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Questions and answers about legal rights and organizing
Disclaimer: the information presented on this website is general and intended for educational purposes. It is not a substitute for practical legal advice on any specific situation.
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It's been almost twenty
years that the International Longshoremen's Association (ILA) has been
under the threat of a federal supervision to rid it of organized crime,
ever since a Senate commission named the ILA as one of the four unions
most dominated by organized crime. The other three - Teamsters, Laborers,
and Hotel Union - have all already been through court supervision (the
Teamsters's is still in effect). We don't know when or if the Department
of Justice will move against the ILA, but recent racketeering indictments
of top ILA officials have prompted press reports that a federal RICO monitorship
is coming soon. What will it look like and will it be good for the ILA
The following Q & A is intended to answer that question and others that have been put to AUD recently by concerned ILA members.
How does it work?
The Department of Justice
(DOJ) builds a case that the union is a racketeer-dominated organization.
The strength of their case depends on evidence it accumulates through
investigations by the FBI, testimony at trials, convictions of officials,
etc. Based on the evidence, the DOJ files or threatens a suit under the
Racketeering Influenced and Corrupt Organizations Act (RICO). Under the
RICO law, a federal court can order the union to be placed under the direct
trusteeship of a court-appointed official. The filing of a RICO suit sometimes
brings the union to the table. Union officials may agree before a suit
is filed to a "consent agreement" or after the RICO suit is
filed, they may reach a "consent decree" which is enforced by
a federal court. The agreements and decrees may contain the terms of a
What can the ILA members
expect from a RICO trusteeship?
Union Democracy: Most of
the agreements explicitly invoke union democracy as a means for ridding
the union of organized crime influence. In the Teamsters, the terms required
the union to amend its constitution to change the system of electing International
officers from delegate vote to direct elections. In LIUNA, the union was
required to put the question to a vote in a referendum (85% of the membership
vote to adopt direct elections for top international officers.) The Hotel
union, however, was permitted to maintain its system of delegate votes
Investigative and prosecutorial
powers: Court-appointed monitors would have access to union books and
power to remove officers and members who break the law, violate members'
rights, or associate with organized crime figures.
Reporting: Most court appointed
monitors have issued detailed reports to the membership on specific allegations
and findings of wrongdoing, and on the discipline meted out to corrupt
Who will bargain and
enforce the contract?
In the three other RICO
suits against International Unions, the executive board has continued
to administer the day-to-day affairs of the union, and to bargain and
enforce contracts. Court-appointed monitors have vetoed the hiring of
staff with criminal records or ties to organized crime, but almost all
other representative decisions are left to elected union officials.
Will the monitorship
strengthen or weaken the union?
It's understandable that
longshore workers are wary of government intervention in their union.
The Bush administration, after all, has proven itself to be no friend
to workers and even less so to unions. But the same was true in the late
1980s when Rudolph Giuliani, then U.S. Attorney in New York, brought a
RICO suit against the Teamsters. The union reached an agreement with the
Department of Justice that allowed court-appointed monitors into the union.
In the union's first election of international officers by direct membership
vote, the right to a fair election was guaranteed by a federal judge and
organized crime suffered its first major defeat in the labor movement.
The Teamsters monitorship,
now 15 years old, has not transformed the union into a beacon of hope
for the labor movement. But the union and its members are far better off
than when they were under the thumb of powerful mob bosses. Benefit funds
are not pilfered; hundreds of corrupt officials have been removed for
stealing and democracy has gained a foothold: Teamsters for a Democratic
Union, a 25-year old reform caucus takes advantage of the democratic space
created by court supervision of the 1.5 million-member union. In 2003,
a TDU-backed candidate for international president gained 35% of the vote
after being outspent 10 - 1 ($3 million, to $300,000) by incumbent James
Racketeers rely heavily
on fear of violence and intimidation to maintain their control of the
union. In a local controlled by racketeers usually only a small group
of courageous union members are willing to challenge mobbed-up officials.
When the racketeers are removed and court-appointed officials maintain
a presence in the union it is an opportunity for honest unionists to come
forward and assert control over the direction of the union. But it is
up to you.
The lesson of the Teamsters
monitorship and the others is that the government can't give members an
honest and strong union. What they can do is create conditions for good
union members to come forward and make needed changes. The outcome depends
Can ILA members influence
the terms of the agreement?
That too is up to you. Ultimately,
the deal will be made by the Department of Justice and the incumbent union
officials, maybe by some of the same ones who will be removed as part
of the consent decree. Usually, though, the Department of Justice staff
working on the case are open to input from the affected members. After
all, the explicitly stated aim of all consent agreements is to "return
the union to its members." If you are active, if you speak up, if
you organize, they are likely to listen. ILA members who want to tell
the government what they think is wrong and what can be fixed can contact
AUD. We will put you in touch with the right people or pass your concerns
Will the monitorship be
good for those who want to build a strong, democratic union?
on the ILA see articles from Union Democracy
We have had problems with stolen elections in the past and don't trust
the incumbents to run the upcoming officer elections fairly. Some of us
would like to see an outside agency conduct the election, but which is
the best one? How do we get the union to agree to use an outside agency?
For suggested election
procedures and timelines, see the DOL website.
Q: Recently my
International Union merged my local into another before my three year
term of office ran out. Did they violate any Laws or Acts governing the
Terms of Elected Local Union Officials?
Have the Company and International violated any Laws or Acts for the members not authorizing this deduction to the other local?
The locals that were merged cover private sector workers and are in a state that has laws/statues governing authorized deductions from paychecks. We have several sections in our contract on how check-off assignments cards are executed.
A: We can only give you a general answer. (Answering legal rights questions often requires getting the whole story in a lot more detail.)
First, assuming the International constitution gives the International the authority to merge locals - which it most likely does - and assuming that the International followed the procedures contained in the constitution to a "T" - which they probably did - the International can order one local to merge into another, even if it means cutting short the electoral term of the officers of the non-surviving local. So, the merger and the shortened term of office may not violate any law.
In fact, this "reorganization"
device has become a favorite among some international union officials
as a means to get around the legal restraints on imposing trusteeships
contained in the Labor Management Reporting and Disclosure Act (LMRDA).
(For more on the LMRDA trusteeship provisions.)
Instead of putting your local in trusteeship, they just merge it into
another. But, unless you can show that the merger was ordered in bad faith
for the purpose of depriving the members and officers of the non-surviving
local of their political and free speech rights, the LMRDA does not help
here. You would need a "smoking gun" since the International
can always come up with an argument about why it makes sense to merge
the locals and courts are reluctant to substitute their judgment for that
of the International's elected officers.
There is no simple answer to the dues check-off authorization issue. It depends on what the authorization card that people have previously signed actually says; such cards generally authorize the employer to deduct union dues, without specifying any particular rate. As you wrote, it also depends on the language of the union contract(s), the local and state laws, and possibly other documents. That would take more research to pin down. Start with the contract and authorization card, then look into state and local law. A call to the State Labor Relations Board (which may go by a different name) and/or the National Labor Relations Board should help you track down the legal information.
