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Victory for union democracy:
Carpenters win right to elect regional council officers.
(See the Judge's order, signed November 25, 2003)

by Carl Biers

In a major victory for union democracy, New England carpenters have won the right to directly elect the officers of their regional council. On October 8, federal judge Richard Stearns in Massachusetts directed the U.S. Department of Labor to order the New England Regional Council of Carpenters (NERC) to hold officer elections. The NERC represents 27,000 carpenters in 26 locals from Connecticut to Maine.

The regional council structure was imposed on New England carpenters by the international union in 1996 as part of a major restructuring plan which transferred authority for contract negotiations, grievance handling, and job referrals from the local unions to the regional council. The Association for Union Democracy covered the struggle of rank-and-file carpenters to regain their democratic rights and submitted amicus briefs supporting the plaintiff's call for direct elections in the case, Harrington v. Chao.

Under the regional council structure, which has been put in place throughout the U.S. and Canada, locals are reduced to administrative shells. Their members can elect local officers but the locals are not permitted to pay salaries to those officers, to field representatives, organizers or attorneys, only to clerical staff. Locals can collect regular monthly dues but not the lucrative hourly work-tax which is remitted directly to the council. Locals elect delegates to the council, and it is these delegates, not the membership, who elect the all-powerful council executive secretary treasurer. But that right offers the illusion, not the reality, of
power because the delegates themselves are largely at the mercy of the secretary treasurer who has actual power over every phase of union life. No person, including delegates and other top council officers, can hold a paid union staff position, local or district, without the secretary treasurer's approval. The council, in time, is bound to become a rubber stamp as many of the delegates are hired on as at-will, appointed organizers or business representatives. In New England, reform activists estimated that nearly half of the council's 120 delegates had been appointed to organizer positions. Such is the system which was under challenge in federal court.

The complainants in this case, led by Thomas Harrington, the former business manager of Boston Local 33, and represented by attorney Michael Feinberg, argued that because the council has taken over functions normally performed by locals, it should be subject to the requirements imposed on locals by the federal Labor Management Reporting and Disclosure Act, particularly that its officers be elected by direct secret ballot vote of the membership every three years. When they asked the U.S. Department of Labor in 1999 to order an election, the DOL, in a brief statement of reasons, rejected their appeal, stating simply that locals still exist within the council and that, as an intermediate body the council could elect officers by vote of delegates.

But the DOL had entirely bypassed the arguments and the facts relating to the council's function. Harrington sued, asking the court to reverse the DOL's decision. To win, the plaintiffs had to meet a high legal standard, showing that the DOL was not just wrong, but "arbitrary and capricious." They lost the first round in district court, and took the case to the in the First Circuit Court of Appeals. (Harrington, meanwhile, had been narrowly elected NERC executive secretary treasurer on a wave of rank-and-file outrage over the new system which was effectively channeled into his candidacy by a grassroots reform group Carpenters for a Democratic Union.)

At the appeals court, AUD entered the case with a key argument presented in amicus briefs by Alan Hyde, a Rutgers law professor and AUD executive board member. Hyde told the judges that the position taken by the DOL was in sharp contradiction to its position in two other court cases and in contradiction to its own earlier decisions. In one case, for example, in the Boilermakers union, the DOL itself argued that a so-called "division," despite its designation by the union, was actually a local because "it negotiates terms of employment with contractors, handles grievances, maintains referral lists, and collects dues," precisely the functions performed by the Carpenters regional councils.

The appeals court, agreeing with AUD's analysis, rejected the DOL statement as apparently contradictory and directed it to return to the district court with a new Statement of Reasons. The DOL then produced a statement in which it argued that under the regional council structure, locals maintained enough functions to be considered real locals and that this therefore made the regional council an intermediate body. But the new statement was still deemed inadequate by federal district Judge Richard Stearns who wrote, agreeing with the plaintiffs, "the issue is not whether the NERC's locals perform some of the tasks associated with a labor union, but rather whether the NERC (in the Secretary's own words) as an intermediate body 'has taken on so many of the traditional functions of a local union that it must in actuality itself be considered a local union.'" Stearns directed the DOL to order the NERC to hold elections.

In its arguments, AUD supported the union's right to create large regional councils, which may be necessary to deal appropriately with the increasingly centralized nature of the construction industry where large, regional, national, and even international companies are becoming dominant. "The Carpenters are privileged to create strong Regional Councils," wrote Hyde in his brief. "However, if Regional Councils negotiate and enforce collective bargaining agreements, control job referrals, retain most dues, and discipline members, then they perform the 'functions and purposes' of locals and must elect officers by direction elections."

The ruling provides ammunition for carpenters and other unionists throughout the country, who are fighting to democratize the same or similar regional council structures. If you are in such a situation, please contact AUD for assistance.

For more info contact Carl Biers at info@uniondemocracy.org, 718-564-1114

The order signed by Judge Stearns on November 25, 2003:

ORDER

After review of the parties' submissions and that of the Amicus, the Secretary of Labor is ORDERED to take appropriate action, within thirty (30) days of the date of this Order, consistent with the determination of this Court that the Secretary's failure to treat the New England Council of Carpenters as a statutory "local labor organization" is arbitrary and capricious.

SO ORDERED,

/S/ Richard G. Stearns
UNITED STATES DISTRICT COURT

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