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Will the DOL permit unions to evade secret ballot elections?

How to differentiate between a "local union" and an "intermediate" body? The U.S. Labor Department requests public comments on what might seem like an abstruse question "to determine whether additional rulemaking is necessary." But there is nothing airy or academic at stake.

Federal law on union democracy, the LMRDA requires local unions to elect officers by direct secret ballot vote of the membership. But so-called "intermediate" bodies are allowed to elect officers by vote of delegates. By eviscerating the autonomy of locals and merging them into regional councils, top union leaders are able to set up authoritarian "intermediate" bodies, evade the requirements for secret ballot elections of council officers, and intensify all the tendencies toward increased bureaucratization of the American labor movement.

The chief culprit, leading the way, is the Carpenters union. In the guise of defining locals, the Labor Department has to decide whether to defend union democracy provisions of federal law or to permit union officials to evade them. The Association for Union Democracy has responded with a major brief prepared by Alan Hyde and a supplement by Herman Benson. Rank-and-file Carpenters have submitted a mass petition.

The problem arose for the Labor Department when a group of Massachusetts Carpenters asked the department to order their New England Regional Council to elect its officers by direct vote of the membership. The DOL rejected their appeal, ruling that, as an "intermediate" body, the council could continue to elect officers by vote of delegates. In a 2-1 decision, a federal appeals court upheld the DOL decision. However, the court's two-man opinion was so narrowly drawn, and so skeptical of the Labor Department's rationale, that the DOL felt it necessary to present the problem for pubic discussion.

In his comment, Benson wrote:

"[A]ny decision in formulating a new regulation has to take into account the new developments within the labor movement, their impact on the basic aims of the LMRDA, and the widespread grassroots membership resistance to the new "intermediate" bodies. This new type of organization is one expression of an increasingly authoritarian trend within the labor movement...

"All locals of the Carpenters union are now combined into regional councils which take in many locals and cover geographical areas so large that members of one local almost never meet another. The locals themselves have no significant role in collective bargaining; they are more like social clubs because all collective bargaining is controlled by the region. Locals are not permitted to pay any of their local officers; they may not hire any staff except clerical help. Locals are deprived of the main source of construction income, the hourly work tax, which goes to the region. All business agents are appointed by the region; all grievances handled there. The top regional officer, the Executive Secretary Treasurer, is armed with total power. No person can hold any paid staff position, local or regional, and not even any paid regional clerical position, without the approval of the EST. It is true that the Executive Secretary Treasurer is elected by delegates from the locals. But, since every delegate, like every member, is dependent upon the EST for a paid union staff job, it is obvious who controls whom.

"The aim of any new regulation must be to counter this evasion of the law and restore the democratic rights of unions members. That is really what is at stake in any debate over the definition of 'local' unions."

In a petition to the Labor Department, over 100 members of seven different locals of a regional Carpenters council in the Philadelphia area voiced similar concerns:

"We once had local unions which were important to us in our collective bargaining. This is no longer the case...We are not lawyers and so we will not try to come up with any fancy legal formula to correct the situation. All we can say is that the Labor Department should come up with a definition of local that returns the right of Union Carpenters to a voice in running their own affairs, especially the right to elect those officers of the council who have taken over the power of the locals."

Summed up, but without doing justice to its full power, Hyde's brief for AUD draws the line between organizations which are engaged in collective bargaining and those which are not. Union bodies which bargain for their members are subject to the National Labor Relations Act and should be defined as "labor organizations." They should be required to live up to the standards imposed on local unions by the LMRDA. Only a union body which is not engaged in collective bargaining and consequently not under NLRB jurisdiction should be properly defined as an "intermediate" body.

