[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
H.R. 992, H.R. 993 AND H.R. 994
=======================================================================
HEARING
before the
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
of the
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
June 24, 2003
__________
Serial No. 108-22
__________
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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Committee address: http://edworkforce.house.gov
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN A. BOEHNER, Ohio, Chairman
Thomas E. Petri, Wisconsin, Vice George Miller, California
Chairman Dale E. Kildee, Michigan
Cass Ballenger, North Carolina Major R. Owens, New York
Peter Hoekstra, Michigan Donald M. Payne, New Jersey
Howard P. ``Buck'' McKeon, Robert E. Andrews, New Jersey
California Lynn C. Woolsey, California
Michael N. Castle, Delaware Ruben Hinojosa, Texas
Sam Johnson, Texas Carolyn McCarthy, New York
James C. Greenwood, Pennsylvania John F. Tierney, Massachusetts
Charlie Norwood, Georgia Ron Kind, Wisconsin
Fred Upton, Michigan Dennis J. Kucinich, Ohio
Vernon J. Ehlers, Michigan David Wu, Oregon
Jim DeMint, South Carolina Rush D. Holt, New Jersey
Johnny Isakson, Georgia Susan A. Davis, California
Judy Biggert, Illinois Betty McCollum, Minnesota
Todd Russell Platts, Pennsylvania Danny K. Davis, Illinois
Patrick J. Tiberi, Ohio Ed Case, Hawaii
Ric Keller, Florida Raul M. Grijalva, Arizona
Tom Osborne, Nebraska Denise L. Majette, Georgia
Joe Wilson, South Carolina Chris Van Hollen, Maryland
Tom Cole, Oklahoma Tim Ryan, Ohio
Jon C. Porter, Nevada Timothy H. Bishop, New York
John Kline, Minnesota
John R. Carter, Texas
Marilyn N. Musgrave, Colorado
Marsha Blackburn, Tennessee
Phil Gingrey, Georgia
Max Burns, Georgia
Paula Nowakowski, Staff Director
John Lawrence, Minority Staff Director
------
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS
SAM JOHNSON, Texas, Chairman
Jim DeMint, South Carolina, Vice Robert E. Andrews, New Jersey
Chairman Donald M. Payne, New Jersey
John A. Boehner, Ohio Carolyn McCarthy, New York
Cass Ballenger, North Carolina Dale E. Kildee, Michigan
Howard P. ``Buck'' McKeon, John F. Tierney, Massachusetts
California David Wu, Oregon
Todd Russell Platts, Pennsylvania Rush D. Holt, New Jersey
Patrick J. Tiberi, Ohio Betty McCollum, Minnesota
Joe Wilson, South Carolina Ed Case, Hawaii
Tom Cole, Oklahoma Raul M. Grijalva, Arizona
John Kline, Minnesota George Miller, California, ex
John R. Carter, Texas officio
Marilyn N. Musgrave, Colorado
Marsha Blackburn, Tennessee
------
C O N T E N T S
----------
Page
Hearing held on June 24, 2003.................................... 1
Statement of Members:
Andrews, Robert E., Ranking Member, Subcommittee on Employer-
Employee Relations, Committee on Education and the
Workforce.................................................. 5
Johnson, Hon, Sam, Chairman, Subcommittee on Employer-
Employee Relations, Committee on Education and the
Workforce.................................................. 2
Prepared statement of.................................... 3
Statement of Witnesses:
Huebner, Paul, Takoma Park, MD............................... 11
Prepared statement of.................................... 13
O'Brien, Robert F., Esq., O'Brien, Belland and Bushinsky,
Northfield, NJ............................................. 22
Rosenzweig, Paul, Senior Legal Research Fellow, Center for
Legal and Judicial Studies, Heritage Foundation,
Washington, DC............................................. 14
Prepared statement of.................................... 16
Yud, Lary, Deputy Director, Office of Labor-Management
Standards, Employment Standards Administration, U.S.
Department of Labor, Washington, DC........................ 7
Prepared statement of.................................... 9
Response to questions submitted for the record........... 35
Additional materials supplied:
Abrams, Adele L., Esq., on behalf of the Two-Hatters
Coalition, statement submitted for the record.............. 37
Fox, Arthur L., II, Law Offices of Lobel, Novins & Lamont,
Washington, DC, letter submitted for the record............ 58
Union Members: James Lynch, Phillip Lavallee, Chuck Cannon,
Michael Bilello, Robert L. Carlston, Gregg Shotwell, Mike
Griffin, Tom Crofton, Darrell J. Zube, Thomas J. Verdone,
David Johnson, Jackie Fitzgerald, Martin Conlisk, Michael
Livingston, statements submitted for the record............ 39
Union Reporting Rates for Year: 2002 and 2002 Department of
Labor Data for Labor Organization Annual Report Filings,
charts submitted for the record............................ 36
H.R. 992, H.R. 993 AND H.R. 994
----------
Tuesday, June 24, 2003
U.S. House of Representatives
Subcommittee on Employer-Employee Relations
Committee on Education and the Workforce
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 2:11 p.m., in
room 2175, Rayburn House Office Building, Hon. Sam Johnson
[Chairman of the Subcommittee on Employer-Employee Relations,
Committee on Education and the Workforce] presiding.
Present: Representatives Johnson, Ballenger, Tiberi,
Wilson, Kline, Andrews, Tierney, Wu, and McCollum.
Staff present: Kevin Frank, Professional Staff Member;
Parker Hamilton, Communications Coordinator; Jim Paretti,
Professional Staff Member; Deborah Samantar, Committee Clerk/
Intern Coordinator; Stephen Settle, Professional Staff Member;
Kathleen Smith, Professional Staff Member; Tylease Fitzgerald,
Minority Staff Assistant; Margo Hennigan, Minority Legislative
Assistant/Labor; Peter Rutledge, Minority Senior Legislative
Associate/Labor.
Chairman Johnson. Well, as you can see, we are one witness
short, but we are going to go ahead and not waste your time or
ours. Quorum being present, the Subcommittee on Employer-
Employee Relations of the Committee on Education and the
Workforce will come to order.
We are going to hear testimony on union democracy reforms
to the Labor Management Reporting and Disclosure Act, H.R. 992,
The Union Members' Right-to-Know Act, H.R. 993, The Labor-
Management Accountability Act, and H.R. 994, the Union Member
Information Enforcement Act.
Under Committee Rule 12(b), opening statements are limited
to the Chairman and Ranking Minority Member of the
Subcommittee. Therefore, if other Members have statements, they
may be included in the hearing record. With that, I ask
unanimous consent for the hearing record to remain open 14 days
to allow Members' statements and other extraneous material
referenced during the hearing to be submitted in the official
hearing record. Hearing no objection, so ordered.
STATEMENT OF HON. SAM JOHNSON, CHAIRMAN, SUBCOMMITTEE ON
EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE
WORKFORCE
Well, I am glad to see you all this afternoon, and as Yogi
Berra once said, ``It's deja vu all over again.'' I'm sure
that's how some of us feel, sitting here today, as we hold the
first hearing in this Congress to reform the Labor-Management
Reporting and Disclosure Act, which is LMRDA.
It's deja vu, because the bills that have been introduced
to address certain flaws in LMRDA are not new to most Members
on this Subcommittee. More troubling, however, is we have been
here before.
We have heard about the failure of too many unions and
employers to file timely financial disclosure forms. We have
heard about structural flaws in the LMRDA that prevent the
Department of Labor from enforcing the law, and we have heard
about glitches that prevent rank and file union members from
getting timely access to the information to which they are
legally entitled.
Indeed, we have heard ample testimony about how LMRDA is
simply failing to accomplish the goal of union democracy and
fairness. Unfortunately, a little more than a year later, there
is little sign that this has changed, which means that
legislative reforms are needed, more than ever.
Before we get into the substance of these bills and the
testimony before us, I think it's important to discuss what
LMRDA is and why it was created. The cornerstone of union
member rights in America is LMRDA, also referred to as the
Landrum-Griffin Act.
Written by then-Senator John Kennedy, and enacted in 1959,
the LMRDA was intended to guarantee that rank and file union
members have a fully, equal, and democratic voice in union
affairs. It allows for democratic participation by members, and
requires union financial matters to be publicly disclosed. It
also protects workers' rights to free speech and assembly, and
to nominate candidates and vote in union elections. Simply put,
it ensures freedom and justice for all.
It is clear that Congress expected through the passage of
LMRDA to ensure union democracy would be the first line of
defense against union corruption, and that armed with
knowledge, union members would elect leaders who work in their
best interest, and rid themselves of corruption.
Since 1959, the American workforce has changed. However,
LMRDA has not. The erosion of union democracy continues to be a
problem, and should not be taken lightly. A union, after all,
belongs to its members, and the bottom line for any labor
organization should be the will of its membership.
Union members and leaders should respect the law, and the
U.S. Department of Labor, which is responsible for putting
teeth into LMRDA, should aggressively enforce it.
Unfortunately, neither has been the case. Indeed, our own
Committee, just last week, heard extensive testimony about how
union leaders profited and enriched themselves at the expense
of rank and file shareholders and union pension funds in the
ULLICO scandal.
It's not my intent to explore the details of that situation
today, because we would be here all afternoon. But the point is
noting that union members deserve to know, as both a legal and
ethical matter, how their hard-earned union dues are spent by
the union leaders who are supposedly there to represent their
members' interests. That brings us to today's hearing. And
again, I think a little historical perspective is important.
In 2001, my colleagues and I on the Education and Workforce
Committee began to examine how well union financial disclosure
requirements are met and enforced by the Department of Labor.
What the Department reported back to us was less than
impressive.
The Department of Labor data from 2002 shows that 43
percent of unions either file their forms after the deadline or
not at all, both of which are illegal. It doesn't take a rocket
scientist to see that there is a problem when more than one-
third of the unions are breaking the law. Can you imagine what
the IRS would do if one-third of the working Americans didn't
file their tax forms?
It is our responsibility to exam the lack of compliance and
transparency of labor organizations, the lack of information
for thousands of rank and file union members. Let me be clear.
I am not suggesting that we should go after the majority of
law-abiding unions, but shore up loopholes for those one-third
of union members who are not getting what they are entitled to:
fair, accurate, and full disclosure of the facts as required
under law.
Today's hearings will focus on three pieces of legislation
which I have sponsored: H.R. 992, the Union Members' Right-to-
Know Act, which would require unions to inform rank and file
members of their rights guaranteed to them under LMRDA; H.R.
993, the Labor-Management Accountability Act, which would close
an important gap in LMRDA's remedial scheme, and for the first
time, allow the Department of Labor to assess several penalties
against unions and employers who fail to file the financial
disclosure forms required; and H.R. 994, The Union Member
Information Enforcement Act, which would allow the Secretary of
Labor to bring suit on behalf of union members who are denied
access to their basic LMRDA rights but may fear to do
themselves, because of retaliation.
Finally, I expect we will hear discussion of the proposed
reforms of the financial reporting forms required under the
LMRDA, proposals I am pleased to support, and which we heard in
a ULLICO hearing last week would serve to hold labor
organizations to similar standards to which we hold large
public corporations.
I welcome our witnesses here today, and look forward to
their testimony, and hope that yours will arrive very shortly.
With that, I yield to my colleague from New Jersey, a great
American, Mr. Andrews, for an opening statement, whatever you
wish to make.
[The prepared statement of Chairman Johnson follows:]
Statement of Hon. Sam Johnson, Chairman, Subcommittee on Employer-
Employee Relations, Committee on Education and the Workforce
Good afternoon.
As the great Yogi Berra said, ``It's deja vu all over again.''
I'm sure that's how some of us feel sitting here today, as we hold
the first hearing in this Congress to reform the Labor-Management
Reporting and Disclosure Act (LMRDA).
It's deja vu because the bills I have introduced to address certain
flaws in the LMRDA are not new to most of the members on this
Subcommittee.
More troubling, however, is that we've been here before.
We've heard about the failure of too many unions and employers to
file timely financial disclosure forms; we've heard about the
structural flaws in the LMRDA that prevent the Department of Labor from
enforcing the law; and we've heard about the glitches preventing rank-
and-file union members from getting timely access to the information to
which they are legally entitled.
Indeed, we have heard ample testimony about how LMRDA is simply
failing to accomplish the goal of union democracy and fairness.
Unfortunately, a little more than a year later, there is little
sign that this has changed, which means that legislative reforms are
needed more than ever.
Before we get into the substance of these bills and the testimony
before us, I think it's important to discuss what the LMRDA is, and why
it was created.
The cornerstone of union member rights in America is the LMRDA,
also referred to as the Landrum-Griffin Act.
Written by then-Senator John F. Kennedy and enacted in 1959, the
LRMDA was intended to guarantee that rank-and-file union members have a
full, equal, and democratic voice in union affairs.
It allows for democratic participation by members and requires that
union financial matters be publicly disclosed.
It also protects workers' rights to free speech and assembly, and
to nominate candidates and vote in union elections.
Simply put . . . it ensures freedom and justice for all.
It is clear that Congress expected through the passage of the LMRDA
to ensure that union democracy would be the first line of defense
against union corruption, and that, armed with knowledge, union members
would elect leaders who work in their best interests, and rid
themselves of corrupt union officials who serve their own interests.
Since 1959, the American workforce has changed. However, the LMRDA
has not.
The erosion of union democracy continues to be a problem and should
not be taken lightly. A union, after all, belongs to its members, and
the bottom line for any labor organization should be the will of its
membership.
Union leaders should respect the law--and the U.S. Department of
Labor, which is responsible for putting teeth into the LMRDA, should
aggressively enforce it.
Unfortunately, neither has been the case.
Indeed, our own Committee just last week heard extensive testimony
about how union leaders profited and enriched themselves at the expense
of rank-and-file shareholders and union pension funds in the ULLICO
scandal.
Now it's not my intent to explore the details of that situation
today--because we'd be here all afternoon--but the point is worth
noting that union members deserve to know, as both a legal and ethical
matter, how their hard-earned union dues are spent by the union leaders
who are supposedly there to represent their members' interests above
all others.
That brings us to today's hearing, and again, I think some
historical perspective is important. In 2001 my colleagues and I on the
Education and Workforce Committee began to closely examine how well
union financial disclosure requirements are met and enforced by the
Department of Labor.
What the Department reported back to us was less than impressive:
DOL data from 2002 shows that 43 percent of unions either filed their
forms after the deadline or not at all--both of which are illegal.
It doesn't take a rocket scientist to see that there is a problem
when more than one-third of the unions are breaking the law. Can you
imagine what the IRS would do if one-third of working Americans didn't
file their tax forms?
It is our responsibility to examine the lack of compliance and
transparency of labor organizations and the lack of information for
thousands of rank-and-file union members. Let me be clear: I am not
suggesting that we should go after the majority of law-abiding unions,
but shore up loopholes for those one-third of union members who are not
getting what they are entitled to: fair, accurate, and full disclosure
of the facts as required by law.
Today's hearing will focus on three pieces of legislation which I
have sponsored:
H.R. 992, the Union Members Right-to-Know Act, which would require
unions to inform rank-and-file members of their rights guaranteed to
them under the LMRDA;
H.R. 993, the Labor-Management Accountability Act, which would
close an important gap in the LMRDA's remedial scheme, and for the
first time allow the Department of Labor to assess civil penalties
against unions and employers who fail to file the financial disclosure
forms required under the LMRDA; and
H.R. 994, the Union Member Information Enforcement Act, which would
allow the Secretary of Labor to bring suit on behalf of union members
who are denied access to their basic LMRDA rights, but who may fear to
do so themselves for fear of retaliation.
Finally, I expect we'll hear discussion of the proposed reforms of
the financial reporting forms required under the LMRDA--proposals I am
pleased to support and which, as we heard in the ULLICO hearing last
week, would serve to hold labor organizations to similar standards to
which we hold large public corporations under our corporate and
securities laws.
I welcome our witnesses here today and look forward to their
testimony.
______
STATEMENT OF HON. ROBERT E. ANDREWS, RANKING MEMBER,
SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON
EDUCATION AND THE WORKFORCE
Mr. Andrews. Thank you, Mr. Chairman.
Thanks for your customary kindness, and the opportunity to
work with you. I appreciate it very much. I appreciate you very
much.
I would like to welcome back the witnesses that are
returning to us, welcome the new witnesses as well, and we
appreciate hearing what you have to say.
It is true that a lot of what you said last year you are
going to repeat, but I am sure there are some new insights and
new angles that we all can learn from, and we are glad that you
are back.
Let me be clear. There is no disagreement over the basic
principle that unions should be transparent organizations,
which is to say that any individual with a stake in the
business of that union--a member of the union, in particular--
ought to be able to ascertain in a clear, prompt way, what is
going on in his or her union, ought to be able to learn how the
money is being spent, how decisions are being made, and have
all of the information necessary to exercise his or her rights
within a union democracy, so he can run for office, vote for
the people you support, oppose the people you do not support,
and so forth. There is no disagreement about this.
I suspect that there will be continued disagreement over
two issues, although I am interested in hearing what the
witnesses have to say.
The first is the scope and the import of the non-reporting
problem. We, again, hear this assertion about 43 percent late
or not filed. I think, again, this year the record will show
that that is a rather significant exaggeration of the scope of
the problem when one looks at it more carefully.
And second, is the import of the late filing, what it
precludes from being learned by whom, how often, and so forth.
There is a problem, no question about that. The question is
what the scope and the import of the problem is.
The second issue is what is the proper response to the
problem? More specifically, whether the tools that the law
presently gives the Department of Labor, and presently gives
members of unions are adequate to address the problem that
exists, or whether those tools are inadequate.
We would not take the position that it is not a serious
matter for a union not to file a report. We have this in the
law for a reason. These pieces of data, this information,
should be available. There is no disagreement about that.
But before we go off in a direction where we institute a
new bureaucracy with civil fines and civil penalties, and
before, as the administration has done in its executive order,
we go off in a direction of disclosure in incredibly --I think
stupifyingly--specific degrees, we ought to take a look at what
the consequences of that would be.
I am not one who believes in a reflexive answer to public
problems. When our colleagues on the other side bring us a
problem and argue that small businesses overburdened by too
many regulations and too much disclosure, I am not one that
automatically rejects that argument out of hand.
Now I am willing to look at ways that we can help small
businesses spend less in order to do more, which is why I
supported the Portman-Cardin pension legislation that came
through the Committee a few years ago--and will probably come
through again--because that would help small business people
run pension plans better.
I think the same standard, though, ought to apply when it
comes to labor unions. We ought to take a look at whether any
public gain that is realized by increased reporting
requirements or by increased disincentives against filing,
whether any public gain that is realized by that is justified
in terms of the cost that that imposes upon these labor
organizations, many of which are very small, many of which do
not have the employees of any full-time nature, where unions
are run out of the back of someone's truck or in very small
numbered members.
So we want to take a look at the practical impact of what
these proposed changes would be. And with that, Mr. Chairman, I
look forward to hearing from the witnesses.
Chairman Johnson. Thank you, Mr. Andrews. I appreciate
that. And by the way, he is one of the guys that--he and I can
talk about these issues without getting upset, and make
rational decisions, believe it or not.
Mr. Andrews. I am usually the right one, but--
Chairman Johnson. I didn't hear that.
[Laughter.]
Chairman Johnson. I would like to introduce the witnesses
at this time. Mr. Lary Yud has served as deputy director of the
Office of Labor-Management Standards, OLMS, since December
2001. Mr. Yud administers the Secretary of Labor's
responsibilities under the Labor-Management Reporting and
Disclosure Act, and related laws.
Prior to being selected as deputy director, Mr. Yud served
in a number of positions with OLMS, including chief of the
division of enforcement, area administration, Washington, D.C.
and Los Angeles field offices. Mr. Yud began his career with
the Department of Labor as a management intern in 1966. Mr. Yud
received his bachelor of arts and master of business
administration degrees from Northwestern University.
A second witness, Mr. Paul Huebner, is a carpenter, a
member of the union local 1110, United Brotherhood of
Carpenters and Joiners of America, Washington, D.C. He has
worked as a carpenter in the Washington area since 1974, served
in the local's organizing and executive committees, and worked
as financial secretary and treasurer from 1998 to 2001. Mr.
Huebner holds a bachelor's degree from the University of
Maryland at College Park, and has testified before us before.
Thank you for being back.
Mr. Paul Rosenzweig is a senior legal research fellow at
the Heritage Foundation Center for Legal and Judicial Studies.
In addition to time spent in private practice, Mr. Rosenzweig
previously served in government as senior practicing counsel to
the office of the independent counsel as chief investigative
counsel for the House Transportation and Infrastructure
Committee, and in the Justice Department's Environmental Crime
section.
He received his bachelor's degree from Haverford College,
his master's degree from the University of California, San
Diego, and his law degree from the University of Chicago.
They are all well-qualified witnesses. Before the witnesses
begin their testimony, I would like to remind Members we will
ask questions after the entire panel has testified.
In addition, Committee Rule 2 imposes a 5-minute limit on
all questions. And I think all of you have been familiar with
the light system we use here, which--we ask you to try to keep
your opening statement to 5 minutes, if you would.
I thank you for joining us today, and Mr. Yud, you may
begin your testimony.
STATEMENT OF LARY YUD, DEPUTY DIRECTOR, OFFICE OF LABOR-
MANAGEMENT STANDARDS, EMPLOYMENT STANDARDS ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, WASHINGTON, D.C.
Mr. Yud. Well, thank you, Mr. Chairman. Mr. Chairman,
Members of the Subcommittee, I am pleased to appear before the
Committee today to provide a general overview of the Labor-
Management Reporting and Disclosure Act, or LMRDA, which is
centered on two fundamental goals: promoting union democracy,
and ensuring union financial integrity.
The Office of Labor-Management Standards administers and
enforces the provisions of the LMRDA that are within the
jurisdiction of the Department of Labor. These include civil
and criminal provisions that provide standards for union
democracy, and protect the financial integrity of labor
organizations that represent private-sector employees.
OLMS also administers and enforces provisions of the Civil
Service Reform Act of 1978, and the Foreign Service Act of
1980, which applies similar standards to Federal sector unions.
The rights of union members and important union
responsibilities are set forth in five titles of the LMRDA, and
I will just briefly touch on those.
Title I of the LMRDA creates a bill of rights for union
members. Every union member has an equal right to nominate
candidates for a union office, to vote in union elections, and
to attend and participate in union meetings.
There are other rights specified in Title I, but basically,
the Department of Labor has enforcement responsibility only for
one provision of Title I, which deals with the rights of union
members to get copies of collective bargaining agreements.
Title II of the LMRDA requires reports from unions, union
officers and employees, employers, labor relations consultants,
and surety companies. The Department of Labor has authority to
enforce these reporting requirements, and the LMRDA provides
for the public disclosure of the reports.
Title III of the LMRDA deals with trusteeships.
Title IV of the LMRDA deals with union elections, and the
Department of Labor has important enforcement responsibilities
with respect to investigating and taking action on union
members that complain about violations of those provisions.
Finally, Title V of the LMRDA establishes financial
safeguards for unions. It imposes fiduciary responsibilities on
labor union officials, a union officer or employee who
embezzles or otherwise misappropriates union funds or assets,
commits a Federal crime that is punishable by fine or
imprisonment.
In the last five fiscal years, my agency, OLMS, has
conducted approximately 750 election investigations under Title
IV, and supervised 173 union elections. We have completed 75
trusteeship cases, and nearly 2,000 criminal investigations,
primarily involving embezzlement of union assets and related
reporting violations.
During this period, the Department's investigative efforts
resulted in 726 criminal indictments, and 639 convictions, or
approximately 11 convictions per month. In addition to these
enforcement activities, OLMS carries out an extensive program
of compliance assistance, beginning with offers of assistance
to all officers of newly formed unions. We publish a wide
variety of compliance assistance materials, and every one of
our field offices has an active program of compliance
assistance seminars. Much of the focus of this assistance is on
the reporting requirements.
Many observers believe that OLMS does not have sufficient
enforcement tools to protect and inform union members. For
example, a significant number of unions consistently fail to
comply with the statutory requirements that they file annual
financial reports with the Department of Labor. These unions
are either delinquent in providing mandated financial
information, or even worse, they fail to file all together.
In report year 2000, 41 percent of required union filers
were either untimely in filing, or have not filed to date.
Report year 2001 saw a non-compliance rate of over 61 percent,
but that may have been affected by the mailing problems due to
the Anthrax situation. In report year 2002, over 43 percent
either were late or have yet to file to date.
I am sorry to say that past strategies have done little to
improve the timeliness of unions' financial reporting. In an
effort to get unions to file their reports timely, OLMS
routinely takes a number of actions, including sending out
notices, filing reminders, additional notices, and so on, and
eventually we would send a field investigator around to knock
on their door. However, very little of these efforts have
worked well.
If the union does not file the required report after
receiving a delinquency notice, OLMS may ask the Department of
Justice to seek a mandatory injunction, requiring the union to
file. Of course, OLMS notifies the union that it intends to
take this action. Time spent by the lawyers within the
Department of Labor and the Department of Justice reviewing the
file and preparing the necessary papers is wasted, however, if
the union finally files the report before a complaint
requesting injunctive relief is filed in the district court.
The result is that even though the report may be filed
months beyond the due date, there is no penalty for the delay.
To improve compliance, the President's 2004 budget includes
a proposal to authorize OLMS to impose civil money penalties on
unions and others that fail to file their required reports on a
timely basis. The intent is to increase compliance, not
penalize inadvertent lapses in filing reports.
On this issue, the administration supports the concepts
embodied in H.R. 993, The Labor-Management Accountability Act.
The Department is also closely reviewing the Act to determine
whether additional authorities would help facilitate compliance
and protect union members.
The Department appreciates the interest of the Subcommittee
in the LMRDA, and looks forward to working with you on this
issue that is critical to ensuring union democracy and fiscal
integrity. Thank you again for giving me the opportunity to
address this important law, and I would be pleased to answer
your questions.
[The prepared statement of Mr. Yud follows:]
Statement of Lary F. Yud, Deputy Director, Office of Labor-Management
Standards, Employment Standards Administration, U.S. Department of
Labor, Washington, DC
Mr. Chairman and Members of the Subcommittee: I am pleased to
appear before the Committee today to provide a general overview of the
Labor-Management Reporting and Disclosure Act (LMRDA), which is
centered on two fundamental goals--promoting union democracy and
ensuring union financial integrity.
The Office of Labor-Management Standards (OLMS) administers and
enforces the provisions of the LMRDA that are within the jurisdiction
of the Department of Labor. These include civil and criminal provisions
that provide standards for union democracy and protect the financial
integrity of labor organizations that represent private sector
employees. OLMS also administers and enforces provisions of the Civil
Service Reform Act of 1978 and the Foreign Service Act of 1980, which
apply similar standards to federal sector unions.
The rights of union members and important union responsibilities
are set forth in five Titles of the LMRDA.
Title I of the LMRDA creates a ``bill of rights'' for union
members. Every union member has an equal right to nominate candidates
for union office, to vote in union elections, and to attend and
participate in union meetings. Title I provides that unions may impose
assessments and raise dues only by democratic procedures, and contains
safeguards against improper disciplinary action by unions. Title I also
requires that every labor organization inform its members about the
provisions of the LMRDA and establishes the right of members and
employees to copies of collective bargaining agreements.
Title II of the LMRDA requires reports from unions, union officers
and employees, employers, labor relations consultants, and surety
companies. The Department of Labor has authority to enforce these
reporting requirements and the LMRDA provides for the public disclosure
of the reports. In addition, members have the right to examine union
financial records, but only by demonstrating just cause. Although the
statute gives a union member the right to sue in federal court to
enforce that right, neither records nor attorney's fees are available
if the court does not agree that just cause has been demonstrated.
Title III of the LMRDA governs trusteeships imposed by a parent
union over a subordinate body. Under Title III, a parent union may
impose a trusteeship only for certain, legitimate purposes, for
example, to correct financial malpractice or to assure the performance
of a collective bargaining agreement. Title III is enforceable by the
Department of Labor, on the written complaint of a union member.
Title IV of the LMRDA governs the election of union officers. It
requires that elections be held periodically--at least every three
years for local unions, at least every four years for intermediate
bodies, and at least every five years for national and international
unions. It also creates election-related rights and safeguards. For
example, all members in good standing have the right to vote and be
candidates, subject only to reasonable rules uniformly imposed.
Further, subject to certain time limits and a requirement to pursue
internal remedies first, union members may file complaints with the
Department protesting violations of any provision of Title IV. The
Department must investigate such complaints, and take action to remedy
material violations, within 60 days.
Finally, Title V of the LMRDA establishes financial safeguards for
unions. It imposes fiduciary responsibilities on labor union officials.
A union officer or employee who embezzles or otherwise misappropriates
union funds or assets commits a federal crime that is punishable by
fine or imprisonment. Title V establishes bonding requirements for
union officers and employees, and prohibits persons convicted of
certain crimes from holding union office or employment for up to 13
years after conviction or the end of imprisonment.
In the last five fiscal years (FY 1998 to FY 2002), OLMS has:
conducted 752 election investigations and supervised 173 elections;
completed 75 trusteeship cases; and conducted 1,994 criminal
investigations, primarily involving the embezzlement of union assets
and related reporting violations. During this period, the Department's
investigative efforts resulted in 726 criminal indictments and 639
convictions, or approximately 11 convictions per month.
In addition to these enforcement activities, OLMS carries out an
extensive program of compliance assistance, beginning with offers of
assistance in understanding and complying with the law to all officers
of newly formed unions. OLMS publishes a wide variety of compliance
assistance materials,and every OLMS field office has an active program
of compliance assistance seminars. Much of the focus of this assistance
is on the statutory reporting requirements.
Many observers believe that OLMS does not have sufficient
enforcement tools to protect and inform union members. For example, a
significant number of unions consistently fail to comply with the
statutory requirements that they timely file annual reports with DOL
detailing their finances. These unions are either delinquent in
providing mandated financial information, or even worse, they fail to
file altogether. In report year 2000, 41 percent of required union
filers were either untimely in filing their submissions or have not
filed a report to date. Report year 2001 saw a noncompliance rate over
61 percent, due in part to mail delays related to the anthrax
screening. In report year 2002, over 43 percent either were late or
have failed to file to date for that year.
I am sorry to say that past strategies have done little to improve
the timeliness of unions' financial reporting. In an effort to get
unions to timely file their reports, OLMS routinely takes a number of
actions including sending out letters to unions that were delinquent
filers the prior year and asking that they timely submit for the
current year; sending out reminder letters to all unions about 30 days
before their annual financial reports are due; and sending out
delinquency notice letters to those unions that have not timely filed
their current report. However, very little of these efforts have
worked.
If a union does not file the required report after receiving a
delinquency notice, OLMS may ask the Department of Justice to seek a
mandatory injunction requiring the union to file. Of course, OLMS
notifies the union that it intends to take this action. Time spent by
lawyers within the Department of Labor and the Department of Justice
reviewing the file and preparing the necessary papers is wasted,
however, if the union finally files the report before a complaint
requesting injunctive relief is filed in district court. Even though
the report may be filed months beyond the date it is due, the union
will suffer no penalty for the delay. Obviously, there are no
significant disincentives inherent in this system that might deter a
union that is inclined to delay filing until the last possible moment.
Because the resources required to seek injunctive relief may be
expended for nothing, such action is generally taken only if a union
has a history of serious delinquencies. Even then, the additional time
provided while OLMS warns the union of its intent to seek injunctive
relief and lawyers prepare the necessary papers may be enough to allow
the union to act without even incurring the cost of litigation. The end
result is that unions may ignore the statutorily--imposed deadline,
filing the report months after it is due, without consequences.
To improve compliance the President's 2004 Budget includes a
proposal to authorize OLMS to impose civil money penalties on unions
and others that fail to file their required reports on a timely basis.
The intent is to increase compliance, not penalize inadvertent lapses
in filing reports. On this issue the Administration supports the
concepts embodied in H.R. 993, the Labor Management Accountability Act.
The Department is also closely reviewing the Act to determine whether
additional authorities would help facilitate compliance and protect
union members.
The Department of Labor appreciates the interest of the
Subcommittee in the Landrum-Griffin Act and looks forward to working
with you on this issue that is critical to ensuring union democracy and
fiscal integrity. Thank you again for giving me the opportunity to
address this important law and I would be pleased to answer your
questions.
______
Chairman Johnson. Thank you for being with us. That is a
great testimony, and we appreciate it. Mr. Huebner, you may
begin your testimony now.
STATEMENT OF PAUL HUEBNER, TAKOMA PARK, MD
Mr. Huebner. Good afternoon, Mr. Chairman and Members of
the Committee. I want to thank you very much for the
opportunity to speak at this hearing. I am a little nervous, so
if I stumble a bit, please excuse me.
My name is Paul Huebner, and I am a rank-and-file union
carpenter of Carpenters' Local 1110 in Washington, D.C. I
served my local as trustee, as financial secretary, and I am
now serving as one of the local's two elected delegates to the
regional council.
Over the last past several years, I have also networked
with carpenters and other union members around the country. I
am a member of Carpenters for a Democratic Union, and we have
been fortunate to get the assistance of the Association for
Union Democracy.
What I want to say this afternoon is based either on
direct, personal experience, or what I have learned, networking
with others. While my comments here are focused on the three
bills you are considering at the moment, the larger part of my
concern extends beyond these bills to the concrete day-to-day
impact they would have on the working lives of my union
brothers and sisters and myself.
These concerns are also reflected in the written statements
by other union members that have been, and still may be
submitted for inclusion in the record.
The LMRDA is now over 40 years old. From the union member's
perspective, the LMRDA is absolutely critical. It is the last
line of defense in keeping our elected union officials honest
and accountable to us.
The problem is that in a number of key respects, it is not
working in the way in which I think it was originally intended.
If union members would hold their officers accountable to them
in periodic elections, members need to understand that they
enjoy a number of rights as union citizens, and that their
officers have a duty to conduct themselves in accordance with a
number of standards contained in the LMRDA.
Many union members are generally aware that their union
constitution and bylaws give them rights, duties, and
procedures they must uphold and follow. But only a small
fraction of the members are aware of their democratic, civil
rights, and their officers' obligations under the LMRDA.
This is an absolutely central issue today to the members of
my local, who are battling, as I speak, to regain the right to
ratify our own collective bargaining agreement, a right that
seems to be disappearing within the new restructuring climate
of the carpenters' union.
Local 1110 members need to know their rights and the
recourses they can legally expect under the LMRDA. They need to
know there is an LMRDA.
Section 105 says unions are supposed to inform members
about their rights and their officers' responsibilities under
the LMRDA. What have union officers done to comply with that
section? Nothing.
For the past 43 years, since the law was enacted, union
officials have simply ignored the provision. The way the law is
currently written, only union members can sue to enforce an
LMRDA provision. Several years ago, a few machinists, with help
from the Association for Union Democracy, were able to bring a
lawsuit against their union, and win a decision ordering that
union to take concrete steps to comply with 105. I am referring
to the Thomas v. Machinists case.
But how many members of local unions are going to be
willing and able to sue their unions to make them educate all
their members about the LMRDA? Precious few. Few union members
have the resources needed to sue, and very few members feel
they can weather the harassment, intimidation, economic
retaliation and formal disciplinary measures that can be
wielded by union officialdom when they are challenged.
In fact, I appear before you today with some apprehension.
Several weeks ago at our June council delegates meeting, right
after I requested that council delegates be allowed to examine
the bills of the council, it was mentioned by the CEO/EST, as
an aside, that someone had testified before members of
Republican Committee that are not our friends. I presume that
to be a reference to my testimony last year before this
Committee. I understood it as an attempt to intimidate me.
One reason the LMRDA hasn't worked the way it was intended
is because even union officers, who are entrusted with the
responsibility for enforcing many of its provisions, don't know
of its existence. The only way all union members across the
Nation are going to learn about it will be if the Labor
Department tells each and every one of the unions exactly what
they must do to inform their members about the LMRDA, and then
forces them to do so.
That's what I understand H.R. 992, The Union Members'
Right-to-Know, and H.R. 994, The Union Member Information
Enforcement Act, would make possible. It would correct a major
oversight. Congress needs to tell the Labor Department that its
mission is not just to require unions to give their members
some sort of legal notice of the LMRDA, but to educate union
members about its provisions in a meaningful, responsible way.
I am a little less familiar with the rationale underlying
H.R. 993, Labor-Management Accountability Act, but as a former
local financial secretary-treasurer, I am familiar with the
obligations of unions to prepare and file annual LM-2 financial
statements with the Labor Department.
When in office, I prepared and filed them in a timely
manner for my local. I see LM-2 reports not just as paperwork
filed with some government agency, but as an essential
financial information about my union that will prevent both me
and other union members to hold elected officers financially
accountable.
For example, right now, I and many other union members of
local 1110 want to know why our union working dues have doubled
at the same time that our council officer salaries have tripled
without disclosure--or a vote, I might add.
Access to information on union revenues and expenses seem
to me a necessary and fundamental right for union members
seeking to monitor the course of their own organization. If the
SEC can require corporations to submit various filings, why
shouldn't the Labor Department be given some legislative tool
to make union officials file their annual LM-2 reports by their
deadlines. Currently, I understand that the Labor Department
has no such tool. H.R. 992 would simply remedy that oversight.
There was one other thing I wanted to add, and that is that
the current environment has been created by a circumvention of
the law itself, where our union, in particular, has taken an
exculpatory phrase about intermediary organizations, and
entirely reorganized our union, such that the regional council
with 50 delegates can raise our dues--I have a paycheck in my
pocket where I paid $780 worth of dues this year with no vote,
except by 50 delegates who don't know me, my trade, or my
members, and it is done by a small group of officers.
And the ultimate legislative relief that we need is going
to be with this restructuring issue. I hope that this Committee
and the Congress will deal with that at some later date. And I
very much appreciate your valuable time, and your thoughts on
this important issue. Thank you very much.
[The prepared statement of Mr. Huebner follows:]
Statement of Paul Huebner, Takoma Park, MD
Good Afternoon.
Mr. Chairman, members of the committee, I would like to thank you
for the opportunity to speak at this hearing.
My name is Paul Huebner. I am a rank-and-file union member of
Carpenters' Local 1110, in Washington, D.C. I have served my local as
trustee, as financial secretary and I am now serving as one of the
local's two elected delegates to the regional council. Over the past
several years, I have also networked with carpenters and other union
members around the country. I am a member of Carpenters for a
Democratic Union and we have been fortunate to get the assistance of
the Association for Union Democracy. What I want to say this afternoon
is based either on direct, personal experience or on what I have
learned networking with others.
While my comments here are focused on the three bills you are
considering at the moment, the larger part of my concern extends beyond
these bills to the concrete, day-to-day impact they would have on the
working lives of my union brothers and sisters and myself. These
concerns are also reflected in the written statements by other union
members that have been and may still be submitted for inclusion in the
record.
The LMRDA is now over 40 years old. From the union member's
perspective, the LMRDA is absolutely critical. It is the ``last line of
defense'' in keeping our elected union officials honest and accountable
to us. The problem is that in a number of key respects, it is not
working in the way in which I think it was originally intended.
If union members are to hold their officers accountable to them in
periodic elections, members need to understand that they enjoy a number
of rights as ``union citizens,'' and that their officers have a duty to
conduct themselves in accordance with a number of standards contained
in the LMRDA. Many union members are generally aware that their union
constitutions and by-laws give them rights, duties and procedures they
must uphold and follow. Only a small fraction of the members are aware
of their democratic, civil rights and their officers' obligations under
the LMRDA. This is an absolutely, central issue, today, to the members
of my local union, who are now battling, as I speak to regain the right
to ratify their own collective bargaining agreement; a right that seems
to be disappearing within the new ``restructuring'' climate of the
Carpenters' Union. Local 1110 members need to know their rights and the
recourses they can legally expect under the LMRDA. They need to know
there is an LMRDA.
Section 105 says unions are supposed to inform members about their
rights and their officers' responsibilities, under the LMRDA. What have
union officers done to comply with that Section? Nothing. For the past
forty-three years, since the law was enacted, union officials have
simply ignored the provision.
The way the law is currently written, only union members can sue to
enforce an LMRDA provision. Several years ago, a few Machinists, with
help from the Association for Union Democracy, were able to bring a
lawsuit against their union and win a decision ordering that union to
take concrete steps to comply with Section 105. I'm referring to the
Thomas v. Machinist case. But how many members of local unions are
going to be willing and able to sue their unions to make them educate
all of their members about the LMRDA? Precious few.
