Labor Law

BY COURT D. GIFFORD

Two prominent authorities on union democracy and the law were enlisted by the retiring chairman of the House Education and the Workforce Subcommittee on Employer-Employee Relations, Rep Harris W. Fawell (R-111.), to draft legislation introduced in the closing days of the 105th Congress calling for changes in the 1959 Labor-Management Reporting and Disclosure Act.

Fawell, who held four hearings this year on complaints from rank-and-file union members, turned to Clyde Summers, law professor emeritus at the University of Pennsylvania School of Law, and Herman Benson, founder of the Association of Union Democracy, a union watchdog group, to draft legislative language to correct what they regarded as the most obvious weaknesses in the law.

Both men, who were also called as witnesses in the hearings, agreed on the need to focus on two areas: the abuse of trusteeships by international union officers and the erosion of rank-and-file influence and control over union business.

Summers was among the experts asked in 1959 by then-Sen. John F. Kennedy to write the original law. His role in the more recent collaboration was to draft amendments in consultation with Benson, who has made a career of analyzing and exposing undemocratic practices within the labor movement. Their recommendations became the heart of the Democratic Rights for Union Members Act of 1998 (H.R. 4770), which was introduced by Fawell on Oct. 9, only days before the 105th Congress adjourned sine die (44 CLR 827, 10/14/98). For any action to be taken in the next Congress, the bill will have to be introduced by another member because Fawell did not seek re-election.

In an interview with BNA, Benson said he was not optimistic that the bill will become law in the near future unless there is a dramatic shift in the balance of power on Capitol Hill or "a real renaissance inside the labor movement." Few Democrats, he said, are likely to openly embrace the concept of extending the rights of union members unless they receive encouragement from their allies in organized labor. This is not likely to happen, he said, given what he said is a "gentlemen's agreement,, among top union officials that prevents the leaders of the more democratic unions from criticizing the internal practices of other unions.

Nevertheless, Benson said he and Summers regard the amendments as essential to the fulfillment of the original intent of the LMRDA which was to maximize the power of rank-and-file union members to influence the affairs of their union.

Unfortunately, he said, that power has been eroded over the past 40 years by the formation of "intermediate" bodies that usurp the authority of local union members to elect their representatives, vote on contracts, and make other important policy decisions. Intermediate bodies, he said, are defined in the LMRDA as those units above the local level but below the international level.

In a typical intermediate-level setup, Benson said, locals are consolidated into district councils, which choose their own leaders and take over the collective bargaining rights and responsibilities that formerly were the province of the locals. Ultimately, he said, the locals are "reduced to mere administrative shells. The members continue to elect local officers, but these officers are essentially powerless. Real power passes into the hands of district officers." While technically not illegal, Benson maintains that the practice erases the law's central objective of protecting the right of union members to choose their own leaders.

Suit in Connecticut Highlights Problems. Benson said the problem is most acute in the construction industry, where the authority to bargain with employers on large construction projects has been placed in the hands of district-level union officers. The consequences of this practice, he said, recently came to light in a lawsuit filed in federal district court in Connecticut against the Connecticut District Council of the Laborers' International Union by Local Union 665 in Bridgeport (Laborers' Local Union 665 v. Connecticut Laborers' District Council).

Local 665 members charged in the suit, which was settled on Nov. 2 (44 CLR 941, 11/11/98), that the council, which is run by the business managers of 10 construction locals in the state, had illegally raised the dues of approximately 3,200 members. It also alleged that patronage was a significant factor in the distribution of funds to the locals.

Benson said unions legitimately create intermediate bodies to increase their bargaining power with employers and to increase efficiency and service to members. But in so doing they undermine democratic principles, he said, if the authority to elect officers, vote on contracts, and make other decisions is taken away from the membership and moved up the chain of command. In the settlement of the Connecticut case, district council officials agreed to submit future proposed dues increases to a secret ballot vote of the members of each affiliated local and to distribute funds to locals on a basis proportionate to each local's share of dues.

The settlement, Benson wrote in an analysis for members of AUD, has implications that extend beyond LIUNA and beyond the state district council. "It is of special interest in the construction trades where internationals have been combining locals into district councils and then circumventing the provisions of the LMRDA. . .," he wrote.

Benson said the Fawell bill would restore the rights originally intended under the LMRDA. It would require the direct election of district officers by the membership, rather than by council members, if the body takes over from locals the responsibility for negotiating contracts, handling grievances, and performing other functions that previously were carried out by the locals.

Benson said he and Summers had the United Brotherhood of Carpenters in mind when they drafted the proposed provision. Under UBC President Douglas McCarron, the union has instituted an aggressive restructuring program to merge local unions and district councils into regional councils. Under the restructuring program, local union officials are appointed by regional council officials who are elected by council delegates. Within each council, delegates elected by rank-and-file members debate and decide policy.

In testimony before Fawell's subcommittee in June, McCarron acknowledged that his restructuring program has not been universally well received (44 CLR 461, 711/98). But he said it was necessary in order to update the union's administrative structure, which had been in place for more than 50 years. McCarron testified that the union had implemented a "representative democracy" that is "well-suited to represent our members in today's construction industry."

Benson said McCarron was "probably correct" that the union needed a better organizational setup. But he said the new structure undermines democratic principles by taking away the members' right to elect the individuals who represent them. The Fawell bill, he said, would act as a "countervailing force to the centralization" of the union by mandating the election of district level officers by a vote of the membership. ~

Bringing Trusteeships Under Control. According to Benson, trusteeships are almost as common today as they were in 1959 when hearings by the McClellan committee exposed widespread abuse of power by union leaders. The purpose of Title III, he said, was to prevent union officers from using trusteeships to stifle dissent, prevent the replacement of corrupt officials by reformers, loot local treasuries, or manipulate the votes of locals in referendums and at conventions. But as time has passed, those who want to use trusteeships for devious aims have learned how to "thwart and evade" the purposes of Title III, he said.

The Fawell bill would address that problem by repealing the law's current presumption that a trusteeship is legitimate for the first 18 months after it is imposed. The proposed amendment would not prevent union leaders from imposing a trusteeship over a local for legitimate reasons, Benson said. But he said it would give added protection against arbitrary trusteeships by allowing the courts and the Department of Labor to seriously consider complaints from union members who believe they are being victimized by their international union. Secondly, the measure would permit the local membership to reappoint former officers or re-elect new officers when the trusteeship is lifted voluntarily by the union. If a court orders the trusteeship lifted, then a new election would be conducted under the supervision of the Labor Department.

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