PAUL O'DWYER (1907-1998) OSCAR BERNSTIEN.(I885-I974)

FRANK DURKAN BRIAN O'DWYER GARY SILVERMAN CHRISTOPHER DOWNES' VICTOR GRECO CODY K. McCONE

THOMAS J. HUGHES, JR. GARY P. ROTHMAN•

STEVEN A. ARIPOTCH J. P. DELANEY

DAVID H. SCHULTZ"

MICHAEL CARROLL"

KATHLEEN M. KILDUFF" JANINE L. HOBERT

RAUL GARCIA

O'DWYER & BERNSTIEN, LLP

ATTORNEYS AT LAW

PAUL O'DWYER WAY
52 DUANE STREET
NEW YORK, N.Y. 10007
(212) 571-7100
(516) 248-4224
FAX (212) 571-7124

February 13, 2003

OF COUNSEL:

THOMAS P. RYAN ANNE M. PAXTON

ALSO ADMITTED IN NJ
•• ALSO ADMITTED IN CT
J.O. NOT ADMITTED

STEVEN C. KASARDA'

Edward Scarvalone, AUSA United States Attorneys Office 33 Whitehall Street

New York, New York 10004

Re: New York City District Council – Shop Stewards

Dear Mr. Scarvalone:

I write on behalf of the District Council to address two important issues regarding shop stewards. First, a concern that all shop stewards be required to be members in good standing. Second, a uniform and fair system for steward performance review. These are discussed separately below.

1. Stewards must be members in good standing: The District Council firmly believes that a member who falls out of good standing and loses membership privileges must also lose the privilege of being a Union shop steward. The shop steward is the Union's representative on the job site to employers and other members alike. They should be a model of good union member and be held to the obligations of membership.

On August 31, 2001 the Government and the District Council entered into a Stipulation and Order regarding Section 21(G) of the By-Laws which was subsequently so ordered by Judge Haight. The approved Section 21(G) states:

It shall be mandatory that each active member perform at least 1 day or 7 hours of union activity (picketing, etc.) per calendar year when called upon by the New York City District Council. The District Council shall call upon members to perform such activity on a fair and equitable basis. Any assessment, fine or penalty for failure to perform such activity shall be imposed in compliance with section 28 of these By-Laws and sections 52

Edward Scarvalone, AUSA February 13, 2003

Page 2

and 53 of the United Brotherhood's Constitution, and shall be used to defray the expenses of organizing and shall not be used for any other purpose.

In accordance with this provision, Union members failing to fulfill their Union activity responsibility are assessed a fine. Another common source of fines, albeit less frequent than Section 21(G), are job referral violations under Section 15 and 16 of the By-laws. Approximately 1,000 members are charged and subject to fines under the job referral provisions annually. Pursuant to § 45(0) of the UBC Constitution if a member fails to pay a fine they lose their good standing in the Union.1 The practical effect of this loss of status is that the member loses their rights of membership, such as attending meetings and voting in Union elections. A member not in good standing for failure to pay these fines does not, however, lose his/her right to employment as a carpenter on a Union job under union security clause or membership in the organization, provided they stay current in the payment of periodic dues. See, United Brotherhood of Carpenters and Joiners of America (De Rose Industries, Inc.) 256 NLRB 584.

As with all members, the District Council would prefer that all stewards actually perform their clay of Union activity rather than incur the fine, but a steward who does neither does not deserve the privilege of representing the Union as a steward. Similarly, a member who has violated the job referral rules and refuses to pay the fine imposed for that or any other transgression, should not be able to serve as a steward.

Business representatives who violate or flaunt the Union's rules and their obligations of membership are subject to discipline such as reprimands, suspension or termination. Surely shop stewards must be, as well.

1 Section 45 (0) of the UBC Constitution Section 45 (0) provides, in relevant part: "All fines imposed and assessments legally levied...shall be charged by the Financial Secretary to the member from whom due, and the members shall be notified in writing the sum must be paid within thirty (30) days to entitle the member to any privilege, rights or donations. If the member does not make payment within the time prescribed, the member shall not be in good standing....