Few union members have the resources needed to sue. And, very few
members feel they can weather the harassment, intimidation, economic
retaliation and formal disciplinary measures that can to be wielded by
union officialdom when they are challenged. In fact, I appear before
you today, with some apprehension. Several weeks ago at our June
Council Delegates' Meeting, right after I requested that council
delegates be allowed to examine the individual bills of the council, it
was mentioned by the CEO/EST, as an aside, that ``someone,'' had
testified before members of a Republican committee that are not our
friends. I presumed that to be in reference to my testimony last year
before this committee. I understood it as an attempt to intimidate me.
One reason the LMRDA hasn't worked the way it was intended is
because even union officers, who are entrusted with the responsibility
for enforcing many of its provisions, don't know of its existence. The
only way all union members, across this nation, are going to learn
about it will be if the Labor Department tells each and every one of
the unions exactly what they must do to inform their members about the
LMRDA, and then forces them to do so. That's what I understand H.R. 992
(Union Members Right-to-Know) and H.R. 994 (Union Member Information
Enforcement Act) would make possible. They would correct a major
oversight. Congress needs to tell the Labor Department that its mission
is not just to require unions to give their members some sort of legal
notice of the LMRDA, but to educate union members about its provisions
in a meaningful, responsible way.
I am less familiar with the rationale underlying H.R. 993 (Labor
Management Accountability Act). As a former local financial secretary/
treasurer, I am familiar with the obligations of unions to prepare and
file annual LM-2 financial statements with the Labor Department. When
in office, I prepared and filed them in a timely manner for my local. I
see LM-2 reports, not just as paperwork filed with some government
agency, but as essential financial information about my union, that
will permit both me and other union members to hold elected union
officers financially accountable. For example, right now, I and many
other union members of Local 1110, want to know why our union working
dues have doubled at the same time that our council officers' salaries
have tripled (Without disclosure, or a vote, I might add). Access to
information on union revenues and expenses, seems to me, a necessary
and fundamental right for union members seeking to monitor the course
of their own organization.
If the SEC can require corporations to submit various filings, why
shouldn't the Labor Department be given some legislative tool to make
union officials file their annual LM-2 reports by their deadlines.
Currently, I understand that the Labor Department has no such tool.
H.R. 993 would simply remedy that oversight.
That concludes what I have to say. If you have any questions, now
or later, I'd be happy to answer them.
______
Chairman Johnson. Thank you for your testimony, sir. We
appreciate that, as well. Mr. Rosenzweig, you may begin your
testimony.
STATEMENT OF PAUL ROSENZWEIG, SENIOR LEGAL RESEARCH FELLOW,
CENTER FOR LEGAL AND JUDICIAL STUDIES, HERITAGE FOUNDATION,
WASHINGTON, DC
Mr. Rosenzweig. Thank you, Mr. Chairman, for again inviting
me to talk with you today. As I begin all of these I note that,
though I work for the Heritage Foundation, I testify as an
individual, and the Heritage Foundation has no corporate
position on any of these issues.
The humorous part of me wants--well, I see Mr. O'Brien is
here. The humorous part of me was going to ask whether or not
civil penalties might have brought him here sooner, since that
is the question before us, because, clearly, nobody would--
Mr. Andrews. Maybe Amtrak would have brought him here
sooner.
Mr. Rosenzweig. Clearly, nobody would have put him in jail
for failing to show today. But I would like to take seriously
Congressman Andrews's questions about the effectiveness of the
current LMRDA reporting requirements, with a specific focus on
H.R. 993.
And you asked two questions about the scope of the problem,
and whether the costs of the new proposed reinforcement regime
would give us the right sorts of gains. And I thought that,
rather than talk about philosophy and, you know, the concept of
graded punishments, we could really actually use this time to
talk on a more effectiveness goal.
You're right, that combining late filers with non-filers is
putting two different numbers together. To my mind, late filing
is equally a problem, in that it delays--and in many instances,
obscures--the reporting. But the core problem is non-filing.
And in that regard, the number of unions that are non-
filers, according to the latest Labor information, is 14.8
percent for last year, 2002. To give you a scope, that's
approximately 10 times more than the non-filing amongst
individual taxpayers that the IRS reports, at least that I can
pull off their website. And this is all stuff that I found,
just looking through the IRS.gov.
That strikes me as asserting that there is some scope to
the problem, since I think the individual taxpayer compliance
rate gives us a particularly useful baseline of what we can
expect of the average American.
The non-reporting--the non-filing number for large unions,
unions making more than $1 million, that we would hope would be
the group that would be most in compliance, is 3.3 percent,
which is roughly double the individual taxpayer rate. So that
suggests to me that there is some room for improvement, and
that the fact of non-filing is larger, for some reason, in the
union context, than it is in the individual taxpayer context.
By contrast, just, you know, to be fair, over in the
political action committee context, the non-filing rate that
the FEC reported about 3 years ago was 18 percent, which is
about the same as the unions. It has dropped to 15 percent in
the last 3 years, and that is in part, I think, because they
have adopted a new administrative fines program, a kind of
modest fines program that acts through the administrative
process, not even through the civil process that H.R. 993 would
bring forward.
When you ask about whether or not that kind of gain--and I
think 3 percent is an improvement, and it's a brand-new
program, so we will have to see how it takes effect in the FEC
as it goes along--when you ask whether or not that kind of gain
is worth the cost, you start asking questions about cost of
compliance in small unions, particularly.
There are two things about the FEC program that I think
merit the attention of the Committee. One is that the program
expressly contains graded penalties, and they fine smaller PACs
and campaign committees less than they do big ones. That would
be something I would commend to either the Committee in
legislation, or the Department of Labor and Regulation, when
and if this ever became implemented.
But the other thing is that if you review the enforcement
actions that are taken at the FEC, it seems that they are
mostly directed at very modest levels, at very small PACs, and
campaign committees.
I pulled off the list of the most recent group, Witkowski
for Senate, a $4,000 civil penalty for being late. Maximus
Political Action Committee, a $650 penalty for being late. The
City Political Action Committee, $900 for not filing at all.
The Hudson Valley Political Action Committee, $1,300 for not
filing. A Montana for Johnson, $2,000 for not filing.
Mr. Andrews. Not this Johnson.
Mr. Rosenzweig. Oh, no, no. Montana for Johnson. I mean,
unless it's--Keyes 2000, $900--
Chairman Johnson. We don't do that in Texas.
[Laughter.]
Mr. Rosenzweig. Of that list, I mean, the only one I
recognize--and I am not totally with it--is Alan Keyes's name.
The rest of them seem like pretty small organizations. And the
fines are pretty modest. The average fine at the FEC runs about
$1,400 per non-filing or late filing.
And it strikes me that if that proves to be an effective
response, that's a good model. That gives them a new tool that
is useful, where the gains seem to be coming, and the costs, in
terms of--you know, the direct costs are relatively modest, and
I would suspect that the direct cost to the organizations that
are actually complying with the laws are fairly comparable to
the LM-2 reporting requirements.
We can talk more about these. My time has already run out,
but I think it is a good, useful idea to ask that question, and
I think that the comparisons that you can find in other areas
are instructive.
[The prepared statement of Mr. Rosenzweig follows:]
Statement of Paul Rosenzweig, Senior Legal Research Fellow, Center for
Legal and Judicial Studies, The Heritage Foundation, Washington, DC
Good morning Mr. Chairman and Members of the Subcommittee. Thank
you for again giving me the opportunity to testify before you today on
the topic of Union Reporting and Disclosure Requirements and,
particularly, the utility of adding civil penalties to the Labor-
Management Reporting and Disclosure Act (``LMRDA'').
For the record, I am a Senior Legal Research Fellow in the Center
for Legal and Judicial Studies at The Heritage Foundation, an
independent, nonpartisan research and educational organization. I am
also an Adjunct Professor of Law at George Mason University where I
teach Criminal Procedure and an advanced seminar on White Collar and
Corporate Crime. I am a graduate of the University of Chicago Law
School and a former law clerk to Judge Anderson of the U.S. Court of
Appeals for the Eleventh Circuit. For much of the past 15 years I have
served as a prosecutor in the Department of Justice and elsewhere.
During the two years immediately prior to joining The Heritage
Foundation, I was in private practice representing criminal defendants.
I have been at The Heritage Foundation since April 2002.
I should note, at the outset, that I had the pleasure of testifying
regarding H.R. 4054 almost exactly one year ago, when the Subcommittee
was considering that bill during the 107th Congress. While I certainly
enjoy the pleasure of appearing here, I do hope that it will not become
an annual event. As I testified last year, the current proposal in H.R.
993, which is virtually identical to the one we discussed last year,
is, in my judgment, well thought out and deserving of your
consideration. Nothing has changed in the past year to modify my
conclusion in that regard. Therefore, with your permission, I am
constrained to say that the Members of the Subcommittee may find my
testimony somewhat repetitive--I can only hope that familiarity does
not breed boredom.
As the Subcommittee will recognize, my perspective on the proposed
legislation is different than that typically brought to the
Subcommittee. I understand and appreciate the values of labor democracy
and managerial transparency that animate the LMRDA. Certainly knowledge
and information are among the most powerful tools in a democracy and
union members are entitled to information about the activities of the
organization to which they belong--just as the American public is
entitled to information about Congress and shareholders are entitled to
information about a corporation. But whether the particular substance
and form of the reporting requirements of the LMRDA are good policy or
not is a question I am, candidly, not qualified to answer.
The question I can answer, from the perspective of a former
prosecutor and one who writes and teaches regularly on the criminal
law, is the one that is the focus of today's hearing: Assuming that
current (or proposed) LMRDA reporting and disclosure requirements are
appropriate, what is the best means of enforcing those requirements and
ensuring that labor unions and others obliged to report under the law
comply with the law's requirements? That question is both normative and
utilitarian--it asks both what is a just, or proper, method of
enforcement for this type of law and also what method of enforcement
will work most effectively. On both grounds the current structure of
the LMRDA is wanting.
``just desert'' and the concept of criminal punishment
The LMRDA is unusual (and, as far as I can tell, unique) in its
enforcement structure--it authorizes the Secretary of Labor to seek
civil injunctive relief or to refer matters for criminal prosecution
(pursuant to section 209 of the Act, (29 U.S.C. Sec. 439)) but it does
not, presently, contain any provision authorizing the imposition of
civil monetary damages (either in federal court or administratively)
for violations of the Act.
With this structure, the LMRDA is different from virtually every
other regulatory statute. Typically, regulatory statutes have a
graduated enforcement scheme that provides for administrative
enforcement by the regulatory agency, civil enforcement actions in
federal district court, and, for the most egregious offenses, criminal
prosecution. Thus, the Occupational Health and Safety Act provides for
both civil and criminal penalties, as do all of the environmental
statutes, the antitrust laws, and the other regulatory statutes that
have become common in American governance. Indeed, though it is always
difficult to prove a negative, in the time I have had to conduct
research on the question I have found no other regulatory statute with
criminal enforcement provisions that does not also contain civil
enforcement penalty provisions. In other words, the LMRDA is
exceedingly unusual--and frankly, one can offer no rational explanation
for the structure.
As a matter of theory the current structure of the LMRDA is
normatively objectionable. Put most succinctly, government properly
imposes criminal liability only on those who commit acts of misconduct
with bad intent, and not on those merely accused of negligence or
mistake. This is the fundamental moral component of the criminal law--
the ``just deserts'' aspect of punishment--and it is trivialized when
the criminal law is used to address conduct that is not intentionally
wrongful. The criminal law in a free society must be carefully crafted
to target wrongful conduct, and not be used simply to ameliorate
adverse consequences attributable to non-criminal conduct. The public
interest is vindicated not based on successful prosecutions, but on
successful administration of justice. Criminal sentencing should
reflect society's collective judgment about the kind of conduct that
warrants the most severe condemnation, seizure of property, and loss of
liberty and life.
The LMRDA's criminalization of an essentially regulatory scheme is,
in one sense, part of broad pattern diverging from this model of
criminal sanctions. Increasingly, we are seeing across the spectrum of
federal regulatory systems prosecutions for offenses that are better
handled as civil matters. In modern America, as the regulatory state
has grown, the number of such criminal offenses has grown apace. These
types of criminal offenses are different from the classic frauds and
personal wrongs that ought to be the focus of criminal law. This new
type of offense involves the criminalization of conduct that, in most
instances, is not inherently wrongful in the same way that fraud and
bribery are. The growth in this form of regulatory criminal offense is,
as Professor John Coffee has said, the ``technicalization'' of crime.
Consider: In 1999, the ABA Task Force on the Federalization of
Criminal Law noted that there were now more than 3,500 federal criminal
offenses. Those offenses incorporate either directly or by reference
prohibitions contained in more than 10,000 separate regulations.
Remarkably, nobody knows the exact number either of criminal statutes
or criminal regulations. They are so diverse and so widely scattered
throughout the federal code that they are literally uncollectable. I am
told that, when it was recently asked to undertake the project, the
Congressional Research Service said that the task was virtually
impossible. This, too, breeds disrespect for the law and disaffection
from the judicial system: When those who make the laws cannot
themselves identify all the laws they have made, it borders on the
arbitrary and capricious to allow prosecutors to select from among
those laws and to criminalize conduct that, in the eyes of others,
might warrant only civil sanctions.
This trend is exacerbated in the context of the LMRDA. The failure
to timely file a required disclosure report is precisely this sort of
technicalized offense and is inappropriately treated as a crime. The
reporting requirements of the LMRDA, while certainly of great
significance and importance to union democracy and the efficacy of the
Act, are not the sort of requirement for which criminal sanctions are
typically thought necessary. With the exception of situations in which
a union official, for example, willfully and deliberately violates his
known legal duty to report society ought not impose criminal sanctions.
The current LMRDA criminal provisions are not, however, completely
objectionable. In one important sense section 209(a) is consistent with
the general principle of criminal law. It punishes only those who act
willfully. And, as the Second Circuit construed the statute more than
25 years ago, in United States v. Ottley, 509 F.2d 456 (2d Cir. 1975),
an act in violation of the statute is done willfully only if it is done
with a wrongful purpose--that is, if the defendant knew what the law
required and failed to comply with it or was willfully blind to its
requirements.
It is useful to note, parenthetically, that as a practical matter
this standard is difficult for a prosecutor to prove--and deliberately
so. It reflects a judgment (in my view a correct one) that the criminal
sanctions should be rarely imposed and only on those who deliberately
and willfully refuse to conform their conduct to societal norms.
But this does not, of course, exhaust the scope of appropriate
governmental sanctions. Social behavior in a free society is governed
by governmental norms that broadly distinguish between two kinds of
wrongful acts: Crimes, which typically require such elements as
malicious intent and harm, and deal with offenses against the state
rather than merely against an individual; and civil wrongs, which are
torts against persons or property, or violations of regulatory
requirements, which are more loosely defined, typically carry lesser
penalties or no penalties, and are adjudicated under less-rigorous
procedural rules.
In the absence of applicable civil penalties, the LMRDA's structure
leaves the latter category of wrongful conduct unaddressed. Just as it
is inappropriate to criminalize conduct for which there is no
deliberate wrongful act, it is equally inappropriate for the civil law
to ignore the wrongful act and the civil harm that flows from the act
in those situations where the wrongful act is the product of mistake,
accident, neglect of a legal duty or otherwise non-willful conduct.
Imagine a world in which there were only criminal law and no tort
system to redress civil wrong. Surely we would not think that structure
well designed--yet that is precisely how the LMRDA works.
During testimony and hearings last year on H.R. 4054, some
objections to the provision of civil penalties were raised. The most
salient of these were ones offered by Mr. Robert O'Brien: He argued
that the provision of possible civil penalties would discourage
individuals from holding positions of trust withina union. In his view,
the possibility that civil fines might be imposed would deter
individuals from participating in union democracy for fear of being
held liable for an inadvertent mistake and might also require the
development of a new insurance system, akin to director and officer
polices in corporations, that would increase the costs of holding
office. He also argued the imposing civil liability on the union
directly would impose costs on the union and divert resources from
union functions hurting members who have done nothing wrong.
It is fair to say that these concerns are realistic--but it is also
fair to say that they are not a sufficient ground for opposing this
legislation. First, and most prominently, the exact same arguments can
be made for virtually every other entity participating in the American
economic system--including small business practitioners who have
equally limited budgets, and small private partnerships whose members
are equally effected financially by the errors of a few within the
group. Not to mention the far heavier reporting burdens (accompanied by
the threat of civil penalty) that apply to every American taxpayer. The
proposition that union officials should be exempt from the same
enforcement regime that applies to small businesses, taxpayers, and all
other participants in the economy is, in my view little more than a
version of special interest pleading. I know of no normative theory
that suggests that the same enforcement incentives act differently in
the context of unions than in the context of any other economic actor--
to the contrary all economic theory suggests that it does not. Thus,
absent some argument convincingly distinguishing unions from, say,
small businesses, I can see no reason why on the same analysis, those
supporting this position would not also support elimination of civil
tax penalties for individuals or civil fines for small businesses that
fail to report minor housing code violations.
Second, I wonder at the seeming inconsistency inherent in the
assessment of the magnitude of the problem by those opposing civil
penalty provisions. On the one hand, they argue that the current
enforcement system works and there is little need to change it--but if
this is so, then the addition of civil penalties will have little, if
any, effect on union officer recruitment since the current set of
``good practices'' will serve to conclusively insulate officers and
unions from civil liability. On the other hand if the addition of civil
penalties to the statute results in a significant number of new civil
cases that ultimately result in the imposition of significant civil
fines, then the underlying premise of opposition to changes in the
enforcement system--that is, the premise that all is well and no change
is needed--will have been proven demonstrably false. In either case, I
see little normative basis for opposing the use of less severe
sanctions when more severe criminal sanctions already are on the books.
In sum, as a matter of just deserts the current structure of the
LMRDA is simply flawed. It is necessary to recapture the balance
between criminal and civil law by providing an alternate civil sanction
in those situations where enforcement is necessary but criminal
prosecution is simply inappropriate.
effective deterrence
Now, I turn to the second aspect of the inquiry in today's
hearing--the question of effectiveness. As Horace Mann said, ``The
object of punishment is the prevention of evil.'' We might tolerate an
oddly structured enforcement system, however philosophically
objectionable, if it were effective. But--contrary to the seeming
premise I've just identified--it seems to me evident that the present
enforcement regime is not as effective as it ought to be.
In report year 2002, the most recent year for which data are
available from the Department of Labor, 43% of all unions either filed
their LM-2s late or failed to file them. Over 4,000 unions (4,238)
failed to file at all--that is 14.8% of the total number of filers
(29,178). Even if one focuses on only the large unions--that is unions
with receipts greater than $1,000,000--where one would expect
compliance to be more complete, the numbers are still poor. Thirty six
percent file late or not at all, and of that number 3.3% (65 out of
1947) don't file.
Moreover, the problem seems to be getting worse. If, for example,
we look at filing year 2000, the overall late and/or fail to file rate
was 34%. The comparable rate of 43% today is a 26% increase in just two
years.
Imagine if 43% of all corporations failed to file their SEC
disclosure forms timely (or at all). Or if 43% of production plants in
America didn't file their pollution monitoring reports on time. In
those contexts that rate of noncompliance would be a scandal. The only
explanation for this rate of noncompliance that one can posit is that
the absence of a sure and certain enforcement regime causes a failure
in deterrence and thus a lack of incentive to comply.
This is not pure supposition--the limited data available support
the conclusion. Because of their draconian nature, the criminal
sanctions of the Act are rarely utilized. As the GAO reported in 2000,
Department of Justice officials are (appropriately) reluctant to
prosecute cases criminally where reporting violations are the only
basis for the case. An electronic database search reveals approximately
50 cases in the last 43 years prosecuted under section 209 of the Act.
And of these, the vast majority of the reported cases were prosecutions
for knowing false statements on required forms--that is deliberate
willful lies. Typically these frauds were in service a larger criminal
enterprise--they were, for example, used for the purpose of concealing
some other substantive crime (e.g. embezzlement of union funds).
Indeed, my research disclosed only one case--United States v.
Spignola, 464 F.2d 909 (7th Cir. 1972)--involving a pure willful
``failure to file'' case, without any indicia of personal benefit to
the union official or union who failed to file the requisite forms. And
that case resulted in a reversal of the conviction.
Plainly this search may understate the instances of criminal
enforcement of the Act under section 209--not all criminal cases
brought are reported in the electronic databases. But I think it is
fair to say that the criminal enforcement authority of section 209 is
rarely used. And this is understandable--the criminal sanction is the
societal blunderbuss reflecting, as I've already noted, a high degree
of moral opprobrium. Criminal penalties are not appropriate in most
failure to file cases and the Departments of Labor and Justice are
rightly hesitant to seek criminal penalties for such conduct.
But in the absence of alternative civil sanctions, as the GAO
noted, when criminal penalties are not appropriate the Secretary is
reduced to hoping for the voluntary compliance of unions with their
LMRDA reporting obligations. There is no middle ground sanction to be
applied between the blunderbuss of criminal law and the paring knife of
voluntary compliance. In effect, the substantial and serious penalties
attending criminal sanctions make them effectively unusable for the
run-of-the-mill case where a reporting requirement is not met.
comparing regulatory enforcement structures
It is also useful I think to offer some comparisons to other
regulatory agencies on a practical level. So I asked a question--how
does the LMRDA enforcement structure compare with other regulatory
programs? Given the limits of data availability, I chose three
comparisons--the IRS' individual taxpayer program; the FEC's political
committee reporting program; and another program within Labor involving
pension fund ERISA reporting--for comparison. I also chose these
because all three involve areas where there are some large participants
but where there are also a significant number of small participants
(individual taxpayers, small PACs, and small businesses) who would,
presumably, be subject to many of the same incentives and have many of
the same concerns regarding the use of civil enforcement that small
unions might have.
IRS--Here is what my inquiry discovered for tax year 2002 for the
IRS:
Number of individual tax returns filed 130,904,889
Number of Non-filers 1,963,000
Rate of Non-filing 1.5%
[The number of non-filers is taken from the IRS non-filer program
in which the IRS uses information from third parties to create
substitute returns for the purpose of assessing taxes.]
While, admittedly, a somewhat indefinite number, this rough
analysis suggests that the non-filing rate among even the largest
unions is more than twice as large as that for the smallest individual
taxpayers. And if we include (as I believe is a more valid comparison)
all unions, then the non-filing rate is roughly 10 times greater for
unions than for individual taxpayers. In other words Teamster-size
unions are twice as bad at reporting as Ma and Pa Taxpayer, while the
small unions are 10 times as bad.
It is, obviously, almost impossible to be certain why this is so--
far more data would be necessary for a statistically valid regression
analysis. But I found it notable that the mix of civil and criminal
enforcement is vastly different at the IRS than at Labor. In 2002, the
IRS initiated just over 1000 criminal investigations and, ultimately,
just fewer than 500 indictments and informations (472) were returned.
Of these, 144 cases were charges against ``non-filers.'' By contrast,
the IRS assessed civil penalties in just over 18 million cases.
Perhaps of more significance to the question presented in this
legislation, the IRS assessed civil penalties against over 2 million
individual tax filers who were delinquent in their filing (that is,
either late or failed to file altogether). The disparity between the
number of civil and criminal actions is stunning. Though, as I said,
proof of a connection is not conclusively possible on this record, my
understanding of the concepts of deterrence reinforces my instinct that
the significant use of civil sanctions is the driving force behind the
lower rate of non-filing exhibited by the IRS statistics.
FEC--Recent changes at the FEC are also somewhat instructive in
assessing the merits of the proposed legislation. Prior to 2000, the
FEC lacked a significant administrative civil penalty program--to
secure fines for late filing the FEC was obliged to proceed by way
civil complaint. In other words the FEC stood in relation to political
committees that filed late or not at all almost exactly as the
Department of Labor would stand with respect to unions who file LM-2s
if H.R. 993 becomes law. It, in effect, had the civil authority that
H.R. 993 would give Labor. Yet even that modest enforcement mechanism
was found too cumbersome and too significant a drain on FEC resources.
As a consequence, with Congressional authorization, in 2000 the FEC
began an administrative fine program that routinely, and almost
mechanically, imposes civil administrative financial penalties on
campaign committees and PACs (many of whom are quite small) that fail
to file or file their requireddisclosure forms late. The FEC
administrative mechanism is particularly instructive because among the
factors taken into account by the FEC in assessing the civil fine is
the size of the entity whose failure is at issue--political committees
with less than $50,000 in activity are fined as lower rates than larger
organizations. Since the program was initiated in 2000, the FEC has
imposed administrative fines in 602 cases. Fine amounts are modest--the
total amount collected is $838,000, or roughly $1,400 per case.
There is some evidence that this new administrative program has
influenced the timely filing of FEC reports. In 1999-2000, 36,568
reports were filed with 6,684 or 18% late- or non-filings. In 2001-
2002, the first year after the new program went into effect, 34,472
reports were filed with 5,129 or 15% late- or non- filing. According to
the FEC, the number of late or non-filers continues to decline in the
current cycle, though no data is yet available.
ERISA--Under the Employee Retirement Income Security Act (ERISA)
the Department of Labor receives approximately 1.3 million Form 5500
and Form 5500-EZ filings per year. The Department has statutory
authority to assess civil penalties up to $1,000 per day (now $1,100
with inflation adjustment) against plan administrators who fail to file
complete and timely annual reports.
The Employee Benefits Security Administration (EBSA) and its
predecessor agency have used their authority to administratively reduce
penalties in a variety of initiatives designed to provide incentives
for compliance with the filing requirements. These initiatives seem to
have been quite successful. For example, during the Clinton
Administration a March 1992 ``grace'' period resulted in the filing of
40,000 Form 5500 and Form 5500-EZ reports and the collection of
approximately 40 million dollars.
In March of 1995 DOL established the Delinquent Filer Voluntary
Compliance Program (DFVC). This program resulted in approximately 1,000
new filers per month. To promote voluntary compliance this program
administratively reduces fines so that the most a DFVC late-filer is
fined is $4,000. EBSA of course retains the discretion to seek stronger
enforcement for those who it deems worthy of more significant
punishment.
The EBSA experience is not directly applicable to the LM-2 question
before you, as EBSA has the civil authority that the LMRDA enforcement
branch lacks. Still, it seems to me that the EBSA program is evidence
of the converse proposition: that an agency with an enforcement
structure including strong statutory civil fining authority may be
empowered, thereby, to implement a program of lesser fines and
sanctions as an incentive to obtain compliance with filing
requirements. The combination of power to impose a large fine and
administrative ability to impose lesser sanctions appears to provide an
agency with the greatest capacity to craft incentives to insure timely
filing--which, after all, is the true goal
The lack of such authority in the LM-2 filing context is palpable:
With no fear of the blunderbuss that is never used and no other
incentive for voluntary compliance, unions have no reason to act
vigorously to ensure compliance with the LMRDA. The civil sanctions
proposed in H.R. 993 are tools appropriate to the enforcement task and
commensurate with the scope of the regulatory injuries they seek to
address.
h.r. 993
Finally, let me turn to the text of the bill before you. In general
it is a salutary effort to remedy the flaws in the current enforcement
structure of the LMRDA. By giving the Secretary of Labor civil
authority to secure monetary penalties from delinquent or deficient
unions the legislation will give the Secretary an important, indeed,
essential tool for achieving compliance with the reporting requirements
of the Act.
It is highly likely that the imposition of civil penalties will
have a deterrent effect of precisely the sort that is necessary. The
structure for the administrative penalties chosen is both moderate and
measured. The bill requires the Secretary to take into account the
nature of the violations involved; the revenues of the violator; and
the violator's prior enforcement history. Thus, it focuses accurately
on questions of the magnitude of the harm and recidivism that are
commonly understood as the appropriate metrics for calibrating
punishment.
If I could offer one suggestion concerning this bill it would it
would be to explicitly incorporate a graduated civil sanction based
upon the intentional nature or scienter of the conduct in question--
accidental violations or those arising through neglect ought to result
in fines less severe that those arising from gross negligence or
deliberate but non-willful conduct. Perhaps that is what the bill
intends to capture by specifying that the Secretary take account of the
``nature of the violations involved'' but greater clarity on the issue
would be welcome. Such a modification would also address the concerns
of some that penalties for an ``inadvertent mistake'' would potentially
bankrupt a union.
Mr. Chairman, thank you for the opportunity to testify before the
Subcommittee. I look forward to answering any questions you might have.
______
Chairman Johnson. Thank you very much. Since Amtrak was
late, our other witness is from Mr. Andrews's district. Would
you care to introduce him?
Mr. Andrews. I would. I would like to welcome Mr. O'Brien
back to the hearing. Same subject as we had last year. Mr.
O'Brien has extensive experience in representing labor unions,
labor organizations. He has negotiated collective bargaining
agreements, counseled labor unions through both good times and
bad, and I suspect deals with this issues every day of his
practice.
I know him to be a person of not only great insight, but
great integrity, and I welcome him here to the Committee today.
STATEMENT OF ROBERT F. O'BRIEN, ESQ., O'BRIEN, BELLAND, AND
BUSHINSKY, NORTHFIELD, NJ
Mr. O'Brien. We dialoged the last time at some length, I
think, Mr. Johnson. You and I talked about the Landrum-Griffin
Act back in 1959, when Bobby Kennedy and the Select Committee
on Improper Activities in the labor-management field
recommended passage of the statute.
And the last time we talked about it, I think I opined that
it was a statute that was working very, very well, and I would
be loathe to make any amendments to that statute, or change the
statutory scheme in any way, simply because the provisions in
there, particularly the union democracy provisions and other
provisions seem like, as a Federal statute over the last, what,
43 years, have been working fairly well.
A year has elapsed since we last talked together.
Interesting things happening, at least from a local
practitioner's point of view. We are seeing an uptake in the
last 12 months in Labor Department activity, relative to timely
filing of LM reports.
A number of unions we represent have gotten communications
where prior to the last 12 months they have not gotten
communications from the DOL, talking about what's in the LM,
about timely filing of the LMs, and things of that nature.
As the AFL-CIO points out, the problem is somewhat limited,
and the problem seems like it's one that is more proportionate
to smaller unions.
Many of the unions, as we again talked about last year,
many of the unions that we represent are small labor
organizations. Contrary to the idea of monolithic full-time
employees with large salaries, many of the unions that I
represent and that exist in the country are smaller unions with
part-time officers who work for various employers.
What concerns me is the scheme which--the statutory
scheme--which would be put into effect, which would require
that civil penalties be imposed on certain filers of a late or
a non-filing nature.
Again, the problem remains the same as it has been for
many, many years in labor unions, trying to get the very best
people to run for office. I am very concerned that if we pass
legislation which is going to put some more burdens on being a
local union office, or being a local union secretary-treasurer,
that, indeed, we have taken people out of the area of running
for local union office who don't want to have these kinds of
strictures put on them.
I believe the DOL in the last year--and I would be
interested to see their 2002/2003 statistics on late filers and
non-filers. As the Committee knows, there is not that many
international unions anymore. I think we're down to 70 or so.
And as the AFL-CIO has pointed out, of the 30,000 labor unions
that need to file reports, only 5,400 of those have more than
$200,000 in income.
I think that is very, very relevant. We find ourselves
often times counseling local union secretary-treasurers how to
fill out the LM form, what to put in, what to put out, what
needs to be said, what needs not to be said. And as you know,
there is legislation and changes afoot to substantially amend
that LM form.
The question becomes more disclosure is good in many
instances. We have talked about--last year, we talked about the
SEC requirements which now must be personally signed off by a
number of corporate officers.
The question is, however, this is not a publicly--they are
not publicly traded companies, in many instances, they are
small organizations which, essentially, have come into
existence over many, many years, and the paramount idea here is
when the folks passed Landrum-Griffin, when John Kennedy and
the others passed Landrum-Griffin, they put strong, strong
language in that statute that said labor unions should be left
to administer their own affairs as far as statutorily possible.
And they really stressed that labor unions are best left
alone. The legislation they did pass put into effect the LMs,
put into effect and resolved the worst abuses. And the Labor
Department, I think--particularly the agency--the Office of
Labor-Management Standards--charged with enforcing the statute,
has done--actually, even in the last year--a pretty decent job
of making sure the late filers and the non-filers get
corrected.
But to tinker with this statute 40 years out is something
that I think we should best leave it alone. Again, the idea of
not encouraging people to run, putting more statutory schemes
on people who work full-time elsewhere and are part-time union
officers, in the 25,000 labor unions that have less than
$200,000 a year in income is really ill-advised. Thank you for
hearing me.
Chairman Johnson. Thank you. I am glad you made it.
Mr. Rosenzweig, I would like to ask you, you know, last
year you summarized the problem that we are here to address
today as one of being late without an excuse, kind of like kids
going to school and the principal finds they are tardy, they do
not kick them out of school, but they do punish them in some
way. And we have no punishment device. And the one you
suggested is actually what our bill does, in effect.
But I like unions, you know, and I think we ought to
protect them, and especially the smaller ones. So the purpose
of the Department of Labor--and I think all of us in the
Congress--is to make sure that it functions properly.
And your suggestion of an IRS enforcement model, I think,
is a good one. I wonder if you could help us understand those
comparisons a little better.
I might add that, Mr. O'Brien, the small unions are not the
whole problem. The large unions are, too. And as a matter of
fact, just in 2002, there were over 400 small unions--actually
300--large unions, excuse me. The LM-2 form, in other words,
that were not filed.
And I would like to make the distinction that the law says
you file on a certain time. And filing late is not filing on
time. And taxpayers get penalized for that, and there isn't any
reason that, you know, you say everything is working rosy, but
if they are not filing when they are supposed to, it's not
rosy.
Mr. Rosenzweig, would you care to comment on that?
Mr. Rosenzweig. Well, I certainly think your analogy to
children in school has some instruction. I mean, plainly, we do
not kick students out for tardiness.
What that embodies is the sensible realization that the
punishment ought to fit the crime, or the offense, and that is
a principle that we have used in every other regulatory regime
that I am aware of. I hesitate to say there are no others,
because that purports to be comprehensive knowledge. But every
other one of our regulatory regimes has systems that involve
both administrative, civil, and criminal sanctions.
I kind of draw two lessons from that, or two different
things. The first is that I think that the incentive structure
that Mr. O'Brien is talking about, about discouraging union
member participation probably is a realistic one, but it is not
unique to unions. It is--it happens in every regulated
structure, small businesses, large businesses.
I mean, we have certainly seen lots of people bailing out
of director and officer positions after Sarbanes-Oxley for the
very real reason that they now fear going to jail. So there is
absolutely no denying that the incentive structures that you
put in place affect behavior.
But I have yet to hear an argument either from the
economics or from the structure, about why that set of
incentives operates differently in the union environment than
it would anywhere else.
The other--the flip side of that is that when we look at
other areas--and the one that I chose here, particularly, was
the IRS--we see that, in general, there is a heavy reliance on
civil sanctions and administrative sanctions, in preference to
criminal sanctions, for the act of non-filing, for the very
good reason that we recognize that the act of non-filing is a
lot less significant than the act of filing a false report, or
lying, hiding money, stealing.
The IRS brought 144--I think that's the number I cited in
my testimony--criminal prosecutions for non-filing last year,
and took more than 2,000,000 civil and administrative actions
against late, or delinquent, filers who were late or non-
filing. They do not split it up, so I cannot tell. That strikes
me as a hallmark of an effective regime.
And the last point I would make is that to the extent that
you worry about the authority being used to discourage people,
we have seen models where the presence of the authority,
combined with forgiveness, delinquent filer programs and the
such, is what achieves what we're all actually going for, which
is compliance. We want the student to come to school; we don't
want to punish him.
Chairman Johnson. Yes, thank you. Mr. Yud, it is not often
we have the administration here, and I would like you to
comment, if you care to, on his comments.
Mr. Yud. Well, I think we agree in a lot of respects. The
purpose of the LMRDA, as has been mentioned here, was to allow
union members, basically, to govern their unions, to encourage
self-governance, to encourage transparency. And if union
members can't get the information they need in a timely
fashion, then that information is of no use to them.
I mean, the law allows the union currently 90 days from the
close of its fiscal year to file its reports. So there is a 90-
day period built in there. And then as months pass after that,
the information gets, of course, dated, and it becomes much
less useful.
And as I say, we have tried for--we have had 40 years of
experience in trying to get through a variety of means to
encourage and get these reports filed on time. And I have to
tell you that we have not achieved great success.
Chairman Johnson. Thank you, sir. Mr. Andrews?
Mr. Andrews. Thank you. Mr. Yud, last year--am I
pronouncing your name correctly?
Mr. Yud. Yes.
Mr. Andrews. Thank you. Last year, we had the Deputy
Secretary of Labor Findlay testify on this subject. And as we
went through the testimony, we established that for reports
that had to be filed in the year 2001 by March 31st, deadline
of March 31st, of the 30,000 or so filers, by August 15th,
there were 4,025 filers that had not yet filed. So, in other
words, if you take all the unions that should have filed by
March 31, 2001--about 30,000 and some--that by August 15, 2001,
all but 4,025 of them had filed.
Now, this hearing took place in April of 2002. Just to
refresh the timelines again, the reports were due March 31,
2001, the letter that was written to the Committee by the
Secretary was as of August 15th, and the hearing took place in
April of 2002.
In April of 2002, I asked Mr. Findlay how many of those
4,025 unions had filed by April of 2002. He didn't have the
answer at that time, and I asked him if he would supplement the
record by answering that question in writing, which, to my
knowledge, in looking at the record of the hearing, he did not.
I would renew the--I don't expect you to know the answer on
the top of your head--but I renew the request today. Of the
4,025 organizations that were supposed to file in 2001 who had
not filed by August 15, 2001, how many of them have since filed
for 2001? Do you know?
Mr. Yud. You are correct, that I do not have the answer
with me here, Congressman. But do I understand, you are talking
about the labor organizations that had a report --or a fiscal
year ending in 2001, and what was the status as of August 2002?
Mr. Andrews. No, these are reports that were due for the
2001 year as of 3/31/2001.
Mr. Yud. Right.
Mr. Andrews. And we went through this testimony, and Mr.
Findlay's testimony was there were 4,025 delinquent filers as
of August 15th, meaning 8 months or so after the deadline.
I asked him how many of those 4,000 were still delinquent
as of April of 2002. He didn't know, and promised to supplement
the record.
The reason I bring that up is to get to the scope of the
problem again. In your testimony, you--on page four--you say in
the report year 2002, over 43 percent were either late or
failed to file for that year. How many failed to file?
Mr. Yud. I don't have that figure. I would have to look
that up and provide it for the record, sir.
Mr. Andrews. Well, with all due respect, don't you think
that that runs the risk of being a bit misleading? Because what
we found out in 2001--and we can quibble, we can argue over the
importance of a late filing, and I think it does have some
significance--but to lump together, as Mr. Rosenzweig said, to
lump together the late filers with the no filers is kind of
misleading.
What we found out in 2001 was that we were told, I think,
that 42 percent did not file, or were late, but the truth was
that about 14 percent had not filed as of August, about 28
percent had filed late, and the remainder had filed on time. Do
you know what that number is for 2002?
Mr. Yud. I don't think I can provide that right now, sir.
But I would like to respond--
Chairman Johnson. Well, let me interrupt.
Mr. Yud. Because--
Chairman Johnson. Let me interrupt.
Mr. Andrews. Well--
Chairman Johnson. I am going to give you a copy of the
existing numbers. We wrote those percentages in there--that is
2 days old--for 2002.
Mr. Andrews. Well, I would ask the source of this
document--did the Department choose to share it with the
Minority as well as the Majority, or--
Chairman Johnson. I just got it myself, today.
Mr. Andrews. OK. I appreciate the point. Here is the point
that I want to make. We can use statistics to make any point
that we want. And to consistently say that something like over
40 percent are not complying with this law, I think, is a
misleading statement.
What would be more accurate would be to say that a certain
percentage file on time, a certain percentage file tardy, and
then we can have a discussion as to the costs and consequences
of that tardy filing--and I think there are some--and then
another percentage don't file at all.
But it is rather compelling that an administration that
supports this legislation because there is such a non-
compliance problem can't tell us what the non-compliance
problem is. Right?
Mr. Yud. Well, I am looking at figures, I guess, that were
just furnished to you, and I think these figures do provide
some of the answers--
Mr. Andrews. Well, what is the answer to my question about
2001?
Mr. Yud. Well, Congressman Andrews, you use a lot of
numbers, but some of the numbers don't square with what I
understand. First of all--
Mr. Andrews. They are from the Secretary's testimony.
Mr. Yud. Yes, they are, but I don't think you are
interpreting them correctly.
Mr. Andrews. No, they are literally--I can read you the
Secretary's testimony. It is his testimony from 2002.
