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.
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
An Open Letter to Review Officer, Dennis M. Walsh requesting Veto of Charges