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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 Bilello’s 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 ring
when in the immediate aftermath of two court supervised elections, the principal elected officer
has gone to prison, and I’m 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 council’s officers.

As Mr. Bilello stated at the conference, prior to 1995, the NYCDCC’s 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. That’s a simple fact.

Over the 21 years the NYCDCC has been under the Consent Decree the Decree has protected the
membership’s 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. In
fact, 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 IRO’s 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 a
series of three elections.

As stated in the IRO’s 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 the
Council, 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 decree’s 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 union’s governance and meaningful control of vigilance over their union’s
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 RO’s (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. We’ve seen that.”

Further down page 2 of the IRO’s 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”. That’s 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 1st 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 UBC’s
designation 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 UBC’s 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
Act’s 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 Secretary’s statement of
reasons was inadequate given the applicable regulations and the Secretary’s 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 Secretary’s

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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 Secretary’s appeal.

“In explaining the Secretary’s 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 entity’s
“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 entity’s 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 union’s 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 union’s 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 1950’s 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 Act’s 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 intermediate’s 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
regulation’s language as well as the Secretary’s 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 plaintiff’s 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 fixed
and 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 plaintiff’s final major argument takes issue with the SSR’s 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 Secretary’s examination of the locals
actually benefits potential plaintiff’s by acting as a check on the powers entities labeled as
intermediate and ensuring that locals have meaningful responsibilities.” The court found the
Secretary’s 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 Labor’s 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 LMRDA’s
enactment and the LMRDA’s legislative history, I write separately to register my concern the
Secretary’s 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
Secretary’s willingness to allow intermediate bodies to assume an ever-increasing number of
local union functions without subjecting them to the LMRDA’s direct election requirements
represents a threat to union democracy and may eventually stray too far from Congress’s 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 LMRDA’s definition of
labor organizations so that they would not be exempt from the statute’s prohibitions and
sanctions. Senator Goldwater’s 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 or
international 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 Congress’s
objectives in enacting the LMRDA, and in particular Title IV’s 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 man’s 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 man’s 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-and–file members to participate
fully 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. “Wirtz
v. 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 [LMRDA’s ] 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 members
is 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 experience
in 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 plaintiff’s claim that the Secretary’s 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 Goldwater’s view that intermediate
bodies did not engage in collective bargaining, the LMRDA’s definition of labor organizations,
and the Act’s 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 Labor’s 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 Secretary’s 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 Secretary’s
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 Secretary’s 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 Int’l, Inc. v. NLRB, 253 F. 3d 119, 123 (D.C. Cir. 2001) (Without
more, the [agency’s] departure from precedent without reasoned analysis renders its decision
arbitrary and capricious. “).

Judge Torruella did not disagree with the Secretary’s consideration of the NERCC’s placement
within the union’s structure. He states: “In fact, the NERCC’s placement within the UBC’s
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 UBC’s 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 UBC’s structure but whether the
Secretary’s application of the regulation’s function and purposes test represented a departure
from 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 member’s 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 organization
subject to the Act’s direct election requirements.”

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

“The Majority notes, quoting the secretary’s reply brief that both parties agree on the “basic point
that when an intermediate’s 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 NERCC’s 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 Secretary’s own description of the NERCC’s 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 LMRDA’s
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 Secretary’s 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 member’s
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, NERCC’s trial procedure requires that alleged violations first be referred to the relevant
local’s 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 Department’s regulation, nor any applicable precedent,
compel a conclusion that the Secretary should require the NERCC to conduct elections in
accordance with the LMRDA’s 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 NERCC’s 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

15
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 Act’s 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 Congress’s 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 Secretary’s 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 157’s jurisdictional area. Here there
really aren’t 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

16
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 don’t 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 NERCC’s trial procedure requires that alleged violations first be referred to the relevant
local’s 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 member’s
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 Officer’s 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 left
with no “functions or purposes”.

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


omnipresent in our union’s 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

17
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 accepted
facts 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 members
are 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 the
responsibility 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 don’t 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 LMRDA’s 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 to
be, 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

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E-Mail - bslebo@gmail.com

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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