Mr. Yud. I understand, sir, but again, I would respectfully
disagree with some of the statements you are making. You refer
to 30,000 filers. That is all of the unions that have to file
during a year. All those reports are not due by March 31st the
following year. Some of those reports--
Mr. Andrews. No, these were the ones that were due some
period in the 12 months leading up to that.
Mr. Yud. Well, but what that means is that by August, some
of those might be over a year--
Mr. Andrews. You should quarrel with Secretary Findlay,
since I am using his words and his numbers. I am just curious
as to why it took--it has taken 14 months for the Department to
answer a question I submitted in writing at the last hearing.
Is there a reason for that?
Mr. Yud. Well, Congressman Andrews, I will apologize for
that. As far as I know, we made an effort to respond to every
question that we were asked. And if for some reason--
Mr. Andrews. Now, if you would like to see the record of
the hearing, the Secretary--Mr. Findlay's comments--here is the
entire record, included the appendices submitted after the
hearing. It is not in here.
Mr. Yud. Well, I am sure we would like to correct that and
provide an answer.
Mr. Andrews. When would we get the answer by, Mr. Yud?
Mr. Yud. As soon as I could get it out. Now, I am not
totally in control of getting that answer out, but I would say
to you that I think, you know, if you have a question that--
Chairman Johnson. Can you give us an answer in less than 30
days?
Mr. Yud. Mr. Chairman, I can certainly try--
Mr. Andrews. I assume the Department would have had it in
April of 2002, when we had the hearing. It is not a--
Chairman Johnson. His point is well taken, though, Mr.
Andrews. The times for unions vary around the year, and they
have got 90 after the--
Mr. Andrews. I think Mr. Findlay's testimony accounted for
that. It doesn't account for the fact that it has taken 15
months to answer a question.
Chairman Johnson. Well, this is a point in time right here,
that I just gave you. It is not--you know, so--
Mr. Andrews. Well, I look forward to reading it for the
first time. Thank you.
Chairman Johnson. Well, they are just a bunch of
statistics, but the numbers, I think, are compelling, because
29 percent are late filers. And if you look at that, 1,700 of
them were $200,000 or more, and only 298 are--which is a number
I quoted you a minute ago--are not received at all.
Mr. Andrews. Well, Chairman, not received, what is the date
of this chart? It is as of June 24, 2003?
Chairman Johnson. Yes. I ought to have a date on it; it
does not.
Mr. Andrews. OK.
Chairman Johnson. You want to--
Mr. Andrews. My time is up.
Chairman Johnson. Thank you. The Chair recognizes Mr.
Wilson for 5 minutes.
Mr. Wilson. Thank you, Mr. Chairman, and Mr. Yud, I want to
thank you for working with the Congressman from New Jersey.
I think part of the confusion has to be about the failure
to comply, the 42 percent, the 28 percent late, the 14 percent
that hadn't filed. If there just were compliance--and my
interest is the LM forms themselves. Are they difficult to fill
in?
Mr. Yud. Congressman Wilson, I would say that the forms
themselves are, in my opinion, not particularly difficult.
I mean, for 80 percent of the unions, there is a more or
less simplified report. For unions with 10,000 and less in
receipts, it is basically a front and back of one page, and you
only have to put in four or five total figures of assets,
liabilities, receipts, and disbursements.
So, I would say that the forms--for 80 percent of the
unions that have to file them, the forms are fairly simple. The
LM-2, which is the larger form for the 20 percent that are over
$200,000, is somewhat longer, but I would contend that it's not
a particularly complicated form.
Mr. Wilson. And it has been pointed out that this has been
in place for 40 years. And so could it possibly be that people
not understand they need to fill the form in, or have it filed?
Mr. Yud. Well, I think the great, great majority of union
officials are familiar with the form. We engage in a lot of
compliance assistance, we work with internationals to try to
help them advise their affiliates.
So I would say that, you know, it is certainly possible
that a new union official out there, an isolated minority,
might not immediately know, but they will soon know about it.
Mr. Wilson. And then is there any way that this could be
made enforceable by regulation, rather than additional
legislation?
Mr. Yud. No, sir. I think the statute does not give the
Secretary of Labor authority to impose fines. And my belief is
that it cannot be done without legislation.
Mr. Wilson. And Mr. Huebner, in your testimony, you touched
on something that troubles me a great deal. You mentioned that
when you requested to examine the bills of your council, that
you felt that there was an effort to intimidate, or even
threaten you, and that other of your rank and file brothers
similarly feel harassment, intimidation, economic retaliation,
and formal disciplinary action when they seek to exercise their
rights.
As the sponsor of legislation designed to--which is in
addition to the bills before us today--to address the threats
of union violence, I am very concerned that what we are hearing
here is that union members who try to exercise their democratic
rights are subject to harassment, retaliation, maybe even
threats of violence.
Can you tell us more about what happened to you, and what
you know of what has happened to others? Are we really hearing
that union members are being subject to threats and
intimidation?
Mr. Huebner. First of all, a number of years ago, probably
1998, the recording secretary of our local was passing out
copies of the labor bill of rights in the workplace, and he was
threatened--he was removed from the workplace, and he was also
physically threatened. He subsequently, within a year, left the
union, and is a successful entrepreneur right now. That is one
example.
Another example would be the issue that he and I went
through at the same time. There were approximately five of us
on the executive committee on our local when they started the
restructuring at the district council level before they went to
a four-state council.
Because we would not comply with their wishes to change our
bylaws that gave the financial control to the council over our
$250,000 local, they had us removed as shop stewards, the five
of us, and my income went from $42,000 that year to $17,000 the
next year. Two of the other brothers could not sustain the kind
of economic loss, and left the industry.
In terms of physical intimidation, at that time there was a
business agent, notorious to this day, who did physically
threaten people. He has been subsequently removed, but I
believe that the union now is being run by a more sophisticated
group of individuals.
The reason this came up at the council meeting was the
council bylaws--which I have a copy here--say that they have
to--that the EST--he calls himself the CEO, because he is the
chief executive officer--he is the ruler of the land. He--it
says the EST will submit the bills to the trustees for review,
and they should be submitted to the delegates for approval.
So, I asked to see the bills. I said, ``In 2 years and
eight meetings, we have never seen the bills. I would like to
see the bills.'' ``Well, they are way too cumbersome, they are
as thick as a phone book. They take hours.'' I said, ``I got
time.'' You know?
So then, he said he didn't want to release them because if
they were to go out to the members, that there were people that
were using this information and taking it to--and I quote--
``working with Republican committees who are not our friends.''
To me, it could be no more direct. My fellow delegate is
here, and he was sitting as far as you and I are, and he got
the same impression. This was a definitive reference to my
testimony before the Congress, and I will not yield or bend on
my rights as an American citizen, no matter what they say.
Mr. Wilson. And one final question, Mr. Chairman, and that
is that you indicated concern about your dues being increased
precipitously, and also about the pay for the union officials
increasing at an even greater rate.
Is there any provision for you, as a member, to petition
for a general meeting to review this situation?
Mr. Huebner. Our local union made a written request as per
constitution, for a special meeting with the executive
secretary-treasurer, who negotiated our contract, promised us
continuously we would have the right to vote on it, and then
pulled the rug out from under us on a Saturday morning after
lobbying the people that were on his payroll to vote against
me.
I spoke in Williamsburg and said that Jefferson would be
turning over in his grave when they took the right of
ratification away from our members.
They passed it, and he has, to this date, not replied to
the membership about this call for a special meeting about our
contract.
In terms of executive compensation, the levels of
compensation have never been voted on in council. I was asked
to run, and ran as a delegate, because I know now that this is
where the money is--$15 million strong for 12,000 members with
50 delegates, half of whom are on the payroll of the regional
council, and work directly at the behest of this CEO/EST.
They are so far beyond our control, the absolutely opposite
of what the general present statement to this Committee years
ago was, that it is preposterous. I won't belabor the point too
much, but we can speak volumes to this issue.
Our members are incensed. We have circulated and have
petitions signed by over 500 members out of 700, demanding our
right to ratify. They sit here, coming from work, sacrificing
their time and their money, as do I, to say that they double
our dues--I paid $780 in dues--and this guy makes $166,000 in 9
months. He is untouchable. I am sorry, I don't mean to--
Mr. Wilson. No, well, I think we got the message, and we
appreciate your providing the information.
Chairman Johnson. The gentleman's time has expired. The
Chair recognizes the gentlelady from Minnesota, Ms. McCollum.
Ms. McCollum. Thank you, Mr. Chair. To the gentleman from
the carpenter's local, your statements reflect that of your
carpenter's local 1110 in Washington, D.C., and you're not
speaking on behalf of the carpenters from Minnesota, or
anything, you're just speaking about your local?
Mr. Huebner. I wouldn't presume to speak as directly for
them, though I have met with them often.
Ms. McCollum. I meet with them often.
Mr. Huebner. There is a guy named Tom Crofton who is a
carpenter in Wisconsin.
Ms. McCollum. Sir, I said Minnesota. And you are speaking
of the actions in your local.
Mr. Huebner. No, in terms of--no, I would just beg to
differ with you. I can cite numerous circumstances in Atlanta,
where--
Ms. McCollum. Sir, I asked you if you were speaking on
behalf--I didn't ask you to cite circumstances. You are
speaking on behalf of your--the experiences you directly had in
your local, correct?
Mr. Huebner. And experiences that have been conveyed to
me--
Ms. McCollum. Thank you.
Mr. Huebner.--by other union members.
Ms. McCollum. Thank you. Mr. Chair, I am going to make more
of a comment than I really have a question.
This was really strange. As I was reading through this
testimony--and I did step out of the room for a few minutes,
there is a hearing going on in International Relations, and I
wanted to hear the president, who came all the way from Mali,
Africa--about not timely filings, people not being able to have
their day in court.
Boy, it sounded like a lot of people I work with back in
Minnesota and here in Congress, when dealing with the EPA with
pollution, when dealing with OSHA standards. No timely
investigation, no open reporting, no civil penalties, no
penalties taken.
If this is a model that we are going to be looking at
seriously here, then I think it is a model that I would like to
look at for OSHA, and for the EPA, because what I am hearing
here is the same thing as I have heard in testimony from groups
in environmental hearings and the rest.
So, I want to know if the administration is looking forward
to being as enforcing on corporate polluters as the potential
problem that they think that they might have uncovered with
some of the unions with late filings. Mr. Chair, that is all I
have to say.
Chairman Johnson. Thank you, ma'am, for your comments. The
Chair recognizes Mr. Kline for 5 minutes.
Mr. Kline. Thank you, Mr. Chairman, and thank you,
gentlemen, for being with us today.
I think I would like to--I am new to Congress and to this
Committee, and so I don't have the advantages of previous
Congress's hearings and discussions.
We are looking at a way to give union members more
visibility into the actions of the union, and make sure that
their rights are being protected. And as I understand, what we
are doing here today--and we have three pieces of legislation,
H.R. 992, 993, and 994--and I think the question would be to
Mr. Rosenzweig.
You, obviously, are familiar with these pieces of
legislation. Can you tell us--tell me, help me better
understand--why we need the three pieces, and how that will
better accomplish what we are trying to do here?
Mr. Rosenzweig. Congressman, I am going to focus on 993,
which is the one that I know best about. H.R. 992 and 994 are a
little out of my area of expertise, though I can speak to them
just a bit.
With respect to 993--and I think it's actually a useful
sort of response to the observations of Ms. McCollum --that is
going to be giving the Secretary of Labor tools that the
administrator of EPA already has, in terms of civil
enforcement. It is intended to give the Secretary of Labor
tools that she already has, in terms of enforcing OSHA.
Now, it may be that she doesn't--that they don't use those
tools effectively yet--though my own experience in the
environmental area, for example, is that the instances of non-
filing are less--I confess I looked and couldn't find any
statistics on the EPA website, so I offer that only as an
anecdote, not as any concrete--and perhaps that is a useful
comparison you ought to ask about.
But clearly, the Environmental Protection Agency and OSHA
have a very active civil program. There is an entire section of
the Department of Justice that civilly enforces the law. So
this is giving the Secretary of Labor, in this context, a tool
that the other regulatory agencies all have already.
And to my mind, there is--I have yet to hear a reason why
the same incentive structure would not function as well in this
context as in others. H.R. 992 and 994--well, I think I will
defer to someone else on those who knows them better than I.
Mr. Kline. All right, thank you. Mr. Yud, would you like to
take that? We are looking at three separate pieces of
legislation here, and I am trying to understand why--what we
gain out of the three separate pieces.
Mr. Yud. Well, sir, the administration has only taken a
position with respect to one of those, and that is the same one
Mr. Rosenzweig was talking about, which is the Labor-Management
Accountability Act.
And the President, in the 2004 budget, did include a
proposal to--for civil monetary penalties, so that some effort
and enforcement action could be taken to ensure that the
reports that the Act requires are filed in a timely fashion.
Mr. Kline. OK.
Mr. Yud. I am taking a position with respect to the other
proposals.
Mr. Kline. Well, it is clear to me that Mr. Huebner has a
concern about the members' right to know. Would you like to
address that in 992 and 994?
Mr. Yud. Well, as I said, there is no formal position that
the administration has taken on those particular proposals.
Mr. Kline. No, I meant--I am sorry, I thought I was
shifting my--
Mr. Yud. Oh, I am sorry.
Mr. Kline.--my focus, if you will, to Mr. Huebner. We have
had pretty good responses on 993. Can you talk to 992 and 994
for just a minute?
Mr. Huebner. In terms of 992, informing the members of
their rights, I think that the strength in that one is the
statement that says--and I have a website download, you know,
that's the best I could do--it says to periodically --``labor
organization shall provide such information periodically to all
members in a manner which the Secretary of Labor determines
will promote a fuller understanding.''
I have in my hand a folder that is currently being passed
out by our counsel. And in this folder that's given out to new
members, there is a brief history of the union, there is an
organizational chart, the officers of the council, even five
statements called a bill of rights. But there is not one
reference to the LMRDA.
This is the perfect place for it. Put their rights in here.
Put a copy of the law in here. Put the bylaws in here. We don't
even know the rules. The Secretary could potentially
determine--and I'm not a lawyer, so I don't want to get into
the minutiae of it--the secretary could determine that since
they are to be filed with the Secretary of Labor, they should
also be given out to members.
We present sit here, 4 months after a contract was ratified
by 50 delegates at regional council outside of our control, and
we have no contract. Nobody has even seen it. We don't even
have a contract yet. That is in the law, that they have to do
it. What are we supposed to do? By the time we beat down
Labor's door, they will have typed something off, merged our
local, and gotten rid of me.
Mr. Kline. OK. Thank you very much. And I see my time has
expired, and we are being called to vote. I yield back.
Chairman Johnson. Yes, the gentleman's time has expired. I
propose that we break for a vote and come back, unless you want
to ask a quick question, Mr. Tierney.
Mr. Tierney. Mr. Chairman, I would like to do my 5 minutes,
if I could. I have another Committee meeting going on that I
have been waiting patiently here to get my turn so I could go
to that Committee--
Chairman Johnson. Mr. Tierney, you are recognized.
Mr. Tierney. Thank you very much. I appreciate the
courtesy.
Now, Mr. Yud, back in 1998, Congress asked the Department
to post the LM-2 reports online. In April of 2002, Labor
officials told us that they hope to have those online by June
of that year. My understanding is we are still waiting. Is that
correct?
Mr. Yud. No, sir, Congressman Tierney. Those--there is a
disclosure site, and I think in June--at least since June of
2002--we have been publishing the LM reports on that site.
Mr. Tierney. And are people able to get most of the
information that they need under your new regulations on that
site?
Mr. Yud. I am not sure what you mean by the new
regulations. There are no regulations--I mean, that site is up
and running, and when we get an LM report, we post it on that
site.
So, instead of having to come in for a paper copy, they can
go into that site. And assuming the report has been received,
they can go to that site to view it.
Mr. Tierney. And that has been up since what date, now?
Mr. Yud. June of 2002.
Mr. Tierney. OK.
Mr. Yud. Reports which aren't received, of course, are not
on that site.
Mr. Tierney. That is pretty obvious.
Mr. Yud. Yes, sir.
Mr. Tierney. Thank you for that. Now, back--a while back in
2001, Don Todd, who was then the deputy assistant secretary,
told us that, ``Since few of the recordkeeping violations are
considered intentional, however, the Department uses its audits
and compliance assistance programs to educate union officers
about their recordkeeping obligations, and thereby enhance
compliance. Civil litigation is also available for
unintentional violations of the recordkeeping requirements, and
willful violations are also subject to criminal prosecution.''
Mr. O'Brien, has it been your experience that that
progression is a fairly effective way to approach this problem?
Mr. O'Brien. I think it is, Congressman. I might say this
to you quickly.
The injunctive provisions in Landrum-Griffin allow the
Secretary of Labor to go after a union that doesn't file. They
have injunctive relief already. The labor-management, or the
labor community, is a fairly tight knit one. I, frankly, do not
know of non-filers. And if, indeed, the Secretary of Labor is
interested in making an example out of someone, they simply
need go in and obtain an injunction.
Mr. Tierney. Well, I spent a lot of time on one of my other
Committees dealing with people that were interested in the
Small Business Paper Reduction Act. And I see an analogy here,
whatever. I mean, I don't think we want to burden unions any
more than we want to burden small businesses with this. So the
Internet is one good way to deal with this. The other is to try
and give businesses or unions an opportunity to rectify
something that is unintentional.
So, it seems to make sense to me that the first thing is to
educate them for compliance assistance, and to move on with the
unintentional one, and then to proceed up the line, either with
a fine through a civil action, or if it's a willful action, to
take a criminal action on that.
I am a little troubled with the concept of a department
that is apparently overburdened and unable to do the number of
audits that they need to make these determinations, is now
going to be able to just simply make a fine. You agree with
that point?
Mr. O'Brien. Fines are totally unnecessary. Considering the
tools they already have, particularly injunctions--we're trying
to compel compliance, as Congressman Johnson pointed out, we're
not trying to punish people here.
You can compel compliance with an injunction action which
is already in the statute. You want to make an example out of
somebody who doesn't file year after year, all you need do is
sue them in the Federal district court. You will get their
attention, yet, the Labor Department doesn't seem like it uses
that remedy.
Mr. Tierney. To your knowledge, Mr. O'Brien, is the Labor
Department still having difficulty having the number of people
working with them doing audits to keep up with their work load?
Mr. O'Brien. As you point out, Congressman, they have a
right to randomly look at these unions. The number of
investigators seems like it is less and less actually coming in
to do the investigations, at least in our geographic area.
Mr. Tierney. OK. Well, I don't think I need to belabor
this, Mr. Chairman. It seems to me that we are--I think
everybody wants the members, the rank and file, to have the
information they need. And hopefully, the Internet is going to
move in that direction.
In terms of getting these things filed, it is important to
know how many are willful and how many aren't, and why the
Department of Labor isn't exercising the tools that are
available to it now to get people to file on time and to take
whatever actions are there.
I think giving them more responsibility when they can't
keep up with their current load is an open invitation for some
arbitrary action. I would rather seem them go through the
deliberative process they have to go through now and have a
modicum of fairness, than to assume they're going to be
understaffed and just start slapping fines, willy nilly.
Mr. Andrews. Will the gentleman yield?
Mr. Tierney. I will be happy to.
Mr. Andrews. I just wanted to supplement. The document the
Chairman handed me a few minutes ago about 2002 indicates that
for unions with receipts equal or greater than $1 million a
year, there is a 3.3 percent delinquency rate, which I think
Mr. Rosenzweig made reference to earlier. And for all LM-2s, it
is 5.5 percent.
I would like to ask the Department if they can supplement
later the record by telling us how delinquent each of these
reports is under the not-received-to-date category, how many
days delinquent it is. And I would yield back to Mr. Tierney.
Mr. Tierney. Thank you, Mr. Chairman. I will yield back.
And thank you again for the courtesy.
Chairman Johnson. Thank you. I think there is no further
questions on either side, and I would like to, at this time,
just tell you that the--that we did receive a letter from
Cameron Findlay, Deputy Secretary of Labor, and he presented a
chart with data in it.
Mr. Andrews says it didn't totally answer his question,
so--
Mr. Andrews. If the Chairman would yield?
Chairman Johnson. Yes.
Mr. Andrews. With all due respect, it doesn't answer my
question at all. And I have read the letter, and I appreciate
the effort, but it is not responsive to the question.
Chairman Johnson. Well, but earlier, we indicated there was
no response at all, and there was a response. So, if you would
help us, Mr. Yud, in that regard, I would appreciate it.
Mr. Yud. Thank you, Mr. Chairman.
Chairman Johnson. And I thank the witnesses, all of you,
for being here. We sometimes sound like we are grousing, but we
are not. We are all on the same team. And I thank you for your
valuable time and participation.
If there is no further business, the Committee stands
adjourned.
[Whereupon, at 3:27 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN SAM JOHNSON, FROM DEPUTY
DIRECTOR LARY YUD, ``RESPONSES TO QUESTIONS FROM CONGRESSMAN ANDREWS
AND CONGRESSMAN TIERNEY'', SEPTEMBER 23, 2003
U.S. Department of Labor,
Office of Labor-Management Standards,
Washington, DC, September 23, 2003.
Hon. Sam Johnson,
Chairman, Subcommittee on Employer-Employee Relations, Education and
the Workforce Committee, U.S. House of Representatives
Washington, DC.
Dear Chairman Johnson: Thank you for the opportunity to testify
before the Subcommittee on Employer-Employee Relations on July 24,
2003, to discuss the Department of Labor's enforcement of the Labor
Management Reporting and Disclosure Act of 1959 (LMRDA).
Enclosed for the record are my responses to questions posed by
Subcommittee members at the hearing. Please do not hesitate to contact
me at (202) 693-1265 if you have any further questions or need
additional information.
Sincerely,
Lary Yud,
Deputy Director.
Enclosure.
Responses to Questions From Congressman Andrews and Congressman Tierney
Question from Congressman Andrews: [From the Hearing transcript]
Congressman Andrews: Thank you. Last year, we had the Deputy Secretary
of Labor Findlay testify on this subject. And as we went through the
testimony, we established that for reports that had to be filed in the
year 2001 by March 31st, deadline of March 31st, of the 30,000 or so
filers, by August 15th, there were 4,025 filers that had not yet filed.
* * * * * * *
In April of 2002, I asked Mr. Findlay how many of those 4,025
unions had filed by April of 2002. He didn't have the answer at this
time, and I asked him if he would supplement the record by answering
that question in writing, which, to my knowledge, in looking at the
record of the hearing, he did not.
I would renew this--I don't expect you to know the answer on the
top of your head--but I would renew the request today. Of the 4,025
organizations that were supposed to file in 2001 that had not filed by
August 15, 2001, how many of them have since filed for 2001? Do you
know?
Answer: This question was answered in May 17, 2002 letters from
Deputy Secretary Findlay to Subcommittee Chairmen Congressman Sam
Johnson and Congressman Charles Norwood. That letter contained the
following question and answer:
How many of the 4,025 delinquent filers for FY 2000 have now
filed?
A total of 1,872 unions are still considered delinquent for
FY 2000 reports. At the time of the Department's August 15,
2001 letter, a total of 4,025 filers were considered
delinquent. Many of those unions have since filed reports,
however, the figure has also been adjusted to correct
processing errors. Further, the total number of filers was
understated in the August 15 letter because information for
unions that terminated subsequent to that year was not
included.
I would also note that as of September 10, 2003, 1064 unions are
still considered delinquent for FY 2000 reports.
Questions from Congressman Tierney. Mr. Tierney: Mr. Yud, I
understand that unions currently have the option of filing their LM
forms with the Department of Labor either by paper or on-line through
the Department's website.
Question. Since the on-line filing system became available,
approximately what percentage of unions have switched to that option
and have begun filing their forms electronically?
Answer. Approximately 76% of unions filing Form LM-2 have used the
electronic forms software to complete their FY 2002 reports. To date,
64 electronic signatures have been purchased by union officials and two
unions have filed reports electronically.
Question. What is the average turn around time between the time
unions submit paper forms and the on-line posting of the paper forms?
Answer. The turn-around time for posting copies of paper reports on
the OLMS Website varies based on the volume of reports to be processed
(approximately 66% of all unions have fiscal year ending dates of
December 31 and OLMS, therefore, receives the largest volume of reports
in late March). Currently, OLMS is posting Form LM-2 reports received
during the month of June 2003 on the Website. Prior to posting paper
reports on the OLMS Website, OLMS must prepare the reports to be sent
to an offsite contractor for electronic imaging and keypunching and
conduct a quality control review of the electronic data prior to
posting the report images and data on the Website. Reports that are
submitted to OLMS electronically are posted within three to five days
of receipt by OLMS.
______
SUBMITTED FOR THE RECORD, ``UNION REPORTING RATES FOR YEAR: 2002'', AND
``2002 DEPARTMENT OF LABOR DATA FOR LABOR ORGANIZATION ANNUAL REPORT
FILINGS''
UNION REPORTING RATES FOR YEAR: 2002
----------------------------------------------------------------------------------------------------------------
% Received
Received Late Not Total Late or
Filer Type On Time Filers Received Filers Not to
To Date Date
----------------------------------------------------------------------------------------------------------------
REPORTING RATES FOR ALL UNIONS
LM-2 ($200,000 or more)............................. 3,379 1,713 298 5,390 37.31
LM-3 ($10,000 -$199,999)............................ 6,604 3,867 1,794 12,265 46.16
LM-4 (Less than $10,000)............................ 4,815 2,585 1,939 9,339 48.44
Simplified.......................................... 1,711 266 207 2,184 21.66
-----------------------------------------------------------
Totals........................................ 16,509 8,431 4,238 29,178 43.42
UNIONS WITH RECEIPTS EQUAL OR GREATER THAN $1,000,000
$1,000,000 or More.................................. 1,238 644 65 1,947 36.41
REPORTING RATES FOR UNIONS WITH FISCAL YEAR ENDING IN DECEMBER
LM-2 ($200,000 or more)............................. 2,577 939 261 3,777 31.77
LM-3 ($10,000 -$199,999)............................ 5,236 2,445 1,575 9,256 43.43
LM-4 (Less than $10,000)............................ 2,889 1,514 1,504 5,907 51.09
Simplified.......................................... 335 266 92 693 51.66
-----------------------------------------------------------
Totals........................................ 11,037 5,164 3,432 19,633 43.78
----------------------------------------------------------------------------------------------------------------
2002 DEPARTMENT OF LABOR DATA FOR LABOR ORGANIZATION ANNUAL REPORT FILINGS
[Report Year 2002]
----------------------------------------------------------------------------------------------------------------
% Received
Form Type Received Late Not Total Late or
on Time Filers Received Filers Not at All
----------------------------------------------------------------------------------------------------------------
LM-2................................................ 3,379 1,713 298 5,390 37.31
LM-3................................................ 6,604 3,867 1,794 12,265 46.16
LM-4................................................ 4,815 2,585 1,939 9,339 48.44
Simplified.......................................... 1,711 266 207 2,184 21.66
-----------------------------------------------------------
Total......................................... 16,509 8,431 4,238 29,178 43.42
----------------------------------------------------------------------------------------------------------------
______
SUBMITTED FOR THE RECORD, STATEMENT CONCERNING H.R. 992, 993 AND 994,
SUBMITTED ON BEHALF OF THE ``TWO-HATTERS COALITION'', ADELE L. ABRAMS,
ESQ., JUNE 24, 2003
Chairman Johnson and members of the committee: This statement is
being submitted for the record of the June 24, 2003, hearing on H.R.
992, 993 and 994, various legislation dealing with the rights of union
members and relations between unions and management. We represent the
``Two-Hatters Coalition'' (``THC'' or ``Coalition''). The THC is a
group of men and women who are paid union firefighters in their full-
time jobs, and who volunteer as unpaid firefighters in their local
communities during their days off from work. The members of the
Coalition provide critical emergency services at a time when local fire
departments and paramedic teams are vastly underfunded.
We believe that there is a significant issue concerning the First
Amendment rights of union members to provide volunteer services, which
also has public safety and homeland security implications. Although
this issue is not specifically addressed in your legislation, we hope
that you will consider the need for congressional intervention and
perhaps hold an oversight issue to ensure that the safety and health of
the American public is not sacrificed in order to advance the self-
interests of unions.
As Congress looks for solutions to the crisis in emergency
response, we wish to point out current developments that serve only to
exacerbate this problem. In certain areas including, but not limited
to, the Washington, DC metropolitan area, Rochester, NY, and Michigan,
these ``Two-Hatters'' are being brought up on charges by their unions
because of their unpaid volunteer activities at local volunteer fire
departments (``VFDs'').
In the Washington area, Two-Hatters currently face trial board
charges in Washington, DC, Arlington, VA, Montgomery County, MD, and
other jurisdictions. These Two-Hatters face expulsion from the union
unless they agree to cease their volunteer firefighter activities. The
International Association of Firefighters, and some of its locals, have
deemed volunteer fire departments to be ``rival'' labor organizations.
As the IAFF noted, in correspondence to its members on this issue:
The IAFF Constitution makes it clear that IAFF members can be
subject to charges and internal discipline if they serve as
volunteers.* * * all too often, jurisdictions rely upon the
services of volunteers to undermine the efforts of our own
members to obtain the resources necessary to support a properly
staffed and adequately equipped full time career fire
department. As a union representing the interests of paid
professional fire fighters, we can and must promote the
interests of our members by strongly advocating career fire
departments across North America.\1\
---------------------------------------------------------------------------
\1\ September 20, 2002, letter to IAFF Affiliate Presidents from
Harold A. Schaitberger IAFF General President.
There are economic consequences for the Two-Hatters, regardless of
whether they opt to ``walk the plank'' by leaving the union or
resigning as volunteer firefighters. But,more critically, there are
public safety consequences arising from this attempt to deplete the
ranks of volunteer fire departments in order to protect union
interests.
Local communities depend heavily on volunteer firefighters, and can
ill-afford to create paid firefighter positions to replace those Two-
Hatters who may be forced to withdraw from participation in these VFDs.
Some of the Two-Hatters now being brought before trial boards are the
same individuals who were involved in rescue operations at the Pentagon
and who, as volunteers, provide emergency support to departments in
Prince George's County, MD,\2\ that serve as backup for emergencies on
Capitol Hill and the federal agencies in Washington. Following the
September 11, 2001, events at the World Trade Center, hundreds of
volunteer firefighters and volunteer fire chiefs worked alongside of
and supported career firefighters in New York City. It is incredible
that these same individuals are now being viewed as ``the enemy'' by
their own unions simply because of their volunteer activities.
---------------------------------------------------------------------------
\2\ About 200 volunteer firefighters in Prince George's County, MD,
are ``Two-Hatters'' and, therefore, the ranks would be depleted by this
number of individuals if the firefighter union is successful in forcing
out these individuals under threat of financial sanctions and/or union
expulsion.
---------------------------------------------------------------------------
Today, nearly 50 percent of some VFDs' firefighters are ``Two-
Hatters'' and in most cases, these volunteers serve the VFDs during key
evening and weekend shifts, while paid firefighters work a more regular
weekday schedule. These volunteers are extremely skilled, well-trained
and physically fit.\3\ How quickly such VFDs could find and train
comparable replacement volunteers who are not career firefighters and
who are willing and available to work these less-desirable shifts (much
less find the revenue to fund such positions) is unknown. But, given
our current state of alert, it is not a risk worth taking for our
communities. A selection of recent news reports on this issue can be
found at http://www.twohatters.org. In addition, this issue was also
addressed recently by the House Science Committee, in its June 4, 2003,
hearing concerning H.R. 1118.
---------------------------------------------------------------------------
\3\ The resume of one of the ``Two-Hatters'' who is currently faced
with union trial board charges because of his volunteer firefighter
activities, is attached as an illustration of the qualifications that
will be lost to our communities if such discrimination against Two-
Hatters is permitted to continue.
---------------------------------------------------------------------------
Action to prohibit continuation of volunteer services by Two-
Hatters is occurring across the United States because the International
Association of Firefighters is condoning such action. The rationale is
that if these ``two hatters'' are forced to stop volunteering, more
``paid'' positions will be created by the counties and municipalities.
To fund that, there will be an increase in taxes to pay for the newly
hired firemen and emergency medical staff. But the harsh truth is that
there is no money to create new paid positions. Thus, the end result
will be a reduction in force at volunteer departments and a diminution
of public safety and ability to respond to emergencies. Moreover, those
Two-Hatters who have refused to bow to union pressure face on-the-job
harassment, disparagement, threats--all of which raise concerns about
their own personal safety in the event that they need backup from those
union members who oppose Two-Hatters.
As was noted in a recent Bowie (MD) Blade editorial: ``It is beyond
comprehension why the International Association of Fire Fighters would
severely penalize a member of its union for unselfishly volunteering
his services, during his off work hours from a fire department in
Virginia, to the Bowie Volunteer Fire Department. This draconian action
by the national firefighters union also lays the groundwork for
substantial damage to local firefighter organizations.'' \4\
---------------------------------------------------------------------------
\4\ Bowie Blade editorial, March 27, 2003.
---------------------------------------------------------------------------
The International Association of Fire Chiefs has estimated that
two-thirds of American fire departments do not meet minimum staffing
requirements. We agree. The IAFC has noted that 75,000 new firefighters
are needed to bring these departments into compliance. We agree. We
respectfully suggest that the United States needs more, not fewer,
volunteers to maximize our homeland security efforts. The
discrimination in employment against individuals who are union members
BY their own unions, simply because they elect to answer President
Bush's call to serve their country as volunteers, must end.
The IAFF's war on volunteer firefighters also impermissibly
interferes with these union members' First Amendment rights of Freedom
of Association and should be deemed unconstitutional. Whatever their
full-time job, no one should be adversely treated on-the-job or face
financial penalties because they choose to volunteer their services in
protection of their community.
As a solution to this issue, and in support of strengthening
emergency response teams, we propose that Congress consider legislation
to ensure that persons who volunteer as emergency service providers
will not be subject to adverse employment action as a consequence of
their volunteer activities.
Thank you for your consideration of our concerns.
______
SUBMITTED FOR THE RECORD, WRITTEN STATEMENTS OF UNION MEMBERS: JAMES
LYNCH, PHILIP LAVALLEE, CHUCK CANNON, MICHAEL BILELLO, ROBERT L.
CARLSTON, GREGG SHOTWELL, MIKE GRIFFIN, TOM CROFTON, DARRELL J. ZUBE,
THOMAS J. VERDONE, DAVID JOHNSON, JACKIE FITZGERALD, MARTIN CONLISK,
MICHAEL LIVINGSTON
Statement of James Lynch, Dock Builders Local 1456, New York, NY
I have been a member of Dock builders Local 1456, NYC, NY (United
Brotherhood of Carpenters) for 29 years. I am currently retired.
In New York, Union Carpenters (as in the rest of the United States
and Canada) face many problems. In the past 11 years we have had a
court appointed monitor, a court appointed Investigation and Review
Officer, a Trusteeship by our International Union, and an introduction
to the Brave New World of Corporate Unionism.
The monitor was a New York lawyer charged with identifying and
rooting out corruption. In three plus years he and his staff billed our
District Council several million dollars, removed one business agent
for corruption, and failed to preserve the promised anonymity of
complaining members.
The IRO was a retired Federal judge, appointed as part of a Consent
Decree which settled a RICO suit. He and his staff were paid over
$1,000,000 a year of members money. He served 63 months of what was to
be a 30 month tenure, and he also managed to remove one business agent.
The Trusteeship which under the LMRDA must last no longer than 18
months lasted 43 months. It began when a NONUNION security firm was
paid several million dollars to seize our Council at gunpoint and
maintain a one week siege. During the Trusteeship money Managers were
hired and paid exorbitant fees, while managing to little more than
break even during the best stock market and economic boom in the
nations history, members were virtually stripped of effective
democratic rights, and our leaders became accountable to the UBC and
not the members.
Under the Trusteeship, the Welfare Fund Trustees (headed by General
President Douglas McCarron) declared that our Welfare Fund was nearing
insolvency and retired members must now pay part of their health
Benefit costs. These benefits had been unofficially guaranteed to
retirees and were traditionally considered part of their retirement
package.
A group called MACOUT (a retirees advocacy group, of which I am an
Executive Committee member) was formed and instituted a lawsuit to
regain free health benefits for retirees.
During the course of the suit it was revealed that the Fund was
more than adequately funded. It was also discovered that the actuaries
had ``mistakenly'' undervalued the fund by $7,000,000.
Although they denied the lawsuit had anything do with their
decision, the Trustees restored free medical coverage to all retirees.
This is what our Union has become; an undemocratic, corporate
philosophy minded entity, led by people totally out of touch with
working members; whose members are forced to sue their own Union to
gain what is rightfully theirs.
As long as human beings run unions, the temptation to abuse power
will exist. What Union members need are strong labor laws guaranteeing
democracy. What any proposed change to the LMRDA needs is a focus on
the democratic rights of the rank and file.
However, laws without enforcement are meaningless. Stronger
enforcement, along with the budget and manpower to make it viable are
urgently needed. The Labor Department is woefully understaffed and
under-funded. To effect meaningful change, this issue must be
addressed. Thank you.
Statement of Philip Lavallee, Carpenters Local 225, Atlanta, GA, Vice
President, Carpenters for a Democratic Union International
Currently, the LMRDA does not have enough bite in it for the
changing society of today. The DOL should have more authority to
enforce provisions for the filing of forms as some unions seem to feel
that they are above the law.
Locally, in Atlanta, Ga., Carpenters Local 225 was put in
trusteeship and the law requires that a form LM-15 be filed within 30
days of establishment of a trusteeship. The UBC did not file the form
for almost 60 days. This left a large number of members without a clue
why the trusteeship had been imposed and, with the loss of autonomy,
unable to get answers, and without the means to challenge the
trusteeship. Yet the membership was still responsible for the payment
of dues.
The law must be amended such that union leaders are held
accountable to the membership.
In particular, the LMRDA should be amended to include a requirement
that a parent union demonstrate it to be valid with a preponderance of
evidence either before imposing it, or in the case of an emergency
trusteeship, within 90 days--not 18 months later. Also, the only to
assure a fair hearing would be to have a genuine neutral, such as a DOL
representative, participate in any hearing to determine whether to
impose or continue a trusteeship. This will show rank and file members
that there will be some impartiality on the hearing committee.
And, the elected officers of the local put in trusteeship who have
not had charges filed against them should be reinstated to finish their
term if the term has not expired. After all, they were duly elected by
the membership.
Also, in the Carpenters union, the right to vote on collective
bargaining agreements has been taken away from the rank and file
members. This I feel is a monstrous injustice. We pay dues for a say in
our livelihood and in the workplace. Therefore all collective
bargaining agreements should be voted by the affected members in good
standing in a secret ballot referendum. In turn, any union official who
negotiates or enforces our labor agreements should be elected by the
same process.
I hope you look into these issues and make the necessary changes to
ensure a fairness to all working Americans.
Statement of Chuck Cannon, Retired 50-Year UBC Member, UBC Pile Drivers
Local 34
I write to share some information and my concerns about the UBC.
People whom I refer to as the ``business-unionism partners'' have,
in my opinion, taken over the Carpenters Union to satisfy their own
brand of corporate greed; from an insurance company's plan to increase
its Taft-Hartley plan market share, to satisfying contractors' desires
for cheap skilled workers. They are high-level labor officials,
executives of pension fund administration firms, investment houses,
construction businesses, and financial organizations with
interconnecting interests. They are all employers of building trades
workers and have combined all of their political expertise and power to
dominate union workers.
In the world of Wall Street, taking over a targeted business can
cost hundreds of millions of dollars. The shareholders of the targeted
company are legally entitled to receive fair value for their equity and
they dance all the way to the bank.
Taking over a labor union with billions in assets is a much cheaper
operation. Even though the members are the creators and the rightful
owners of billions of dollars in equity, they don't legally own any
claim to a damn thing. No one has ever converted the value of union
equity into shares of stock or some other form of legal ownership.
Instead of mounting an expensive proxy war, all the wellplaced predator
has to do is to trick the members into political disenfranchisement to
install his own hired managers. The business-union is then
functionally, if not literally, his. As long as he can keep the members
thinking that his acts are concerned with organizing and other
traditional labor concerns, the majority will never wake up to the fact
that the union is a valuable financial asset and has been stolen for
that reason. The piracy is perfectly legal if the members cannot
prevent it.
The predator is almost always a highly-paid union official whose
job it is to protect and represent the members. His method of
usurpation is invariably the same: employ every tricky device possible
to deny the rank-and-file member an effective means of self-defense and
democratic remedy. Unfortunately, labor has a long history of endemic
corruption. Laws that encourage the application of democratic
principles and practices must be supported.
