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Demian D.

Schroeder
14 Meadow Street
Brooklyn, NY 11206
April 11, 2012
USDC
DOCUi'AEN \ ! fiLED
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BY BAND \. ,l.c,lttt
The Honorable Richard M. Berman
SO ORDERED:
United States District Judge
Daniel Patrick Moynihan
---_t"'________
. United States Courthouse
RICHARD M. BERMAN U.S.D.J.
500 Pearl Street
New York, NY 10007-1312
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Re: United States ofAmerica v. New York City District Council of Carpenters
("NYCDCC") et al.; Case 1:90-cv-05722-RMB-THK
Dear Judge Berman:
We write in reply to: NYCDCC Counsel James M. Murphy's March 29, 2013
letter (Doc. 1290) and Review Officer Dennis M. Walsh Counsel Bridget M. Rohde's
April 4, 2013 letter (Doc. 1293) answering Your Honor's March 21, 2013 Memo Order
(Doc. 1281) and March 13,2013 Order (Doc. 1255).
In his March 29, 2013 submission to the Court, Counsel Murphy states:
"1 understand your request to be whether an approved memorandum of
understanding or agreement (here, "MOU") that modifies an expired collective
bargaining agreement is materially the same as the fully executed successor collective
bargaining agreement ("CBA
It
), which merges the terms and conditions of the expired
CBA with those ofthe MOV. The answer is yes."
That is not what the court asked for; the Court's request was very clear: "Mr.
Walsh + Mr. Murphy are requested to supply authorities for the proposition that this
Court can approve a collective bargaining agreement where only a MOU has been
approved by a delegate body. It It is clear Mr. Murphy has failed to do so. Since it is clear
Mr. Murphy erred in his interoperation ofthe Court's request, his case references and his
entire response are moot.
The new Wall-Ceiling & Carpentry CBA is so substantially different from the
expired CBA that to declare the August 22, 2012 MOU modifies the expired CBA is not
acceptable, i.e. the change to a new compliance program, grievance procedures, 9A
contract, 100% employer hiring ratio ("Fun Mobility") and several others exemplify
the core differences. Further, the position that a four page MOU constitutes an entire
CBA has not been supported by case reference. The Aug. 22,2012 MOU does not in any
way modify the expired CBA but instead is merely a letter ofintent that the NYCDCC
Case 1:90-cv-05722-RMB-THK Document 1308 Filed 04/12/13 Page 1 of 7
and WC&C Association negotiate a new and completely different CBA from. A cursory
comparison ofthe expired CBA and the CBA presented to the Court on March 12, 2013
will confmn this fact. We would also like to remind You Honor that we have contested
the Aug. 22,2012 approval of the MOU as binding. There is overwhelming evidence the
Council Delegate Body ("COB") is a dysfunctional mess and that the Aug. 22 approval,
or any other approval by this COB must be suspect until the severe deficiencies are
addressed and corrected. (TRANSCRIPT of Proceedings rei CONFERENCE
held on 4/3/2013 before Judee Richard M. Berman.)
The supporting case reference Counsel Murphy included has nothing to do with
this issue ofthe Court's power to approve a four page MOU as if it were a complete
CBA. It is quite clear Counsel Murphy could not find any relevant case reference and
decided to present the Court with the equivalent of a second year Business Law contract
primer with supporting case reference. In desperation to present something (and in our
opinion willfully mislead the Court) Counsel Murphy has actually presented case
reference that disputes his own arguments. We contend the same to be true for the
submission of Counsel Bridget Rohdes to the Court dated April 2, 2013. In each case
both Counsel Murphy and Counsel Rohdes have failed to provide the relevant case
reference requested.
As Your Honor is aware, a Memorandum of Understanding is defined as a "letter
olintent" (Black's Law, 8
th
Ed. at 1006.) Black's Law defines letter of intent as:
A written statement detailing the preliminary understanding of parties who
plan to enter into a contract or some other agreement; a noncommittal
writing preliminary to a contract *A letter of intent is not meant to be
binding and does not hinder the parties from bargaining with a third party ...
(Blacks Law, 8
th
Ed. at 924.)
We must argue that the 4 page MOU presented on August 22, 2012 is nothing
more than a noncommittal writing preliminary to a contract, and was never presented to
the Delegate Body as the complete WC&C collective bargaining agreement. Historically,
NYCDCC contracts are in writing and signed; never (to our knowledge) has a MOU been
presented or accepted as a completed CBA. New York State Law is clear on this point:
New York State Law
The law on this point is well settled. Under New York law, ifparties do not intend
to be bound by an agreement until it is in writing and signed, then there is no contract
until that event occurs. This rule holds even ifthe parties have orally agreed upon all the
terms of the proposed contract. Scheck v. Francis. 26 N.Y.2d 466, 311 N.Y.S.2d 841,
843, 260 N.E.2d 493, 494 (1970).
