Consolidation in the Construction
Trades:
Keeping the Purse Strings in the Hands of the Rank and File
By Leon M. Rosenblatt, Attorney at Law
West Hartford, Connecticut
The situation is now
familiar to those of you in the construction trades: your local unions are
becoming shells. The powers that were traditionally exercised by your local
union have been sucked upward "and usurped by district or regional bodies.
The locals still exist, but
they have no power. The real work is being done by the next-higher bodies.
These district or regional bodies are called "intermediate" bodies
because they are intermediate between the locals and the international.
Where do these intermediate
bodies get their money? Is it legal?
The Issues
Typically, the intermediate
union bodies are financed from .dues collected directly from rank and file
workers. What usually happens is that workers go from job to construction job,
and wherever they are employed, the employers takes dues out of their paychecks
and send it to the intermediate body. (The intermediate bodies may also collect
funds by assessing per capita dues on the locals, but that is a different
situation.)
There are several legal
issues:
First, in most cases, the
workers never sign dues check-off authorization: cards in favor of the
intermediate body. If they have signed a card, it is in favor
of the local.
Second, the workers are
forced to pay dues to a union body to which they-do not even belong. Rank and
file workers are not members of intermediate bodies like district and regional
councils. They are members of the locals, and of the international, but not of
the intermediate bodies. The members of the regional bodies are delegates from
the locals. They are usually local officers who draw their salaries --
sometimes directly and sometimes indirectly -- from the regional bodies.
Third, the level of dues is
not subject to a secret ballot vote of the people who pay the money. Instead,
the dues are set by the delegates elected or appointed to represent the locals
at the intermediate level. The notion that delegates can impose dues on rank
and filers who are not members of these intermediate bodies is suspect.
The Applicable Law
There are two relevant
federal statutes-- the LMRA and the LMRDA.
Section 302 (b) of the Labor Management Relations Act of 1947
(LMRA) was passed by
Congress "as part of a
comprehensive revision of federal labor policy" to curb corruption and
abuse of power by union
officials. Arroyo v. United States, 359. U.S. 419, 423-426, 79 S.Ct.
864, 867-868, 3 L. Ed. 2d
915 (1959). It prohibits an employer from giving dues check-off
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money to a union, except when the employee has
signed a checkoff card. It applies equally to union representatives who accept
the money.
The Labor Management Reporting and Disclosure Act
(LMRDA) was passed in 1959 after highly public investigations into corruption
and the influence of organized crime in certain unions. The LMRDA was designed
to promote union democracy. One of the main ways was to put the purse strings
in the hands of the rank and file. This was done by requiring locals in most
cases, when they increase dues or impose assessments, to have a secret ballot
vote of the members. The point was, as one court put it, "to ensure that
dues will not be imposed on Union members by mere fiat of their officers."
King v. Randazzo, 346 F.2d 307, 309 (2d Cir.
1965) (holding that imposition of dues by an intermediate union body was
illegal until a secret ballot membership vote was held).
The LMRDA allowed internationals to raise dues or
impose assessments by vote at a convention, without a secret ballot vote. The
difference between how the rules applied to local unions and how they applied
to internationals is the difference between direct democracy in the New England
town meeting-style and representative democracy. New England town meetings
represent the purest form of democracy. Representative democracy, delegating to
representatives the authority to make decisions, is certainly well accepted in
this country, but it was deemed not good enough to ensure rank and file control
over the level of dues collected by local union officers.
The reason there is a legal question now is because
when these laws were passed, intermediate bodies as we now know them were not
common. The LMRDA, for instance, was written with three kinds of union bodies
in mind. There were locals. There were labor federations, like the AFL-CIO. And
there were internationals. The internationals were referred to awkwardly as
unions which were "other than a local labor organization or a federation
of national or international labor organizations."
The intermediate union bodies that existed at the
time the LMRDA was passed played very different roles than they do today in the
construction trades. Occasionally, intermediate bodies did some of the work of
locals, but that was the exception, not the rule. In terms of dues, the LMRDA
did not address them at all.
When today's intermediate union bodies are asked to
justify how they can raise dues without a secret ballot election, they respond,
"It's simple. An intermediate union body is something 'other than a local
labor organization or a federation of national or international labor organizations."'
