144 Cong Rec E 2107, *

CONGRESSIONAL RECORD -- EXTENSIONS

Tuesday, October 13, 1998

105th Congress, 2nd Session

144 Cong Rec E 2107

REFERENCE: Vol. 144, No. 145

TITLE: THE DEMOCRATIC RIGHTS FOR UNION MEMBERS ACT OF 1998 (DRUM)

TEXT:  
     [*E2107]   
 
 
                             HON. HARRIS W. FAWELL 
 
 
 
                                  of illinois 
 
 
 
                        in the house of representatives 
 
 
 
                           Tuesday, October 13, 1998 


Mr. FAWELL. Mr. Speaker, I rise to introduce the Democratic Rights for Union Members Act of 1998. I am gratified that one of my last acts as a member of Congress, and as Chairman of the Employer-Employee Relations Subcommittee, is to present and discuss legislation which I trust is a first step in amending one of the nation's most important labor laws.

Four decades have passed since the enactment of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), also known as the Landrum-Griffin Act. The LMRDA is the only law governing the relationship between labor leaders and their rank-and-file membership. When my Subcommittee began hearings in May on the issue of union democracy, our purpose was to determine the status of union democracy under the LMRDA and to see if the democratic principles guaranteed by federal law are being upheld in union activities throughout the United States. We also wanted to identify possible legislative remedies to improve the law if it were falling short in protecting the rights of hardworking men and women who belong to unions.

Since May, the Subcommittee has held four hearings in the union democracy series. In May, we heard from a variety of local union officials and rank-and-file, including those from the Carpenters, Laborers, and Boilermakers unions. We were also privileged to hear from one of the country's foremost expert in union democracy law, Professor Clyde Summers. It was Summers, who, forty years ago, at Senator John F. Kennedy's request, fashioned a "bill of rights'' for union members which became Title I of the LMRDA.

Our June hearing featured Herman Benson, a founder and enduring leader of the Association of Union Democracy, as well as the Carpenter's union rank-and-file and their president, Douglas McCarron. This hearing centered on the right to a direct vote which was abrogated by the implementation of a nationwide restructuring of the union resulting in unilateral dissolution and merging of locals.

Hearings in August and September focused on election irregularities and the lack of financial disclosure in the American Radio Association, a small union illustrating the ease with which democratic principles can be lost.

Union democracy is a bi-partisan issue. Even in 1959, the LMRDA was passed because two sides without much in common came together for the good of the rank and file. My Subcommittee has conducted the union democracy hearings in a bi-partisan manner. I hope Congress can repeat history by passing another bill to amend the LMRDA and further strengthen its principles.

In 1959, labor leaders opposed the LMRDA. In the vanguard of those who led the successful effort to pass the Act were Professor Summers and Herman Benson. Both of these men have been outstanding advocates for unions and the labor movement. Both recognize that you cannot have a strong, healthy labor movement unless rank-and-file members have democratic rights within that movement. As Professor Summers has written, "workers gain no voice in the decision of their working life if they have no voice in the decisions of the union which represents them.''

If I had to draw a conclusion from the union democracy hearings held so far this year, I would assume that labor leaders would once again oppose any changes to the Act. It would seem that labor leaders have found the "Loopholes'' in the LMRDA and have not voiced, as of yet, any concerns about how the law operates in practice. Rather, it is the rank-and-file members who have recounted endless accounts of violence, intimidation, abuse and other examples of an erosion of democratic principles in this country's unions.

The next Congress has much work to do on this issue. However, the bill I introduce today is a good start. This legislation makes two necessary amendments to the LMRDA, important first steps, proposed by Professor Summers and Mr. Benson. As I have indicated, these men are pioneers in the field of union democracy law and I implore members from both sides of the aisle to recognize the wisdom of their proposals.

Professor Summers began studying and writing about the rights of union members in 1945 after receiving his law degree. In 1952, he wrote "Democracy in Labor Union,'' a policy statement adopted by the American Civil Liberties Union. He has been teaching, writing, and lecturing on union democracy law ever since, always with an emphasis on employee rights and industrial democracy. His writings include more than 100 law review articles. To this day, Professor Summers is a tireless advocate of union democracy and served on the board of directors for the Association of Union Democracy.