The long-term solution to this problem would be to change the rules and procedures for merging locals - by requiring a two-thirds vote by the affected members, for example. That would require a campaign to change the union constitution, a difficult task. And, there may be other, more pressing problems that members will want to deal with first.
While you sort out your options on the dues increase, you should also start planning to organize with the members of the new local to make sure you can hold the new leadership accountable. (For more on organizing in the union.)
One more comment: anti-union forces, including the employer, will encourage members to withdraw their authorization saying that this somehow "punishes" the union. In reality, the biggest effect of a member's refusing to pay dues is that she or he loses union membership and with it the right to vote on contracts, vote in union elections, etc. As a result, the union leadership becomes less accountable to the members, not more accountable. (For more on withholding dues.)
For the text
of the LMRDA and a summary of its provisions.
Q: Do union members have the right to see the minutes from executive board meetings? Can we get a copy, or just inspect them? What about minutes of membership meetings? If members can not get them, what about officers or stewards?
A: This is a situation where you may want to give us a call. The answer depends on the specifics of the situation and we can only give a very general answer:
There is no law that requires union officers to show union members the minutes of executive board meetings or give them a copy. The place to look is your union constitution or bylaws. (Remember to look at the local and international constitutions). For example, the constitution of the Coalition of University Employees requires the union Secretary to "maintain all minutes of meetings of the general membership and of the executive board...promptly transmit copies of the minutes to each local, and make them available to all members promptly upon request." Your union may not have language like this. (The members can amend the constitution to include a rule like this, following the procedures in the constitution.)
The same is true of membership meetings: the union is not required to provide members with copies of, or let them inspect, the minutes of membership meetings. It depends on what the constitution and/or bylaws say. (Unfortunately, unions are not even required to hold membership meetings, unless the union constitution or bylaws require it.)
In the eyes of the law, shop stewards are usually not considered officers of the union, so when it comes to internal union matters, they are in the same position as a rank-and-file member.
There may be circumstances where the union officers would have to turn over the minutes to a member or group of members as part of a complaint the member or members had filed with a government agency or in court. For example, members could ask for the minutes if they needed them to determine if a dues increase was properly approved, or if the union's LM-2 financial report was accurate. That will depend on the details of the situation, and you will first have to convince a government agent or a judge that there are real grounds for a complaint.
Union officers may be able to claim the right to see the minutes of executive board or membership meetings because they need to carry out their duties and obligations and are liable for the union's actions. Officers may be entitled to see the minutes in order to make corrections. Again, it depends on the case. For example, a Treasurer or trustee could demand to see minutes that involve decisions on spending or other financial matters. When we say the officers "can claim the right," we mean that if the President refused the officers would have a good chance of convincing either the parent union, or, if necessary, a judge to order the President to give the officer access.
(There may be circumstances where members or officers could use state laws governing membership corporations and or associations to gain access to the minutes, but this is an outside possibility and an area where legal help is needed.)
Finally, there is a difference between being allowed to see the minutes and being allowed to have a copy. In most cases, the law does not require the union to give members a copy of union documents.
First, your union can distribute minutes to the membership. There is no law against it. We think this is a good idea; it is even better if the minutes provide relevant and important information and are clearly written. Why not make it easier for members to participate and be in the know? You can vote to do this in a membership meeting.
Second, nothing stops a member or union officer from taking her or his own unofficial minutes and distributing those to the membership, printing them in a newsletter or posting them online (you have strong free speech rights, but be careful about confidential or sensitive information about bargaining or strike strategy -- if in doubt give us a call).
Third, if you ask for the minutes (best to ask as a group, by a petition) and the union officers refuse to let you see them, you can make this a political issue: "What do they have to hide? Whose union is it? We're good enough to pay their salaries, but not good enough to see the minutes?" and so on. Political pressure may be enough to get you the information you want.
For the minutes
provision of the constitution of the Coalition of University Employees
Q: I have a very basic question. What do you at AUD think is a democratic union? How do you judge -- what are the benchmarks? Is it enough to have elections and union meetings? Is a union democratic if it just obeys the legal requirements, even if those requirements are minimal? Do you have a list of unions that you consider democratic?
A: We do not maintain a list of " AUD -certified" democratic unions. We feel that judgment is best left in the hands of union members themselves, the people most familiar with the real workings of the institution. Visit the rank-and-file sites on our links page to see how various unions measure up in the eyes of some of their members.
But, we like the idea of union democracy benchmarks, so we put together the following checklist. Warning! This list has many limitations; we welcome your feedback.
AUD's Union Democracy Benchmarks ( updated 8/12/02)
Proposals for a Teamster Code
The AUD Union Democracy checklist is not exhaustive -- we have undoubtedly left out items that in a given set of circumstances could be critically important.
Many of the items on the list are subject to legitimate debate -- is it always more democratic to have elected business agents? Are direct elections by members always better than delegated elections?
It is possible for a union to meet many of these benchmarks in form, but not in substance, for example holding regular union meetings that really only serve to rubber stamp decisions already made by the officers. The reverse is also possible, a union's officers might do a fine job of representing members even in the absence of certain democratic practices or rules.
There are principles that are important to the union movement that are not strictly speaking union democracy issues: whether to oppose concessions, how much to prioritize new organizing, the role of unions in politics. This list is about what makes a union democratic, not about what union members should use that democracy for.
A union does not become democratic once and for all, but rather as a result of constant vigilance and struggle.
The checklist is neither our ultimate wish list, nor just the bare legal minimum. (See our summary of legal requirements.) It assumes that your union is already meeting its legal obligations under federal, state and local law. This checklist is intended to spark your thinking on the subject.
Q: I am trying to obtain the mailing list for the subscribers of my international union's monthly magazine. I want to mail out campaign newsletters calling for a referendum vote on a proposed amendment to the international union constitution. The amendment we are trying to pass will give every member the right to vote in elections for their international officers, instead of the system we use now, where officers are elected by delegates. Any information you may offer, or references to other contacts will be greatly appreciated.
A: There is bad news and good news. The bad news is that the union has no legal obligation to give you its membership mailing list, and no obligation to send out a mailing for you on this issue, even if you provide the newsletters, envelopes and postage.
The Labor Management Reporting and Disclosure Act (LMRDA) gives you rights to free speech and to participate in union affairs, especially elections. (See links below.) In the case of a referendum that is initiated and conducted by the union, courts have interpreted these rights to mean that members can send mailings to the membership, at their expense, in order to inform them of opposing viewpoints. Sounds good, right?
The problem is that this does not mean that a member can require the union to send a mailing on just any topic they choose. So, in your case, where you want to inform members about a constitutional amendment that was initiated and supported by members, not by the union leadership, the union is under no obligation to send your mailing. (At least, no court has yet interpreted the law to require unions to do this.)