Whether their definition is literally correct is not
the issue. The reality is that it is an attempt to make an end-run around the
LMRDA.
The Legal Analysis
As far as the LMRA is concerned, it is hard to see
how the practice of deducting dues without written authorization is defensible.
The law is being broken tens of thousands of times every month, every time an
employer deducts checkoff dues and sends the money to an intermediate body
without the worker having signed a checkoff card. (For you RICO freaks, the
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dues check-off statute is both a civil and criminal
statute. It is one of the laws the violation of which can constitute a
predicate act giving rise to a RICO violation.)
As far as the LMRDA is concerned, the matter is
murkier. The answer, I believe, is to use common sense: If it looks like a
duck, if it walks like a duck, and if it quacks like a duck, then it's probably
a duck.
In other words, if an intermediate union body acts
like a local, if it performs all the tasks which were associated with locals in
1959 when the LMRDA was passed, then it's a local. And it must raise dues like
a local, by secret ballot vote.
Since the statute is silent, or at least ambiguous,
as to how intermediate bodies can take dues, we have to look at court cases
which discuss what a local is. The leading case is Donovan v. National
Transient Division. International Brotherhood of Boilermakers, 736 F. 2d
618 (10th Cir. 1984)._ The issue there was not dues. It was whether the
National Transient Division of the Boilermakers Union was a local, and
therefore whether it had to have elections every three years. The court ruled
it was a local, despite the fact that it operated in forty-one states and was
administered by a national director and eight district representatives.
More important for our purposes is how the court
made the decision. It refused to go by what the union body called itself.
Rather, the court held that whether a union organization is local or not must
be determined by looking at "its functions and purposes rather than the
formal title by which it is known or how it classifies itself." 736 F. 2d
at 622 (quoting 29 C.F.R.§452.11).
The court noted that the LMRDA does not define
"local" but that the term must be construed in light of its ordinary
meaning and the Congressional purpose in enacting the LMRDA. Citing T. Kheel,
Labor Law §§ 3.01 and 3.02 for the "ordinary meaning," the court
said:
Generally
local labor organizations provide day-to-day services to . the membership, such
as policing collective bargaining agreements, disposing of grievances,
collecting membership dues and disciplining dissident members ....
Two other cases which discuss how to determine whether a union
organization is a "local"
track Donovan closely. They
focus not on what the organization calls itself, but on how it
functions. In Schultz v
Employees' Federation of Humble Oil and Refining Company, 74
L.R.R.M. 2140 (S.D.Tx.
1970), the court held the union body, which had 26 different
divisions, was actually a
"local." In Ellis v. Civil Service Employees Association, 913 F.
Supp.
684 (N.D.N.Y. 1996), the
court held that a union body which called itself a local, and was
chartered as a local, was
not really a local union organization.
How to Apply this Analysis
If your dues are going to an intermediate body, even
though you may have signed a checkoff card in favor of your local, it is likely
the law is being broken by your employer and the intermediate body.
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Democracy 718-8S5-6650 aud@igc.org
If,
in your union, an intermediate union body does the following it may be a local
union no matter what it calls itself.
If the intermediate union body:
is responsible for the day-to-day policing of the collective bargaining agreement (signing up new employers, handling job referrals, keeping track of payments to the union and various benefit funds);
is responsible for the disposition of grievances; p is responsible for calling and managing strikes;
organizes new members; sets and receives members' dues; disciplines dissident union members;
engages in social service and political
activities; then it is a local union and cannot increase dues, or impose
assessments, without a secret ballot vote by the people who pay the money--the
rank and file members.
Further,
it may be that, even with a vote, the intermediate body cannot legally impose
due on the rank and file. Can one local impose dues on the members of another
local? The very idea is preposterous. If the intermediate union body is really
a local in the eyes of the law, it would be equally preposterous for that body
to impose dues on non-members.
For Assistance
For
advice, education and legal referrals on this and other problems related to
union democracy, contact the Association for Union Democracy: 718-855-6650, A
718-855-6799 aud@igc.org
http://www.uniondemocracy
org/
500
State Street, Brooklyn NY 11217