Wednesday, November 16, 2011

“I was robbed,” claims plaintiff in lawsuit against BUILD and FCR; defendants deny promising jobs and union cards, setting up contest over credibility; claims over unpaid wages in "sham" training program may be easier to prove

To City Council Member Letitia James, the leading political opponent of Atlantic Yards, the federal lawsuit filed yesterday by seven would-be Atlantic Yards workers, who claim they were promised construction jobs and union cards after finishing a highly competitive training program, confirms that the project “was the greatest bait and switch in the history of Brooklyn.”

For the workers-- some of whom quit jobs or declined job offers in expectation of post-training work and union membership--it was simply a chance for justice, after going through the 15-week program sponsored by Community Benefits Agreement (CBA) signatory BUILD (Brooklyn United for Innovative Local Development), where they learned little and were put to work, without pay, on a mostly unsupervised contracting job.

“We were repeatedly reassured on numerous occasions that all we had to do is to complete the program and we would obtain union books and employment,” said Kathleen Noreiga, 58, an electrician (in video below). She made a point of saying she had rallied for the project with BUILD, which, while offering job training and assistance, has regularly brought Atlantic Yards supporters to public hearings and events. (BUILD CEO James Caldwell has regularly praised Atlantic Yards developer Bruce Ratner as "like an angel sent from God.")

Seven of the 36 workers who went through the program, which concluded last December, joined the suit, announced at a press conference yesterday afternoon. (Videos by Jonathan Barkey)



“I was robbed,” asserted Maurice Griffin (in video below), who quit his non-union carpentry job to do the 15-week, Forest City Ratner-funded program that began last August.

“They guaranteed me a union card, They said it’s not a question of whether we have it, but whether you complete the program. And I completed it. I came every time, early. I did my work. I’m here to let everybody know I’m not going to stand for this.” Griffin later joined a union on his own.




"Not only was I lied to, and my classmates, but Brooklyn was lied to," added plaintiff Clarence Stewart (in first video), saying the students were told they would work on the project but instead were offered jobs at McDonalds. "He basically stole Brooklyn, and every time I pass by the arena, it makes me sick and appalled."

The plaintiffs are suing for both back wages, based on unpaid construction work, as well as likely more significant sums regarding alleged deceptive practices regarding expected union memberships and jobs at the project. The suit seeks both compensatory and punitive damages

The Pre-Apprenticeship Training Program (PATP) was required under the CBA, signed in June 2005, but not delivered until more than five years later:
Commencing upon execution of this Agreement, Developers and BUILD shall initiate and coordinate a job training program to train Community residents for construction jobs within the Arena and Project...
(Emphasis added)

"It is sadly something we can all agree on: we were all stiffed," said state Senator Velmanette Montgomery, in a statement read by staffer Jim Vogel. "I applaud them for standing up and saying what was done to them was wrong."

The defendants, and the defenses

Named in the suit are Forest City Ratner; parent Forest City Enterprises; FCR affiliates Atlantic Yards Development Company and Brooklyn Arena; FCR CEO Bruce Ratner; and FCR Senior VP Jane Marshall. It also names BUILD, BUILD CEO James Caldwell, and contractor Orbin’s Big Green Machine and its president, Gausia Jones.

Both Forest City and BUILD denied they had made such promises, setting up a battle in court over credibility, with the crucial evidence likely individual testimony, rather than documentation.

Both blamed the economic downturn for lowering the number of jobs--though the lawsuit concerns alleged promises made in 2010. BUILD reps also pointed to offered a somewhat questionable defense of the unpaid labor.

And both Forest City and BUILD--the latter an organization created to negotiate the CBA, with no previous track record in job training--tried to deflect the issue by citing other evidence regarding project jobs and job assistance.

The plaintiffs 

The plaintiffs are represented by South Brooklyn Legal Services and the Emery Celli Brinckerhoff & Abady, the two law firms that represented individual plaintiffs in the Atlantic Yards eminent domain suit and thus had professional contacts with Council Member James, whom the workers apparently first sought out.

The lawsuit is filed on behalf of the seven plaintiffs as well as “others similarly situated,” which means others could presumably join the suit.

