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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK PDF FILE X UNITED STATES OF AMERICA, Plaintiff, 90 Civ. 5722
-against- DISTRICT COUNCIL OF NEW YORK CITY AND VICINITY OF THE UNITED : BROTHERHOOD OF CARPENTERS AND : JOINERS OF AMERICA, et al., Defendants. X DEFENDANTS' MEMORANDUM OF LAW
O'DWYER & BERNSTIEN, LLP
Table of Contents Page(s) Table of Authorities ii Preliminary Statement 1 Relevant Facts 3 Argument 3 Point I 3 The Court Should Not Find the District Council In Contempt of the Consent Decree 3
Prior Written Notice of the Amendment To Job Referral Rule 5(B) 4
Through Collective Bargaining and Without Government Involvement 7
Javits Center Evidenced the Union's Right To Negotiate Over Job Referral Rule 5(B) 10 Point II 13 The Relief Requested By the Government Evidences An Attempt to Modify the Consent Decree 13 Point III 18
By the Government Absent a Hearing on Notice To All Interested Parties 18 Point IV 20
As an Individual Respondent 20 Conclusion 21
Table of Authorities Page(s) Handschu v. Special Services Division, 273 F.Supp.2d 327 (S.D.N.Y. 2003) 14 New York State National Organization for Women v. Terry 886 F.2d 1339 (2nd Cir. 1989) 3 Patterson v. Newspaper & Mail Deliverers' Union, 13 F.3d 33 (2d Cir. 1994) 15 Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748 (1967) 14,16 United States v. District Council, 90 Civ. 5722 (CSH) (June 4, 2001) 4 United States v. District Council, 1999 WL 494121*6 15 United States v. District Council, 2005 WL 1137877*8 (S.D.N.Y. May 11, 2005) 15 ii
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK X UNITED STATES OF AMERICA,
X MEMORANDUM OF LAW IN OPPOSITION TO THE GOVERNMENT'S MOTION FOR CONTEMPT AND TO MODIFY THE CONSENT DECREE Preliminary Statement This memorandum is submitted on behalf of the District Council and Peter Thomassen in opposition the Government's motion for contempt and to modify the consent decree. In June 2001, the District Council of Carpenters, pursuant to its obligations under the National Labor Relations Act, negotiated collective bargaining agreements with the Employer associations representing its signatory contractors. Among the many terms of the agreement, the District Council secured for its membership a 25.75% increase in wages and benefits over the five (5) year term of the agreement and many other contract language changes benefiting all working carpenters. Declaration of Peter Thomassen dated October 14, 2005 ("Thomassen dec."), ¶ 2. During the course of those negotiations, the District Council tried to bargain for various changes in the previously bargained for "request system" pursuant to which employers can select particular 1
carpenters off of the job referral list irrespective of their place on that list. The final agreement included an agreement that altered the request system in certain ways and eliminated the right to request by non-association members subject to the independent construction agreement. Thomassen dec., ¶ 15. Now, four years after the collective bargaining agreement was entered into, and just eight or nine months before the collective bargaining parties will return to the negotiating table for a successor agreement, the Government has brought this action seeking to hold the District Council and its President, Peter Thomassen, in contempt and seeking remedies that would, inter alia, set aside the request system that was in effect before the Consent Decree was entered and indeed, "void" the collective bargaining agreements affecting literally hundreds of contractor companies signatory with the District Council. As will be demonstrated below, the Government's motion must fail because it has misapplied the requirements of paragraph 12 of the Consent Decree. The Government has conflated the standards applicable to contempt motions under a Consent Decree with those required to justify a modification of such decrees by obfuscating its desire to modify the Consent Decree in the guise of a motion for contempt, without even attempting to meet the burdens necessary to justify a modification of the Consent Decree (let alone affect the bargained for rights of hundreds of contractor employers). The Government's motion must be denied because its application relies upon a misstatement of the source of its asserted authority (paragraph 12 of the Consent Decree), is late and ill-timed, is without merit on the facts and law, and grossly overreaches in the remedies sought. 2
Relevant Facts The facts relevant to this application are set forth in full in the declaration of Peter Thomassen dated October 14, 2005 ("Thomassen decl."), to which the Court is respectfully referred.1 Argument Point I The Government Has Failed to Sustain its Burden Of Proof for the Court to Hold the District Council And Thomassen in Contempt of the Consent Decree To establish civil contempt the Government must establish that 1) the Court's order is "clear and unambiguous"; 2) the proof of non-compliance is "clear and convincing" and 3) the party has not "diligently attempted in a reasonable manner to comply." New York State National Organization for Women v. Terry, 886 F.2d 1339, 1351 (2nd Cir. 1989). This Court has previously described the standards to be applied in interpreting the language of the Consent Decree: Although Consent Decrees "are a hybrid of a contract and judicial pronouncement, they 'should be construed basically as contracts.'" [citations omitted] The Court must "read and apply a decree 'within its four corners' and may not look beyond the document to satisfy one of the parties' purposes." [citations omitted] Although "courts have equitable power to enforce consent decrees, such power exists only to ensure compliance with the decrees' terms." [citations omitted] Additional facts are contained in the declarations of Maria Sabater, dated October 16, 2005 and Francis X. McArdle, dated October 13, 2005, which, like the Thomassen declaration, are incorporated herein.