Thanks to Counsel Rohdes, we have case reference: Pr"dentaIIns"rance Co. of
America v.HUton Hotels Corp et al1996 Dist. which is an attempt to tell the Court this
MOU has now magically evolved into a Type 1 preliminary agreement. This is also due
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to Counsel Rohdes failure to find any relevant case reference of a ( 4 page) MOU being a
complete CBA. Yet the courts have clearly ruled that a Type I preliminary is
binding only if "the substantial terms of a contract have been agreed on, and there IS
nothing left for future settlement" :Pisken v. Herter, 73 N. Y. App. Div. 453, 77 N. Y.
Supp. 300, arrd without opinion, 175 N. Y. (1903) 480,67. That is not the case here;
the substantial terms ofthe WC&C CBA had not been presented in the MOU, and only
after the Aug. 22, 2012 vote were the substantial terms negotiated.
As we can see in: Consarc Corp. v. Marintt Midland Bank, N.A.., 996 E2d 568,
575 (2d Cir.1993).
In considering whether parties intended to be bound only be a written agreement,
courts look at a list of four factors, wherein "[n]o single factor is decisive, but
each provides significant guidance." Id. at 75. Specifically, [p]ursuant to New
York law, the Court must balance four factors to determine whether a party
communicated an intent to be bound only by a signed agreement: (a) whether the
parties expressly reserved the right to be bound only be a signed writing; (b)
whether either party has partially performed under the agreement; (c) whether the
parties agreed on all the terms ofthe alleged contract, and (d) whether the type of
contract involved is usually put in writing. The first factor is the most important,
and has in some cases found to be dispositive.
And again in: FaragoAdver., Inc. v. Hollinger Intern., Inc., 157 ESupp.2d 252,
258-159 (S.D.N.Y. 2001) (citations and internal quotation marks omitted).[626
F.Supp.2d 364.
Expressed another way, [i]f the court can see from the writings or correspondence
that the minds of the parties have met, that a proposal has been submitted by one
party which has been accepted by the other, and that the terms of the contract
have been in all respects definitely a eed upon, one of the parties cannot evade
or escape from his obligation by re ing to sign the formal contract, which the
parties understood was subsequentl to be drawn and executed.
As well as: BoG. Group, Inc. v. Ho & Hardart Co., 751 Eld 69, 74 (ld
Cir.1984) (citations omitted).
On the other hand, where there is no understanding that an agreement should not
be binding until reduced to writing and formally executed, and where all the
substantial terms of a contract have been agreed on, and there is nothing left for
future settlement, then an informal agreement can be binding even though the
parties contemplate memorializing their contract in a formal document. The point
ofthese rules is to give parties the power to contract as they please, so that they
may, ifthey like, bind themselves orally or by informal letters, or that they may
maintain 'complete immunity from all obligation' until a written agreement is
executed. What matters are the parties' expressed intentions, the words and deeds
which constitute objective signs in a given set of circumstances.
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It is again clear that the Court intended to allow preliminary agreements to be
binding ONLY if "all the substantial terms of a contract have been agreed on," and "there
is nothing left for future settlement." That is not the case in regards to the WC&C or any
other contract that comes before the NYCDCC delegate body for approval. All contracts
of the NYCDCC have been non binding until they are signed by all parties. All
NYCDCC CBAs are put in writing, and the parties had NOT agreed to all terms ofthis
contract. Under NY Law alone the MOU was and is not a binding contract.
As Your Honor is aware, the contracts are complex legal documents effecting
members rights. The executed contract (CBA) was not properly or timely submitted to
the Council Delegate Body (COB), Executive Committee, or rank-and-file Membership,
for proper dissemination, review, debate, or contract ratification, per the past practice
under new (2011) District Council bylaws as established by the COB and follow-through
March 27, 2012 vote by the rank-and-file on five (5) CBAs, supervised and counted by
the American Arbitration Association (AAA). Neither Counsel Murphy or Counsel
Rohdes have supplied any case reference that proves this honorable Court can approve a
completed CBA when only a 4 page MOU was presented for Delegate Body approval.
We respectfully contend that a completed CBA has not been submitted to the delegates
for approval for therefore Your Honor must withhold approval until it has been presented
for vote.
We further ask Your Honor to consider the substantial problems and failures of the
delegate body as have been presented before this Court in both members submissions,
and Review Officer Walsh. At the hearing of member Daniel Franco on April 3, 2013
Your honor was advised as to serious violations at the District Council and during
delegate meetings: falsified minutes; lack of decorum and delegate abuse; discord and
dissension facilitated by ignorance of Executive Board members and/or selective
knowledge and application ofthe rules and procedure that MUST be followed to allow
delegates a fair and honest vote; blatant attempts to withhold information from members
and delegates, which the RO has declared a "stranglehold on transparency"; a failed
Section 52 trial system; and, the "Notice(s) of Possible Action" by the RO for the former
President, and current Executive Secretary-Treasurer. We ask Your Honor to consider
what approvals ofthis delegate body can be binding, considering the undemocratic and
unfair operation of the NYCDCC; the delegate meetings with many actions taken in
violation ofthe bylaws, UBC Constitution, and possibly State and Federal statutes.
