Dennis M.

Walsh The Review Officer 90 Civil 5722 (SDNY)

The Law Office of Dennis M. Walsh 415 Madison Avenue, 11th Floor New York, NY 10017 dmwfw@verizon.net 646.553.1357

United States v. District Council, et al., 90 Civ. 5722 (SDNY) (RMB) NOTICE OF VETO BY THE REVIEW OFFICER To: The Executive Committee New York District Council John Musumeci Member, Local 157 William Lebo Member, Local 45 Michael Bilello Executive Secretary-Treasurer New York District Council Background This veto relates to charges filed by former District Council President and Local 45 member Bill Lebo against Local 157 member and delegate John Musumeci. The record considered comprises (i) my observation of the meeting of the Executive Committee of the New York District Council (District Council) on January 10, 2013, held for the purpose of examining the facial sufficiency of pending District Council member disciplinary charges pursuant to Section 52 of the Constitution of the United Brotherhood of Carpenters and Joiners of America1 (UBC), (ii) my review of the charges submitted for such examination, in

Section 52.C requires that a charge contain a brief statement of the facts upon which the charge is based. Section 52.D(1), among other matters, requires the Executive Committee to dismiss any charge that the Committee determines is without sufficient foundation.

particular, charges filed by Mr. Lebo against Mr. Musumeci (which I have reviewed and attached hereto as an exhibit), (iii) the Constitution of the United Brotherhood of Carpenters and Joiners of America (UBC), (iv) The Bylaws of the New York District Council dated August 5, 2011, (v) the Consent Decree entered in this matter on April 4, 1994, (vi) the Stipulation and Order entered in this matter on June 3, 2010, (vii) the submission by Mr. Musumeci to me dated January 13, 2013, in which he requested that I veto the Lebo charges (attached hereto as an exhibit), (viii) the submission I requested from the District Council dated January 18, 2013 (attached hereto as an exhibit), (ix) my observation of the District Council delegate body meeting held on July 25, 2012, and (x) the email sent by the District Council to its delegates on July 16, 2012, requesting their approval for the retention of the attorneys (attached as an exhibit). Facts and Analysis Mr. Lebo has asserted in his charges that Mr. Musumeci, by publishing on July 18, 2012, an article on his blog [local157.blogspot.com] about the District Councils retention of three attorneys to represent the District Council in an ongoing dispute and arbitration with the MWA, (1) violated provisions of the UBC Constitution and the District Council Bylaws, specifically that he violated his Obligation as a union member (tantamount to an oath) not to reveal the business of the United Brotherhood; (2) revealed the business of the District Council; (3) caused dissension among District Council members by posting an article he wrote and (4) violated Section 12.G of the District Council Bylaws, which Mr. Lebo apparently asserts grants the District Council executive committee exclusive authority to provide information about the District Council to the public and the membership of the union. The article also reported on, among other things, the unique email method (instead of consideration at a regular meeting) used by the District Council under exigent circumstances to obtain the consent of the delegates to the

retention of the lawyers and associated cost. The article also strongly criticized the leadership of the District Council, which included Mr. Lebo. Mr. Musumeci, who has run his blog reporting on District Council matters for many years, had run numerous prior articles criticizing the incumbent administration on the MWA and other matters. Despite that the District Council has also had a web site for many years, local157.blogspot.com has become the go-to source for union members to find the latest news regarding District Council matters. Mr. Musumeci asserts in his defense and in support of his application for a veto that his free speech rights are being violated, citing 29 U.S.C. 411 and cases, including a case from the Southern District of Illinois where a Carpenters district council was enjoined from pursuing charges (similar to those in the present case) against a member who asserted his opposition to a policy of his union by placing a bumper sticker on his vehicle. He also asserts, among other things, that he had multiple sources for the article he posted on the hiring of the attorneys. I am also aware from my discussions with both men that due to Mr. Musumecis ongoing reporting of District Council matters and criticism of Union leadership, the relationship between Mr. Lebo and Mr. Musumeci was contentious throughout 2012 and that Mr. Lebo had previously considered filing similar charges against Mr. Musumeci because of it. The email sent by the District Council on July 16, 2012, identified the three attorneys and said the EST, President and Vice President of the District Council recommended their retention to assist the District Council in resisting the recent arbitration award involving the MWAs most favored nation provision. These attorneys have agreed to undertake this legal representation for a total flat fee of $150,000.00, including any and all appeals. Given that potentially tens of millions of dollars are at stake, the recommendation is that these attorneys be retained under the terms described above. There was no disclosure of legal strategy or other matters of substance