BUILD’s defense

BUILD, which had a sign (left) on the front door of its offices directing supporters to the press conference, brought a few dozen people to observe the event held outside James’s Hanson Place office in Fort Greene.

Somewhat combative and aggrieved, they took press questions before and afterward. Caldwell, who pointed out that BUILD had helped some 400 people get jobs over the last six years, contended the plaintiffs were being used by James and her ally Montgomery, saying they'd be "dropped like hot potatoes."

“These people signed an acknowledgement that they were in an unpaid internships,” pointed out Marie Louis, BUILD’s Chief Operating Officer, in an interview after the press conference. Build Waiver

However, plaintiffs’ attorney Molly Thomas-Jensen had earlier pointed out, “You can’t waive your rights to be paid, if you’re required to be paid.”

Indeed, federal law requires that unpaid trainees “not displace regular employees, but work under their close observation” and that the employer providing the training “derives no immediate advantage from the activities of the trainees.”

In this case, according to the lawsuit, the trainees were the sole workers on a remodeling job at a Staten Island house, receiving little supervision, and instructor Jones, whose contracting company Orbin’s Big Green Machine had the job, benefited by not having to hire anyone.

The larger issue of promised jobs and union memberships likely will come down to dueling testimony. The plaintiffs, in the lawsuit and in statements yesterday, asserted that they had received numerous promises. BUILD’s Caldwell (below) and Louis denied that.



“We told them we do not give out union books. We told them straight up," Caldwell declared, with a touch of grievance. "We don’t control union books, we don’t own no construction companies, we’re no contractor."

The plaintiffs called the program "a sham," given that, as stated in the lawsuit, "the materials were general and not sufficiently detailed to provide participants with new skills or knowledge." (They included printouts from Wikipedia.)

Caldwell, who had not seen the lawsuit at the time, responded, "A sham is when you take people’s money... they got certification,  30-hour OSHA [certification], they even got a parting gift."

Forest City response

Developer Forest City Ratner similarly told the Brooklyn Paper it “did not promise union cards, nor was it ever in a position to [do so]."

Then again, FCR does have some sway. As executive Jane Marshall said at the Atlantic Yards District Service Cabinet meeting November 11, “[FCR’s] Bob Sanna went to each of those sanctioned program and found 200 slots for the apprenticeships. And so BUILD's initial apprenticeship program, we did get people to get in line and get those spots.”

Forest City also tried to deflect the issue. It told NY 1, "We have already generated 50 percent of the projected economic activity for phase one. Were it not for the delays brought on by opponents of the project, including some of those behind this law suit, even more people would be employed right now.”

There was no explanation of what “50 percent of the projected economic activity” measures.

A Forest City spokesman told the Times--which covered the lawsuit, bizarrely, in the midst of an article about a Nets promotional event at Borough Hall--that 19 of the 36 "trainees found jobs in property management, retail or construction related positions." Unmentioned was whether any were high-paying union jobs; Caldwell has said only a few have such jobs.

FCR told Patch that that 410 of 799 workers are from New York City, with 174 from Brooklyn and at least 67 from the four nearest Community boards.  FCR’s numbers are questionable, given that the developer--as noted in the suit--failed to hire the Independent Compliance Monitor (ICM) required by the CBA.

The ICM, among other things, is supposed to report on the success of the PATP, but there’s no ICM, so “there is currently no oversight or means of enforcement of the CBA,” the lawsuit notes.


Though the CBA describes a “training program to train Community residents for construction jobs within the Arena and Project. Forest City Ratner's Atlantic Yards web site now deflects the issue, claiming (right) that the program "has already been developed to help new workers develop the kinds of skills that they can use beyond this project." (Emphasis added)

Also see coverage in Noticing New York, My Little O, and the Brooklyn Eagle (a "job training program reportedly negotiated" as part of the Atlantic Yards project). Note that the New York Daily News, which had the exclusive yesterday, didn't follow up, and the New York Post, which is known to ignore exclusives when its tabloid rival gets them first, ignored the story.

The Post did find space to cover the Nets promotional event at Borough Hall, finding news in Borough President Marty Markowitz's joking dismissal of the team's slogan, "Jersey strong, Brooklyn ready." So did the Daily News, focusing on a planned Kentucky-Maryland college hoops game.