The Subcommittee also received testimony and assistance from Herman Benson, another of the nation's foremost experts in this field. Mr. Benson is a retired toolmaker and machinist and member of various unions over the years, including United Auto Workers, International Union of Electricians, and United Rubber Workers. From 1959 to 1972, he edited and published "Union Democracy in Action.'' He co-founded the Association for Union Democracy and continues to serve as editor of "Union Democracy Review.'' Mr. Benson has devoted his professional career to battling against corruption or authoritarianism in unions. I request that their written statements in support of the bill be placed in the record following the bill and my remarks.

Two basic rights, rooted in democracy, are addressed by my bill. The two provisions address voting rights and trusteeships. Both Professor Summers and Herman Benson strongly believe these steps should be taken. As to the first amendment, the LMRDA permits election of local union officers by a direct vote, but officers of district councils and other intermediate bodies can be elected by delegates. My bill, DRUM, provides that in instances where an intermediate union body assumes the basic responsibilities customarily performed at the local union level-- such as collective bargaining and the running of hiring halls, for example--in these instances, the members would have the right to a direct, secret ballot vote to elect officers of that intermediate body. This is the same right members currently have with respect to electing their local union officers. It is important that officers be elected by direct vote if the vitality of democratic control is to be preserved.

As to the second amendment, the LMRDA intended that local unions could be placed under trusteeship in the event of corruption or other abuse. Unfortunately, trusteeships are sometimes used to eliminate local dissidents and to destroy local autonomy, contrary to the democracy ensured by LMRDA. Moreover, once the trusteeship is imposed, the trusteeship is presumed valid for 18 months. Litigation to remove the trusteeship can take months or year longer. DRUM provides for the removal of this 18 month presumption of the trusteeship's validity. Removal of this presumption opens the door to legitimate challenges to the imposition of a trusteeship. This is the kind of due process any decent union would provide before destroying the local autonomy upon which LMRDA is founded.

These basic individual liberties embody the democratic principles on which this country is founded. These are rights that should be enjoyed by all Americans, and certainly American union workers. I urge all of my colleagues, Republicans and Democrats alike, to join me in supporting these important amendments to the LMRDA, and I urge members of the 106th Congress to build upon this small, but important beginning.  
 
 
                         Statement of Clyde W. Summers 
 
       My name is Clyde W. Summers, and I am Professor of Law at  
     the University of Pennsylvania Law School. 
 
       In considering the proposed bill, we must first set out the  
     underlying premises on which it must rest. 
 
       When the Wagner Act was passed in 1935, one of the basic  
     purposes of the statute was to give workers an effective  
     voice, through collective bargaining, in decisions which  
     govern their working lives. In the words of that time, to  
     provide for a measure of industrial democracy. 
 
       Collective bargaining, however, can serve the purpose of  
     industrial democracy only if the unions which represent the  
     workers are democratic. For workers to have an effective  
     voice in the decisions of the workplace, they must have an  
     effective voice in the decisions of the union which speaks  
     for them. For collective bargaining to serve fully its social  
     and political function in a democratic society, unions must  
     be democratic. 
 
       This was the basic premise of the Landrum-Griffin Act. Its  
     fundamental purpose is to guarantee union members their  
     democratic rights within their union and an effective voice  
     within their union. The union would then be responsive to the  
     felt needs and desires of those for whom the union spoke. 
 
       The Landrum-Griffin Act has served this purpose in  
     substantial measure. It has provided members a Bill of  
     Rights; it has increased transparency and responsibility in  
     union finances; it has established standards 
 
 [*E2108]   
     for fair elections; and it has articulated the fiduciary  
     obligations of union officers. It has enriched the democratic  
     processes in union government, has encouraged union members  
     to make their voices heard. 
 
       This does not mean that the statute is without its flaws,  
     or that it has fully realized its purposes. Forty years of  
     experience under the statute has revealed limitations of  
     foresight and unforseen gaps that permit practices which can  
     defeat its purposes. 
 
       I will discuss only the two problems which the proposed  
     bill addresses, both of which focus on substantial gaps and  
     defects. I fully support these proposals because I believe  
     that they are needed for the statute to fulfill its purposes. 
 
