THE FRAMEWORK OF DEMOCRACY IN UNION GOVERNMENT
32 Cath. U.L. Rev. 13, *
Copyright (c) 1982 The Catholic University Law Review
Catholic University Law Review
FALL, 1982
32 Cath. U.L. Rev. 13
LENGTH: 65493 words
ARTICLE: THE FRAMEWORK OF DEMOCRACY IN UNION GOVERNMENT. *
* Copyright 1982 by Roger C. Hartley. I want to thank my friend and colleague,
Dean Florian Bartosic, for his insights regarding the need to develop a
framework for democracy in union government and for his many helpful suggestions
regarding the format of this article. I also appreciate the research assistance
of Ms. Laura Goodman, Mr. John Mooney and Ms. Mindi Weisenbloom, and the
editorial assistance of Ms. Aline Henderson.
Roger C. Hartley **
** Associate Professor, Columbus School of Law, Catholic University of America
B.S. 1965, Cornell University; J.D. 1970, University of Pittsburgh; LL.M. 1972,
George Washington University.
SUMMARY:
... It then suggests possible causes of the doctrinal fragmentation
observed in the law regulating union government, and shows how uncertainty
regarding the definition of union democracy, its possibility and desirability,
and the necessity of public intervention to attain it can contribute to
doctrinal fragmentation. ... Composed of elected delegates from each local union
who cast a number of votes in some proportion to the local's membership, the
convention is now the national union's ultimate governing body, having final
authority over union policy and government. ... Yet, except where inconsistent
with the normal operation of these market forces or a union's bargaining
effectiveness, an appropriate model of local union democracy might properly
include the following structural relationships between local unions and higher
governing units: 1) decentralized local negotiation of bargaining issues vitally
aggectying local concerns; 2) active bargaining participation by intermediate
governing units regarding other important issues, to allow these bodies to
function as important power centers in relation to the national union; 3) an
important local union role in contract administration and enforcement; 4) local
control over fincance , rather than hight union governing units colleting dues
and remitting a portion back to local unions; 5) local control over increases in
dues rates; 6) decentralized control over strike funds; 7) decentralized
contract ratification votes; and 8) limitations to guard against the coercive
use of trusteeship, compulsory merge ...
TEXT:
[*15] I. INTRODUCTION
Whether the authoritative decision-maker knows it or not, his every decision
makes community policy. When the values affected by decision are left
unarticulated or confused, the chances of irrational decision are in comparable
measure enhanced.
1
From time to time American labor law seems endangered by doctrinal
fragmentation. Decisions seldom coalesce into coherent patterns. Rather, as
Derek Bok observed over a decade ago, "an early articulation of simple
[*16] standards is typically followed by
constant embellishment of exceptions, qualifications, complex reformulations,
and ad hoc decisionmaking."
2
This pattern is likely to continue, Bok argued, as long as those evaluating
labor policy remain unwilling "to study the actual impact of the laws upon
workers, unions, and employers in ways that will identify rules that fail to
achieve their intended result or rest upon fallible suppositions of human
behavior."
3
Although Bok's conclusions did not relate primarily to that slice of national
labor policy regulating union government, his observations likewise apply to
this body of labor law. Whether one looks to the law of fair representation,
union security, union fines, fiduciary duty of union officers, internal union
elections, or most other related topics, incoherence has largely displaced an
understandable pattern.
4
Bok argued that this condition is caused by the "cumulative and circular
quality" of our labor laws: that they condition and are conditioned by our
unique industrial relations system.
5
One suspects, however, that this formulation
[*17]
is somewhat underinclusive.
6
The industrial relations system is but one social process. Yet, as McDougal
observed some years ago, all legal doctrine develops in a larger context
composed of many social and power processes that together "constitute . . .
a 'seamless web,' with each process both affecting and being affected by all the
other processes."
7
Legal decisions, therefore, are policy decisions resulting from the combined
efforts of individuals and groups, using a variety of strategies, to effect a
demanded accommodation of competing interests involving power, wealth, status,
and other important human values.
8
Accordingly, attaining doctrinal unity and coherence requires clarification of
the larger contextual framework of legal decisionmaking and the competing but
legitimate interests at stake.
This article ventures into, and attempts to clarify, the context that affects
and is affected by the law regulating union government. Drawing extensively from
disciplines other than law, it posits a unified role for this body of law by
focusing on unions' assigned societal functions and the realities of their
structure and government. Part II traces the context in which the law regulating
union government develops. It first describes the dual governments unions
administer, and the competing interests within each that law must accommodate.
It then suggests possible causes of the doctrinal fragmentation observed in the
law regulating union government, and shows how uncertainty regarding the
definition of union democracy, its possibility and desirability, and the
necessity of public intervention to attain it can contribute to doctrinal
fragmentation. Seeking to resolve these uncertainties, the article, in parts III
and Iv, analyzes unions' assigned societal functions and their governing
structures, because in part V union function and structure are shown to
condition significantly the preferred definition of union democracy, its
possibility and desirability, and the necessity of public regulation to attain
it. The article concludes by advancing a preferred model of union democracy --
one that is possible and would not
[*18]
frustrate unions' fulfilling assigned societal functions -- and by suggesting a
unified role for law and legal institutions attempting to preserve and promote
such democracy.
In short, this article describes the framework of democracy in union government
from a policy-oriented perspective. It offers the contesting parties,
decisionmakers, and other interested persons a tool for analysis rather than a
calculus for exact answers. The descriptive, predictive, and prescriptive
functions of legal analysis can then proceed in a more orderly manner.
II. BROAD CONTOURS OF THE FRAMEWORK
A. The Dual Union Governments
An important component of the context shaping union democracy and the role of
law is union government itself. American unions participate in two distinct but
inexorably related private governments.
9
First, they participate in a bilateral industrial government jointly
administered with the employer and formalized through the collective bargaining
agreement. Here a union asserts collective authority over, and on behalf of, all
employees in an appropriate bargaining unit by virtue of its status as the
exclusive bargaining representative.
10
Within this bilateral workplace government, law and legal institutions attempt
to promote democracy by adjusting conflict between individual employee rights
and union collective authority. Law addresses, for example, issues such as
individual employee rights in the collective bargaining process,
11
the right to fair representation,
12
and employee rights not to support the incumbent union versus the competing
claims of union security.
13
Unions also administer their own internal governments, asserting institutional
[*19] authority to govern themselves and their
members through internal rules, customs, and procedures. Conflicts here, arising
between individual member rights and union institutional authority, require
accommodation of the always present, often eruptive, and sometimes intractable
competing interests of the union leadership, membership majority, and membership
minority. Law attempts to promote internal union democracy by resolving
conflicts such as those related to the right to union membership,
14
the conduct of union elections,
15
financial management of unions,
16
union discipline,
17
parent and union-affiliate relations,
18
and the protection of rights and enforcement of duties in union constitutions
19
[*20] B. Causes of Doctrinal Fragmentation
The dual union governments, the disparate union democracy issues, the competing
legitimate interests, and the various legal doctrines adopted to promote union
democracy at the workplace and within unions represent intersecting lines
defining the board contextual contours that condition the law regulating union
government. Complexity alone no doubt contributes to doctrinal fragmentation,
but hardly seems sufficient to explain it. Deeper causes also operate.
First, at some critical points, national labor policy has a built-in disunity
contributing to incoherence. It has developed over many years with each strand
having its unique history and primary policy goals.
20
Many of these goals often compete and sometimes even conflict. For example,
national labor policy seeks to promote industrial peace, in part, by encouraging
"responsible" unions that help control and discipline the work force.
21
Yet,
[*21] the concurrent goal of promoting
union democracy checks a union's ability to discipline members: ["u]nion
officers must on the one hand control membership and on the other be elected by
it."
22
Likewise, member control over leaders' decisions may threaten the stability of
the labor-management relationship if, for example, high rates of union officer
turnover or membership rejection of collective bargaining decisions result.
23
One of the more evident examples of disunity is the policy commitment to permit
union majority control over the individual
24
while concurrently protecting individual rights enforceable against the majority
will.
25
Moreover, labor policy harps the value of independent unions, autonomous from
the state,
26
while concurrently imposing public regulation over many integral internal union
activities.
27
The tensions noted above do not exhaust the list, nor is their incorporation in
labor policy necessarily ill-advised.
28
Rather, tensions exist, and their clarilfication is an important step toward
coherence.
In addition to built-in policy disunity, the overlapping enforcement strategies
used to preserve and promote union democracy also contribute to incoherence.
Labor policy blends state, federal, judicial, and administrative adjudicatory
processes, but provides scant guidance regarding the
[*22]
desired relationship among them.
29
When, for example, the NLRB adjudicates workplace democracy disputes concerning
union security, it must accommodate union collective authority and individual
employee rights when filling the interstices of the LMRA.
30
These disputes can include individual dissenters refusing to tender periodic
dues because of an overriding religious conviction,
31
or refusing to tender a portion of the periodic dues, claiming a union has
expended funds collected pursuant to a collective bargaining agreement's union
security clause for purposes insufficiently related to collective bargaining.
32
Yet, both state and federal courts must also accommodate these same interests
when adjudicating constitutional or non-LMRA statutory claims of either
religious or political dissenters.
33
Union fine cases present an additional example of overlapping
[*23]
enforcement strategies. The NLRB determines whether a union fine violates the
LMRA by evaluating whether it frustrates an overriding labor policy, but may
assess neither the reasonableness of the fine nor the adequacy of the union's
disciplinary procedures. These related disciplinary issues remain with either
federal or state courts.
34
Similarly, union refusal to arbitrate a bargaining unit employee's grievance is
a quintessential workplace democracy conflict, often raising fair representation
issues adjudicated by either the NLRB or the courts.
35
The same controversy, however, can easily become an internal union democracy
issue raising rights under the LMRDA when, for example, the decision not to seek
arbitration is alleged to be discipline within the meaning of that statute.
36
Conversely, the paradigmatic internal union democracy conflict may well be the
contested union election. Here, law assigns the Department of Labor and the
courts primary responsibility to promote internal union democracy by adjusting
the competing interests.
37
Yet, the NLRB necessarily affects the internal union election contest when it
decides whether an employer commits an unfair labor practice by disciplining
workers distributing campaign literature at work in violation of a company rule
or when it determines whether a union commits an unfair labor practice by
disciplining a member for engaging in internal union political activity.
38
In short, national
[*24] labor policy assigns
enforcement authority to many disparate adjudicatory tribunals; much of their
work inevitably overlaps. Some of the observed doctrinal fragmentation may well
be explained, therefore, simply by the lack of synchronization among these
enforcement institutions.
One might fairly hypothesize that the complex web of rules, procedures,
enforcement strategies, adjudicatory institutions, and competing goals that
comprise national labor policy sufficiently explain the doctrinal fragmentation
that has plagued the law regulating union government. Because "[m]anipulation
of one strand of the web of national labor policy creates a myriad of seen and
unseen stresses upon other strands,"
39
perhaps the indigenous strains are simply so great that doctrinal unity cannot
be achieved.Proving this hypothesis is of course quite impossible, for it
entails proving a negative. One need only accept McDougal's thesis, however,
that the process of social causation is multilinear, to conclude that other
causes might additionally contribute to the observed disunity in the law
regulating union government. Here the lawyer can benefit from disciplines other
than law.
During industrial relations' "Golden Age" (1945-1960),
interdisciplinary research of unions' internal life and government flourished.
The behavioral sciences united with political philosophy, history, economics,
and industrial relations seeking answers to a variety of questions relating to
union democracy in general and to the existence of democracy or oligarchy in
unions in particular.
40
During this period, several pioneering scholars began to chart a role for law
and legal institutions to preserve and promote democracy in union government.
41
Lipset, more than any other, attempted to bring the learning of the social
sciences to bear on the question.
42
Quite abruptly, however, this wave of interest in union government greatly
diminished during the years following enactment of the LMRDA, resulting in an
erosion of "the rich linkage that once existed across the
[*25]
research, policymaking, and practitioner communities . . . ."
43
A resurgence, led by the sociologists' interest in unions as complex
organizations, has now begun to produce an abundant harvest of theoretical and
empirical insights into the characteristics and organizational behavior of
contemporary unions. Implicitly or explicitly, much of this work addresses
threshold contextual questions that relate significantly to the appropriate role
for law in preserving and promoting democracy in union government: how shall
union democracy be defined; to what extent is it desirable or even possible; and
what, if any, public regulation to achieve it is necessary?
44
Should these value-laden issues remain unclarified, the law regulating union
government can hardly develop coherence. Yet these issues have become the
parameters of a circular debate because the possibility and desirability of
democracy in union government, as well as the necessity of public regulation,
depend on how one defines democracy. Yet, responsible policymakers would surely
not seek to implement a model of democracy derived from abstract thought: its
attainment must be possible, given traditional forms of union structure and
government; its scope must be desirable, calculated to secure union compliance
with standards of conduct consistent with unions' societal role as
representative of employee group interests without frustrating unions'
fulfilling that role; and the public regulation considered necessary to achieve
it must be consonant with union independence within the larger democratic
society.
45
This apparent impasse can be resolved by identifying the societal role assigned
to unions, by examining their structure and government, and then by
demonstrating how union role and structure affect the possibility and
desirability of union democracy and the necessity of external regulation. This
allows the construction of a democratic model for union democracy that is
feasible, and will not frustrate unions' fulfilling assigned societal functions.
This model also provides a basis for defining a unified role for
[*26]
public regulation that is sensitive to, and balances, the competing legitimate
interests at stake.
III. UNIONS' ASSIGNED SOCIETAL FUNCTIONS
Many in and out of unions share an ambivalence regarding the nature of American
unions and their role in society.
46
To understand the roots of this ambivalence is to understand the backdrop
against which unions' present societal role is defined.
A. The Roots of Ambivalence
1. English and Colonial American Historical and Legal Precedent
It would be more than a slight exaggeration to say that for want of a flea and a
rat, contemporary attitudes toward unions' societal role would be different.
Yet, the bubonic plague that came to Europe in the stomach of a flea and the
bloodstream of a rat, the flea's host, had a marked impact on English social
attitudes toward combinations of workers. This influence later crossed the
Atlantic through the English legal traditions brought to America by the
colonists.
The plague that ravished Europe in the fourteenth century killed an estimated
twenty million persons.
47
Barbara Tuchman reports:
When death slowed production, goods became scarce and prices soared . . . . [T]he
shortage of labor brought the plague's greatest social disruption -- a concerted
demand for higher wages. Peasants as well as artisans, craftsmen, clerks, and
priests discovered the lever of their own scarcity . . . . In an age when social
conditions were regarded as fixed, such action was revolutionary.
48
Lanlords soon sought relief. In 1349, therefore, Edward III issued a
proclamation fixing wages and prices, compelling most persons to enter the labor
market, and prohibiting workers from leaving places of employment to secure
higher wages.
49
A subsequent act of Parliament, the Statute of Labourers,
50
was required to strengthen and enforce this unpopular proclamation.
51
The King and English Parliament thus "established a precedent of labor
ordinances that was to set the pattern for labor legislation
[*27]
over the ensuing centuries,"
52
and was to serve "as the basis for 'conspiracy laws' against labor in the
long struggle to prevent unionization."
53
Perhaps the most significant precedent was the use of labor law to maintain the
social structure of the time.
54
Specifically, public indignation over unions' adverse effect on employer success
largely influenced public opinion that political action against worker groups
was needed.
55
Most American colonies either placed in force English law relating to economic
controls or enacted equivalents. Yet, by the time of the American revolution,
enforcement of these codes and restrictions on skilled labor was disintegrating,
owing in large measure to the need for skilled labor.
56
Accordingly, notwithstanding that the law throughout many of the colonies made
strikes and concerted action by workers illegal activities, "[a]side from
one instance, masters and journeymen, except in the licensed trades, were
virtually unmolested if they sought to combine . . . ."
57
Beneath this apparent calm, sets of conflicting values were staged for a
confrontation that exploded in the early common law criminal conspiracy cases.
58
In its most rigid form, the criminal conspiracy doctrine held that
[*28]
unions were themselves criminal organizations. "A combination of workers to
raise their wages may be considered in a two-fold point of view: One is to
benefit themselves . . . the other is to injure those who do not join the
society. The rule of law condemns both."
59
Even as later moderated, the rule made criminal any combination of employees to
achieve either an unlawful object or to achieve a lawful object by means
considered unlawful.
60
2. Competing Values Raised in the Conspiracy Trials
Though not applied in this country since 1887, the common law criminal
conspiracy doctrine was, until then, the foundation of American labor law.
61
Born from the perceived threat early trade societies posed to the master, it
mirrored throughout its reign an ambivalence concerning the larger question of
unions' societal role. This ambivalence is documented in the political and
economic claims made by union proponents and in the rhetoric of the judicial
reaction.
During the criminal conspiracy trials, the case for privileging worker
combinations' assertion of group interests centered on four related claims.
First, was the societal interest in fractionalization of power -- that unions
are necessary to advance the collective interests of workers and to resist the
demands of individuals, other groups, and society as a whole.
62
The political
[*29] system, it was argued,
encourages and relies upon pluralism, and in view of the multitude of
organizations existing in other walks of life, it is tyrannical to deny workers
the right to combine, especially since they were merely "combining against
starvation."
63
Second, was the societal interest in industrial democracy. Worker participation
in the government of the workplace helps free the worker from the emasculating
and dehumanizing effects of work, and is as important to freedom as is political
democracy.
64
The third claim supporting the public interest in worker combinations focused on
the permanent want resulting from the impotence of workers' bargaining power as
individuals. It is a "mockery," proponents argued, to suggest that
"a solitary poor workman shall resist a wealthy and powerful combination of
masters . . . ." Only combination can assure "a contestation where one
side endeavours to get as much wages for lawful labour as it can; the other, to
get as much labour for as little money as it can."
65
Finally, worker combinations claimed a stabilizing role. Adequate representation
and compensation would attract skilled artisans to a community thereby
increasing the "stock of industry, population, and revenue";
conversely, repressive prosecutions deprive the law of "dignity and
efficacy . . . and tend to make the law feared, but not respected . . . ."
66
With some notable exceptions, the demands of workers for the privilege to act as
a group within the economic and social system was found inconsistent
[*30]
with both individual and societal interests.