Now, there is another possibility, legally speaking. In officer elections, the LMRDA requires unions to send campaign mailings at the candidate's expense -- to the entire membership, or just targeted sectors, members or groups, depending on the candidate's preference. It also requires the union to let candidates inspect the membership list prior to the election. See Membership Lists in Elections, on this page. (Note: these rules are for union elections, and do not directly apply to other types of voting, i.e., contract ratification referenda or constitutional amendments.)
One way you might be able "to skin the cat" and get the union to send your mailing about the constitutional amendment would be to declare your candidacy for union office. The law guarantees "bona fide" candidates the right to send campaign mailings. You could make the constitutional amendment the central theme of your campaign platform.
Remember that you will be required to pay for printing and mailing your literature; it's also important to understand that all membership mailings will be processed by the union or its designated commercial bulk mail facility. You will deliver an appropriate number of pieces of your mailing, in the proper format, to the union or its "mailing house," along with your check for the proper sum of money to cover any postage and handling fees, and they take it from there. (Note: the union has no right to review or censor the contents of your mailing.)
And now for the good news.
You have seized upon a stark and popular political issue -- one member, one vote. What could be more democratic than that? This is a rallying point around which you can build a grassroots campaign, organizing members to show their support for the referendum.
Our advice would be to focus your efforts on building such a campaign. Spread the word; use websites and e-mail lists; send chain letters; print bumper stickers and t-shirts -- whatever it takes. Get members to show their commitment: organize rallies and protests, circulate petitions, get others involved. Formulate resolutions for your local meeting; build your network of like-minded members and through that network get your resolutions presented at local meetings; run candidates for convention delegate who support your cause.
Given the fact that you do not have the legal rights you want here, you have no real choice but to go the grassroots way. The good news is that's how strong unions are built, from the bottom up. As you campaign, you also build a network of supporters. Members become energized around the issue; many will become activists; a political movement may well be born.
A starting point would be to form local groups, then pull together a meeting of activists in your union from across the US to craft a plan and organize the campaign effort. If you want AUD's assistance with that, we would be glad to help. We helped to organize such a meeting of Carpenters in 2000 that led to the formation of a national reform group that made a strong showing at their union's convention. If you have not already found people who think like you in the rest of the union, try the rank-and-file links on our website or give us a call.
(PS: If, by some minor miracle, you get a constitutional referendum, you should demand that the referendum be conducted by secret ballot, under specific rules -- just like an election. See our pamphlet How to Get an Honest Union Election for specific ideas.)
text of the LMRDA (including
Q: We are members of a state employees union who want to run for local office in the next election, which is eight months from now. The next leadership is going to bargain our new contract. The problem is, our constitution says only members who have been in good standing for five years can run for the top offices. But more than half of the union membership came in during the past four years. We want to change the constitution, but the officers refuse to hold any meetings. When we tell them the constitution says they have to hold monthly membership meetings, they say the constitution we have is not the real one. They say the constitution was amended, but some of the changes were not put in the printed version. When we asked when this new constitution was passed and who voted on it, they don't have any answer. These people are totally unaccountable. What are we supposed to do?
A: Let's take these problems in order, starting with the easiest and ending with the most difficult, and most important.
Your officers claim that the printed constitution that members have is "not the real one," but they refuse to produce a copy of this "real" constitution. Ask for the "real" constitution in writing, to the local president, by certified mail (see "Can't get the union constitution" below and link to sample letter). In your letter, note that you asked before, that the person you asked (name names) refused to give it to you, and give the president ten days to get you a full and complete copy of the current constitution. If the union refuses, you will need to contact an attorney in your area to see how to enforce your right to a copy (call AUD for a referral).
If you were in a private sector union, or a local with a mix of private and public sector members, your task would be easier. Unions are required by law (the LMRDA) to file the union constitution or bylaws with the US Department of Labor. In addition, the DOL has held five-year membership eligibility requirements to be excesssive.
In the same letter, ask for information on the next regularly scheduled union meeting. Remind the local president that the next meeting should be held, according to the constitution you have, on such and such date. You can also indicate that you intend to present a proposed amendment at that regular meeting. You should talk to an attorney about filing a suit to force the union to hold membership meetings, as per the constitution you and other members have.
Of course, the officers may just fabricate a copy of the "real" constitution, claim it has always existed, and deny your request for a meeting. In that case, if you believe they are lying, you can ask about when it was ratified and seek out other details to test its authenticity.
If the officers succeed in imposing their amended constitution, you may still be able to challenge the clause requiring five years of membership in good standing in order to run for top offices. On its face this rule is anti-democratic -- over half of the membership is excluded from running for office, even people with several years on the job. You may be able to challenge this provision in court. (To find out, you will want to talk to an attorney familiar with this area of the law. Again, call AUD for a referral.)
If you can not force the union to remove this restriction, you will have to try to amend the union constitution. To do this, you will have to follow the procedures in the constitution. Usually, you have to propose a change in writing at one meeting and there is a vote held at the following meeting. Follow the constitutional procedures to the letter.
Obviously, if you do not have the votes to win this amendment in a union meeting, there is no point trying to amend the constitution. You will need to make a major effort to organize members to turn out and vote. That means, above all, going to members and talking one-on-one, face-to-face about the changes you are proposing. It also means having a well-rehearsed plan for the union meeting, so you do not get bamboozled by the officer who is chairing, and his or her supporters.
(You should also have a backup plan: start looking for people with five years good standing to run with you on a slate.)
The biggest challenge -- and the biggest opportunity -- is that you are facing an election followed by contract negotiations. To win election and to win a good contract, you need to get out there and organize -- talk to every member of the union in person several times, put out a newsletter, set up a website. Find out what your coworkers' top priorities are and propose ways to win their demands. You need to demonstrate that with your leadership, with the reforms you will make, and with their activism members will have a better chance to get a good contract.
Eight months is not a long time to build a campaign. You should sit down with your fellow activists and map out a plan and a timeline from now to the election and then to the contract negotiations. Do not get bogged down in the legal battles. You need to be out with the members, talking, listening, building trust. Maybe you can designate one person on your committee to be the "legal person." She or he can be in touch with attorneys and report back to you on the latest developments.
Even if the incumbents get reelected, you may be able to get some of your people on the negotiating committee, and you can organize a rank-and-file contract campaign to put pressure on the elected officials and on management. (See "The Transformation of US Unions" for an example of this approach from TWU local 100.)
An attorney friend of ours says, "even if you win a legal victory it will prove to be worthless unless you've organized massive political support behind your would-be candidates and/or your specific contract negotiating demands. Legal victories can give you an opportunity to play the union governance game, but you've always got to have a game plan and organize majority political support for it."
For a sample
letter to get your constitution.
Q: "I have a question about what we can do if our union representatives lie about what is in a contract and get us to vote for it on that basis. Our local president lied and misrepresented facts about a contract that was put to a vote of the members. The lies about the contract had a large influence on the election outcome; we voted "yes" because we thought there were no give-backs on health insurance and work rules. My question is, can the vote be contested? If the contract we were given to vote on was incomplete is it legal? By incomplete, I mean if it is being added to or taken away from without our chance to see it before voting."
