An Open Letter to Review Officer, Dennis M. Walsh requesting Veto of Charges
I respectfully request a veto of the charges filed against me (attached) on July 25, 2012 by former New York City District Council president Bill Lebo, for writing and posting information on the MWA Arbitration Crisis (which the District Council has failed to provide) on the grounds that the charges are a infringement of my “free speech rights” and retaliation in violation of Title I of the Labor- Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 411-415.
I seek and ask for immediate veto relief to (1) veto the charges against me, (2) order the District Council to refrain from further processing the charges against me, (3) enjoin the District Council from infringing on free speech rights or retaliating against me for exercising those rights and or prosecuting similar charges against me or other union members who exercise those protected rights.
Title I of the LMRDA, § 411–15, provides union members with an exhaustive “Bill of Rights” enforceable in federal court. These rights are designed to guarantee every union member equal rights to vote and otherwise participate in union decisions, freedom from unreasonable restrictions on speech and assembly, and protection from improper discipline.
Section 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2), provides:
“Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings.”
On January 10, 2013, the Executive Committee (“EC”) of the New York District Council held a hearing for the purpose of examining the sufficiency of the pending disciplinary charges filed against me, pursuant to Section 52 of the Constitution of the United Brotherhood of Carpenters and Joiners of America (“UBC”).
At said meeting I distributed a letter to the EC (attached) requesting dismissal of the charges, explaining that the charges infringe on my free speech rights and that the District Council cannot discipline me for exercising my protected rights.
Upon information and belief, the EC has declined my request for dismissal and has referred the charges to the Trial Committee, causing members of the District Council and I to suffer irreparable harm and injury.
As the Sixth Circuit explained in Knox County Local, Nat'l Rural Letter Carriers' Ass'n v. Nat'l Rural Letter Carriers' Ass'n. 720 F.2d 936, 938 (6th Cir.1983):
This “bill of rights of members of labor organizations” is modeled after the First Amendment and guarantees to members the right of free speech and assembly, and the right to participate in union deliberations. The legislative history of § 411 clearly demonstrates that the bill's sponsors sought to protect the rights of union members to assemble and to voice their views on union affairs without fear of union reprisal. The bill was designed to allow members to participate actively in a “democratic” union.
Federal courts have consistently held that the potential chilling effect on free speech constitutes a clear threat of irreparable harm, for which there is no adequate legal remedy. Indeed, in Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir. 2006), the Seventh Circuit stressed: “The loss of First Amendment freedoms is presumed to constitute an irreparable injury for which money damages are not adequate, and injunctions protecting First Amendment freedoms are always in the public interest.”
On March 17, 2011, the U.S. District Court for the Southern District of Illinois concurred and issued an agreed-upon permanent injunction barring the Carpenters’ District Council (CDC) of Greater St. Louis & Vicinity from silencing the free speech rights of members. (see attachment detailing case number 3:10-cv-0741-MJR-PMF).
The pending charges against me (as in the above mention case) target my protected expression, and the anxiety of the trial and potential fine inhibit my speech and cause me and other members of the union to suffer irreparable harm in the absence of veto relief.
The EC’s actions in referring the charges to the Trial Committee will have a chilling effect on the speech of other union members who may want to voice their opinions but fear that they risk being subjected to charges and trial, like myself.
The potential chilling effect on Title I free speech rights is more pronounced when they are brought against an elected official like myself. Not only is the EC attempting to silence me from exercising my free speech rights, but also their actions will have a chilling effect on other members of the union who wish to do the same.
The Supreme Court in Steelworkers v. Sadlowski - 457 U.S. 102 (1982) discussed Congress's intent in enacting § 411(a)(2):
Congress adopted the freedom of speech and assembly provision in order to promote union democracy. It recognized that democracy would be assured only if union members are free to discuss union policies and criticize the leadership without fear of reprisal. Congress also recognized that this freedom is particularly critical, and deserves vigorous protection, in the context of election campaigns. 457 U.S. at 111–12.
The charges filed against me infringe on my protected rights and will cause me and my fellow union brothers and sisters to suffer irreparable harm in the absence of veto relief.
Finally, I am aware that the LMRDA requires that I exhaust internal union remedies before taking a claim to court.
29 U.S.C. § 411(a)(4) states that a union member “may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization” before instituting legal proceedings against the organizations or officers.
The word “may” instead of “shall” signals that this requirement is discretionary. Federal courts have so held.
In closing, and for the record:
I am a proud and loyal member of the District Council who has been an advocate and has championed the right of free speech my entire UBC career. I have never had charges filed against me. I have never revealed or divulged any UBC confidential information, legal strategies, or “business of the United brotherhood.” I have faithfully served the membership of this union by providing vital information (since 2007) in order to promote union democracy and provide a forum where members can express any view free from the tyranny of the District Council. And I have demonstrated that there is a reasonable likelihood of success on the merits of my claim should I decide to institute legal proceedings against the District Council.
The charges filed against me constitute a clear infringement of my “free speech rights,” the charges filed against me are inconsistent with and violate the objectives of the Stipulation and Order entered on June 3, 2010, "are a waste of the assets of the District Council" and the time of the Trial Committee, and I and the membership will suffer irreparable harm if the veto is not issued.
Moreover, many people are watching for the outcome of this case, as many are either reluctant or afraid to speak for direct and immediate fear of retaliation. The irreparable harm, which I and the membership will suffer without veto relief greatly, exceeds the harm the District Council will suffer in referring these charges to trial if the veto is not granted, therefore, I respectfully request veto relief.
