Officer determine that a
l. matter is contrary to 'If 5.b.iii.(a)-(e), and describes only one method to make such a
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detennination in regards to a member or an officer, which is to present the matter to the
adjudicatory body contained in '1[5.f .. A person with veto authority only holds the authority to
maintain the status quo, there is no construction in the Stipulation which expands on this natural
sense. To allow that it was intended to allow for a "streamlined removal of individuals" by the
Review Officer requires an unsupported leap, which is not supportable by the historical or
natural sense of the language used.
The decision of the Review Officer should be vacated and we should be made whole for
the monies we would have received if not for the unlawful intercession of the Review Officer.
6818 52"d Drive
Maspeth,
New York, 11378.
Telephone (718) 593 6414
Email patjnee@yahoo.com
L
Lawrence,
New York, 11559.
Telephone (516) 808 2928
Date
Date
Email piedpiper608@yahoo.com
Footnotes
Ill Since the Court of Appeals questioned this Court's Decision entered in United States v. Dist.
Council of New York City, No. 90 Civ. 5722,2010 WL 5297747, (S.D.N.Y. Dec. 21, 2010), and
we had great difficulty in getting copies the submissions of the parties from the Clerk, we have
attached the submissions made by various counsel which we were able to get from some of the
counsel involved, and have attached it as attachment C.
Ill "The procedures provided by the constitution and bylaws of a union must be followed in
effecting the lawful removal or suspension of an officer. Furthennore, the right to due process
extends to union officials. Ordinarily, a union officer, prior to suspension or removal, is entitled to
reasonable notice, to a specification of charges against him or her, and to confront witnesses
against the officer. As a general rule, there can be no suspension or removal of an officer without
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a hearing or trial and opportunity to defend, and any constitutional provision or rule permitting this
is invalid. A party charging union officials with misconduct must produce some evidence at the
hearing to support the charges. The officer is also entitled to a reasonable opportunity to prepare
for trial on the charges." (51 C.J.S. Labor Relations 159)(see Attachment I)
131
Fed. Rule Civ. Proc. 65 (d) provides:
"Every order granting an injunction ... is binding only upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon those persons in active concert or
participation with them who receive actual notice of the order by personal service or otherwise."
14
1 "[I]fthe local exercises considerable autonomy in conducting its affairs, it cannot be regarded
as an agent of the international, .... To analyze the actual relationship, we consider the local's
election of its own officers, ability to hire and fire its own employees, maintenance of its own
treasury and independent conduct of its daily business as determinative factors." Laughon v.
INTERNATIONAL ALLIANCE STAGE EMPLOYEES, 248 F.3d 931, 935 (9th Cir.
2001).(internal citations omitted)
151
"[A]ny contention that the withdrawal of a privilege is not 'discipline' flaunts the standard
meaning of the word in all major dictionaries of the English language, including that to be found
in Webster's Third New International Dictionary, as well as in its predecessor, the Second
Edition." King v. Grand Lodge oflnt'/ Ass'n of Machinists, 215 F. Supp. 351,354 (N.D. Cal.
1963) aft'd, 335 F.2d 340 (9th Cir. 1964)
161
It is also of note that 29 USC 501 contains an exculpatory clause which bars anyone from
attempting to circumvent union members from being able to hold their officers accountable to
them: "A general exculpatory provision in the constitution and bylaws of such a labor
organization or a general exculpatory resolution of a governing body purporting to relieve any
such person of liability for breach of the duties declared by this section shall be void as against
public policy," which is the very thing which the Review Officer was proposing to the court.