A: In theory, you have legal recourse. Federal law does not require that unions allow membership to ratify contracts. The right to ratify has to be in your union constitution or bylaws. (If you need to know how to get a copy of the union constitution, see the FAQ "Can't get the union constitution".) However, the law is quite clear that if your union constitution does require member ratification of contracts (and most do), then the ratification votes must be "fair and meaningful." Side agreements, too, must be ratified. This principle is well established in the law.
Unfortunately, another principle is usually given greater weight by the generally pro-business courts: that is the employer's interest in having stable labor relations. So the courts generally rule that even if a contract ratification vote was manipulated or even fraudulent it is unfair to punish the employer -- who presumably arrived at the agreement in good faith and is planning their business around the contract's labor costs etc. -- by voiding the contract.
So the legal answer is yes: you have recourse, but except in very rare circumstances, the remedy will be something like court-ordered safeguards that apply to future ratification votes and not a new vote on the just-approved contract. In rare circumstances -- an unusually sympathetic judge, an outrageous misrepresentation or fraudulent vote, a group of workers who immediately challenged the vote in court, and an excellent attorney -- you might win a revote, but not usually.
If members are mad enough about the situation you may be able to organize a campaign to recall the officers, or amend the bylaws to reinforce members' right to an informed vote. For example, you can provide for an elected contract committee subject to recall, and establish rules that ban any member or officer from meeting separately with management to bargain on behalf of the union. You can require that a full and complete copy of the final agreement be given to each member two weeks before the ratification vote, and that there be meetings in every workplace to discuss the contract and its contents you get the picture.
No circumstance better illustrates the need for union members to organize the rank and file to elect honest union representatives and stay organized to hold them accountable. Under the law, officers have power they can use to sell out the members; the weak legal protection of the right to ratify contracts is the best example of this.
a caucus in your union.
Q: A few months ago I told the Chief Steward I wanted the union to file a grievance. He just looked at me and told me I don't have a case. He wouldn't even listen to my story or witnesses or anything. I kept bugging him about it, so he said, "I'll see what I can do." It has been six months and he has not told me anything. In the meantime, we have crazy problems here -- things like no toilet paper in the bathrooms, women getting sexually harassed by a manager, people getting passed over in favor of friends of the manager. The Chief Steward is just a suck-up to management. I'm tired of being jerked around. My question is, do I have to go through the union? Can I just take the company to court myself?
A: We don't have to tell you that you have problems. Youre stuck between a rotten employer and a weak union. What we can tell you is that the solution is not in court. There are exceptions to this, but bottom line: you and your coworkers have to get organized.
First, sit down with a few coworkers and sort out the different problems you have. Some are violations of the contract, some are unfair or unjust acts, some are violations of the law, and some are just things you don't want the employer to do.
For most workplace problems, you have to solve the problem through the union grievance procedure or through direct pressure tactics, or a combination of both. If the law has been broken or the case is especially outrageous -- you mentioned sexual harassment -- you may be able to go to court and should talk to an attorney, more on this below. But, in most cases, you will not be able to address the problem by filing a lawsuit. So, what should you do?
Do not let the union representatives off the hook. Keep filing grievances, but change the way you do it. Do not just tell the Chief Steward you want to file a grievance, put it in writing and send it to the union hall by certified mail, return receipt requested. (Keep your copies.)
Better yet, get your coworkers to sign on to the grievance like a petition, to show this is an issue that affects everyone. Then, if they do not tell you what is happening or if they are taking too long, follow up with another certified letter. You can also put the Chief Steward on the spot at a union meeting or in the workplace -- ask him to report on the progress of the grievances. The point is to demand that the union representatives do a good job -- they work for you. It is important to file grievances because it shows you tried to address the problem. If the problem becomes a legal case, this will help you.
You should read your union contract carefully, make sure you understand the grievance procedure and the time limits. You may be able to file grievances as an individual or a group of workers -- even up to step two or three of the procedure -- without the union representative. This can give you a way to get in front of the boss and let him or her know how you feel about the problem and what you want them to do about it. The union rep. has a right to be present at any grievance meeting, but at least at this step you can present your case. If you plan to do this -- you need to be prepared to present your case well. Call AUD for advice.
What if the employer broke the law? Let's take your example: workers are being sexually harassed. Workers who have been sexually harassed have several options. They can file a grievance. They can contact the federal Equal Employment Opportunities Commission (contact info below). They can go to a private attorney. They do not have to wait on the union to take action. (Note that if the union fails to take action on a sexual harassment or discrimination case, the union can become liable, too.) One thing to watch out for: if the employer has an internal complaint procedure to deal with sexual harassment, you should use it. If you do not, the employer may get off the hook. In any case, you should talk to an attorney.
However, in some cases, even when the employer breaks the law, government agencies or judges may insist that you handle the problem first through the grievance procedure. The National Labor Relations Board, for example, "defers" charges to the grievance procedure and seldom challenges the result.
Bottom line: if you really want to change the way your employer treats you, filing grievances is not enough. You have to organize with your coworkers to take actions that put pressure on the company. Get together with your coworkers, in a non-work place on non-work time, and talk about what you can do to pressure management to deal with your concerns. There are many, many ways to pressure the boss -- from lower risk actions like wearing buttons or stickers to the higher risk slow downs and sick outs -- and you may invent new ones. Before you take job actions, make sure you know what the risks are. Read the contract carefully: many contracts include a "no strike" clause that limits workers' rights to take certain kinds of actions. Also, make sure you do everything as a group -- lone rangers are weak.
Finally, dump that chief steward. As long as you have a union rep. who is more likely to suck-up than fight, your problems will keep coming back. If the Chief Steward is elected, run your own candidate against him. If he is appointed, petition the local to remove him. If the union officers refuse, then change the bylaws to require elected stewards. (You will need to see your union bylaws to find out how to do all of this.) It can be done: workers in a meatpacking plant in Washington State did exactly this, and won. They dumped the chief steward, elected a new one and new stewards for every shift, and later went on to take over the local. Their problems are not over, but now they have stewards who give a damn.
Resources: If you want to learn what a grievance is, how to file a grievance, how the grievance procedure works, and examples of what to do in a good situation (where the union is helpful) and in a bad one (where the union is part of the problem), see our guide "Your Job, Your Rights" on this site.
If you want detailed information and advice on how to use the grievance procedure -- and on direct action alternatives/additions to the grievance procedure -- there are several good books available from AUD. The top two are: The Legal Rights of Union Stewards, by Robert Schwartz, and The Troublemaker's Handbook, by Dan LaBotz. We also publishes a Manual for Survival, that includes useful material on fighting sexual harassment. Another good online source is the toolkit on the UE website.
If you want to learn how to do this kind of organizing, contact AUD to set up an educational workshop. We can teach you the best organizing techniques and help you figure out how to build power on the job and in the union.
For the website of the federal Equal Employment Opportunities Commission (EEOC).