       Section 4 proposes a modest but important change in Title  
     III dealing with trusteeships. At the outset, it must be  
     recognized that when an international union imposes a  
     trusteeship over a local union, the officers elected by the  
     local union members are removed from office and replaced by a  
     trustee appointed by the international officers. Local union  
     meetings may be suspended, union members may have little or  
     no voice in the decisions of the union, and the local union  
     looses all control over local union funds. In short, a  
     trusteeship is a total denial of the democratic process in  
     the local union. 
 
       Title III sets out the standards for imposing a trusteeship  
     and the procedures for challenging the trusteeship in the  
     courts. The Title has been visibly inadequate almost from the  
     time the statute was passed. 
 
       Section 403(g) presently provides that during the first 18  
     months, the trusteeship should be presumed valid, and after  
     18 presumption of validity has meant, for practical purposes,  
     that trusteeships are immune from challenge for the first 18  
     months. Indeed, the likelihood of succeeding in such a suit  
     is so slight that suits are seldom brought during this  
     period. 
 
       Where the trusteeship has its roots in political  
     differences between local and international officers, the  
     officers elected by the local union members are ousted and  
     replaced by those chosen by the international officers. After  
     18 months the trustee appointed by the international and his  
     supporters have solidly entrenched themselves in control of  
     the administrative structure of the local union and have the  
     great advantage of incumbency, if and when an election is  
     held. The originally elected officers may be permanently  
     displaced. 
 
       In view of the serious impact of trusteeship on the  
     democratic rights of local union members, a presumption of  
     validity can not be justified. In those cases where  
     suspending the democratic process is justified, the  
     international officers should be able to prove the need by at  
     least a preponderance of the evidence. After 18 months, the  
     need for the continuation of the trusteeship should be proved  
     by clear and convincing evidence. 
 
       I believe that these changes in the burden of proof  
     provided in the proposed bill will appropriately reduce the  
     stifling of the democratic process at the local union level. 
 
       Frequently, when the trusteeship is declared ended and  
     union meeting resumed, the person named as trustee continues  
     as the presiding officer and in effective control of the  
     local union until the next scheduling election, which may be  
     a year or more later. During that period, the members do not  
     have officers of their choosing, and during that period the  
     trustee is able to more solidly entrench himself in control  
     so that the originally elected officers or others will be at  
     a substantial disadvantage. 
 
       In my view, it would be preferable to provide that the  
     elected officers should be reinstated in office unless they  
     have been tried and found guilty of conduct justifying their  
     removal from office. It they are not reinstated, then a new  
     election should be held as promptly as possible. 
 
       Section 5 of the proposed bill fills a gap which was  
     overlooked when the statute was drafted. Title IV governing  
     elections provided in Section 401 that local union officers  
     should be elected by direct vote of the members, as  
     contrasted with election by delegates which was permitted for  
     international officers. Direct election was required even in  
     so-called amalgamated local unions which had separate  
     sections in a number of separate establishments. 
 
       The requirement of direct elections recognized  
     traditionally that the representative functions in most  
     unions of negotiating collective agreements and handling  
     grievances was carried on primarily at the local level. It  
     was here that members could most effectively exercise their  
     voice; it was here that members most actively participated;  
     it was here that the union should be most responsive. Direct  
     elections gave the employees a more effective voice than  
     indirect election by delegates. 
 
       In the drafting of Landrum-Griffin, little attention was  
     given to the intermediate bodies such as general committees,  
     system boards, joint boards and joint councils. In part, this  
     was because many of them did not perform functions which  
     directly impacted on the members' working lives. With little  
     reflection, section 401 (d) of title IV provided that such  
     intermediate bodies could elect their officers by indirect  
     vote of delegates. 
 
       In the intervening years, the trend toward centralization  
     in unions has led to giving some of these intermediate bodies  
     increased functions in negotiating collective agreements,  
     appointing business agents, and handling grievances, with an  
     inevitable increase in control of union funds. In some cases,  
     these intermediate bodies have, for practical purposes,  
     supplanted the local unions, leaving the local unions little  
     more than empty shells. 
 