67
In contrast to the values advanced by union proponents, the nineteenth century
courts perceived four competing sets of values implicated by employee collective
activity: First, the employer's property right to manage and control his
business; second, the individual employee's right to sell his labor as he
chooses and to associate or not associate as he chooses; third, the need to
control private groups (factions) that create a threat to political stability by
gaining control through the power to withhold labor; and fourth, the need to
preserve the economic well-being of the nation by protecting commerce from the
uncompetitive impediments of high wages and industrial instability in portions
of the country, and by protecting the community from union monopoly power over
wages and prices contrary to the natural forces of a free market.
68
Chamberlain suggests that the criminal conspiracy cases introduced two recurring
themes that permeate American labor law: the relationship of the union to the
individual -- particularly the use of collective power to deprive individuals of
certain liberties -- and the relationship of the union to society at large --
particularly the use of collective power to benefit a few at the expense of
society.
69
In large measure, ambivalence concerning the proper accommodation of the
competing interests embraced by these themes explains society's persistent
uncertainty regarding unions. As Chamberlain notes, even among those who might
have agreed with the public interest claims justifying worker collective action,
two questions remained:
What should the power of the group be as it affected the individual? What should
be the role of the group as it affected society at large? The courts,
understandably enough, felt that there must be some means of controlling the
actions of groups of individuals who could so vitally affect the welfare of the
community.
70
B. Subsequent Forces Conditioning the Right to Assert Group Interest.
The transition from the nineteenth century view that worker combinations are
criminal to eventual, though ambivalent, recognition that worker groups are
legitimate and privileged to assert group interests was slow but
[*31]
inexorable.
71
A complete catalog of the forces conditioning this transition would include the
social, political, economic, and intellectual history of the country. Yet, three
confluent streams, converging in the 1930's, significantly influenced the change
and have shaped attitudes toward unions and their presently assigned societal
role: the spontaneous and irrepressible development of informal worker control
of group conduct at the workplace; the emergence of "business
unionism"; and recognition of the need for unions as a countervailing force
in a highly organized industrial economy.
1. Informal Worker Control of Group Conduct
Even without unions, "[i]nformal organizations of workers develop
spontaneously and unconsciously to control and regulate group conduct."
72
The literature studying shop society reveals that every workplace develops
"a 'social structure': a network of reciprocal rights and obligations,
supported by sentiment and formal rule."
73
This social structure takes many forms, including employees at work binding
themselves to informal codes and standards of proper social conduct with fellow
employees. Usually contrary to management rules, and largely beyond management
control, these informal codes often restrain production, require employees to
assist one another in performing tasks, and set other norms of work-related
behavior.
74
It has been suggested that "the most powerful controls over the individual
lie in the hands of the group itself and are expressed through the informal
structure."
75
Group control over the individual at the workplace is, thus, pervasive and
"deeply rooted . . . in the folkways of working people . . . ."
76
To argue this should not be, approaches irrelevance: it amounts to saying
workers are unwise to have the traditions of social control they have. These
traditions, moreover, become the union's traditions when workers organize
formally. They help define unions' distinctive character and societal role.
[*32]
2. The Development of Business Unionism
Unions have also been conditioned by the history of their institutional
development. The union movement was but one of three lines of the labor movement
during the nineteenth century.Worker political movements and cooperative
movements also sought to advance the group interests of workers. Formerly
considered substitutes for one another, they united in "business
unionism," which became the residual legatee of their traditions.
77
a. Worker Political Movements
The labor movement prior to 1840 was characterized substantially, though not
exclusively, by political action through workingmen's parties. "For a brief
time they were highly important, and sometimes held an actual balance of power
between the major parties in local elections."
78
Using the newly obtained political power resulting from the removal of property
qualifications for voting, "workers tried to secure participation in
government by members of their own class," but with little success.
79
They did attack successfully, however, many instances of special privilege until
factionalism led to gradual disintegration and worker political movements merged
with the larger forces of Jacksonian democracy.
80
These early political movements left a legacy of conflicting attitudes toward
union political action: workers' inability to elect their own candidates caused
disillusionment but the workingmen's parties' success "in pushing forward
measures . . . in the line of progress toward real democracy"
81
provoked confidence in political action.
b. Cooperative Movements
The cooperative movements of the nineteenth century, led by social reformers,
also contributed to the heritage of modern unions. Seeking panaceas to avoid the
wage system itself, Thomas Skidmore sought a redistribution of property; George
Henry Evans sought distribution of public lands to the unpropertied; Robert Dale
Owen sought to eliminate reliance on the wage system by an elaborate educational
and training system and called for state guardianship of children and public
boarding schools; Albert Brisbane advanced Associationalism, an experiment in
[*33] communal living; and William Sylvis
advocated worker ownership of the means of production.
82
None of these attempts to supersede the wage system succeeded; nor did efforts
by Edward Bellamy and other socialists to increase worker control by subjecting
industrial ownership to the political process prevail.
83
These movements did, however, generate a rich heritage of idealism and reform.
c. The Ascendancy of the Union Movement
The above approaches were ultimately discarded in favor of what has become known
as "business unionism."
84
Collective bargaining by the union movement had coexisted with political action
and the cooperative movements during the first three-quarters of the nineteenth
century. Yet, by the end of the century "skilled craftsmen, finding they
could improve their own conditions by trade union action, separated themselves
from the unskilled whose bargaining power was weak and who consequently looked
to politics and social reform for amelioration."
85
Many national unions soon developed and by the end of the century 120 were in
existence.
86
The new union movement, "centering in the American Federation of Labor, was
based upon the conviction that it was preferable to eschew long-range reforms
and concentrate upon immediate gains.It thus committed itself to an acceptance
of the wage system . . . and sought only to improve the lot of its members
within that system."
87
With "business unionism" came the predominance of collective
bargaining as the preferred strategy. The labor agreement "led the way from
an industrial system which alternatively was either despotism or anarchy to a
constitutional form of government in industry.
88
The traditions of the previous political and cooperative movements nevertheless
continued to manifest themselves from the earliest days of the national unions.
While distrustful of government regulation, the national unions undertook
political action when their freedom of economic action was threatened. Thus, by
the beginning of this century the American Federation of Labor (AFL)
[*34]
and its state federations routinely introduced legislation protecting the legal
status of unions, and in 1906 the AFL began seeking to influence federal
elections. Political action had, thus, become an essential part of unionism.
89
Moreover, the new "business unionism" never fully abandoned its
reforming, cooperative tradition, sponsoring educational programs, social
services, and consumer cooperatives.
90
Thus, by the beginning of the twentieth century the unions had begun to mature.
"Workers were to achieve a voice by forming strong independent trade
unions, the economic strength of which would compel employers to listen."
91
Yet, unions' societal role as representatives of workers' collective voice could
not mature fully until the unions' social value was more fully understood. This
had not yet happened.
3. Recognition of the Need for Unions as a Countervailing Force
a. Emergence of Corporate Power
By the end of the nineteenth century, "[t]he corporation became the
accepted form of business organization . . . and a complacent government and
complacent courts, wedded to the economic doctrine of laissez faire, gave free
rein to policies that rapidly created a concentration of economic wealth and
power that the country had never before known."
92
During this period, the labor-management relationship became increasingly
impersonal and work became increasingly dehumanizing. Moore has drawn the
following portrait of the factory system:
[E]stablishment of factories, with direct and insistent supervision of the
laborer, made the relatively disadvantageous position of the employee apparent.
He worked on the premises of another, often at great distance from his home. He
started work at a specified hour and stopped work when the plant closed for the
day. The quality of his work was subject to constant scrutiny, as were his speed
and general efficiency. If he lagged in one or the other he was reprimanded by
his employer or one of his employer's representatives. The controls . . . [were]
formal and impersonal . . . . [W]ith the factory system [the] illusion of
liberty could no longer be maintained.
93
In short, rule-making and administration were considered the prerogative
[*35]
of management while "[i]nsistence by workers for a voice in management
decisions was a violation of property rights and the moral order."
94
Labor law reinforced this moral order and maintained the social structure
through new doctrines barring the assertion of both individual and collective
employee rights.
b. Emergence of New Legal Barriers
(1) The Employment at Will Doctrine
The English common law rule, and arguably the American rule, during the early
nineteenth century was that law presumed the employment period was for a year,
and absent agreement, custom, or trade usage, employees could not be discharged
summarily during this presumptive employment period.
95
The rule changed in this country by the end of the nineteenth century. Cooley
first noted in 1872 that employment for an indefinite period enjoys no
presumption of hiring for a year. Five years later Wood, in a treatise on
master-servant relations, stated that in the American common law, the
presumption had been reversed. "[A] general or indefinite hiring is
prima
facie a hiring at will, and if the servant seeks to make it out a yearly
hiring, the burden is upon him to establish it by proof."
96
It is quite doubtful that the precedent cited by Wood supports his assertion,
97
but American courts soon accepted the rule. "[By] the beginning of the 20th
century Wood's rule was the accepted majority rule."
98
While the doctrine has been significantly eroded in many jurisdictions, it is
today, the common law rule in most states.
99
The implications of the employment at will doctrine to individual rights at the
workplace are substantial. As an often-quoted Tennessee decision states, absent
agreement to the contrary, an employer may discharge an employee "for good
cause, for no cause, or even for cause morally wrong, without being thereby
guilty of a legal wrong."
100
Accordingly, employers
[*36] are free to
discharge a worker without notice or cause irrespective of years of satisfactory
performance, or the employee's forgoing alternative employment opportunities.
101
Many hypotheses have been advanced to explain the employment at will doctrine.
Most commentators agree it reflected laissez-faire economic values that each
party, employer and employee, possessed complete social freedom and was bound,
therefore, only to express manifestations of assent.
102
If the employee was free to leave employment without notice or cause, the
employer, similarly, was free to discharge the employee.
103
A somewhat less legalistic explanation suggests that a benign and supportive
judiciary, seeking to foster economic growth, protected employers confronted by
economic uncertainty and entrepreneurial risk.
104
However explained, the effect of the doctrine is plain. It created a legal
[*37] barrier to individual employee rights at
the workplace and deprived workers of even a limited measure of job security.
Ironically, while the court-created rule relied on the individual liberty to
quit employment, it high-lighted the impotency of individual employee bargaining
power and the need for collective action as a countervailing force to corporate
power. Abandoned, as individuals, by law, employees increasingly relied on
collective action to advance group interests. Here also, however, the courts
reinforced the "moral order" that decisionmaking was the prerogative
of management.
(2) Barriers Against Assertion of Group Interests
From the lapse of the criminal conspiracy doctrine until the Great Depression,
law erected an array of interrelated barriers thwarting worker assertion of
group interests. The civil conspiracy doctrine
105
produced ad hoc tort decisions reflecting judges' economic and social policy
predilections with respect to a broad range of union objectives and methods of
collective action deemed harmful to either the individual or society.
106
Departing from the English rule, the American courts also granted employer
requests to have employee concerted activity enjoined if either the means or the
object was found not "justified."
107
Developed in railroad receivership proceedings during the 1880's,
108
the labor injunction spread quickly to other industries.
109
The Sherman Antitrust Act
110
was applied by the Supreme Court in 1908 to regulate worker collective activity.
111
The court in 1921 found that a secondary boycott was an enjoinable restraint of
trade in
Duplex Printing Co. v. Deering,
112
even though Congress, seemingly, had exempted unions from the antitrust laws in
section 6 of the
[*38] Clayton Act
113
and forbidden such injunctions in section 20.
114
Four years later, the Supreme Court held that a strike intended to prevent the
movement of products in interstate commerce creates an actionable restraint of
trade.
115
Finally, the United States Constitution was used by the Supreme Court in
Adair
v. United States,
116
to rebuff legislative efforts to protect employee concerted activity. As a legal
barrier to worker collective rights, the decision is historically significant.
Its reasoning, however, is particularly instructive. Unwilling to recognize the
impotency of individual bargaining power, Mr. Justice Harlan, writing for the
court, reasoned that "the employer and employee have equality of right, and
any legislation that disturbs that equality is an arbitrary interference with
the liberty of contract which no government can legally justify in a free
land."
117
Nor was the court willing to view the employee group as anything but a
collection of individuals: "[i]t is the employee as a man and not as a
member of a labor organization who labors in the service of an interstate
carrier."
118
Similar state protective legislation was found violative of the fourteenth
amendment in
Coppage v. Kansas.
119
Here the Court reasoned that state police power did not extend to strengthening
labor organizations because "[t]hey are not public institutions, charged by
law with public or governmental duties, such as would render the maintenance of
their membership a matter of direct concern to the general welfare. If they
were, a different question would be presented."
120
Nor may the state exercise its police power to redress the inequality of
bargaining power between employers and employees, because "those
inequalities are but normal and inevitable result" of a political system
committed to the right of private property and the right of free contract.
121
Blumrosen, synthesizing the reasoning of these cases, has suggested they reflect
the "'constitutional blindness' of the Court toward the group interests of
employees."
122
By the beginning of the 1930's, therefore, an imposing structure of legislative
[*39] and judicial controls had been erected.
Gallons of ink have been spilled over whether these controls excessively
prevented the exercise of worker rights. Yet, two conclusions are inescapable.
First, these barriers existed and reflected the twin concerns of the criminal
conspiracy courts: the relation of the group to the individual and the relation
of the group to the larger society. Second, these barriers were largely
dismantled during the 1930's. The forces responsible for this dismantling
explain a great deal concerning the societal role assigned to unions today.
c. Societal Recognition of Unions
The 1930's saw a startling shift in the attitudes toward unions. The
Norris-LaGuardia Act,
123
enacted in 1932, remedied the major abuses of the labor injunction in federal
courts. Relying on this law, the Supreme Court undid the effect of
Duplex
Printing in United States v. Hutcheson.
124
The National Labor Relations Act
125
was passed in 1935. Moreover, the Supreme Court in
Thornhill v. Alabama
126
recognized picketing as a form of speech protected by the first amendment
applicable to the states through the fourteenth amendment. Finally, the Supreme
Court held that, subject to certain exceptions, unions are substantially
exempted from the antitrust laws when they engage in self-help activities.
127
While the reasons for this legal revolution are numerous, complex, and
interrelated, two stand out: recognition of the loss of workers' individual
liberty in large business organizations, and the economic dislocations resulting
from the Great Depression of the 1930's. As to the former, Chamberlain states:
People began to see more clearly the function and the purpose of a labor union
which did not deny liberty to the individual but acted as the servant of the
individual as his representative . . . .
. . . Here was a changing approach to the question of the relationship between
the individual and the group with increasing acceptance of the group as the
agent representative of the individual, not depriving him of liberty but
guaranteeing him liberty, making his liberty real.
128
Additionally, Chamberlain argues that the Great Depression of the 1930's
[*40]
and its concomitant economic dislocations demonstrated that only "through
the organized efforts of employees to secure a fairer distribution of income
[could] purchasing power . . . be sustained and the economy kept on an even
keel. . . . [T]he labor union had a role to play in society . . . protective in
a sense of the community welfare, of its economic prosperity."
129
In sum, this theory, now increasingly accepted, suggests that unions obtained
recognition as a necessary countervailing force to perform both democratic and
economic functions.
130
The historical record strongly supports this position and helps to clarify it
more fully.
The idea that unions serve an industrial democracy function began to develop
actively in this country by the late 1890's. The Industrial Commission of
1898-1902, created by Congress, envisioned collective bargaining as more than a
business device to secure increased economic benefits. The Commission stated:
"By organization of labor, and by no other means, it is possible to
introduce an element of democracy into the government of industry. By this means
only the workers can effectively take part in determining the conditions under
which they work."
131
During the next decade, another governmental commission, the Commission on
Industrial Relations of 1913-1915, echoed this view, stressing that "the
only hope for the solution of the tremendous problems created by industrial
relationship lies in the effective use of our democratic institutions and in the
rapid extension of the principles of democracy to industry."
132
The Commission relied heavily on the testimony of Louis B. Brandeis who had
urged that physical and material improvement of the individual is a necessary,
though not adequate, condition for a democracy.
133
For in addition,
[i]t is the development of manhood to which any industrial and social system
must be directed. . . . [T]here must be a division not only of the profits, but
a division of responsibilities; and the men must have the opportunity of
deciding, in part, what shall be their condition and how the business shall be
run.
134
[*41] The Commission summarized this idea of
industrial democracy: "The struggle of labor for organization is not merely
an attempt to secure an increased measure of the material comforts of life, but
is a part of the agelong struggle for liberty. . . . even if men were well fed
they would still struggle to be free."
135
During the 1920's, however, society continued to manifest a "fundamental
uncertainty over the place of labor in the business system," according to
Bernstein.
Employers did not know whether to clutch workers to their breasts as partners in
a great cooperative adventure in production or to keep them at arm's length as
potential, if not present, enemies. . . . This ambivalence manifested itself
most dramatically in the extraordinary shift in the labor policy of employers
that occurred during the decade.
136
Many business leaders, endorsing the "American Plan," launched a
direct and hostile attack on the union movement. Others, seeking an alternative
to independent, "outside" unions, opted for various forms of
"welfare capitalism": company unions, industrial relations
departments, and various types of nonunion employee representation plans.
137
Though premised on cooperation and mutuality of interest, while motivated to
avoid "outside" unions, and though essentially paternalistic, these
plans can be seen now as a rudimentary movement in the direction of industrial
democracy. More fundamentally, they reflected an enduring shift in social
attitude. The individual in a complex industrial society is helpless and the
group interest must, accordingly, be recognized. The extensive publicity
regarding these plans served to reinforce this view among workers, employers,
and society-at-large.
138
Labor unions had not yet become heir to this changing social attitude, but, in
Bernstein's words, "[e]mployers who might later seek to turn the clock back
would meet resistance not just from the labor movement but also from an
enlightened public opinion."
139
[*42] The "welfare capitalism"
movement died with the Great Depression. As previously established job standards
began to erode, the basic flaw of "welfare capitalism" became more
evident: It did not create a shop government giving workers the means to protect
their group interest at a time of serious social and economic dislocation.
The short-lived National Industrial Recovery Act
140
was the government's initial response. While its section 7(a) gave employees the
right to organize and bargain collectively, employers interpreted this as
permitting bargaining with either a labor union or an internal employee
representation unit. As a result, company unionism grew extensively.
141
The Roosevelt administration, endorsing this view, seemingly endorsed bargaining
with dominated company unions. Moreover, it accepted proportional, rather than
exclusive, representation, thereby threatening the bargaining power of
independent "outside" unions.