Amendments to the UBC Constitution (similar to those in boldface
text throughout) to enhance democracy in the Carpenters Union were
officially proposed to the 2000 Chicago United Brotherhood of
Carpenters' General Convention. None were adopted.
Title I--Bill of Rights of Union Members
Location in Official Constitution: BOARD OF TRUSTEES
Page #23 Paragraph E Section: 15
Reasons for inclusion to Amendments
To make new provisions for the management and control of the
Headquarters and real estate of the United Brotherhood of Carpenters
and Joiners of America in the City of Washington D.C. and elsewhere.
The intent is to re-structure the Carpenters' Union into a democratic
members' union, by the creation of an Asset Trust under which all
vested members would be direct owners/beneficiaries in their own names
by implication, of the tangible assets of the United Brotherhood of
Carpenters. This is the membership's takeover of the International
Union.
The Asset Trust shall hold all property, real estate, and other
tangible assets for the sole purpose of assigning the advantages,
benefits, and responsibilities of ownership of the assets to the union
members and to their direct control. This amendment would make the
union's members, whose investment of money and labor created the
union's wealth, the true legal owners of their international union's
assets. The value of Carpenter real estate, including a new
headquarters building in Washington D.C., which alone will generate
millions of dollars annually in rent and lease revenues, can be
measured in the billions of dollars.
Original, official text as amended January 1, 1996
E Section 15. The title of the Headquarters and real estate
now held by this United Brotherhood, or which may be hereafter
acquired, shall be vested by proper conveyance in said Board of
Trustees and their successors in office, to be held by said
Board of Trustees in trust for the sole use, benefit and behalf
of this United Brotherhood of Carpenters and Joiners of
America.
(NEW) proposed amended text
E Section 15. The title of the Headquarters and real estate
now held by this United Brotherhood, or which may be hereafter
acquired, shall be vested by proper conveyance in THE UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA BENEFICIAL
REAL ESTATE, PROPERTY AND ASSETS TRUST, a non-profit trust, to
be managed by said Board of Trustees in trust for the sole
purpose of inuring a beneficial interest in all said real
estate, property and other tangible assets to the members of
the United Brotherhood of Carpenters and Joiners of America.
THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA
BENEFICIAL REAL ESTATE, PROPERTY AND ASSETS TRUST (hereafter
referred to as the ``Asset Trust''), is the entity which holds
the common assets of the persons named in the membership rolls
who have been members in good standing for five cumulative
years of the United Brotherhood of Carpenters and Joiners of
America (hereafter referred to as the ``Members''), and who are
in fact, the titular and beneficial owners of the Asset Trust,
by necessary implication. Said Members shall be the vested,
beneficial owners-in-common of all its assets. This beneficial
ownership shall be computed upon the total number of
accumulated years of membership, plus a fraction of any year
exceeding a 0.25 fraction of any partial year of membership.
The ownership rights shall not be voided or otherwise lost by a
lapse in membership subsequent to becoming a vested Member.
There shall be three classes of beneficial ownership: Class A
Members (as defined above), in good standing shall have voting
rights. Class B Owners (Members not in good standing and former
Members of the Carpenters Union), shall have no voting rights.
Class C Successors (those persons who have received a
beneficial interest by bequest or gift), shall have no voting
rights. Each Member shall have the right to bequeath or convey
his/her ownership rights to a Successor. This right of
ownership shall be transferable by bequest or gift only by the
Member and the Owner, and not by any Successor in title;
except, that the Successor may sell his/her interest to the
Asset Trust. The Member, Owner, and Successor may each sell or
encumber by way of loan for consideration, but only to the
Asset Trust. Rights of ownership shall not otherwise be
transferable. Unclaimed and expired rights of ownership shall
revert to the Asset Trust. An account separate from the General
Fund account shall be established in the Asset Trust's name
which shall be the repository of all revenues deriving from
rents, leases, sales, and all receivable due the Asset Trust.
The Asset Trust may receive funds from other United Brotherhood
accounts and resources. However, the Asset Trust accounts and
funds shall not otherwise be co-mingled with any other accounts
or funds of the United Brotherhood of Carpenters and Joiners of
America. The Trustees shall within 60 days of the adoption of
this amendment proceed to put its provisions into effect. The
Trustees shall submit all subsequent transactions which require
a change of title or deed to a Members vote. This vote shall be
decided by a majority union membership vote, by secret ballot.
The Trustees shall engage the services of an independent
auditor to distribute, receive, count, and report on all ballot
votes by the Members on matters which involve the Asset Trust.
(end of E___ Section 15)
The exercise of freedom of speech, or of the right to
publish, or of the right of members to peaceably assemble, or
to form political caucuses or political slates which may
express ideas, positions, or philosophies contrary to official
union policies; shall not be the subject to, or cause for
censorship, or penalties. Further, members shall enjoy the
right to post documents, handbills or other such informational
materials upon union property, in a prominent place which shall
be provided for such purposes.
The affected Rank-and-File members represented by and
subordinate to the contract negotiating authority, whether it
be a Local Union, District Council, State Council, Regional
Council or Provisional Council, shall have the unrestricted
right to ratify all contracts and contract changes by secret
ballot. The right to vote to approve all Bylaws, Bylaw changes,
dues or other monetary assessments by secret ballot shall be
inviolable.
Title II--Reporting Requirements
We are members of a labor union. But our pension plans transform
our unions into much, much more. Pension funds are, in reality, mutual
funds. Money is deposited into an account established for us in our
names to be invested for our benefit at retirement. Union pension fund
participants are denied most of the rights and privileges afforded
regular mutual fund participants, such as monthly or quarterly account
statements, quarterly investment manager's reports, annual reports,
annual stockholder's meetings, and the right to vote directly for
officers and directors of the fund. We are as dispossessed in this
regard as we are unrepresented as union members.
In addition to being shareholders in union mutual funds and being
institutional investors, union pension fund participants are, unknown
to them, also members of a very elite club of merchant bankers. Many
mutual funds are, in fact, merchant banks, or function as merchant
banks through their investments in the real estate markets, venture
capital investments and other money-lending practices.
Our pension fund/merchant banks have introduced a new layer of
complexity into their operations that are the outgrowth of business-
unionism's Private Equity investments. We now have gatekeepers, general
partners, limited partners, and advisors who advise advisors. Pension
fund operations are a daunting challenge for even a financial expert to
clearly understand, and hopeless for the average union member to
understand, yet this is precisely the area that is readily open to
opportunistic pension fund abuse. Congress must guarantee that the sun
shines on this issue and all of its operations.
Title III--Trusteeships
In early 1997 Local 34 received a letter instructing it selected
officials to resign their local union positions and become paid
appointed employees of the RegionalCouncil. Many local unions all over
America must have received similar letters. These messages were the
precursors of a carefully hatched plot to eliminate and transfer the
historical power base of the union to the office of General President
from its business agents and other locally-elected officials. This
action, directed by GP Douglas McCarron, was supposedly based upon
constitutionally, mandated Bylaws. An examination of the Carpenters
constitution discloses no such Bylaws. Using this fictionally
constructed code, McCarron created the Northern California Carpenters
Regional Council (NCCRC) and other councils by fiat. The NCCRC then
invited GP McCarron to intervene and annul all democratic rights held
by the Council's union members and to institute a complete
dictatorship. Pile Drivers Local Union 34 vigorously resisted McCarron
and was placed under a court-approved trusteeship later the same year.
Prior to instituting the trusteeship a hearing was conducted for
the stated purpose to ``determine why Local Union 34 should not be
placed in trusteeship.'' UBC International Representatives strongly
attempted to elicit testimony from members pertaining to knowledge of
malfeasance by officials of Local 34. No member presented testimony
alleging improper conduct.
The International's agents' first attempt to seize our union hall
was thwarted by courageous local officials and members who prevented
their entry into the hall. Had the seizure been successful there is
good reason to believe that the ``books would have been cooked'' to
fraudulently manufacture evidence of malfeasance that the International
sought to find in its fishing expedition during the hearing.
Any new amendments to this section of law should contain due
process language that establishes protection against the possible
abuses mentioned above, such as:
The taking possession of said records by the Trustee or his
deputies shall not occur until said records have been first sealed in a
manner according to civil law, under the observance of a legal Notary
Public, or other similarly recognized Official, who shall witness the
taking possession of said records, and shall deliver to the
representative of the Local Union, District Council, State Council or
Provincial Council a signed receipt for all documents and records
seized. Representatives of the Local Union, District Council, State
Council or Provincial Council being trusteed shall be permitted to be
present when the records are sealed and unsealed, in the presence of a
Notary Public or other similar Official, and may make and take
possession of copies, photographs, or other forms of duplicate records,
for the purpose of protecting the interest of all parties. The General
president or his representative shall bear the expense of this seizure
until the Local Union, District Council, State Council or Provincial
Council is found guilty of violating civil or federal laws or of
violations of the Constitution of the United Brotherhood; upon the
establishment of guilt, the Trustee may recover the costs from the
appropriate source(s).
The presumption of validity of a trusteeship during the period of
eighteen months from the date of its establishment shall not apply to
any trusteeship established in whole or in part to directly enforce,
compel, or accomplish a merger, affiliation, or takeover of the labor
organization under trusteeship with or by another labor organization
unless such organizational change has been approved in a secret ballot
vote by the members of the trusteed labor organization. If a
trusteeship is established for such purposes without the approval of
the membership, it shall be presumed invalid in any proceeding
challenging the trusteeship and its discontinuance shall be decreed
unless the labor organization imposing trusteeship shall show by clear
and convincing evidence that the trusteeship is necessary for a purpose
allowable under section 462 [29 USC:462] of Title III.
Title IV--Elections
McCarron's disenfranchisement of union members' voting rights
through the gimmick of transferring power to regional councils from
local union members, is a deft piece of smoke and mirror magic
calculated to fool members and to provide a plausible excuse for
Department of Labor complicity. But, thanks to the Harrington vs. Chao
(DOL) case, it may not work according to plan and may force the DOL to
adhere to its own precedents.
Has the U.S. Department of Labor (DOL) become a covert player in an
endeavor to deregulate laws protecting union democracy that prevent
labor union privatization? Is the DOL a knowing participant carrying
out undeclared policies or an unwitting dupe involved through
McCarron's political connections? Either way, the DOL's original
finding for the UBC International can be construed as deregulation of
the laws protecting the democratic rights of union members.
Harrington vs. UBC http://laws.findlaw.com/1st/1011577.html:
``Thomas Harrington, a member of the United Brotherhood of Carpenters
and Joiners of America, alleges that the functions and purposes
traditionally accorded to local unions in the New England Region of the
UBC are now served by the New England Regional Council. That Council,
he says, must be treated as a local union and not as an intermediary
body. Consequently, Harrington argues, the officers of that Council
must be elected in the manner that the LMRDA prescribes for local
unions, that is, by direct election by secret ballot among the union
members rather than by vote of delegates who are elected from the local
unions, as the UBC has chosen to do for the Council. Id. ? 481(b), (d)
(1994). Harrington filed a complaint with the Secretary of Labor asking
her to require the Council to hold a new election as a local union. The
Secretary declined for reasons stated in a brief Statement of Reasons.
``Harrington sued under the LMRDA. On motion by the Secretary, the
district court dismissed his suit. See Harrington v. Herman, 138F.
Supp. 2d 232 (D. Mass. 2001). Because the Statement of Reasons is
insufficient to permit meaningful judicial review, we reverse the
district court, vacate the Secretary's Statement of Reasons and remand
the case to the district court with instructionsto remand to the
Secretary. We do not now decide whether any refusal by the Secretary to
bring suit as sought by Harrington would be arbitrary or capricious.''
In reversing and vacating the DOL's and the lower court's decision
and remanding it back to the DOL, Judge Lynch writes for the majority:
``We are confronted here with a different problem than was faced in
Bachowski, created by what appears to be an inconsistency between the
Secretary's approach and her regulation and prior decisions, which may
represent an about-face by the Secretary. And, ``The Secretary denies
there has been any change in interpretation or policy, but it is far
from evident that this is so, and the Statement of Reasons does not
adequately address this topic.'' In other words, Judge Lynch is saying,
What's going on here?
In fact, Judge Torruella for the minority, in stronger language,
concurs, ``we should set aside her decision as `arbitrary and
capricious' '' and, ``the secretary has stated her present
interpretation of the Act with reasonable clarity and her present
interpretation does not gibe with the readily discernible past policy
and practice.''
He also says, ``Since my view does not command a majority of this
panel, I must await, with morbid curiosity, a persuasive clarification
of the reasons for the Secretary's decision that could not be
articulated in the original Statement of Reasons, the Secretary's
thirty-one page brief, or the fifteen page submission of the amicus
union.''
I would like to think that the Harringtons case will reverse the
UBC's attempted end-run around the LMRDA. However, I doubt that it will
succeed without Congressional intervention. Union members simply must
be on guard against other attempts, and further must actively lobby for
the direct increased oversight, expansion of regulation and enforcement
by the DOL of the laws pertaining to union democracy.
All union labor organizations, including International Unions,
State or Provincial Councils, Regional Councils, District Councils, and
Local Unions, shall elect their officers by direct secret ballot vote.
(One person, one vote.)
Title V--Safeguards For Labor Organizations (Pension Funds)
In 1959, when the Labor Management Reporting and Disclosure Act
became law, only a few financial visionaries might have conceived of
labor unions becoming merchant banks. Very few union members know what
a merchant bank is and they are presently unaware of the tremendous
potential of their pension funds. Even though the term business-
unionism is increasingly being used when describing restructuring and
changes in labor organizations, most of us still don't understand what
it is.
What is business-unionism?
Leo Gerard, International President, United Steelworkers of America
states in the foreword of WORKING CAPITAL: The Power of Labor's
Pensions. ``The use of worker's capital is one of the key challenges
facing the labor movement today. Our deferred wages underpin capital
markets in the United States and around the world. Although we have
paper ownership of $7 trillion of deferred wages in the form of U.S.
pension fund assets, this fact has not altered financial markets in any
significant way. All too often, investments made with our savings yield
only short-term gains at the expense of working Americans and their
families. Destructive investment practices that rely on layoffs,
mergers and acquisitions, plant closures, and off-shore job flight can
create quick profits and short-term stock price increases, but over
time these practices erode America's wealth. The challenge for labor is
to find ways that align workers' savings with workers' values. We need
to invest our deferred wages in companies that provide good jobs in
stable, strong communities. We want to reward companies that value all
stake-holders in the enterprise, not just their shareholders. Our
capital is patient and long term, and our challenge is to develop a
capital strategy that moves our savings beyond the quick saccharine
highs of destructive corporate behavior. . . .''
http://www.heartlandnetwork.org/links.htm (contains chapters of
Working Capital) Chapter [V] page 93 ``Building On Success Labor
Friendly Investment Vehicles and the Power of Private Equity'' by
Michael Calabrese: a series of papers presented by scholars and
academics on the subject of ``creating conceptual, financial, and
educational tools for capital strategies that will advance labor's
agenda in the twenty-first century.'' The book makes the case for and
describes in essence what business-unionism is, in relation to labor's
pension fund investments, the financial markets and the expected social
benefits.
However, the book does not expound on the inevitable conflicts of
interest and potential abuses that are inherent in the developing
partnerships. Working Capital also does not illuminate the obvious,
that the failure of labor's advocacy for union jobs has led to an
attempt to buy, through the lending of pension funds to employers, what
it could not obtain through the diminished status of the unions.
The creative uses of Private Equity and Economically Targeted
Investments (ETIs) as sources of union jobs, pose the risk of reliance
on their uses as acceptable adjuncts of or substitutes for traditional
organizing efforts. The business partners attempt to create an illusion
in the minds of members that the pension fund fiduciaries and
gatekeepers who manage the investments are doing the members a great
service, and maybe some are. But, in reality, pension fund management
and gate-keeping are very lucrative businesses beyond the revenue
earned from management fees. Some pension funds' fiduciary-managers
wear multiple hats, giving rise to the potential for conflict of
interest, corruption and possibly illegal abuses. Testimony to this
fact can be gleaned from the Enron and ULLICO/Global Crossing scandals
that are referred to in theCommittee on Education and the Workforce's
own introduction to ``Suggested Reforms to Title II of the LMRDA'' by
Phillip B. Wilson, Esq.
Ralph Nader asks in an article in Business Week, ``Is Wall Street
Corrupt?'' Inside, the reporters showed the answer to be ``yes, yes,
yes!''
The business-unionism concept establishes an alarmingly attractive
and friendly environment for the propagation of corrupt abuses and
corporate greed. If Mr. Gerard's vision for ethical investing of
labor's assets is to stand a chance of succeeding, vigorous regulation
and oversight of all forms of pension fund investments is necessary.
LMRDA must be amended and strengthened to take into account
institutions and practices that were not previously anticipated.
Provisions must be enacted that guarantee a paper trail traceable to
every entity that is involved in the flow of assets, identifying the
owners of any assets produced through use of the funds. This
information must be accessible to any person who wants to research the
investment trail.
There is a correlation between the easing in 1994 of ERISA rules,
the establishment of pension investment funds dedicated to Private
Equity and ETI investments, the undemocratic takeover and restructuring
of the Carpenters Union, and to ULLICO and its investments. We live in
an age where deregulation and privatization are capitalist mantras, a
panacea for all that ails world economies. With membership in American
unions in a free-fall, one must suspect that privatization of unions is
on somebody's mind, not far behind Social Security.
The ex-President of the AFL-CIO, Robert Georgine, and the business
interests of the company that he now heads, ULLICO, formerly Union
Labor Life Insurance Company, have vital interests in maintaining the
continuance of pension funds. If the decline in union membership is
threatening to the vitality of the AFL-CIO, then the membership decline
must really unsettle executives whose businesses are built upon an
organized union member base. They could be expected to employ all of
the usual business strategies to turn their situation around.
ULLICO has been maneuvering for a number of years to increase its
share of the Taft-Hartley plan market. Some sources estimate its
current share at \1/3\ or more of the Taft-Hartley plan market (*1999
Best's Insurance Reports--Life/Health; and 1999 Best's Insurance
Reports--Property--Casualty).
McCarron has been and may still be a member of ULLICO's board as
well as the boards of Perini Corp (Ron Tutor), and PB Capital (Richard
Blum). To suspect the exercise of its influence and concomitant
conflict of interest in UBC politics is reasonable. The company may
possibly have been a helping architect of the 1994 ERISA prudent
investment rule changes and the Carpenters Union's authoritarian
takeover by McCarron. If McCarron is the horse, could ULLICO be a
rider? If it is, it's not bragging about it, but it certainly has
expertise and some urgent motives. McCarron's Carpenter Union takeover
and similar takeovers of other unions could also be ULLICO's ticket to
a much greater share of the Taft-Hartley plan market.
Restructuring the union will concentrate diverse Carpenter pension
funds into fewer, but bigger, investment funds sponsored by Regional or
Super-Regional Councils, that under McCarron's control someday may
become one big megafund. The many and diverse northeastern states'
Carpenter pension funds now are reportedly being coalesced into fewer,
larger units. Bigger investment units may be desirable, but the methods
being used to accomplish the mergers gives rise to a concern for their
safety and future security.
Since the 2000 Chicago Carpenters' General Convention, rank-and-
filers have narrowly won back two Regional Councils. But their control
over the Councils is indirect, i.e., through their elected delegates
who may eventually become, yet again, politically and financially
beholden to the new leadership which, without democratic accountability
checks, may drift into an autocratic state. Other Carpenter locals have
been placed in trusteeship because of their opposition to McCarron and
his actions. It is imperative that labor law is amended to favor the
growth of union democracy and that rank-and-file union members are
provided with an effective means of defense against the potential for
business-unionism abuses and Wall Street corruption.
Statement of Michael Bilello, Carpenters Local 157, New York, NY
My name is Michael Bilello, I am a member of Carpenters Local 157,
in New York City. Local 157 is part of the New York District Council of
Carpenters. The following is one example of why changes to the LMRDA
are needed.
The New York District Council of Carpenters was put into
trusteeship in June of 1996 by the United Brotherhood of Carpenters and
Joiners of America (UBC). The trusteeship was lifted in January of
2000. When the UBC pulled out, they had put in place uniform bylaws to
govern the New York District Council, as well as other councils around
the country.
One section of the New York District Council Bylaws relevant to the
LMRDA is Section 21C: ``The Council may establish monthly dues or
increase working dues payable to the Council by a majority vote of the
Delegates voting at a Special Convention of the Council held upon not
less than 30 days written notice to the principle office of each Local
Union.''
This language was written into the Bylaws to impose monetary
assessments on the membership, without a rank and file vote, while
supposedly satisfying the requirements of Section 101(a)(3)(B)(i) of
the LMRDA. The so-called ``special convention'' was merely a regular
monthly meeting of delegates with the exception of a letter that was
sent to each delegate, titling the meeting a ``special convention'' and
informing them that a vote will be taken to impose the assessment.
Anyone familiar with the Carpenters Union knows the term
``convention'' refers to the ``General Convention'' which is held every
five years, and that we specially elect delegates to attend that
convention, and vote for General Officers and on various issues. The
delegates are elected solely to attend that one single convention. I
have been a member since 1975 and have only seen a ``Special
Convention'' held once, in 1995, when the Department of Labor ordered
an election overturned, and there had to be a new election (and
therefore a new election of local delegates to attend). The language in
21C was purposely written into the Bylaws to circumvent the LMRDA.
The rank and file were not aware of the impending assessment prior
to the vote and they had no way politically to weigh in on the subject.
They were not given the opportunity to advise their delegates of their
views or to instruct them how to vote.
The delegates voting on the assessment were by and large, full-
time, appointed, paid staff of the District Council who were
politically and financially beholden to the Council leadership that
wanted the assessment. Any opposition to the wishes of the
administration could result in the termination of the delegates full-
time (and lucrative) appointed position. The vote was not by secret
ballot. Several full-time staff people who were not ``team players''
had been fired since elected, full-time, salaried positions, were
changed to appointed positions. The majority of the remainder, were
unpaid delegates, who thought they stood a chance to be hired on staff,
with the additional monies brought in by the assessment.
The majority of the membership did not find out about the
assessment until they received their vacation fund check (the mechanism
used to collect the money from the member) six months later. There is
no bylaw or federal law in place to prevent the same delegate body from
increasing the assessment at any given time.
Statement of Robert L. Carlston, Member, UBC Local 1977, Las Vegas, NV
My name is Robert L. Carlston. I have been a member of the Las
Vegas, NV UBC local(s) for 30 years. I served three terms as Trustee
for Local 1780 and one term for Local 719, now defunct. I was a charter
delegate to the Silver State District Council (defunct) and served one
term & one year as a charter delegate to the Southern California--
Nevada Regional Council (now Southwest Regional Council).
I write to share with the reader a saga of political manipulation
by the UBC, and what I consider to be blatant abuse of trusteeship
power in order to prevent politically independent persons from coming
to power even though they had the democratic support of the membership.
Prior to 1994, there was one independent Carpenter's local in Las
Vegas, Local 1780. In March of 1993, the International Brotherhood of
Carpenters and Joiners of America (UBC) imposed a trusteeship over
Local 1780, allegedly to correct political unrest caused by the actions
of an inexperienced elected Business Representative. The membership
repeatedly pointed out that the regular election, scheduled to be held
in just three months, would correct any problem. All members and
officers pleaded with the UBC to allow the elections to proceed but
they were rebuffed. After imposition of the trusteeship, all officers
and representatives of the Local were removed from office (with one
exception) and the operation of the Local was placed in the hands of
two International Representatives (Wright & Dunford). All membership
meetings were suspended and membership participation in the local was
forbidden despite language in the UBC constitution to protect the
rights of the membership. The trustees unilaterally signed and modified
labor agreements, fired secretarial staff, attempted to deny one
secretary (Bernadine Montoya) earned pension benefits, and threatened
the employment of members who dared protest.
After 18 months, steps were initiated to lift the trusteeship; an
executive committee was appointed for the Local and tightly controlled
membership meetings were allowed; however, Wright & Dunford remained in
total control. After two months it was announced that the UBC was
forming the Silver State District Council of Carpenters and that Local
1780 would be broken into four small locals (Local 719, Local 817,
Local 857, & Local 1780). These small locals along with Local 971
(Reno) and Local 1827 (millwrights) would form the new District
Council. Dana Wiggens, who had been appointed Business Representative
for Local 971, was appointed Executive Secretary/Treasurer (EST). The
Executive committees of the various locals were likewise appointed, as
were the delegates to the Council (I represented Local 917). While the
small locals were forced to hold meetings in small rented warehouses,
the hiring hall remained at Local 1780, as did all other activities.
Wright and Dunford were retained to supervise the District Council,
though no Trusteeship officially existed.
During this period, it was discovered that approximately $350,000
in funds were unaccounted for and every member had lost \1/2\ to 1
pension credit. The members protested the changes to the UBC General
Executive Board (GEB); three members were selected to present the case
(myself, Roger Tufaro, & Richard Russo). General President Lucassen
told us that he had the power to do anything he wished and that we
wouldn't have a union in Las Vegas if he so decreed. The only member of
the GEB to oppose Lucassen was 2nd Vice-President McCarron who stated
that he saw no reason for such extreme action. Wright & Dunford
testified that the break-up was necessary because the ``activist
element'' in Las Vegas couldn't be controlled otherwise. They further
stated that the lost pension credits were caused by embezzlement by a
Trust fund secretary; to this day the funds have never been accounted
for, no charges ofembezzlement were ever brought, and as far as I know
no claim was ever made against the bonding company to recover the
money.
Soon afterwards the Department of Labor decided that General
President Lucassen had violated Federal law during the prior convention
and set aside his election. A new convention was ordered; it was held
in Las Vegas. Wright & Dunford first tried to prevent the Las Vegas
locals from conducting delegate elections and attempted to appoint
delegates. Both attempts were forbidden by the Department of Labor
which had to step in, order and supervise elections of officers and
executive committees for the new Las Vegas locals. Despite D.O.L.
supervision several questionable practices were allowed to take place
(officers with keys to the ballot box, unaccounted for ballots, and
counts conducted by involved parties). Protests were turned aside
because, we were told, if they were upheld, given the time constraints,
the Las Vegas locals would have no representation at the convention.
The D.O.L. also decreed that EST Wiggens must stand election by the
entire membership before the end of the year.
Douglas McCarron was selected the new General President and soon
after met with delegates from Locals 719 and 817 who requested that
they be allowed to return to Local 1780. General President McCarron
denied the request on the grounds that Local 1780's Executive Committee
didn't want to have to face election by the entire Las Vegas
membership. In November, General President McCarron and several
International Representatives entered the union hall and forcibly
removed EST Wiggens. The membership was told that Wiggens had attempted
to use pension fund monies to buy doctor's accounts receivables and
pocket $1.8 million in finder's fees.
Rick Whilkening, who was the only Business Representative retained
when the trusteeship was originally imposed, was appointed EST and
elections were cancelled.
Three months later Herman Bernsen, president of the Southern
California District Council was the featured speaker at a pin party
held to honor long-time members. Bernsen's speech was an announcement
that General President McCarron was combining Locals 719 and 817 into a
new local (Local 1977), dissolving the Silver State District Council
and forming the Southern California--Nevada Regional Council. Marc
Furman (former head of organizing for the International) was named
Administrative Assistant and given sole and absolute control over the
Nevada Carpenters. All of this was done without notice to or
consultation with either the membership or delegates.
I was appointed a delegate to the Council representing Local 1977;
one of our first duties as delegates was to approve bylaws for the
Council. The Nevada Delegates were instructed by the membership to
oppose several clauses in the bylaws. At the meeting all delegates who
also held staff positions stated that it would cost their jobs to
oppose the provisions. It was left to the six rank and file delegates
to vote nay (we were joined by the five delegates from the Pile-drivers
local). Those eleven of us who had voted nay were forced to stand in
order to vote. During the 4\1/2\ years I served as a delegate, we were
never called on to approve one item of business. Mr. McCarron claims
that the delegates operate similar to Congress, but I can vouch that
that is not the case. The delegates meet every three months, minutes of
the Executive Board meetings and a list of political contributions are
read; there is no discussion and no vote. All decisions are made by the
EST, approved by the Executive Board, and merely read to the delegates.
I'm bringing this to your attention because the Southern
California--Nevada Regional Council of Carpenters was the prototype for
the Regional Councils the UBC has formed across the country. The modus
operandi has been similar in every case I'm aware of; trusteeship,
denial of membership participation, followed by unilateral imposition
of a Regional Council with appointed officers and the authority to
perform the representational functions previously performed by Locals
headed by officers actually elected by the members. I might add that
the term or entity, ``Regional Council,'' was not even added to the UBC
Constitution until five years after the first one was formed.
The clearest example I can give of the effects of General President
McCarron's actions is that of local elections. Prior to the
trusteeship, 50% to 75% of the Local 1780 members voted in elections.
In the last election conducted before the trusteeship, 890 of 1500
members voted in an off-year election to fill a relatively
insignificant position--trustee (I won over two other candidates by 687
votes). Similarly, the last contract ratification vote saw over 90%
participation by the membership. Local 1977 recently held an off-year
election for trustee, two delegate positions, and two executive
committee positions (two Executive Committee member/delegates had
resigned after the last election). I chaired the election committee; of
a total eligible membership of 3575, only 107 voted.
Thank You.
Statement of Gregg Shotwell, Delegate, UAW Local 2151
I attended the UAW 33rd Constitutional Convention in Las Vegas,
June 3-6, as an elected delegate. It was held at the MGM--but Circus
Circus would have been more appropriate. According to our constitution,
delegates are theoretically ``the highest tribunal in the UAW'' but we
were treated like a captive audience andbrowbeaten with speeches by
politicians and dignitaries with no connection to the UAW other than
the stipends they received. Delegates were given very limited
opportunities to debate issues relevant to our union, controversial
topics were cut short, and Robert's Rules of Order were honored at the
whim of the ruling party. In a word, the Convention was totally
``engineered.''
The power of the incumbent administration in a one-party democracy
is such that all International officials were elected by a voice vote
of acclamation. There was only one snafu when the delegates from Region
2 rubber-stamped the wrong guy. The Administration Caucus was so
incensed that they retaliated with a constitutional amendment to
dissolve Region 2. You can well imagine the power implicit in
retroactive redistricting. It would be as if Democrats upset about the
election results in Florida resolved to dismember the state by giving
the panhandle to Alabama, the northern trunk to Georgia, and the toe to
Puerto Rico.
Rather than raise our dues, the Administration Caucus absconded
with $75 million from our strike fund by passing a constitutional
amendment. And you thought you knew something about fast track.
UAW International leaders do not feel accountable to the members
because the members do not elect them in a one member/one vote, secret
ballot election. All members of the UAW's ruling caucus are initially
appointed and they are accountable only to those who appointed them,
not the members they are supposed to represent. Americans take one
member/one vote secret ballot elections for granted. We consider it an
inalienable right, but we are denied this right by the ruling party of
our union which behaves like a dictatorship. We need direct election of
all International officials who represent us by one member/one vote
secret ballot elections.
I understand that you are interested in making unions more
accountable by enforcing stricter adherence to LM-2 reports. The UAW is
way ahead of you.
Nineteen cents for each hour worked is deposited in a fund
administered by a separate non-profit, tax deductible corporation.
International UAW officers, and corporate officials sit on the board
and control all expenditures. There is no accountability to the members
and no requirement to report on an LM-2. This is in effect a dues
assessment, and de facto taxation without representation. These funds
also enable the International to appoint members in local unions to
sinecures, thus securing their influence at the local level as well. In
a one party state the power to appoint trumps the power to elect.
Statement of Mike Griffin, Decatur, IL
carpenter dictatorship out of control
For the hundreds of thousands of Carpenters and Millwrights who
make up the UBC [United Brotherhood of Carpenters and Joiners of
America], democracy and fundamental union values, are but fleeting
segments of the union that once was. Systematically stripped of the
right to elect who represents them, to vote on contracts, and any
credible voice over union affairs, many are left shaking their heads in
disbelief. Much in the style of Corporate America, the international
union has used, District and Regional Councils as Storm Troopers to
consolidate locals, seize local membership funds, and initiate
questionable trusteeships to intimidate locals who dare resist. All of
these actions continue to alienate the rank and file and in some cases,
force members to travel hundreds of miles to attend local union
meetings.
Under the pretext of ``representative democracy'', delegates attend
District Council meetings where the dictates of the Secretary Treasurer
are thrown out for a vote that has never been placed before any
membership tribunal. Many of the delegates are Business Agents who are
employed by the District Council and can be fired by the council
Secretary Treasurer. That is mirrored in conventions as well, and as a
result of that dictatorial forum, UBC International President Douglas
McCarron, without consulting rank and file members, pulled the UBC out
of the AFL-CIO.
Amid a barrage of smoke and mirrors from the UBC headquarters, the
truth behind McCarron's actions are revealed in letters exchanged
between McCarron and John Sweeney, President of the AFL-CIO. McCarron's
demands center on suspending provisions of the AFL-CIO constitution
concerning jurisdiction. Under the guise of dissatisfaction with
organizing, McCarron is demanding the right to raid work under other
union's jurisdiction and in Nevada, that theory is tested by the
existence of a new UBC contract laying out the pay and conditions for a
``Concrete Specialist and Helper''.
Just as disturbing, is what McCarron has to say before his
Contractor Friends. In Hawaii, before the National Erectors
Association, McCarron said, ``You need the freedom to assign the work
based on what makes sense, what makes us competitive on the job. If
there is a dispute, let the owner settle it. It's his job and his
money''. That outrageous response represents a far cry from basic union
representation and respecting the jurisdiction of other unions, and in
fact, calls for violating the AFL-CIO constitution. McCarron goes on to
tout his views as similar to Jack Welch, former CEO of General
Electric, and refers to union members as ``strong product''.
In an L.A Times interview, McCarron called those in the UBC who
oppose his dictatorship, ``selfish bureaucrats, deranged loners and
communists''. ``God bless them, they are very hateful people''. I
suppose this author will have to re-think his position on democracy. I
never understood until McCarron pointed it out, that standing against
tyranny, dictatorship, and struggling for democracy were communist
ideals. Thanks to McCarron, I now understand that the overwhelming
majority of UBC members, who want the right to vote and elect their
representatives, are communists, deranged loners, and hateful people.
It was that same description that was applied to UBC members in
British Columbia. So upset by McCarron's attempt to apply his
dictatorship in that Canadian province, B.C. carpenters walked out of
their hall and turned out the lights, leaving a rejected McCarron
sitting alone in the dark. BC leaders polled their members and with
overwhelming support, pulled out of the UBC. McCarron, after calling
them brothers for years, called them communists. Is it really McCarron,
or McCarthy?
McCarron's obsession with power has moved far beyond his
dictatorship of the UBC, with the stakes much higher and far more
damaging to an already struggling labor movement. Another of McCarron's
demands for UBC re-affiliation, is the resignation of the current
President of the Building Trades and dismantling that division of the
AFL-CIO. McCarron's demands would weaken the Building Trades and make
it ineffective and unable to deal with the nation's hostile employers.
Employers, who McCarron views as his friends and whose business style
he has eagerly sought to imitate. Another principle demand is that
voting in the Trades be conducted based on the size of the affiliated
union, guaranteeing the UBC even greater power to influence how the
Trades function; a possibility that could have disastrous consequences.
McCarron's far right, business union mentality could destroy smaller
unions and distance greater numbers of current union members who
believe in fundamental union values. McCarron is not alone in his
efforts. Several other Trades unions are poised to join his efforts and
the fear of permanently damaging the union movement is most certainly
on the minds of AFL-CIO leaders who have laboriously negotiated to
settle the issues and bring the UBC back into the fold. Unfortunately,
giving into McCarron's demands will not resolve McCarron's thirst for
power and will not work in the interest of union members or of the
movement as a whole. It is no accident that business publications are
praising McCarron for his antics and his ``business acumen''. It is
unfortunate for union members who work for a living, there are many in
union leadership positions that mirror McCarron and have the same
regard for members and member's rights.
To add insult to injury, McCarron and soul mate James Hoffa Jr.,
have been publicly wallowing with labor's most ardent enemy, George
Bush. Bush, who has spent more time bashing workers rights than
starting wars, has seized the opportunity to use McCarron and Hoffa to
drive a wedge into the house of labor. One theory is that Hoffa and
McCarron have a common agenda by sucking up to the Bush administration.
Hoffa wants rid of federal oversight and McCarron wants assurances the
labor department won't interfere with his plans to gut members' rights
in the UBC. Both unions are rampant with corruption.
For AFL-CIO leadership, the loss the hefty per capita payments once
paid by the UBC and the power of such a huge membership, have proven to
be a stunning loss. At a time when regaining control of the House of
Representatives for Democrats, McCarron's open defection could not be
more damaging. Just as damaging, McCarron's willingness to openly
divide not only the Building Trades, but also the entire labor
movement, has made the process of unification difficult, and for some
AFL-CIO Executive Board members, impossible. A few board members are
speaking out, but in limited circles and with few details on McCarron's
thirst for power and pro-business agenda. It is past time to take the
gloves off and deal with McCarron, but that will not happen.
Make no mistake, it is the business union model based on
cooperation with employers, top down control of nearly all present day
unions, and the denial of union democracy, that has brought the house
of labor to its current level of relevancy. While the political climate
and increasingly hostile employers have contributed, it is undemocratic
and corrupt leadership that has done the most damage.
McCarron's rise to power was supplemented by lawsuits centered on
Carpenter pension funds and the lack of fiduciary responsibility by UBC
bureaucrats in southern California. Ron Tutor, owner of Tutor-Saliba
Construction and fellow trustee of the fund, aided his efforts. After
catapulting himself to power on the heels of Sig Lucassen, former
President of the UBC in what the labor department determined was a
rigged election, McCarron's handling of the funds proved to be just as
inept and questionable. Heavy investments in Perini Construction cost
the fund 22 Million in a single day loss when Perini stock took a
nosedive as Perini prepared for bankruptcy. McCarron held a paid board
seat on Perini. That activity sparked a lawsuit by retirees, led by
Horacio Grana, who has recently died. Questions raised by the suit are
not only the losses, but also fees charged by investor and McCarron
crony, Richard Blum; husband of Senator Diane Feinstein. Blum took 54
million for himself on investments that earned 459 million; Blum
handled only a small part of that fund.
Currently, McCarron is among those being investigated in the ULLICO
[Union Labor Life Insurance Company] scandal. It is alleged that
McCarron and other ULLICO board members profited personally while
membership retirement funds did not fare as well. With the
consolidation of hundreds of locals into Regional councils, UBC members
should have new fears. What happens to local pension funds and who
oversees them? With billions in UBC pension funds, can this
dictatorship be trusted? There are currently, many retired members who
have lost all they worked most of their lives for.
More questions are raised by the Mayoral election in Los Angeles.
Without rank and file approval, tens of thousands of dues dollars were
given to the election of James Hahn. Why would UBC members in Illinois,
Michigan and eastern states care about the Mayor of Los Angeles? They
don't! Through the Carpenters Contractors Cooperation Committee, the
money was funneled to the Hahn campaign. Ron Tutor is a member of the
executive board and its' Executive Director is listed as Bill Luddy,
McCarron's 129,000 dollar a year assistant. According to the LA Times,
When Hahn became mayor; he assumed the role of the most powerful member
of the Metropolitan Transportation Authority Board [MTA]. With Hahn's
election, four members of that board are about to change.
Tutor-Saliba was charged by the MTA with filing false claims and
fraudulently billing for work on a massive subway project. Tutor-Saliba
has been barred from bidding on future public works projects, which
makes up the bulk of Tutor-Salibacontracts. According to the Times, the
walls of the tunnel built by Tutor-Saliba were thinner than required
and two of the three workers killed on the project were Tutor-Saliba
employees. Tutor spent more than a hundred thousand dollars on the
election. Tutor remains a member of the executive board of the
Carpenter pension fund.
Inside the UBC, fear and intimidation reign. For working Carpenters
and Millwrights, speaking out can be hazardous to your health; being
starved into submission is common. With a wink and a nod from the
Business Agent (BA) to some contractors, you can find yourself
unemployed. ``Piss off your BA and see the USA'' is a common term,
which means you will have to travel far and wide to find work. When you
refuse to accept the intimidation, charges are filed and your
membership will be taken. Contractors will refuse to hire you in some
cases. In some areas, the threat is much more physical. The second
phrase heard is, ``I just want to make it to retirement and get out of
this mess''.