Only "labor organizations" are subject to the jurisdiction of the LMRDA; and it defines as labor organizations only those which actually represent employees in collective bargaining with employers. However the law made an exception for intermediate bodies even though they may not be engaged in collective bargaining. Hyde explains the origin of this anomalous result. He writes:

"Their addition [of intermediate bodies] to the LMRDA reflects Congress's judgment that these non-bargaining intermediate bodies, particularly Teamster conferences, had been shown to be a frequent source of corruption and autocracy in the union movement and thus should not escape regulation under the LMRDA. The entire thrust of the relevant legislative history is the need to regulate such intermediate bodies.

There is not an iota of Congressional concern with the exemption of such bodies from regulation. Indeed, Congress, in the same LMRDA, limited the ability of higher levels of unions to deprive local unions of autonomy and democracy...'Intermediate bodies' are limited to union bodies that do not deal with employers. This creates a bright line, capable of consistent application that is consistent with every element of Congressional intent...'local' unions have direct membership contact and collective bargaining functions. 'Intermediate' bodies are bodies that have no collective bargaining functions and would evade regulation had the Senate not, by floor amendment, broadened the statutory definition of 'labor organization'...Congress had a much narrower working definition of 'intermediate body' than the Department has assumed."

Hyde quotes the speech by Senator Goldwater who pressed for the amendment which finally subjected intermediate bodies to LMRDA controls. Goldwater said,

"Conferences, such as the Western Conference of Teamsters, formerly headed by the notorious Frank Brewster, joint boards, and councils are not composed of employees and do not engage in collective bargaining...thus freeing them from the sanctions, prohibitions, and other requirements of the bill...Unless this amendment is adopted...some of the most corrupt and racket-infested unions can continue to prey upon honest and decent dues-paying union members completely free from the criminal sanctions and prohibitions contained in the committee bill."

Hyde argues that it would be ironic if a provision adopted by Congress to promote democracy and battle corruption in unions was misinterpreted to allow union officials to escape the requirements for a direct secret ballot vote of the membership.

In rejecting the appeal of the Massachusetts Carpenters, the Labor Department ignored reality; the engulfment of locals into the authoritarian council that arrogated collective bargaining powers to itself. The DOL argued that locals nevertheless still existed and still had some collective bargaining function (never quite explained.) Hyde rejects what he calls this "structural" approach. He writes:

"A structural approach, under which only the lowest level of a union must hold direct elections, would license unions to become even less democratic than they were in 1959, contrary to Congress's intent... It would turn the LMRDA from a statute designed to reform and democratize union government, into a source of privileges for union autocracy, in a way that would have astonished and infuriated its framers."

Hyde reminds the department that most locals consist of even smaller units: sub-locals, chapters etc. To adopt the DOL's structural standard, as applied in the Carpenters case "would turn the elections title into a vehicle for cutting back on union democracy, contrary to Congressional intent."

"The sole statutory difference between local and intermediate bodies," Hyde points out, "is the mode of electing officers. Throughout the [Massachusetts] litigation the Carpenters were never able to identify a single harm to any legitimate union interest that would befall the union were it to hold direct elections for the regional officers who make all decisions relating to contract enforcement and negotiation. The Department of Labor should declare a strong preference for direct elections and limit the definition of 'intermediate bodies' to the small group of concern to Congress, that is, union bodies, like Teamster conferences, that do not enroll members and do not deal with employers."

If the Labor Department is looking for a persuasive answer to solve its problem and to strengthen union democracy, and not simply a means of covering its tracks, Alan Hyde has provided the answer in his brief for AUD.

Articles on the Harrington case and the Carpenters reform movement:
Carpenters win right to elect regional council officers
Consolidation in the Construction Trades
Carpenters form National Reform Group
Reformers Jolt Carpenters Convention
Carpenters Reformers Win in New England
Court challenges DOL on Carpenters Regional Council
Harrington v Chao: Judge Stearns's "memorandum and order" (pdf)
AUD Bill of Rights for the Building Trades
AUD brief opposing stay of order
Sample letter requesting direct elections
Letter to Carpenters from Carl Biers
Court deals setback for democracy in Carpenters union
Links to Carpenters rank-and-file websites

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