Save Our Union - Update on the UTU – SMWIA - SMART Merger
11/08/08
Normal 0 MicrosoftInternetExplorer4
Brothers & Sisters,
We recently received copies of the UTU International compilation of legal costs from a Save Our Union supporter. We knew legal costs to the UTU were mounting, but we were absolutely appalled to see the concrete figures. [You can see them for yourself at http://www.freewebs.com/savetheutu/legalcosts.htm ]
The seven Intervening Defendants, John Babler, Victor Baffoni, Roy Boling, James Brunkenhoefer, James Cumby, John Fitzgerald and Tony Iannone have told many members that they oppose the efforts to uphold our lawful right to a meaningful and informed vote on the SMART merger because the UTU is in financial trouble and we must merge with the SMWIA to be financially rescued.
In his testimony on May 28, Tony Iannone stated,
“So we wanted to protect the UTU from further litigation. That was first down on our list.”
And James Brunkenhoefer stated in his declaration to the court,
“A critical issue for the UTU is its financial stability … Accordingly, when we voted to approve the Merger Agreement in June 2007, it was my view that on the table was not just the issue of the merger but the very survival of the institution.”
Instead we have all seen the evidence of just the opposite. Here is what General Secretary & Treasurer, Kim Thompson had to say:
"Action taken by delegates to the 2007 convention mandated the GS&T prepare an annual budget for the operation of the UTU.
"The budget President Futhey, Assistant President Martin and I prepared for 2008 was developed with a goal of improving the reserves of the International funds by 50 percent by year end," Kim Thompson said. "Within just the first eight months of 2008, we have accomplished that goal -- and our funds continue to grow.”
It is not surprising that now that Paul Thompson and some of his big spenders are out of office, the new administration has been able to effect such a turn-around in the UTU financial situation. What is surprising is that even though the Intervenors are faced with the truth, they continue to attempt to convince people of just the opposite. We suppose they are convinced that if they bray often and loud enough, someone might actually begin to believe it.
We now have concrete evidence of just how much financial damage these seven are doing to OUR union and is beyond belief that they could continue to proclaim their alleged concern and fiduciary responsibility as board members toward the UTU and its members.
Make absolutely no mistake about exactly what is happening. They are the only ones who are causing these costs to continue to snowball. These seven “UTU officers” have used the dues monies of SMWIA members to continue to oppose the rights of UTU members. As you can clearly see, to date, their self-centered actions have cost the UTU almost $400,000.00 in legal fees alone.
When you look at the dates of the costs keep in mind that the UTU had worked out an agreement with the Plaintiffs in early January 2008. That agreement was for the UTU to work with the SMWIA to create a SMART constitution and submit it to the UTU membership for a democratic, informed ratification vote. These seven officers intervened and prevented that from happening. They are solely to blame for every legal cost to UTU members since that first week of January.
Now they have caused a lengthy, absolutely unnecessary, appeals process that will continue to increase the costs to each and every UTU and SMWIA member.
What are the costs to the dues monies of SMWIA rank-and-file members? How much money has Mike Sullivan spent on the seven Intervening “UTU” officers? Additionally, once the Plaintiffs prevail in upholding our rights, the UTU may well be ordered by the court to reimburse the Plaintiffs legal costs. Add it all up and you can understand just how much financial damage these seven officers are doing.
Why doesn’t Mike Sullivan put an end to this and tell his seven (would you call them UTU or SMWIA?) officers to allow us a vote on a SMART constitution? How much more of their “concern” can all of us tolerate and afford?
10/30/08
U.S. District Judge Adams has recently issued three separate orders which are described below. In addition we also have an update from Concerned Delegates to Save Our Union.
INTERVENORS’ MOTION TO DISMISS
The seven intervening “UTU officers” had submitted a Motion to Dismiss our entire lawsuit, and with it the injunction preventing the acquisition of the UTU by the Sheet Metal Workers. They argued that Judge Adams had no jurisdiction to hear our case which, they contended, didn’t seek to rule on the lawfulness of a merger referendum, but rather to overturn the election of SMART officers by the 2007 UTU International Convention. And since only the U.S. Department of Labor is authorized to sue to overturn elections, not members, the Intervenors contended that the court had no choice but to find that it lacked jurisdiction over our “member-initiated” lawsuit.