The plaintiffs

The plaintiffs, according to the suit, were not construction newbies. Andrew Apple “had already worked as a carpenter for approximately six to eight months”; Pascal Armstrong “already had extensive experience in the construction industry, including being the foreman of a 100-worker crew”; Griffin had graduated from a vocational program in carpentry, and had worked as a carpenter for at least three years”; Noreiga “had received 600 hours of training for certification as an electrician, and had worked for more than a year as a certified electrician”; Kimron Prime previously “attended a trade school where he learned basic electrical and plumbing work, and had work experience in bricklaying and carpentry”; Jonathan Silva “worked as an apprentice to an electrician for three years”; and Stewart “had already successfully completed a 15-month construction industry pre-apprenticeship program.”

Notably,  Stewart quit his job as a maintenance worker to participate in the PATP, while Griffin quit his carpentry work for the PATP, “based on the promises of union membership.” Prime “turned down a job offer for a position in building maintenance” because he was told he was “guaranteed a high-paying union job.”

In March 2011, when I interviewed BUILD’s Louis and Caldwell, I asked whether the participants in the program, who had been tested and interviewed to be selected from hundreds of applicants, had been out of work.

“Most of them were,” Louis said.

“All of them were unemployed,” Caldwell followed up. 

The larger context

The lawsuit aims to tie the promises regarding this program into the larger promises for Atlantic Yards, including 2004 promises of “10,000 permanent jobs and 15,000 construction jobs” and a 3/11/10 press release, tied to the arena groundbreaking, which promised 8,000 permanent jobs and 17,000 union construction jobs. 

Will Forest City Ratner, which spent $134,000 (according to BUILD) to fund the PATP, fund another phase? Unclear, but the CBA states that if the Developer does not fulfill its job-training obligations, it was supposed to pay $500,000 to be used by BUILD to fund such training--but only at the instigation of the never-appointed ICM.

(This $500,000, the only specific liquidated damages figure in the CBA, has occasionally been reported, erroneously, as a payment to ACORN to evade the affordable housing obligations.)

The program launches

According to the lawsuit, BUILD began recruitment for the PATP in July 2010, with a letter stating, “After many years of delay, we are preparing to launch a pilot of the Pre-Apprentice Training Program for people interested in training for employment in the construction building trades.” The 8/4/11 information session, held at St. Theresa of Avila Roman Catholic Church in Crown Heights, drew hundreds of prospective participants. Hundreds then took an aptitude test for eligibility.

Those who passed, including most plaintiffs, then went to an orientation session. At the session, according to the lawsuit, Caldwell said the PATP was “the opportunity of a lifetime,” and promised they would get hired at the Atlantic Yards site and membership in one of the three primary unions at the site: the laborers’ union, the electricians’ union, and the carpenters’ union.

Given the expected wages paid to unionized construction workers, Caldwell said they should “prepare to be millionaires,” the lawsuit says. Two BUILD staffers, Chantel Lewis and Marie Louis, “echoed Caldwell’s promises that participants would be given union card.”

The PATP lasted from 7 am to 2:30 pm, with classes held at the BUILD offices at 485 Hudson Avenue and also at Forest City Ratner’s 1 MetroTech Center. They included a “life skills” class, using Stephen Covey’s The Seven Habits of Highly Effective People, as well as basic lectures about construction techniques. The lawsuit states:
The participants were given handouts, but the materials were general and not sufficiently detailed to provide participants with new skills or knowledge. The handouts included printouts from websites, such as Wikipedia, and photocopies of textbooks.
Caldwell, according to the suit, also promised that “participants that they would receive hands-on training at a worksite provided by the Developers.” He also stated that “Bruce knows this is my baby,” a reference to Bruce Ratner.

Caldwell, according to the lawsuit, “often pointed to a poster [right], prominently displayed in the BUILD offices, that showed the signature page of the CBA,” when “telling PATP participants that they could rely on his promises of union membership.”

The lawsuit quotes Bruce Ratner after the CBA was signed, saying the agreement was legally binding: “It has in some cases economic penalties, it has mediation, as well as the ability of community groups to litigate and get an orderable injunction, and we hope to see the goals fulfilled, and if we don’t, litigation can be used.”

