Case 1:90-cv-05722-RMB -THK Document 1175

Filed 08/10/12

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USDC SDNY DOCUMENT ELECTRONICALLY FILED JfpSHUA A. DOUGLASS, ESQ. DOC#: DATE FILED: 1,W*>1V 26 FAIRWAY DRIVE
August 7,2012 VIA HAND DELIVERY JDOUGLASSESO@GMAIL.COM

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MEMO ENDORSED
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Honorable Richard M. Berman United States District Judge United States District Court for the Southern District of New York Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312 Re: United States v. District Council of New York City of the United Brotherhood of Carpenters and Joiners of America, et. al. (Index No. 90 Civ. 5722)(CSH) Dear Judge Berman: I am writing on behalf of rank and file members of the District Council. These members request your intervention over two matters of concern to them. I have enclosed memorandums detailing their positions regarding each matter. As an aside, i am personally quite familiar with the issues as, although not admitted to the Southern District at the time, I drafted the Temporary Restraining Order presented to you this past January and have been in discussions with many of the District Council members concerning the Collective Bargaining Agreement process ever since. The matters of concern are (1) The announcement by the District Council that it will be executing changes to the Out-of-Work list commencing on August 13,2012 despite having failed, and denied, the members any opportunity to exercise their right to comment on such changes and (2) The finding of an Arbitrator that the "Most Favored Nation" clause was triggered by a contract signed days after the indictments of union officials in 2009 by an individual whom Review Officer Walsh has determined lacked authority to bind the District Council. The undersigned believe that the interests of the District Council are best served by leaving these matters up to the discretion of This Court. Thus, they pray that wisdom will prevail and that justice will be served.

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MEMORANDUM Re: Chancestothe Out-of-Work List Review Officer Dermis Walsh, through his Fourth Interim Report, recommended that the District Council replace the 25-day rule with a three-dispatch rule, "whereby, without temporal limitation, a member will receive three referrals before returning to the end of the OWL." The District Council announced late last week that it will be executing such recommendations. The undersigned do not propose to challenge Review Officer Dennis Walsh's powers to recommend these changes to die OWL. However, they do argue that once Mr. Walsh has made such recommendation, there is a duty of the Council to establish a process through which the members can engage in a robust discussion concerning such changes. Instead, the District Council failed to establish any process through which members could comment on the changes to the OWL. In fact, individual members have been frustrated in their repeated attempts to weigh in on the subject This complete lack of due process is in direct opposition to federal law, the Consent Decree and the District Council By-laws. Thus, the undersigned urge This Courttoprohibit the execution of these changes until the members are afforded the opportunity to engage in a robust discussion concerning the OWL. The purpose of such a robust discussion would be to determine whether there is a policy which would better address the concerns of the Review Officer concerning day-counting while protecting the interests of the members and employers. Given the opportunity to weigh in on the subject, the undersigned would have brought forward the practices of the IBEW. The IBEW guarantees its members a certain number of working days before an employee can be senttothe end of their out-of-work list. This protects the members by ensuring that they can work enough daystogain medical and unemployment benefits. This practice, a template that has been proven to be effective for all involved, would obviously mitigate any tendencyforthe members to engage in day-counting. The District Council's failure to permit member input squelches any opportunity to discuss such alternative changes. Further, the undersigned believe that the intended change will undermine This Court's charge to eradicate the District Council of long-standing corrupt practices. The three-call procedure will inevitably result in more members falling short of days requiredtoobtain health and unemployment benefits. Thus, it is foreseeable that members will be forced to go along with corrupt employers and enter into underhanded dealings in order to ensure that they have gained enough working days to obtain such benefits. The undersigned have been victimized for too long and should not be forced to fall preytothe roulette system prescribed by this new change. For these reasons, and a desire to establish a more democratic union, the undersigned pray for This Court to intervene and prohibit these changes from taking effect on August 13.