Q: We are having a discussion in our union about whether, in legal terms, it is necessary or forbidden to give to each candidate for office a list of the eligible voters in that race. We are a statewide organization with several locals. We recognize that the questions of whether it is good or stupid to do so are different questions (and we would welcome your input on those as well). If you have any facts for us, we would appreciate them.
A: Here's what the law says:
"Every bona fide candidate shall have the right, once within 30 days prior to an election of a labor organization in which he is a candidate, to inspect a list containing the names and last known addresses of all members of the labor organization " (LMRDA, Title 29: Sec. 481(c))
"Bona fide candidate" means a person who is running for office, but not necessarily already nominated. Under LMRDA, such candidates have a right to inspect the list, not just of eligible voters, but of all members of the labor organization (local, council, national, etc.) involved in that election. The union does not have to give them a copy of the list, just allow the candidates to inspect it.
This is a minimum requirement. There is nothing preventing the union from providing more access, or providing a copy of the list, to candidates, or to members, for that matter. If the union has constitutional provisions that provide for more access, then the constitution holds, and can be enforced in state or federal court.
The main thing to remember is that the principle of equality also applies: whatever information is made available to any candidate must be available to all candidates, on an equal basis.
So, is it a good idea to give each candidate a copy of the list?
In general, we think making it easier for people to run for office and get their word out to potential supporters contributes to democracy. It facilitates member participation in the life of the union, and makes it easier for members to discover and prevent abuse of their rights. (The only reasonable exception, in our view, is if releasing that information could result in the employer discovering a member's union membership and retaliating against them. For example, in an organizing campaign where the union does not yet have recognition.)
There are other ways to handle this issue, including providing member contact information to any other member -- not just to candidates -- on request, with an opt-out provision for certain information (if a member does not want her phone, address, e-mail etc., shared to all members, she can submit a request to withhold the additional info.). You may also want to explicitly limit the use of the information to union affairs, to prevent a member who also sells ACME Cell Phone Service from flooding members with junk mail and unwanted calls.
You may want to consider putting language like this in your union constitution or bylaws, or election rules:
"The union will provide all bona fide candidates for union office [or all members] with a list of all members of the local or statewide organization in which the election is taking place, with contact information (including name, work location, last known mailing address, e-mail, phone) for those union members (i.e., a state membership list for state-wide elections, a local list for local elections). Candidates [or members] receiving such lists will sign a statement promising not to use the information for purposes not related to internal union affairs, (i.e., not for marketing or other purposes.)"
full text of the LMRDA.
Q: Last month, our local president removed two members from the union's general meeting. Then he filed union disciplinary charges against them, accusing them of disrupting the union meetings and violating a section of the local by-laws that bans "indecorous, invective speech."
In the meeting, the two members asked the president questions about the local finances and his decisions on spending and other issues. He ruled them out of order and told them to sit down and shut up. They protested and continued asking their questions. There was swearing and yelling on both sides. He had the sergeant at arms remove them from the meeting.
These members are long-time "dissidents," who have stated that they plan to run for office in the next election. It's not the first time that members or officers have used foul language or gotten into shouting matches at meetings, but it is the first time members have been brought up on charges for it.
I agreed to represent the two members at the disciplinary hearing, but I have questions. Should we even bother with the hearing? The trial board is made up of the very officers we are trying to get rid of. Also, what laws back me up here? What else can/should we do? (We are in a private sector union.)
A: If this is an attack on dissidents because of their internal political activities, you should definitely defend them. In doing so you are also standing up for the free speech rights of all your fellow members.
The first line of defense to an attack on free speech is more free speech. If the president wants people to sit down and shut up at union meetings, the logical answer is to organize people to stand up and speak out -- albeit in an orderly manner. Put the president in a position where he has to file bogus charges against everyone, or no one. You can also put on pressure outside the meetings, for example by holding an "informational picket" of the union's offices. If concerted activity can pressure your employer to improve working conditions, it may also persuade your union officials to improve the political climate in your local.
You can also publicize the president's actions in a flyer, newsletter, or on a website. Make your case to members. Look for ways to connect this issue to concerns that members have about job-related problems: "if we can't speak freely at union meetings, how can we get what we want in contract negotiations?"
Use the occasion to: a) educate people about their democratic rights and about the value of democracy and serious debate over legitimate differences, b) show the president that filing charges will only add to his problems, and c) get members involved in activism.
How to organize your coworkers to take action, how to be effective in union meetings, and how to put out newsletters or websites are all topics that are better dealt with in a longer discussion or an AUD workshop. The keys are to make your action collective, be prepared, know your rights and the union procedures, and, most important, have clear goals and objectives that are meaningful and important to your fellow members and coworkers.
Legally speaking, you are in a gray area. Title I of the Labor Management Reporting and Disclosure Act (LMRDA) says, in part:
"Every member of any labor organization shall have the right... to express any views, arguments, or opinions... at meetings of the labor organization... upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings."
So, to the extent the two dissidents may have been violating rules for the orderly conduct of meetings, they may have exposed themselves to discipline even if the real, motivating reason is their dissident activities. (This is why experienced union activists will tell you to be a 'model member' -- why give you opponents a weapon to use against you?)
If the members who were brought up on charges did not swear, refuse to stop talking, yell at the president, and disrupt the meeting, you would have a clear-cut free speech case.
In that case, by filing charges against the members, the president would be violating their free speech rights under the LMRDA. He might even be attempting to prevent these members from challenging him in the next election -- another violation of the LMRDA. (Many unions require members to be in "continuous good standing" for the prior two or three years to be eligible to run for office. Even a one-day suspension could deprive these two members of eligibility to run for office.)
You would still need to decide if the case is worth a major fight. Are the two accused members serious about organizing for change in the union? Or are they just interested in grandstanding and provoking the officers for the hell of it? How does this issue fit into the bigger picture? You need to choose your battles.
Assuming you decided to fight, you should call AUD for more in-depth advice, and a possible lawyer referral, and take these steps:
Reality check. Even if you can prove the president's desire to suppress dissident speech and hobble political opponents, you may still lose the legal battle. The president may lie at the hearing and produce witnesses to 'corroborate' his claim that the accused members disrupted the meeting and violated the bylaws. Of course, if the trial board is politically tight with the president, it will likely find against you no matter what the facts show.
And if the union president and his attorneys can convince a judge that yours is a "mixed" case, involving not just a question of free speech but also application of a reasonable rule governing the conduct of meetings, the judge may insist that you exhaust internal union appeals, before hearing the case. Thereafter, the judge may choose not to rehash the facts and may instead accept the trial board's "findings of fact."
Finally, going to court costs money and can take a lot of time. Only you can decide if it is worth it, based on the stakes involved.
on Title One rights.
November, 2001-- Electioneering by union staff.
A.: Yes and no. Here's the deal: the LMRDA prohibits the use of union resources to promote (or oppose) the candidacy of any particular candidate, unless the resources are made available to all candidates on an equal basis. For example, if one candidate gets to use the union xerox machine or postage meter, then every candidate gets to use it. If the president gets to make a campaign speech during a union meeting, then so also do the opponents. This should mean that if a union staff member, on union time or with union resources, campaigns for the incumbent president, it is a clear violation of the law.