Mayor Mike Bloomberg, not named in the lawsuit, interjected “I would add something else — even more importantly, you have Bruce Ratner’s word”--a telling scene in the documentary Battle for Brooklyn

What level of promise?

However, there's likely wiggle room in the language of the CBA, as well as those political promises. The CBA, the lawsuit notes, specifies that “[i]t is the intention of the Developers that the Trades Council will accept workers from the Pre-Apprentice Training initiative into the Trade Council’s apprentice program.”

The question is what was said to the plaintiffs. According to the suit, instructors told participants they would earn $100,000 a year, or an hourly rate of $45, and get at least ten years of work.

Griffin, at least, said things were very clear.



He stated in the interview above: "I wanted to make sure I was promised a job at the end of the end of the program. And they promised me, over and over, upon completion of the program, you will have your card. They even made the statement that the cards are already here. At orientation, we spoke to someone from Forest City Ratner. I personally spoke to Mr. Caldwell and a few other BUILD members. They told me over and over again that I would be guaranteed a union card."

Plaintiffs say they were given personal promises. Noreiga, according to the lawsuit, says Caldwell promised that she’d get a job. Griffin asked Caldwell if he had to apply for union membership, but Caldwell responded, according to the lawsuit, that “There are thirty construction books reserved for graduates of this class.”

FCR's Marshall, according to the suit, “represented to the prospective participants that the Project would provide construction work for ten years” and that participants would get union jobs. Plaintiff Griffin was specifically told by Marshall that he’d get a union card, according to the suit.

A BUILD staffer, Chantel Lewis, advised plaintiff Silva not to attend an orientation for the laborers’ union, because he’d be getting a union job anyway.

Instructor Jones “repeatedly told PATP participants that he had seen the union cards and that they were ready to be given away upon completion of the PATP,” according to the lawsuit, which quotes Caldwell as saying 30 of 100 union books were reserved for program participants in the PATP.



Contract law, said plaintiffs' attorney Nicole Salk, "does not have to be in writing. If a promise is made, it has to be kept. These were promises made over and over and over again. They were made in CBA, they were made to these plaintiffs personally, they were made at orientation. You can read the complaint. There were promises made, they have to be kept."

In the video above, also note questions from the notorious Stephen Witt, formerly of the Courier-Life chain and now of Our Time Press, asking whether the plaintiffs would accept a job at another building--James said she wasn't negotiating at the press conference--and, echoing BUILD's defense, challenging James on how many jobs she'd brought to the community.

Hands-on training

In the first month, according to the lawsuit, participants asked Caldwell about the promised hands-on training, and he responded: “Bruce [Ratner] has to provide us with a site.” Caldwell promised the participants “that the union cards had been obtained by the Developers.”

However, no site had been secured by October 2010, according to the suit:
After the Developers failed to provide a site, PATP participants were told they would get their hands-on training at an Orbin’s Big Green Machine worksite. Caldwell told Mr. Stewart that Defendant Ratner had personally approved the use of Orbin’s Big Green Machine worksite. 
However, they were working “at a residential house on Staten Island that was being remodeled by Jones’ company”--and were the only workers at the site. Unpaid, the workers did demolition, “removed debris, laid cinderblock walls to support the upper floor, poured cement floors, framed the rooms, installed plumbing, rewired the house, installed sheetrock, and laid tile for the bathroom.” They didn’t learn much, since they did work that they already knew how to do.

Defendant Jones could not instruct the students “effectively, in large part because the workspace was so small that only a few participants could see whatever task or action Jones was attempting to demonstrate,” the suit states.

 The worksite presented several safety hazards, according to the suit, as the house was shifting, “supported only by temporary braces” and the foundation walls were cracked. There was no work permit and “Jones often instructed the PATP participants to use shortcuts or to otherwise< engage in bad workmanship.”

"Upon completion, not only were we informed that there were no union books but also there were no jobs at the Atlantic Yards arena site," Noreiga said yesterday. "Adding insult to injury," she said, they were told they could go to other apprenticeship programs.

Jones was intermittently at the worksite and, when he was present, he was the only supervisor for over 30 workers. Jones checked in with the workers one to two times per week. According to the suit, he often said: “The boss doesn’t need to be there for you to get to work.”

