Save Our Union Update:  July 3, 2008

As a result of the May 28 hearing in Akron, we now have two court orders from Judge Adams, and a MOTION TO DISMISS filed by the Intervening Defendants.  The hearing was ordered by the Judge to hear testimony on Paul Thompson's and the Seven Dwarfs Motion to Intervene as defendants in the Plaintiffs' action to stand up for members' rights in the SMART merger.

MAY 28 HEARING IN AKRON

Paul Thompson, John Babler, Tony Iannone, J.R. Cumby and John Fitzgerald, and President Mike Futhey were called as witnesses by Sheet Metal Workers' lawyer Joyce Goldstein.  After each witness's testimony, the Plaintiff's and the UTU's attorneys had an opportunity to cross examine.  In addition, Judge Adams had questions for some of the witnesses.

Each of the testifying Intervenors admitted that the Sheet Metal Workers were paying their attorney fees. 

Thompson testified: "I appointed committees, similar to what had been appointed when we were discussing mergers with the Brotherhood of Locomotive Engineers. I appointed various committees of individuals of officers to serve on these committees."  "Each time we would hold a meeting, I would report this back to the board of directors of the accomplishments or the problems we were facing." - If this were true, why then was the merger announcement to the Board of Directors at the June 10, 2007 meeting in Kansas City such a shock and surprise to the members of the Board?

Thompson further stated:  "I mailed a letter to every member dated June the 10^th." "After I received the approval of the board of directors, we immediately shot a letter out to the entire membership giving the advantages of the merger, giving them all the information we possibly could, the reasons for the merger. And that went over to every membership." - No such letter was ever mailed to the members.

Thompson said: "they had been meeting with the SMWIA for over two-and-a-half years." - This means there had been at least five regular Board of Director's meetings in that time period.  He never reported, during this period, the facts of the merger negotiations to the Board or to the Merger Structure Committee which he had formed.  He deliberately kept them in the dark.

When asked to describe his interest in the case, John Babler said, "My interest in the case really revolves around that I believe the merger is good for the membership."  - If this is true, then why does he not want to allow the members their right to decide for themselves whether or not it is good for them or to approve a SMART constitution?

Babler also admitted that he approved a joint representation agreement that was signed by Joyce Goldstein and the SMWIA attorneys.  It specified they would all work together to implement the merger.  Babler testified that he did not really know if any of the recommendations that he received from Joyce Goldstein were coming from the SMWIA.  - Does he want us to believe that someone who holds his position would not even asked that of "his" attorney?

In his testimony, Tony Iannone twice said, "So we wanted to protect the UTU from further litigation.  That was first down on our list."  - If this is true, why is he now using an SMWIA-paid attorney to continue the (expensive for everyone except the Intervenors) litigation against the UTU?

When asked what his objection would be to allowing UTU members a vote on the SMART constitution, Iannone answered, "The SMART constitution was approved."

In his direct examination, J.R. Cumby was asked, "In your opinion, did the membership of the UTU already ratify the SMART constitution?"  He replied, "Absolutely."

In his testimony Cumby was asked why he decided to attempt to intervene in the case. He said, " They [the membership] don't always speak in, maybe, the manner in which I think they should, but they have spoken in this - on this situation resoundingly, 71 percent."  When questioned by the Judge about the "resounding" 71 per cent, Cumby had a lot of difficulty with membership and vote numbers, and finally admitted that the number he used was just, "Something I've read, your honor."

VP John Fitzgerald testified regarding the merger vote, "...and I believe anybody that didn't vote waived their rights." - Does he have no consideration for the large number of members who did not vote simply because the lack of information or because it was such a "hurry-up" process?  Why does he have so little regard for the rights of the members who pay his salary and who he has sworn an oath to represent?

When asked why he was opposed to a membership vote on a SMART constitution, Fitzgerald stated, "...I don't believe a new referendum would be fair. The well has been poisoned by the plaintiffs and even by some officers in the UTU."  Now that we know the truth about the merger, he considers "his" well poisoned by that truth.