John Musumeci
Member Local 157, Delegate New York District Council, and blogger and Editor of Local157.blogspot.com
P.S. Having stated in your Fifth Interim report and in federal court that I was the victim of "harassment" at the July 25, 2012 Delegate Body meeting, without veto relief this is adding insult to injury. I have suffered (a) the HR Director denying a request to investigate my harassment claim in violation of the bylaws, (b) a four page whitewash report from the Inspector General and Chief Compliance Officer, and (c) the "appalling failure of decorum and procedure" where the former council president Bill Lebo, harassed and improperly incited members of the delegate body to infringe upon my right of free speech and encouraged members of the delegate body to harass, intimidate and file these charges.
Sunday, January 13, 2013
APPLICATION FOR VETO BY THE REVIEW OFFICER
9 comments:
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Well, Well, Well. Look who's looking for relief, now that the shoe is on the other foot. Don't be looking for sympathy from anyone you crossed paths with when you were MR. BIG TIME PRESIDENT. YOU PHONY TWO-FACED HYPOCRITE. GO FUCK YOURSELF.
ReplyDeleteNow that's an intelligent comment, and for the record I was never an elected president.
ReplyDeleteJohn please allow me to extend my sincerest apologies. And without explaining how this happened. Even though i disagree with you from time to time. The above comment was never intended for or at you. Again I apologize.
ReplyDeleteThanks for the sharing. Excellent your CV Builder blogs & i'm agreed your blog information.
ReplyDeleteJohn Dennis Walsh is a liar there to serve himself,another CONBOY in the wait. Fuck him and the DC. How long have the feds been in the building? You ask him at his BLOWHARD Forum where he apologizes for you getting fucked while he takes the money with a wheelbarrel.Transmorgified my ass.
ReplyDeleteLebo directly and Bilello indirectly through Lebo targeted John from the day they were sworn last January.
ReplyDeleteThose facts are obvious and this site had many posted topics & cases for the two of them to read, learn and digest as an aid to accelerate their so called learning curve. A year out, the training wheels still can't be removed. What a shame given all the training classes & DC seminars being offered through the HR Department. Apparently, these two bozo's were sleeping in the back of the class. Maybe they have ADHD or some other form of mental disability which prohibits their learning & retention.
Their inability to realize what a waste of time these actions have been, combined with their inability to nail down secure contracts and their continued emotional and childish outbursts in public forums make the two of them unfit to serve. Lebo's departure was long overdue and a blessing.
Lebo still has an axe to grind when in fact, the only person to blame for his demise is himself & no other. Bilello was thought to be salvageable, but continunance of these charges against John leaves that in doubt. He may just need an anger management class. Screaming at someone like a petulant 5-year old, whether in the field, or a professional setting gets you no where fast and is a sign of immaturity.
The charges should be vetoed and the DC & EST Bilello should focus on job number 1 - negotiating boiler-plated contract lanaguage for every CBA. All DC members should receive the exact same hourly wages & benefits - period; one contract for all regardless of the Internationals desire to "divide & conquer" via wage differences.
Job number 2 must be revamping the Organizing Department from stem to stern. The dead weight must go. It's time to clean house and start over, as the Organizers cannot justify their bloated salaries with demonstrable & effective results. The R.O.I. for Organizers is generally non existent. Accountability demands tangible results which they cannot provide.
FREE SPEECH - FIRST AMENDMENT, 157 BLOGSPOT (19-POSTS)
ReplyDeleteThis post was updated on Jan 18, 2012; 2:19am.
Justice Brandeis - concurring opinion, excerpt:
This court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present; and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgment of free speech and assembly as the means of protection. To reach sound conclusions on these matters, we must bear in mind why a state is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence. [274 U.S. 357, 375]
Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty.
They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. 3
They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion, they eschewed silence [274 U.S. 357, 376] coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
- cont. - excerpt from Jusice Brandeis......................
DeleteFear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.
Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. 4 Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind.
In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. [274 U.S. 357, 377]
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.
So, in terms of "Clear & Present Danger", art imitates life. Hollywood of course never acknowledged the father of the above precept, Justice Brandeis.
ReplyDeleteOK, back to John and the irrational fears of the DC with regard to dissemination of information on this site relative to the MWA, apparently, the Lebo witch-hunt is still going like the Energizer Bunny.
Under known precedent(s), John and participants on this blog are freely entitled to post, discuss & debate any and all terms & conditions of employment without fear of reprisal or retaliation.
Under Federal Judge Richard M. Bermans ruling in the Craigslist case, (see Free Speech - First Amendment, 157 blogspot topics) the DC does not have any cause of action or more importantly; a prima facie case whether in the UBC Kangaroo Court system, at the NLRB or whether filed as any form of a civil or criminal action.
And, independent sources have checked and verified that John does not practice witch craft, so burning him at the stake is apparently off the table as well. Damn you John.
Funny thing here, that is exactly what Lebo was counting on from day one, inciting others into a riotous frenzy and hoping they would engage in criminal acts such as a beatdown etc so he could feign clean hands and walk away falsely claiming he had nothing to do with it.
Well, we all know that failed because educated and informed members, (the purpose of John's blog) through the precepts & tenets of free speech and via atendance at forums, local union meetings, delegate meetings & so on stood up for John's rights as his rights are their rights.
The DC & EST Bilello need to make an executive (big boy) decision here. Simply put, drop the charges against John, file it under lesson learned, apologize to John and move on.