United States v. District Council, 90 Civ. 5722 (CSH)(June 4, 2001), at p.9. This Court has also recognized the Consent Decree, paragraph 12 in particular, does not give the Government unlimited rights to be involved in all decisions and actions of the District Council. This Court has held: It is worth recalling that the Consent Decree, at ¶12 or elsewhere, does not give the government veto authority, nor even a right to be advised of, any and all actions taken by the District Council. The Consent Decree is a document establishing limited governmental powers and limited judicial review. Id. at 11. The Government cannot sustain its burden of proof of the elements for civil contempt in this matter. A. The Government Was Not Entitled to "Prior Written Notice" of the Amendment to Job Referral Rule 5(B) The Government's reliance on ¶12 of the Consent Decree as the source of the District Council's obligation to provide it with "prior written notice" of the amendment to Job Referral Rule 5(B) is misplaced and misrepresents the language of that paragraph. Accordingly, the Government cannot establish the first or second prongs of the test for contempt. Paragraph 12 of the Consent Decree provides: Future Practices. The parties intend the provisions set forth herein to govern the District Council's practices in the areas affected by this Consent Decree, now and in the future. The District Council shall give prior written notice to the Government and the Investigations and Review Officer of any proposed changes to the By-Laws. In addition, the District Council shall inform the Government and the Investigations and Review Officer of any changes in any rules or procedures adopted or implemented pursuant to paragraphs 4(g), 4(h), 4(i)(3), 5, 4
9(c), and 10 of this Consent Decree. For a period of seven (7) years after the termination of the Investigations and Review Officer's term of office, the District Council shall continue to give prior written notice of any such proposed change to the Government. If the Investigations and Review Officer or the Government objects to the proposed change as inconsistent with the terms or objectives of this Consent Decree, the change shall not occur, provided that, upon such objection, the District Council may apply to the Court for a determination as to whether the proposed change is consistent with the terms and objectives of this Consent Decree. (emphasis added) A plain reading of this paragraph belies the Government's assertion it was entitled to "prior written notice" of a change in rule 5(B) of the job referral rules. Prior written notice is required only when the District Council proposes to change its By-Laws. With respect to changes in rules or procedures like the job referral rules, contained in paragraph 5 of the Consent Decree, "prior notice" is not required. In such cases the District Council is only required to "inform the Government" of changes which have been "adopted or implemented". The use of the past tense, "adopted or implemented" and the abandonment of the "prior written notice" requirement makes this quite clear. One cannot give "prior notice" of changes which have been already "adopted or implemented". In crafting "a document establishing limited governmental powers", the drafters apparently believed proposed changes to the By-Laws should be treated differently than changes to other aspects of the Union's procedures and operations. The distinction between these two requirements is continued in the remedy provisions following the "In addition" clause, whereby a proposed change to the By-laws, prior notice of which had been provided the Government, would not take effect if the Government objected to it. The clear language of paragraph 12, therefore, belies the Government's position it was entitled to prior notice of the change in the request system
rules or collective bargaining agreements and no contempt can be found for the failure provide it.2 Additional, convincing evidence that the District Council had no obligation under paragraph 12 to give the Government prior written notice of a change in the collective bargaining agreements is the fact that even the IRO did not enjoy such authority. Paragraph 4(f) of the Consent Decree outlines the review authority of the IRO and states, in relevant part: f. Review Authority. (1) The Investigations and Review Officer shall have the authority to review certain practices of the District Council and its constituent locals. Specifically, the District Council shall give prior written notice of, and the Investigations and Review Officer shall the authority to review,... (b) all contracts or proposed contracts on behalf of the District Council and its constituent locals, except for collective bargaining agreements; (Emphasis added) The Government is given no broader authority with regard to future practices in paragraph 12 than the IRO had during his term of existence. Accordingly, since there was no obligation to provide the IRO prior written notice of collective bargaining agreement changes, there is no such present obligation to the Government. Paragraph 12 requires the District Council only to "inform" the Government of job referral rule or procedure changes adopted or implemented. The paragraph, however, provides no further guidance about how or when the Government should be informed of 2 The distinctions between these clauses may also be summed up by the maxim, inclusio unius est exclusio alterius. 6