 

At the close of the Hearing, Judge Adams made some very important statements:

• "And as I've indicated in the past, this litigation is going to go on and on and on irrespective of what decision I make in the absence of some agreement [emphasis added]."
• "...it would strike me that given the tremendous import to the union, the parties should give some consideration to some method, manner and means of allowing the membership to consider that constitution, the documents that would govern their future relationship with both the Sheet Metal Workers and indeed govern their future as it relates to members of a union. It would make, I think, in the eyes of most neutral observers, a great amount of sense, particularly given the fact that the vote in this particular situation was not overwhelming."
• "So in essence, less than ten percent of this union, or ten percent, thereabouts, arguably, without the benefit of a written constitution, knowing what is going to govern the future relationship, or the future for these members, will set in place the likely -- the long-term, the path that that union will follow."
• "But counsel, I strongly suggest that there be some serious discussion along those lines, or whatever other lines that you might creatively think in terms of bringing a resolution to this."
• "In these kind of economic times, union members dues, both Sheet Metal Workers dues -- I assume the Sheet Metal Workers Union, through their leadership and through their membership, have approved the payment of the attorney fees on behalf of these intervenors. Likewise, I assume that the UTU members, at least at the local level, have approved the payment of these fees. Their dues can be better had. A better use can be made of those dues than investing in this long-term, and this will be long-term litigation [emphasis added]."

MOTION TO INTERVENE

On June 18, Judge Adams issued his order that allows Babler, Baffoni, Boling, Brunkenhoefer, Cumby, Fitzgerald and Iannone, but not Thompson, to intervene as defendants.  Given that the case law is lenient and favors intervention, the Judge ruled the seven met the necessary criteria.  This allows them to continue to 1) act as surrogates for Mike Sullivan and the SMWIA and 2) block the Plaintiff's and the UTU's attempt to fairly settle the case in the best interests of the UTU and its membership.

PRELIMINARY INJUNCTION

On June 26, Judge Adams entered an Order on the Plaintiff's Motion for a Preliminary Injunction (PI).  The PI replaces the Temporary Restraining Order and enjoins the merger from being consummated until the case is settled.

In his Order, the Judge states:

• "...the Court finds that the failure to provide such relevant information (SMART constitution) constituted a failure to disclose the relevant terms of the proposal between the parties. Plaintiffs, therefore have demonstrated a substantial likelihood of success on their claim that they were deprived of a meaningful vote."
• "No amount of legal maneuvering will be able to ‘undo' the merger once it has been completed."
• "While Plaintiffs contend that they have been deprived of a meaningful vote, Defendants argue that no deprivation has occurred. The Court finds that substantial evidence exists to support Plaintiffs' assertions."
• "...the plain language of the Merger agreement required approval of the SMART constitution."
• "Thompson, therefore, effectively conceded that it was impossible to inform the UTU membership of the impact of the merger on the UTU Constitution until after the convention."
• "Accordingly, the court finds that UTU members were harmed through THE FAILURE OF THEIR OWN ELECTED OFFICIALS (emphasis added) to provide them adequate information prior to the vote on the Merger agreement."
• "The Court finds that no substantial harm to others exists if an injunction issues."
• "Until such a vote that complies with the LMRDA has taken place, SMWIA has no legally enforceable rights under the Merger agreement."
• "...the Court finds that the public interest weighs in favor of issuing a preliminary injunction."
• "Through such an injunction, the right to a meaningful vote will not be cast aside in favor of expediency."

Judge Adams cited some very important legal rulings:

• "The clear policy of the [LMRDA] is to bid farewell to the regime of benevolent well-meaning union autocrats and to give favor to a system of union democracy with its concomitants of free choice and self-determination."
• "An informed public is the essence of working democracy."
• "Democracy depends on a well-informed electorate, not a citizenry...limited in its ability to discuss and debate ... issues."

 

MOTION TO DISMISS

The Intervening Defendants' Motion to Dismiss was filed on June 18 and the Plaintiffs have, under court rules, 30 days to respond.  The UTU may also respond and then the Intervenors will be allowed time to reply to the responses.  The Intervenors' far-fetched reasoning for the dismissal motion has already been submitted once.