Imagine a union business agent who visits a workplace, gives a speech about the virtues of the incumbent president, and hands out campaign literature. The BA's actions would violate the law. But, in practice, they are not usually so blatant.
Here's the problem. The Department of Labor (DOL) permits what they call "incidental" campaigning. This happens when a union officer or staff person, on union time, engages in campaigning incidental to the performance of their regular union duties. For example, if your business agent comes to the workplace to investigate a grievance, and then happens to get into a conversation with union members about the campaign, that's not a violation. (The same is true of phone calls, if the primary purpose of the call is to discuss a grievance.)
If the BA also hands out campaign literature, that may cross the line. The DOL handles these complaints on a case by case basis, and it is often difficult to prove that the staff member's actions were in violation of the law. You can imagine the gray areas that arise from the concept of "incidental" campaigning.
Getting back to the original question, what if the union staff member calls a member at home to campaign? Under what circumstances is it permitted?
If the staff member is a member of the union, s/he is entitled to campaign -- just like any member -- but not on union staff time (unless incidental to union business), and not with union resources. If there are any charges for the phone call and it's made from the union office, that would violate the law. Even if the staffer is calling you on her/his own time, if s/he is using the union database, then that is probably a violation. The union's list of its members' phone numbers and addresses is a union resource. On the other hand, if the list is one that the staffer collected on her own, say prior to going to work for the union or by talking to members, there would be no violation. That's what the staff member will probably claim; it can be hard to disprove such a defense.
If the staff member is not a member of the union, s/he is permitted to campaign on her or his own time, not with union resources, unless the union has language in the constitution or bylaws that bans non-members from campaigning.
Finally, there are some union resources, like an organizer's car or cell phone, that may be considered "shared," for example, where s/he is permitted to use the car for personal errands, or to make personal calls that are not billed to the union. The union staff is permitted to use shared resources in a union campaign, again, as long as the staffer is not using them while "on the clock," and so long as their use is allowed by the terms of her/his employment agreement with the union.
Enforcement: during or after the election, any member can file an internal union complaint, following the procedures in the union constitution or bylaws. If that doesn't result in a favorable outcome within three months, the member can then file her/his complaint with the DOL. The DOL will then investigate and proceed with an enforcement action only if they determine that the violations were severe enough to have had an impact on the outcome of the election. While that can be difficult to prove in most situations, where the violation is use of union resources, it is generally not necessary to prove that the violation actually affected the outcome.
The moral? The best defense is a strong offense. If you are a candidate, make sure you build a strong grassroots campaign that will enable you to win, and win by a comfortable margin, despite LMRDA violations by your opponents. But, just in case, keep good notes on, and collect evidence of, suspected violations. You'll need to be able to show: WHO did WHAT, WHEN, and WHERE? Don't count on the DOL to find that evidence when they investigate your complaint. Collect documents and get written or tape recorded statements from witnesses, preferably eye witnesses, or a "deep throat" in the union. This is particularly critical when alleging improper use of union resources. Hand over your evidence to the DOL when you file your complaint.
October, 2001 -- Withholding dues
In so-called "right-to-work"
states, employees cannot be required even to pay an "agency fee",
i.e., to contribute their fair share toward the union costs of giving
them workplace representation. The union still has a legal obligation
to provide representation -- for example in grievances and negotiations
-- even for workers who do not pay their fair share. (It is easy to see
why anti-union employers, and their friends at the "Right to Work
Committee" support "right to work" legislation.)
Q: "I have a question about whether or not it is legal for a union official to use the union's credit card to charge personal charges. No matter how small or that the charges are paid off over time."
A: It is illegal.
As Section 501 (c) of the Labor Management Reporting and Disclosure Act (LMRDA) says,
"Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned for not more than five years, or both."
According to a representative of the Office of Labor Management Standards (OLMS), using the union credit card for personal use is "stealing money from the union, no different from robbing a bank."
It is legal for a union officer or employee to use the union credit card for food, travel, or lodging expenses that they incur while doing union business. For example, it is legal for a union officer to use the credit card to fly to the union convention in Hawaii, pay for the hotel room, and buy meals during her stay. (Note: you may also want to look into what expenses are authorized by the union constitution and/or spending policies. The union may only authorize a limited amount of spending.)
It is not legal, to take another example, for a union officer to use the union credit card to buy concert tickets for his friends, or a new swimming pool for her house. (Note: if the officer uses the union credit card and promptly reimburses the union for the expense, there may not be a violation of the law. The OLMS discourages this use of the union credit card.)
If you have evidence that a union officer or employee is "abstracting" money from the union and converting it to their own use, including via credit card purchases, you should contact the local office of the OLMS. Tip: the more proof you have, the better. You will have to convince the OLMS that there is a real problem worth investigating.
The potential penalty for stealing from the union is a fine of up to $10,000, and/or up to five years in prison. In addition, under Section 504 of the LMRDA, a person convicted of embezzlement shall be banned from holding union office, or any position involving decision-making power over union funds, for several years (the exact number depends on a number of factors). The guilty party is also subject to expulsion from the union.
Note: Unions are allowed, under Section 503 of the LMRDA, to loan up to $2,000 to union members, including those holding office or employed by the union. As long as the credit card purchase does not exceed that limit, and as long as the officer "comes clean at once" and pays for his or her personal charges, promptly reimburses the union, or executes an IOU or loan agreement with the union, there probably will be no problem.
Q: "We are
not happy with our union and want to change unions. What are our options?
When do we have a right to vote on a new one? Is there a time during the
contract or is it only at the end of a contract? Do we lose our whole
contract if a new union comes in? Can we keep our benefits? Is this even
a good idea?"
Finally, there is no guarantee
that the problems you faced in the old union -- lack of representation,
lack of accountability, lack of information -- will not reappear in the
new union. Simply switching unions like you switch phone companies is
not a recipe for a stronger, more democratic union. That requires members
to take control of the union.
of union reform
Q: "I need information on the caucus I have started. I have questions such as: does a caucus have a formal internal structure? Must a caucus be formally registered with the union, or any other body? Who determines qualifications for membership? And on and on. Sorry, I can't find the answers to my questions on your site, and I'm not sure which books to order from AUD. I would also like to contact rank and file groups to see what they have done and how they do it. Thank you for any help you can give."
A: Great question. Forming a caucus is one of the best ways to organize for democracy, member control, and reform of your union.
What is a caucus? Most caucuses start out (and many remain) small informal groups of like-minded members of a union who wish to pursue some common goals. Most caucuses are independent of the union and they are certainly not subject to control by the union leadership. Nor do you have to register your caucus with the union.
There may be several caucuses in a union, including one or more organized by the union officers, themselves, for example, to promote their candidacies in an election or to advocate some point of view. (These are not to be confused with official union-sponsored caucuses, like a women's caucus or people of color caucus. These official caucuses may be governed by the union bylaws and subject to control by the union leadership.)