such changes. This is in stark contrast to proposed changes in the By-Laws, concerning which "prior written notice" is prescribed. Even if the Court finds the language of paragraph 12 to be susceptible of the interpretation advanced by the Government, it cannot be said paragraph 12 is clear and unambiguous. For these reasons alone, the Government's motion for contempt must be denied. B. Job Referral Rule 5(B) Contemplates Changes Through Collective Bargaining Without Government Involvement. The Government's position that the District Council was required to provide it prior notice of a change in the request system approved in job referral rule 5(B) is also belied by that rule itself. Job referral rule 5(B) contemplates and predicts changes through collective bargaining, without Government involvement. Rule 5(B) states: Requests by an employer for specific members employed by the employer within the previous six months shall be fulfilled, as required by applicable collective bargaining agreements. The question then, is whether the Government was entitled, pursuant to paragraph 12 of the Consent Decree to be given notice prior to a negotiated change in the language of Rule 5(B). The answer to this question must be answered in the negative. It is significant that the drafters of the Consent Decree and Job Referral Rules approved a requesting system which was found in collective bargaining agreements and specifically referred to that source by including the phrase "as required by applicable collective bargaining agreements". It did not say, for example as required by "the present" applicable collective bargaining agreements. Collective bargaining agreements are dynamic by their nature and terms, written as they are to be renewed and renegotiated 7
after fixed periods of time. It would be absurd to contemplate that ten years post decree that the "applicable collective bargaining agreements" would not change. If the drafters of the original consent decree meant for the job referral rules, as they pertain to the request system, to be fixed in perpetuity, they would have so drafted the document. They did not do so. No other job referral rule includes a reference to its source of origin. By expressly referencing the collective bargaining agreements which provided for employer requests, the writers must have foreseen the possibility that such a rule may be changed through collective bargaining - the process by which collective bargaining agreements are created, enforced, modified, extended and sometimes terminated.3 The only collective bargaining agent for the District Council is the Executive Committee.4 The Government has no authority to be involved in, control or veto actions that are properly related to the collective bargaining process. To deny this would make this collective bargaining phrase of Rule 5(B) meaningless. Absent specific language, the consent decree confers on the government no right to interfere in the collective bargaining relationship between the parties, nor does it abrogate the District Council's The language of the collective bargaining agreements with the Association of Wall-Ceiling Contractors has not changed in respect to employer requests since the 19931996 agreement. Declaration of Phil Giudice, October 17, 2005 and exhibits referenced therein. The Government is thus seeking prior notice of a change that did not occur. 4 The Court-approved By-Laws for the District Council provide, in relevant part, at Section 8 thereof, The Executive Committee shall serve as the collective bargaining committee for conducting negotiations with Employers. The Executive Committee shall have the authority to appoint additional members to serve on any negotiating committee. Thomassen decl., Exhibit A. 8
legal responsibilities to negotiate over wages, hours and working conditions. 29 U.S.C. Section 158(b)(3). This Court observed in its June 4, 2001, Order concerning the District Council's passage of a work assessment change pursuant to § 21 (C) of the By-Laws: It is worth recalling that the Consent Decree, at ¶12 or elsewhere, does not give the government veto authority, nor even a right to be advised of, any and all actions taken by the District Council. The Consent Decree is a document establishing limited governmental powers and limited judicial review. Id. at p.11 In that case, the District Council adopted a $.30 per hour working dues assessment pursuant to the authority and procedure granted it in paragraph 21(C) of the By-Laws. In passing that resolution, the District Council, perforce, amended paragraph 21(A) of the By-Laws, the provision wherein the working dues assessment was defined. The Government challenged the District Council's action as a violation of paragraph 12 of the Consent Decree. This Court rejected the Government's challenge, finding: The most logical interpretation of the language in both documents [the By-Laws and the Consent Decree] suggests that Sections 21 (C) and (E) imposed specific procedural safeguards on the District Council's implementation of fee increases in the place of requiring the approval contemplated in the Consent Decree at 1112. I conclude that, while the District Council's assessment increase specifically authorized by Section 21 (C) of the By-Laws, necessitated a change in the assessment amount provided for in Section 21(A), that change was procedural, technical, and ministerial, not substantive, and did not implicate ¶12 of the Consent Decree. Id. at p.12 9