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Document 1175

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MEMORANDUM Re; District Council Memorandum of Understanding with Gilbert Displays Days after the federal government indicted senior officers of the District Council in 2009, Denis Shells purportedly executed a contract on behalf of the District Council with Gilbert Displays, Inc. This contract set a wage and benefit package at a lower scale than that provided members of the District Council by the previously executed contract with the Manufacturing Woodworkers Association ("MWA"). The MWA contract included a "Most Favored Nation" clause. In May of this year, MWA obtained an Arbitrator's decision that "the MWA employers are entitled to its requested remedy of the retroactive application of the better terms and conditions of the Gilbert Agreement for all hours worked retroactive to August 1,2009, when Gilbert received a more favorable contract." Relying on this decision, most of the corporations that are covered by the MWA contract have reduced their wage and benefit packages to the members of the District Council. Further, the District Council has offered the MWA fourmillion-dollars in settlement and the MWA has refused such offer. In his Fourth Interim Report, Review Officer Dennis Walsh states that Denis Sheil executed the contract with Gilbert despite the fact that he was "not vested by the former District Council Bylaws with authoritytodo so." (Page 12). Further, Mr. Walsh states mat, "The District Council has searched for a written delegation of authority by the delegate body or executive committee and found none." (Pg. 12, Footnote 8). I have advised my clients that a contract can be declared void ab initio by a court if a signatory did not have authority to execute. I have further advised my clients that, under the circumstances surrounding the execution of the Gilbert agreement, a reasonable person standing in the shoes of Gilbert would have had grave concerns about the authority of Mr. Sheils. Finally, 1 have advised them that Gilbert had the burdentoconduct its own due diligence into the issue of whether Sheils had such authority. Failingtoconduct such due diligence should cause the contracttobe void from its inception. For, "one who deals with an agent does so at his own peril, and must make the necessary effort to discover the actual scope of authority.. .Upon failure to properly determine the scope of authority, and in the face of damages resultingfroman agent's misrepresentations, apparent authority is not automatically available to the injured third partytobind the principal. Rather, the existence of apparent authority depends upon a factual showing that the third party relied upon the misrepresentations of the agent because of some misleading conduct on die part of the principalnot the agent." Unisys Corp. v. Pereament Distributors. Inc.. 1991 U.S. Dist LEXIS 2427 (E.D.N.Y. Feb. 11,1991) at 5. The issues of agency were not even discussed during the arbitration hearings. Thus, it is the will of the undersigned members of the District Council that This Court establish a process through which a determination can be nude astowhether the contract at issue should stand.

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JOSHUA A. DOUGLASS, ESQ. 26 FAIRWAY DRIVE HEMPSTEAD, NY 11550 (516)476-2426 JDOUGLASSESO@GMAIL.COM August 10,2012 VIA HAND DELIVERY Honorable Richard M. Berman United States District Judge United States District Court for the Southern District of New York Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312 Re: United States v. District Council of New York City of the United Brotherhood of Carpenters and Joiners of America, et al. (Index No. 90 Civ. 5722XCSH) Dear Judge Berman: I, Joshua A. Douglass, attorney for certain members of the District Council of New York City of the United Brotherhood of Carpenters and Joiners of America, do hereby attest that I have, contemporaneously to filing with This Court, sent a copy of the documents attached herein to the following parties by certified over-night mail: General Counsel District Council of New York City of the United Brotherhood of Carpenters and Joiners of America Mr. James Murray 395 Hudson Street New York, NY 10014 Manufactures^ Woodworking Association, - MWA Lawfirmof Trivella & Forte 1311 Mamaroneck Ave. Suite 170 White Plains N.Y. 10605 Gilbert Displays Inc. llOSpagnoliRd. Melville N.Y. 11747

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Review Officer Dennis Walsh Fitzmaurice & Walsh LLP Chester Ave., White Plains N.Y. 10601 I have also e-mailed these documents to Mr. Walsh, Gilbert Displays, and the attorney for the MWA. In sending these papers to these parties, I have purposefully omitted the signatures of the members of the District Council incorporated herein at their request in order to protect their identities. Sincerely,

Richard M. Berman, U.S.DJ.