UBC Lawsuits Alleging RICO/LMRDA and DFR Violations by AFL-CIO Dismissed on Appeal

By Kurt Richwerger

Two lawsuits brought in 2012 by the United Brotherhood of Carpenters (UBC) alleging racketeering, extortion, LMRDA violations and violation of the duty of fair representation (DFR) by the AFL-CIO Building & Construction Trades Department (BCTD) & Metal Trades Department (MTD), were both dismissed late last year by a federal appeals court. Part of a decade long tug-of war between construction unions affiliated with the AFL-CIO and the non AFL-CIO affiliated UBC, this shapes up as a big defeat for the UBC and its legal team which presented a whopping 246 page complaint to the courts (see “It’s War! Carpenters vs AFL-CIO,” $100+ Club News #125, April 2012).

In the 2012 suit, the UBC charged that the AFL-CIO Metal Trades Department (MTD), by demanding various fees and by other devices, was keeping rank and file Carpenters from working on lucrative public sector construction projects called project labor agreements (PLAs), and in doing so was engaging in racketeering and extortion of the UBC. A few years ago, the UBC had angered AFL-CIO affiliated construction unions, especially the IBEW, by creating its own “electrician” locals in order to win contracts from contractors seeking cheaper labor. The AFL-CIO, in response, created a special website where affiliated construction unions could denounce the UBC, which they did.

The suit charged that the AFL-CIO was trying to “raid” the UBC and was extorting its “property,” namely the right to dues payments of its members, by pressuring UBC members to join other unions so they could remain eligible for PLA work. The racketeering claim was based on the MTD’s conducting a “Push Back Carpenters Campaign”. The suit alleged the use of “intense economic pressure,” and “acts of vandalism and threats of force to persuade the UBC to re-affiliate with the AFL-CIO Building and Construction Trades Department (BCTD) and pay dues to it.” (When the UBC left the AFL-CIO it lost its affiliation status. After the UBC exit of the AFL-CIO, the MTD created a “Solidarity Agreement” with the UBC, and this had allowed UBC members to continue to work on PLAs.)

The suit also claimed violations of the LMRDA’s Section 501 because the MTD was allegedly pressured by the BCTD to terminate the Solidarity Agreement. As evidence the suit presented a memo from MTD President Ault that argued against termination of the agreement. The UBC alleged that BCTD then pressured MTD to implement the Push Back Carpenters Campaign and terminate the agreement anyway, and when Ault and other officers complied, they were in violation of their fiduciary duties because they wrongfully misused MTD funds to conduct this campaign. The UBC also asserted that the AFL-CIO violated the due process rights of the UBC labor organizations and individual members by revoking the Solidarity Agreement without providing due process rights under LMRDA section 411a. Carpenters argued that their local union and therefore all local’s members were “members in good standing” of the Metal Trades Dept. at the time of the “termination.”

In 2012 a US District Court dismissed all claims, citing no proof of a RICO or LMRDA violation. As to the LMRDA section 501 claim it found that because the AFL-CIO’s highest body, the Executive Council wanted President Ault to conduct the Push Back Campaign there could be no “fraudulent activity” on the part of the lower level official Ault. It also found that though UBC did have standing to bring the LMRDA 411a claim, it still dismissed it, citing failure to make a proper claim for relief because the UBC did not name the MTD as a defendant. It only named the BCTD, yet the Carpenters made clear in their own lawsuit that UBC does not wish to be affiliated with the BCTD and pay dues to it in the first place, so the court could find no due process violation.

The Carpenters have now also lost on appeal too, as the Appeals Court ruled that the Carpenters were not “expelled” from the MTD as a form of discipline but that this was simply a dissolved affiliation between competing labor unions. The appeals court also agreed with the lower court finding no RICO or other violations.

The second UBC lawsuit was also recently dismissed on appeal. The same Ninth Circuit Appeals Court upheld a US District Court’s dismissal. The UBC suit alleged that the MTD violated its federal duty of fair representation (DFR). The suit alleged, as in the RICO/LMRDA suit, that the BCTD convinced the MTD to wage the Push Back Campaign, which included stripping carpenters of their positions as appointed stewards on PLAs, solely because they were members of the UBC. (After the “Solidarity Agreement” was dissolved, Carpenters who were PLA stewards were removed and replaced with other union members that were still in AFL-CIO affiliated unions.) The court found that DFR does not prevent unions from appointing or removing stewards based on union affiliation, rather, choosing a steward from an affiliated union may better aid the steward in representing his or her membership, the court reasoned: “A union’s selecting stewards from whom it might expect undivided loyalty – that is, from members of an affiliated union, rather than an unaffiliated union – is not unreasonable discrimination and does not, without more, breach the duty of fair representation.

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