142
Although still ambivalent, the American political community was struggling for a
vision of the social order and the appropriate role for unions within it.
By the spring of 1934, it had become clear that additional legislation was
needed, since company unions and other nonunion forms of representation had
failed to provide workers an effective voice.
143
The Wagner Act was introduced ad a great debate over it occurred in the spring
of 1935 before the Senate Labor Committee. A review of proponents' arguments,
the statement of purpose in the Act itself, and subsequent judicial statements
concerning the purpose of the Act shows that four arguments prevailed in moving
social policy.
144
These four arguments were not novel. They were the twentieth century acceptance
of the nineteenth century arguments advanced by union proponents during the
criminal conspiracy trials.
145
Fractionalization of power -- Proponents argued that the Depression had
been caused, in part, by an unbalanced economy and that economic stability
required a more equitable income distribution. Private ordering through
collective bargaining was chosen as the preferred equalizing mechanism.
Proponents maintained that it produced a better national wage policy than did
centralized wage determination by government, it
[*43]
shortened the reach of government, and was needed as a balance in the economy
against the "integration of wealth and power".
146
Industrial Democracy -- Senator Wagner believed that workers' dignity
is secured only when they can express their group interest through freely chosen
representatives. In 1932 he echoed Brandeis's 1915 testimony before the
Commission on Industrial Relations by stating:
We can raise a race of men who are commercially as well as politically free. . .
. to me the organization of labor holds forth far greater possibilities than
shorter hours and better wages. Organization plants in the heart of every worker
a sense of power and individuality, a feeling of freedom and security, which are
the characteristics of the kind of men Divine Providence intended us to be.
147
Subsequently, urging the adoption of the Wagner Act, he stated, ["D]emocracy
in industry must be based on the same principles as democracy in government.
Majority rule, with all its imperfections is the best guarantee of workers'
rights, just as it is the surest guarantee of political liberty that mankind has
yet discovered."
148
Wagner and others, seeing the increase of company unions as a threat to genuine
industrial democracy, argued that only through majority rule, exclusive
representation, and government supervised elections could the promise of
industrial democracy be fulfilled.
149
Impotence of Individual Bargaining Power -- By the 1930's, the
impotence of individual bargaining power had begun to be recognized more fully.
150
Testimony before the Senate Labor Committee in 1935 noted that this impotence
was exacerbated by the rule in this country that a worker's "'contract'
might be changed without notice at the will of the employer."
151
Accordingly, in its Statement of Findings and Policies, the Wagner Act
[*44]
explicitly recognized the "inequality of bargaining power between employees
who do not possess full freedom of association or actual liberty of contract,
and employers who are organized in the corporate and other forms of ownership
association. . . "
152
As the Supreme Court subsequently made plain, the Wagner Act was intended
"to supersede the terms of separate agreements of employees with terms
which reflect the strength and bargaining power and serve the welfare of the
group."
153
Stabilizing Function of Unions -- Societal acceptance of collective
bargaining and labor unionism was, finally, seen as promoting both industrial
and political stability. The Wagner Act's Statement of Findings and Policies
stated that the denial of the right of employees to organize and the refusal by
employers to accept the practice and procedure of collective bargaining were
leading causes of strikes and other forms of industrial strife or unrest.
154
Accepting this view, the Supreme Court in
NLRB v. Jones and Laughlin Steel
Corp. took judicial notice that the refusal to negotiate "has been one
of the most prolific causes of strife" and, therefore, the right to
self-organization is an "essential condition of industrial peace."
155
Moreover, testimony before the Senate Labor Committee advanced the view that
unions promote political stability because "organized labor in this country
[is] our chief bulwark against Communism and other revolutionary
movements."
156
When workers can express and redress their grievances, they have no inducement
to overthrow the social order.
C. Contempory Societal Functions of Unions
The burden of the argument so far is that (1) American unions operate in a
society that has been ambivalent concerning their assigned social
[*45]
functions; (2) two sets of competing values reflect that ambivalence; (3)
informal group control over the individual is a value deeply rooted in the
social structure of the workplace, demanding legitimacy; (4) while business
unionism and collective bargaining emerged as the primary, formal means for
workers to assert their group interest against individuals, other groups, and
society, political action and reform within the existing order remain essential
attributes of labor unionism; and finally (5) societal acceptance during the
1930's that worker groups are legitimate and privileged to assert group
interests evolved from a gradual recognition that in a complex and highly
integrated industrial society unions are a necessary countervailing force
performing for workers and society both an economic and democratic function.
These variables define unions' presently assigned social role. This
understanding can be broadened and deepened by tracing subsequent developments
refining national labor policy and by canvassing contemporary attitudes of
unions' societal role.
1. Subsequent Developments Refining National Labor Policy
Encouraged by the legal right to self-organization and the government's support
and encouragement of collective bargaining, labor unionism prospered following
the Wagner Act. Labor union membership (exclusive of Canadian membership)
tripled between 1933 and 1941.
157
Company unions and nonunion employee representation plans faded in the face of
statutory prohibitions and a revitalized labor union movement.
158
By 1940, the sectors of the economy having the heaviest concentration of
blue-collar workers -- mining, construction, transportation, and manufacturing
-- became highly unionized as both the AFL and the Congress of Industrial
Organization (CIO) organized industrial workers.
159
"Business unionism" continued as the dominant model, but political
action and reform efforts by labor intensified "to brirng about those
conditions in our economic and social life that would enable the system of free
enterprise to operate successfully with the largest possible degree of social
justice.
160
Strong resistace also continued. The 1937 report of the La Follette
[*46]
Civil Liberties Committee documented an undeniable pattern of employer financed
"labor espionage," violence, and campaigns to organize community
opposition to unions.
161
The American Liberty League organized an extraordinary campaign to marshall
legal opinion that the Wagner Act was unconstitutional, and many employers
justified noncompliance by reliance on its asserted unconstitutionality.
162
After the Supreme Court's 1937 decision holding the Wagner Act constitutional,
163
employer groups continued a strategy of opposition. Discrimination against
employees for engaging in union activities was rampant;
164
the NLRB was denounced as "public enemy number one"; pressure was
mounted to restrict the Board's jurisdiction; and a litigation strategy seeking
to contain both unions and the scope of protections afforded by the Wagner Act
was initiated. Moreover, proposals to amend the Wagner Act were soon introduced.
165
In particular, arguments were mounted that legislation was required to regulate
certain aspects of union government. Phillip Taft reports:
It was charged that labor organizations were guilty of improper handling of
their finances, that their dues and initation fees were excessive. . . . that
many workers belonging to labor unions were held captive by union security
agreements [and that] unions through closed shop provisions in their contracts
with employers were excluding workers from particular labor markets. . . .
Complaints were made of serious Communist influences within some unions and
fears [sic] that others might use their financial resources for political
purposes.
166
Labor unrest following World War 11 galvanized political opposition to union
power.
167
Accordingly, in 1947, Congress overrode a presidential veto to enact the
Taft-Hartley Act.
Taft-Hartley is significant both for what it did and did not do. On the one
hand, it can be seen as a reaffirmation of the national commitment to
[*47]
the practice and procedure of collective bargaining. There was no turning back
from the view that the individual had a right to a voice at the workplace, and
the best hope to secure that voice remained with the organized group. Yet the
emphasis changed from protecting the group, to placing controls on it in the
interest of dissenting individuals, other groups, and society-at-large.
Accordingly, the federal government, for the first time through legislation,
assumed responsibility for protecting individuals and small groups of workers
from the larger group by regulating union government at the workplace and within
unions. The right to refrain from participating in concerted activities was
declared a statutory right and unions were prohibited from restraining or
coercing individuals choosing to exercise this new right.
168
The legislation supported the appropriateness of small bargaining units to
protect groups of workers who believe their interests conflict with the
interests of those in a larger bargaining unit.
169
Agreements requiring union membership as a condition of hiring (the closed shop)
were made unlawful. Agreements requiring union "membership" as a
condition of continued employment (the union shop) were permitted but subjected
to complex restriction. Among these were the right of states to prohibit such
agreements,
170
the requirement that none could be initated without majority vote of the
affected employees, and the right of employees to revoke such agreements by
majority vote.
171
Provisions permitting employees to rescind a union's bargaining authority
through an NLRB conducted election were added.
172
Excessive or discriminatory union initiation fees were prohibited under certain
circumstances.
173
Provisions for filing union financial and other reports with the Secretary of
Labor were added in an attempt to foster greater democratic procedures within
unions.
174
Union political contributions and expenditures were regulated.
175
Contracts between
[*48] labor organizations
were made enforceable in federal court.
176
Finally, a union desiring access to the NLRB's processes was required to have
its officers file non-Communist affidavits.
177
Other provisions seeking to regulate union government more extensively were
urged but rejected by Congress due to the fear of creating "complete and
unlimited control by the Federal Government of the internal affairs of labor
organizations."
178
Whether these restrictions were appropriate or effective is an independent and
important issue. Their enactment is, perhaps, most significant as an expression
of unions' assigned societal role. The society granting worker groups the legal
right to assert group interests through self-organization and collective
bargaining held worker groups to concomitant duty of restraint.Moreover,
protecting the assertion of group interests through legislation also entailed a
commitment to mediate, through legislation, certain social conflicts thereby
created. Few in 1947 saw Taft-Hartley as the first installment of the prediction
advanced thirty years earlier by the dissenters on the Commission of Industrial
Relations of 1916 that "if the State recognized any particular union by
requiring the employer to recognize it, the State must necessarily guarantee the
union to the extent that it must strip it of any abuses that it may
practice."
179
The federal law regulating union government had now been launched, but without
serious consideration of the complexities of the meditation task or the dangers
to union independence.
Organized labor soon began a mostly unsuccessful effort to repeal or amend
Taft-Hartley, but by 1954 concentrated on preventing enactment of bills greatly
expanding the Taft-Hartley controls.
180
In 1957, the Senate created a special committee, the McClellan committee, to
study improper practices among unions and employer groups. The McClellan
committee hearings, Wellington states, "revealed extensive corruption in a
small number of unions, but the hearings also resulted in a renewal of interest
in unions and their appropriate role in society."
181
Following these hearings, Congress enacted the Labor Management Reporting and
Disclosure Act (Landrum-Griffin Act) in 1959. While the McClellan
[*49]
committee testimony and initial legislative proposals focused on certain corrupt
practices of union officers, mostly involving financial abuse, the central
thrust of the statute, as enacted, is protection of democratic procedures in
union government. The arguments successfully advanced to the Congress urging
enactment of these protections demonstrate that, as in 1935, unions were
understood to serve the dual economic and democratic functions that had been
articulated over one-hundred and fifty years earlier during the criminal
conspiracy trials. As Senator McClellan stated to the Senate, strong unions
served a vital economic fundtion, for "the individual worker in an
industrial economy has little or no power, when he stands alone, to deal
effectively with his corporate employer."
182
Moreover, unions add self-government to industry because only through the group
and collective bargaining does the worker have an effective voice. The Report of
the Senate Committee on Labor and Public Welfare also recognized that national
labor policy had assigned unions a "vast responsibility" for the
economic welfare of the workers they represent. This function fractionalizes
power by countering other private and public power. Accordingly, the report
cautioned against excessive governmental interference that would "undermine
union self-government . . . weaken unions in their role as collective bargaining
agents [or] cross over into the area of trade union licensing and destroy union
independence."
183
Still, in 1959, the ambivalence continued concerning worker groups' assigned
role with regard to their relationship to individuals and to the larger society.
The McClellan committee investigation had raised the issue, and the
Landrum-Griffin Act sought to address it. Like Taft-Hartley, Landrum-Griffin was
a statement that unions' role includes a duty to exercise restraint as it acts
to advance group interests: specifically to abstain from depriving the
individual a voice within the group or permitting group control to reside with a
few.
This duty was seen to attach for two reasons. One view, expressed by the Senate
committee, reasoned that by urging the adoption and enjoying the benefits of an
affirmatively favourable national labor policy, worker groups had accepted, as
part of their role, the responsibility to "permit the individual to share
in the formulation of union policy."
184
Senator McClellan advanced this view but also urged a second. He understood that
national labor policy justifies protecting the assertion of group interests,
because the group serves not only an economic but also a
[*50]
democratic function. Without the group, the individual would have no effective
voice at the workplace, and would be subject to the tyranny of superiors.
Accordingly, he argued, unless the group's assigned societal role includes
permitting individuals to share in the formation of union policy, the
"other provisions of law may be of little benefit and meaningless."
185
For if a union member were to become as voiceless within the group as he is an
individual at the workplace, national labor policy will then have failed.
Substituting the tyranny of the group, or a few within it, for the tyranny of an
employer effects no net gain for the individual.
National labor policy had taken a giant step in a remarkably short time. The
Wagner Act recognized and protected the right of the group to assert its
interests because the economic and democratic function claims of union
proponents had gradually been accepted. Taft-Hartley and Landrum-Griffin had
reaffirmed the commitment. The unions' role was seen also, however, to include
an obligation to exercise restraint with regard to individual interests both at
the workplace and within the union. Perhaps most significantly, the federal
government had assumed a substantial statutory obligation to
"guarantee" unions to the extent of accommodating individual rights
and union authority. Finally, the risk that paternalistic regulation could
destroy union independence was now openly discussed.
Although still ambivalent, Congress had finally settled on a somewhat abstract
view of unions' assigned societal functions. Not suprisingly, this did not end
the debate. Canvassing the functions unions presently perform, and how others --
the general public, union members, union and business leaders, and the academic
community -- view union's societal role will sharpen the contours of the
continuing controversy and expose the accommodation tasks law has assumed.
2.Contemporary Attitudes
a. Economic Function
Today, it is widely accepted that collective bargaining is a union's primary
function.
186
Yet its scope is so vague as to obscure many issues confronting national labor
policy and the law regulating union government.
Certainly, collective bargaining includes attempting to advance the economic
welfare of bargaining unit members.The perception of the general
[*51]
public and most workers is that unions are necessary to improve wages and
benefits, and that workers' economic gains have been due primarily to labor
unions.
187
Kochan's 1978 study of data obtained from a nationally representative sample of
1500 workers found that over 85% agreed unions improve wages, and in response to
open-ended questions, "[t]he most common positive thing mentioned was that
unions improve the wages and benefits of their members."
188
Others question these conclusions. Many in the business community assert that
unions' contribution to economic advancement is illusory since real income
increases only as productivity increases. Indeed, many argue unions have
restrained the growth of real income by restricting productivity gains.
189
Lipset, for instance, reports "economists are tending to agree that unions
have little enduring or major effect on the distribution of industrial income,
or on the real wages of workers."
190
Some economists add that unions adversely affect the equality of income
distribution among workers.
191
Others, however, disagree.
192
The only consensus is that
under certain conditions unions have been
able to raise wages for their members and, again
under certain conditions,
this can be done without raising prices or adversely affecting other workers.
193
Bok and Dunlop, confronting this evidence, raise the obvious question: What, if
any, clear economic purpose does collective bargaining serve? They conclude:
"If unions have not greatly influenced the amount of compensation, they
certainly have altered the form in which it has been given" by increasingly
channeling the total wage bill into such fringe benefits as
[*52]
pensions, health, and welfare benefits.
194
As the demand for these and other benefits increases, collective bargaining will
become increasingly complex, taxing not only the technical skills of union
leaders but also their ability to share decisionmaking with the membership
group. Moreover, workers' disparate interests due to differences in age, skill,
gender, race, occupational group, and education may increasingly raise conflicts
regarding the allocation of the wage bill to specific groups and for specific
types of fringe benefits. Thus, the law regulating union government can be
expected to become increasingly involved.
The union collective bargaining function also includes efforts to enhance job
security. Barbash concludes that the "dominant theme of union collective
bargaining demands in recent years has been defense against job
insecurity," and that many union leaders believe job security is even more
important to workers than wage increases.
195
Job security issues are fundamentally issues of job allocation: obtaining
employment and maintaining it. Job allocation strategies are premised on the
concept that a present job is a property interest that ought to be protected.
Reder argues that respect for this interest "is rooted in what . . . may be
term[ed] the 'ethics of the queue' . . . . [N]ewcomers shall not usurp the
'places' of those already having them [and] scarce and desired things shall be
rationed 'first come, first served.'"
196
Anyone who has waited in a line knows the "ethics of the queue" are
not universally recognized.In labor relations the closed shop, for instance, is
certainly controversial. In addition, how are two waiting lines, or seniority
rosters, to be merged? These and many other job security conflicts will arise as
unions perform their collective bargaining function.
Employee economic security also includes protection against capriciousness,
error, or arbitrariness in the application of personnel policy. Accordingly,
collective bargaining entails negotiation of contract provisions defining rights
and duties, and participation in the administration of these provisions through
the grievance-arbitration procedures now in most contracts.
197
[*53] Thereby, unions, as one observer has
noted, "aid in extending the rule of law to industrial
establishments."
198
Here again, individual rights and group authority can collide, raising questions
such as the scope of an employee's right to participate, as an individual, in
the negotiation and administration of these industrial rules of law as well as
the nature of the group's duty to represent the individual.
Finally, the collective bargaining function has begun to include efforts to
modify the work environment to make work psychologically more healthy. As higher
educational levels have increased expectations, and as "a hierarchical,
nonparticipatory and stifling workplace environment" has increased
frustrations, collective bargaining agreements have begun to include job
satisfaction reforms: worker participation in modifying job design, internal
distribution of tasks, and production methods.
199
Yet, paradoxically, both business and union leaders tend to oppose such plans,
fearing they will be successful. Many agreement officials fear a loss of
authority and indispensability. Many union leaders suspect labor-management
participation initiatives are intended to weaken the union or will have that
effect as the traditional adversarial relationship with management is replaced
by cooperation.
200
Job enrichment and satisfaction issues, thus, raise a potential conflict between
individuals performing daily tasks at the workplace and union leaders
responsible to the group for the long-run vitality of the union.
The above modest catalog hardly exhausts the scope of contemporary unions'
economic function.
201
Instead, it shows the limited utility of the
[*54]
general agreement that unions are assigned such a function. For behind the
general agreement lay many conflicts that may demand accommodation through the
law regulating union government.
b. Democratic Function
(1)
Industrial Self-Government
Unions purport to strive for "industrial democracy."
202
One union leader's perception of this concept is to provide workers a means to
participate in "the creation of industrial constitutions."
203
A union publication has stated the concept connotes the means for employees to
realize aspirations for "intellectual equality" at the workplace.