According to the city license for Orbin’s Big Green Machine, the firm is headquartered at a private home on Dean Street in Prospect Heights, between Vanderbilt and Underhill avenues, near Caldwell's residence.

An 11/16/10 article in CityBeats, a news site staffed by students at the Columbia University Graduate School of Journalism, described how BUILD had 8000 people in its database, and had some 300 to 400 people in line to sign up for the pre-apprenticeship program, which had begun in August:
“But it’s going to create a lot of jobs,” Jones said. “I’m looking forward to 10 years from now when they say BUILD was at the forefront of it. We got on the project and we put some people to work, which is the most important thing. After that they can go and help their families and help themselves and be productive citizens.”
The tune changes

According to the lawsuit, during the last few weeks of the program, participants began to realize that they were unlikely to get what was promised. BUILD staffers began advising them about other pre-apprenticeship programs and maintenance position at FCR buildings.

The lawsuit states that, MaryAnne Gilmartin, the developer’s Atlantic Yards point person, spoke at graduation, telling them they could enter other pre-apprenticeship programs, but did not mention union membership.

Since graduation, only two of the plaintiffs have gained union membership, which they did on their own.

Dissent emerges

The lawsuit paints a picture of disillusionment on the part of plaintiffs, and BUILD’s effort to placate them and/or stave off legal action.

In January 2011, Noreiga asked Caldwell about the lack of jobs or union membership. According to the lawsuit, he directed her to another a pre-apprenticeship program, this one for women.

Silva was told by BUILD staffer Lewis that “if he met with Ms. Noreiga and legal counsel to discuss bringing a lawsuit, BUILD would ‘blacklist’ him from any union and any job in New York City.”

Apple, according to the lawsuit, was contacted by BUILD in April 2011 regarding a job offer, but when he “met with Caldwell, no job was offered. Instead Caldwell questioned Mr. Apple about possible litigation related to the PATP.”


Armstrong was offered a job doing maintenance work for $12 per hour, which he declined, given his experience. He also declined a position in another pre-apprenticeship training program.



BUILD contacted Stewart about a maintenance job, which he was not offered, and then a job at

McDonald’s, according to the suit. Griffin was told by Caldwell about temporary jobs doing political canvassing, or a potential job at Planet Fitness, for an hourly rate of $8.50. 



(Caldwell, without mentioning any names, said that one plaintiff had been turned down for a job after the background check.)



Caldwell's defense


Interviewed after the press conference, Caldwell said, "Once again, we can’t promise nobody nothin'. One of the guys up there speaking, we had him a good union-paying job, working in maintenance... What happened was, when they did the background check, he couldn't do it. he knows it. My mother helped raise him, so I know he’s lying."


 


"They said they’re going to make us millionaires," he said incredulously, responding to the claims plaintiffs attributed to him and other BUILD reps. "Get the hell out of here. We gonna make them millionaires?"


I pointed out that, if you’re making six figures a year, you can get to a million dollars.


"Everybody knows what the state of the economy is. The point of the matter is, we didn’t persuade them," Caldwell said. "Some of them begged us [to get into the program]. And we worked with them.. we didn’t charge nobody a red cent."


 The issue, though, is whether they expected that they would exit with a union card and a job.


"Hell no," Caldwell replied. "We had over 4000 applicants... We told them we do not give out union books. We told them straight up... We don’t control union books, we don’t own no construction companies, we’re no contractor. We told them."


The bottom line and the battle to come



Noreiga stated, "My message to the defendants is, and I will speak for the other 35 participants and the community"--though she really could only speak for the plaintiffs--"is that what they did was totally wrong and misleading.. I hope that pursuing this lawsuit will prevent this developer and others from practicing these blatant and bold type of schemes."

That will be determined in court or, now that the ante has been upped, in negotiation sessions to come between the parties.

It will be interesting to see whether Forest City Ratner, which provides most of BUILD's funding, will assist the organization in its legal defense. Also, given that the allegations in the lawsuit fall most heavily on BUILD, it will be interesting to see whether the developer tries to distance itself--and its deeper pockets.

Likely the plaintiffs don't expect to recover damages primarily from BUILD but rather the deeper pocketed developer.
Apple Et Al v AYDC Et Al Atlantic Yards Community Benefits Agreement (CBA)

No comments:

Post a Comment