In his Order denying their Motion to Dismiss, the Judge noted that “Intervenors’ arguments now stand in stark contrast to the factual record developed in this matter.” (emphasis added)
In fact the Intervenors’ own campaign literature from the convention completely disproved their allegations. Each of them had circulated campaign literature clearly stating they were running for office in the UTU. Additionally, in their court filings they slipped up and admitted that they were elected officers of the UTU. As Judge Adams said, “Effectively, Intervenors seek to have their cake and eat it too. They sought intervention contending that as the elected UTU Board they had a duty to fulfill the wishes of the electorate. Once successfully involved in the case, they now seek to argue that they were never really elected to the UTU Board. While these inconsistencies played no role in the Court’s decision, they are troubling.” (emphasis added)
ORDER STAYING PROCEEDINGS
In this Order, Judge Adams concluded, “…that the interests of justice are best served by the imposition of a stay [of further proceedings at the District Court level] pending a decision from the Sixth Circuit Court of Appeals on this Court’s jurisdiction to decide Plaintiffs’ requests for injunctive relief.”
PLAINTIFFS’ MOTION FOR SUMMARY JUDGEMENT
In early January 2008, the Plaintiffs had filed a pro forma Motion for Summary Judgment which would have promptly and finally forbidden consummation of the SMART merger. The Motion was based on two facts. That motion was, however, promptly put on a back burner when the Seven Dwarfs sought to intervene in the action; instead, the Court focused all of its attention on whether to permit them to join the case and obstruct what would otherwise have been a quick settlement between the plaintiffs and the UTU to finalize a SMART Constitution and put it out for an up-or-down, democratic vote by the UTU membership. Eventually, the Judge ruled that he had no choice but to allow them to join, and to derail, the litigation.
In what was, essentially a house-cleaning action, Judge Adams denied the Plaintiffs’ motion without prejudice to their refiling it after the Sixth Circuit Court of Appeals in Cincinnati has ruled. At that time, we are confident that the District Court will be in a position to move forward, once again, and wrap up the case.
STATUS OF INTERVENORS’ APPEAL
The Intervenors have filed their appeal with the Sixth Circuit Court of Appeals in Cincinnati, OH. The specific issues they announced their intention to raise are:
- Whether the District Court erred in granting a preliminary injunction;
- Whether the District Court had subject-matter jurisdiction to enjoin a union merger, thereby invalidating the results of a union officer election;
- Whether the Labor Management Reporting and Disclosure Act mandates the substantive method for conducting a union merger;
- Whether the Merger Agreement between the United Transportation Union ("UTU") and the Sheet Metal Workers International Union was violated when the UTU failed to mail to all UTU members a copy of the constitution for the proposed merged union.
The Appellate Court has issued the following brief schedule:
- Intervenors-Appellants’ Brief Filed is due by November 17, 2008
- Plaintiffs-Appellees’ Brief Filed is due by December 16, 2008
- Appellants’ Reply Brief (Optional) dur 14 days thereafter.
As you can see, the appeal process promises to be lengthy. The Court will have the briefs in hand after the first of the year. At some point in time, they will most likely schedule “oral argument” by the lawyers. Thereafter, although there’s no telling how long thereafter, the Court will issue an opinion either affirming Judge Adams’ orders, modifying or overturning them. At that point, we expect the case to return to Judge Adams who will eventually wrap it up and enter a final (rather than preliminary) decision and judgment.
SAVE OUR UNION WEBSITE – www.saveourunion.org
Some changes have been made to the Save Our Union website.
· You can now easily access the Court Docket and pertinent documents from the each of the court cases spawned by this flawed sell-out of our union. You can read the cases and decide for yourself.
· A history of the merger attempt is available.
· The forms to use in order to donate to the Save Our Union legal fund are available and we appreciate your needed donation. As you know we accept donations only from UTU members or subordinate bodies. Hopefully, once the case is adjudicated, the Plaintiffs will be awarded compensation for their legal costs and will be able to refund donations. You will promptly receive acknowledgement of your donation.
· The forum is still available for discussions and your comments.
· We also post submitted opinion articles and letters on our Blog. You can send yours to webmaster@saveourunion.org.
· We often receive news from supporting members and will post it as it becomes available.
CONCLUSION
Make no mistake about it. John Babler, Victor Baffoni, Roy Boling, James Brunkenhoefer, James Cumby, John Fitzgerald and Tony Iannone are doing and saying everything they can to use their Sheet Metal-paid attorney to prolong this travesty.
They still want a “blank check” from UTU members to create SMART in any form that Mike Sullivan desires. They still want the sell-out that they conspired with Paul Thompson & Mike Sullivan to create. They still place the lawful rights of UTU members behind their own selfish interests. They are still being paid a UTU salary and expenses to travel around our union and continue to parrot Paul Thompson’s lies in an attempt to justify their horrid actions.