204
Phillip Murray, in 1940, succinctly summarized this aspiration as bringing
"into play the heads as well as the hands of the workers."
205
It also has been summarized as "'the re-creation of the individual as a
person who is respected for what he does, who feels that he is being consulted
in the determination of policy, and who is kept constantly informed of what is
in fact policy.'"
206
However specifically described, the rationalizing principle is widely accepted:
Unions should be a means for workers to achieve through participation the
psychological benefits of increased status and dignity.
207
There is a dissenting view. Bok and Dunlop report that "[i]n contrast to
many labor spokesmen and social scientists, employers do not normally regard the
union as a valuable means for providing greater 'democracy in the workplace' or
for achieving the psychological benefits of a more active participation by
workers in decisions affecting their jobs and their welfare."
208
Nor has this dissenting view remained outside the labor movement. As Bok and
Dunlop also report, according "[t]o Dave Beck, former president of the
Teamsters, members . . . 'join our union for only one purpose; to sell their
labor for the highest price they can get. . . . [The union]
[*55]
is the machinery of our people to sell that labor.'"
209
Some members of the academic community share these views. Allen asserts: "[T]he
end of trade union activity is to protect and improve the general living
standards of its members and not to provide workers with an exercise in
self-government."
210
Hays has similarly suggested that "[w]hat the employee looks to his union
for is essentially job security, higher wages, [and] better working
conditions!" Moreover, he continues, viewing "the bargaining agreement
[as] a kind of legislative enactment which provides the laws under which the
employees work . . . exaggerate[s] the importance of the decisions which are
made in the course of collective bargaining, [for after the first agreement,] [a]ll
that is really left . . . are the details."
211
Finally, Magrath states that "the measure of success for . . . all unions
has been the extent to which they obtain tangible economic benefits for their
members." He posits that "most union members regard their union as a
service organization . . . which aids them in attaining economic benefits, [and]
[l]ike the passive corporation stockholder, the passive union member think [s] .
. . [that] so long as [the union] delivers the goods with reasonable competence
he remains uninterested in its affairs."
212
Somewhat surprisingly, these basic questions regarding the motives behind union
membership have not, until recently, been subjected to empirical analysis.
Moreover, much of the early work had been fragmentary.
213
Kochan's extensive 1978 empirical study offers several valuable insights. Using
data contained in the 1977 Quality of Employment Survey, Kochan analyzed 800
responses to questins concerning union member expectations of their union and
evaluation of union performance.The data shows that union members expect their
union to give highest priority to increasing the responsiveness of the union's
internal administration: handling member grievances, increasing feedback to
members, and providing members with increased influence in the internal
government of the union.The second highest priority is increasing tangible
benefits -- wages, fringe benefits, job security, and working conditions. The
third priority concerns job quality -- providing more interesting jobs, and
increasing the amount of
[*56] worker say at
the workplace.
214
These results reveal the danger in overestimating the relative importance of
industrial democracy to workers, for the traditional issues of wages, benefits,
and job security have a greater priority. Yet, workers do not view themselves
merely as corporate shareholders, as has been suggested. Nor do they view the
union, as has also been suggested, as a public utility that merely provides a
tangible commodity.
215
For the data make plain that workers' highest priority is the quality of the
union's grievance representation and internal governance. Moreover, Kochan
found, "between 60 and 75 percent of all respondents want their unions to
exert some or a lot of effort in improving the quality of the work aspects of
their job."
216
A regression analysis of the data showed age was the only statistically
significant demographic characteristic explaining responses to the quality of
work questins: "Younger workers were significantly more interested in
having their unions pursue the quality of work issues than their older
counterparts."
217
Precise conclusions must await cross-sectional studies, such as industry and
occupational surveys, and longitudinal studies, testing results over time.
Present evidence, however, supports the conclusion that workers expect their
union to perform both an economic function and a democratic function of
providing them a meaninful voice both within their unions and at the workplace.
Moreover, if the greater priority now given to quality of work by younger
workers continues as they become older, the importance of the democratic
function at the workplace may well increase both absolutely and relatively.
(2) Fractionalization of Power Within the Society
Beyond the workplace, unions' democratic function is to fractionalize power
within the society. This dimension of a union's societal role has two
components. Unions participate in setting wage policy, and thereby, help avoid
the necessity of centralized governmental regulation. Additionally, acting as a
power center, unions assert group interests against other groups and the
government.
(a) Decentralization of Economic Decisions
Unions' contribution, through collective bargaining, to decentralized, private
ordering of economic decisions continues to be valued. The
[*57]
Supreme Court's 1970 decision in
H.K. Porter Co. v. NLRB 218
is instructive. The NLRB asserted that its statutory power included ordering an
employer to adopt a substantive contract term as a remedy for its refusal to
bargain in good faith. No section of the LMRA speaks specifically to the
question, yet the Court had little difficulty rejecting the Board's position.
Relying on the legislative history of both the Wagner and Taft-Hartley Acts the
Court stated:
The object of [the LMRA] was not to allow governmental regulation of the terms
and conditions of employment, but rather to ensure that employers and their
employees could work together to establish mutually satisfactory conditions . .
. [I]t was never intended that the Government would . . . step in, become a
party to the negotiations and impose its own views of a desirable settlement.
219
The political theory underlying this commitment to private decisionmaking
through collective bargaining has been well-documented elsewhere.
220
Summers explains that "[a]llocation of power and control to the union . . .
creates centres of power and instruments of control apart from the State, which
then does not become unmanageable or dangerously large. Collective bargaining
shortens the reach of central legal control by establishing a separate structure
of industrial government as an alternative to suffocating statism."
221
Relying on what might be termed political pragmatism, Bok and Dunlop also see a
value in unions' maintaining a viable separation between the government and
units of economic power. They reason that
[e]ven if unions do not have a strong, direct impact upon the real income of
their members, their presence helps to gain general acceptance for the rates of
pay and . . . help[s] to persuade the worker that the conditions under which he
labors are tolerably fair. [Otherwise,] workers might easily demand government
regulation as the only practical alternative to protect their interests.
222
[*58] Others have viewed this decentralization
of economic decisions as an "axiom" around which our political system
is based
223
and an "essential of democracy."
224
It undeniably is widely regarded today as an essential union function.
(b) Fractionalization of Political Power
Contemporary unions are also generally understood to serve what may broadly be
termed a political representation function by seeking to stabilize workers'
political power. Unions operate as a counter-lobby to that of business and as a
countervailing force to protect workers from the "tremendous state power
inherent in a collectivist society."
225
The strategies are varied, including participation in community and local
governmental affairs. Leiserson reports that unions get "nominees seated in
the governments' inner councils and administrative agencies. When
representatives of labor are needed to serve on public boards or on government
advisory agencies, organized labor designates them.Organized labor thus
regulates group conduct of working people outside the ranks of union
organizations as well as those within."
226
Unions also directly and indirectly influence the election of state and local
political candidates and lobby to influence legislation.
227
A profound change has taken place during the last forty years in unions'
interest in national politics.
228
Today, unions routinely endorse candidates and contribute large amounts of time
and money to influence national elections.
229
They operate as a pressure group within a political party seeking to influence
the party's policies, and through extensive lobbying, unions act as a pressure
group for a broad range of legislation.
230
An important reason for this political activity is increased awareness among
union leaders that collective bargaining cannot end at the plant gate; its arena
must extend into both domestic and international public policy, for
[*59]
union and management leaders alone cannot solve the economic problems affecting
workers.
231
Steady employment, for example, is a function of the state of the economy, and
economy-wide legislation can affect vitally the ability to maintain high levels
of employment. In addition, only through public policies encouraging high levels
of production and employment can the economy absorb workers displaced by
automation. Tax policy, interest rate levels, and international trade policy are
but a few additional examples of national concerns vitally affecting workers'
economic lives. Barbash has explained the new awareness in economic terms.
"[C]ollective bargaining efforts can have only a micro effect. The vexing
problems of insecurity can be dealt with only through 'macro' techniques."
232
Mr. Justice Rutledge's classic conclusion seems increasingly to be appreciated.
To say unions have no legitimate role in politics, he stated, is to "ignore
the obvious facts of political and economic life and of their increasing
interrelationship in a modern society."
233
Unions' political representation function is more complex and controversial when
the focus shifts to the question of whose interests unions should represent. The
poles on the spectrum of possibilities are easily identified. Clearly a union
asserts the interests of those it represents as the exclusive statutory
bargaining agent. These interests often conflict in a variety of ways, as noted
above, but the unions' function is clearly to accommodate and represent them.
Conversely, since at least the beginning of this century, the mainstream of
union leaders, and most members of the society, have understood that the unions'
function should not be to represent those desiring escape from the wage system
through creation of a new social and economic order. Between these poles,
however, lay questions of whether, and to what extent, unions' societal role
includes representing the interests of workers and others by seeking reform
within the existing order.
Unions are viewed by some as "[i]deologically conservative and narrowly
self-interested, . . . oriented toward the economic advancement of those in
their particular union or trade rather than toward changes in the
[*60]
social system for the benefit of the wider society . . . ."
234
This posture has been justified pragmatically: "[U]nions are conditioned .
. . by the amoral practices attendant upon survival in the great American
jungle" and members expect the union to maximize their interests and not
sacrifice them "to social purpose."
235
This posture is also justified on economic theory. Unlike businesses, "[t]rade
unions have found no latter-day Adam Smith to show that when they do the best
for themselves, they are doing the best they can for society . . . . [Yet,]
unions exist to serve their own interests, not someone else's."
236
Finally, political theory has been raised to argue that "the union does not
legitimately claim to speak for the totality of the interests of society."
237
Accordingly, society may accept that unions speak for a limited group interest
and regulate the assertion of that interest lest individuals, other groups, or
society be unduly harmed.
Others view the unions' constituency, and therefore its function, more broadly.
Some, despairing, call for a revitalization of a "union movement" to
replace the present attitude of autonomous national and international unions
that seek to advance the separate interests of their own members.
238
Others confidently assert that unions, concerned with such things as eliminating
slum conditions, providing medical care for the poor and the aged, improving
education, and securing civil liberties and civil rights, are an important part
of a social reform movement.
239
Indeed, it has been estimated that "three-quarters of the issues that have
occupied labor's legislative energies have had no special benefit for unions or
union members; they are simply general social-welfare issues."
240
This is applauded on the theory that unless unions "perform the expanded
stewardship service of improving the life the worker leads after 5
o'clock,"
241
unions will be criticized justifiably for failing to address the concerns most
frustrating to workers, thereby leaving these concerns unvoiced and unknown.
Public opinion surveys dating from 1950 consistently have demonstrated strong
support among union members and the public at large for unions' efforts to
obtain general social welfare legislation.
242
A 1977 survey found
[*61] 76% of almost 1500
adults surveyed believed most unions had served a positive social role by
working for such things as "national health insurance, higher unemployment
compensation, better Social Security, minimum wage laws and other desirable
social needs"; only 10% disagreed and 14% were unsure.
243
Unions, thus, perceive themselves and are perceived by many others to be a
significant force for social reform. What seems controversial is whether this is
an assigned social function or a gratuitous contribution. As law elects to
regulate union expenditures for political activities,
244
this uncertainty can create conflict and contribute to doctrinal fragmentation.
D. Summary of Unions' Assigned Role
In sum, the contemporary societal attitude is that unions are assigned both
economic and democratic functions. Generalizations are hazardous, however. For
instance, the generalization that unions serve a collective bargaining function
is overly simplistic and vague because it masks many conflicts demanding
accommodation. Generalizations such as unions' role is to effect a
redistribution of income, may be overinclusive since unions can do this only
under certain circumstances. Conversely, the conclusion that unions are fighting
institutions engaged in industrial conflict is under inclusive. They are also
social institutions providing workers status at the shop and in the wider
community. Finally, a generalization may be true on an absolute scale but fail
to reflect the relative importance of the function. Such seems to be the
generalization that unions perform a democratic function at the workplace. It is
an assigned function that is highly valued by workers, yet it remains relatively
less important to members than the union's functions of securing better wages,
job security, and working conditions. Yet neither of these functions is as
important to union members as providing them feedback and a voice in the
internal governance of their unions.
Perhaps, only two generalizations may safely be advanced. First, American
society has accepted business unionism, with its history of group control,
political action, and social reform, and has assigned unions, in general terms,
the role of advancing the democratic and economic values asserted during the
criminal conspiracy trials. Yet, still ambivalent, society seeks to accommodate
the conflicting values expressed by the judges during those trials, one strategy
being the law regulating union government. Second, unions are assigned many
different functions but their relative importance
[*62]
will vary depending on one's emphasis of the values each function advances.
245
Accordingly, as long as these values are left unarticulated or confused, unions'
assigned societal role will continue to be variously understood, thereby
frustrating law's attempt to develop a coherent role in preserving and promoting
union democracy.
IV. UNION STRUCTURE AND GOVERNMENT
The conventional wisdom, unrelentingly pessimistic, holds that union structure
and government at best impede, and at worst preclude, the possibility of union
democracy. Other, more recent evidence, suggests minority control of unions may
be a tendency though not an inevitability. These contesting views raise
questions regarding what model of union democracy is possible, and what degree
of public regulation is necessary to attain it. Union structure and government
are, therefore, considered next to help clarify further the goals for law and
the legal institutions regulating union government.
A. The "Iron Law of Oligarchy" and National Union Structure and
Government
Much of our thinking concerning democracy in union government results from
organizational theory developed over 70 years ago by Michels, and others, and by
the more recent work of Lipset and his associates.
246
This work suggests that the structure and government of all mass organizations
such as unions, corporations, and governmental agencies predispose them to
control by a few hierarchically organized leaders. Such control is termed
oligarchy and its inevitability the "iron law of oligarchy."
247
Today, Michel's theory, as reformulated by Lipset, has become standard principle
supporting the widely held view that while, nominally, unions are controlled by
their members, "the real and often permanent power rests
[*63]
with men who hold the highest positions."
248
Several interrelated factors are seen to produce this result.
1. Psychological Imperatives
Incumbent union leadership is seen to share a unique and intense psychological
motivation to remain in office and resist the formation of political opposition.
First, most union leaders rise from the trades or industries of the workers they
lead.
249
Though major differences exist among national unions, many compensate principal
officers on a par with leaders in industry. Almost all provide them salaries,
allowances, and retirement benefits substantially greater than they earned from
their previous work.
250
Naturally, such financial security could motivate many leaders to resist
vigorously electoral challenges.
Beyond increased affluence, the increased influence, prestige, and power
associated with union office can also act as important psychological
imperatives.Persons achieving high union office share many of the traits and
skills of other national leaders: ambition, aggressiveness, desire for power,
and overall leadership ability. Indeed, the motivation to endure the hard work
required to attain high office is seen largely resulting from the
"opportunity that unions provide for otherwise suppressed leadership
talents among industrial workers . . ."
251
Thus, the status derived from leadership within the organization is highly
valued and not willingly relinquished. Moreover, these leaders are responsible
for the operation of powerful institutions, many oversee multimillion dollar
administrative budgets; they engage business and political leaders in economic
and intellectual combat; and they associate generally with the nation's most
powerful leaders. Many are themselves among the nation's most important
[*64]
decisionmakers, consulted for their advice and cultivated for their assistance.
Accordingly, they achieve status beyond their union.
Finally, because in pay and status national union officers often resemble other
national leaders more than the union members they lead, they tend to develop
values and aspirations that differ from those of the members.
252
A raging debate continues among sociologists regarding whether union leaders and
industrial managers share a basic similarity in attitudes, perceptions, and
beliefs.
253
That debate can be left to others, for there is little disagreement that as
national union leaders rise to higher union office, their values diverge from
the membership.
254
As these differences in pay, status, and values develop, return to previous work
may become a bleak prospect many union leaders are unwilling to face.
255
Yet, that is often the prospect following defeat. For, unlike a corporate
executive able to transfer skills to an executive position with another company,
union leaders who fail to be reelected seldom can transfer to a staff position
with another union. Union officials, moreover, do not have alternative, high
status professions to fall back on as do many governmental officials failing to
gain reelection. Chamberlain, thus, concludes: "There are few positions of
authority in our society which so expose the
ex-incumbent to
insecurity."
256
When leaders are ousted, moreover, most fail to return to their prior work,
thereby relinquishing both their union membership and their potential as leaders
of an opposition within the union.
257
The existence and strength of the psychological motivation to remain in office
varies, of course, as a function of the leader and the pay and status
differentials existing between the union office and the leader's previous
[*65]
employment.
258
Supplementing this motivation, however, are structural forms, inherent in most
unions, that facilitate retention of power.
2. Organizational Imperatives
National unions increasingly centralize power around expert leaders and a
professional bureaucracy.
259
This tendency has two primary causes.First, being fighting organizations, unions
struggle often with powerful employers and to prevail must develop efficient,
technically competent organizations.
260
Moreover, most represented employees in the United States are included in large,
structurally complex negotiation units.
261
This, and the growing number of complicated bargaining subjects requiring highly
rationalized solutions, compel centralized control.
262
Business has responded to these realities by developing bureaucratic managerial
structures. Many unions have adapted by instituting the rationalized systems of
administration of the employers with whom they deal.
263
These administrative systems increasingly develop into a complex infrastructure
of organizational units staffed by technicians responsible for organizing,
auditing, data processing, insurance, education, public relations, legislative
affairs, research, legal counsel, community service, and field representation.
264
Even as this organizational trend develops, unions are criticized for having
primitive management practices "lagging behind the standards achieved not
only in large businesses, but in many of the better-run foundations, hospitals,
and government departments."
265
Accordingly, they are pressed to become "more professionalized" and
develop more efficient
[*66] and highly
rationalized organizations.
266
Yet, the imperatives of such organization -- centralized control, expert
leaders, and a professional bureaucracy -- can, in combination, facilitate
control by a dominant minority.
a. Monopolization of Technical and Political Expertise
The imperatives of organization encourage the monopolization of technical
expertise by incumbents as the leaders make the important decisions due to their
superior knowledge and expertise.
267
As bargaining, for example, becomes increasingly centralized and complex, it is
considered a leadership function since the expert leadership is in a better
position to make wise decisions than is the membership.
268
This view becomes a self-fulfilling prophecy as ordinary members have little
opportunity to gain technical skills required to lead.
