My name is Clyde Summers, and I am Professor of Law at the University of Pennsylvania Law school. I have been asked to come here today by Chairman Fawell. My limited purpose today is to provide some background on the Labor-Management Reporting Act of 1959, more commonly known as the Landrum-Griffin Act. I want to focus particularly on the fundamental premises and purposes of the statute, for understanding those premises and purposes is essential for any constructive consideration of how to promote union democracy.

THE ROOTS OF THE STATUTE

We must begin at the roots. When the National Labor Relations Act (Wagner Act) was passed in 1935, the declared national policy was to "encourage the practice and procedure of collective bargaining." One of the basic purposes of the statute, often lost from view today, was to give workers an effective voice in determining the terms and conditions of their employment. It echoed historic declarations that political democracy should be matched by industrial democracy. Senator Wagner in explaining the undergirding philosophy of the statute, stated:

The principles of my proposal were surprisingly simple. They were founded upon the accepted facts that we must have democracy in industry as well as government; that democracy in industry means fair participation by those who work in the decisions vitally affecting their lives and livelihood; and that workers in our great mass production industries can enjoy this participation only if allowed to organize and bargain collectively through representatives of their own choosing.

THE PREMISES OF THE STATUTE

Collective bargaining, however, can serve this purpose of industrial democracy only if unions are democratic; workers gain no voice in the decisions of his working life if they have no voice in the decisions of the union which represents them.

This is the basic premise of the Landrum-Griffin Act: the ultimate goals of collective bargaining can be achieved only if union members are guaranteed their democratic rights within the union. The strongest support for the statute came from those who believed most deeply in collective bargaining and its function in enriching democracy.

The focus of Landrum-Griffin, therefore, was to protect the democratic rights of union members and the democratic process in union decision making. The Report of he Senate Committee reporting out the bill stated:

The internal problems currently facing our labor unions are bound up with a substantial public interest. Under the National Labor Relations Act and the Railway Labor Act, a labor organization has vast responsibility for the economic welfare of individual members whom it represents. The union members have a vital interest, therefore, in the policies and conduct of union affairs. To the extent that union procedures are democratic they permit individuals to share in the formulation of union policy

Senator McClellan, whose investigations stirred the demand for legislation, in introducing his Bill of Rights for union members as an amendment to the Committee proposal stated:

I do not believe that racketeering, corruption, abuse of power or other improper practices on the part of some labor organizations can be, or ever will be, prevented until and unless the Congress of he United States has the wisdom and courage to enact laws prescribing minimum standards of democratic process and conduct for the administration of union affairs...the Congress should prescribe and define by law what the rights of union members are, place in them by democratic process the power to secure those rights, and protect them in their efforts to do so from reprisals of any kind...If this bill is enacted into law, it would bring to the conduct of union affairs and to union members the reality of some of the freedoms from oppression we enjoy as citizens by virtue of the Constitution...

Although much of the McClellan hearings focused on union corruption, the statute focused on guaranteeing union members democratic rights. McClellan explained:

If we want fewer laws--and want to need fewer laws--providing regulation in this field we should start with basic things. We should give union members their inherent constitutional rights, and we should make those rights apply to union membership as well as other affairs of life. We should protect union members in those rights. By doing so we will be giving them the tools they can use themselves.

A guiding principle of the statute was to limit legal intervention in union affairs, to let unions govern themselves. This was to be done by guaranteeing the democratic process within the union. Democratic decision making would give legitimacy to union decisions and policies, reducing the need for legal regulation. Full protection of the democratic process, however ,was a prerequisite for legitimacy. As the Supreme Court observed:

Congress, although committed to minimal intervention, was obviously equally committed to making that intervention, once warranted, effective in carrying out the basic aims of the Title IV. Thus, 'the freedom allowed to run their own election was reserved for those elections which conform to democratic principles.

PROVISIONS OF THE STATUTE

The statute protects and enhances the democratic process with provisions guaranteeing five basic rights:

1. The Right to Know. Members can have an effective voice in the decisions of their union only if they know what their officers are doing. Title I, for example, requires unions to make available to members copies of collective agreements covering them. Title II requires unions to file reports with the Secretary of Labor, but more relevant here, it requires the union to make this information available to all of its members. Most important, Section 201(c) enables a union member, upon showing just cause, the right to examine any union books and records necessary to verify those reports. This is particularly valuable in enabling union members to know more exactly how their money is used and to use this information to criticize or challenge incumbent officers.