NOTICE OF APPEAL

On July 2^nd, Joyce Goldstein filed a Notice of Appeal seeking to overturn the Preliminary Injunction on behalf of her clients.  While not unexpected, we had hoped the Sheet Metal Workers and its UTU surrogates, the Seven Dwarfs, would actually listen to Judge Adams and heed his recommendation that a SMART Constitution be assembled and put out for a fair and democratic vote among the UTU membership.  Meanwhile, the appeal could easily take up to a year or longer to be decided.

WHAT HAPPENS NOW?

While the case could eventually end in a courtroom trial, the appeal means a lot more legal work, time and cost to the Plaintiffs and the UTU in the meantime.

The most important question is whether or not the Intervenors will ever sit down with the UTU and the Plaintiffs, agree to a fair settlement, and put this costly and divisive matter behind us.  Will they heed the Judge's comments and Orders and put the best interests of the rank-and-file members of this union ahead of their own personal interests, and those of the SMWIA? 

Tony Iannone said, "...we wanted to protect the UTU from further litigation."  It is now obvious that his professed interest could not have been further from the truth.  Actions speak louder than words! 

There are two extremely important points at the heart of this issue.  We quote Judge Adams:

• "Accordingly, the court finds that UTU members were harmed through THE FAILURE OF THEIR OWN ELECTED OFFICIALS (emphasis added) to provide them adequate information prior to the vote on the Merger agreement."
• "...the plain language of the Merger agreement required approval of the SMART constitution."

QUESTIONS YOU SHOULD ASK THE INTERVENORS:

• 1. How long will they continue to support Paul Thompson's orchestrated sellout of this great union's autonomy?
• 2. Why do they continue to front for the SMWIA?
• 3. In spite of Judge Adams' exhortation that the parties go forward, finalize a SMART Constitution and submit it to the UTU membership for a vote, do the SMWIA and the Intervenors intend to drag out the litigation in order to bankrupt the Plaintiffs and/or the UTU?
• 4. As officers of the UTU, will they keep ignoring the fiduciary duty they owe the UTU membership under the LMRDA and the UTU constitution?
• 5. Will we ever be allowed to see a SMART Constitution and given an opportunity to vote on it?
• 6. At the two hearings in Akron (Dec. 27 & May 28), the Plaintiffs paid their expenses (transportation, lodging, meals and time away from work) out of their own paychecks and pockets. Who's paying the Intervenors' expenses?

QUESTIONS FOR YOUR LEADERS:

Additionally, you need to personally ask your Local officers, General Chairman and State Legislative Director where they stand.  Are they taking an active role in supporting your right to an informed vote? Are they staying silent?  Or are they supporting the Intervenors' and SMWIA's actions to deny you your right to an informed vote on a SMART Constitution?  If they are not actively supporting your rights, they should be publicly explaining themselves.  It is time for all of us to hear from each and every one of them!

The point for all of us to consider is that it was the long-observed culture of "go along to get along" that got us into this mess.  Together with all of you, we have shown that standing up for our members and speaking out when necessary is the right thing to do.  It is not an easy action to take, but it is what cries out to be done.

FINAL WORDS:

This action to defend the statutory rights of the entire UTU membership was initiated by just a few brave and concerned rank-and-file members.  But it has grown into a grass roots army of support from all stations of our great union.  Many members have stepped forward to donate their time and money to keep us going.  It would have been virtually impossible to have done this without their support.  The solidarity is amazing.

Your donations to the Save Our Union legal fund have been generous and much appreciated. Thanks to so many!

While we still have some funds in reserve, with no settlement now in sight, and with the Intervenors' appeal and apparent determination to drag out this lawsuit forever, it is obvious that our legal costs are going to continue to mount.  As a consequence, we deeply regret that it has become vitally necessary to ask you for more financial support.  Please consider sending another donation now.  We need your continuing support.

On the bright side, we have made enormous progress; the "writing is on the walls;" and we now expect to prevail in the long run and, hopefully, to recover our legal fees and then be in a position to reimburse our many, and much appreciated benefactors for their contributions.  So, think of it as a temporary investment in our future as union members.

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