Centralized control by expert leaders and a professional bureaucracy can also
result in a monopoly of political skills. Wellington observes: "Those in
power sharpen their manipulative and rhetorical skills [and]the worker with a
latent political flair has little opportunity in the organization to develop his
talent except as part of the establishment."
269
When talented and ambitious leaders who could organize opposition do develop,
they are often brought into the leadership group and are thereby coopted.
270
Predictably, it has been argued, training programs have not been encouraged
within many labor organizations. In part, this has been explained by union
leaders' fears that education of subordinates will lead to their increased
political and technical competence and self-assurance, resulting in their
questioning union policies, as well as the incumbent leadership.
271
Thus, the perception that the incumbents are most fit to lead again
[*67]
becomes self-fulfilling.
b. Monopolization of the Effective Means of Power
Additionally, the imperatives of organization facilitate minority control
because the incumbents' strategic position within the bureaucratic structure
allows a few to control many of the effective means of power.
(1) Power to Discipline Members, Officers, and Subordinate Governing Units
Every union must provide disciplinary authority if it is to protect its internal
political and fiscal integrity and fulfill its collective bargaining
obligations. Typically the disciplinary authority within national unions is
shared by the union president and the general executive board exercising
legislative, executive, and judicial powers. They are empowered to interpret the
constitution, remove or suspend officers and appoint replacements, appoint
trustees to administer subordinate union governing units, initiate and
adjudicate disciplinary charges against members, and hear appeals of
disciplinary charges originating at the local level.
272
Appeals from these decisions usually can be taken to the union convention, but
seldom with any success.
273
This disciplinary power can be used to the incumbents' political advantage.
First, union constitutions often grant national officers extensive discretion to
discipline based on their opinion or judgment regarding the best interests of
the union. This discretion has been exercised to impose trusteeships, to curb
dissent, and to influence the outcome of national union elections.
274
Second, union constitutions almost always include at least one general or
"catchall" prohibition not explicitly defining the behavior outlawed,
such as "conduct unbecoming a member" or "bringing the union into
disrepute." These provisions also can be used to quiet critics.
275
[*68] Third, most unions lack an independent
judiciary for, as noted, the legislative, executive, and judicial functions are
merged in the national officers.
276
This structure can be a fundamental weakness when the substance of a
disciplinary charge involves a policy of the national union, as often is the
case when discipline arises in an intra-union political context, or when
national officers are asked to review discipline of a political opponent.
277
Given these potentials for abuse, what is, perhaps, most notable about union
disciplinary machinery may be that abuse has not been widespread.
278
Yet, as Seidman has concluded, the above defects make union disciplinary
procedures faulty "precisely at the point where the political process
within the union is involved."
279
(2) Control of the Political Process
Union constitutional theory responds to the power and authority of the national
union president through three structural and governmental forms: the general
executive board, the national convention, and the periodic election of officers.
The executive board is conceived as a check on the president, and the convention
and periodic election of officers as a check on both.
(a) The General Executive Board
Executive boards take many forms. Typically, they are composed of the national
union's principal executive officers, such as the president and
secretary-treasurer, and board members usually holding no other elected national
union office, who are typically designated vice presidents or district
representatives.
280
Though their powers vary, executive boards usually
[*69]
share, with the national officers, control over finances, issuance of charters
to local unions, assignment of jurisdiction among local unions, calling strikes
and authorizing strike benefits, negotiating collective bargaining agreements,
determining the union's legislative and political program, and, as noted above,
serving as a trial board or appellate tribunal in disciplinary matters.
281
In theory, the board acts as a check on the powers of the national officers but,
in practice, it seldom has sufficient independence to serve that function.
282
First, in many unions the constitutional relationship between the union
president and the board virtually guarantees the president's dominance. In most
unions the president has authority to assign board members duties and work
territories, exercise general supervision over their activities, and discipline
them for failure to perform duties or comply with instructions.
283
Moreover, as Seidman and Melcher have reported, in more than 25% of the unions
studied (reporting a combined membership of almost five million) the national
president "has the authority to assign board members to jobs that carry
additional pay, sometimes very high indeed."
284
Gamm's more recent study found that in one-third of the unions studied
(reporting a combined membership of over seven million) full-time employment for
board members is subject to the president's discretion, though sometimes consent
of the other board members is required.
285
Board independence is additionally truncated when, as in most American unions,
board members are elected at large.
286
Gamm states:
The election base is of utmost importance in establishing the presence or
absence of genuine political life inside the national union . . . . If board
members are elected at large, either by referendum or by convention delegates,
it is nearly certain there will be little opposition to national officers from
within the union.
287
[*70] When the board is elected regionally,
either by a caucus of district delegates at the national convention, by district
elections, or by district conventions, each board member can develop a power
base within the district independent of control by the national president. A
regionally elected board member can, thus, oppose the president's policies or
mount an election challenge confident that, should the challenge fail, the board
seat will not be lost as long as the power base within the district is secure.
288
Conversely, at-large election systems weaken the board member's regional ties,
giving greater power to that individual or group able to control the at-large
vote. Each board member, then, is dependent on the others for reelection,
because local union leaders look to the executive board member they know for
information about other executive board candidates. All at-large elected board
members are, in turn, dependent on the president, who enjoys national support
and can help secure election of a mutually supportive slate.
289
Accordingly, the governing group values unanimity on major policy issues and can
answer dissent or an unsuccessful electoral challenge by a board member by
withdrawing support.
A substantial minority of unions safeguards the board's independence by
providing a regional election base.
290
In those unions political life is more vibrant. This is not simply a theoretical
prediction, for Edelstein and Warner have verified statistically that "the
availability of . . . highly placed full-time officials with independent power
is one of the most important structural characteristics which facilitates
successful opposition [to top-level union officers]."
291
(b) The Union Convention
Since the rise of the national union as the dominant union governing structure,
direct government by a large and widely dispersed membership
[*71]
has been impossible. Therefore, in practically all unions the convention has
emerged as an alternative mechanism for member control.
292
Composed of elected delegates from each local union who cast a number of votes
in some proportion to the local's membership, the convention is now the national
union's ultimate governing body, having final authority over union policy and
government.
293
The assembled delegates are a constitutional assembly,
294
a legislature, a court of appeals, a nominating convention, and, in most unions,
the electors of the union's chief executive officers.
295
Ideally, the convention acts as a counterweight to incumbent national officers
and the executive board by holding them to account for their stewardship; by
facilitating informal communication among local leaders and, thereby, enabling
them to form coalitions that can influence union policy and elections; and by
serving as a training ground for union leaders.
296
It is, in theory, "one of the most direct forms of expression available to
the rank and file."
297
Yet, conventions vary widely in fulfilling these theoretical functions.
Leiserson concludes:
Some are models of self-government, others mirror the powers of a dominating
executive. There are conventions in which the delegate body is not much more
than an audience registering approval of programs presented by the officers
while it is being entertained. Others are truly deliberative bodies with wide
participation by delegates in formulating, discussing, and adopting laws and
policies.
298
Several structural forms explain these dissimilarities.
i. Frequency and Size of Conventions
When conventions are more frequent, the union can be expected to have a more
active political life: The incumbent administration has less opportunity
[*72]
to solidify its position. Less business accumulates since the last convention,
leaving less undone at the next convention and, accordingly, left to the
discretion of national officers. Potential dissenters have more meaningful
opportunities for horizontal communication, to form voting coalitions, and to
express opposition. In unions electing officers at the converntion, elections
are held more frequently, creating more opportunities for electoral challenge
and officer turnover.
299
In American unions, the mean interval between conventions is three years and the
trend has been toward less frequent conventions.
300
This is partly understandable since large conventions are very expensive,
preparation for them requires considerable work by both officers and staff, and
they are unsettling since the incumbent administration must divert attention
from the union's work to the mending of political fences.
301
Increased delay between conventions has also been interpreted, however, as
evidence of centralization and loss of membership control.
302
The empirical work of Edelstein and Warner substantiates that more frequent
conventions are associated with more election opposition and defeat of top and
next to top national officers.
303
In short, good and sufficient reasons could explain the diminished frequency of
national union conventions. Yet the benefits of such delays are at least partly
offset by the convention becoming less of a check on the incumbent
administration.
The size of the convention, moreover, can thwart the convention's performing its
intended functions. Some are as small as fifty delegates while many others
attract between 1,000 and 2,000. Some have been as large as 3,000 and 4,000. The
mean in a representative sample of fifty-one national unions was nearly 900
delegates.
304
With such large assemblies, coordination and communication are difficult. It is
impractical, or impossible, to yield time to all who would wish to speak.
Important matters must often be decided without the benefit of a roll call vote.
These deficiencies have long been recognized, yet the tendency has been to
increase the number of
[*73] delegates. Some
unions have, therefore, attempted to ameliorate the problems associated with
large size conducting educational institutes on convention procedures and
installing telephone and microphone systems that facilitate debate.
305
Perhaps the most common response, however, has been the increased use of the
committee system. It, perhaps, more than any other development has frustrated
the union convention's checking function.
ii. The Committee System
Transferring the deliberative work of the convention to committees clearly
expedites conducting the convention's business. Nevertheless, the transfer
displaces decisionmaking from the elected delegates to the incumbent officers,
especially to the national union president.
306
Convention delegates rarely elect committee members. Customarily, the president
alone appoints the members of all committees, though sometimes this power is
shared with the union's executive board.The president normally designates the
person to chair each committee. Sometimes these appointments are subject to
approval by the delegate body but most of the important committees begin their
work weeks or months before the convention. Accordingly, this ratification is
only a formality in most cases.
307
The informal political process does restrain the committee appointment power,
for district leaders are consulted and effort is made to appoint committees that
are representative of the union's various interest groups.
308
Control is maintained, however, as Leiserson has described:
When opposition groups are well organized and act in the open, they are commonly
given representation, though they may be kept off key committees. But in unions
with a closely knit officialdom . . . the same persons head the main committees
in successive conventions to make sure that nothing untoward happens. These are
generally officers or paid staff representatives, and care is taken to name
committee members who are 'safe'. On all important matters, the committees
report what has been previously approved by the officials, and the convention
rarely changes or rejects the recommendations.
309
[*74] The work of the convention is done
through many committees. One is the appeals committee. Craypo's analysis of the
national convention appeals system confirms Leiserson's above-noted conclusion.
Almost all national constitutions designate the convention as the final
appellate body for disciplinary and administrative decisions.
310
Craypo's study analyzing nearly 2000 appeals reported in the convention
proceedings of 100 national unions between 1945 and 1964, produced the following
conclusions:
-- In almost every union, the president or the executive board appoints the
members of the appeals committee.
311
-- The person chosen to chair the committee is most often a member of the
incumbent national administration or an officer of an intermediate union
governing unit, usually a district or regional officer. The remainder are mostly
local union officers or staff representatives.
312
-- Service on the appeals committee is a traditional step toward national office
"afford[ing] ambitious local leaders an excellent opportunity to
demonstrate qualities of loyalty and leadership."
313
-- "[M]ost present-day union-related disciplinary appeals are against
national union actions, frequently taken in opposition to local sympathizers, as
are many significant nondisciplinary steps including national supervision of
local unions, forced mergers of subordinate bodies, and jurisdictional awards
among competing locals."
314
-- Most reports of appeals committees contain only the appellant's name, local
union, nature of the offense, type of punishment, and the committee's
recommendation. They seldom contain the facts, evidence, and related materials,
and delegates rarely receive other, supplemental information. Indeed, 80% of the
appeals are upheld without discussion and only 10% are debated.
315
-- Through agenda control and chairing the convention, the incumbent officers
can control "when the report is made and under what conditions it is
discussed; they decide when debate is stopped and the vote taken; and
[*75]
they judge the vote."
316
-- In only 28 of nearly 2,000 cases did the convention delegates reverse a
committee decision recommending denial of an appeal.
317
-- In only fifteen of nearly 2,000 cases did the convention delegates rule
contrary to the position taken by the national officers.
318
.
Some conventions have guarded their independence by giving important committees
special status: electing the members, devoting sufficient time to review,
discuss, and debate their reports thoroughly, and even requiring membership
ratification of the convention's action.
319
Even where such structural reforms in the committee system have not been
adopted, political activity is not dormant. Committee meetings, if not floor
proceedings, sometimes become centers for debate and compromise.
320
The question, then, is not whether dissent survives, for it does, or even
whether incumbents have the advantage; for they usually do. Rather, the question
is whether the convention's checking function fails because the committee system
strengthens control of the convention by incumbents to the extent that dissent
too seldom prevails. The answer normally, though not inevitably, seems to be
yes.
(c) The Electoral Process
Union constitutions seldom limit the number of terms an officer may serve and,
with rare exceptions, national unions continually reelect the same officers,
most often in uncontested elections. Taft's early survey of union elections in
34 national unions between 1900 and 1948 found that of 202 elections for
president only 18.8% had been contested. Of 2,105 elections for other national
union offices, secretaries, treasurers, and vice presidents, only 23.7% had been
contested. Even when an electoral challenge
[*76]
was mounted, incumbents were seldom removed.
321
Sandver's review of the literature and more recent empirical analysis of
elections in national unions, accounting for 90% of all union members, concluded
that the vast majority of officer turnover is caused by death or retirement, not
electoral opposition. Incumbents normally are reelected as long as they are
willing to serve.
322
The undeniable overall lack of electoral opposition has resulted in pessimism in
many quarters. Taft argues, however, that emphasizing the failure of open
opposition obscures the real political process in unions: preelection
compromises before elections often avoid contests; weak candidates withdraw
prior to the elction; rivals wait until a vacancy develops; union leaders avoid
election contests fearing they will show division within the union; and the
opposition can force an incumbent into retirement. In Taft's view,
"diffused power in unions is at least as significant as the number of
candidates running for an election."
323
i. Organizational Structure and Election Outcome
Others take a middle course between cynicism and optimism. Perhaps the most
extensive empirical work yet conducted examiming the self-perpetuation of
national union leaders is Edelstein and Warner's study of thirty-one British and
fifty-one American unions.
324
Less confident of the diffused power in unions, they argue that "the
absence of regular use of [electoral] machinery . . . is a sign of control . . .
by the few, with perhaps a disproportionate weight given to a single individual
among them."
325
Yet, rather than focusing on the absence of electoral opposition in most unions,
they explored the presence of opposition in some, seeking to isolate
statistically the factors explaining it. They posited that "consistently
effective opposition results from competition between equally powerful potential
competitors and their supporters . . . "
326
To test this hypothesis they conducted correlation and multiple regression
analyses examining the relationship
[*77]
between certain structural forms within national unions' internal government and
the presence and effectiveness of opposition in union elections. They also
conducted case studies of several unions. Edelstein and Warner conclude that the
"unrelieved pessimism" of the past is unwarranted, for between 1949
and 1966 nearly 20% of the American unions studied had a defeat of a top or next
to top officer.
327
Effective electoral opposition in national unions is possible, but requires
favorable union governmental structures. Among the most important are:
328
(1) full-time executive boards elected regionally;
329
(2) a relatively large number of full-time elected national officers;
330
(3) smaller and more frequent conventions;
331
(4) referendum election of officers and relative ease of nomination, as opposed
to election by delegates at a national convention;
332
and (5) an appeals system that removes the effective power of decision from the
national officers, thereby securing basic civil liberties for members and
autonomy for local unions, especially with regard to finances and collective
bargaining authority.
333
Edelstein and Warner conclude that "in the long run the outcome of . . .
struggles [for control of national unions]
is largely predetermined by
the organisation of the union . . . ." In their view, "[o]rganisational
specifics . . . are the actual operative variables."
334
But opposition candidates face several functional obstacles in addition to union
organizational structure.
ii. Functional Disabilities and Election Outcome
Overt abuse by incumbents of a union's election machinery can disable formation
of opposition candidacy. If elections are never or infrequently held, if
eligibility for office is limited to a few, if the right to vote is denied to
many, if the formation of opposition groups is prohibited or their right to
communicate denied, if election day fraud prevails -- all these things will
poison the institution's political life and create insurmountable disadvantages
to opposition candidates. No doubt, such abuses have occurred. Yet,
[*78]
close studies of union election procedures and election day conduct generally
conclude that formal election procedures are normally adequate and the incidence
of abuse is negligible.
335
Recently, inquiry increasingly has begun to focus on many functional
disabilities confronting national insurgency campaigns. Even when adequate
election day procedures are followed faithfully, the incumbent's control over
information and institutional resources can create insurmountable barriers to
opposition.
(a) Control Over Information
The realities of national union election campaigning make access to certain
information critical. James has argued that any candidate must have constituent
information -- lists of local officers, local members, and work sites -- in
order to develop support, target mailings to selected groups of members, and
reach members directly at their places of employment. In addition, a candidate's
nomination for national union office generally requires securing the support of
a specified number of local unions. This requires access to the time, date, and
place of local union nominating meetings sufficiently in advance of the meeting
to develop local support and turn out enough members to carry the vote. Finally,
in unions holding at-large referendum elections, knowledge of polling place
locations is also critical, for a candidate will want to place an observer at
each poll to detect fraud or other abuse of election regulations.
336
Based on research of several recent national elections, James concludes
challengers find this information to be formally unavailable, difficult and
time-consuming to obtain, or available in unusable forms. Conversely, the
incumbent is often the creator of this information, usually is its custodian,
and can always obtain it.
337
(b) Control Over Institutional Resources
(i) Control Over the Channels of Communication
In the national union, the leadership enjoys important advantages over rivals by
controlling channels of communication. Seidman notes:
The publicity that an important national head receives in the daily press, the
union journal that functions as a press organ for him, the flow of
communications in his name to all the local unions,
[*79]
the spotlight that plays on him at the national convention, the expense account
that permits him to visit locals throughout the country -- all these are
political advantages of the first order, impossible of matching by a rival
candidate. Best of all, these activities, so vital to a re-election campaign,
are carried on throughout his term of office and at the union's expense.
338
This advantage is heightened as the union grows and layers of officials separate
the membership and the elected leadership within a large, bureaucratically
stratified organization. Members then have less access to one another and to
their leadership. The principal lines of communication disseminating information
and opinion concerning political and economic issues increasingly run from the
national union officers and staff to the intermediate and local union governing
units.
339
Control of these lines of communication defines real power. Bok and Dunlop
conclude, "there will normally be no one with necessary information,
resources or means of communication who has an interest in informing the
electorate or suggesting alternative policies for the union to follow."
340
Opposition, then, seldom develops. When it does, rivals often lack the resources
and organization to communicate effectively their views among the union
electorate and bring their name to the attention of the membership.