Is a caucus different from a committee? No. Call it whatever you want. Some call their caucus a committee -- for example: "The Committee for A Just Contract." The name you pick may tell people what you are fighting for. You will probably want to make it clear in your literature that your caucus is independent of the union to avoid confusion about whether you are speaking as official union representatives. (Again, be careful not to confuse an independent committee with an official union-sponsored committee.)
Who can belong to a caucus or committee? That's up to you and your fellow caucus organizers and members. Usually, a caucus will accept anyone who supports its goals and is willing to work to achieve them.
Do caucus members have to be members of the union? No. One of the larger union reform caucuses, Teamsters for a Democratic Union, accepts into the caucus not only union members, but also their spouses or significant others. Who is eligible to belong is up to the caucus members.
What kind of structure does a caucus have to have? Whatever works best for you. Some activists create a structure that resembles their union's structure, with officers, bylaws, etc. Others are more informal, with an elected steering committee, or just a committee in which everyone participates equally. As time goes on, you may find that you need to formalize your structure and create bylaws. But at the beginning, don't worry about structure. Focus on your goals and strategy -- what it is you want to accomplish, and how you plan to get there -- and get to work.
Do we need to incorporate into a 501(c)(3) tax-exempt organization or 501 (c) (5) labor organization? No. You can be an unincorporated membership association. Again, don't waste your time and energy on the creation and administration of some elaborate legal structure. Do only what's necessary to accomplish your objectives.
Of course, you will eventually need to raise funds, for example, to print leaflets, t-shirts, or send mailings, etc. You may want to charge yourselves dues or hold a raffle. You'll want to be very careful with money. This is particularly important when it comes to union elections where there are often strict rules about use of funds. If you decide to open a bank account in the group's name, your bank may require you to provide it with bylaws designating some officer who is authorized to handle money and sign checks. O.K. Now the time has come to adopt bylaws. But don't write a book, just stick with the basics: what is the name of your organization, what are its goals, who is eligible for membership, how do you make decisions, who in your group has what authority, how can members change the bylaws.
Once your group has been around for a while, and you've decided to go for the long-haul, you may then find it helpful to set up a parallel, not-for-profit educational organization and perhaps seek funding from foundations. For example, Teamsters for a Democratic Union teams up with a related not-for-profit organization, the "Teamster Rank and File Research and Legal Defense Fund." O.K. Now we're talking about getting lawyers involved, incorporating, and filing for tax-exempt, Section 501(c)(3) status with the IRS. Generally speaking, however, less is more: less structure usually means more participation and greater flexibility.
To recap: the most important considerations when establishing a caucus in your union are going to be your mission and your strategy for implementing it. What do you want to change and how do you propose to make those changes. These are far more important than bylaws or tax considerations. Only after your caucus has gotten off the ground and started fighting big battles will you need to address such legal considerations.
Questions to consider: Where are you going and how will you get there? How are your goals related to the concerns of your coworkers? Do you just want new faces in the top positions? Or do you have a plan for changing the way the union works? Say you win office, what will make the new officers different from the people they replaced? What will you do differently? Do you want to change the union's orientation toward management? Do you want to reorganize the union to make it more democratic? Will you make it easier for the members to vote you out than it was for you, when you were the opposition? Where do you plan to begin? Should you run for office or focus on organizing at the workplace? What role will members play? Will you educate your coworkers and get them involved in actions? How will you help members get hold of the information they need to be in control and hold their leaders accountable? All of this needs to be sorted out in your caucus if you want to be successful.
Remember, most caucuses start in someone's kitchen, a restaurant, or a bar, just a convenient meeting place where you start sharing ideas with like-minded union brothers and sisters. The activists usually begin by tackling some manageable project, not reshaping the world overnight. As new members come on board and their talents are recognized and tapped, the caucus can then afford to become more ambitious. Successful caucuses usually start small and build through action and discussion.
Finally, there are several
resources on caucuses available on this site:
Q: "I need some information please. Some members are concerned about the finances of the local and want to have an audit done but I'm not sure who to refer this to. They have tried to have the finance committee handle this but several motions have been defeated. I think this would be covered under LMDRA but I'm not sure what agency would handle it."
A: The LMRDA (Labor Management Reporting and Disclosure Act) does not specifically require audits, so you have to do more work.
Your first step was good, trying to get the finance committee to handle this. The next step might be to bring the issue to a membership meeting in a slightly different form: try to get a motion passed to have an outside audit by a reputable independent accounting firm. The motion can include the election of a committee to find the accountant, coordinate the audit, and bring the results to the membership. To get such a motion passed, you will probably need to mobilize a lot of members to go to the meeting and be ready to get your motion heard, seconded, and approved. If you succeed and the leadership has something to hide, you can expect them to attempt to overturn your resolution and pull the plug on your audit at future meetings. So, you will need to keep your support mobilized and informed.
You can also write to the local, certified mail/return receipt requested, to request that the local carry out an audit. If (when) the local officers refuse, you can send the same letter to the International. If (when) the International refuses, you have a few options:
If you have evidence of wrongdoing -- receipts for improper expenses, reimbursement for fictional expenses, loans to an officer or member from the union for more than $2,000, etc. -- you can go to court and sue under Title V of the LMRDA to get the money returned to the union treasury.
If your analysis of the local's LM-2 financial reports filed with the U.S. Department of Labor over the past several years raises some unanswerable questions or suspicion of possible wrongdoing, you can, with the aid of an attorney, file suit under Title II of the LMRDA to get access to, and to analyze the local's underlying books and financial records yourself. You will want the aid of an attorney and/or personal accountant.
If there is criminal activity involved -- fraud, theft, etc. -- you may be able to get help from the local District Attorney's office, the U.S. Department of Labor, or your United States Attorney.
In any event, you'll want to share with your fellow members any information about financial wrongdoing that you happen to discover, what the union leadership is doing (or not doing) to solve it, and what you are doing to deal with the problem. Get the information in the hands of the members: put it in a newsletter or on a website. Post it on a bulletin board. Information can be a powerful political weapon that can be used to reform corrupt unions.
Finally, if the problems you are having are serious enough to think about going to court or organizing a movement to force the leadership to do what they should be doing anyway, you need to organize an independent, rank-and-file committee or caucus. The committee can create an agenda for change in the union, and take action to make it happen, including running candidates for office.
Q: "Our local has instituted a by-law which allows them to expel a union member for spreading rumours. Because I ran for office in the last election, the union officials have charged me with not only the above but they are charging that my campaign literature was "circulating letters of falsehood and misrepresentation." How can I do something about this without going to court?"
A: Judging by the term "circulating letters of falsehood and misrepresentation," we are talking here about the United Assocation of Plumbers and Pipefitters, (UA), and the language to which you refer is not only in the bylaws, but in Section 199 of the UA constitution. More than once, democratically-challenged union officers have tried to use this provision to punish members for exercising their free speech rights. Section 199 misrepresents UA members legal rights and AUD has helped UA members fight back in a number of ways, more on that below. (Note: the UA is not the only union that uses this kind of language to try to restrict free speech.)