1
7
1The Review Officer later added "It's very much the same. And the idea is that it is the same
that the trial committee itself, five rank and file members, is not in a position to decide whether
Section 411 of Title 29 has been violated or, indeed, whether those charges should indeed be
considered by the executive committee because they may actually be illegal, that his union free
speech rights might have been violated, and that the union might be subject to damages at that
point." As 'If 5.f. specifically requires the adjudicatory body to be capable of determining whether
there has been "any violation of federal, state, or local law," there is nothing to support the
position that the trial committee should not be presented with a possible violation of 29 USC
411, and there seems little merit to the theory that five union members would be unable to
determine whether another members right to express his views had been impinged upon, and if
the members right had been infringed, the trial committee should have been allowed the
opportunity to show this to be unacceptable. It is hard to see what was accomplished by this
unless one believes things should be swept under the rug.
1
8
1 "THE COURT: That's a very interesting comment, and you make it, of course, with the full
authority and blessing of the UBC and Mr. McCarron, whose interests in union democracy you
represent this afternoon."
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MR. DeCARLO: Absolutely.(05/20/2010 Hr'g Tr.at 32, 1-5)
THE COURT: But Mr. DeCarlo argues, of course, that it's a necessary and important provision
to restore the integrity of the union, and that comes from the representative of the UBC itself,
which gives it a certain resonance. (id. at 36, 19-23)
191
The question asked by the court was: "But how about nonparties, individuals whose interests
are directly affected but are not parties oflitigation represented by counsel this afternoon --
members of employment firms, contractor firms, individual union members, local union officers,
shop stewards? There is a considerable universe of people out there who are going to be affected
one way or another, or potentially so, by actions which might be taken by the RO or the parties
themselves under this stipulation. And it may not be possible to really look at a crystal ball and
figure out an answer to this, but do you have any sense of what volume of litigation involving
aggrieved persons, I suppose one could call them, that might be generated by this new protocol?
(05/20/201 0 Hr 'g Tr.at 25, 6-18)
1101
We note the objections the Review Officers has previously entered regarding the comments
Judge Haight made in regards to someone possibly not being able to run for office simply
because he did not ingratiate himself with the Review Officer, but we point out that the courts
have long recognized that removing an elected official has an adverse impact on democracy, as
does dictating who may be a candidate; conversely, we do not see how the Review Officer
believes that the discretion the court held the IRQ should be afforded in United States v. District
Council, 880 F. Supp. 1051, 1068-9, (S.D.N.Y. 1995) in drafting election rules should be given
to the Review Officer in the instant matter. The court specifically noted that the IRQ was not
acting as a prosecutor in that matter which is not the case here. "The IRO , however, does not
seek to prosecute the District Council .... but only to bring about an election that is fair and
democratic. Surely no dispassionate observer could argue that it is unwarranted for the IRQ to
adopt a precautionary stance based on the information available to him." id. F. Supp 1069 at N13
III I The Court: "During the history of this case there's been a constant refrain that the purpose of
the consent decree is to restore democracy to the union, honest democracy. And of course, that's
a general objective which everyone shared, or said they did, which leads me to a particular
provision in the stipulation. It has to do with the review officer's authority in respect of the
supervision and conduct of elections, page 12, subparagraph K, and then over on 13,
subparagraph 4. And it says this:
"Any candidate seeking to run for a position as an officer of the district council during
the review officer's tenure must first be approved by the review officer, who will determine
whether, in light of the terms and objectives of the consent decree, the candidate is qualified to
run for office and represent the union membership. Any such decision by the review officer will
be final and nonreviewable." Is this democracy at work, as the successful candidate, Mr. Sestak,
said on television the other day? It makes one think of it more of some wearing a bedsheet in
Tehran, saying that, "You can't run for office and you can't appeal my decision." But look, this
is why I'm raising it with you; this is why I need you to comment on it. I have to be satisfied
with all aspects of this. And how about someone who wants to run for district council office but
for some reason or other does not ingratiate himself or herself sufficiently with Mr. Walsh and
Mr. Walsh says, "No, you can't run, and there's no appeal from it"? Anything to worry about
there?"(05/20/201 0 Hr 'g Tr.at 30-1, 3-25&1-4)
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