Edward Scarvalone, AUSA February 13, 2003

Page 3

Accordingly, the District Council proposes to amend the second sentence of Section 16 of its Bylaws by adding a new sentence after the first sentence, to state, "Stewards shall be members of the District Council in good standing and appointed according to their skills and position on the out of work list."

2.   Steward Review: To help facilitate the implementation of the December 18, 2002 Stipulation and Order, the District Council has issued a Shop Steward Reports Policy and Jobs Folders Policy, copies of which are enclosed for your reference. These policies were shown to Walter Mack before being reviewed with business representatives last week. In order to enforce the Order and these policies (particularly the Shop Stewards Report Policy) and as a necessary and appropriate management procedure, the District Council desires to implement a uniform system of shop steward review to insure that shop stewards are complying with their duties and obligation to turn in accurate reports in a timely fashion.

The By-laws define the criteria to qualify as a shop steward, but ironically, they do not expressly provide a mechanism to deal with a steward who is deficient in the performance of their duties2. Under Section 5 of the By-Laws the Council Delegates are authorized to adopt operating procedures to govern the Council and all Local Unions and to enact all measures... and other actions that may be necessary to further the objectives and purposes of the Council." Under Section 8, the Executive Commit-tee is charged with the responsibility to "review the District Council's referral records and to determine that ...the appointment of stewards are being conducted fairly and properly in accordance with the job referral

2

This process seems to have been relegated to the day today operations of the Council. In the past, an ad hoc committee of business managers was utilized to review stewards who had complaints filed against them by members or business representatives. These committees made recommendations to the EST regarding suspension of a steward's skill when they thought it was justified. This process was discontinued as not specifically authorized by the By-laws. Now, the only process of steward review and discipline is the charges and trial procedures.

Edward Scarvalone, AUSA February 13, 2003

Page 4

rules." The EST, under Section 16, is to appoint all stewards in a fair and equitable manner consistent with the job referral rules and the Consent Decree.

Unlike business representatives and managers, who are employees of the Council and subject to its control, there is no system of review and control of stewards, who are agents (at least for some purposes) but not employees. Yet, the performance of these stewards is unquestionably crucial to the operations of the Council and the daily work of its officers and representatives. It is appropriate that there be a fair and uniform system for their review and control.

The District Council proposes to enact the following operating procedures for the oversight and discipline of shop stewards:

Statement of Policy: A shop steward is the District Council's eyes and ears on the job site. It is their primary obligation to see to the proper observance of the collective bargaining agreement and to submit accurate shop steward reports to the appropriate Local Union on timely (weekly) basis. Any problems on the job which cannot be dealt with effectively by the shop steward should be promptly reported to the business representative assigned to the job. A steward who does not fulfill their obligations as a steward may be removed from their position on the job and have their steward skill reviewed in accordance with this policy.

Removal From the Job as a Steward: A steward may be removed from their position as the job steward on a particular job by the responsible business representative or business manager for failing to turn in accurately completed shop steward reports for two (2) consecutive weeks or for other good cause (i.e. not being regularly present on the job). Being removed as the shop steward on a job does not require that the steward be fired or laid off from the job — that is an issue for the contractor, not the business representative or

Edward Scarvalone, AUSA February 13, 2003

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business manager. A steward wishing to appeal any action by a business representative may do so by immediately contacting the business manager or the action of a business manager by appealing to the District Council's Director of Operations, Maurice Leary. The Director of Operations has been authorized to finally determine these issues as they arise on a daily basis. Being removed as a job steward does not automatically affect your right to be dispatched as a steward on subsequent jobs. All shop steward changes must be immediately reported to the job referral office so that another steward can be dispatched from the referral list.