       It would be futile to set our faces against centralization  
     because it may be necessary for effective representation.  
     However, this should not deprive union members of a direct  
     and effective voice in electing officers performing these  
     functions. Election by delegates significantly muffles the  
     members' voice and makes these bodies less responsive to the  
     needs and desires of the members. 
 
       Where an intermediate body performs the traditional  
     functions of a local union, negotiating collective  
     agreements, naming business agents, and administering  
     agreements, then they should be treated as local unions for  
     purposes of election of officers. The officers of such  
     intermediate bodies should be elected by direct membership  
     vote. Section 5 of the proposed bill accomplishes this  
     purpose. 
 
       In closing, I would like to emphasize that the proposed  
     amendments here make no basic changes in the statute. They  
     do, however, preserve and reinforce the democratic process at  
     the point where the union most directly affects the members'  
     working lives. 
 
       Historically, the democratic process of unions has had its  
     greatest vitality at the local or base level of the union  
     structure. It has been at this level that union members have  
     looked to the union for representation; and it has been at  
     this level that union members have been most active in making  
     their voices heard. It is this level where the law should  
     give primary attention to protecting and promoting the  
     democratic process. 
 
       I am a founder and secretary treasurer of the Association  
     for Union Democracy, established in 1969 to promote the  
     principles and practices of internal union democracy in the  
     American labor movement; including free speech, fair  
     elections, and fair trial procedures, precisely the kind of  
     rights written into federal law in the Labor-Management  
     Reporting and Disclosure Act of 1959. We believe that strong  
     labor unions are essential to democracy in the nation. I,  
     myself, have been a toolmaker by trade and at various times a  
     member of the United Auto Workers, the United Rubber Workers,  
     and International Union of Electrical Workers. I still am a  
     member of the UAW. 
 
       In the course of the last 50 years, I have been in touch  
     with tens of thousands of unionists, individual rank and  
     filers, organized caucuses, and elected officers in most  
     major unions in the United States. 
 
       The adoption of the LMRDA in 1959 has, over the years,  
     effected a sea change in the state of union democracy in the  
     United States. Before LMRDA, members were expelled for  
     criticizing their officers--usually on charges of slander;  
     they could be expelled for suing the court or for complaining  
     to authorized government agencies. In some unions they could  
     be expelled for organized campaigning for union office or  
     even for circulating petitions on union business within their  
     own unions. Now all that is illegal because the basic rights  
     of civil liberties in unions are written into federal law.  
     The LMRDA has strengthened the labor movement by  
     strengthening the rights of members in their unions. 
 
       In time, however, some union officials have discovered  
     certain weaknesses, or more precisely loopholes, in the law  
     which have enabled them to evade or circumvent its aims and,  
     in some respects, to turn the clock back to the days before  
     LMRDA. The proposed amendments are intended to strengthen the  
     effectiveness of the law by closing two of the most  
     egregiously abused loopholes. 
     The direct election of officers of certain "intermediate''  
     bodies: 
       The central aim of the LMRDA was to protect the basic right  
     of union members to choose their own leaders and to enable  
     them to correct abuses by strengthening their right to elect  
     or to replace those officers. Since the local union has  
     generally been the main source of grassroots power, the place  
     where collective bargaining agreements were negotiated and  
     enforced, the union unit which impinged most directly on the  
     life of workers, the LMRDA was careful to establish explicit  
     measures to assure the rights of members in their locals.  
     Terms of office were limited to three years. Local officers  
     had to be elected by direct secret ballot of the membership.  
     In short, union members were assured direct control over  
     their own officers. 
 
       However, in this respect, the law is being evaded in wide  
     sections of the labor movement, particularly in the building  
     trades. Locals are being consolidated into district councils.  
     The councils take over all the collective bargaining rights  
     and responsibilities formerly the province of the locals: the  
     councils, not the locals, negotiate and sign agreements with  
     the employers, appoint the business agents, implement and  
     enforce the contracts and grievance procedures, control  
     hiring halls and job referrals. By losing control over the  
     collective bargaining process, locals are reduced to mere  
     administrative shells. The members continue to elect local  
     officers, but these officers are essentially powerless. Real  
     power passes into the hands of district officers. 
 