Here is what President Futhey, Assistant President Arty Martin and General Secretary and Treasurer Kim Thompson had to say about those lies:
· "These unscrupulous individuals are spreading a vicious, unfounded deception that if the UTU doesn’t merge with the Sheet Metal Workers International Association immediately, the UTU is facing financial failure,"
· “…SMWIA has a hand in the spreading of these false rumors about UTU finances."
· “Moreover, the UTU membership was given incorrect information as to why the previous administration sought the merger.”
· “…it became apparent that UTU finances were not as dire as had previously and wrongfully been presented to us and our members,"
· "This is the same outrageous, incorrect and irresponsible allegation that was made by the previous UTU International president when he attempted his merger cram-down last year. The allegation was wrong then. The allegation is even more wrong today."
They know their arguments will not hold up in court, so their only hope is to use Sheet Metal Worker dues to extend it until the Plaintiffs can no longer financially continue. Brothers and Sisters, we assure you that will not happen. The Plaintiffs are just in upholding our rights and united we will continue to support them as long as it takes. Justice will be done.
Make no mistake about it. John Babler, Victor Baffoni, Roy Boling, James Brunkenhoefer, James Cumby, John Fitzgerald and Tony Iannone (along with their master, Mike Sullivan) are the only ones who are standing in the way of a just and proper settlement. They are deliberately preventing our rights from being upheld. They are deliberately causing the legal costs to the Plaintiffs and the UTU to skyrocket.
They continue to do this at no expense to themselves. Not one penny comes out of their pockets. UTU dues pay their salary and expenses to travel around the UTU; and Sheet Metal Workers pay their lawyers’ fees as well as their litigation-related, personal expenses.
You know where they are getting their money and who they were elected to represent. The question is -- Who are they really representing and why?
Update on Babler, et al vs. Futhey, et al - Law Suit filed by Joyce Goldstein of the SMWIA on behalf of the seven UTU Officers
[This update comes from Concerned Delegates Committed to “Save Our Union”. The Court Docket and pertinent documents from the case are available on the Save Our Union website.]
The plaintiffs in this case are the seven UTU officers (J. Babler, V. Baffoni, J. Brunkenhoefer, J. Cumby, R. Boling, J. Fitzgerald and C. A. Iannone) who are facing charges before the UTU Executive Board. These seven officers are alleging that the Defendants (UTU President M. B. Futhey, the UTU Executive Board members and (3) UTU members) conspired to have charges brought against them before the Executive Board.
This suit was filed in April 2008 in an attempt by the seven officers to avoid standing trial before the UTU Executive Board. The seven officers are suing the Defendants as individuals as well as in their official capacities.
Two (J. P. Jones & D. G. Strunk, Jr.) of the16 individuals who filed charges against these officers for their violations of the UTU Constitution are being sued. They have also included in the suit UTU Local 982 member D. M. Murphy as an alleged co-conspirator.
When the suit was filed by Joyce Goldstein, (Sheet Metal Workers International Association paid attorney) she was, in our opinion, making an attempt to threaten each of the participants with financial retaliation for merely exercising their rights under Article 25 of the UTU Constitution.
Ms. Goldstein has tried to hold Case Management Conferences for the purpose of settling the charges, dropping the charges or having them withdrawn by the charging parties. A Conference was scheduled for October 2, 2008, but has now been postponed until November 10, 2008. All of the parties involved are required to participate either in person or by phone conference. There may be another date set up for a Case Settlement Conference up to two months from the November 10th date.
Each time one of these meetings is scheduled Ms. Goldstein shows her lack of understanding and knowledge as to just what authority each of the parties has with regard to handling of the charges under the UTU Constitution.
Parties in this suit will be going into the scheduled hearing before Judge Adams. We can only wait and see what the latest actions by the seven UTU officers will be, as they continue to be funded and directed by the SMWIA leadership. Thanks for your continued support.
** JUST IN **
We have just been made more aware of the problems rank-and-file members and retirees of the Sheet Metal Workers are having with their severely underfunded National Pension Fund. How much UTU money was Sullivan planning to use to fund the shortfall?
Here are the basic facts as they have been presented to us.
1) In 2006 the SMWIA National Pension Plan covered 136,000 workers
2) It had guaranteed 7.45 Billion in Benefits, but only had assets of 3.1 Billion (22,879 per person) A deficit of 4.35 Billion.
3) Benefits were increased after the creation of the Fund.
4) The Fund is under funded by 43%
5) The SMWIA Staff Pension Plan was 81% Funded (230,848 per person)
6) As Rank and File members had their COLA cut the Staffs COLA fund tripled. Union contributions paid entirely for the increase, with nothing from Staff Salary.
7) Mike Sullivan received 133,198 in benefit Plan contributions in 2006.
There are links on the Save Our Union website or you can go to:
http://www.geocities.com/smwpop/