In this ``Brotherhood'' nepotism and corruption are rampant. Out of
work lists are only for show for the Department of Labor. It is
difficult to envision a Brotherhood where some members make 75,000
dollars a year and others make 10,000; where members fear their own
leaders and have no voice. A Brotherhood where members are increasingly
assigned to perform the work of other crafts and work for 90% or less
of scale. A Brotherhood where organized breaks have been negotiated
away and where representation of the membership is non-existent. The
Steward and supervisor positions often are rewards for representing the
contractor and union hall, rather than the membership. When Stewards do
attempt to represent the members, they run up against a brick wall and
find themselves replaced. It is a Brotherhood where contractors can
hire and fire at will for no reason. A Brotherhood that refuses to
honor picket lines and dispatches its members to replace striking and
locked out workers. A Brotherhood based on an incestuous relationship.
We have asked hundreds of UBC members across the country, ``What
kind of union do you have when you fear your own leadership and you
have no voice''?
The answer is always the same; ``there is no union, it is gone''.
That disillusionment is the norm in the UBC, but it is not spoken in
union meetings or in front of leadership where retaliation is certain
and out on the jobsites, it is spoken cautiously. That fear became a
reality for John Reimman, a California carpenter involved in a wildcat
strike involving Tutor-Saliba and in opposition to a contract members
were refused the right to vote on. Reimman was ultimately expelled from
the UBC in spite of the fact the strike forced another vote and
thousands of union members joined the protest.
McCarron has boasted the hiring of 600 organizers and bringing in
thousands of new members, but even there smoke and mirrors prevails.
From our experience locally and those we have contacted nationally, the
thrust of organizing has consisted of swaying employees of non-union
contractors to join the UBC without bringing in the contractor. The
result has been to divide up what little work we have among members and
often the new members are worked ahead of longterm members to keep them
interested. Ultimately, many of them go back nonunion to earn a living.
The UBC controls the information and Carpenter magazine is nothing more
than the voice of McCarron, who has little credibility in or out of the
UBC. When you do the math, the cost of 600 organizers versus the
figures on new members, the cost is prohibitive. In a letter to the
entire membership, McCarron denied he was building UBC Inc., a wall-to-
wall agency that mirrors nonunion shops, but experience indicates that
is the direction of the UBC.
A few bright spots have developed where members have shown the
courage to fight back, in spite of overwhelming odds. CDUI (Carpenters
for a Democratic Union International) has formed as national caucus and
a few locals have fought back against illegal trusteeships. In Boston,
a Business Agent fired for supporting the right to elect leadership, is
now the Secretary Treasurer of the District Council. In Atlanta,
members who elected a rank and file leadership in opposition to
McCarron have successfully fought back against the illegal trusteeship
imposed by McCarron.
CDUI national organizer, Ken Little, of Seattle, has felt the wrath
of the UBC. While touring the country building support for one member
one vote, Little stopped off at the Carpenter's hall in St Louis Mo. He
was ordered to stop giving flyers to fellow members and when he stood
for his rights, the local BA called the police and had him escorted
from the hall. Members and delegates to the last convention fared no
better. When they arrived at the convention, they were met by dozens of
Chicago police. Though eventually allowed into the convention, they
were refused the right to pass out literature supporting the right to
vote and ``Goons'' were assigned to follow caucus members. Controlling
the UBC membership is such a high priority of the current dictatorship,
members rights have been obliterated.
Strangely enough, what was once one of America's biggest unions,
solidarity, democracy, and representation have been destroyed. Nearly
all of the actions of current leadership mirror our corporate enemies
and can only be viewed as antiunion. We can only hope the AFL-CIO
leadership will recognize the futility of giving into McCarron's
demands and show the testicle fortitude it takes to put the house of
labor in order. In the UBC, it is the responsibility of the members to
take their union back and replace all their top leadership.
Statement of Tom Crofton
The UBC intervened in a contract negotiation in Madison, WI, in
1999. After a 2-1 vote of the membership to reject the first proposal,
the local officers, and District Council Staff did not follow through
on their responsibility to give management a five day notice of a
possible strike. We later learned that the management representatives
called the International, and asked them to intervene. The
International reps told the District Council to wait a few weeks. The
members used this time to spend their vacation funds on their planned
purchases, instead of saving them for apossible strike fund. Almost a
month with no negotiations ended with a new vote, on the same contract.
This vote occurred after the most intimidating and contentious meeting
witnessed up to that time. The union staffers did not allow members to
speak for their constitutionally promised 5 minutes. Every paid staffer
spoke for the contract. Questions from the floor were not answered. The
fact that the contract was already signed was not denied. Later, we
found out that the union left 25 cents an hour on the table, proving
that they were out to show they could control the members. We started a
rank and file caucus as a result. In connecting with other caucuses
around the continent, we discovered similar problems in other areas.
Many others had long experienced International meddling in their
affairs. One result of connecting was to join an effort to pass a
constitutional amendment that would allow direct election of the top
officers of the UBC, by the rank and file. This was called the Christie
Amendment, after the pseudonym of the author. In attempting to follow
the letter of the law, I personally tried to get a special meeting set,
to consider this proposal. Positive votes at special meetings, in a
specified number of local would insure that the resolution would be
considered at the upcoming election. My local voted 66-1 to have a
special meeting for this purpose. The officers of our local, in
conjunction with the District Council (some positions overlapping) did
not send out the required notice. When the time for receiving notice
had elapsed, I filed a grievance with the General President, as
required by the Constitution. I never received acknowledgment of that
grievance. At the next regular meeting, the officers explained that
they thought it was an advisory motion, and they decided not to do it.
They then had minutes passed to reflect their changing history. Near
the end of the meeting, I officially withdrew my grievance, as the
basis for proving it correct had evaporated. At the next meeting, I
attempted to bring up a motion to approve the amendment, without a
special meeting, and was ruled out of order. This was illegal, because
I was in order.
I was elected to witness the Convention 2000, in Chicago, where
approximately 10 million dollars of the members' funds were spent to
further reduce their rights in running the organization. I witnessed
the most corrupt political machine in my experience spend a week
intimidating the handful of serious rank and file reformers present.
Our speeches are available if you are interested in seeing where we
stood on the issues. Following the convention, every reformer was
attacked as retribution for standing up. Some locals who had won their
offices where put under supervision. Some individuals were not given
work assignments. The three locals in the lower half of Wisconsin were
merged into one, and joined into the Northern Wisconsin Regional
Council of Carpenters without any member involvement. Our monthly local
meetings were canceled. Our dues were raised. Our delegate count was
reduced. A member was threatened with violence for resisting. The
driving time for our delegates to attend meetings went up from an hour
average to three hour average. The delegate meetings are held during
the day, requiring delegates to take two days off to attend. Few
employers can accept that. Only the union can afford to let its people
take off that much time, which disenfranchises the ranks that much
more.
In short, a corrupt political machine has installed itself in the
place where brother/sisterhood is supposed to feel safe, to work for
common good. Collective bargaining is replaced by high paid agents
forcing contracts on disenfranchised dues payers. Our local covers
25,000 square miles and has 2,000 members. Direct elections and votes
on issues by the members, have been replaced by rubber stamping, all
expense paid staffers, who elect their boss, so he can hire them back.
The working people of this society need unions, but they need to
retain real, functional control of them.
This synopsis can be documented, and fleshed out in greater detail.
Please feel free to ask for more.
Statement of Darrell J. Zube, United Brotherhood of Carpenters and
Joiners
Given the recent examples of corporate misdeeds in the financial
arena, can we reasonably expect full time employees in supervisory
positions to stand up to the highest levels of management for what is
right and honest?
Where are any checks and balances for the ``CEO's'' and ``Boards of
Directors'' of labor unions, should they ever lead their organization
astray?
Will there ever be any protection at all for the whistleblowers,
that almost everyone hopes would come forward and tell of the misdeeds
and misuse of power and position?
Will there ever be true accountability to the full membership that
finances these organizations? Members who only ask that their concerns
get addressed and not just to be dragged down a path that that the
clear majority disagrees with, but the minority upper echelon want to
go.
I am a member of The United Brotherhood of Carpenters and Joiners
(UBC), and I believe this organization has taken this misuse of power
to new depths, and I for one am not afraid to speak out about it.
At the Carpenters General Convention in 2000 (where the incumbents
set the rules that governed the process and procedures for that
convention) the Constitution and the rules for the Subordinate Bodies
(i.e. Locals and Regional Councils) were drastically changed. And rules
that had been in effect for more than one hundred years were changed,
without prior notification of the membership, or providing the
opportunity for a referendum vote. Changes altering the basic structure
of the organization were never voted on by the full membership. None of
this was done to further empower the membership, but rather gave
grossly disproportionate power to the incumbents. (Note: The US Court
of Appeals for the First Circuit is waiting for a reply from the Secy.
of Labor on why suit was not brought against the UBC for some of this)
All of the changes were voted for by delegates largely (estimates
of 65% to 70%) consisting of full-time Regional or International
employees, or those who owed their employment to the power brokers.
These delegates that are employees are not elected by the membership,
but ``appointed'' by Regional or International operations. Did any
full-time employees like these prevent the disasters at ENRON, World-
Com, Xerox, or even Arthur Anderson? And what happened to any
unfortunates that did speak up?
Other Delegates to this Convention, even if coming from the rank
and file, can be highly influenced by the ``appointed''
representatives. This is because the appointed employee can influence
the job assignments and opportunities of independently elected member-
delegates. In a labor force that works from one short job to the next,
these assignments determine how much work and what kinds of work any
other delegates are likely to receive. So there is a perceived, and
frequently real, threat to their ability to earn a livelihood and
support their families.
The voting membership, which pays all of the full-time salaries,
currently has no direct, even by recall vote, of influencing the
``appointed'' officials imposed on them, or even the elected
representatives--until the next election. You should also be aware that
the ``appointed'' official has power over the access of work of anyone
who would dare speak against the current system.
The full membership of my local union, by a large margin, elected
delegates who they trusted would speak out against the sweeping changes
that were being proposed. All four delegates ran, and were elected, on
this platform. The International immediately contested this election
and made the local union hold it again. The results were that the same
four delegates were elected by an even wider margin of victory.
I was one of those delegates, and spoke out at each Caucus at the
August 2000 convention, and at the Main Speakers platform. I believe my
dissension was duly noted. But at this Convention, the incumbents held
the stage, set the rules and controlled the microphones, so equal time
for discussion was not granted.
Our delegates were informed in private that our local union would
probably face trusteeship (imposed supervision by the International
organization) when we returned.
Upon returning, The Executive Board, of which I was President,
contacted the Dept. of Labor requesting classes and instructions on our
rights and how best to avoid meeting the criteria for supervision,
which is the imposition of trusteeship by the UBC International. Our
Executive Board was given a training session by a Mr. Chuck Logan of
the Dept. of Labor. The Board informed Mr. Logan then (Sept. 2000) that
we believed the International was soon going to try to put us under
supervision. A hearing (which our legal counsel was barred from
attending) was held in February 2001, and in March, we were placed
under trusteeship, approximately six months after standing up for the
voices of the rank and file members at the Convention.
We appealed to the Dept. of Labor, which investigated but came to
no conclusion. I was informed that the courts routinely allow eighteen
months trusteeship, but was told at a meeting at the Wash. D.C. office
of Dept. of Labor, to call them after eighteen months and one day had
passed, and possibly something could be done then. Phillip Lavallee and
myself attended this meeting, as he was also on the local Executive
Board, and had been a Delegate to the General Convention also.
While in Wash. DC at this same time, Mr. Lavallee, and myself met
with representatives of the Education and Workforce Committee. We both
gave information on how unfair the current system in our union was to
rank and file members, and how unlikely it was that the International
would willingly give back any of it's newly gained power and control.
Upon returning to Atlanta, immediately before attending our next union
meeting, we were both asked by an International supervision employee
``how our trip to Washington was''. It was obvious to us both, even
though we shared the information of our trip with very few people that
the International union had found out about our meeting.
And now, as no surprise to anyone, with the imposed trusteeship
coming on the seventeenth and eighteenth month, charges have been
brought against Mr. Lavallee and for myself for actions taken under the
last two Executive Boards. The charges brought against us have been
placed by an International Vice-president, which means only full-time
employees of the International will be on the Trial Committee. And if
the current affairs in the financial world are any indication at all,
You can bet any full-time employee is not going to stand up to upper
management when their job may be on the line.
Now just so you don't think this is some small coincidence, out of
the possible eighteen people on the last two Executive Boards, only Mr.
Lavallee and myself were the only ones brought up on charges.
This Committee will not be able to do anything to help protect Mr.
Lavallee or myself, and once again, we will probably be barred from
having our counsel present. A ``fair'' trial will be the one where only
full-time employees of the International, behind closed doors, with no
outside witnesses, can come to the determination that both of us can be
expelled for life, and the appeals process only goes to more full-time
employees. Not to any impartial and qualified judge or jury, which most
Americans would assume we would have a right to.
But possibly, in the near future, safeguards can be put in place.
Where maybe some other two people can come before this committee, tell
of injustices within their own organizations, and then have some
protections against risking their whole livelihoods, for stating their
opinions and standing up for what they know is right.
Thank You.
Statement of Thomas J. Verdone, Former Recording Secretary, Millwright
Local 1693, Chicago, IL
My name is Thomas J. Verdone.
I was, up until this month, the Recording Secretary of Millwright
Local 1693 which is one of an estimated 30+ union locals that make up
the Chicago and Northeast Illinois District Council of Carpenters which
in turn is a subordinate body of the United Brotherhood of Carpenter's
and Jointers of America. I was elected by members looking for some
accountability and democracy which has been in short supply in local
1693. I started my term off by basically observing the operations of
the local executive board and to my surprise and dismay I found that
the EB led by full time staffers of the district council in the
capacity of appointed business representatives and organizer were
consistently involved in widespread malfeasance and fraud. These same
individuals (at staff salaries paying in the area of $100,000.00 per
yr.) also double as part time President, Vice President, and Financial
Secretary/Treasurer collecting from the local approximately $2500./year
for serving on the Local's Executive Board.
I made an inquiry into the lack of financial reporting by the
Financial Secretary/Treasurer and trustees. According to the U.B.C.
constitution, they were in clear violation of their responsibilities by
not reporting to the members the numerical and financial status of the
local etc. My inquiry was met with mostly ambiguous rhetoric, double
talk, and obstinate silence at that executive board meeting. In my
capacity as recording secretary I brought this issue to light at the
following monthly meeting by reading the minutes as my position
requires. As a result, I was brought up on fraudulent charges of
causing dissension which have up until this point been supported by the
governing district council despite my consistent inquires for any proof
of wrong doing. I believe from my research the money is being funneled
from the local in what I believe is a scheme to draw as much money from
the local as possible without the members' knowledge.
In discussing this issue in great detail with the Department of
Labor, they've stated that they can only pursue this issue if it's a
matter embezzlement for personal gain and that diverting money from one
organization to another, be it improper, is not a crime.
Also there has been, with our most recent election, a plethora of
procedural violations pertaining to election guideline also as outlined
in the UBC Constitution:
Members making nominations who were on the Ultra list* who should
not have been on the Ultra list (violating Section 31)
Members making nominations who were not on the Ultra list
(violating Section 31)
Retires appointed to serve on election committees (violating
Section 31, Paragraph D)
A candidate on a ballot who served on the election committee
counting ballots (violating Section 31, Paragraph G)
The Financial Secretary/Treasurer campaigning instead of tending to
the books (violating Section 31, Paragraph G)
Campaign literature containing false and misleading instructions in
regards to voting requirements
Campaign literature that falsely and maliciously singles out
individuals and a specific contractor implying collusion (section 51A-
1)
Contractor members on the Ultra list of members able to vote, be
nominated, and run for office who should not be on the list (violating
section 44, paragraph G)
Contractor members voting in the election (violating section 44,
paragraph G)
The improper removal of a candidate three days before the election.
In approaching the Department of Labor on these blatant violations,
their response was less than enthusiastic due to the stringent
guidelines they have to follow and the very limited powers allowed them
in intervening during such corrupt situations. It is my hope and that
of many union persons around the country that the U.S. Government step
in and help the average worker from being exploited by the same
organization which was established to protect them in their livelihood.
We need laws to help us reform labor organizations that have gotten
completely out of control.
Statement of David Johnson, Carpenter's Union Local 44, Champaign, IL
My name is David Johnson. I have been a member of Carpenters Union
44 in Champaign, Illinois since 1977.
For those of you who are not familiar with what a union is SUPPOSED
to be, a union is a voluntary association of people of the same
occupation or who work in the same industry. The members of a voluntary
association, or union, pay dues money to support the functioning of
their organization and to hire people to; represent them, and to
perform clerical and administrative functions to support the
organization. The members of a union are very similar to shareholders
of a company, who decide who their executive officers and management
are, and what policies and actions should be done to further their
interests.
What has happened in the Carpenter's union during the last several
years has been an almost complete disenfranchisement of the dues paying
membership in deciding; who our representatives are, what policies and
actions should be done, how our pension fund monies and health
insurance should be administered, and in many local unions, the right
to decide what our working contract should contain and the right to
approve it.
By using loopholes in the current laws, and at times flagrantly
disregarding the law, the bureaucrats of the Carpenters union have
achieved this disenfranchisement and in addition have pursued a policy
of intimidation, slander, interfering with the ability of Carpenters to
obtain employment, and at times even used the threat of physical
violence against individual Carpenters who have questioned and/or
criticized actions and policies of the ``leadership''. Union officials
who are paid with OUR dues money to represent us (and under the current
law, required to represent us), have often times persuaded contractor
employers to not hire critics and/or political opponents by slandering
our abilities as craftsmen and/or have stated to management personnel
that we are ``troublemakers'', implying that we will cause problems on
jobsites.
In my particular case, I began publishing a newsletter for working
Carpenters in February 2000, and in August 2000, ran as a candidate
against an incumbent vice president of our international union at the
Carpenter's convention. Since then I have only worked an average of two
to three months a year, when in the past I worked six to eight months a
year on average.
Fellows Carpenters who have witnessed the collusion between
officials of the Carpenters union and management personnel of
contractors, in preventing many Carpenters from being hired by various
contractors, are frightened to come forward as witnesses and signing
depositions out of fear of losing their current jobs and suffering a
similar fate of long-term harassment and denial of future employment.
When large numbers of Carpenters have attempted to make changes at
their union meetings, the will of the majority has been totally
disregarded, Roberts rules of order ignored, and the meeting adjourned
against the vote of the majority of members present.
When elected representatives of the membership have questioned
policy and certain expenditures of funds at regional council meetings,
they have been routinely shouted down and insulted by paid staff
members of the council.
Many of us Carpenters fear that with the current situation of
unaccountability of union officials to the membership, that it is only
a matter of time until we will lose our pension fund monies and become
another ENRON scandal. A situation that would be devastating to
hundreds of thousands of hardworking tax-paying carpenters, who do not
want to end up dependent upon public aid, but instead proud self-
sufficient retirees.
In conclusion, I would like to urge the committee in the best
interests of fairness and a free democratic society, to increase the
enforcement and penalties of current laws and enact new laws to enable
all union members to hold their leadership and staff people accountable
to the membership and to allow us the ability to govern ourselves
without fear of reprisals and intimidation.
Thank you.
Statement of Jackie Fitzgerald, UTU Railway Worker
I have worked for the railroad for 4 years, and I have never been
able to vote for officials. Railroading is a 24/7 type business, and
you can only elect officials when you attend meetings. The meetings
have been held during times that are only accessible to older workers,
thus creating an imbalance of power which favors the older worker.
Recently, after having read the LMRDA, I found my union was
conducting elections illegally and were keeping the younger railroaders
from voting. I had discovered the LMRDA on the internet, and so I
challenged my union. I immediately began telling all of my coworkers
about our rights as workers, and found that they were very unaware of
their LMRDA rights. I was able to cite the law to the international and
it forced my local to change the way they handle elections.
Unfortunately, the way the elections have been handled had hurt the
younger worker severely.
I also feel that union officials should have to be accountable for
every day they lay off for union business. Too many officials take
advantage of their positions for personal agendas.
I also feel that my labor union in particular (UTU) has gotten into
the practice of bargaining for groups of workers and not the whole. We
will never be democratic if our elected officials continue to bargain
on behalf of one group, while leaving out the other. This had truly
divided railroaders against one another, thus leaving more power to the
carriers. As a rank and file member of the UTU, I truly feel that they
have lost their cause. We should be able to bring charges against our
unions for lack of representation. I also feel that an employer should
be able to ask a labor union to divide it's workforce. It is
discrimination based on age.
If you want more inputs, I could go on forever. The struggle I have
been through with my union has encouraged me to pursue a law degree in
labor. Workers have rights, and we need more lawyers on the workers
side.
Statement of Martin Conlisk, IBEW No. 134
I am a 23-year member of the International Brotherhood of
Electrical Workers, a journeyman wireman by trade in the construction
industry. I am also a registered Democrat, vote for their candidates in
every election. Only Allah knows why, since they won't even back their
own candidates. Bush stole the election. Period.
I am going to sign my name to this even though it will put me on
another blacklist. I've been dogged by mysterious removals from the
jobsite for many years. I am not a paranoid slacker, but I am a vocal
proponent of democratic action and worker control. This same government
of ours threw people like me in jail--remember the Palmer Raids? Well,
many good citizens are suffering through the Ashcroft raids. I wouldn't
doubt you'd advance my name to Homeland Security. Put me on another
list, what the hell.
So do I really think appealing to a bunch of millionaires to change
the Law is going to help the average drone? Your bank accounts are full
because of exploited labor. To see a group complain that they are
exploited by their Boss AND their ``union'' has got to set you off
rolling in the aisles with laughter. No, I don't expect anything from
you.
I stand with the men and women who came forward because that is
where Right is. They are as lost and delusional as the rest of America,
thinking that the government belongs to them. That may be a rough
statement directed at my cocomplainers, but the fact that their hearts
and minds continue to struggle for justice makes me want to help. Many
tactics and battles have to be joined to achieve success. This is just
the most distasteful to me personally. They are men and women with
guts, willing to fight, no matter the odds. They are the light bearers
in the dark world of organized labor. People like this are my friends.
That is why I'm entering this statement, foolish or not.
Currently, there is a civil lawsuit that has passed the 5 1/2 year
mark with definitive proof my so-called ``leaders'' took over 411,000
dollars from employers (Chathas v. Local 134, NE Illinois, Case No. 99C
0400, Judge Zagel). They will not release 16 months of records, so the
number is much higher. The case is still grinding away until the time
is right to let them go. I have no faith in the judicial system. The
suit was filed under Section 501 of the LMRDA. If you make the laws
enforce them because during this time our hard fought legacy of over
100 years has been sold, stepped on, been thrown out the window. My
inalienable civil rights were taken away by these people when a group
called ``the Alliance'' something they joined me to, makes me give them
my body fluids on demand or face unemployment (with continuing dues
payments, of course). I'm sure a judge somewhere will back them up,
too. The lawyers get rich, the workingman loses. I forget, most of you
are lawyers--another funny joke. And my Business Manager is a
lawyer!!!--it's all just so down right hilarious. I get most of my mail
from another group I never joined, an IBEW/NECA--becoming partners with
the businessman, this is what is considered unionism today. I must be
cracking you up, I know.
I hold no illusions that however you twist the verbiage of this
legislation it is somehow going to help working people in this country.
They have to do it themselves and, more than likely, they are going to
collide with the forces of the government you represent. I know what
side of the police line you will be on. I will be with my friends
there, too, looking at you.
Statement of Michael Livingston, United Brotherhood of Carpenters and
Joiners of America Local 157, New York, NY
Good day honorable committee members.
My name is Michael Livingston. I am a carpenter out of Local Union
157 United Brotherhood of Carpenters and Joiners of America. My Local
operates in Manhattan, New York.
I am making this statement because I believe that it is of extreme
importance to amend the LMRDA and restore democracy to the members of
all local unions. Recently our members, U.S. and Canada, have been
restructured into a smaller group of district and regional council's
throughout our countries. Our General President Douglas McCarron has
appointed his people to head these councils, many of them to appointed
paid staff positions and delegate spots. The People appointed by
McCarron in New York are at best questionable. Before I tell you about
them, I would like to refer back to the Statement of Douglas McCarron
before the Subcommittee on Employer-Employee Relations U.S. House of
Representatives on Thursday June 25, 1998.
In this 36 page statement McCarron goes into detail about the need
to restructure our union and eradicate corruption. McCarron uses New
York in particular to emphasize how pervasive the corruption and
organized crime influence is in New York. He goes on to make examples
of all the different crime families that had a grip on union carpentry
and the steps needed to cleanup the union. Much of McCarrons testimony
is true. However, He handed over the New York City District Council to
many of the same people that he claimed he needed to remove. McCarron
fired honest people and kept the corrupt. He did this to further his
own agenda knowing he couldn't be stopped because the membership could
not elect their own Business agents and organizing personnel. See
related articles marked exhibit A-D. Getting back to the questionable
appointments that I referred to earlier, I would like to start with
Mike Forde. Forde was appointed Business Agent by McCarron despite
McCarron's knowledge of his involvement with organized crime. McCarron
refused to intervene even after Forde was indicted in September of 2000
on charges of enterprise corruption. Forde is currently the elected EST
of the NYC District Council of Carpenters in NY and still awaiting
trial. Martin Devereaux was another BA appointed by McCarron. Devereaux
and Forde were both involved in the same conspiracy to defraud the UBC.
Devereaux was charged and found guilty by the court appointed Internal
Review officer but McCarron refused to take disciplinary action. Martin
Devereaux is still a paid Business agent. I ask this committee to
consider why McCarron refused to impose a trusteeship on NY in light of
the corrupt circumstances while he indiscriminately imposed a
trusteeship on Local 225 in Atlanta after two failed attempts to
install his own people? See testimony of Phillip Lavallee and Darrel
Zube. In closing McCarron stated that he believed there was no need to
amend the LMRDA sugar coating his methods while basically
disenfranchising the members. He has complete control over the hiring
and firing of Business Agents, Organizers and Labor Management staff,
the majority of whom decide what happens to our union. I could tell you
many stories of the corruption in New York, I have documented many
cases. I have provided a copy of the Statement of Doug McCarron and
news articles regarding some of the corruption that still exists.
Please remember McCarron controls our political contributions but he
can't control our vote. Thank you for taking the time to read this
statement.
______
SUBMITTED FOR THE RECORD, LETTER TO CHAIRMAN SAM JOHNSON, FROM ARTHUR
L. FOX II, LAW OFFICES OF LOBEL, NOVINS & LAMONT, WASHINGTON, DC, JUNE
24, 2003
Law Offices of Lobel, Novins & Lamont,
Washington, DC, June 24, 2003.
Hon. Sam Johnson,
House of Representatives,
Rayburn Office Building, Washington, DC.
Re H.R. Nos. 992, 994.
Dear Congressman: I write to furnish background information
concerning Section 105 of the Labor Management Reporting and Disclosure
Act of 1959 (``LMRDA'') with which to assess the need to amend existing
law.
First, so as to enable you to assess my own bona fides and ability
to speak knowledgeably on the subject, I should explain that I have
been practicing public interest labor law in Washington, D.C., for 35
years, 4 years with the Office of General Counsel of the National Labor
Relations Board, 19 years with the Public Citizen Litigation Group, and
the past 12 years in ``private'' practice, primarily representing
``dissident'' union members and caucuses attempting to reform and
democratize their unions. I am one of a scant handful of lawyers in the
nation who has extensive experience litigating under, and attempting to
breathe life into, the LMRDA.
During most of my career, I have served on the Board of Directors
of the Association for Union Democracy (``AUD''), whose principles and
objectives mirror my own. I believe that a strong, healthy, and robust
union movement enhances not only the economic welfare of its members
and working men and women more broadly, but also the health of our
nations' democracy by helping to give voice to a major and very
important segment of our society.
After many years of attempting to educate union members about their
rights, and their union officers' responsibilities, under the LMRDA,
and realizing that most union members were totally unaware of this
statute, due in part to their unions' utter failure to comply with the
Section 105 duty to inform their members about it, AUD launched a
campaign to obtain union compliance with that duty in the mid-1990's.
In fairness to unions, while Section 105 requires them ``to inform
[their] members concerning the provisions of [the LMRDA],'' Congress
provided no guidelines; it failed to specify ``when,'' ``where,'' or
``how'' unions would be expected to fulfill their duty to inform.
Indeed, immediately after enactment of the LMRDA in 1959, there was
much discussion and inconclusive debate as to what would constitute
compliance. A number of unions reproduced the text of the entire Act in
their membership newspapers. Thereafter however, over the next 40
years, no union took any additional steps to inform its members about
their rights under the LMRDA.
The primary reason for this hiatus--apart from the statute's
vagueness--lies with the fact that the Section 105 duty to inform is
part of Title I, a hastily drafted portion of the statute which was
appended to the Senate Bill at the 11th hour, as a floor amendment that
was subsequently adopted pro forma by the House. And, with one minor
exception, union members were assigned the exclusive right, and
responsibility, for enforcing virtually all of Title I, including
Section 105, by filing individual lawsuits in federal courts against
their unions to remedy infractions. This enforcement scheme prompted
Professor Archibald Cox, counsel to the Senate Committee, to express
concern:
The effectiveness of the new law will depend largely upon the
initiative and energy of union members. * * * [T]here is the
danger, often expressed in the past, that individual employee's
suits are neither an effective sanction nor a practical remedy.
Workers are unfamiliar with the law and hesitate to become
involved in legal proceedings. The cost is likely to be heavy,
and they have little money with which to post bonds, pay
lawyer's fees and print voluminous records. * * * Even if the
suit is successful, there are relative few situations in which
the plaintiff or his attorney can reap financial advantage.
Most men are reluctant to incur financial cost in order to
vindicate intangible rights.
Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of
1959, 58 Mich. L. Rev. 819, 852-53 (1960).
This prophecy certainly held true insofar as Section 105 was
concerned. It was not until the late 1990's that a Machinist by the
name of Keith Thomas, aided by AUD and a pro bono attorney with a large
New York law firm, filed the very first lawsuit against a union seeking
to compel it to comply with the Section 105 duty to inform. See Thomas
v. IAM, 201 F.3d 517 (4th Cir. 2000). As that Court noted:
The LMRDA's protections are meaningless if members do not
know of their existence. Simply put, if a member does not know
of his rights, he cannot exercise them. This is where section
105 kicks in. Section 105 is the statute's informational
lynchpin, requiring labor organizations to inform members what
rights Congress granted them. Moreover, section 105 mandates
notification not only of the provisions of Title I, but of all
the rights found in the LMRDA.
Section 105, in addition to informing union members of their
substantive rights under the LMRDA, also notifies them of
provisions authorizing causes of action against unions for
infringements of these substantive rights.
201 F.3d at 520. The appellate court remanded the case to the district
court which ultimately entered an order (attached as Addendum A),
negotiated by the parties, requiring the Machinist Union to publish a
one-page outline of the LMRDA in its magazine, to furnish new members
with a copy of that outline, and to post it on its website.
Subsequently, given that Thomas is binding only on the IAM, most
other unions have continued to ignore the Section 105 duty to inform
their members about the LMRDA. Only when a member, most often with my
assistance, sends his or her union a ``demand letter'' insisting that
the union comply with the duty to inform, has a union done anything,
and then only begrudgingly. Indeed, AUD recently compiled a Section 105
union-compliance ``score card'' which I am attaching as Addendum B.
Only one other court has issued a decision interpreting Section
105. In Callihan v. United Assn Plumbers, another district court
rejected the plaintiffs' argument that furnishing members with a 1-page
outline at a single point in their lifetime as a union member failed to
inform them of their rights under the LMRDA since the odds were that
few members would have much interest in the subject they encountered
some difficulty, e.g., running for office, voting, discovering some new
dues exaction, or defending against internal disciplinary charges. The
plaintiffs demonstrated with a wealth of expert testimony that, at a
bare minimum, unions should append a summary of the LMRDA at the rear
of their constitutions which serve as the members' ``Bible'' which they
must consult to become informed of their rights and duties as members,
and the procedures which must be followed to secure those rights. That
decision (Addendum C) is currently on appeal before the U.S. Court of
Appeals for the District of Columbia. Copies of the parties Briefs, but
not the lengthy Appendix including expert testimony, are attached as
Addendum D-F.
Whatever the ultimate outcome of the Callihan case, while it may
provide ``guidance'' to other unions headquartered in Washington, D.C.,
it will be binding on just one more union, the Plumbers and
Pipefitters, in a universe that includes hundreds of national unions,
and thousands of other union entities. If experience is a guide, many,
if not most of these unions will do nothing to comply with Section 105
until it becomes enforceable, in a practical sense. As Professor Cox
noted, union members simply cannot be expected to file hundreds of
lawsuits. Moreover, there exists the potential in the relatively few
lawsuits that do get filed for other courts, located elsewhere in the
country, to render still other, possibly inconsistent, interpretations
of the Section 105 duty to inform in those relatively rare instances
where members are able to obtain competent legal counsel to sue unions
headquartered elsewhere to obtain compliance with the duty.
This ``state of affairs'' does not, in my view, serve the public
interest, the interest of union members, and not even the legitimate
interests of unions, themselves. There needs to be a single, uniform,
set of standards, guidelines, or procedures setting forth specifically
what unions must do, when, where, and how, to fulfill their Section 105
duty to inform their members about their rights, and their officers'
duties, under the LMRDA, and how to enforce those rights and duties.
While Congress could attempt to agree upon, and then to enact a statute
prescribing standards and procedures, I submit that a wiser and more
expedient course for filling the Section 105 statutory void would be to
delegate that responsibility, via rulemaking, to the Department of
Labor, and to confer upon it the right to initiate legal actions to
exact compliance with its rules. And that is precisely what H.R. 992
and 994 are intended to accomplish; no more, and no less.
Thank you for making this submission a part of the hearing record
on these two important bills. If you or any other Member should have
any questions or desire additional information, I would be happy to be
of assistance.
Respectfully,
Arthur L. Fox, II.
Attachments A-F.
ADDENDUM A
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
KEITH THOMAS, et al., Plaintiffs, v. THE GRAND LODGE OF THE
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, et al.,
Defendants.
Civil No. PJM 97-2001
final order
Upon consideration of the parties' written proposals and the
hearing held August 28, 2000, on the notification to be made by
Defendants to comply with Sec. 105 of the Labor-Management Reporting
and Disclosure Act of 1959 (the ``LMRDA''), 29 U.S.C. 415, it is
ORDERED that the summary of the LMRDA annexed as Attachment 1 to
Defendants' letter to the Court dated May 26, 2000 (the ``LMRDA
Summary''), is, with the following revisions, hereby deemed adequate
information concerning the provisions of the LMRDA: (1) the third and
last sentence of the first paragraph (``For more information contact
the nearest OLMS field office listed on the reverse.'') shall be
deleted; and (2) the name and address of the U.S. Department of Labor
at the bottom of the Attachment shall be replaced by the following:
``The above is only a summary of the LMRDA. The full text of the Act,
which comprises Sections 401-531 of Title 29 of the United States Code,
may be found in many public libraries, by writing the U.S. Department
of Labor, Office of Labor-Management Standards, 200 Constitution Ave.,
N.W., Rm. N-5616, Washington, DC 20210, or on the Internet at
www.dol.gov.'' The IAM may, if it chooses, state on the LMRDA Summary
that the Summary is being published pursuant to the Court's order, that
the Summary is not the editorial product of the IAM, or words to
similar effect. In each instance where the IAM publishes the LMRDA
Summary pursuant to this Order, the format of the LMRDA Summary shall,
except where expressly noted in this Order, be substantially identical
to the abovementioned Attachment 1; and it is further
ORDERED that each new member of Defendant Grand Lodge of the
International Association of Machinists and Aerospace Workers (the
``IAM'' or ``union'') shall receive a copy of the LMRDA Summary as part
of the ``IAM Owners Manual'' annexed in draft form as Exhibit A to
Defendants' letter to the Court dated July 31, 2000. The LMRDA Summary
shall be as similar as practicable in format to Defendants' Attachment
1 to their letter of May 26, 2000, allowing that the IAM Owners Manual
may be printed in a format with pages smaller than 8.5 x 11 inches. The
LMRDA Summary shall be listed in the Table of Contents to the IAM
Owners Manual in a manner similar to the listings for its other
sections or parts; and it is further
ORDERED that the IAM shall publish the LMRDA Summary in three
issues of the IAM Journal, to wit, one issue each to be published (i)
within six months of the date of this Order, (ii) in the calendar year
2004, and (iii) in the calendar year 2008, but such publication shall
not be made in an issue that also includes the IAM's notice pursuant to
Beck v. Communications Workers of America, 487 U.S. 735 (1988). Each
such notice shall be listed in the Table of Contents to the IAM Journal
in a manner similar to the listing for other articles or items
published in the same issue; and it is further
ORDERED that the IAM shall post the LMRDA Summary continuously on
the home page of its website on the Internet/World Wide Web under the
title ``Union Member Rights and Officer Responsibilities Under the
LMRDA.'' Said posting shall be in a typeface and style no less
prominent than any other optional link.
Peter J. Messitte,
United States District Judge,
September 19, 2000.
ADDENDUM B
Is Your Union in Compliance With Section 105 of the LMRDA?
Unions covered by the Labor Management Reporting and Disclosure Act
(LMRDA) are required to notify members of their rights under the law.
Section 105 of the LMRDA states: ``Every labor organization shall
inform its members concerning the provisions of this Act.''
section 105 compliance scorecard
When the LMRDA was first adopted in 1959, a few unions--very few--
took a limited one-time step to comply. Forty years pass. An old
generation of unionists is replaced by a new one. Unions ignore the
law. With one minor exception, there is no compliance until September
2000 when two machinists are successful in their federal lawsuit to
compel their union to comply.
On this scoreboard, to be updated from time to time, AUD will
record the story of Section 105 compliance--or evasion. To get your own
national or international union on the list, you must begin by formally
requesting it to comply. For further information, contact AUD. We are
currently assisting members of a number of unions with Section 105
cases.
Compliance:
MMP. Masters, Mates, and Pilots: An exceptional case.
Several years ago, when Arthur Holdeman was MMP vice president for the
Gulf, he reprinted the Act and distributed copies to all licensed deck
officers in his constituency at his own expense. Some years later, even
before the court's decision in the IAM case, the MMP national office
published a summary of the Act in its newsletter.
IAMAW. International Association of Machinists: After
losing a lawsuit in federal court, the union agreed to permanently post
a summary of the Act on its website, to distribute a copy to new
members, and to publish it in the IAM Journal in the years 2000, 2004,
and 2008.
Partial Compliance:
UAW. United Auto Workers: In December 2002, seemingly on
its own in initiative, it posted the full text of the Act on its
website with a prominent paragraph on its home page directing readers
to it. No publication or other distribution of the summary, however.
UA. United Association of Plumbers and Pipefitters: Faced
with a lawsuit filed by two members, the UA agreed to publish a summary
of the Act in its Journal in 2001, 2004, and 2008 and to distribute the
summary to new members. When the district court ruled that these
actions constituted sufficient compliance, attorney Arthur Fox appealed
and asked the Federal Circuit Court to go beyond the Machinist standard
and require the UA to append the summary at the rear of its
constitution booklet as well as to post it on its website.
HERE. Hotel Employees and Restaurant Employees: In a
February, 2002 letter to Arthur Fox, HERE President John Wilhelm
promised to publish the full text of the Act in its magazine once every
year in order to avoid a threatened lawsuit.
SIU. Seafarers' International Union: In response to a
threatened lawsuit, it began publishing a summary of the Act as part of
the President's ``Know Your Rights'' column that appears in every issue
of its newspaper.
Limited and Evasive Compliance:
Ironworkers Union: After being threatened with a lawsuit,
it published the summary in the June, 2001 issue of the Iron Worker
magazine. Nothing More.
UTU. United Transportation Union: After being threatened
with a lawsuit, it promised to abide by the Machinist decision and
promptly posted the summary on its website and published it once in its
magazine. However, it subsequently removed the website notice, thereby
casting doubt on its readiness to remain in continuing compliance.
UBCJ. United Brotherhood of Carpenters: In an apparent
effort to forestall a threatened lawsuit, it printed a summary of the
Act in an issue of its Journal on dark blue paper which cannot be
photocopied. Nothing more.
NALC. National Association of Letter Carriers: In response
to a member's demand and a threatened lawsuit, it published a summary
of the Act in the February, 2002 Postal Record. Nothing more.
Non-Compliance:
IATSE. International Alliance of Theatrical and Stage
Employees: At its 2001 convention, a group of delegates introduced a
motion to require the union to post a summary of the Act on its
website. Motion defeated.