The collectively bargained change in job referral rule 5(B) was, like the working dues assessment, authorized and protected by a procedural safeguard, procedural, technical, ministerial and not substantive and did not implicate the prior notice provisions of paragraph 12 of the Consent Decree. It was authorized, as discussed above, by the clear language of the rule. It was protected by the procedural safeguard of collective bargaining. It was technical and not substantive because it did not alter the fundamental right of employers to request workers from the OWL, just changed who was eligible to be "lawfully requested." The change is not substantive because it does little to alter which workers may be found actually working on a job site. Logically, applied, employers should continue to request workers who have a demonstrated history of productive, cooperative employment with the company. See, Declaration of Francis X. McCardle, Director of the General Contractors Association, October 14, 2005, page 2. Indeed, in Mr. Thomassen's opinion and the opinion of the District Council's negotiating committee, relaxing the six month rule was "giving away ice in the winter." Thomassen decl., 14. Since the District Council's action in negotiating a change in job referral rule 5(B) was authorized by the rule itself, there can be no finding of contempt for failing to "provide prior notice" of the change. For this reason alone, the Government's motion must be denied. C. IRO Conboy's Actions Concerning the Javits Center Evidenced the Union's Right to Negotiate Over Job Referral Rules The Government relies on the actions of IRO Conboy with respect to the conduct of the old District Council in 1994 and its former president, Frederick Devine, in negotiating job referral procedures at the Javits Convention Center, as precedent for its 10
request herein to set aside a portion of a collective bargaining agreement. It is noteworthy and instructive, however, that at no point in those proceedings did IRO Conboy file a motion for contempt, despite his vehement objections to Devine's actions and positions, as the legal claim to set aside the collective bargaining agreement containing a job referral system he opposed. IRO Conboy was obviously aware of the District Council's absolute right to negotiate collective bargaining agreements and the IRO's absence of prior review authority with respect to such contracts. Consent Decree, ¶4(f)(1)(b). Therefore, he challenged the contract terms Devine negotiated and other conduct engaged in by Devine, but he never challenged the act of negotiating what were variations in Referral rule 5(B) and other job referral rules.5 The instant matter presents facts in stark contrast to those alleged by IRO Conboy against Devine. Here, there is no allegation by the Government, or in the Mack reports, of "the abuse of power by union officers through the control of jobs". There are no 5 Indeed, Devine's alleged conduct was far more inconsistent with the objectives and goals of the Consent Decree than any alleged or even intimated by the Government in the instant motion, or by Mr. Mack in his reports on which the Government so resolutely relies. In his second Interim Report to the Court, IRO Conboy wrote of his efforts to focus "on the abuse of power by union officers through the control of jobs" which gave them power over potential political opponents and the rank and file membership at large. "Even more troublesome was the relationship of job patronage and active organized crime domination of the Union". Judge Conboy alleged then District Council President, Frederick Devine of "not abiding by the Consent Decree" and of appointing Javits Center representatives with clear ties to organized crime and dubious Union credentials "in derogation of the rights of rank and file carpenters throughout the region, and in flagrant violation of the Decree." Second Interim Report, pp. 5-9. In response to Devine's alleged actions, Judge Conboy filed an application in this Court seeking to invalidate certain portions of the collective bargaining agreement governing job referrals at the Javits Center, which would have institutionalized job referral preferences for a small "pool list" of members with known or suspected ties to LaCosa Nostra. Id. at 8. The IRO's motion, as later reported in his Third Interim Report, was mooted when the State of New York assumed control over the Javits Center and took over hiring practices there. See, IRO Third Interim Report, pp. 39-42. 11