       But the district council setup permits officers to evade  
     the provisions of the law for direct elections because the  
     law now permits officers by such "intermediate'' bodies to  
     elect their officers, not by direct membership vote, but by  
     vote of council delegates ("Intermediate'' bodies are those  
     units above the local level but below the international  
     level.) 
 
 [*E2109]   
 
       Under this structure, the officers of a district council  
     with, say, 10,000 members could be subject to election by a  
     council consisting of perhaps 100 delegates from locals,  
     which means that anyone who could control the votes of at  
     least 51 delegates could dominate the affairs of 10,000  
     members. The reality of union politics (and perhaps most  
     politics) is that an international union has ample powers and  
     resources to control, win over, some might even say to buy  
     off, a handful of delegates by a myriad of means: union staff  
     jobs, favored treatment, junkets, moral and practical support  
     in their locals, etc. 
 
       Direct election by local members allows the rank and file  
     to control their officers. Election by council delegates,  
     allows the international to control the delegates and the  
     officers; the LMRDA is eviscerated. 
 
       One proposed amendment would simply restore the rights  
     originally intended by the LMRDA. In essence it means that  
     the officers of those intermediate bodies which have taken  
     over the rights and functions of locals in collective  
     bargaining will be elected by direct membership vote, just as  
     in the locals, thereby restoring the right of members  
     directly to control their own officers. However, where  
     intermediate bodies still exist essentially as administrative  
     units outside the collective bargaining process, they will  
     continue to have the right to elect offices by delegate vote. 
 
       Union spokesmen and others argue that it is necessary to  
     centralize power in the hands of district organizations in  
     order to strengthen the unions in their dealing with employer  
     conglomerates and to make them more efficient in organizing  
     the unorganized. I would not quarrel with that contention.  
     However, the aim of "modernizing'' unions does not justify  
     the proposed restrictions on membership rights, especially  
     the right to elect officers by direct membership vote. Quite  
     the contrary. The more centralization becomes necessary, the  
     more necessary it becomes to strengthen democratic rights as  
     a counterweight to the bureaucratic tendencies inevitable in  
     all centralization. The adoption of a new U.S. Constitution  
     was necessary to strengthen the United States by giving  
     powers to a central national authority. But precisely because  
     that move was essential to national welfare, it was  
     necessary, at the same time, to bolster democratic rights by  
     adding the Bill of Rights to the new Constitution. Some of  
     our union officers want the authority and the centralization  
     but without the saving salt of democracy. 
     Recourse against improper trusteeships 
 
       One of the glaring abuses revealed at hearings of the  
     McClellan Committee in the late fifties was the practice by  
     various international unions of arbitrarily lifting the  
     autonomous rights of locals and other subordinate bodies and  
     subjecting them to control by appointed trustees. In many  
     instances, international officials used the trusteeship  
     device to loot local treasuries, to eliminate independent- 
     minded critics, even to prevent the replacement of corrupt  
     officials by reformers, and to manipulate the votes of locals  
     in referendums and at conventions. 
 
       Title III of the LMRDA aimed to provide recourse against  
     these abuses. At the time, this section of the law was  
     considered so important that it was one of the few major  
     provisions that allowed for alternate means of enforcement:  
     either by private suit or by a complaint to the Labor  
     Department. 
 
       As written, the provision has had some positive effect. At  
     the time the LMRDA was adopted in 1959, the Labor Department  
     reported, 487 trusteeships were current. In June 1998,  
     thirty-nine years later, 311 trusteeships were reported. see  
     Union Democracy Review, No. 120 . The law has made it much  
     more impossible. The law does restrict the ability to  
     manipulate the local's votes. But it has not succeeded in  
     preventing an international union from misusing the  
     trusteeship device to undermine and repress members rights,  
     to discredit and destroy critics of the top officials. The  
     trouble is that, as time passed, those who use trusteeships  
     for devious aims have learned how to thwart and evade the  
     purposes of Title III, which is why it needs strengthening. 
 