NTEU. National Treasury Employees Union: In rejecting a
member's demand in 2001, NTEU President Colleen Kelley asserted that
because her union represented government employees, it was exempt from
any duty to inform its members about their statutory, democratic
protections.
US DOL. United States Department of Labor: it does not
have authority to compel unions to comply with Section 105, one reason
unions have been able to ignore their duty to inform members about
their rights under the LMRDA for the past 40-plus years. (A bill is
pending in Congress to give the DOL enforcement authority.) However,
the DOL does have responsibility under the Civil Service Reform Act of
1978 for protecting the rights of federal unionists, rights that
parallel those in the LMRDA. And, for the past 25 years, the DOL has
failed to compel federal unions (including NTEU) to inform their
members about their democratic rights. In the Spring of 2002, AUD
petitioned the DOL to promulgate a new rule that would mimic section
105 and require unions representing federal workers to inform their
members about their rights (see below). DOL has not responded to the
petition.
ADDENDUM C
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHARLES CALLIHAN, et al., Plaintiffs, v. UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY,
et al., Defendants.
Civil Action No. 00-2988 (JR)
memorandum
On March 6, 2002, I issued an order declaring Section 199 of the
Constitution of the United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry inconsistent with 29 U.S.C.
Sec. 411(a)(2) and therefore invalid, together with a memorandum
explaining that ruling. On March 14, 2002, I implemented that ruling
with an order requiring the defendants to publish the March 6
memorandum and order in the U.A. Journal in no less than 11 point type
under a specific heading in 22 point bold and to include a reference to
the memorandum and order in the table of contents. The memorandum and
order were printed in the June issue of the U.A. Journal, but without
the heading or the reference in the table of contents. Plaintiff has
moved to compel full compliance with the March 14 order.
The Union's position that it ``substantially complied'' with the
March 14 order is rejected. The order very specifically required a
heading, in boldface, 22 point type, and a reference in the table of
contents. The Union will have to do it again, and do it correctly.
The parties' dispute about Section 199 of the U.A. Constitution was
only one of two discrete disputes presented by the complaint in this
case. The other one, which concerns the adequacy of the Union's
compliance with section 105 of the Labor-Management Reporting and
Disclosure Act of 1959 (``LMRDA''); 29 U.S.C. Sec. 415, is now ripe for
decision, having been fully briefed by both parties on cross motions
for summary judgment.
Prior to this lawsuit, the Union had promulgated the contents of
the Landrum-Griffin Act to its membership only once in 42 years--when
it was first enacted. The plaintiff by his insistent demands has
succeeded in achieving publication of a one-page summary of union
member rights and officer responsibilities under the LMRDA in the U.A.
Journal in March 2001; modification of the welcome letter distributed
by U.A. locals to new members to include a summary of provisions of the
Act; and Union agreement to republish the summary in the U.A. Journal
again in 2004 and 2006. Not satisfied with those concessions, however,
he prays for injunctive relief.
Section 105 of the Landrum-Griffin Act provides that ``[e]very
labor organization shall inform its members concerning the provisions
of this chapter.'' Plaintiff insists that Union membership is not
``informed'' by periodic or obscure publications of the Act, or by the
publication of a summary of the Act prepared by the United States
Department of Labor. In the record of this case, plaintiff has adduced
expert testimony (by affidavit) of a number of distinguished scholars,
union leaders, union newspaper writers, and others for the proposition
that union members are generally uninformed about the contents and the
significance of the. Landrum-Griffin Act, and even about its existence.
The point of this expertise is clear and persuasive--but it is not
susceptible of a judicial remedy.
The Department of Labor has never issued regulations implementing
Sec. 105, and it is undisputed that the Department ``neither possesses
nor asserts the authority to direct labor unions to use any particular
means in carrying out their statutory duty to `inform.' '' Def. Mem. at
p. 7. The only legal (as distinct from scholarly and political)
authority for plaintiff's position is found in the Fourth Circuit's
decision in Thomas v. Int'l Assoc. Machinists, 201 F.3d 517 (2000). In
that decision, the Fourth Circuit held that a one-time notification of
members in 1959 by the International Association of Machinists ``did
not inform a large portion of those individuals who by definition are
`members' of the union'' today, id. at 519. The Fourth Circuit did not
say how today's union members were to be informed (although it did
observe that the inclusion of some protections of the Landrum-Griffin
Act in the union constitution and in a pamphlet was not satisfactory,
because those IAM materials did not contain all of the Act's
protections and virtually none of the rights listed by those documents
were presented as requirements of federal law, id. at 521). Instead, it
remanded the case for the district court to fashion an appropriate
remedy. The district court's final order provided, essentially, that
the Labor Department's summary, revised only to state that the full
text of the Act is available elsewhere, is adequate information
concerning the provisions of the LMDRA; that the summary is to be sent
to new members of the IAM; that the summary is to be published in three
issues of the IAM Journal, in 2001, 2004 and 2008; and that the summary
is to be published continuously on the IAM's website. Final order of 9/
19/00, Afft. of Arthur L. Fox, Ex. B.
Except for website publication, which is a good idea and which
common sense commends to every union having a website, those provisions
are virtually identical to what will be done here under the agreement
that plaintiff has extracted from the Union. Nothing further is
required to achieve compliance with the command of the statute.
An appropriate order accompanies this memorandum.
James Robertson,
United States District Judge,
Dated: August 12, 2002.
ADDENDUM D
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 02-7111
CHARLES CALLIHAN, et al., Plaintiff-Appellants. v. UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY,
et al., Defendant-Appellees.
appellants' brief
jurisdiction
Plaintiff-appellants are union members seeking to remedy their
union's 42-year failure to inform its membership about their rights,
and their officers' responsibilities, under the Labor-Management
Reporting and Disclosure Act of 1959 (herein, ``LMRDA''), as required
by Section 105. 29 U.S.C. Sec. 415. Jurisdiction in the District Court
was predicated on 29 U.S.C. 412, and 28 U.S.C. 1331.
The District Court denied plaintiff-appellants' motion for summary
judgment, granted defendant-appellees' cross-motion, and entered a
final judgment dismissing this action on August 13, 2002. Notice of
appeal was filed on September 12, 2002. This Court has jurisdiction
pursuant to 28 U.S.C. Sec. 1291.
statement of the issue
Whether the UA's publication of a one-page summary of the LMRDA in
the UA Journal, and inclusion in the welcome packet sent to new
members, satisfies its obligation under Section 105 to inform its
members concerning the provisions of the Act.
statutes and regulations
Section 105 of the LMRDA provides: ``Every labor organization shall
inform its members concerning the provisions of this Act.'' 29 U.S.C.
Sec. 415.
standard of review
Because this appeal is from a decision granting summary judgment,
review by this Court is de novo. See, e.g., Grilvin v. Fire, 259 F.3d
749, 756 (D.C. Cir. 2001).
statement of the case
Procedural History
After exhausting intra-union appeals for more than four months and
obtaining no meaningful relief, plaintiff appellants filed a two-count
complaint on December 13, 2000, alleging (1) that a provision in the
constitution. of the United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry (herein, ``UA'') mandating the
expulsion of members ``found guilty of sending out circular letters of
falsehood and misrepresentation'' unlawfully chilled and infringed
their LMRDA Title I free speech rights, 29 U.S.C. 411(a)(2), and (2)
that the UA had, for the previous 42 years, failed and refused to
inform its members about their rights, and their officers'
responsibilities under the LMRDA, also in violation of Title I of that
Act, 29 U.S.C. Sec. 415. Docket No. 1.
On March 6, 2002, the district court entered a memorandum opinion
and order granting plaintiff-appellants' motion for partial summary
judgment on their free speech claim, finding the challenged
constitutional restraint on member speech to be unlawful and ordering
the UA to remove it from its constitution and to inform its members
that the provision had been judicially invalidated. Docket Nos. 24, 28.
Thereafter, at an April 2, 2002 status conference, counsel for the
UA informed the court that it had recently published a one-page summary
of the LMRDA in the UA Journal and had begun sending a copy of the
Summary to new members. Counsel contended that, by these actions, the
UA had brought itself into full compliance with Sectiou 105. Although
no discovery had been conducted, no record developed, and no briefs
filed, the court opined that
it is not the province of this Court to fine tune [the Section
105 duty] so as to decide [that an LMRDA summary] has to be on
the [union] website or printed on the back of the constitution
[as plaintiffs requested] . . .
Publication in a journal that is sent to every dues-paying
member plus the issuance to every new member of a one-page
summary seems to me to be adequate compliance with the bare
bones--with the very bare bones statutory provision.
Now I'll rule that way and put together a very short
memorandum, and you can take that up if you want to see if you
can get a different ruling from our circuit or a split in the
circuits, Mr. Fox; or, if you choose, one side or the other can
launch another whole series of motions, and I'll decide them.
JA 108. When plaintiffs' counsel responded that he wanted ``to develop
[a] record in the form of affidavits at a bare minimum,'' the court
promptly directed, ``you file your motion for summary judgment since
the facts are undisputed.'' Id.
Subsequently, plaintiff appellants filed a motion for summary
judgment supported, inter alia, by a number of affidavits from labor
union experts, a PhD thesis examining union official (as opposed to
member) knowledge and awareness of the LMRDA, and empirical evidence of
recent actions by other unions to bring themselves into compliance with
Section 105. True to its word, the court promptly denied the motion,
dismissed the Section 105 claim, and entered final judgment on August
13, 2002. In its opinion, the court noted that
plaintiff has adduced expert testimony (by affidavit) of a
number of distinguished scholars, union leaders, union
newspaper writers, and others for the proposition that union
members are generally uninformed about the contents and the
significance of the Landrum-Griffin Act, and even about its
existence. The point of this expertise is clear and
persuasive--but it is not susceptible of a judicial remedy.
JA 10.\1\ After briefly reviewing the final order issued in the only
other case of record where a union member sued his union to gain
compliance with Section 105, the court below held:
\1\ The experts included: Professor Clyde Summers, who was at Yale
Law School when he served as an advisor to Senator John F. Kennedy who
floor-managed the Senate's Bill which became the core of the LMRDA (JA
38, 40), and who drafted Title 1, see Brown v. Lowen, 857 F.2d 216, 218
(4th Cir. 1988), aff'd en banc, 889 F.2d 58 (1989), aff'd sub nom,
Masters, Mates & Pilots v. Brown, 498 U.S. 466 (1991); Herman Benson,
founder of the Association for Union Democracy, who has worked with
thousands of unionists, academics, and union officials to promote the
goals of the LMRDA since it was enacted (JA 44); William Fletcher, who
has held a number of key organizing and education positions in various
unions, most recently, Education Director of the AFL-CIO where he also
served as Special Assistant to President John Sweeney (JA 55-56);
Martin Fishgold and Andy Zipser, editors of union publications (JA 58,
62); and Ken Paff, who has been at the center of the movement to reform
and democratize the Teamsters Union since its inception in the mid-
1970's (JA 64-65).
Citations to their testimony herein will not only identify the
appropriate page in the Joint Appendix (``JA''), but also the affiant
and specific paragraph in his affidavit.
Except for website publication, which is a good idea and
which common sense commends to every union having a website,
those provisions are virtually identical to what will be done
here under the agreement that plaintiff has extracted from the
Union. Nothing further is required to achieve compliance with
---------------------------------------------------------------------------
the command of the statute.
JA 11.
Statement of Facts
The plaintiff-appellants are members of the United Association
(``UA''). JA 14 (para.para. 1-2). Prior to the filing of this lawsuit
in December of 2000, the UA had not informed its members, including
appellants, concerning their rights, and their officers' duties, under
the LMRDA since October of 1959, when it published the entire text of
the LMRDA in the UA Journal. JA 14 (para. 3). Thus, during the balance
of the 20th Century, the UA took no further steps systematically to
inform its membership concerning the provisions of the LMRDA. JA 14
(para. 4), 18-19.
After the Fourth Circuit ruled in. Thomas v. Int'l Ass'n of
Machinists, 201 F.3d 517 (2000), that the Section 105 duty to inform
members about the provisions of the LMRDA was a continuing duty, not
satisfied by a one-time publication of the Act in 1959, plaintiff
Callihan sent a letter, dated May 24, 2000, to UA General President
Maddaloni informing him about the Thomas decision and demanding that he
bring the UA into compliance with Section 105. JA 14 (para. 5), 22
(para. 5), 25. Four months later, having received no response from
Maddaloni, Callihan sent a second demand letter, dated September 24,
2000, in which he requested that Maddaloni furnish him with a response
no later than October 20, 2000. JA 14 (para. 6), 22 (para. 5), 26-27.
When Maddaloni still had not replied by December 13, 2000, Callihan
filed this action, inter alia, to compel. the UA to comply with Section
105. JA 15 (para. 7), 22 (para. 5).
Thereafter, in a letter to plaintiffs' counsel dated January 29,
2001., UA counsel represented that the Union would publish in its
membership media organ, and distribute to new members, a one-page
Summary, captioned ``Union Member Rights and Officer Responsibilities
Under the LMRDA.'' JA 15 (para. 8), 87. That Summary was, in fact,
published in the March 2001 UA Journal which was sent to all members.
JA 15 (para. 10). The UA also modified the ``Welcome Letter''
distributed to new members to include the following language:
``Finally, we enclose a summary of provisions of the Labor Management
Reporting and Disclosure Act.'' JA 15 (para. 11), 98. And, after a
further exchange of correspondence between counsel, the UA agreed to
republish the Summary of the LMRDA in the VA Journal again in 2004 and
2008. JA 15 (para. 12), 94.
Although plaintiffs' sought to have the UA post the Summary on its
website and append it at the back of its printed constitution booklet,
the UA refused to do so absent a court order which was not forthcoming.
summary of argument
When enacting the LMRDA, Congress intended to create within labor
unions a new regime of individual rights, democratic governance and
ethical practices. And it assigned to union members a central role not
only in the governance of their unions, but also in the enforcement of
the LMRDA. Section 105 is not just an integral part of that scheme, it
is the cornerstone of the Act. If members are not informed of their
rights as well as their officers' obligations under the Act, they can
hardly be expected to play the role Congress assigned to them.
Perhaps realizing that this case would likely be appealed, whatever
the outcome, the district court gave it short shrift. In doing so, the
court construed Section 105 narrowly,ignoring legions of caselaw
holding that, as a remedial statute, the LMRDA. must be construed
broadly in order to achieve Congress' overriding, democratic
objectives.
UA members did not become informed about the Act upon receipt of
what amounts to a one-time legal notice. Rather, the Section 105 duty
to inform members can only be met if the UA furnishes its members, on
an ongoing basis, with a Summary of their LMRDA rights which is readily
available to them on those occasions when they have reason both to need
and to want to learn about their rights, and bow to enforce them. That
obligation can only be net by appending the Summary to the UA
Constitution booklet which serves as the members' legal bible, and by
posting the Summary on the UA website.
argument
Introduction
To understand why the UA's alleged compliance does not fulfill its
statutory obligation under Section 105, it is first necessary to review
the political framework Congress established through the LMRDA and the
role of Section 105 within it. Thereafter, we will consider what
constitutes compliance with Section 105 and whether, as the district
court concluded, the Section is merely a ``bare bones,'' legal-notice-
type requirement, or something more useful and informative.
A. The LMRDA Was Intended To Create A New Political Order of Union
Democracy, Ethical Practices and Member Enforcement
Through the LMRDA, Congress created a political order within labor
unions based on democracy, disclosure, ethical practices, and
accountability. Congress' ``primary objective'' in passing the Act was
to ``ensur[e] that unions would be democratically governed and
responsive to the will of their memberships.'' Finnegan v. Leu, 456
U.S. 431, 436 (1982). Its enactment followed two years of highly
publicized hearings on union corruption by the Senate Select Committee
on Improper Activities in the Labor-Management Field, chaired by
Senator John McClellan. Wirtz v. Local 153, Glass Bottle Blowers
Ass'n., 389 U.S. 463, 409-70 (1968). The McClellan Committee heard
voluminous testimony concerning: union racketeering and the oppression
of union members by autocratic officials; the misuse of union funds;
reprisals, including violence, against members for expressing their
views, seeking union office, or otherwise participating in union
affairs; the imposition of trusteeships over local unions for the
purpose of manipulating politics and suppressing dissent; and all sorts
of electoral chicanery. S. Rep. No. 1417, 85th Cong., 2d Sess. (1958)
(interim report); S. Rep. No. 1139, 86th Cong., 2d Sess. (1960) (final
report).
1. The LMRDA
The LMRDA established a detailed, albeit limited, scheme to
regulate labor organizations; it conferred upon members, and sought to
protect, various democratic rights. Title 1. which contains Section
105, is captioned the ``Bill of Rights of Members of Labor
Organizations.'' It guarantees members a right to equal participation
in union affairs, 29 U.S.C. Sec. 411(a)(1), to free speech and
assembly, 29 U.S.C. Sec. 411(a)(2), to a democratic voice when raising
dues and other financial assessments, 29 U.S.C. Sec. 411(a)(3), to seek
judicial relief, 29 U.S.C. Sec. 411(a)(4), to fundamental due process
in disciplinary proceedings, 29 U.S.C. Sec. 411(a)(5), to enforce their
Title I rights through civil actions in federal court, 29 U.S.C.
Sec. 412, to receive a copy of their collective bargaining agreements,
29 U.S.C. Sec. 414, and, in Section 105, to be informed by their unions
concerning the provisions of the entire Act, 29 U.S.C. Sec. 415.
Although it most directly addresses the entitlements of union
members, Title I is not the only portion of the Act which secures their
rights or is otherwise of keen interest to them. For example, Title II
mandates extensive reports by unions concerning their organization and
finances, 29 U.S.C. Sec. 431, and their officers' potential conflicts
of interest, 29 U.S.C. Sec. 432. In particular, it requires unions to
make their disclosures available to their members, and allows those
members to seek judicial authorization to examine the books and records
upon which their union's reports are based. 29 U.S.C. Sec. 431(c).
Title III prohibits unions from placing local unions or other
subordinate bodies in. trusteeship in order to suppress democratic
movements, and allows both the Secretary of Labor and union members to
enforce this prohibition by civil action in federal court. 29 U.S.C.
Sec. 4G4(a).
Title IV sets standards for union officer elections. It requires
that union elections be held by secret ballot and at certain minimum
frequencies, 29 U.S.C. Sec. 481(a)(b) & (d), that unions allow members
reasonable opportunity to run for, and to nominate candidates for,
union office, 29 U.S.C. Sec. 481(e), and it mandates that campaigns and
elections be run fairly and democratically, 29 U.S.C. Sec. 481(c), (e)
& (g). It obliges the Secretary of Labor to seek to overturn elections
where, after investigating the complaint of an aggrieved union member,
probable cause of a violation has been found. 29 U.S.C. Sec. 482.
Title V, ``Safeguards for Labor Organizations,'' creates a
fiduciary duty for union officers and agents, 29 U.S.C. Sec. 501(a),
and allows any member to sue for appropriate reliefto remedy fiduciary
violations where the union, itself, has failed or refused to hold its
officers accountable for fiduciary violations, 29 U.S.C. Sec. 501(b).
Title VI bars reprisals against union members for exercising any
right under the Act, 29 U.S.C. Sec. 529, creates a federal cause of
action for members injured by such reprisals, and creates criminal
penalties for using or threatening to use force or violence against any
member for exercising any right secured by the Act, 29 U.S.C. Sec. 530.
Thus, the LMRDA, taken as a whole, sets forth a scheme for
regulating and monitoring unions in the interest of their members and
the public. Various of its Titles define union members' rights and
authorize members to sue to enforce those rights; other Titles
authorize or oblige the Secretary of Labor to act upon member
complaints, or otherwise to establish regulatory and disclosure
requirements that express the congressional policy of union democracy
and ethical practices.
Importantly, the Title I ``Bill of Rights''--which includes the
members Section 105 right to be informed about the provisions of the
entire Act--was offered as a floor amendment by ``legislators [who]
feared that the [Senate Committee's] bill did not go far enough because
it did not provide general protection to union members who spoke out
against the union leadership.'' Sheet Metal Workers' Int'l Ass'n v.
Lynn, 488 U.S. 347, 352 (1989) (quoting Steelworkers v. Sadlowski, 457
U.S. 102, 109 (1982)). In offering the first version of Title I on the
floor of the full Senate, Senator McClellan recalled his prior
statement to the Committee on Labor and Public Welfare when it first
began to consider the issues brought to light by his investigative
committee:
At that time I made the statement, ``I believe that if you
would give to the individual members of the unions the tools
with which to do it, they would pretty well clean house
themselves.''
If we want fewer laws--and want to need fewer laws providing
regulation in this field, we should start with the basic
things. We should give union members their inherent
constitutional rights, and we should make those rights apply to
union membership as well as to other affairs of life. We should
protect the union .members in those rights. By so doing we will
be giving them the tools they can use themselves. That is all I
am proposing to do by this amendment.
105 Cong. Rec. 6476 (1959), reprinted in II NLRB, Legislative History
of the Labor Management Reporting and Disclosure Act of 1959 at 1102-03
(1985) [hereinafter ``Leg. Hist.''].
By thus empowering union members, Title I's ``pervading premise''
was to assure ``full and active participation by the rank and file in
the affairs of the union.'' American Fed. of Musicians v. Wittstein,
379 U.S. 171, 182-83 (1964). See also Burroughs v. Operating Engineers
Local Union No. 3, 686 F.2d 723, 727 (9th Cit. 1982) (``The evident
purpose of [LMRDA's] bill of rights is to safeguard and preserve actual
union democracy [and] to shield the union membership from arbitrary,
autocratic, and despotic control by union officers and leaders'').
2. Section 105--The Cornerstone for Effectuating the Goals
of the LMRDA
Because this case presents an issue of statutory construction., we
begin with the language of the statute:
Every labor organization shall inform its members concerning
the provisions of this Act.
29 U.S.C. Sec. 415. Unfortunately, Congress did not elaborate, or
specify the manner or means by which unions would be expected to comply
with this mandate. And, largely because the provision was added at the
11th hour as part of a floor amendment, there is no specific
legislative history from which to draw guidance.
This problem is not, however, unique to Section 105. As the Supreme
Court observed in Local 82, Furniture Movers v. Crowley, 467 U.S. 526
(1984), when construing another provision in Title I:
we have previously ``cautioned against a literal reading'' of
the LMRDA. Like much federal labor legislation, the statute was
``the product of conflict and compromise between. strongly held
and opposed views, and its proper construction frequently
requires consideration of its wording against the background of
its legislative history and in light of the general objectives
Congress sought to achieve.''
467 U.S. at 541-42, quoting from Wirtz v. Glass Bottle Blowers Ass'n,
389 U.S. 463, 468 (1968).\2\
---------------------------------------------------------------------------
\2\ See also Mallick v. IBEW, 749 F.2d 771, 776 (D.C. Cir. 1984);
Navarro v. Gannon, 385 F.2d 512, 517-18 (2d Cir. 1967), cert. denied,
390 U.S. 989 (1968) (J. Lombard noted: ``The Bill of Rights that
appears as Title I of the Act was hastily drafted and included without
much debate . . ., Without any express indication of congressional
intent, we must . . . consider the broad purposes of the Bill of
Rights''); Archibald Cox, Internal Affairs of Labor Unions Under the
Labor Reform Act of 1959, 58 Mich. L. Rev, 819, 852 (1960) (``The
[LMRDA] contains more than its share of problems for judicial
interpretation because much of the bill was written on the floor of the
Senate or House of Representatives and because many sections contain
calculated ambiguities or political compromises essential to secure a
majority. Consequently, in resolving them the courts would be well
advised to seek out the underlying rationale without placing great
emphasis upon close construction of the words''), quoted approvingly in
Glass Bottle Blowers, supra, 389 U.S. at 468 n.6, Sadlowski, supra, 457
U.S. at 111, and Crowley, supra 467 U.S. at 542 n.17.
---------------------------------------------------------------------------
Indeed, as we shall see, Section 105 is the cornerstone that
supports the LMRDA as a whole and gives vitality to the rights of union
members enumerated in the rest of the Act. Cf. Knox County Local v.
Natl. Rural Letter Carriers' Assn., 720 F.2d 936, 939 (6th Cir. 1983)
(recognizing importance of the right of union members ``to receive
information, without which they would be unable to exercise fully their
right to participate in deliberations in union affairs'').
The language of Section 105 is simple, unambiguous and mandatory.
Section 105's affirmative duty flows directly from the central role
Congress contemplated for union members in the reform and governance of
their unions. As we have seen, Congress sought to assure the ``full and
active participation by the rank and file in the affairs of the[ir]
union[s].'' It is axiomatic that without knowledge of their rights
under the LMRDA, and assurance of their protection, union members will
be reluctant or even incapable of fulfilling that role.
The importance of Section 105 in achieving democracy within unions,
as well as the reluctance of unions to honor its mandate, is
underscored in an insightful article by the draftsman of Title l. See
n. 1, supra. Professor Clyde Summers has observed that unions generally
function as ``one-party political states,'' were the incumbent
leadership has control over a substantial administrative apparatus,
including appointed union officials, the union press, and the agenda
and conduct of meetings. Summers, Democracy in a One-Party State:
Perspectives from Landrum-Griffin, 43 Md. L. Rev. 93, 97-98 (1984).
Unlike our larger political system, within the union ``state,''
competing political parties and the scrutiny of the press are generally
absent. Id.
[One] source and instrument of oligarchic control [by the
incumbent officers] is domination of the channels of
communication. Control over the union journal, with its
adulation of incumbent officers, unqualified support of their
policies, and exclusion of effective presentation of other
positions, is only the most obvious instrument . . .
[Accordingly, t]he function of the law must be to loosen the
grip of oligarchy so that those opposed to the incumbents can
make their voices heard and the weight of their opposition
felt.''
Id. at 97-99. See also Donovan v. CSEA, 761 F.2d 870, 875 (2d Cir.
1985).
Unfortunately, precious few union members, in the UA and elsewhere,
are aware of the LMRDA. One scholarly survey found only meager
knowledge of the LMRDA, even among union officials. Dennis D. Strouble,
A Study To Evaluate the Current Attitudes Toward the Effectiveness of
the Labor Management Reporting and Disclosure Act in Texas (1984)
(unpublished D.B.A. dissertation, Texas Tech University), JA 73-82.
More significantly, the union officials surveyed unanimously believed
that most of their own members were ignorant of the LMRDA's protections
of individual members' rights. JA 83. Nevertheless, since shortly after
the LMRDA was enacted, no union surveyed had made, or was planning to
make, any effort to comply with Section 105. JA 76. The net result of
these unlawful failures has been that the self-policing regime
contemplated by the Act has been substantially frustrated. JA 44-46
(Benson para.para. 4-13), 38 (Summers para. 8).
Section 105 was intended to make the LMRDA's system of union
democracy and disclosure effective by engaging the active support and
involvement of union members who are not only the Act's intended
beneficiaries but, in very large measure, its indispensable guardians
as well. In this manner, by obviating the need for the union member
``to have to read about his rights in the Harvard Law Review,'' Nelson
v. Johnson, 212 F. Supp. 233, 261 (D. Minn. 1962), Section 105
strengthens the tendency of labor organizations to be responsive to
their members. See Mallick v. International Bhd. of Electrical Workers,
749 F.2d 771, 777 (D.C. Cir. 1984) (finding Title I aims to end
operation of unions as ``private fiefdoms . . . `by placing the
ultimate power in the hands of the members, where it rightfully
belongs, so that they may be ruled by their free consent, [and] may
bring about a regeneration of union leadership','' (quoting 105 Cong,
Rec. 6472 (remarks of Sen. McClellan)).
This remedial view of Section 105 was recently embraced by the
Fourth Circuit in Thomas v. IAM, 201 F.3d 517 (2000), the first case in
which the courts were called upon to enforce Section 105:
The LMRDA's protections are meaningless if members do not
know of their existence. Simply put, if a member does not know
of his rights, he cannot exercise them. This is where section
105 kicks in. Section 105 is the statute's informational
lynchpin, requiring labor organizations to inform members what
rights Congress granted them. Moreover, section 105 mandates
notification not only of the provisions of Title 1, but of all
the rights found in the LMRDA.
Section 105, in addition to informing union members of their
substantive rights under the LMRDA, also notifies them of
provisions authorizing causes of action against unions for
infringements of these substantive rights.
201 F.3d at 520. After analyzing the means of enforcing many of the
Act's provisions, and noting Senator McClellan's observation that by
giving ``members the tools with which to do it, they would pretty well
clean house themselves,'' the Court held that, in order for ``members
to be able to do that job, they must first be made aware of the Act's
enforceability provisions.'' Members, the court held, are ``not only
the beneficiaries of the LMRDA but in many instances its sole
guardians.'' Id. While the court did not resolve the issue before this
Court concerning ``how . . . union members were to be informed'' of
their rights, JA. 11, it did observe that
[m]aintaining honest democratic governance of unions is surely
an ongoing effort that would seem perforce to require some
ongoing method of notification.
201 F.3d at 520 (emphasis added).\3\
---------------------------------------------------------------------------
\3\ The circuit court remanded the action to the district court to
determine ``how'' the Machinist Union could bring itself into
compliance with Section 105. On remand, rather than develop a record,
as here, and litigate that issue, the parties negotiated what amounted
to a consent order. See JA 105.
---------------------------------------------------------------------------
``Section 105 is, therefore, a cornerstone of the LMRDA which
should be read to require labor organizations to take effective steps
to keep their members informed about their rights under that Act on an
ongoing basis. Conversely, unions should not be allowed to getaway with
symbolic acts and empty gestures, posturing compliance with Section 105
while purposely failing, actually and effectively, to inform their
members about the provisions of the Act.'' JA 46 (Benson para. 15),
emphasis in original. See also JA 39 (Summers para. 9).
B. The Authority and Responsibility of the Courts under Section 105
Section 102 of Title I authorizes courts to grant ``such relief
(including injunctions) as may be appropriate'' to remedy violations of
Title I. 29 U.S.C. Sec. 412. Significantly, as the Supreme Court has
noted, while other LMRDA titles
deal with narrowly defined problems under the Act, and
specifically authorize . . . limited remedies . . . [b]y
contrast, Sec. 102 was premised upon the fact that Title I
litigation necessarily demands that remedies ``be tailored to
fit facts and circumstances admitting an almost infinite
variety,'' and Sec. 102 was therefore cast as a broad mandate
to the courts to fashion ``appropriate'' relief. Indeed, any
attempt on the part of Congress to spell out all the remedies
available under Sec. 102 would create the ``danger that those
[remedies] not listed might be proscribed with the result that
the courts would be fettered in their efforts to `grant relief
according to the necessities of the case.' ''
Hall v. Cole, 412 U.S. 1, 10-11 (1973). See also Knox County Local,
supra, 720 F.2d at 939 (``The latitude granted to [the courts] by Title
I . . . clearly permit[s] judicial intervention to protect the right of
union members to free speech and to receive information.''). Thus,
Section 102 is an unusually broad mandate for courts to craft
meaningful and effective remedies for any and all violations of Title
I, including Section 105.
The legislative history of the LMRDA supports this view. While the
predecessor of Section 105, Section 508 of the Kennedy-Ervin bill,
called for the Secretary of Labor to prescribe the manner and means by
which unions would be required to inform their members about their
rights, and officers' duties, under the LMRDA, 105 Cong. Rec. 5981
(1959), I Leg. Hist. 391, that provision was deleted from later
versions of the LMRDA introduced in the House and subsequently passed
both by it and by the Senate. I Leg. Hist. 633, 702. In addition, while
Senator McClellan's bill of rights would also have assigned to the
Secretary authority to enforce all of its provisions, 105 Cong. Rec.
6475 (1959), II Leg. Hist. 1102, Senator Kuchel's substitute amendment,
proffered to eliminate ``the extremes raised by the [McClellan]
amendment,'' 105 Cong. Rec. 6722, II Leg. Hist. 1234 (Sen. Cooper),
removed the Secretary of Labor from the Title I enforcement scheme and
reassigned that authority, with one exception,\4\ to ``[a)ny person
whose rights secured by the provisions of this title have been
infringed.'' 105 Cong. Rec. 6694 (1959), II Leg. Hist. 1220.\5\ The
Kuchel, substitute was approved by a vote of 77-14, 105 Cong. Rec.
6727, II Leg. Hist. 1239; shortly thereafter, the ``House bill, which
contained a `Bill of Rights' identical to that adopted by the Senate,
was quickly approved.'' United Steelworkers v. Sadlowski, 457 U.S. 102,
110 (1982).\6\ Accordingly, with the single exception of Section 104,
Congress assigned to the courts responsibility for construing and
enforcing Title I which, of course, includes Section 105.
---------------------------------------------------------------------------
\4\ Section Sec. 104, 29 U.S.C. 414, gives the Secretary power to
enforce the requirement that unions make copies of collective
bargaining agreements available to members.
\5\ See also II Leg. Hist. 1113 (Sen. Kennedy), II Leg. Hist. 1223
(Sen. Johnston), II Leg. Hist. 1232 (Sen. Kuchel), II Leg. Hist. 1233
(Sen. Clark: Kuchel Amendment ``takes the Federal bureaucracy out of
this bill of rights and leaves its enforcement to union members, aided
by the courts''), and ii Leg. Hist. 1238 (Sen. Kefauver).
\6\ This modification prompted Professor Archibald Cox, counsel to
the draftsmen, to express concern: ``The effectiveness of the new law
will depend largely upon the initiative and energy of union members. *
* * [T]here is the danger, often expressed in the past, that individual
employee's suits are neither an effective sanction nor a practical
remedy. Workers are unfamiliar with the law and hesitate to become
involved in legal proceedings. The cost is likely to be heavy. . . . *
* * Most men are reluctant to incur financial cost in order to
vindicate intangible rights.'' Cox, Internal Affairs of Labor Unions
Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 852-53
(1960). The fact that no union member sought to enforce Section 105 for
more than 40 years would appear to validate Professor Cox's concern.
---------------------------------------------------------------------------
Indeed, the Department of Labor (``DOL'') has consistently
subscribed to this view as well. Shortly after the LMRDA's enactment,
several DOL officials stated that the Secretary lacked the power to
determine precisely what would constitute compliance with Section 105
since that responsibility had been assigned to the courts exercising
jurisdiction over claims brought by members under Section 102. JA 129-
30, 133-34. And in 1989, the Assistant Secretary of Labor principally
responsible for LMRDA enforcement reaffirmed that Section 105 is only
enforceable by private suit filed by a union member, leaving the task
of fashioning appropriate relief to the courts. JA 50 (Benson para.
14), 52. See also Thomas v. IAM, supra, 201 F.3d at 520, and 29 U.S.C.
Sec. 521(a).
While the district court was reluctant to engage in a process it
may have perceived to be akin to rulemaking, i.e., to flesh out the
particulars of the Section 105 statutory mandate, Congress nonetheless
assigned that task to the courts. We respectfully submit that the
absence of any Congressionally prescribed criteria, manner or means for
complying with Section 105 constitutes no obstacle to the courts when
called upon to frame and grant appropriate relief under Section 102.
But see JA 10, where the district court held below that ``it is not
susceptible of a judicial remedy.''
We begin with the proposition: where persons have a right to be
informed of certain facts, the law generally requires that the person
under an obligation to furnish information do so in a manner
``reasonably calculated, under all the circumstances,'' to accomplish
that end in fact. Mullane v. Central Hanover Trust Co., 339 U.S. 306,
314-315 (1950). While absoluteassurance that the information has
actually been received and understood is not required, a ``mere
gesture'' will not suffice. Id. at 315. The standard should be the
commonsensical one that the method or methods used are reasonable and
not substantially less effective than other methods reasonably
available. Id.
Congress, state legislatures, and administrative agencies face such
tasks regularly, and resolve them, in ways tuned to the nature of the
information to be conveyed and the practical realities of the situation
at hand. See, e.g., 42 U.S.C. Sec. 2000e-10 and 29 C.F.R. Sec. 1601.30
(requiring posting of notices of Title VII); 29 U.S.C. Sec. 627 and 29
C.F.R. Sec. 1627.10 (same as to the Age Discrimination in Employment
Act); 29 U.S.C. Sec. 1022(a) (requiring trustees of ERISA pension plans
to furnish participants periodically with summary plan descriptions
which ``shall be written in a manner calculated to be understood by the
average plan participant, and shall be sufficiently accurate and
comprehensive to reasonably apprise such participants and beneficiaries
of their rights and obligations under the plan'').
This Court should construe Section 105 broadly in order to give
effect to Congress' general remedial objective when enacting the LMRDA.
See Jefferson County Pharmaceutical Assn. v. Abbott Labs., 460 U.S.
150, 159 (1983). After all, the LMRDA is a remedial statute aimed at
``afford[ing] necessary protection of the rights and interests of
employees and the public generally as they relate to the activities of
labor organizations * * * [and] its proper construction frequently
requires consideration of . . . the general objectives Congress sought
to achieve.'' Glass Bottle Blowers, 389 U.S. at 468, 470. See also
Masters, Mates & Pilots v. Brown, 498 U.S. 466, 476 (1991) (holding
that ``[a] broad interpretation of the candidate's [LMRDA] right to
distribute literature is consistent with the statute's basic
purpose'').\7\
---------------------------------------------------------------------------
\7\ Lower courts have similarly recognized that, as remedial
legislation, the LMRDA provisions are entitled to liberal construction
to effectuate Congress' objectives. See, e.g., McGinnis v. Teamsters
Local, 710, 774 F.2d 196, 199 (7th Cir. 1985) (``courts have focused on
the broad remedial purpose of the Act rather than its literal
language''); Mallick v. IBEW, 749 F.2d at 776 (courts must be ``leery
of interpreting the LMRDA based on uncertain inferences from word-by-
ward parsing of the statute''); Knox County Local v. NRLCA, 720 F.2d at
938-39.
---------------------------------------------------------------------------
For the reasons that follow, we submit that the district court
erred when concluding that the Section 105 duty is ``bare bones'' and
static, and that it is met by furnishing members with one single
notification of their rights under the LMRDA during their working
lifetime affiliation with the Union.\8\ Rather, the LMRDA's remedial
scheme can only be furthered if Section 105 is construed to impose an
ongoing duty on unions to inform their members concerning their rights,
and their officers' duties, in an effective and meaningful manner.
Indeed, while the district court found the unanimous and uncontested
record testimony of appellants' experts supporting the latter view to
be ``clear and persuasive,'' the court erred when ruling that ``it is
not susceptible of a judicial remedy.'' The court's cramped and narrow
construction of both Section 105, and its remedial authority under
Section 102, is at odds with Congressional intent.
---------------------------------------------------------------------------
\8\ While the UA did commit to republish the one-page summary again
in 2004 and 2008, thereafter, notification will be made solely via
inclusion of that summary in the mailing sent to new members when they
first join the UA. However, this method of alleged compliance is, as we
shall see presently, about as likely to inform members of their LMRDA
rights as would a ``legal notice'' published in the classified section
of a newspaper.
---------------------------------------------------------------------------
In fact, appellants demonstrated in the proceeding below, without
contradiction, that the steps taken by the UA have not, and will not,
operate to inform the UA membership concerning their rights under the
LMRDA. Yet, while the UA moved to strike virtually all of this evidence
and expert opinion, not only did the court not grant its motion, it
made no attempt to challenge, much less refute, appellants' evidence,
thus leaving an uncontested record. Accordingly, as we shall now show,
it cannot be said that the steps taken by the UA constitute ``adequate
compliance'' with, Section 105.\9\
---------------------------------------------------------------------------
\9\ To the extent that the court's construction of Section 105 must
be guided by a factual inquiry concerning the manner and means
available to the UA to comply with Congress' informational mandate, the
district court was obliged to evaluate the record evidence in the light
most favorable to the plaintiff-appellants inasmuch as they were the
non-moving party in the summary judgment motion which the court
granted. Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). This, the
district court most assuredly did not do; rather, it simply overlooked
or ignored the evidence.
---------------------------------------------------------------------------
C. The UA's Conduct Does Not Constitute Compliance With Section 105
As appellants demonstrated below, the UA's failure to comply with
Section 105 for more than 40 years has undermined their efforts to
participate actively in their Union, a Clear Congressional objective.
Most UA members are unaware of the provisions of the LMRDA and the
system of union democracy it was designed to assure, event after the
UA's one-time publication of the one-page LMRDA Summary in the UA
Journal in the Spring of 2001. JA 22 (Callihan para.para. 4, 6, 8). The
lack of such information and understanding is a significant cause of
the apathy among their fellow members and of their reticence to become
more actively involved in the democratic process of the UA. JA 22
(Callihan para. 8), 38 (Summers para.para. 7-8), 46 (Benson para.para.