341
This disadvantage is exacerbated in unions having constitutional provisions
hampering opposition candidates' ability to raise the large sums of money needed
to publicize their campaigns.
342
(ii) Patronage and Other Rewards
Supplementing control over the channels of communication is the network of
rewards increasingly available to incumbents. The leadership of the national
union can often induce loyalty among local leaders by offering
[*80]
cooperation and financial assistance to those confronted by factional disputes
or disputes with employer groups.
343
Moreover, the chief executive officer of a national union typically has
effective authority to appoint, suspend, and discharge national union
representatives, organizers, deputies, staff assistants, and other employees,
and fix their salaries, prescribe their duties, and control promotions.
344
This is a great advantage to incumbents for several reasons. It can be used to
"reward supporters or to placate ambitious [persons] heading large locals
who might otherwise seek high elective office."
345
Ambitious local leaders aspiring to a national staff position are under pressure
to maintain amicable relations with national officers and staff not oppose their
policies or candidacies. In addition, the technical staff at the union
headquarters, as well as the field staff, work for the incumbents' reelection in
order to preserve their jobs. This work includes public relations, legal advice,
providing incumbents with important local election event information, and
through their contact with members, providing vertical communication to and from
national union headquarters.
346
(iii) Legal Counsel
Separating political from institutional involvement of union counsel can be
difficult. The institution must have counsel to advise the leadership, guide its
decisionmaking, and defend its legitimate policies. This resource, however,
often is available to aid incumbents and can be used to cripple a national
insurgent's campaign. Conversely, "[f]or the insurgent, counsel is always
an outside resource."
347
Yet, when an opposition candidate seeks outside assistance, for legal or
financial support, "it reinforces the image of the insurgent as
representative of extra-institutional interests and not part of a legitimate
opposition movement."
348
James summarizes the numerous disabilities national insurgents face as follows:
[The challenger] is opposed by the incumbent candidate
plus the
institution itself. The key to [the challenger's] disabilities is that
[*81]
the powers and resources of the institution are thrown into the balance against
him. . . . [A]n insurgent typically confronts not only the incumbent but also
the union as an organized entity. . . . In short, the national insurgent's
difficulties are structurally rooted in the fact that the institution is not
neutral, but is a powerful force against him.
349
3. National Union Structure and Government: Summary
The conventional view is that achieving any meaningful model of member control
of unions is a myth, and aspirations for it, therefore, are doomed to failure.
First, the incumbent leaders are strongly motivated psychologically to resist
political opposition. Second, the imperatives of organization -- centralized
control by expert leaders and a professional bureaucracy -- predetermine that
incumbents will retain power for a variety of reasons:
1) Leaders monopolize technical and political expertise depriving potential
opponents of the skills to lead;
2) Incumbents control the legislative, executive, and disciplinary machinery to
such a degree that dissent can be quieted;
3) The general executive board fails as a checking institution because it lacks
independence, at least when the union's executive officers have constitutional
control over the board members' duties and income or when the members are
elected at large rather than regionally;
4) Union conventions fail as a checking institution for many reasons, the most
significant being their infrequency, large size, and the resulting use of the
committee system; and
5) The electoral process malfunctions as a check because incumbents control
access to information and the institution's resources such as the channels of
communication, patronage and other rewards, and legal counsel.
Others eschew despair, believing informal processes sustain political life in
unions.They call attention to the general lack of abuse of both the disciplinary
and electoral processes in unions. Informal controls, prevailing custom and
practice, and unions' rich democratic tradition are offered as supplements that
compel compromise, diffuse power, and check abuse.These careful students of
unions offer primarily their years of close association with national unions and
their reputations as detached observers to support their conclusions. Their
encouragement can hardly be dismissed.
[*82]
Yet the glaring disparity between their optimism and the concentration of power
residing in self-perpetuating incumbents running unopposed until death or
retirement concerns many.
Most recently, inquiry has taken a middle course. Unwilling to join either the
literature of pessimism, or subjective optimism, some social scientists and
lawyers have begun to uncover the pressure points in union structure and
government that explain the presence of active political life in some unions.
The "iron law of oligarchy" has been pierced empirically with the aid
of modern statistical analysis, unearthing the structural factors most
significantly contributing to electoral opposition. Additionally, new and
renewed understanding is emerging regarding the realities of national union
elections, and the ways national insurgency campaigns are disabled by having to
confront not only the incumbent but also the powers and resources of the
institution. Based on studies of opposition campaigns, some successful and some
not, this work supplements statistical analysis and, again, dispels the iron law
of oligarchy phantom by showing how structure can make a difference.
The burden of the argument need not be that national union political life is
both alive and well. If, as the available evidence suggests, it is alive and
possible in some national unions, if top-down control by a dominant minority is
not inevitable, if there are structural pressure points that can be pressed to
promote a more active political process within national unions, then law and its
effecting institutions have meaningful targets and public regulation has a
chance of success. Decisionmakers are then justified proceeding to the difficult
questions of what, if any, regulation of national unions' internal affairs is
desirable and necessary. Otherwise, serious questions would be raised whether
the social cost of such regulation is worth the gain.
350
Before proceeding to questions of desirability and necessity, a brief evaluation
of local union structure and government is warranted both to determine if
democracy is possible in local union government, and to ascertain the
relationship between the political process of local and national unions.
B. The Political Process at the Local Union
1. Local Union Internal Political Processes
Typically, the national organization charters local and various intermediate
bodies such as joint boards or district councils. The subordinate unions
[*83]
are governed by elected officials, usually a president, vice-president,
secretary-treasurer, and an executive board. In craft unions, an elected
business agent normally handles grievances, enforces the union's rules and
collective bargaining agreements, and generally oversees the union's business
affairs. There may also be trustees, a finance and negotiating committee, and
other elected or appointed offices.
351
Generalizations concerning the nature of local union internal government are
hazardous because of the wide variations found. Yet, certain tendencies and
trends can be isolated.
Most local unions do not fit the organizational paradigm tilting mass
organizations toward control by a dominant minority. The psychological
imperatives that may motivate some national union officers to remain in office
and resist opposition
352
have generally not strongly influenced local union leaders' conduct in the past.
Traditionally, most have been part-time and paid only a token salary. Even in
larger unions employing full-time officers, and craft unions employing business
agents, the salaries were usually equivalent to the members' earnings.
353
Nor, in the past, have local union officers often enjoyed great influence,
prestige, or the power to dispense patronage or other rewards.
354
[*84] These tendencies are now changing,
however, as local unions become increasingly larger, wealthier, and more
bureaucratically structured.
355
As early as 1962, nearly half of all union assets were held by local unions.
356
Sandver more recently found that 100 local unions account for 8% of all union
members in the United States and the smallest of these is larger than 40% of all
national unions.
357
Today, volunteer leaders increasingly are being replaced by paid, full-time
local union officers, and all but the smallest local unions retain some
professional staff.
358
Gradually, local officers' salaries are outpacing the members' earnings. Indeed,
in larger local unions, some officers receive salaries comparable to, or even
higher than, the national union president.
359
Thus, psychological imperatives caused by power, status, and affluence
differentials between members and local union leaders are now emerging.
360
These imperatives are beginning to affect local union political life. Serveral
decades ago, turnover of elected officers was common.
361
More recent evidence suggest a new trend. Applebaum and Blaime, analyzing the
pay and turnover rates of the major offices in over 2,000 local unions during a
five year period, found a significant inverse relationship between amount
[*85]
of compensation and officer turnover. Moreover, they concluded that "[a]lthough
turnover in individual office may be considerable . . . most turnover is
replacement or exchange from within a clearly defined group."
362
Thus, even where members of the group are replaced through death or retirement,
the group survives and thereby maintains its control of the organization.
These findings only begin to describe the level of meaningful political life
within local unions.For although local incumbents or members of the leadership
group increasingly contested, often resulting in narrow victories.
363
Thus, local union political life is very much alive, albeit somewhat
paradoxically. As local unions grow larger, wealthier, and more bureaucratically
structured, and as they offer high salaries, power, and prestige to top
officials, the iron law of oligarchy begins to penetrate their political
processes. Yet these same changes encourage competition for what have become
increasingly attractive union offices.
364
Local union opposition candidates, moreover, confront far fewer obstacles than
do national union insurgents, and the advantages of incumbency vary considerably
depending on the work environment and the locus of power in the local union. In
industrial-type unions whose membership is concentrated in one plant, workplace
government tends to be intricate, with power diffused among many leaders having
face-to-face contact with bargaining unit employees. These are the shop
stewards, department chairpersons, the chief steward, members of the negotiating
committee, and locally elected officers. Incumbents enjoy little communication
advantage over opposition candidates, because members work in relatively close
proximity to one another, and the lines of communication spread throughout the
shop government. In such unions political life tends to be vibrant.
365
As these unions become large, and especially where union members
[*86]
work at numerous sites over a wide geographic area, such as in building
construction and the service industries, members have much greater difficulty
communicating with one another and with their leaders. Opposition candidates are
then less able to organize an effective opposition. Moreover, employment and
market factors often require structural adaptations, shifting power from
worksite leaders to full-time business agents granted broad powers to resolve
many of the union's most important issues. This structure mitigates against an
effective shop steward system of representation that diffuses power.
366
In short, the work environment conditions the local union's structure and,
thereby, the diffusion of power and the advantages of incumbency.
The locus of collective bargaining authority also affects the local union's
political life. Where members' elected local leaders negotiate and administer
the agreement and are required to submit it to the membership for ratification,
participation in union affairs greatly increases, local leaders are held more
directly accountable, and member sentiments are more strongly considered. Sayles
and Strauss report that member disapproval of local union incumbents' bargaining
performance is the greatest cause of local union election contest and defeat.
367
When, however, the locus of collective bargaining authority shifts to higher
units of union government, the members' opportunity to participate declines,
their sense of involvement decreases, opportunities for communication dwindle,
and a separation between officers and members results, causing political life to
atrophy.
368
Member apathy has been raised by critics "as sensational proof that
[unions] are not controlled by their membership."
369
While estimates and empirical findings vary, the consensus is that less than 10%
of the union
[*87] membership typically
attends local union meetings. Moreover, those normally attending are not a
cross-sectional representation of the membership.
370
A substantial body of research has evaluated the causes of low participation.
371
Member apathy is seen by some as a manifestation of the members' view of the
union as an "administrative agency" delivering a technical service. As
long as the service is delivered satisfactorily the member has no greater
interest in governing the union than would a customer have in governing the
local utility.
372
Member apathy is also seen as a circular problem. Unions must compete with other
loyalties of members and other demands on their time. When individual members
perceive their participation as relatively unimportant, they have little
incentive to participate. Concomitantly, union leaders have little incentive
"to encourage participation beyond particular purposes . . . since active
political participation in union affairs breeds 'factionalism' or at least
instructions and queries to officers otherwise left to their own devices":
Minority control and member apathy then feed one another "emptying
democratic forms of real content."
373
Finally, member apathy increasingly is understood as a manifestation of certain
individual characteristics: demographic, psychological, and attitudinal.
374
There are several cures for this apathy and the great concern it has generated.
First, many local unions successfully encourage greater meeting attendance by
providing incentives. Some "provide fines for members who fail to attend a
specified minimum number of meetings per year.
[*88]
When this is enforced, attendance increases, phenomenally."
375
Moreover, an informal representative process often protects against uncontrolled
exercise of authority by union officials. Both formal and informal shop leaders
often attend union meetings and act as lines of communication to and from the
union's elected leadership. Chamberlain concludes: "The town meeting which
is what the union ostensibly remains, has actually been converted into an
informal, representative 'town council.'"
376
Thus, there are two memberships that participate in local union government: the
small percentage that regularly attends to the union's business and reports to
the larger membership informally, and those who are so informed and comprise a
larger "crisis membership" and are ready to interject their voice and
vote to resolve particularly important issues.
377
In sum, evidence suggests that member control of the decisions made within local
union government is possible, but local unions are at a critical stage of
development. They are evolving bureaucratic structures centered around paid
expert leaders. They are exhibiting officer turnover patterns suggesting
concentration of power in a single leadership group. Yet, electoral opposition
remains high and insurgent disadvantages are not usually debilitating. Even
pessimists recognize "it would be misleading to allow generalizations about
internationals to obscure the often very different picture existing at the local
union level."
378
Pessimism reemerges, however, due to the migration of power to the national
union.
379
If local union government is essentially irrelevant, it then matters little that
members can influence its decisions.
2. Power Distribution: Local, Intermediate, and National Governing Units
Three union governing units interact with the members and with one another: the
local union, intermediate bodies such as a joint board, conference board, or
district council, and the national union. These interactions
[*89]
are defined by the formal procedures of the union constitution or the collective
bargaining agreement, and also by informal practices and procedures. In theory,
the national union is the decisive governing unit.
380
In practice, however, that unit controlling the collective bargaining function
often can effectively assert authority. Where the locus of collective bargaining
authority is centralized, effective power tends to be "unitary,"
flowing from the top to subordinate governing units. Conversely, where a
subordinate body dominates the collective bargaining function, "it
necessarily acts with an independence more consistent with a federal than a
unitary relationship."
381
Most represented employees in the United States are part of large, inclusive
negotiation units where bargaining increasingly addresses many complex, varied,
and detailed issues of wage structure, fringe benefits, seniority, work rules,
and job security.
382
These issues demand highly rationalized solutions and, as noted earlier,
national unions respond by centralizing power in expert bureaucracies.
383
Yet, these same forces also have had a decentralizing effect.As bargaining units
grow larger, competing interests within a single negotiation unit develop among
diverse special-interest groups. Conflict is magnified as the collective
bargaining issues become more complex. Kasper notes, "there is an apparent
paradox of union power: the larger the bargaining unit, the greater the union
bargaining power; but the larger the bargaining unit, the less able the union is
to secure the demands of any single group within the unit."
384
Some unions,
[*90] therefore, have created
increasingly complex integrated systems of negotiation units with varied special
interest groups more or less separately represented. Thus, some issues may be
negotiated at a centralized multiplant, multiemployer, or industry-wide level
while others are negotiated at a less centralized, local level. This provides
local union leaders greater influence and can provide varied special-interest
groups greater representation.
385
Moreover, even when a local union's negotiation function is displaced, the shift
of bargaining authority is more often to an intermediate governing unit than to
the national union.
386
Depending on the market structure of the industry, this intermediate unit may be
a geographic or cross-geographic group, such as white-collar, professional, or
skilled trades employees.
387
Barbash observes that these "intermediate bodies . . . can become
contending power centers in their own right in relation to the national union
and in relation to specific local unions. The national union is, therefore . . .
a complex system of potentially (and, frequently, actual) contending forms of
union government."
388
Other forces also operate to diffuse power among a union's governing units. Even
if the local union is displaced substantially from the negotiation process, it
continues, in most industries, to play an important role in the administration
and enforcement of the collective bargaining agreement.
389
Additionally, while many union constitutions and collective bargaining
agreements seem to limit local union collective bargaining autonomy, they seldom
reflect fully the relationship between local and intermediate or national
governing units.Informal "common law" relationships often locate the
real locus of power.
390
[*91] A national union's supervisory authority
can become so extreme that little power remains with the local union and it soon
is little more than a service agency. One example is control over finances. A
local union's primary sources of income are dues, initiation fees, and special
assessments.From this they make per capita payments to the national union and,
often, to intermediate union bodies.
391
In a few highly centralized unions, dues are paid directly to the national union
or intermediate governing body, often through checkoff, and remitted to the
locals after per capita payments have been deducted.
392
This power of the purse seriously limits local autonomy, as do high per capita
payments that leave little revenues for local union activities. Also,
"bargaining tends to be centralized in those few unions where local funds
are subject to headquarters' control . . . ."
393
Conversely, maintaining local autonomy over finances helps keep the local
political process a vital part of the members' lives.
394
Likewise, the extent to which national and subordinate bodies share control over
strike funds and organizing, also gauges local autonomy and the vitality of
local union political life.
395
Finally, a national union's ability and proclivity to abuse its trusteeship
power or even its power to require that local bylaws conform with the national
constitution can strangle that political life.
Some local unions are able to resist attempts to control their activities by
higher union governing units. They may have sufficient resources or political
power within the organization to obtain greater local control over bargaining
or, at least, adoption of contract terms responsive to local conditions.
396
Local leaders simply may resist passively directives from the
[*92]
national union, confident that their own local constituency will not turn them
out of office and that the national union's negative sanctions such as
trusteeship, fines and compulsory mergers cannot be used often without causing
political repercussions and overtaxing the time or resources of the national
union.
397
The available evidence thus suggests the limited utility of generalizations that
the locus of union power has drifted dangerously from the local union to
impersonal higher units of union government. There has been a drift toward
excessively centralized control making local union political life largely
irrelevant. Yet, forces can and often do operate to preserve the relative power
of local governing units and maintain the importance of their political
processes. Among the most important pressure points are control over collective
bargaining, strike funds, and organizing; the power to discipline local unions;
and control over local finances.
C. Summary and Conclusion
The above evaluation of union structure and government strongly suggests that
preliminary goals for law and the institutions regulating union government are
to shun the literature of pessimism, and grasp the realities of union political
process. Within each governing unit complex relationships among the leadership,
the bureaucracy, and the membership determine the possibility of member
participation, communication, influence, and control. Power is distributed
through formal and informal interactions that, together, comprise the union's
operative political process. This process, organized around democratic forms,
can and often does, provide the soil for members to achieve personal and group
goals, but it can also veil oppressive rule, abuse of power, and domination by a
few hierarchically organized leaders. The above analysis has sought to isolate
the pressure points that make a difference and can, therefore, be targets for
public regulation. It does not follow, however, that all such targeting is
either necessary or desirable. Various models of union democracy must be
evaluated within the framework now identified to ascertain which are possible,
which will not frustrate unions fulfilling assigned societal functions, and
which will require some form of external regulation for their advancement. That
inquiry follows. An appropriate role for public regulation can then be posited.