allegations against Peter Thomassen, or the 2001 negotiating committee, of a relationship between job patronage and active organized crime domination of the Union or of appointing representatives, such as the stewards at the Javits Center, with clear (or even suspected) ties to organized crime and dubious Union credentials. Rather, the opposite is alleged. The Government accuses Thomassen and the District Council in this motion with returning hiring rights to the employers – exactly what IRO Conboy apparently approved after the state takeover of the Javits Center.6 6 IRO Conboy described the hiring procedures imposed by the State following its take over of the Convention Center: ...The Javits Center placed newspaper advertisements seeking "neat, hardworking, counters, dependable, cooperative and respectful people" to apply..... for jobs at the Javits Center.... The Javits Center did not require applicants to have prior experience in the trade show industry... Negotiations between the state and District Council led to an agreement providing for new work rules. Under the agreement, signed by Devine on September 13, 1995, but effective as of July 17, 1995, the District Council is recognized as the exclusive bargaining representative for "exhibit builders" at the Javits Center, and all persons working within this jurisdiction at the Javits Center will have to become members of the Union; however, all hiring will continue to be done by the Javits Center not by the Carpenters Union... ...All the trade shows since July 1995 have been successfully completed, on time and within budget. Indeed, major contractions at the Javits Center have informed my office that they are pleased with the new environment at the Javits Center and with the work being done by the new employees. Id. at 42-43 (emphasis added). It is interesting to note that the assumption of hiring rights by the Javits Center as agreed to by Devine and the District Council after the state takeover did not require hiring or job assignment in order of workers' placement on a referral list. Query whether the abdication of workers' rights by the Union as a result of that collective bargaining was also a violation of the Consent Decree. 12
The lessons to be learned from IRO Conboy's handling of the Javits circumstances are that 1) the Union did not violate the Consent Decree by engaging in collective bargaining with respect to job referral rules; 2) the Consent Decree does not require the District Council to provide prior notice of matters involved in negotiating collective bargaining agreements; and 3) returning control of hiring to the employer is a practice intended to cure alleged corrupt Union control of job assignments that is consistent with the goals and objectives of the Consent Decree. This same result is achieved by granting employers an unrestricted right to request workers from the job referral list. The latter protocol, moreover, has an additional advantage over unfettered and undocumented employer hiring. Through a documented request system, the Union has a record of where a carpenter is working, so it can expect to see that carpenter reported on shop steward reports and can better administer contract compliance of the jobsite in other respects as well. For all these reasons, there can be no contempt in this case because the Union had a right to participate in negotiations over job referral rule 5(B) and it negotiated for a change recognized to be in furtherance of the intent and objectives of the Consent Decree. Point II The Relief Requested by the Government Evidences
The relief requested by the Government reveals its true purpose in this motion, to modify the Consent Decree in very significant respects, including the elimination of the request system altogether. The Government also seeks to modify scores of collective 13
bargaining agreements the District Council has entered into with signatory contractors to eliminate the request system. Such a radical change will affect parties that are not even before the Court on this application and whose rights, it is respectfully submitted, the Court lacks authority to affect in the context of this contempt motion. To the extent that modification of the Consent Decree is sought, notwithstanding this motion is styled as a contempt application, the Government has not even attempted to meet the requisite burdens. The Government seeks the following relief in this application: (1) declaration the request system violates the Consent Decree; (2) order "void[ing]" the 2001 collective bargaining agreements that allegedly broadened contractors' request rights; (3) modification of the Consent Decree by striking Job Referral Rule 5(B) and eliminate requesting entirely; and (4) modification of the Consent Decree to extend "the period in which the District Council is required to provide prior written notice to the Government of changes to its By-Laws, election rules, and job referral rules." (Government's mem., pp. 22-28).7 It is well settled that a party seeking modification of a consent decree must establish two factors: "a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstance." Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 393, 112 S.Ct. 748, 765 (1967); Handschu v. Special Services Division, 273 F.Supp.2d 327, 337 (S.D.N.Y. 2003). As this Court observed in a 1999 decision in this case, "The Second Circuit has cautioned 7 As previously noted in this regard, and others, the Government misstates paragraph 12 of the Consent Decree in that prior written notice applies only to changes in the By-Laws. The act of repeating a misstatement does not make it correct. |