13, 16), 65 (Paff para.para. 8-11), 53-54, 59 (Zipser para. 9).\10\
---------------------------------------------------------------------------
\10\ See also Callihan's First Aff. para.para. 9-10 and Moore Aff.
para.para. 5-6 (.Docket No. 6).
---------------------------------------------------------------------------
Appellants' interest in a democratic, open, vigorous union depends
on their fellow members being informed of their rights, and willingness
to participate in its affairs for theircommon good. See Hall v. Cole,
412 U.S. 1, 8 (1973) (deeming rights created by Title I ``vital to the
independence of the membership and the effective and fair operation of
the union as the representative of its membership'') (internal
quotation marks omitted). If Section 105 is to achieve Congress'
objective, if union members are to serve as guardians of democracy and
officer accountability within their unions, they must actually, not
symbolically, be informed about their LMRDA rights and the means by
which. those rights may be enforced.
Among the means available to the UA for fulfilling its Section 105
obligation axe: a membership mailing list, the UA Journal published
monthly and sent to all members, the UA Constitution booklet
distributed to members upon request, and a website. As we have seen, it
lies with the courts to fashion appropriate relief utilizing some or
all of these informational vehicles.\11\
---------------------------------------------------------------------------
\11\ In an informal letter to the Machinists' Chief Counsel shortly
after enactment of the LMRDA, the Acting Solicitor of Labor opined that
``merely posting a copy of the Act on the bulletin board would be
insufficient [compliance]. If, in addition, the members were notified
where the copy or copies [of the Act] could be examined, there still
may be a question of sufficiency . . . [in terms of] getting the
information to the members. If by this means, together with other
methods, a union's total program for informing its members concerning
the provisions of the Act is one that may reasonably be expected to
succeed in providing them with the necessary information under the
condition[s] known to exist with respect to the members of the
particular union, it is possible, in our opinion, that the union's
program for doing this would be regarded as adequate compliance with
section 105.'' JA 130-31 (emphasis added).
---------------------------------------------------------------------------
After this lawsuit was filed, the UA published a one-page Summary
of the LMRDA in the March, 2001 UA Journal, and it has offered to
republish it twice again--in 2004 and 2008.\12\ In addition, the UA
began to furnish a copy of that Summary to new members when they first
join the Union. The UA contends that these actions constitute full
compliance with Section 105 and has refused to publish the Summary more
frequently, to post it on its website, or to append it to its
constitution. As we have seen, the district court was satisfied that
the UA's plan to notify each member once in his or her lifetime
constituted ``adequate compliance'' with the ``bare bones'' requirement
of Section 105.
---------------------------------------------------------------------------
\12\ The UA's response may be juxtaposed against the responses of
other unions. For example, the Seafarers International Union has agreed
to publish ``the DOL Summary in every issue of its monthly publication,
the Seafarers Log.'' JA 67 (Fox Aff. para. 4), 85. And the Hotel
Restaurant Employees Union has agreed to publish ``the full text of the
LMRDA once each year in the Catering Industry Employee,'' its
membership media organ. JA 68 (Fox Aff. para. 5), 86.
---------------------------------------------------------------------------
In fact, the record below contains uncontested testimony by a
number of prominent experts who were unanimous in their view that most
union members do not bother to read their union publications which are
perceived to be little more than propaganda vehicles promoting the
incumbent leadership. They uniformly discredit national union media
organs as reliable sources of information, or channels for effective
member communication. They explain why the typical union member is not
likely to be interested in, or to pay much attention to, his or her
union magazine, much less the short Summary of LMRDA rights that might
be contained therein, before discarding it because, inter alia, not
only are they filled with puffery and propaganda, they are boring.
Moreover, and most importantly, members typically have little interest
in their LMRDA rights except during brief moments in their lifetimes as
union members, e.g., when, they attempt to run for office, or to defend
against disciplinary charges and suddenly need to know, and will become
interested in, and try learn about, their LMRDA rights. JA 47-48
(Benson para.para. 21-23), 53-54, 59-60 (Zipser para.para. 8-15), 63
(Fishgold para.para. 115, 7), 38 (Summers para. 9), 56 (Fletcher para.
9), 66 (Paff para. 14), 22 (Callihan para.para. 6-8). See also Summers,
43 Md. L. Rev 97-99. And the record testimony uniformly refutes the
notion that publication of the DOL Summary three times over a seven-
year period, as the UA has proposed to do, will succeed at informing
the UA membership concerning their rights under the LMRDA; rather, it
would have to be published at least annually, if not more frequently.
Id. As Callihan put it, ``the UA is going to have to do a lot more
informing . . . before . . . the members will become informed.'' JA. 22
(para. 6).
The undisputed record testimony supports a requirement that the UA
post a link to the LMRDA Summary on the home page of its website--an
undertaking that would cost the Union almost nothing. JA 39 (Summers
para. 10), 23 (Callihan para.para. 11-12), 48 (Benson para. 25), 56
(Fletcher para. 10), 60 (Zipser para. 13), 66 (Paff para. 13).\13\
---------------------------------------------------------------------------
\13\ The Thomas order requires the Machinist Union to post the
Summary on its website. JA 84. Even though this outreach method is
likely to be, at least in the near future, of only limited usefulness,
even the district court below embraced its use ``which common sense
commends to every union having a website.'' JA 11. A copy of the UA's
website ``Home Page'' appears at JA 103.
---------------------------------------------------------------------------
Even more importantly, the uncontested record evidence
overwhelmingly establishes that it is to the union constitution that
members look to inform themselves concerning their membership rights;
and the undisputed consensus of opinion holds that the LMRDA Summary
must be appended at the rear of the constitution booklet if the UA is
to succeed at informing its members of their rights under the LMRDA--
the Union's responsibility pursuant to the mandate of Section 105.
As Professor Summers explained, union constitutions are printed in
``small booklet format so that members can easily carry them in their
pockets for ready reference,'' JA 39 (Summers para. 11).\14\ While
``union journals are readily discarded,'' constitutions are not. Id.
Moreover, it is not until the member finds himself in some sort of a
jam with his union that he has any reason to be interested in his legal
rights as a member, or a frame of reference within which to understand
and appreciate those rights; and when that occurs, ``the constitution
becomes the controlling document [for both members and officers], and
it is to the constitution that they first turn. It is their reference
manual, their legal bible.'' Id.
---------------------------------------------------------------------------
\14\ The UA Constitution is published in booklet form; it is 180
pages in length including a 12-page alphabetized topical index. JA 68
(Fox Aff. para. 10), 102.
---------------------------------------------------------------------------
Similarly, Callihan testified that the UA Constitution ``is our
union bible. Members are led to believe that it is the sole source of
their rights and that in order to enjoy those rights, they must follow
the procedures in the Constitution to the letter. So when a member
wants to know about his membership rights in the UA, and how to secure
them, he refers to the Constitution. * * * Appending the summary of the
LMRDA at the back of the UA Constitution would ensure that members
could become aware not only of their constitutional rights, but also
their rights and the responsibilities of their officers under the
LMRDA.'' JA 23 (Callihan para. 9). See also JA 48 (Benson Aff.
para.para. 24, 26), 65 (Paff Aff. para.para. 11-12), 60 (Zipser Aff.
para. 13), 56 (Fletcher Aff. para. 11--constitution ``is the most
logical, and likely to be the most effective means of informing members
about their rights under the LMRDA'').
To summarize, the actions which, the UA contends, constitute full
compliance with its Section 105 duty to inform its membership about
their rights, and the UA officers' responsibilities, under the LMRDA
were seemingly calculated to create the appearance of compliance, but
not the reality--a symbolic, but empty gesture.\15\ They have not, and
will not, overcome the near total ignorance among the UA membership
about this critical piece of legislation intended by Congress to result
in an informed membership participating actively in the internal,
democratic affairs of their union. ``[After more than 40 years of
silence, and keeping the UA membership in the dark about their LMRDA
rights, the UA is going to have to do a lot more informing . . . before
the message will sink in.'' JA 22 (Callihan para. 6).
---------------------------------------------------------------------------
\15\ Cf. Retail Clerks Local 648 v. Retail Clerks Intl Ass'n, 299
F. Supp. 1012, 1020 (D.D.C. 1969) (``Where a union policy and practice
is promulgated in order, among other things, to place obstacles in the
way of effective union democracy and appears to have this effect, . . .
the Court cannot give that policy any recognition as it offends both
equity and the provisions of the LMRDA'').
---------------------------------------------------------------------------
The UA's one-time publication of the LMRDA Summary in the March
2001 issue of the UA Journal simply has not accomplished what Congress
intended when enacting Section 105. See Callihan para.para. 6-8, JA 22.
More needs to be done if, in Professor Summers' words, the ``iron grip
of oligarchy'' within the UA is to be ``loosened, and the democratic
process strengthened.'' 43 U. Md. L. Rev. at 105. While a UA member
here, and another there, may be knowledgeable about the LMRDA, ``the
health of democracy, in unions as elsewhere, depends not on that rare
bird, but on the average citizen.'' JA 48 (Benson para. 25). Or, as
Callihan put it, ``Our union will not become democratic, nor will our
officers be accountable to the membership, if only a couple of
activists members, myself included, stick out our necks. The entire
membership needs to know that it is OK, or legally safe, for them to
begin participating actively in the internal affairs of their union as
well.'' JA 23 (para. 8).
In fact, it is in the nature of any democratic polity that the
level of information, interest, motivation and participation of
citizen-members generally has a substantial impact on the ability of
each member to gain an audience among his peers, win adherents to his
point of view, and thereby influence the direction of his organization,
community or nation. This self-evident principle is certainly no less
applicable in the union context, where Congress found substantial and
widespread problems in observing democratic norms, including
significant problems with intimidation of, and reprisals against,
outspoken dissidents. See, e.g., II Leg. Hist. 1096-1104. If members
are to become ``active participants in the governance of their
unions,'' as Congress intended, they most assuredly do need to be
informed that it is ``OK, or legally safe'' for them to do so. The
ability of appellants to exercise their LMRDA rights depends in no
small measure on the awareness of other UA members of their rights and
protections under the LMRDA.
Accordingly, in order to effectuate the remedial objectives of the
LMRDA, we respectfully submit that the Court should construe Section
105 to require the UA to inform its membership about the provisions of
the LMRDA on an ongoing basis, rather than just once in a member's
working lifetime. That result can be accomplished if the UA were to
post the Summary prominently on its website. And, most importantly, the
UA needs to append the Summary at the rear of its constitution booklet,
and to reference its key provisions in the General Index.\16\
Realistically, UA members will only become informed concerning their
rights under the LMRDA once they have ready and ongoing access to the
Summary of their statutory rights in the very same constitution booklet
where they are accustomed to researching their membership rights, and
of the procedures they must follow to secure those rights as UA
members, at that point in time when they are in need of, and interested
in, learning about their legal rights. Until that occurs, the UA will
continue to be in violation of Section 105.
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\16\ In the meantime, because it is unlikely the UA will be
reprinting its Constitution prior to its next quinquennial convention
in 2006, it should republish the Summary in its Journal, at least
annually, until copies of its constitution booklet with the Summary
appended become available.
---------------------------------------------------------------------------
conclusion
For the foregoing reasons, we respectfully submit that the district
court erred by adopting a narrow, ``bare bones,'' or minimalist
construction of Section 105, and upholding the UA's symbolic compliance
with the informational mandate of that provision. This Court should,
accordingly, reverse and remand this case to the district court to
frame a remedy consistent with this Court's opinion.
Respectfully submitted,
Arthur L. Fox, II (No. 58495),
Lobel, Novins & Lamont, Attorney for Appellants,
January 15, 2003.
ADDENDUM E
No. 02-7111
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
CHARLES CALLIHAN AND WILBUR M. THOMAS, Plaintiffs-Appellants, v. UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE
FITTING INDUSTRY AND MARTIN J. MADDALONI, UA GENERAL PRESIDENT,
Defendants-Appellees.
On Appeal from the United States District Court for the District of
Columbia
brief of appellees
I. Jurisdictional statement
The claim at issue in this appeal was brought under Section 105 of
the Labor-Management Reporting and Disclosure Act of 1959 (``LMRDA''),
29 U.S.C. Sec. 415. The District Court, therefore, had jurisdiction to
hear this case pursuant to 29 U.S.C. Sec. 412 and 28 U.S.C. Sec. 1331.
The District Court denied Plaintiffs' motion for summary judgment,
granted Defendants' cross-motion for summary judgment and entered a
final judgment dismissing this action on August 12, 2002. Notice of
appeal was timely filed on September 12, 2002. Accordingly, this Court
has jurisdiction to hear this appeal pursuant to 28 U.S.C. Sec. 1291.
II. Statement of the issue
Whether the Union's publication of a court-approved one-page
summary of members' LMRDA rights in its magazine sent to all members in
March 2001, its provision of that summary to every new member joining
the Union since April 2001, and its commitment to republish the summary
in the membership magazine in 2004 and 2008, satisfies LMRDA Sec. 105's
requirement that the Union ``shall inform its members concerning the
provisions'' of the LMRDA.
III. Statement of the case
The instant lawsuit was filed in December 2001. The District Court
granted Plaintiffs' motion for summary judgment on the first count of
Plaintiffs' complaint on March 6, 2002. The court thereafter indicated,
at an April 2, 2002 status conference, that it was prepared to rule in
favor of Defendants on the second count because the actions taken by
the Defendant Union constituted adequate compliance with Section 105.
(JA 108.) Counsel for Plaintiffs nonetheless sought leave of court to
brief the issue, and the court permitted Plaintiffs to file a motion
for summary judgment, which they did. Defendants then filed a cross
motion for summary judgment, and the District Court thereafter ruled in
favor of Defendants on both motions, finding that nothing further than
the measures taken and committed to by the Union was required in order
to achieve compliance with the statute. (JA 11.)
IV. Statement of facts
In 1959, Congress passed the Labor-Management Reporting and
Disclosure Act (``LMRDA''), 29 U.S.C. Sec. 401, et seq. Section 105 of
the Act stated that ``[e]very labor organization shall inform its
members concerning the provisions of this chapter.'' 29 U.S.C.
Sec. 415. Immediately following the enactment of the LMRDA in October
1959, the Defendant Union (also referred to as the ``UA'' or the
``United Association'') \1\ published the entire text of the LMRDA in
its monthly magazine, the UA Journal. (See JA 14, para. 3.) Most other
unions apparently took similar steps in response to the mandate of
Section 105.
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\1\ The full name of the Defendant Union is the United Association
of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, AFL-CIO. In the record and in the
court below, it was referred to as the ``UA'' or the ``United
Association.''
---------------------------------------------------------------------------
In the ensuing forty years, there were no court decisions
substantively construing the nature of a union's obligation to
``inform'' under Section 105.\2\ In particular, no court addressed the
question of whether Section 105 imposed a duty on unions to republish
notice of the Act's provisions over time. Apparently (according to
Plaintiffs), most unions did not republish the Act, but relief on their
one-time publication in 1959 to satisfy the requirement of Section 105.
---------------------------------------------------------------------------
\2\ See Thomas v. Grand Lodge of Int'l Ass'n of Machinists, 40 F.
Supp. 2d 737, 741 & n.2 (D. Md. 1999), rev'd, 201 F.3d 517 (4th Cir.
2000).
---------------------------------------------------------------------------
In 1999, in the first case to address the issue, Judge Messitte of
the United States District Court for the District of Maryland held that
a union which had published the Act in its entirety upon its enactment
was not required to republish the material in order to inform new
members of the Act's provisions. Thomas v. Grand Lodge of Int'l Ass'n
of Machinists, 40 F. Supp. 2d 737 (D. Md. 1999). The Fourth Circuit
later reversed Judge Messitte's decision, holding that while ``Section
105 does not dictate a specific method of compliance,'' the statute
``require[d] at a minimum that each individual, soon after obtaining
membership, be informed about the provisions of the LMRDA.'' Thomas v.
Grand Lodge of Int'l Ass'n of Machinists, 201 F.3d 517, 521 (4th Cir.
2000). This was the first decision of any court requiring a union to
update its compliance with Section 105 for the benefit of new members.
Judge Messitte's final order on remand in Thomas was issued on
September 19, 2000. (JA 84.)
On September 24, 2000, Plaintiff Callihan wrote to the Union's
General President proposing that the Union publish a one-page summary
of the LMRDA in the UA Journal and that the Union post the text of the
Act on the Union website.\3\ (JA 26.)
---------------------------------------------------------------------------
\3\ Earlier, on May 24, 2000, Plaintiff Callihan had sent the
General President a copy of the Fourth Circuit's Thomas decision (which
did not specify a specific method of compliance) and inquired ``[w]hen
does the UA plan to comply with the Act?'' (JA 25.)
---------------------------------------------------------------------------
The instant lawsuit, including the Plaintiffs' claim that the Union
was in violation of Section 105, was filed in December 2001. Prior to
service of the complaint on Defendants, Plaintiffs' counsel was
notified that the Union's general counsel was undertaking to advise the
Union concerning actions to be taken in light of the Thomas decision.
(JA 106-07.) Subsequently, prior to any litigation of the Section 105
claim in this case, the Union published a comprehensive summary of the
Act (``LMRDA Summary'' or ``Summary'') in the March 2001 UA Journal, a
magazine which is sent to all active members and retirees. (JA 15.
para. 10; see also JA 96-97, 109-10.) Plaintiffs concede that the
content of the Summary adequately informs members of the provisions of
the Act. (JA 107.)\4\
---------------------------------------------------------------------------
\4\ The Summary was originally prepared by the Department of Labor,
and was specifically approved by Judge Messitte in the Thomas case as
sufficient in substance to inform members of the provisions of the
LMRDA. (See JA 84.) This was the same Summary that Plaintiff Callihan
asked the Union to publish in the UA Journal, in his letter of
September 24, 2001. (JA 26.)
---------------------------------------------------------------------------
Since April 2001, the Union has also mailed a personal copy of the
same comprehensive Summary to each new member, along with a letter
welcoming the member to the Union and enclosing his or her membership
card. (JA 98-99, 110.) The Union has also made a commitment to
republish the LMRDA Summary in the UA Journal in the calendar years
2004 and 2008. (JA 15, para. 12.)\5\
---------------------------------------------------------------------------
\5\ The Union has also publicized information concerning the LMRDA
in other ways. For example, the Union's training seminars, given on a
regular basis for local union business managers and financial
secretary-treasurers, include presentations on the obligations of the
UA and affiliated local unions under the statute. Those seminars occur
on an annual basis except during Convention years. Copies of the entire
text of the Act are obtained from the Department of Labor and
distributed to the individuals attending these training seminars. (JA
110, para. 7.)
Moreover, in October 2000, at the request of United Association
Local Union 286, representatives of the Union conducted a seminar for
Local 286 members at the UA Local 286 union hall in Austin, Texas. The
seminar included a detailed presentation regarding rights conferred by
the LMRDA, along with presentations regarding other statutes and union-
oriented topics such as organizing. (JA 111, para. 8.)
In addition, numerous provisions of the UA Constitution incorporate
substantive requirements imposed by the LMRDA. (JA 19, para. 13.)
---------------------------------------------------------------------------
V. Summary of argument
Section 105 of the LMRDA requires unions to ``inform [their]
members concerning the provisions of [the] Act,'' but does not specify
a particular method by which that information is to be conveyed. The
Union has complied with this requirement by (1) publishing the entire
text of the Act in its membership magazine, the UA Journal, shortly
after the Act's passage; (2) publishing the LMRDA Summary in the UA
Journal in March 2001; (3) commencing in April 2001, sending a copy of
the LMRDA Summary to each new member; and (4) committing to re-publish
the Summary in the UA Journal in 2004 and 2008. The Union's actions
satisfy the plain language of the statute and conform to past
interpretations of Section 105 by several authoritative sources.
Plaintiffs' contention that Section 105 further requires all unions
to post a summary of LMRDA rights on their websites and to append such
a summary to their constitutions finds no support in the law or in the
record. The affidavits of Plaintiffs' putative experts, who profess no
knowledge whatsoever about the particular Union Defendant in this case,
request the Court to impose on all unions requirements not found in the
Act itself. It is not the proper function of expert witnesses to advise
the Court on the meaning of the law, and the views of these individuals
on what the law should be are even less relevant to this proceeding.
Plaintiffs stress that the Court possesses broad remedial power
under the LMRDA. But, because Plaintiffs cannot show a violation of the
Act, there is no occasion for the Court to exercise that remedial
power. Accordingly, the Court should affirm the judgment of the
District Court.
VI. Argument
A. Plaintiffs' Burden of Proof
Plaintiffs assert in their appeal that the Union is currently in
violation of Section 105 of Title I of the LMRDA, despite having taken
the actions described above. (Plaintiffs-Appellants' Brief
(``Appellants' Br.'') at 20-21.) In Carothers v. Presser, 818 F.2d 926,
931 (D.C. Cir. 1987), this Court described ``the proper role of a court
in litigation under Title I of the LMRDA'' as follows:
First and foremost, the court must determine whether the
union's conduct deprived the Plaintiffs of a right specifically
enumerated in the statute . . . Once it has made a
particularized finding that the union violated a right
specifically enumerated in the statute, the court may fashion a
remedy tailored to the violation.
Accordingly, a Title I plaintiff must first demonstrate by a
preponderance of the evidence that the union deprived him of a ``right
specifically enumerated in the statute.'' Id.; see also Gilvin v. Fire,
259 F.3d 749, 761 (D.C. Cir. 2001). Only after the court has made a
particularized finding that the union has violated a specifically
enumerated right can the court proceed to fashion appropriate relief.
B. Section 105 Imposes a Single Duty; the Duty To Inform
1. Title I Imposes Specific Requirements on Unions; Courts
Are Not Authorized To Impose Additional
Requirements Simply Because They May Be in
Furtherance of Perceived Notions of Union Democracy
As Plaintiffs repeatedly emphasize, Congress did indeed enact the
LMRDA with the objective of ensuring that unions would be
``democratically governed.'' (Appellants' Br. at 8, quoting Finnegan v.
Leu, 456 U.S. 431, 436 (1982).) However, as this Court has likewise
stressed, Congress did not vest the federal courts with open-ended
discretion to fashion the components of that democratic governance;
instead, the statute sets forth its own ``specific regulations
governing internal union affairs.'' Carothers, 818 F.2d at 929. In the
words of the Court,
``democracy'' under the LMRDA is not merely a boundless ideal
to be defined by the whim of any dissident voice; rather, the
statutory notion of internal union democracy is precisely
limited by the scope of the protections codified by Congress in
the LMRDA.
Id.
Congress also fully intended that the goal of democratic governance
``was to be achieved within `a general philosophy of legislative
restraint' to avoid unnecessary governmental intrusion into union
affairs.'' S. Rep. No. 187 in I Leg. Hist. at 403, quoted in Thomas, 40
F. Supp. 2d at 742. The Act embodies a Congressional recognition of
``the inadvisability and injustice of compelling unions to conform to a
uniform statutory rule with respect to unimportant details of
administration.'' Id.
As Plaintiffs also stress in their brief, Section 102 of the Act
confers on the courts considerable discretion to grant appropriate
relief. See 29 U.S.C. Sec. 412. However, as this Court has emphasized,
that discretion is triggered only after the violation of a specific
statutory right has been established. Carothers, 818 F.2d at 929.
Absent such a finding, the exercise of the Section 102 remedial
discretion would be inappropriate and ``totally divorced from the
essential predicate of a statutory violation.'' Id. at 931. See also
Gilvin v. Fire, 259 F.3d at 760-61 (upholding Rule 12(b)(6) dismissal
of LMRDA claim for failure to articulate deprivation of specifically
enumerated right).
Thus, any review of the claims in this case must be guided by this
Court's words in Carothers:
Title I is not a mandate for courts to impose on labor unions
whatever procedures or practices they regard as ``democratic.''
Although the enactment of Title I was certainly propelled by a
congressional intent to broaden the democratic features of
union governance, Congress did not embrace an amorphous and
boundless notion of democracy. Rather, it enumerated specific
rights designed to ensure that unions adhere to certain basic
democratic principles. Those principles must be gleaned from
the statute itself; they may not be derived from a court's
perception of what internal union procedures are necessary to
guarantee [in Carothers] a ``fully informed vote.''
818 F.2d at 934.
2. Section 105 Requires Only That Unions ``Inform'' Members
Concerning the Provisions of the Act
Section 105 states in its entirety that ``[e]very labor
organization shall inform its members concerning the provisions of this
chapter.'' 29 U.S.C. Sec. 415 (emphasis added). The term ``inform''
simply means to give or impart information.\6\ This Court has construed
a federal agency's statutory duty to inform, for example, as being
fulfilled by the placing of a communication in the mail.\7\ Town of
East Hartford v. Harris, 648 F.2d 4, 9 (D.C. Cir. 1980).
---------------------------------------------------------------------------
\6\ Webster's Dictionary defines ``inform'' as ``1: to impart
information or knowledge.'' Merriam-Webster's Collegiate Dictionary
(10th ed. 2001).
\7\ By sending the LMRDA Summary to each existing member and each
new member who joins the union at the member's home address, the UA has
clearly satisfied that construction of its duty.
---------------------------------------------------------------------------
There are no regulations implementing Section 105. As Plaintiffs
concede, the Department of Labor neither possesses nor asserts the
authority to direct labor unions to use any particular means in
carrying out their statutory duty to ``inform.'' (Appellants' Br. at
18.)
Likewise, there is seemingly no legislative history specifying any
particular method unions must employ to inform members regarding the
provisions of the Act. See discussion of legislative history in Thomas,
40 F. Supp. 2d at 741. Contemporaneous commentary by counsel involved
in drafting the Act and early correspondence from Department of Labor
officials indicated that unions could comply with Section 105 by
various means, including publishing the text of the Act in union
publications distributed or reasonably available to union members,\8\
providing members with summaries of the Act's provisions,\9\ posting
copies of the Act on bulletin boards,\10\ or perhaps simply advising
members where they could find copies of the Act available for
examination.\11\ Seemingly, many unions--including the UA--simply
complied with Section 105 upon its enactment by publishing the text of
the Act in a union magazine. (JA 14, para. 3.)
---------------------------------------------------------------------------
\8\ See discussion in Thomas, 40 F. Supp. 2d at 741. See also
Arthur J. Goldberg, Analysis of Labor-Management Reporting and
Disclosure Act of 1959, Industrial Union Department, AFL-CIO (1960), at
10-11. A copy of relevant portions of this analysis, authored by Arthur
J. Goldberg, then AFL-CIO special counsel and a member of a non-
partisan blue ribbon committee employed as a consultant by the Senate
Labor Committee, is at JA 112-17. See also Letter from Assistant
Secretary of Labor to James C. Paradise of 11/9/59 (JA 124-25); Letter
from Commissioner John L. Holcombe to Walter M. Colleran of 2/13/60.
(JA 126-27.)
\9\ See Letter from Assistant Secretary of Labor to James C.
Paradise of 11/9/59, (JA 124-25.)
\10\ See National Labor Relations Board, Legislative History of the
Labor Management Reporting and Disclosure Act of 1959. vol. 11, at 1825
(comments of Michael J. Bernstein, counsel to the Senate Labor
Committee involved in drafting the Act). But see Letter from Acting
Solicitor of Labor to Plato E. Papps of 5/27/60 (JA 130-31) (bulletin
board posting may not be sufficient).
\11\ See Letter from Assistant Secretary of Labor to James C.
Paradise of 11/9/59 (JA 124-25); Letter from Commissioner John L.
Holcombe to Walter M. Colleran of 2/13/60 (JA 126-27); Letter from
Commissioner Holcombe to Richard M. Reinke of 5/16/60 (JA 128-29);
Letter from Acting Solicitor of Labor to Plato E. Papps of 5/27/60 (JA
130-31); Letter from Acting Solicitor of Labor to S. C. Lippman of 10/
20/60 (JA 132-33).
---------------------------------------------------------------------------
It was not until 1999, in the Thomas case, that any court had
occasion to address questions about how a union was supposed to carry
out its duty to ``inform'' under Section 105 of the Act. The issue
posed in Thomas was whether a union's one-time publication of the Act
in 1959 constituted compliance with Section 105, or whether the union,
was obligated on an ongoing basis to inform new members of the
provisions of the Act once they joined the union. See Thomas, 40 F.
Supp. 2d at 740; see also Thomas, 201 F.3d at 518. The District Court
held that unions were not required to inform new members regarding the
provisions of the Act; the Fourth Circuit later disagreed and held that
they were.
Neither Judge Messitte nor the Fourth Circuit held that any
particular form of notice was required by the Act. To the contrary, the
Court of Appeals stated that ``Section 105 does not dictate a specific
method of compliance.'' 201 F.3d at 521 (emphasis added). All that is
specifically required by the Fourth Circuit's decision is that ``each
individual, soon after obtaining membership, be informed about the
provisions of the LMRDA.'' Id. The Court of Appeals held that, on
remand, the district court retained discretion with respect to
implementation of the notice requirement, and it commented, inter alia,
that publication in a form not known to be widely circulated would not
suffice. Id. (since ``it is at best unclear'' how widely circulated the
union constitution is, ``something more'' would be required to satisfy
Section 105).
On remand (according to Plaintiffs' counsel herein), Judge Messitte
expressed reluctance to engage in ``rulemaking'' with regard to the
implementation of Section 105. (JA 105.) Accordingly, the parties in
Thomas entered into what was in effect a consent order. (JA 84, 105.)
In that order, the Machinists Union agreed to provide each new member a
copy of the LMRDA Summary (the same summary published in the UA Journal
and now sent to all new UA members); to publish the same Summary in
three issues of the IAM Journal, the first no later than March 2001,
the second in calendar year 2004 and the third in calendar year 2008;
and to post the Summary on the home page of its website. (JA 84.) \12\
The order does not state that the Machinists--or any other union--were
required to take each of these particular steps; as Plaintiffs' counsel
describes it, and as appears from the face of the order itself, the
order represents a negotiated resolution of the remedy issue approved
by the district court as sufficient to comply with Section 105 and the
Fourth Circuit's opinion.
---------------------------------------------------------------------------
\12\ Since the Fourth Circuit's decision in Thomas, only one other
published case appears to have addressed a claim that a union has
failed to fulfill its Section 105 obligation. In McGovern v. Local 456,
Int'l Bhd. of Teamsters, 107 F. Supp. 2d 311 (S.D.N.Y. 2000), aff'd,
2001 U.S. App. LEXIS 28459 (2d Cir. Feb. 14, 2001), the plaintiff
members claimed that their union had violated Section 105 when it
failed to respond to their request for copies of documents related to
negotiation of a concessionary provision in a collective bargaining
agreement. Id. at 323-24. The plaintiffs argued that the union had
failed to advise and assist them in protecting their rights, in
violation of Section 105. Id. The court held that the plaintiffs had
failed to state a claim under Section 105 inasmuch as the union ``has
no duty under [S]ection 105 to advise or assist members of the Union.''
107 F. Supp. 2d at 324.
---------------------------------------------------------------------------
In summary, all that can be gleaned from the language of Section
105, or from any authoritative interpretation thereof, is that unions
must in some fashion ``inform'' members concerning the Act's
provisions--Nowhere is it written that unions must force members to
read the information sent to them, or that unions must train members to
understand or remember the sections of the LMRDA, or that unions must
advise or assist members in enforcing their rightsunder the statute.
See, e.g., McGovern v. Local 456, Int'l Bhd. of Teamsters, 107 F. Supp.
2d at 324 (Section 105 does not require union to ``advise or assist
members''), aff'd, 2001 U.S. App. LEXIS 28459 (2d Cir. Feb. 14, 2001).
Moreover, Section 105 does not state that unions must prominently post
copies of the Act or maintain and make available information concerning
the statute, notwithstanding that Congress well knew how to draft and
impose such requirements. See discussion Section VI(C)(4)(a), infra. No
more can be read into Section 105 than that a union has a simple duty
to convey the relevant information to its members.
3. Plaintiffs' Request That the Court Require All Unions To
Post the LMRDA Summary on Their Websites and To
Append It to Their Constitutions Is Contrary to the
Law of This Circuit
Significantly, Plaintiffs' brief contains no mention of Carothers
v. Presser, 818 F.2d 926 (D.C. Cir. 1987), clearly a seminal case in
this Court's LMRDA jurisprudence. In a reply brief in the court below,
Plaintiffs argued that Carothers was inapposite because they, unlike
the Carothers plaintiffs, were not asking the Court to infer or imply a
right not specifically provided for in the Act, but were rather seeking
to enforce the `` `specifically enumerated' right to be informed''
about the LMRDA. (Reply in Support of Plaintiffs' Motion for Summary
Judgment, filed June 21, 2002, p. 2.) They also contended that the
Fourth Circuit in Thomas rejected ``the identical argument.'' (Id.)
They are wrong on both counts.
Plaintiffs are not simply seeking to require that the Union inform
its members of the provisions of the Act, for that the Union has surely
already done. Rather, Plaintiffs are asking the Court to compel this
Union--and ultimately all unions--to post the LMRDA Summary on their
websites and to append the Summary to their constitutions. In that
quest, Plaintiffs are no longer moored in the actual words of the
statute but are, by their own admission, seeking to enforce what they
view as the overarching purpose of the Act. Yet, the Carothers court
explicitly rejected a ``notion of union `democracy' [that] is cut loose
from its statutory moorings,'' and warned of the ``mischief that is
likely to result. . . .'' 818 F.2d at 934.
Plaintiffs are not seeking to uphold a specifically enumerated
right. Rather, they are seeking to do precisely what the Thomas court
expressly rejected, namely, ``involv[ing] the courts in internal union
management'' by asking the Court to prescribe particular means that
unions must use to inform their members. 201 F.3d at 521. The Thomas
court made clear its belief that, while a union's duty to inform under
Section 105 extends to all members, not just those who belonged to the
union in 1959, Section 105 ``does not dictate a specific method of
compliance.'' Id.
Carothers, and this Court's later decision in Gilvin v. Fire, 259
F.3d 749 (D.C. Cir. 2001), are clearly on point in this proceeding. In
Carothers, the plaintiffs contended (and the district court initially
found) that a right of access to a union's mailing list was embodied in
the ``equal rights'' provisions of Section 101(a)(1) of the LMRDA and
the ``freedom of speech and assembly'' provisions of Section 101(a)(2).
Carothers, 818 F.2d at 927 n.4, citing 29 U.S.C. Sec. Sec. 411(a)(1)
and (2). In Gilvin, the plaintiff claimed that his suspension and
removal from office because of his active criticism of the union
president violated his Section 101(a)(1) right to participate in
deliberations at membership meetings. Gilvin, 259 F.3d at 760.
Accordingly, the plaintiffs in Carothers and Gilvin both cited specific
provisions of the statute which, they contended, should be construed to
impose certain obligations on their unions.
In both cases, this Court found that the plaintiffs were attempting
to obtain, in the guise of interpretation, protections that were not
embodied in the statute itself. Carothers, 818 F.2d at 929-33; Gilvin,
259 F.3d at 760-61. The Court specifically declined to infer rights
based on the general statutory purpose of furthering union democracy,
when those rights were not specifically enumerated in the statute
itself. Carothers, 818 F.2d at 933-34.
Likewise, in the case at bar, Plaintiffs invite the Court to infer
a right to website postings and appendices to union constitutions from
the straightforward language of Section 105. As will be discussed in
later sections of this brief, when Congress has intended to impose
requirements pertaining to website or other postings, or to the content
of union constitutions, it has done so in clear and specific terms.
Under Carothers and Gilvin, and indeed under the Fourth Circuit's
decision in Thomas, the Plaintiffs' attempt to graft these specific
obligations onto the unadorned language of Section 105 should be
rejected.
C. The Undisputed Record Evidence Demonstrates That the Union Has
Complied With Section 105
As previously stated, the Union has published the LMRDA Summary in
the UA Journal, which was sent to all UA members. (JA 15, para. 10.) It
is sending and will continue to send a copy of the LMRDA Summary to all
new members. (JA 98-99; JA 110, para. 4.) And it has agreed to again
publish the LMRDA Summary in the UA Journal in the calendar years 2004
and 2008. (JA 15, para. 12.)
Clearly, by sending a concededly adequate summary of LMRDA rights
to each current and new member at his or her home address, the Union
has satisfied the plain language of Section 105's duty to inform.
1. The Steps Taken by the Union Are Consistent With, and
Fully Satisfy, Longstanding Interpretations of
Section 105 by Authoritative Sources
The Union's steps to comply with Section 105 are fully consonant
with the announced understanding of counsel involved in drafting the
Act. Special Counsel Arthur J. Goldberg (who later became a Justice of
the Supreme Court) opined--and advised AFL-CIO affiliates--
thatpublication of the Act in a reasonably accessible union publication
would fulfill the requirements of Section 105. (See JA 117 and note 7,
supra.) As Mr. Goldberg stated. ``[p]resumably, publication of the text
of the Act in a union's newspaper or any other publication which is
reasonably available to all of the union's members will be sufficient
to satisfy the requirement contained in Section 105.'' (JA 117.) See
also discussion in Thomas, 40 F. Supp. 2d at 741-42.
Moreover, the Union's recent actions are exactly the steps
described as satisfactory in written advice of Department of Labor
officials to unions immediately following the enactment of the LMRDA.
(See discussion notes 7-10, supra, and accompanying text.) In those
letters, sent between November 1959 and October 1960, officials advised
unions that providing each member with a copy of the Act, or with an
adequate summary of the Act, would be sufficient to comply with Section
105. (JA 124-35.) The letters also commented--with seeming approval--
that a number of unions had already taken exactly such steps. (Id.)
The steps taken by the Union also fall well within the range of the
Fourth Circuit's opinion in the Thomas case. The sole issue in Thomas
was whether a union which had complied with Section 105 at the time of
the LMRDA's passage had to continue to inform new members of the Act as
they joined the union. Having answered that question in the
affirmative, the court went on to comment that ``Section 105 does not
dictate a specific method of compliance'' and that ``[a]ll the LMRDA
directs is that [a union] afford notice of the LMRDA's provisions to
any individual who meets the statutory definition of `member.' '' 201
F.3d at 521. Thus, in the view of the Fourth Circuit, Section 105
requires, at a minimum, that ``each individual, soon after obtaining
membership, be informed about the provisions of the LMRDA.'' Id. This
is exactly what the Union is now doing, and what it has been doing
since March 2001, six months following entry of the final order in the
Thomas case.
The Union's actions prior to the Fourth Circuit's decision in
Thomas were consistent with the prevailing understanding of the Act's
requirements, including that of the district court in Thomas. Soon
after the Fourth Circuit ruled that additional actions were necessary,
the Union took the additional actions suggested by the court's
analysis, without waiting to see if that analysis would be adopted by
the other circuits. As the court below correctly concluded, the steps
taken by the Union are sufficient to comply with Section 105.
2. The Court Below Correctly Found Plaintiffs' Affidavit
Evidence To Be Unpersuasive and Immaterial
Based upon the undisputed facts that the Union has published the
LMRDA Summary in a union magazine sent to all members, that it has
promised to repeat this step in 2004 and in 2008, and that it is
sending a copy of the Summary to each new member upon initiation, the
district court correctly determined as matter of law that the Union was
entitled to summary judgment in its favor. Plaintiffs' affidavit
evidence, consisting primarily of the opinions of union democracy
advocates, was deemed by the court below to consist of matter ``not
susceptible of a judicial remedy.'' (JA 10.) In other words, the views
of the affiants were not material to the central legal question before
the court: whether the Union had satisfied its Section 105 duty to
inform.
This holding was plainly correct. The professed experts whose views
are pressed upon this Court make no claim to familiarity with the Union
Defendant herein. (JA 37-39, 55-56, 58-59, 62, 64.) They assert no
knowledge of the Union's structure, its political processes, its
Constitution, or the method by which it communicates information to its
members. (Id.) Indeed, not one of these individuals claims ever to have
conducted any serious study--scholarly or otherwise--on the methods by
which unions generally communicate with their membership and/or the
relative effectiveness of such methods.\13\
---------------------------------------------------------------------------
\13\ Ironically, the author of the one study cited in Plaintiffs'
brief reaches an ultimate conclusion which is substantially at odds
with the contentions pressed by Plaintiffs and their experts on this
Court. The author of the unpublished dissertation discussed at page 9
of Plaintiffs' brief studied six unions in Texas in the early 1980s,
and he did indeed find that ``Generally, the union officers interviewed
in this survey were not aware of the requirements of Landrum-Griffin.''
(JA 139-40,) Significantly, the author went on to state: ``However,
there were no indications of serious problems in any of the areas
covered by the Act. This could mean that the Act is accomplishing its
purpose and has caused the international union to change its rules and
to monitor the local unions very closely. On the other hand, it could
mean that the Act was not needed within these particular unions.''