       Title III permits trusteeships to be imposed for certain  
     legitimate reasons; and, if unions actually obeyed the law,  
     there would be little problem. However, to evade the  
     requirements of Title III, a union officialdom need only  
     learn how to fill out the required reporting form. If the  
     real purpose of a trusteeship is illegitimate, the  
     international can easily conceal that fact simply by listing  
     a legitimate, but vaguely formulated, purpose permitted by  
     the law. Over the years, union officials have discovered  
     that they can do this with impunity because the  
     enforcement provisions of Title III are ineffective. 
 
       The Labor Department has no incentive for checking the  
     validity of the Title III reporting forms because the law  
     authorizes it to investigate the validity of a trusteeship  
     only upon the complaint of a union member. Moreover, the law  
     presumes a trusteeship valid for 18 months. In no single case  
     known to me has the Labor Department ever challenged a  
     trusteeship in court before the lapse of 18 months, even  
     after union members have submitted persuasive complaints to  
     it. The same problem faces complainants in Federal court,  
     where judges routinely dismiss complaints against  
     trusteeships on procedural grounds before the 18-month period  
     has expired. 
 
       It is not difficult for a complaining union member to  
     succeed in lifting a trusteeship once the 18 months is up and  
     the presumption of validity has been removed. At that point,  
     judges and the Labor Department offer recourse, but by that  
     time it is too often too late to revive any momentum for  
     democracy that has been lost. 
 
       It is true that sometimes trusteeships are imposed for  
     legitimate reasons: to root out corruption or to restore  
     orderly democratic procedure; and nothing in the proposed  
     LMRDA amendments will eliminate that power. Unfortunately,  
     there are other cases, too many, where trusteeships are  
     imposed, on one pretext or another, to suppress challenge  
     from below to the officialdom above. In such instances,  
     trustees utilize that 18-month period, during which their  
     power is virtually immune from challenge, to undermine their  
     rivals or critics. Elected local officers are usually  
     suspended or removed. Local meetings are often abandoned,  
     sometimes collective bargaining contracts are imposed upon  
     the membership without their consent, local bylaws are  
     revised arbitrarily. Meanwhile, by fear or favor, the power  
     of the trustee is employed to construct a local political  
     machine loyal to the top officialdom. This kind of maneuver  
     is quite possible, because the trustee controls the local's  
     finances, grievance procedures, and--sometimes--hiring hall  
     referrals. He normally has the power to hire and fire paid  
     staff. 
 
       After living under these conditions for 18 months, any  
     independent opposition is easily demoralized and tends to  
     disintegrate. At that point, the trustee can call for new  
     elections, supervised by a committee chosen by him or his  
     cronies, fairly confident that no effective challenge is  
     likely to survive. 
 
       The proposed amendment will not prevent any fair-minded  
     union leadership, where necessary, from trusteeing a local  
     under conditions specified under Title III. Wide latitude is  
     permitted by the statute which authorizes trusteeships, among  
     other specific conditions, for "otherwise carrying out the  
     legitimate objects of such labor organization.'' 
 
       What the proposed amendment would do is quite simple. 
       1. It would fill an urgent need by providing, for the first  
     time, the possibility of effective recourse against arbitrary  
     trusteeships. By removing the 18-month presumption of  
     validity, it would encourage the courts and the Labor  
     Department to seriously consider complaints from unionists,  
     look beyond what the union lists on reporting forms, and  
     consider whether the actual operations of any trusteeship are  
     lawful. 
 
       2. It provides for a specific additional assurance of fair  
     treatment in the immediate aftermath of an improper  
     trusteeship. If a union resists the lifting of the  
     trusteeship and a complaining unionist or the Labor  
     Department is forced to file suit in Federal court and the  
     court orders the dissolution of the trusteeship, it would be  
     anomalous to permit the trustee to dominate the process of  
     choosing the self-governing local leadership for the post- 
     trusteeship period. The amendment would require either the  
     reinstatement of the local officers previously elected by the  
     membership or a new election under supervision of the court,  
     assuring them of the right to a leadership of their own  
     choosing in a fair election. 
 
       In summary, the proposed amendments are modest and clear,  
     they impose no burdens upon the labor movement, and they  
     would substantially strengthen the rights of members in their  
     unions.