(John's note: The following letter was sent to Judge Berman by DC counsel on Feb. 13, 2013 regarding the implementation of a compliance program)
Compliance Provisions Related to Full Mobility Under the Collective Bargaining Agreement Between the District Council and the Association of Wall-Ceiling & Carpentry Industries of New York, Inc.
Dear Judge Berman:
As you know from earlier correspondence, this firm represents the New York City and Vicinity District Council of Carpenters. I have been serving as the District Council's General Counsel since January 26, 2012.
I write to inform Your Honor about the compliance provisions being developed to implement the collective bargaining agreement (the "CBA") between the District Council and its largest multi employer association, the Association of Wall-Ceiling & Carpentry Industries of New York, Inc. ("WC&C") currently being negotiated.
The District Council is seeking the Court's approval of this new arrangement by which the WC&C contractors will be employing carpenters without being required to hire a certain percentage of their carpenters through the District Council's job referral system (save for Shop Stewards, who will continue to be referred through the job referral system except for one and two person jobs). The compliance procedures described here have been agreed by the District Council and the WC&C. They have also been reviewed and approved by Review Officer Dennis Walsh and the Government.
This letter is to request that this matter be added to the agenda of the conference Your Honor already has scheduled for February 27, 2013 to review various activities and initiatives of the District Council. At the conference the District Council and its outside vendor would be available to provide a demonstration of the electronic reporting mechanisms described in more detail below.Subject to the negotiation and finalization of a collective bargaining agreement incorporating these provisions, the District Council, the WC&C, the Review Officer, and the Government contemplate, with the Court's approval, putting into effect beginning Monday, March 4, 2013 the compliance arrangements described below, along with the implementation of the first wage/benefits increase and full mobility in hiring under the CBA. A stipulation and order, along with the fully negotiated collective bargaining agreement, implementing these measures will be provided to Your Honor prior to the conference.
Upon implementation of the procedures described below, the District Council would report to the Review Officer, the Government, and the Court on a regular basis on the progress of the compliance program. The proposal is that this formal reporting would be done by the District Council initially every thirty days after entry of the stipulation and order and, when the Court deems it appropriate, eventually requiring such formal reporting every ninety days.
Briefly, the new arrangement-referred to by the District Council and the WC&C as "full mobility"-will allow WC&C contractors to employ all of their carpenters (except for the Shop Stewards on jobs of three or more carpenters) by hiring them directly without having to use the District Council's job referral rules through the out of work list (the "OWL"). Currently, under the Court's May 26, 2009 Order, at least thirty-three percent (33%) of a contractor's carpenters on a job must come through referrals from the OWL.
ln order to prevent corruption, the District Council and the WC&C have agreed to a number of provisions that will be codified in the parties' CBA to ensure compliance with all of the provisions of that agreement. Those provisions are generally outlined in the compliance addendum that was ratified by the District Council's Executive Committee and Delegate Body on August 22, 2012. A copy of that addendum is annexed to this letter as Exhibit A.
There are additional compliance provisions being instituted at the direction of the Review Officer and the Office of the Inspector General at the District Council. In total, there will be four quite different yet complementary methods that will be utilized to insure compliance with the CBA. The four methods are(1)Shop Stewards electronically reporting personnel and hours, (2) carpenters being able to check through the electronic reporting system any and all jobs on which they were employed to insure the accuracy of the number of reported carpenters and hours, (3) the hiring of additional on-site inspectors employed by the Inspector General of the District Council for visiting job sites on a 24 hours a day and 7 days per week basis and concentrating on one and two-person jobs where the CBA will not require a Shop Steward, and (4) CBA sanction and arbitration provisions by which contractors found to have willfully and with bad intent violated staffing,wage, and benefit requirements would be subject to loss of the right to full mobility and instead would be required to use the OWL for at least fifty percent (50%) of their staffing requirements while otherwise being bound to all of the other provisions of the CBA.
1. Shop Stewards Electronically Reporting Hours
The first compliance feature involves Shop Stewards electronically reporting on a daily basis for the particular job site on which a Shop Steward is working the employer's name, unique job or project number assigned by the District Council,the names along with unique United Brotherhood of Carpenters ("UBC") membership numbers for each carpenter on the job, job classification for each (eg, foreman, journeyman, apprentice), and the regular straight time and any overtime or premium hours worked that day (including the times in and out).