You asked what you can do without going to court. This is a great question. Too often union members look to the law for some kind of savior who will come down from on high, smote their enemies, and restore a fair and just order on the union, only to be disappointed and disillusioned then the law turns out to be a mere tool, good for some things, not so good for others. Generally, we urge unionists not to depend upon lawsuits to win democracy in their unions. A lawsuit can be time consuming, expensive, and a distraction from the real task of organizing your fellow workers to change the way the union operates. Even if you win, it may not change the basic equation in the union. The leadership may continue to disregard the will and interests of the members.
However, there are cases where a lawsuit is the right tool for the job. When an act of the officials, or a provision of the bylaws or constitution is obviously in violation of the law, a lawsuit may be the right tool. Likewise, when the union uses such a provision to discipline a member, a lawsuit may be the way to go.
For example, three pipefitters were accused of violating Section 199 of the UA constitution when they put out a newsletter that was critical of local union leadership. The local sought to expel them from the union. The fitters called AUD and we put them in touch with an attorney in their area. In this case, all it took was a letter from an attorney and the union dropped the charges. They still publish the newsletter, where they publicized the charges and their victory over them. (We wrote up the case in Union Democracy Review #131)
One of the three pipefitters joined with a few other UA members in the U.S. and Canada to bring a lawsuit against the UA with two goals: to force the union to notify members of their rights under the Labor Management Reporting and Disclosure Act (LMRDA), and to have Section 199 removed from the UA constitution and all local bylaws. AUD board member Arthur Fox is representing the UA members. (We will report on the outcome in Union Democracy Review.) NOTE: as of 3/2002, as a result of the suit brought by Chuck Callihan and Wilber Thomas, Section 199 has been ruled invalid and the UA has been ordered to remove it from the UA constitution. Click here for more info.
What else can you do, without going to court? To defend and maintain your free speech rights in the union, the first step is to use them, a lot. Speak up in union meetings, ask questions, provide information you think members need to know. Do not limit yourself to speaking up, print a newsletter or set up a website. Distribute useful and interesting information about members' rights, about issues of concern, about officers' salaries, about Section 199, about AUD and other resources. You can stage protests or make fun of the rule by having members write and distribute "circular letters" -- maybe on circular pieces of paper? Remember, there is power and safety in numbers, always try to act collectively -- set up a newsletter committee, organize meetings, bring a group to the union meeting. The Lone Ranger never reformed a union.
If you want to change the part of the union bylaws or constitution, you need to wage a campaign in the union. This is a big task -- you will probably have to win a majority at the convention or in some kind of referendum -- but it is not impossible. Then again, you will want to consider how big a priority this particular problem is, and whether you have other changes to make that are more pressing, such as elected business agents, or hiring hall reforms.
To sum up. Go forth and organize. If your union brings charges against you or retaliates against you in any way because of your free speech, call AUD, spread the word to your coworkers, and get ready to use some law. We will do what we can to help.
Q: "Our union is conducting an election for delegates to a convention. They have sent out the ballots and, as in all this union's elections, the members are asked to vote for the total number of positions available. In other words, if there are three positions for trustee, and 10 are running, you HAVE to vote for three or your ballot is rendered "spoiled." This doesn't seen fair to us because invariably the Business Manager will run a lot of his buddies in the election so that he will never lose control. The only source of information we can find is in Robert's Rules of Order which state that no-one can be compelled to vote this way?"
A: Incumbents have long used this trick to retain power. To take your example, say there is an election for three trustees. The ballot lists ten candidates. Say one of them is a reformer and the rest are buddies of the Business Manager. The top three vote-getters will be elected. The ballot requires you to vote for three positions, even if you only support one of the people running. If you don't vote for all three, your ballot is voided. If you vote for three, the votes you cast for the two people you don't want, may end up helping them beat your candidate.
As a matter of policy, unions should not require members to vote for every position. Members should be allowed to vote for the people they want, period. Is it legal for unions to require members to vote for the total number of positions? That depends...
The first thing to do is check the union constitution and bylaws (local and national). If the union constitution requires members to vote for all the positions, and says that improperly marked ballots will be ruled invalid or "spoiled," then you had better follow the rules to make sure your ballot is counted. Unfortunately, in one case, the U.S. Department of Labor (DOL) decided that it was permissible for a union to require members to vote for the total number of positions. If you run into this problem, please contact us. We are interested in seeing this type of election rule challenged.
If the union constitution is silent on the issue, it is probably up to the election committee, or whatever body runs the election, to establish the election rules. Again, follow the rules, so your vote is counted. You can make this issue part of an election complaint; it might end up having to be decided in court, if the union rules against you. Again, call us for advice.
(Robert's Rules of Order Revised (Quill, 1971) does say that a member "cannot be compelled to vote," (VIII:46) but in this case it is not clear that members are being forced to vote, just forced to vote by a certain method.)
Your question points to a basic organizing problem, though. The best way to handle this problem is to organize broadly enough so you have a full slate of candidates. That way you can not be boxed in even by this bad rule. You may not be able to run a full slate the first time out, but it should be a strategic objective from the start.
on union elections
Q: "I have asked for copies of the union constitution and bylaws on at least three separate occasions and to two different union officers. Each time I have been told they'll get back to me, but when I ask them about it again they reply either that they forgot or can't get the information. I can't tell if this is because the union president won't give it to them or they want me to think that that's why. How do I get a copy without their help?"
A: There is more than one way to get the constitution & bylaws if the union officers resist. First, you can ask around, see if a coworker has one (make sure it's up to date). Second, you can use government agencies to enforce your legal right to get a copy of the contract. Third, you can get a group of members together and petition the local to get copies to every member -- or make a motion to that effect at a local meeting. Choose the one that fits your situation.
Here's how to use the government
Click here for The sample letter
Q: "Our rank-and-file website has caused much grief with our Business Manager due to all the attacks he has taken recently. Last week he allegedly told shop stewards on a job that anyone bringing in printed material from our website would be brought up on charges. They would be charged with undermining the union as described in the union constitution. Is this legal? What can be done about it? Please refer me to the section of the act that allows this as protected actions by members of the union."
A: Union members have broad free speech rights in the union. You are free to criticize union officials and policies in any medium, including online. In addition, recent legislation on internet communications adds further protection to speech on web sites. Any attempt by the union to discipline members in retaliation for their free speech, or threats made to that effect, would be illegal. The law that protects your free speech rights in the union is the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), Title I.
If a provision of the union constitution openly restricts free speech, or is used to squelch free speech, that provision would be unenforceable in court.
The first thing you should do is call AUD. The best protection in this case is to let the members know what is happening: put it on the web site, get out a flyer. Free speech is unpopular with the officers? Time for more free speech! Remember, it is best if you act as an organized group of members: a committee or caucus in the union. AUD can help you learn how to do that, and offer advice. You may also need legal help. Contact us: 718-564-1114 .
on union members' democratic rights
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