[*93] V. DESIRABILITY OF UNION DEMOCRACY AND
GOVERNMENT INTERVENTION
A. Introduction
The nettle of the debate over the desirability of union democracy and
governmental intervention has been its compatability with unions' performing
assigned societal functions. As the discussion at Part III shows,
398
the dominant principle underlying unions' role is that worker power groups are
inevitable and essential in any modern industrial society insisting that neither
combined capital nor government monopolize power. Accordingly, unions are
granted rights and immunities to represent group interests. In return, unions
are expected to perform economic and democratic functions. Specifically, unions
enlarge and balance liberty at the workplace by asserting collective power to
offset that of the employer. Workers thereby maximize opportunities for material
gain and enhance standing, dignity, and self-esteem through contractual
protections against arbitrariness and through participation in their industrial
government. Beyond the workplace, unions perform these dual economic and
democratic functions by fractionalizing power within the larger society. Unions
act as a power center to stabilize workers' political power and to avoid the
necessity of centralized wage determination.
The controversy over the desirability of union democracy and external regulation
to attain it has centered implicitly on which component of this assigned role
should be paramount, and in particular, the emphasis among the different and
sometimes conflicting goals and values implicated by each component.
399
B. Objections to Union Democracy and Government Intervention
The many objections to democracy in unions and governmental regulations to
achieve it converge on two arguments: union autonomy and union responsibility.
1. Union Autonomy
To some, proper emphasis requires recognition that bargaining effectiveness
gives a union its essential meaning. Accordingly, it is argued, unions must
remain able to command support from the members and respect from employers, the
latter being gained by a credible strike threat and an
[*94]
ability to control the work force.
400
From this premise flow several conclusions: 1) unions must be able to discipline
the work force, in a military sense, both to maintain the ability and
willingness to sustain conflict through the strike and to prevent job actions,
wildcat strikes, or other unauthorized interference with a union's contractual
obligations;
401
2) union victory requires unity and, therefore, as with a nation at war,
"political democracy should be curtailed, for criticism of the war itself,
of the objectives for which it is fought, and even of the leaders and their
tactics, becomes high treason;"
402
and, 3) like a military organization, unions must be able to act and react
quickly and decisively in times of crisis without the constraint that decisions
be argued and voted upon in town meeting fashion.
403
In short, the autonomy argument begins by emphasizing a union's role as a
fighting organization, and therefore, places primary reliance on efficiency,
strong leadership, unity, and discipline. Taking the argument to its extreme,
Magrath concludes that successful conflict with modern industry "demands
businesslike, i.e., nondemocratic, organization. However unpleasant the reality,
democracy is as inappropriate within the international headquarters of the UAW
as it is in the front office of General Motors."
404
One answer to the above has been to reject its premise: that modern unions are
locked in persistent antagonism with powerful opposition groups.
405
Such a rejoinder, however, ignores strong evidence that a virulent conflict
between unions and employers is a heritage that persists in many industries.
406
Even if reality is a series of labor wars and armed
[*95]
truces, unions must keep in "fighting trim."
407
Still, while unions are often locked in critical tests of strength with
employers, such things as protecting dissent, protecting against unfair
discipline, requiring fair representation, encouraging leadership responsiveness
to rank and file desires, and enforcing fiduciary obligations of officers are
not impediments to unions in crisis situations.
408
On the contrary, democratic guarantees advance unions' long-term stability.
Lipset and others have found that when discontent is channeled through an
internal political process, it is deflected away from the institution itself and
onto those in power, resulting in a high degree of loyalty to the union.
Otherwise, discontent with the leadership is projected and becomes an attack on
the institution.
409
Indeed, unions themselves are often most responsive to the members, and often
emphasize democratic procedures, such as membership votes and rallies, at times
of crisis, precisely because that is when genuine support is most vital.
410
Decreasing dissatisfaction and increasing member influence have also been shown
to strengthen the union by increasing participation.
411
This is hardly surprising, for Kochan's extensive analysis of worker attitudes
toward unions found that "the greatest concern of the union members is for
increasing the responsiveness of the union's internal administration."
412
Effectiveness in industrial conflict, then, is not immaterial; it simply is not
determinative. Unrestrained democracy borders on anarchy and is destructive,
Seidman counsels, just as unrestrained power results in dictatorship.
413
Society gains from neither so the question is, as always, one of
[*96]
degree.
Union independence from the state, a related autonomy argument, must similarly
be evaluated. Unlike country clubs and private fraternal organizations, unions
are neither private nor voluntary in any realistic sense. Rather, they are
important economic institutions that convert an individual worker's illusory
individual liberty to withhold labor into meaningful collective liberty for all
members of the group. Individual liberty is made real when industrial and
political conflict are adjusted among "competing units of social and
economic aggregation."
414
No country club can claim such importance to an individual's or society's
economic well-being.Since economic well-being is one of government's central
concerns, there is good reason for its exercising some external control over
unions.
415
Moreover, public policy explicitly encourages the practice and procedure of
collective bargaining and enjoins each party to exert every reasonable effort to
make and maintain agreements.
416
Government will, if requested, conduct representation elections. If a majority
of the bargaining unit employees chooses to have its interests asserted
collectively, then, in conjunction with the employer, the union establishes the
conditions of employment, controls the grievance procedure, disciplines the work
force, and affects almost every other aspect of the workers' industrial life.
417
There is little here that is private. Moreover, there is little that is
voluntary, for once collective authority is brought into being by majority vote,
the individual is controlled by it as to any relations with the employer. For
those desiring to maintain present employment there is, thus, no individual
power to contract out of the group.
418
Tension comes, then, not because unions are private voluntary associations in a
traditional sense, but because they are not. It is precisely because unions are
among the important "competing units of social and economic
[*97]
aggregation" that their independence from state control is so vital. Yet,
increased collective power also creates an increased threat to individual
liberty and societal interests. Thus the dilemma.
It is helpful to recognize, as Brousseau argues, that the tension is
"between different kinds of liberties and the means to their
attainment."
419
Enjoyment of private independence for momentary individual gain cannot be
allowed to impede, and ultimately undermine, the union and the collective
liberty it promises. Nor can the exercise of collective liberty be permitted to
subjugate completely the individual. An accommodation is required between
protection of individual rights and enjoyments, and the group's collective
liberty to determine its own rules without outside interference.
420
Stressing these broader aspects of unions' claim for autonomy from governmental
control may not provide an exact accommodation formula, but will help clarify
the issue and the competing values involved.
The final component of the autonomy debate raises the ageless conflict between
efficiency and democracy: that unions often suffer from inefficient
administration and external efforts to strengthen democratic processes tend to
worsen the problem. Bok and Dunlop are among the leading advocates of this
argument.
421
They begin with the reasonable premise that the desirability of any democratic
procedure in unions should be measured by "whether it will serve the ends
of the modern union -- to respond to the interests of the membership, to promote
them effectively, to deal fairly with individuals and minorities within its
ranks, and to exhibit a due regard for legitimate interests of those beyond its
walls."
422
Democratic process within unions, they urge, can impede these goals in a variety
of ways. First, the union's decisionmaking is skewed by the political process.
Policies and programs are too often adopted to curry membership favor rather
than because they will serve the long-range interests of the institution.
423
Beneficial programs and policies are abandoned or not supported because, unlike
business organizations that are able to hire and fire subordinates, national
unions must rely on local union leaders who are elected and have an independent
constituency over which the national union has little control.
424
Finally, the political process diverts energies
[*98]
that could otherwise be used to clarify goals and to plan, budget, and develop
innovative programs beneficial to the union.
425
In addition to these concerns, democratic processes are also seen as adversely
affecting the union's ability to attract, select, and develop the most able
leaders. Those selected by members at the local level may not be the best
qualified, and, therefore, the "election of top local officers is not
necessarily . . . the best way, of combining representative government and
efficient administration."
426
Appointments to the national union's staff are seldom based solely on merit but,
rather, are usually influenced substantially by political considerations. This
means appointees usually must be drawn from a pool of elected local union
leaders, the composition of which is beyond the national union's control.
427
The demands of democracy can also dissuade able potential leaders from pursuing
careers in union administration in favor of careers with business.
428
Finally, some have argued that external imposition of democratic processes is
financially costly due to such requirements as bonding and mailing notices of
election.
429
To this list might be added the litigation expense incurred in defending suits
brought by members.
These concerns for efficiency potentially implicate many different values. To
the extent the argument proceeds from the unarticulated assumption that union
members are fundamentally less able to govern wisely than are their expert
leaders because they are short-sighted, emotional, or irrational, the argument
lacks evidentiary support.
430
As a commentary on democracy's inherent inefficiency it begs the issue, for the
question is whether unions can long perform their societal role without the
"inefficiency" of democracy.
431
If, however, these concerns merely put the question
[*99]
of how shall the legitimate collective interest to seek efficiency be
accommodated with the members' competing and legitimate interest to control
their unions and be protected from the tyranny of the majority, then efficiency
becomes an important part of the calculus.
432
2.
Union Responsibility
Beyond autonomy, some see democracy in unions as undesirable because
undemocratic unions are more responsible, both to the community and as
collective bargaining partners. Unions' right to assert group interests is at
least partly based on what James calls "a systemic approach to unionism by
equating the good of any component of the system, in this case the union, with
the good of the whole.
433
Accordingly, unions must exercise collective power responsibly.Difficulty arises
not from this abstraction but from its application.
Some who emphasize unions' duty to foster industrial stability, for example,
question the compatability of union democracy. They fear union leaders, seeking
to justify their incumbency, and viewing "each new contract as [a] platform
for the next election," will intransigently advance irresponsible and
unrealistic bargaining demands thereby causing unnecessary strikes or
inflationary wage settlements.
434
Given the opportunity, members may also refuse to ratify contracts negotiated by
their leaders. In addition, ["c]andidates for union office are usually
under pressure . . . to prosecute every grievance and demand, however
farfetched, in the hope of winning support for their candidacy."
435
Finally, "[w]here active opposition exists, . . . officers will refuse to
compel obedience to contractual obligations, if compulsion is opposed by large
locals of many members. . . .[W]here reelection is uncertain, general officers
may not be as eager to
[*100] enforce
discipline or protect the individual member . . . ."
436
Efforts to strengthen member influence within unions has even been seen as the
villain that "bolster[s] the forces that lead the union to favor positions
opposed to the interests of the society at large.
437
These causal assertions are serious indictments. Wellington argues, however,
that "these theories are usually -- and quite properly -- advanced
tentatively. As reflections of empirical data, they lack evidentiary support; as
naked assertions, persuasiveness."
438
Others identify the same defects, and add that both "responsible" and
"irresponsible" unions are found among those that are most and least
democratic, suggesting the lack of a causal relationship.
439
There is evidence, however, that some union leaders are more sympathetic to
social reform than the members, and that centralized control of collective
bargaining by more insulated national union leaders, rather than local leaders,
may result in fewer strikes.
440
Accordingly, it may be partially valid that requiring greater leader
responsiveness to the members may lead to unionism that is deemed less
"responsible," from a public point of view.
This raises an inescapable conflict. It is, however, not one created by unions
or democracy in unions, for as the earlier discussion of pre-union shop society
confirms,
441
and as Wellington concludes, there exists a conflict "between public
responsibility and membership desire [that] is a major
[*101]
problem in every modern capitalistic state . . . . "
442
Unions help lead the industrial system away from both despotism and anarchy by
contributing to an exquisite tension intended to permit the system of free
enterprise to operate successfully and provide workers in the largest degree of
material comforts and dignity, through their effective voice at the workplace
and within the larger society. That the members' voice is not always deemed
"responsible" from a public point of view merely restates the
inescapable tension that exists. If this voice in industrial government is
silenced in favor of more "responsible" leadership, the standing and
dignity promised by unionism is sacrificed.
443
When that voice is expressed through other means, it will be heard through [w]ildcat
strikes and various other breakdowns in the scheme of stable production [as] are
often the membership's response to a leadership unconcerned with their
needs."
444
Conversely, opening constructive channels for workers to express that voice
promotes industrial stability. Dubin, applying to union militancy Lewin's
pioneering theories relating participation and commitment, found that worker
participation in ongoing work decisions provides a sense of "payoff."
Commitment to the productive enterprise increases; the propensity to threaten it
diminishes.
445
Unions as institutions also benefit from increased member loyalty and
participation as members are integrated into the union's decisionmaking
processes and perceive a "payoff" from the union and their
participation in it.
446
In sum, the objections to union democracy and governmental intervention fail to
establish its undesirability. They do demonstrate, however, that desirability is
a question of degree. By shifting focus to the affirmative case for union
democracy and governmental intervention, this question of degree can be
clarified more fully.
[*102] C. The Desirability of Union
Democracy
1.
The Sufficient Reasons for Union Democracy
The affirmative case for union democracy can be summarized simply: It is
integral to unions' performing properly their assigned societal role,
irrespective of which aspect of that role one considers paramount.
Only a democratic union can perform a democratic function at the workplace. This
is true, a priori, if the goal is to provide workers the dignity gained from
participating in the industrial government.
447
It is also true if the goal is more narrowly defined as providing workers
liberty by democratizing industrial management, in the sense that the rules and
procedures of the collective agreement substitute for arbitrary power. Cox
concludes, ["a]n individual worker gains no human rights by substituting an
autocratic union officialdom for the tyranny of the boss."
448
Focusing on the union's economic function at the workplace does not require a
contrary result. As bargaining representative, the union speaks for the
employees; the individual has no effective voice except the collective voice of
the union. Also, since the collective agreement governs every important aspect
of the worker's work life there is no practical way to contract out of this
governance.
449
["U]nions will bring to the bargaining table matters that the leadership
believes important to the welfare of employees. This is their function as
representatives, and it is what the [LMRA] envisions."
450
Unlike business, however, unions do not have the "universal
quantifier" of profit to check the efficiency of their goals and the means
chosen to attain them. An active internal union political process, therefore
substitutes for the business marketplace.
451
It, and protections against arbitrary treatment of minority interests within the
union, also act as the countervailing checks ensuring that the benefits and
burdens of the collective agreement are distributed not only efficiently, but
also fairly.
452
[*103] For these reasons, democratic
procedures are desirable even if a union were viewed primarily as a
"service organization" providing material benefits to workers.
Emphasizing the unions' economic and democratic functions beyond the workplace
further clarifies the desirability of union democracy. Since workers rely on
union representation in the political arena to stabilize their political power,
they must be able to control the institutions on which they depend. An effective
internal political process provides such control and checks the
misrepresentation of members' views. In this sense societal democracy depends on
union democracy.
The sufficient reasons for union democratic procedures, then, derive directly
from the role union are assigned and have assumed. The essential nexus between
these procedures and the unions' role has long been recognized by unions, at
least formally, through their democratic structures, constitutional expressions,
and leaders' representations.
454
This tradition, therefore, further validates union democracy's desirability but
does not answer the question of what model of democracy is desirable.
2. An Appropriate Model of Union Democracy
At a high level of abstraction, democracy in the American political mind has
been conceived as a process of decisionmaking that, paradoxically, keeps leaders
responsive to majority will and limits this will guaranteeing basic rights to
the minority.
455
This coexistence of will and limit has
[*104]
been explained as follows:
[This system] is not completely democratic if by "democratic" we mean
completely majoritarian. It assumes that in wide areas of life majorities are
entitled to rule for no better reason than that they are majorities. [The] model
has also a counter-majoritarian premise, however, for it assumes there are some
areas of life a majority should not control. [These] are areas properly left to
individual freedom and coercion by the majority in these aspects of life is
tyranny.
456
That this concept of democracy has been adopted for unions as national labor
policy is self-evident,
457
but not very helpful. A simplistic definition of democracy as majority will with
minority rights leaves many important questions unanswered. Is this concept of
democracy desirable in union government? What is the scope of the majority's
right to control decisions, and how shall this right be made effective? Finally,
how shall minority rights and majority will be accommodated; or stated
differently, at what point does the existence of minority rights, in the face of
majority will, become minority tyranny because it prevents the majority from
governing where its power is ligitimate?
a. Majority Rule
(1) Form of Control
Most would agree that majority rule is a system of decisionmaking affording a
majority of active members an effective opportunity to control the formation and
implementation of policy.
458
The threshold point of friction concerns the form of control -- direct rule or
control through representative government.
One model would provide members no active participation in the formation or
implementation of policy, but simply provide a formal process to select leaders
responsible for performing this function. Under this passive model, the sole
question is whether members support their leaders' policies because they like
what they get; whether they get what they want is irrelevant "since the
majority ha[s] no opportunity to consider major policy decisions.
459
[*105] Sayles and Strauss term this the
"safety valve" model. ["U]nions are democratic because, if things
get
too bad and the members become aroused enough, they have the power
to change things.
460
At the other extreme, substantial direct rule is considered mandatory. One
proposal, for example, would require that each small group of union members
having common economic concerns be permitted to form interest groups, that the
union leadership must deal directly with each interest group when forming
bargaining policy, and that each group would retain "a limited" right
to veto decisions of the majority, to assure that union leadership will heed
their concerns.
461
Neither view adequately balances the competing interests at issue. A town
meeting view of democracy seems as inappropriate in modern unions as in modern
industrial states. Membership meetings are ill-suited for policy formulation,
especially among large conflict resolution groups such as unions, that can
fairly claim needs for efficiency and flexibility. It need not follow, however,
that majority rule should be limited to officer selection, excluding all other
zones of direct membership control. Active participation is central to union
democracy because unions provide workers the dignity, status, and self-esteem
resulting from participation. Moreover, active participation advances union
institutional stability as well as industrial stability.
462
Accordingly, an appropriate model of majority rule would attempt a middle ground
between "safety valve" democracy and direct policy formulation by
members. It would provide meaningful opportunities for direct, active
participation in policy formation and implementation consonant with competing
demands for efficiency and flexibility.
463
[*106] Effectiveness of Control
A second point of friction concerns requirements making majority rule effective.
A skeleton democratic system providing a formal participatory process is
essential. The minimum requirements of such a process would include the normal
civil liberties: 1) The right of citizenship (union membership) to every worker
represented by the union; 2) regular elections honestly conducted; 3)
reasonable, nondiscriminatorily applied qualifications for nominating, voting,
and holding office; 4) the right to attend, speak freely at, and vote at union
meetings; 5) the rights to express views, arguments, and opinions critical of
union leadership and policies; and, 6) adequate protections against
discriminatory discipline including fair hearing and appeal procedures. These
protections constitute prerequisites of the bare "safety valve."
464
Yet, these protections alone are insufficient, for they fail to address many
important realities of union structure and government that can make this
"safety valve" stick.
The previous discussion of union structure and government has demonstrated that
incumbents often can monopolize technical and political expertise and the
effective means of power.