Each Shop Steward will be supplied with a portable wireless device by which s/he will enter the information described immediately above and then submit that information to the District Council. The information will be forwarded nearly simultaneously to the employer and to the District Council Employee Benefit Funds. The employer will have five (5) business days from the close of its payroll week to approve or dispute any of the Shop Steward's entries, with the CBA providing for a procedure by which discrepancies can be discussed and either reconciled or submitted to arbitration.
Your Honor is respectfully referred to Exhibit 6 of the Fifth Interim Report of the Review Officer (Dec. 3, 2012) to see screen shots from the trial programs of what a member will see when logging in to check his or her jobs and what a Shop Steward will see when logging in and then moving through the various functions to enter jobsite information as described above. For Your Honor's convenience, a copy of that Exhibit 6 is annexed to this letter as Exhibit B.
Since November 2012, six WC&C member employers and their carpenter employees have been field testing the technology. All reports have been positive. The District Council is prepared to have representatives from its vendor, Standard Data Corp., provide a real time demonstration of the system and process to Your Honor as part of a conference on this matter.
The costs of the electronic devices-including the hardware, technical support, insurance, guaranteed replacement and parts for six years-will be $1,000 each. The plan is initially to purchase 1,000 devices. The not-for-profit New York City and Vicinity Carpenters Labor-Management Corporation,which has net assets of over $10 million, has already provided a grant of $400,000 towards the purchase price. The District Council, the WC&C, and the Review Officer will be approaching the other employer directors of the Labor-Management Corporation for an additional grant of $600,000 to cover the complete cost of the first 1,000 units.
Additional costs that are currently to be covered by the District Council are estimated to be $80,000 for the one-time software licensing fee, a $15,000 per month internet connection fee, and $7,000 per month for technical support.
The electronic devices will be programmed to be dedicated solely to the Shop Steward's job reporting duties. Consequently, there will only be access to the Shop Steward's dedicated District Council e-mail through which s/he will be able to correspond with District Council representatives on job related issues. The only two websites that the electronic devices will be able to access will be the jobs reporting site and the District Council's website.
The District Council is training Shop Stewards on the new reporting procedures through classes with hands-on training with the software and website. Each class lasts approximately two to four hours. As a backup, the District Council plans on moving some current staff members from the OWL department in order to be available to take Shop Steward reports by telephone. The District Council anticipates that this backup reporting as well as technical support for Shop Stewards submitting their time reports using the electronic devices will be available daily to 10:00 p.m.
As noted above, the proposed start-up date is March 4, 2013, when the WC&C employer members would be able to use full mobility and the carpenters would receive the first wage and benefit increases under the CBA. During this roll out period, approximately fifty new units and trained Shop Stewards would be added every week to the initial complement of approximately 150 devises and trained Shop Stewards until the full complement of devices and trained Shop Stewards are reached on or about March 18, 2013. During this transition period, the District Council will provide the resources for Shop Stewards without the devices to call into a central number every working day to report the jobsite information details to staff, who will then enter the information electronically.
2. Carpenters' Ability to Monitor Hours on which They Worked
ln conjunction with the Shop Stewards' jobs reporting program described immediately above in point 1, there will be the complementary ability for individual members to check the jobs on which they worked. This initiative-entitled Operation Watch Dog-will allow an individual member to access the secure job reporting website to review any jobs on which s/he was employed. Should the member be unable to access a particular job on which s/he was employed-indicating that his or her hours weren't entered by the Shop Steward-or accesses a job and sees that his or her or other members' hours were not reported accurately, the member will be able to report by name or anonymously any discrepancies to the District Council's Inspector General or the Review Officer for investigation. Your Honor is again referred to Exhibit 6 of the Review Officer's Fifth Interim Report to view the steps a member would take to check electronically the report of hours on his or her job (copy annexed here to as Exhibit B).
3. Jobsite Integrity Program
Besides the electronically based reporting and verifying of carpenters' names and hours on a job, the Inspector General's office, in conjunction with the Review Officer, will be instituting a jobsite integrity program. That program will be staffed in the following manner.There will be sixteen(16)retired carpenters who will have been vetted by the Inspector General's and the Review Officer's respective offices. Those retirees, all of whom will each have had decades of experience as working rank and file carpenters, will be assigned primarily to monitor one and two-person jobs that will not ordinarily have a Shop Steward assigned. Of the approximately 500 WC&C jobs going on at any one time, approximately 150 to 200 of them involve less than three carpenters. Retirees receiving retirement benefits under the District Council's Pension Fund are allowed to work no more than 39 hours per month. Consequently, the 16 retirees will be divided into four groups of four each, so that each group's members will work only one week out of every four weeks.