in the email. There was no special or particularized warning on the face of the email that the matters within were confidential and should not be discussed or the information distributed. However, Mr. Lebo asserts in his charges that by posting his article without the permission of the Councils governing body [Musumeci] caused dissension among the brotherhood members. He also alleges that the legal strategies involved in protecting our union from the arbitrators decision in this matter had to be kept confidential so that we could proceed on the best possible ground. This was made clear at more than one delegate meeting in which Brother Musumeci was in attendance. The parties to the Consent Decree in this matter recognize that one of its purposes is to ensure that the District Council and its constituent local unions shall be maintained and run democratically . The District Council Bylaws state that they are intended to conform to any and all relevant provisions of the Consent Decree, the Stipulation and Order and any other order entered in this matter. Any provision inconsistent with those orders shall be regarded as null and void. Bylaws at Section 2. Among the objects of the District Council is to promote and protect the interest of its membership through broadly democratic institutions free of corrupt influence. Bylaws at Section 3. According to Section 101(a)(2) of the LMRDA [29 U.S.C. 411(a)(2)], every member of a labor organization has the right to express any views, arguments, or opinions; and to express at meetings of the labor organization his views upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member

toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations. I commented on the progress of democracy at the District Council in my Fifth Interim Report, which began with Franklin Roosevelts famous observation that the only sure bulwark of continuing liberty is a government strong enough to protect the interests of the people, and a people strong enough and well enough informed to maintain its sovereign control over the government. The need for a well-informed citizenry is no different in this context. In order for the District Council to reach its ultimate objective of self-sufficiency, democracy must take hold and be sustainable. The necessity and role of well-informed, robust debate in matters pertinent to the members of the District Council is itself beyond debate. Democracy at the District Council must be more than a concept and hortatory platitude. The District Council has repeatedly shown it is incapable of supporting a key component in this process: adequately informing its members of news that affects their Union and their livelihoods. Mr. Musumeci, to the contrary, has made informing the membership his singular and zealous avocation, which has benefited thousands of members over the years. Democracy and the free exchange of ideas that informs it must not be stifled by the District Council or its surrogates expansively interpreting UBC constitutional terms and bringing charges based thereon in order to quash dissent. The charges that Mr. Lebo has brought against Mr. Musumeci for causing dissension among members and revealing union business are problematic in precisely this way. The District Council has not defined these terms such that, especially when it strays from common sense interpretation, members are on notice of what they can and cannot do, leaving the District Council with discretion that can be wielded selectively and with undemocratic results. Nor, alternatively, has the District Council provided rules

regarding the members responsibilities to it as an institution and conduct that interferes with its legal or contractual obligations. And Mr. Lebos charges in particular take advantage of this deficiency. Mr. Lebos assertion that Mr. Musumecis article caused dissension is a vague and conclusory allegation. The idea that the publication of an accurate news article by a member -for members -- which reveals nothing previously and timely identified by the District Council as confidential business could be conduct that might be punished, perhaps even by expulsion, should be abhorrent to all members. More specifically, Mr. Lebo fails to state how mere publication caused dissension among the members or what form the alleged dissension took. The causal nexus is missing. Mr. Lebos assertion that Mr. Musumecis article revealed business of the District Council is also impossibly vague. If there is some type of business conducted by the District Council that must not be disclosed to nonmembers it must be defined if members are to have notice of what they can and cannot do. Mr. Lebo has also not alleged that Mr. Musumecis article interfered with the District Councils performance of its legal or contractual obligations as contemplated by Section 411. Perhaps anticipating defenses of this type, Mr. Lebo asserted that the legal strategies involved in protecting our union from the arbitrators decision had to be kept confidential. However, Mr. Musumeci did not reveal any legal strategies (and his reference to questions regarding damages in his article does not constitute revelation of legal strategies) and Mr. Lebo does not identify the legal strategies said to have been revealed or how such revelation interfered with the ability of the District Council to perform its legal obligations.