We find it very unsettling that Counsel Murphy would attempt dictate to Your
Honor as to what the Court's powers and rights are. It was rather audacious for Counsel
Murphy to let Your Honor know "he would be remiss in not pointing out the following.
The authority ofthe U.S. District Courts to determine questions of contract formation
under LMRA Section 301 (a) were severely curtailed by the Supreme Court's ruling [ ... ]"
Perhaps Mr. Murphy has forgotten or has chosen to ignore that your Court has full
jurisdiction and oversight powers over the entire NYCDCC during the term of this
Consent Decree.
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"Because consent decrees 'have attributes both of contracts and judicial
decrees,' they are treated differently for different purposes." UnjtedStqtes l{ lIT
Continental BaJd713 Co.. 420 U.S. 223,236, n. 10,95 S.Ct. 926,934, n. 10,43 L.Ed.2d
148 (1975). See also Firefighters v. Cleveland, 478 U.S., at 519, 106 S.Ct, at 3074.
"For example, because the content of a consent decree is generally a product
of negotiations between the parties, decrees are construed for enforcement purposes
as contracts." See: lITContinental Co.. supra, 420 U.S., at 238, 95 S.Ct, at 935;
Stotts v. Memphis Fire Dept., 679 F.2d 541, 557 (CA6 1982), rev'd on other grounds, 467
U.S. 561, 104 S.Ct 2576, 81 L.Ed.2d 483 (1984).
While the Supreme Court may have curtailed U.S. District court rights in Textron
Lycomin&: Reciprocatin&: Eu&:ine Div". Avco Corp. v. UAW, 523 U.S. 653, 118 S.Ct. 1626
(1998) that reference has no bearing here since Your Honor is operating under the
auspices of a consent decree. The membership would be well served if Your Honor would
remind Counsel Murphy of such conditions.
We respectfully request that Your Honor refuse to sign the WC&C CBA until a
complete and final draft has been presented to the Membership or at the very least the
Delegate Body for vote. If it is to be a delegate vote we respectfully ask that Your Honor
sign an Order for the NYCDCC to present this final draft for the delegates to review at
the very minimum of four weeks prior any vote so they may properly execute their duties
as delegates representing the Local Union membership. We ask that all future contracts be
given the same accommodation as required by the NYCDCC bylaws. We ask that the
Court issue an Order directing that no part of the WC&C CBA be implemented until
Your Honor has signed a final draft that was voted on and approved by the Membership
or Council Delegate Body.
We pray Your Honor will also review and docket the attached letters which
reiterate our contentions on the legality of Full Mobility and the legality of an MOU.
They further explore how full mobility violates the Consent Decree, argues the
compliance program will not be sufficient for combating the corruption that 100%
employer control will bring and argues for our rights as Members to a hiring halL
Respectfully submitted,

Demian D. Schroeder
MemberLU 45
Certified Steward
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cc: BY E-MAIL
Benjamin H. Torrance
Assistant United States Attorney
Civil Division
Office of the United States Attorney
for the Southern District of New York
86 Chambers Street
New York, NY 10007
Dennis M. Walsh, Esq.
Review Officer
The Law Office of Dennis M. Walsh
415 Madison Avenue, 11th Floor
New York, NY 10017
Bridget M. Rhode, Esq.
Counsel to the Review Officer
Mintz, Levitz, Cohn, Ferris, Glovsky & Popeo, P.e.
666 Third Avenue
New York, NY 10017
New York City & Vicinity District Council of Carpenters
Executive Secretary-Treasurer Michael Bilello
395 Hudson Street
New York, NY 10014
James M. Murphy, Esq.
Counsel for the New York City & Vicinity District Council of Carpenters
Spivak Lipton, LLP
1700 Broadway
New York, NY 10019
John DeLollis
Executive Director
Association of Wall-Ceiling & Carpentry Industries of New York, Inc.
125 Jericho Turnpike, Suite 301
Jericho, NY 11753-1022
Mark A. Rosen, Esq.
Counsel for the Association of Wall-
v
Ceiling & Carpentry Industries of New York, Inc.
McElroy, Deutsch, Mulvaney, & Carpenter, LLP
1300 Mount Kemble Avenue
Morristown, NJ 07962-2075
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ADDITIONAL SERVICE via E-Mail:
Robert F. Makowski,
Sterling Dadone,
Norman Saul,
Raynier Gamboa,
Veronica Session
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