(Id.)
Moreover, according to the author, his findings ``suggested that
rights of members are being protected (and) that democratic practices
are being followed,'' whether as a result of the Act or of other forces
in society. (JA 138.) This is a far cry from the extremist views
expressed in Plaintiffs' brief and in some of their experts'
declarations, which would have the reader believe that union abuse of
democratic procedures was and is widespread and chronic. (See, e.g.,
Appellants' Br. at 13, 26 (espousing the view of Mr. Summers that union
members are in the ``iron grip of oligarchy'').)
---------------------------------------------------------------------------
None of these putative experts, moreover, professes to have any
familiarity with the effects of recent steps taken by this Union and
others to renew their compliance with Section 105 of the Act in light
of the Fourth Circuit's holding in Thomas. In short, none of these
individuals offers specialized knowledge that would in any way assist
the Court in understanding the evidence in this case or in determining
any fact in issue. See Fed. R. Evid. 702.\14\ Accordingly, these
declarations were correctly not deemed persuasive below, and should be
disregarded by this court.\15\
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\14\ The Rule states: ``If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.''
Fed. R. Evid. 702.
\15\ The Union adequately preserved its position on this issue by
its detailed objections to the affidavits in the court below. (See
Defendants' Memorandum of Points and Authorities in Opposition to
Plaintiffs' Motion for Summary Judgment and in Support of Defendants'
Cross Motion for Summary Judgment, filed June 13, 2002, pp. 14-21.) See
Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir. 2001) (by making
detailed objections in court below, defendant preserved right to
challenge affidavit on appeal).
---------------------------------------------------------------------------
Several courts of appeal, including this Court, have recognized
that expert opinion testimony may not be admitted for the purpose of
advising the Court on the meaning of the law. See, e.g., Burkhart v.
Washington Metro. Area Transit Auth., 112 F.3d 1207, 1212-14 (D.C. Cir.
1997) (reversible error to allow an expert in police practices to opine
on whether police officers' efforts in communicating with a deaf
plaintiff were enough to satisfy federal disability statutes); Snap-
Drape, Inc. v. Commissioner, 98 F.3d 194, 197-98 (5th Cir. 1996) (trial
court properly excluded taxpayer's expert reports as containing nothing
more than legal arguments concerning the tax treatment of certain
dividends); Berry v. City of Detroit, 25 F.3d 1342, 1353-54 (6th Cir.
1994) (finding inadmissible the comments of an expert in police
practices on the meaning of the legal term ``deliberate indifference''
in a civil rights case); Aguilar v. Int'l Longshoreman's Union, Local
#10, 966 F.2d 443, 447 (9th Cir. 1992) (testimony of purported expert--
that workers reasonably and foreseeably relied on Defendants'
promises--addressed ``matters of law for the court's determination''
that were ``inappropriate subjects for expert testimony''); Specht v.
Jensen, 853 F.2d 805 (10th Cir. 1988) (en banc) (reversible error to
allow an expert witness who was an attorney to give his opinions on
what was required to make consent to a search effective); Adalman v.
Baker, Watts & Co., 807 F.2d 359, 368 (4th Cir. 1986) (testimony of
expert regarding legal requirements of disclosure under securities laws
deemed inadmissible); Marx & Co. v. Diners' Club, Inc., 550 F.2d 505
(2d Cir. 1977) (securities lawyer, called as an expert, could not
testify to the legal obligations created under a contract). As the
Seventh Circuit stated in Minaslan v. Standard Chartered Bank, PLC, 109
F.3d 1212, 1216 (1997), ``An expert who supplies nothing but a bottom
line supplies nothing of value to the judicial process.''
The affidavits relied on by Plaintiffs clearly suffer from the same
failing: they are an attempt to urge upon the Court a particular
reading of the law. (See, e.g., JA 39, para. 12; JA 48-49, para. 26; JA
56-57, para.para. 8-12; JA 60-61, para.para. 13-15; JA 63, para.para.
4, 6; JA 65-66, para.para. 12-13.) Indeed, the affidavits are a step
further removed from the ``bottom line'' opinions rejected in the cases
above. The affiants herein seek to instruct the Court on what the law
should be,\16\ rather than on what it actually is.\17\ This is of no
assistance in this proceeding, and the testimony was correctly deemed
unpersuasive below.
---------------------------------------------------------------------------
\16\ See JA 39 (Summers Aff. para. 12); JA 46-47 (Benson Aff.
para.para. 14-20, 26); JA 56-57 (Fletcher Aff. para.para. 8-12); JA 60-
61 (Zipser Aff. para.para. 12-13, 15); JA 63 (Fishgold Aff. para.para.
4-7); JA 65-66 (Paff Aff. para.para. 11-14).
\17\ Likewise, the six declarations are replete with inadmissible
hearsay (JA 38-39 (Summers Aff. para.para. 8-9, 11)), conclusory
assertions for which no adequate factual basis is provided (JA 44-48
(Benson Aff. para.para. 5, 10, 12, 14, 16-17, 22-24); JA 56-57
(Fletcher Aff. para.para. 11-12); JA 59-61 (Zipser Aff. para.para. 11,
15); JA 63 (Fishgold Aff. para.para. 5, 7); JA 65-66 (Paff Aff.
para.para. 8-12, 14)), and bald speculation and surmise (JA 38-39
(Summers Aff. para.para. 7-12); JA 44, 46-48 (Benson Aff. para.para. 6,
12-25); JA 56-57 (Fletcher Aff. para.para. 9-12); JA 38-39 (Summers
Aff. para.para. 9-10, 12); JA 44, 46-48 (Benson Aff. para.para. 5, 12-
13, 15, 17, 19-22, 24-25); JA 56-57 (Fletcher Aff. para.para. 9-12); JA
59-60 (Zipser Aff. para.para. 10-14); JA 63 (Fishgold Aff. para.para.
5-7); JA 65-66 (Paff Aff. para.para. 8-14)). Moreover, significant
portions of the declarations recite facts about other unions, facts
that have no bearing whatsoever on any issue now before this Court,
rendering them inadmissible under Fed. R. Civ. P. 56(e). (JA 38
(Summers Aff. para. 6); JA 45-48 (Benson Aff. para.para. 7-12. 22-23);
JA 55-56 (Fletcher Aff. para.para. 3-6).)
---------------------------------------------------------------------------
The material facts in this proceeding are undisputed, and the
proffered views of Plaintiffs' experts fail to assist the Court in
determining those facts. Significantly, Plaintiffs failed to
incorporate the content of these affidavits in their Local Rule 7.1(h)
Statement of Material Facts. (JA 14-16.) Defendants agree that the
affidavits are not material to the resolution of the legal question now
before this Court, and further submit that the testimony seeks
improperly to invade the province of the Court.
3. Even Probative Evidence That Union Members Remain
``Uninformed'' About Their LMRDA Rights Would Not
Establish That the Union Had Violated Its Section
105 Duty To Inform
The major thrust of Plaintiffs' argument, and the complaints of
their experts, is that union members as a group are not sufficiently
aware of their rights under the Act.\18\ However, a union that has
taken adequate steps to provide members with information about the
LMRDA cannot be held responsible for what members thereafter do with
that information. A union cannot force its members to read or retain
information on LMRDA rights, not is it required to do so. As long as it
provides the information to its members, its Section 105 duty is
satisfied.
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\18\ The vast majority of Plaintiffs' affidavit evidence on this
point pertained to union members at large, and not to members of the
Defendant Union herein. The primary exception is the bald assertion of
Plaintiff Callihan that ``as a result of my conversations with other UA
members, primarily in my local, and my observation of members during
union meetings, it is clear that no one has any recollection of the
contents of the one-page Summary of Union Member Rights published in
the Journal a year ago.'' (JA 22, para. 8.) Mr. Callihan established no
proper foundation for this broad and conclusory assertion, which rests
on speculation and inadmissible hearsay. Such testimony would not be
admissible at trial and fails to comply with Fed. R. Civ. P. 56(e).
See, e.g., Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001)
(``Statements predicated upon undefined discussions with unnamed
persons at unspecified times are simply too amorphous to satisfy the
requirements of Rule 56(e), even when proffered in affidavit form by
one who claims to have been a participant.'').
---------------------------------------------------------------------------
Plaintiffs seemingly confuse the verb ``inform'' contained in
Section 105 with the adjective ``informed.'' \19\ The Act requires
unions to take a specific, verifiable action: to ``inform,'' i.e., to
notify, their members of the provisions of the Act. Section 105 does
not and cannot further hold the unions to the lofty ideal of an
``informed'' membership that knows the statute chapter and verse.
---------------------------------------------------------------------------
\19\ ``Informed'' is an adjective meaning ``having or based on much
information, knowledge or education.'' Webster's New World Dictionary
693 (3rd ed. 1988).
---------------------------------------------------------------------------
The Union in this case has taken appropriate and reasonable actions
that have provided its members with information concerning the
provisions of the Act. The statute does not require more.
4. Plaintiffs Have Not Established, and Cannot Establish,
That Website Posting and Attachment to the Union
Constitution Are Mandated by Section 105, or Indeed
That Such Steps Would Have Any Appreciable Effect
Plaintiffs contend that the Union is in violation of Section 105
because it has not (1) posted the LMRDA Summary on its website; and (2)
agreed to publish the LMRDA Summary as an Appendix to the UA
Constitution.\20\ Notably, they make this argument on the basis of
Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314-35 (1950).
(Appellants' Br. at 18-19.) Mullane concerned what form of ``notice''
was required before an individual could be denied a property right
consistent with the due process clause of the Fourteenth Amendment,
which would seem to be a more stringent requirement than Section 105 of
the LMRDA. Nevertheless, the Court held in Mullane that the sending of
the notice to the affected individuals by ``ordinary mail'' to their
``record addresses'' was sufficient to meet the constitutional
requirement. Id. This is precisely what the Union has done in
publishing the LMRDA summary in the UA Journal, which is sent to all
active members' record addresses by ordinary mail, and in mailing the
summary to new members with their membership cards. Thus, Mullane
provides no help to Plaintiffs.
---------------------------------------------------------------------------
\20\ Plaintiffs also seek annual publication of the LMRDA summary
in the UA Journal (not just in 2004 and 2008 as the UA has committed to
do) until 2006 when the UA is next scheduled to re-publish its
constitution. (Appellants' Br. at 27 n.16.) This demand seems to run
counter to a main thrust of Plaintiffs' argument that publication in
the UA Journal is an ``empty gesture'' because the magazine is
``boring.'' (Appellants' Br. at 23.)
---------------------------------------------------------------------------
Plaintiffs' arguments in favor of requiring that the LMRDA Summary
be posted on the Union's website and appended to its Constitution as
mandatory components of compliance with the Act are unsupported in the
record or in the law. As has been discussed, the measures sought by
Plaintiffs are not grounded in the language of the statute.\21\
Moreover, the record does not indicate that the measures sought by
Plaintiffs would operate to communicate LMRDA information to a
significantly greater number of union members. Finally, the measures
sought by Plaintiffs could and would have been spelled out in the
statute itself had Congress meant to require them.
---------------------------------------------------------------------------
\21\ Absent a violation of Section 105, Plaintiffs' motion for
summary judgment was properly denied. However, Defendants would further
stress that even if Plaintiffs had been able to establish a Section 105
violation, the measures sought by Plaintiffs would not be an
appropriate exercise of the Court's remedial discretion. See, e.g.,
Local No, 82, Furniture & Piano Movers v. Crowley, 467 U.S. 526, 538
(1984) (Section 102 ``explicitly limits the relief that may be ordered
by a district court to that which is `appropriate' to any given
situation''). The Union herein promptly published the text of the LMRDA
within a month of its enactment, fulfilling all contemporaneous
pronouncements regarding the Section 105 obligation, and indeed
fulfilling the initial pronouncement of the district court in the
Thomas case. (JA 14, para. 3.) Until the Fourth Circuit's decision in
Thomas, the Union had every reason to believe it had fully complied
with the requirements of Section 105. Six months following the consent
order in Thomas, the Union commenced substantive actions to inform all
current and new members of the Act's provisions, irrespective of the
possibility that the Fourth Circuit's view might not find favor in
other Circuits. The Union has acted reasonably and with due diligence
and, accordingly, the extraordinary measures proposed by Plaintiffs
would not be justified even in the exercise of the Court's remedial
powers.
---------------------------------------------------------------------------
a. The Failure To Post the LMRDA Summary on the Union's
Website Is Not a Violation of Section 105
Plaintiffs premise their claim of a Section 105 violation in part
on the Union's failure to post the LMRDA Summary on its website. Once
again, it is significant that commentary by a drafter of the Act, and
contemporaneous opinions of Department of Labor officials, found
publication of the Act in a union magazine to completely satisfy a
union's obligation under Section 105.\22\ Needless to say, the 1959
Congress cannot have intended that website publication be a mandatory
component of compliance with Section 105.
---------------------------------------------------------------------------
\22\ Plaintiffs' contention that publication in a union journal,
standing alone, is insufficient is also belied by decisions regarding
the sufficiency of a union's efforts to notify employees of their right
to become agency fee objectors under Communications Workers of Am. v.
Beck, 487 U.S. 735 (1988). In Nielsen v. Int'l Ass'n of Machinists, 94
F.3d 1107 (7th Cir. 1996), for example, the plaintiff argued that
publication of the Beck notice in the union magazine was done ``in a
manner which discourages employees from actually seeing it.'' Id. at
1115. The court disagreed, noting, inter alia, that the plaintiff was
on the magazine's subscription list, that the notice was well-marked,
listed in the table of contents, and printed in legible type. If
publication in the union magazine is deemed sufficient to give notice
to employees of their window period for filing objections to the
payment of particular fees, it would seem readily to fulfill a union's
obligation to inform members of the LMRDA.
---------------------------------------------------------------------------
Plaintiffs apparently feel that the virtue of a website posting
(which, according to one of Plaintiffs' experts, has been done by only
a few unions \23\) is that it would provide a readily available source
of information to members on an ongoing basis. However, Section 105
does not require unions to make the LMRDA accessible to members on an
ongoing basis; it simply requires that a union ``inform'' its members
concerning the provisions of the Act.
---------------------------------------------------------------------------
\23\ (JA 39) (Summers Aff. para. 10).) The fact that the Machinists
agreed to such a measure does not make it mandatory under the Act.
Other unions, according to Plaintiffs' counsel, have not agreed to a
website posting. (See JA 67-68. 85-86 (Fox Aff. para.para. 4-5 & Exs.
C-D).)
---------------------------------------------------------------------------
In arguing for a requirement that unions make LMRDA information
available on a continuing, or ongoing, basis, Plaintiffs seemingly
misapprehend the Fourth Circuit's use of the word ``continuous'' in its
opinion in the Thomas case. The court stated:
Given the statutory definition of ``member,'' the continuous
nature of the notification duty is evident. Union membership is
not static--the membership changes as some individuals retire
and others join. Many, if not most, of the current members of
the IAM were not members in 1959 and thus have never been
informed by the IAM of the provisions of the LMRDA. The IAM's
single act of notification in 1959 did not inform a large
portion of those individuals who by definition are ``members''
of the union. It is therefore clear that the IAM is out of
compliance with the mandate of Section 105.
201 F.3d at 519.
Clearly, the Fourth Circuit's concern was with the ``continuous''
flow of new members into the union, an issue the Union herein has now
addressed by sending the LMRDA summary to all new members commencing in
April 2001. The Fourth Circuit in Thomas was not announcing a new rule
of law that required unions to make the LMRDA continuously available to
members by a posting or some similar means. Indeed, in its comments
regarding the implementation of the notice requirement on remand, the
Fourth Circuit expressed no concern about the text of the Act being
posted or otherwise continuously available.
Section 105, by its terms, does not require a continuous posting or
publication of the Act. In contrast, the immediately preceding section
of the Act requires unions to maintain copies of collective bargaining
agreements and to make them available for inspection by employees whose
rights are affected by the agreements. See 29 U.S.C. Sec. 414.
Likewise, under Section 206 of the Act, unions are required to
maintain--and keep available for examination--records on which their
financial reports to the Department of Labor are based. See 29 U.S.C.
Sec. 436. Clearly, then, when the drafters of the LMRDA intended to
require unions to maintain documents or information for consultation by
union members on an ongoing basis, they specified that requirement in
clear and specific terms.
Similarly, Congress knew how to draft a statute requiring unions to
post provisions of law in a prominent place easily accessible to
members.\24\ In Title VII of the Civil Rights Act of 1964, for example,
Congress specified that labor organizations
\24\ Indeed, Congress has demonstrated its ability to draft a
statute requiring a website posting. See 42 U.S.C. Sec. 13218(b)(3)(A)
(requiring federal agencies to place certain reports on publicly
available websites on the Internet).
shall post and keep posted in conspicuous places on its
premises where notices to . . . members are customarily posted
a notice to be prepared or approved by the [Equal Employment
Opportunity] Commission setting forth excerpts from, or
summaries of, the pertinent provisions of this subchapter and
---------------------------------------------------------------------------
information pertinent to the filing of a complaint.
42 U.S.C. Sec. 2000e-10(a). As this Court held in similar circumstances
in Carothers, this is powerful evidence against implying a posting or
similar requirement in Section 105. See Carothers, 818 F.2d at 930
(``Where Congress intended to create a right of access to a union's
mailing list . . . it said so explicitly.'')
Interestingly, Plaintiffs expressly conceded in the court below
that website publication ``would only be of limited usefulness.''
(Plaintiffs' Memorandum in Support of Motion for Summary Judgment filed
May 16, 2002, p. 18.) Five of Plaintiffs' affiants concede the same
point. (JA 39, para. 10; JA 48, para. 26; JA 56, para. 10; JA 60, para.
14; JA 66, para. 13.) There are undoubtedly many potential mechanisms
for ``informing'' members that would likewise be only of limited
utility. The contention that a union's failure to employ such a
mechanism places it in violation of Section 105 is simply untenable.
b. The Failure To Append the LMRDA Summary to the UA
Constitution Is Not a Violation of Section 105
In the most extreme of their arguments, Plaintiffs seek to premise
a Section 105 violation on the Union's failure to publish the LMRDA
Summary as an appendix to its Constitution. Neither the comments of the
drafters of Section 105, the simultaneous advice of Department of Labor
officials, nor the Fourth Circuit's decision in Thomas lend any support
to Plaintiffs' claim that appending the LMRDA Summary to the union's
constitution is a mandatory component of compliance with Section 105.
Moreover, this was not even mentioned in the consent order resolving
the Thomas case.
This is a remarkably intrusive suggestion. The Union's
Constitution--like that of most labor organizations--comprises the
internal governing laws of the organization. See, e.g., Stevens v.
Northwest Ind. Dist. Council, United Bhd. of Carpenters, 20 F.3d 720,
732 (7th Cir. 1994) (recognizing union constitution as internal
governing document, which, under doctrine of exhaustion, union should
be given opportunity to interpret in first instance). Plaintiff
Callihan characterizes it as the Union's ``Bible.'' (JA 23 (Callihan
Aff. para. 9).) The UA Constitution, by law, is a contract between the
International Union and its affiliated Locals. See United Ass'n of
Journeymen and Apprentices v. Local 334, United Ass'n, 452 U.S. 615,
619-20 (1981).
The LMRDA and regulations thereunder leave unions nearly unfettered
discretion in deciding what topics to cover or not to cover in their
constitutions. The only requirements imposed by law, in Section 201(a)
of the LMRDA, are that each union adopt a constitution and that it file
a copy of its constitution with the Department of Labor, See 29 U.S.C.
Sec. 431(a). While provisions of the UA Constitution may be suspended
in the event they are held unlawful by a court of competent
jurisdiction, (Perno Decl. Ex. C Sec. 220),\25\ it would be highly
unusual for a court to order this Union--or any union--to add
particular material to a constitution.\26\ Indeed, such a ruling, if
applicable, would likely place every single American labor organization
in instant violation of Section 105. Section 201(a), enacted
simultaneously with Section 105, imposes no such requirement and it can
be fairly assumed that Congress--which was well aware in 1959 of the
existence and significance of union constitutions--did not intend to
impose one.
---------------------------------------------------------------------------
\25\ Perno Declaration Exhibit C is the text of the UA Constitution
which was admitted to the record in the District Court but omitted from
the Joint Appendix in the interest of brevity.
\26\ The UA Constitution can be changed only at the Union's
quinquennial convention, or by referendum vote conducted pursuant to
extensive and detailed procedures. (Perno Decl. Ex. C, Sec. Sec. 217-
18.)
---------------------------------------------------------------------------
Moreover, the record suggests that adding the LMRDA Summary to the
Union's Constitution would not have the effect of more widely
disseminating the document than does present practice.\27\ Whereas the
UA Journal is sent to all new members, the UA Constitution is not.
Copies of the Constitution are provided to members on request (JA 110
(Perno Decl. para. 5)), which is all that is required by the Act. See
Donovan v. Local 1235, Int'l Longshoremen's Ass'n, 715 F.2d 70, 75 (3d
Cir. 1983). Interestingly, Plaintiff Callihan's declaration appears to
suggest that--if the Court were to order the LMRDA Summary appended to
the Constitution--Plaintiffs would then make a ``bootstrap'' claim that
the UA had to send the Constitution to all members because it contained
the LMRDA Summary. (JA 23 (Callihan Aff. para. 9).) Yet, as the Third
Circuit held in the Local 1235 case, the law does not impose such an
obligation on unions. 715 F.2d at 75.
---------------------------------------------------------------------------
\27\ Indeed, the Thomas court rejected the IAM's post-1959
inclusion of some LMRDA protections in its constitution as evidence of
its compliance with Section 105 at least in part because it was ``at
best unclear how widely circulated'' the IAM Constitution was. 201 F.3d
at 521.
---------------------------------------------------------------------------
Significantly, when Plaintiff Callihan wrote to the Union's General
President, following the final order in the Thomas case, and requested
that the Union take particular steps to comply with Section 105, he
sought only a one-time publication of the LMRDA Summary in the UA
Journal, and a website posting. (JA 26.) Mr. Callihan did not request
that the Union append the LMRDA Summary to its Constitution, and it
undoubtedly did not occur to him to do so. In these circumstances, it
would be grossly unfair to hold the Union in violation of the Act
because of its failure to initiate such a highly unusual, indeed
unprecedented, action.
VII. Conclusion
Plaintiffs have failed to satisfy their burden of establishing that
a violation of a specifically enumerated LMRDA right has occurred.
Since there is no violation of the Act, there is no basis for the Court
to order a remedy. Accordingly, Appellees urge the Court to affirm the
judgment of the court below.
Respectfully submitted,
Sally M. Tedrow, DC Bar #938803,
Dinah S. Leventhal, DC Bar #456054,
O'Donoghue & O'Donoghue,
Washington, DC,
Attorneys for Appellees,
Dated: February 14. 2003. +
ADDENDUM F
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 02-7111
CHARLES CALLIHAN, et al., Plaintiff-Appellants, v. UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY,
et al., Defendant-Appellees.
On appeal from the United States District Court for the District of
Columbia
appellants' reply brief
In its Brief, the UA does not take issue with appellants'
discussion of the legislative history of Title I, or Congress'
objectives and overriding goals when enacting the LMRDA, or the fact
that it is a remedial statute which must be interpreted broadly to
effectuate those goals, or that Congress intended for the courts to
determine the manner or means by which unions would comply with Section
105. Nor does the UA inform the Court that it would be impossible, or
unduly burdensome, or even just difficult, for it to afford any
component of the relief appellants contend is necessary to remedy the
UA's 40-plus years of non-compliance with the Section 105 informational
mandate.
Rather, the UA's defense of the district court's decision below is
built almost entirely upon this Court's opinion in Carothers v.
Presser, 818 F.2d 926 (D.C. Cir. 1987). In that case, union members
asserted an LMRDA Title I right of access to their union's mailing list
in order to distribute literature opposing ratification of a collective
bargaining agreement, a right allegedly ``derived from subsection
101(a)(1)'' which ``flows from subsection 101(a)(2).'' Id. at 930. The
Court found no such right ``specifically enumerated in the statute''
and refused to infer or imply such a right based upon the ``equal right
to participate in union affairs,'' conferred by Sec. 101(a)(1), or the
``free speech right,'' conferred by Sec. 101(a)(2). However, the Court
did hold that ``access to a union's mailing list may . . . be granted
in appropriate circumstances as a remedy for an independent violation
of the statute.'' Id. at 928 (emphasis in original).
In the case at bar, plaintiff-appellants are asking the Court to
remedy a violation of Section 105. They are not asking the Court to
infer or imply a right to be informed by their union about the LMRDA,
or to create a new substantive right. Section 105 already imposes on
unions a clear duty to inform their members about the provisions of
that Act; conversely, members have a ``specifically enumerated'' right
to be informed concerning their rights, and their officers'
responsibilities, under the LMRDA.\1\ As a consequence, Carothers is
inapposite and the Union's legal defense against plaintiffs' summary
judgment motion accordingly collapses.\2\
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\1\ We readily concede that Section 105 does not explicitly confer
on plaintiffs a right to have the entire text of the LMRDA, or just a
summary, posted on bulletin boards, or published periodically in their
Union's magazine, or as an appendix to their Union's constitution, or
on its website, or disseminated by some other means; these are,
however, means by which the Court may remedy the UA's 40-plus-year
violation of Section 105.
\2\ If, as the UA contends, Carothers is so relevant, one would
think that the district court would at least have referred to it in its
decision below. Throughout its brief, the UA also cites Gilvin v.
Fiore, 259 F.3d 749 (D.C. Cir. 2001), in tandem with Carothers.
However, in Gilvin, this Court merely noted that the plaintiff had
``failed to articulate how he was deprived of any of the specific
rights protected by Sec. 101(a)(1) [of the LMRDA]'' while conceding
that he had, in fact, been allowed to exercise each and every one of
the rights set forth in that subsection. Accordingly, having failed to
state a claim, the Court upheld dismissal of this one claim. In doing
so, the Court happened to cite Carothers, but Gilvin simply does not
afford any support for the UA's claim that plaintiff-appellants are
seeking to have this Court infer a member right to be informed that is
not already contained in Section 105.
Similarly, the UA's reliance on McGovern v. Teamsters Local 456,
107 F.Supp. 2d 311 (S.D.N.Y. 2001), is misplaced. In that case, the
court dismissed a Section 105 claim because the complaint merely
alleged that the union had failed to furnish requested information
relevant to contract negotiations, and plaintiffs proffered no evidence
that the union had failed to advise them of their rights under the
LMRDA.
---------------------------------------------------------------------------
Indeed, in Thomas v. IAM, 201 F.3d 517 (4th Cir. 2000), the IAM
also argued that the plaintiffs were asking the ``court to create
rights and remedies that Congress never authorized.'' Id. at 520. In
rejecting the argument, the Fourth Circuit observed:
The plaintiffs in this case are not asking this court to
construct a right out of the penumbras of related provisions.
Rather, they are asking the court to perform the most
traditional of judicial functions--to give effect to the plain
language of section 105.
Id. at 521. Here too, we are asking the Court to give meaning and
effect to the plain language of Section 105 by crafting an appropriate
remedy.
There simply is no dispute that for more than 40 years the UA
ignored its Section 105 duty to inform its membership about the
provisions of the Act.\3\ Thus, what is at issue at this stage of the
proceeding is not whether the UA violated Section 105, but rather what
relief will function to remedy that violation, i.e., what steps the UA
must undertake that will operate to inform its members concerning their
rights, and their officers' duties, under the LMRDA, and how to enforce
them. Having done so, the Court can then decide if the UA has afforded
complete relief. In fact, no court has yet to address this issue and
frame appropriate relief for exacting union compliance with Section
105's informational mandate.\4\
---------------------------------------------------------------------------
\3\ See JA 14 para. 4, Plaintiffs' Statement of Material Fact:
having published the text of the LMRDA in 1959, ``during the balance of
the 20th century, the UA took no further steps systematically to inform
its membership concerning the provisions of the LMRDA.'' While the UA
responded that it had ``given seminars on a regular basis for the
business managers and financial secretary-treasurers of UA Local
Unions, including presentations of the obligations of the UA and Local
Unions under the LMRDA,'' Perno Declaration para. 7, informing only the
UA's top officers concerning their obligations under the LMRDA is a far
cry from informing the entire UA membership concerning their rights
under the LMRDA. See also UA Br. at 4 n.5. There simply is no dispute
as to this one and essentially only material fact.
\4\ In the Thomas v. IAM litigation, neither the Fourth Circuit,
nor the district court, had a record or developed information which
would have allowed the framing of appropriate relief. Rather, as
acknowledged by the UA, Br. at 11, the parties effectively negotiated a
consent order which the district court entered.
---------------------------------------------------------------------------
Even the UA concedes, as it must, Br. at 7-8, once a violation of
Section 105 has been found, responsibility for shaping the remedy lies
within the considered discretion of the Court. And this discretion
should be exercised in light of the teachings of Hall v. Cole, 412 U.S.
l, 10-11 (1973), and Masters, Mates & Pilots v. Brown 498 U.S. 466, 476
(1991).
While the district court could have framed relief in an
informational vacuum, plaintiff-appellants thought that the wiser
course would be to develop a record that would enable the court to
consider all of the different means available to the UA for meeting its
Section 105 duty so as to facilitate its framing appropriate relief
that would promote Congress' objectives. Toward that end, plaintiffs
adduced helpful information and expert opinion concerning the efficacy
of various different means by which unions generally, and the UA in
particular, could``inform'' their members about the LMRDA. The UA chose
not to challenge the exceptional credentials of, much less any of the
information or opinion proffered by, plaintiffs' experts. Rather, they
asked the district court to blind itself by striking virtually all of
this useful information and opinion. The district court declined to
grant the UA's motion which the UA has essentially renewed in this
Court, citing case law to the effect that expert testimony ``may not be
admitted for the purpose of advising the Court on the meaning of the
law.'' Br. at 16-20. However, the UA's argument flies wide of its mark
since plaintiff-appellants' affidavits were offered not to instruct the
court on the meaning of the law, but rather to assist the court in
framing appropriate relief.
Although the UA complains that plaintiffs' experts have not, in its
view, established their familiarity with the internal workings and
governing structure of the UA, it does not challenge the applicability
of their opinions to the UA.\5\ Importantly, the UA does not challenge
the proposition that few of its members read the UA Journal and thus
that its 2001 publication of the LMRDA Summary in its Journal
accomplished little to nothing in terms of informing its membership
about the LMRDA. Nor does it challenge the axiom that its members are
generally unconcerned about their LMRDA rights until they actually need
their protection as a consequence of some unlawful action taken by
their Union's officers. Nor does the Union take issue with the fact
that its members are essentially required to, and do typically refer
to, the UA Constitution when it becomes necessary to learn about their
rights as members, or citizens of the union state, and particularly how
to secure or enforce them, i.e., when the Union infringes their
constitutional or statutory rights.
---------------------------------------------------------------------------
\5\ Inasmuch as many unions are headquartered in the District of
Columbia, we acknowledge that the Court's decision in this case will
provide important guidance, and may have a significant impact on
compliance with Section 105 by other unions. However, a remedial order
in this case will not serve to establish, or to enumerate, any specific
statutory rights applicable to all unions, for all time to come. But
see UA Br. at 12.
---------------------------------------------------------------------------
Rather, the UA contends that plaintiff-appellants ``are seeking to
do precisely what the Thomas court expressly rejected, namely,
`involv[ing] the courts in internal union management' by asking the
Court to prescribe particular means that unions must use to inform
their members.'' Br. at 13. To the contrary, what the Thomas court
actually said was: ``Granting plaintiffs the relief to which they are
statutorily entitled need not involve the courts in internal union
management.'' 291 F.3d at 521.\6\
---------------------------------------------------------------------------
\6\ While the court did not actually determine what relief would be
appropriate on remand, it did suggest possible inclusion of the LMRDA
Summary in the union's constitution as one appropriate form of relief
but suggested that ``something more will [also] be required.'' 201 F.3d
at 521. Contrary to the UA's contention, Br. at 10, 15, the court did
not hold that furnishing a copy of the Summary to new members at the
time they first join the union would satisfy the Section 105
informational mandate.
---------------------------------------------------------------------------
In a similar vein, quoting from S. Rep. No. 187, I NLRB Legis.
Hist. at 403, the UA contends that Congress intended its goal of
democratic governance ``to be achieved within `a general philosophy of
legislative restraint' to avoid unnecessary governmental intrusion into
union affairs.'' Br. at 7. But, the quoted language was merely the
Committee's explanation, when reporting its bill to the full Senate,
for having chosen not to regulate unions more extensively. In fact, the
full Senate did not share, and affirmatively repudiated, its
Committee's ``philosophy'' when amending the Committee's bill to
include all of Title I. See Cox, Internal Affairs of Labor Unions Under
The Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 845 (1960);
Masters, Mates & Pilots v. Brown, 498 U.S. 466, 477-78 (1991)(``policy
of avoiding unnecessary intervention in internal union affairs . . .
reflected in several provisions,'' is ``notably absent in
Sec. 401(c)''); Wirtz v. Glass Bottle Blowers, 389 U.S. 463, 473
(1968). Moreover, the Committee's Report was certainly not intended to
counsel judicial restraint when fashioning relief for violations of
those incursions into union autonomy which Congress did ultimately
consider necessary to enact, including Section 105.
A more accurate and fair statement of the philosophy of the full
Congress would be that it was careful to avoid undue regulation of
unions that might compromise their essential independence or autonomy
as collective bargaining representatives of workers.\7\ However, the
specific provisions of the LMRDA constitute the exceptions to this
``hands off'' policy; and where a violation is established, the courts
must ``interfere'' in order to provide a remedy, so long as that remedy
does not undermine the union's autonomy. See Brock v. UAW, 682 F.Supp.
1415, 1421 (E.D.Mi. 1988), vacated on procedural grounds, 889 F.2d 685
(6th Cir. 1989); Wirtz v. Glass Bottle Blowers, supra, 389 U.S. at 471.
---------------------------------------------------------------------------
\7\ In fact, by closely examining S. Rep. No. 187 p. 7, I Leg.
Hist. at 403, we discover a more balanced philosophy articulated by the
Senate Committee:
``Given the maintenance of minimum democratic safeguards and
detailed essential information about the union, the individual members
are fully competent to regulate union affairs. The committee strongly
opposes any attempt to prescribe detailed procedures and standards for
the conduct of union business. Such paternalistic regulation would
weaken rather than strengthen the labor movement; it would cross over
into the area of trade union licensing and destroy union
independence.''
``Remedies for the abuses should be direct. Where the law
prescribes standards, sanctions for their violation should also be
direct.''
``The test of a sound bill in this complex and relatively new
legislative area is whether it is workable and will produce the desired
results without destroying valued free institutions.''
---------------------------------------------------------------------------
The UA contends, Br. at 26-27, that plaintiff appellants make a
``remarkably intrusive suggestion'' that the Court require it ``to add
particular material to [its] constitution'' since Congress intended to
give unions ``nearly unfettered discretion in deciding what topics
tocover or not to cover in their constitutions.'' Suffice it to say,
plaintiff-appellants are not asking the Court to order the UA to amend
its organic laws to include the LMRDA Summary within, or to make it
part of, the UA Constitution. Rather, for the many reasons contained in
the affidavits filed below, they seek only to have the Union append a
copy of the Summary at the back of the booklet in which the UA
Constitution is reproduced.
The UA's argument, Br. at 12, 22, 24-25, that Congress knew how to
spell out specific reporting and disclosure requirements as evidenced
in other LMRDA Titles fails to take into account the fact that the
other Titles were carefully constructed in committee, while Title I had
no such deliberative history.\8\ Rather, Title I, which includes
Section 105, was thrown together at the 11th hour and added as a floor
amendment during the debate before the full Senate. As a consequence,
as we demonstrated in our opening Brief, pp. 16-21, Congress granted
the courts unusually broad discretion to frame appropriate relief for
violations of Title I, including Section 105.\9\
---------------------------------------------------------------------------
\8\ This UA argument amounts to a claim that since Congress did not
enumerate specific steps required to comply with Section 105, Congress
must have intended there to be none. An absurd conclusion.
\9\ As the Supreme Court explained in Hall v. Cole, 412 U.S. 1, 11
(1973): ``any attempt on the part of Congress to spell out all of the
remedies available under [Title I] would [have] create[d] the danger
that those [remedies] not listed might be proscribed . . ..'' Congress'
wisdom was prescient given, for example, that the internet and union
websites did not exist in 1959 when the LMRDA was enacted. In the 21st
Century, a website posting of the LMRDA Summary, particularly as UA
members become more sophisticated in surfing the web, will become one
ideal method by which the UA can inform its members about the LMRDA, as
required by Section 105.
---------------------------------------------------------------------------
In essence, the UA contends that Section 105 only requires it to
furnish its members with the one-page LMRDA Summary once during their
careers in the plumbing and pipefitting industry. By publishing the
Summary in the UA Journal, the UA contends that it has informed its
existing members concerning the Act, and by furnishing a copy to new
members at the time they join the Union, the UA contends that it will
satisfy its ongoing Section 105 duty.\10\ We respectfully disagree. The
Thomas court rejected the notion that Congress ``was perfectly willing
to let ignorance reign for . . . forty years'' when holding that
``maintaining honest democratic governance of unions is surely an
ongoing effort that would seem perforce to require some ongoing method
of notification.'' 201 F.3d at 520. Contrary to the UA, Br. at 8 n.7,
10, 15, there is nothing in the Fourth Circuit's opinion to suggest
that the UA's one-time notification given to members would fully
discharge its Section 105 informational mandate. To the contrary, the
Thomas court in 2000, and the Acting Solicitor of Labor in 1960, both
suggested that a variety of means for informing members might be
necessary to satisfy the Section 105 informational mandate. 201 F.3d at
521; JA 130-31.
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\10\ See, e.g., UA Br. at 14 where the UA contends that ``by
sending a concededly adequate summary of LMRDA rights to each current
and new member at his or her home address, the Union has satisfied the
plain language of Section 105's duty to inform.'' See also Br. at 8
n.7, 10, 23.
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For the reasons set forth in our opening brief, pp. 21-28, and more
fully amplified in affidavits submitted by plaintiff-appellants and
their experts, JA 21-66, we respectfully submit that the UA must be
required to undertake additional steps to inform its members concerning
the provisions of the LMRDA on an ongoing basis if Congress' objective
of enlisting their active support in enforcing the Act is to be met. UA
members simply cannot be expected to remember the contents of an
informational notice they were furnished years or decades earlier when
they had no interest in its contents. It is only when the member
suffers an injustice at the hands of his Union officials that the
member needs access to information concerning his LMRDA rights and how
to secure them. Of course, it is also at that point in time that his
Union is most anxious that he be, and remain, ignorant of his rights.
However, if union members are to function, as Congress intended, ``not
only [as] the beneficiaries of the LMRDA, but [also] in many instances
[as] its sole guardians,'' \11\ they need ready access to information
about the Act on an ongoing basis.\12\
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\11\ See Thomas, 201 F.3d at 520.
\12\ In the Beck setting, see UA Br. at 23 n.22, courts and the
NLRB have, in fact, imposed on unions a continuing or recurring
obligation to notify non-member fee-payers concerning their expenditure
of funds for non-collective bargaining purposes as frequently as the
fee-payers are required by the union affirmatively to ``opt out'' of
paying full dues, generally on a yearly basis. See e.g., L.D. Kichler
Co., 335 NLRB No. 106 (2001); Tierney v. City of Toledo, 824 F.2d 1497,
1506 (6th Cir. 1987).
In the LMRDA setting, a member's ``need-to-know'' about the
provisions of the Act generally does not arise when the member first
joins the union; rather, it arises years or decades later when some
injustice is imposed on the member by her union officers. As in the
Beck setting, whenever the union precipitates a need-to-know, it should
be required contemporaneously to furnish the member with needed
information.
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conclusion
For the foregoing reasons, we respectfully submit that the UA has
failed to demonstrate that it has fully remedied its 40-plus years of
failure to comply with Section 105 and the district court erred by
summarily denying plaintiff-appellants motion for summary judgment.
Respectfully submitted,
Arthur L. Fox, II, No. 58495.
Lobel, Novins & Lamont, Washington, DC, Attorney for Appellants.
certificate of service
The undersigned certifies that on this date he served two copies of
Appellants' Reply Brief by depositing them in the mail, first-class
postage prepaid, addressed to: Sally M. Tedrow, Esq., O'Donoghue &
O'Donoghue, 4748 Wisconsin Ave, NW, Washington, DC 20016.
Arthur L. Fox, II,
Dated: March 7, 2003.