The Inspector General's office will schedule the retired carpenters in such a way that there will be the possibility of coverage 24 hours per day and 7 days per week as necessary. As noted above, their main priority will be to visit one and two-person jobs because the CBA will not require a Shop Steward for those jobs.
The payroll costs of the 16 retired carpenter inspectors-who will be paid starting hourly salaries of $46.15 (to be increased as wage rates increase under the WC&C CBA) up to 39 hours per month are estimated to be at least $375,000 annually. These costs are to be borne entirely by the District Council. The retired members will not work any weekly overtime.
lt should be noted that the new jobsite integrity inspectors will be in addition to the continuing efforts of the present complement of personnel in the Inspector General's office, who will continue to monitor jobs and investigate leads and tips concerning violations of collective bargaining agreements and corruption. The Inspector General's office currently employs ten full-time investigators, including the Inspector General, three carpenter inspectors, three retired law enforcement veterans, and three administrative inspectors.
An additional component of the jobsite integrity program that will complement the measures described above in point 2will include a comprehensive publicity and reinforcement campaign. The publicity will involve a mailing to all members about the jobsite integrity program and how a member can report suspected problems with staffing and hours by anonymously calling 855-UBC-TIP Sorefirstname.lastname@example.org. ln addition, members will be provided with placards, pocket cards, carpenter pencils, and helmet (i.e., hard hat) stickers with the iconic bulldog and the slogan "Operation Watchdog: Members Protecting Benefits with Technology." Copies of the type of letter and these other items are annexed collectively to this letter as Exhibit C.
4. Sanctions Against Contractors Found Cheating
The final element for insuring ongoing jobsite integrity with the introduction of full mobility will be the District Council's ability under the CBA's grievance and arbitration procedures to seek sanctions against any contractor found to have willfully and with bad intent cheated on staffing, hours, pay, benefit contributions, and the like (e.g., not reporting all carpenters on a job, under reporting hours worked, reporting overtime hours as straight time,paying carpenters in cash).
As noted above in point 1, under the new CBA, an employer will have the opportunity to dispute a discrepancy between the personnel or hours reported by the Shop Steward. lf the dispute cannot be resolved between the contractor and the District Council, the matter will be submitted to an independent labor arbitrator for resolution.
ln those instances where the contractor has been found by the independent labor arbitrator to have engaged in deliberate, willful, and bad intentioned violations of the CBA with respect to staffing and hours, the arbitrator will have the remedial power to issue an award requiring a contractor found guilty of such deliberate, willful, and bad intentioned cheating to forfeit the right to full mobility staffing. Such a sanction under the CBA would require the contractor to staff all future jobs with at least fifty percent (50%) of the carpenters coming from the OWL while also being obligated to continue granting all wage and benefit increases for the remainder of the CBA's term. lt should be noted that this aspect of compliance enforcement is not a strict liability one and that an arbitrator would be empowered to award forfeiture of full mobility and a return to the original 50:50 ratio in hiring only upon determining that the contractor had in fact acted willfully and with bad intent in violation of the staffing and pay rolling requirements of the collective bargaining agreement.
A Shop Steward suspected of failing accurately to report personnel or hours will be subject to review under the existing District Council Bylaws and procedures for reviewing issues related to Shop Steward performance, with possible additional training or forfeiture of Shop Steward certification. A Shop Steward found to have deliberately misreported personnel or hours would also be subject to removal as a Shop Steward by the District Council, to veto from the Shop Steward position by the Review Officer, and to referral of his and the employer's misconduct to law enforcement.
The respective leaderships of the WC&C and the District Council believe that the threat of such drastic sanctions will serve as a powerful deterrent to corruption.
The District Council has worked for many months with its outside vendor to develop and test the new electronic reporting procedures described above. Inasmuch as the initial wage and benefit increases under the new WC&C CBA are contingent on the ability of the contractors to have available full mobility in hiring, it would be appreciated if Your Honor were able to schedule a conference next week at which the parties would have the opportunity to address any questions or concerns that the Court may have.
James M. Murphy
Saturday, February 16, 2013
(John's note: The following letter was sent to Judge Berman by DC counsel on Feb. 13, 2013 regarding the implementation of a compliance program)