Shop Steward Skill Review: Upon the written complaint of a business representative or business manager to the Executive Committee, alleging that a steward has repeatedly failed in his or her duties or demonstrated his or her incompetence, the Executive Secretary Treasurer will appoint a subcommittee, to be known as the Steward Review Committee, consisting of three (3) members of the Executive Committee, to review the matter and report to the EST. The member shall have the right to have their home local Executive Delegate sit on the subcommittee if they so choose. No Executive Committee member from the same Local Union as the charging business representative or business manager shall sit on the subcommittee. The EST may appoint a standing subcommittee to perform this function. After hearing from all the parties, the subcommittee may exonerate the steward, recommend to the EST additional training, as needed, or suspension of the member's steward skill for up to six months on a first review or up to one year on a second review. The EST will receive and consider the report and recommendations of the Steward Review Committee before passing on the matter, but the EST shall not be bound thereby. The EST shall report his decision to the full

Edward Scarvalone, AUSA February 13, 2003

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Executive Committee, which shall have the right to accept or reject his decision. Upon acceptance of the EST's decision the action taken shall become the final decision of the Executive Committee. Final decisions of the Executive Committee regarding steward review shall then be reported to the member. The effected member will be notified that they may appeal the final decision of the Executive Committee to the Delegate Council provided that request is made in writing to the EST and received at least 10 days prior to the Delegates meeting held in the month following the final decision of the Executive Committee.

Permanent removal of a member's shop steward certification: Permanent removal of a member's shop steward certification may only be effected by the bringing of charges and a trial pursuant to Section 28 of the District Council By-Laws and sections 52 and 53 of the UBC Constitution.

The Government's prompt consideration and approval of these matters would be appreciated. Please do not hesitate to contact me if you have any questions about this.

Very truly yours,

O'DWYER & BERNSTIEN, LLP

GR/bm Enclosure

cc: Walter Mack, Esq.

Michael J. Forde, EST

Maurice Leary, DOO

Scott Danielson, OWL Supervisor

DC\BF\Shop Stewards\Scarvalone 021303

By:

GARY ROTHMAN

Shop Steward Reports Policy

1. All shop steward reports must be submitted to the Local Union where the job is located on a weekly basis.

2. Shop steward reports will be reviewed by Local Union's for completion, i.e. that they are signed by the shop steward and legibility. Stewards should be required to correct incomplete or incorrectly filled out forms immediately.

3. Shop steward reports should be signed by the assigned Business Agent, which will indicate receipt of the report and that the steward was properly dispatched to that employer at that job location. (The local should possess a shop steward dispatch from the out of work list to confirm this.)

4. Shop steward reports should be separated by date ending on Friday and delivered to the District Council every Monday. It is each Business Managers obligation to make sure the shop steward reports are delivered to the District Council on a timely basis.

5. The original white copy of the shop steward report should be delivered to the District Council. The Local Union's salmon copy should be placed in the job folder kept at the Local.

6. While signing for a shop steward report is not a representation by the Business Representative that the 50-50 rule has been complied with on that report, Business Representative's should be aware that they are responsible for monitoring compliance with this Collective Bargaining requirement.

7. If a Business Representative is not available to sign shop steward reports for jobs assigned to that Business Representative (i.e. vacation, sick) the Business Manager should sign the shop steward report and indicate he is signing for the Business Representative who is unavailable, for example " BM for BR on vacation".

Job Folders Policy

1. Each and every job location in the Local Union's geographical for which a job I.D. number has been generated by the District Council shall have a job folder maintained by the Local.

2. Each job folder shall have printed on it the job I.D. number, job location, contractor's name and business representative assigned to the job.

3. Inside each job folder shall be maintained all information pertinent to that job including:

1. Shop steward dispatch forms

2. Shop steward charge forms

3. All other dispatches, shapes and written dispatch requests

4. All shop steward reports signed by the responsible Business Representative

5. All steward skills certification forms from the out of work list

6. Any grievance filed on the job.

4. Job folders should be retained by the Local Union for a period of one year after the close of the job.