I am mystified as to how the District Council Trial Committee would be in any position to decide these issues based solely on a presentation at trial by Mr. Lebo. Such a trial would run the grave risk of being decided on an improper basis ranging from politics, personal views on the character and reputation of the participants and subjective interpretations of concepts that must be clearly and objectively defined. Mr. Lebos assertion regarding the executive committees authority under Section 12.G of the Bylaws is in my view a plainly mistaken interpretation of the Section. That section contains nothing more than an assignment of responsibility within the government of the District Council. The idea that the executive committee is the sole authorized source of news and information about the District Council is untenable. I note that Mr. Musumeci has been writing and publishing detailed articles about the business of the District Council for years and has never before been subjected to charges for his service to the membership and the democratic process of the District Council. As contemplated by Section 411, if members are now to be subjected to a threat of discipline, the District Council needs to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations. This matter has been presented to me for consideration by Mr. Musumeci, who requests that I veto the charges brought by Mr. Lebo. My authority in this regard is stated in Paragraph 5.b of the Stipulation and Order, where the Review Officer is granted the authority to veto certain matters, including policies and practices of the District Council, for a variety of reasons, including any matter that is contrary to or violates any law or court order entered in this case [5.b.iii(c)] or is inconsistent with the objectives of the Stipulation and Order [5.b.iii (e)].

Both the Consent Decree and the Stipulation and Order [Paragraph 4.a] recognize the imperative of maintaining and running the District Council democratically. By entering into each, the District Council has ceded authority to conduct its affairs in a manner exclusively of its own design and preference. Though counsel for the District Council argues that intervention by the Review Officer would be premature, I note that this matter is at the same stage as was the underlying matter in the Price case, where carpenter Kevin Price had appeared before his executive committee and the committee had voted to send the matter to that unions trial committee. I further do not see why further proceedings should be held where free speech is at issue and a guilty verdict would likely be vetoed on the same grounds described herein. Even an acquittal would leave the door open to similar matters in the future, which could be used as a tool to stifle speech and dissent, two indispensable elements of democracy. Findings I find that upon the unique facts presented by the matter of Lebo v. Musumeci, the special circumstances presented by the objectives of both the Consent Decree and the Stipulation and Order of fostering democracy and maintaining and running the District Council democratically and that such objectives cannot be achieved without an informed membership capable of engaging in enlightened debate on issues relevant to their rights, monies and membership in the District Council, the Lebo charges are deficient because they are inconsistent with the objectives of the Consent Decree and the Stipulation and Order and (1) rely upon a too-expansive interpretation of terms in the UBC Constitution of which Mr. Musumeci had no notice and thus could not know their scope and intended effect, (2) lack an adequate foundation and provide insufficient facts necessary to give fair notice to Mr. Musumeci to enable him to prepare an adequate defense, (3) incorrectly allege an actionable violation of Paragraph 12.G of the District

Council Bylaws, and (4) are not prefaced on a violation of reasonable rules adopted and enforced by the District Council as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations required by 29 U.S.C. 411. The policies, process and practice of the Executive Committee in examining the Lebo charges and forwarding them to the Trial Committee led to an erroneous result inconsistent with the objectives of the Consent Decree and Stipulation and Order. Accordingly, upon my authority as Review Officer as stated in Paragraphs 5.b.i and 5.b.iii of said Stipulation and Order, the referral by the Executive Committee of the Lebo charges to the Trial Committee pursuant to Section 52 of the UBC Constitution is hereby vetoed and said charges must be regarded by the Executive Committee and the District Council Trial Committee as a nullity. I also hereby formally recommend to the District Council that reasonable rules regarding confidentiality of certain business of the District Council and also the responsibility of every member toward the organization as an institution and to his or her refraining from conduct that would interfere with its performance of its legal or contractual obligations required by 29 U.S.C. 411 be drafted and submitted to this office for review and to the delegate body for consideration and adoption. Dated: January 22, 2013 Dennis M. Walsh Review Officer