2. The Right of Free Speech and Assembly. Section 101(a)2 of Title I, Bill of Rights gives union members broad protection to the right to speak and distribute literature both inside and outside the union, hold meetings or form caucuses to oppose union policies or officers. It protects, for example, members who accuse the officers of misuse of funds or abuse of power, oppose union policies, urge members not to pay dues believed to be improperly assessed, support a rival union, or oppose the continuation of a strike. The scope of protection against union restraints is very much like the protection given against governmental restraints by the First Amendment, although a proviso may narrow that protection in certain instances.

3. The Right to Participate in Decision Making. Section 101(1) of the Bill of Rights is titled Equal Rights and reaches the right to nominate candidates, vote in elections or referendums, and to attend and participate in union meetings. It has been interpreted broadly, however, to reach beyond "equal" rights so that the right to vote in referendums is the "right to a meaningful vote". Thus, the courts have invalidated referendums where the incumbent officers have worded the ballot so as to favor their desired outcome, misrepresented the issue being voted upon, or obstructed those opposed from informing union members of the opposing views. This section also reaches refusing to allow those opposed to voice their opposition in union meetings, failing to maintain order so they can be heard or refusing to put questions to a vote. It protects in substantial measure the right to participate effectively.

4. The Right to Fair Elections. The ultimate right in a democratic process is the right to elect those who initiate and administer union policies and manage union funds. Title IV contains comprehensive regulation of the union election process, including the right to nominate candidates, the right to have campaign literature distributed to union members, access to membership lists, prohibiting the use of union funds for campaign purposes, prohibiting employer contributions, and regulating the balloting and counting of the ballots.

5. The Fiduciary Obligation of Union Officers. Section 501 imposes on union offices a broad fiduciary obligation. This reaches not only their handling of union funds and a prohibition of conflicts of interest, but has been held by the courts to impose the duty to act in accordance with the mandates of the members, particularly in the use of union funds.

These four fundamental rights are all absolutely essential for promoting and protecting the democratic process in unions. The statutory provisions give explicit recognition of these rights and, as elaborated by the courts, give substantial protection. They do not give full protection; there are, in my view, troublesome gaps, but the thrust of the provisions is sound, and they have made an enormous contribution toward guaranteeing the democratic process within unions.

This is not the time for me to make specific recommendations for strengthening the statute. I would, however, identify four points for attention:

1. Direct election of officers by the members is required only in local unions. Officers of national unions or intermediate bodies can be elected by conventions or delegate bodies. There is little questionthat direct elections make union officers more responsive to the members and strengthen the democratic process.

2. Intermediate bodies such as joint boards or joint councils are treated as equivalent to national unions or left unregulated. They, in fact, often perform the functions normally performed by local unions. National unions, by restructuring to move functions from the local union to intermediate bodies, can significantly decrease the union members' effective voice in those functions.

3. Title III of the statute was designed to limit the ability of national officers to deprive local unions of their autonomy, particularly where trusteeships were imposed to repress opposition to the national officers. The statute does not reach the substitute device of abolishing local unions or merging them with other local unions without the members' consent to repress opposition.

4. The primary breeding grounds for corruption are union funds. The only policing is by union members suing for access to union books when they have substantial evidence of misuse of funds, and lawsuits are expensive. The government should bear more responsibility for auditing of all union related funds, and closer supervision of pension and other trust funds.

Guaranteeing union members an effective voice in the decisions of their union and the election of union officers presents a special problem which is often overlooked. Unions are political organization, and the democratic process works through their political process. Their political structure and process, however, are unlike our government political process.

The union political process is a one party process, not a two party process. The incumbent officers have predominate if not complete control over communication within the union, access to the membership and dispensing of patronage. Rarely is there a continuing opposition group with a political base or financial resources. The incumbents, with their built-in political organization and control of communications have an enormous advantage over any opposition group which may form. The tendency, particularly at the national level, is that union leadership tends to become a self-perpetuating bureaucracy. It is not surprising that incumbent national officers are seldom defeated in elections.

If union members are to have an effective voice and officers are to be made responsive to the members' preferences, the fact of this gross imbalance in the political process must be recognized. Union members need greater protection of freedom of speech and assembly within the union than citizens in the body politic. Election rules need to be designed to reduce the imbalance. Local autonomy needs to be protected so that opposition groups may build a political base. The advantage of incumbents can never be fully offset, but the opposition should be given a measure of hope to encourage them to make their views heard.

I want to close where I began. The demand that unions should be democratic derives from their role as collective bargaining representatives. It rests ultimately on the function of collective bargaining to give employees a voice in the decisions which affect their working lives.

The commitment to union democracy must rest ultimately on our commitment to collective bargaining as an instrument of industrial democracy. In my view, those who are not fully committed to promoting and encouraging the practices and procedures of collective bargaining have no standing to discuss, much less demand, union democracy.