465
They can, therefore, manipulate members' satisfaction with current programs and
policies by controlling the information provided and withheld. They often can
mobilize the financial and personnel resources of the institution for their own
political advantage. The disciplinary machinery can be manipulated to discourage
dissent. Rewards can be traded for political support. Consequently, union
executive boards, conventions, and elections often are unable to serve their
checking functions. In short, without more, majority rule through a bare
"safety valve" system can be emptied of real content.
Effective countervailing power centers within the union are the essential check
allowing majority representative rule to operate effectively as an active,
participatory mechanism. Responding to this reality, some have travelled to a
far end of the spectrum, demanding a democratic model that includes permanent,
institutionalized opposition -- a two-party system. Applying notions of
collective liberty to unions' internal life, Lipset argues
[*107]
that "the most important factor" in achieving leadership
responsiveness to members is the existence of formal internal opposition.
466
Others have elevated this central importance to an inescapable condition.
467
More recent empirical work and case studies piercing the "iron law of
oligarchy" have demonstrated, however, that permanent institutionalized
opposition is not a necessary condition for effective majority control.
468
A democratic model concerned with protecting not only individual members'
participatory rights but also the rights and effectiveness of potential
opposition groups is essential. The working requirements of such a model fall
into three categories: structure, protection of individual and group
participatory rights, and neutralization of incumbent advantage.
(a) Structure
Edelstein and Warner's pioneering research demonstrates the central relationship
of national union structure, power diffusion, and control.
469
Local union structure and the distribution of power among units of union
government also contribute to the possibility of local union democracy.
470
Accordingly, absent a demonstration that one or more of the following structural
forms seriously impedes a union's performing its assigned societal functions, an
appropriate model of majority rule would include the following structural
characteristics.
At the national level -- 1) full-time executive boards elected regionally; 2) a
relatively large number of full-time elected national offices; 3) smaller and
more frequent conventions than are presently the norm; 4) referendum election of
officers and relative ease of nomination rather than election by convention
delegates; and 5) an appeals system that removes effective control from national
officers, thereby securing basic civil liberties and greater autonomy for local
unions, especially with regard to finances and collective bargaining authority.
These structures have been shown to encourage the development of countervailing
power groups capable of mounting an effective electoral opposition.
471
At the local level, democratic models should focus primarily on the structural
relationship of the local union to other units of union government, rather than
on local union internal structure, for two reasons. First, local union internal
structure is largely predetermined by the work environment.
472
[*108] Second, local union insurgent
disabilities resulting from local union internal structure are not usually
debilitating.
473
Far more significant and debilitating is the overall lack of vitality of
political life in the local union that can result from overly centralized
control by higher union governing units. Because the distribution of collective
bargaining authority among units of union government is largely conditioned by
the labor and product market in which a union asserts its jurisdiction,
474
it seems inappropriate that any model of union democracy should set strict norms
locating the locus of that authority. Yet, except where inconsistent with the
normal operation of these market forces or a union's bargaining effectiveness,
an appropriate model of local union democracy might properly include the
following structural relationships between local unions and higher governing
units:
475
1) decentralized local negotiation of bargaining issues vitally aggectying local
concerns; 2) active bargaining participation by intermediate governing units
regarding other important issues, to allow these bodies to function as important
power centers in relation to the national union; 3) an important local union
role in contract administration and enforcement; 4) local control over fincance
, rather than hight union governing units colleting dues and remitting a portion
back to local unions; 5) local control over increases in dues rates; 6)
decentralized control over strike funds; 7) decentralized contract ratification
votes; and 8) limitations to guard against the coercive use of trusteeship,
compulsory mergers of local unions, bylaw review, and discipline of local unions
or their officers.
The above structural forms should not be considered exhaustive. Nevertheless,
these are important pressure points that can make a difference and, therefore,
are appropriate components of an effective system of union majority rule except
where any are shown seriously to impede a union's ability to perform its
functions.
(b) Protection of Individual and Group Participatory Rights
Active participation with others to form a legitimate group that can make itself
heard effectively at a crucial stage in a decision is inconceiveable without
minority rights. The right of an individual, the ultimate minority, to oppose
without reprisal through formal and informal channels must be protected.
Otherwise, the marketplace of ideas will be closed and political persuasion
rendered impossible. But equally important is the right to organize
[*109]
effective opposition, for without the group, individual dissent is easily
atomized. The group provides moral support and financial backing. It provides
opportunities to develop leadership and political skills. Within its own ranks
it provides a forum for policy debate thereby tending to increase member
interest, knowledge, and participation. It provides the larger membership
community alternative candidates and programs. Even when its electoral
candidates are unsuccessful, its presence exerts pressure on incumbents to be
more responsive to the membership. In short, only a group can be
organizationally effective.
476
Organized opposition within the union polity may bring associated costs of
disruption, absorption of leadership time and energy, and decreased flexibility.
477
Although these costs do not justify suppressing group opposition or otherwise
making it ineffective, they cannot be ignored.The right of effective, organized
opposition must be balanced by the present majority's right to control and act.
Accordingly, except as limited by the majority's right to protect its
decisionmaking processes from paralysis, or limited by some other clear
demonstration of overriding institutional interest, an appropriate model of
majority representational rule would provide the following participatory rights
and protections in addition to the minimum requirements of a bare participatory
process already discussed:
478
1) the right to organize an opposition group; 2) the right of that group to hold
meetings, raise funds, and distribute literature; 3) access to information
required to make opposition effective such as union constitutions, collective
bargaining agreements, financial disclosure statements, constituent information
and the time, date, and location of membership meetings and polling places; and
4) meaningful access to the membership through the union's channels of
communication, including its regular publications.
479
[*110] (c) Neutralization of Incumbent
Advantage
A democratic model incorporating the governing structure and the protection of
individual and group participatory rights discussed above will foster formation
of contending power centers within a union and will begin to neutralize
incumbent and advantage. These advantages are quite substantial, however, and
for many years they were believed to preclude the possibility of democracy in
unions. It is appropriate, therefore, to consider if a valid model of union
deemocracy would also include restrictions on incumbent use of the power and
resources of the instituion.
This question is extremely difficult, for national union incumbent advantage
often obtains simply from the fact of incumbency and the exercise of substantial
constitutional powers.
480
In many instances it is impossible, or in any event undesirable, to attempt to
separate political from institutional motivations regarding such things as the
exercise of the appointment power, granting of patronage and other rewards, use
of the union's various channels of communication, and even the use of union
staff and union counsel. Notwithstanding these limitations, some restrictions
are possible and, absent a clear demonstration that they would impede the
unions' functions, desirable.
Accordingly, an appropriate model of union democracy would: 1) require the union
and its officers to adhere strictly to the instituions's constitution and other
governing documents; 2) hold the officers to a fiduciary duty with respect to
all dealings with the institution, including its various governing units, and
with its members; 3) prohibit the expenditure or commitment of the institutio's
resources, including staff personnel, to promote the candidacy of any single
person or group; and 4) prohibit reprisals against elected or appointed
officials due to their intra-union political activity.
481
[*111] b. Minority Rights
The previous discussion outlines the minority participatory rights upon which a
functioning system of majority rule depends. Beyond these, a concept of majority
will and minority rights properly includes the right not to participate as a
member of the group, the right to fair treatment by the majority, and the right
to participate in civic political activities.
A threshold question is whether an appropriate model of union democracy should
recognize and protect any such individual rights. Brousseau argues: "The
recognition of [minority rights] is a necessary product of a system of
collective rights operating within a larger legal, social and political context
which rightfully respects individual expectations."
482
Traditions supporting individual rights have deep roots in the American
political mind. These traditions are part of the legal, social, and political
context within which unions assert collective authority.
483
Conditioned expectations of individual rights accompany the employee entering
the plant gate, and the member entering the union hall. These expectations,
moreover, are highly valued as evidenced by societal acceptance of union
collective authority to protect individual liberty by offsetting employer power.
484
These same values, therefore, compel a model of union democracy that recognizes
and protects justifiable expectations of individual rights. Brousseau concludes,
[t]hat the individual's rights may be subsumed to the collective may be
necessary; that those rights, now held by the collective may be bartered away,
is permitted; but that . . . rights mirroring justifiable individual
expectations . . . should be frivolously abandoned, is collective liberty
degraded to a caricature of itself, to unprincipled majoritarianism . . . .
485
Determining which claimed rights "mirror justifiable individual
expectations" involves complex accommodations. For present purposes, the
principal claims only can be categorized. Beyond that, it must suffice to state
the appropriate democratic model in abstract terms: it would ascertain
[*112]
justifiable individual expectations by reference first to the larger
"legal, social and political context," for that context conditions
expectations. Then, as always, only those expectations not seriously impeding
the union's unique societal role would be protected within the framework of
union democracy.
The first category of claimed individual rights are those arising at the
workplace. While no list can be complete, most controversies will fall within
one or more of four categories: compulsory support of unions, the right of fair
representation, union discipline for refusing to engage in concerted activities,
and questions concerning the right to participate as an individual in the
collective bargaining process.
Within the union's internal government, individual members may also claim
justifiable individual expectations. They may claim rights akin to substantive
due process -- that no burden of membership be imposed without a reasonable
basis; or akin to procedural due process -- that obligations of membership not
be vague, that breach of these obligations be based on sufficient evidence, and
that the procedures determining breach be fair and adequate; or akin to equal
protection -- that classifications distributing the benefits and burdens of
union membership not be arbitrary.
Finally, individuals may assert justifiable expectations to engage in civic
political activities without restraint because they are arguably beyond the
union's appropriate sphere of control. For example, a member may wish to sue the
union or otherwise initiate legal proceedings involving its interests or engage
in civic political activities such as lobbying or supporting a political
candidacy. Or an individual may wish to refrain from certain activities such as
certain picketing or striking, claiming they are illegal or unlawful.
The above discussion describes a possible and desirable model of union
democracy. What remains is whether there exist sufficient reasons for any public
intervention to attain democracy in unions, and if so the appropriate role for
law.
D.
The Desirability of Government Intervention
1.
The Sufficient Reasons for Intervention
Like union democracy itself, governmental intervention to attain it has
associated costs. These costs, however, do not justify total abstention.
486
Yet, because at least some of these costs are real and not insubstantial, the
[*113] question of the sufficient reasons for
governmental intervention must be considered.
The affirmative case for public intervention to attain union democracy is found
in the public interest that unions perform their role and not abuse their
collective authority, and in the essential nexus between democratic procedures
and this public interest.
487
Accordingly, even if law had not encouraged the practice and procedure of
collective bargaining and had not granted unions important rights and immunities
in reliance on unions' promise to perform their representational role, the
public could and should insist that unions be democratic, simply because the
benefits of unionism are so highly valued, and democratic procedures are so
closely related to securing these benefits. Any society has sufficient reason to
insist on those things essential to its welfare.
Government intervention is also insisted upon by some, however, because of
government's support of unions. Through their leaders and political supporters,
many unions. Through their leaders and political supporters, many unions
committed themselves to industrial democracy and its concomitant, union
democracy, and relying on these representations society privileged unions'
asserting group interests. This creates what Wellington has termed "the
morality of promise keeping and the obligation of government through law to
protect the reliance and expectational interests generated by the making of
[these] promises."
488
The "shock of betrayal," he concludes, resulting when union leaders
fail to pursue promised democratic ideals cannot be tolerated or even risked.
Advancing a related argument, Cox urges that since unions are to serve
democratic functions, and since law has granted unions statutory rights and
immunities to fulfill these functions, the community has a concomitant
obligation to provide safeguards "as may be necessary to eliminate the risk
that the statutory power will not be abused."
489
Both arguments proceed from the historical record of governmental support
[*114]
of unions. Wellington's "morality of promise keeping" argument focuses
primarily on the promises made, and the reliance generated, and Cox's status
under law argument looks primarily to the powers granted. Both positions have
surface appeal, but are troubling, for each has an implicit negative that
government would not have sufficient reason to intervene had unions not promised
to be democratic and had government not granted them unique statutory powers. Of
course, some unions and their supporters did not seek statutory protection, and
even urged against it.
490
Unions representing employees such as those working in the public sector or
agriculture still do not enjoy the statutory powers and immunities of the
Taft-Hartley Act.
491
Finally, if legislative protections are eroded, would the case for union
democracy and governmental intervention concomitantly erode? The slender reed of
governmental support of unions, therefore, proves too much; it also proves too
little. The value of union democracy does not depend on the source of union
power but "in the fact of union power and the function of collective
bargaining."
492
This is the
[*115] gravamen of national labor
policy and the sufficient reason for governmental intervention in internal union
affairs. Accordingly, some external regulation is clearly justified unless there
exist adequate alternatives to ensure union democracy.
If employees' threats to withdraw union support were a meaningful check on a
union's failure to provide democratic processes, the case for governmental
intervention would erode. An individual or a dissident group certainly has the
bare legal right to resign from a union. If, however, one's job depends on union
membership, the right is hollow. If a union security clause is in effect and is
lawfully administered, a bargaining unit member resigning from a union must
still tender financial support as a condition of employment.
493
Finally, even if no union security clause is in effect, resignation merely gains
an individual or opposition group loss of industrial citizenship and the right
to participate. Most unions, in any event, could easily sustain the resignation
of individual dissenters or small opposition groups having little present
influence. Although a mass resignation would gain the leaders' attention, such a
"safety valve" has at least as many shortcomings as a bare electoral
process,
494
and such a majority revolt would not protect minority rights.
Nor does the option of decertification present an adequate alternative to
democratic procedures. This option is, at best, a crude check should conditions
[*116] become so unacceptable that a majority
is prepared to rebel.
495
Even then, decertification simply allows workers to replace an undemocratic
union with no union.
Theoretically, a majority can seek to replace the incumbent union with another,
but there are so many obstacles that this is not a reasonable alternative.
First, the NLRB's lawful voluntary recognition bar, certification bar, and
contract bar rules delay the raising of a question concerning representation. If
an existing contract qualifies as a contract bar, for example, an election to
replace a bargaining representative can be delayed up to three years.
496
Second, even when a question concerning representation can be raised, it must be
raised in a bargaining unit coextensive with the appropriate unit at the time
the election is requested. Accordingly, although the election unit in which the
union initially achieved majority status may have been a single plant or single
employer unit, the subsequent decertification or representation election will be
permitted only in a multiplant or multiemployer unit if, in the interim, the
union and employer have, through their history of bargaining, manifested a
mutual intent to so modify the bargaining unit.
497
Thus, no election will be held unless a 30% showing of interest is obtained in
the expanded unit, which in many industries includes thousands of employees.
Even then, a majority of those voting among the large number of employees is
required to change union representation.
498
Finally, even where the above obstacles are surmounted, a union must
[*117]
be found that is willing to serve as a substitute for the incumbent. Here the
AFL-CIO no-raiding program raises another obstacle. Since 1962, the AFL-CIO's
Internal Disputes Plan has required, as a condition of AFL-CIO affiliation, that
all affiliates must respect established collective bargaining relationships of
other affiliates. Alleged violations of this obligation are either mediated or
adjudicated by an impartial umpire, and noncompliance subject an affiliate to
internal sanctions. Raiding is, therefore, now minimal among affiliates and even
among nonaffiliates not bound to the Internal Dispute Plant.
499
One may fairly debate whether the stability gained by the contract bar rules,
the coextensive unit doctrine, and the AFL-CIO no-raiding program
inappropriately balances free choice and the value of stability. One need not
enter that controversy, however, to conclude that given these rules,
decertification, including replacement of union representatives, is not an
adequate alternative to internal democratic procedures.
Nor is civil disobedience by members within their union or industrial
governments an alternative to governmental regulation of internal union affairs.
It is often a reality of effective labor relations that bargaining effectiveness
depends on union leaders' ability to "deliver" a disciplined work
force.
500
Members can, therefore, obtain a measure of shared power by threatening leaders
with such work actions as absenteeism, slowdowns, sitdowns, sabotage, or wildcat
strikes. They may also get their leaders' attention by passive resistance to the
union's policies or active resistance such as refusing to strike and honor
lawful picket lines. These work action alternatives
[*118]
subject the employee to employer discipline, however, and violation of union
rules subject union members to union discipline. More fundamentally, these acts
of civil disobedience are unacceptable alternatives to democratic process,
because their effectiveness is predicted on weakening the union or the
labor-management relationship. Perhaps a serious malfunction of the democratic
process at the workplace or within destructivce conduct by workers actions.
Still, inherently disruptive and destructive conduct by workers can hardly be
viewed as a reasonable alternative to democratic process by any national labor
policy committed to stability through the practice and procedure of collective
bargaining.
501
A role for the law of internal union affairs is, therefore, clearly warranted.
It is necessary, however, to clarify its contours.
2. An Appropriate Role for Law
Over fifty years ago, Chafee described in colorful botanical terms three
attitudes explaining judicial reluctance to regulate internal affairs of private
associations.
502
First was the "Living Tree" attitude favoring minimal intervention
lest the roots of autonomous private groups be damaged by excessive regulation.
The "Dismal Swamp" attitude favored cautious intervention due to legal
institutions' insufficient familiarity with the complex internal affairs of
private groups, such as unions, and the preceived institutional incompetence to
evaluate the actual impact of decisions on the parties. Finally, the "Hot
Potato" attitude eschewed intervention because regulating powerful private
organizations threatens to embroil the judiciary in political controversy. More
recently, Grodin, extending Chafee's theme, suggested two additional botanical
metaphors: the "Worthless Weed" judicial attitude reflecting the view
that most competing interests that arise in union-member controversies are
social and not worthy of legal protection; and the "Shrinking Violet"
attitude that, in any event, law can do little to promote union democracy.
503
These attitudes,
[*119] often unarticulated,
underlie the controversy concerning the appropriate role for the law of internal
union affairs.
"Worthless Weed": Dispelling this attitude may well be the
foundation on which a role for the law regulating union government is built.
Legal institutions responsible for developing that role must steel themselves,
for their task is formidable; society must allocate the necessary enforcement
resources to prevent statutory protections from becoming a political fraud, and
the parties must exercise moderation or the legal system will be overwhelmed.
All this requires a commitment to union democracy, forged from a clear
understanding of its worth. As a corollary, a reasonably clear vision of the
democratic model sought is required, for if the prefered results remain
uncertain, so also will law's role. There are sufficient reasons for union
democarcy,
504
and for public intervention to preserve and promote it.
505
Moreover, an appropriate model of union democracy can be articulated: one that
is both feasible and desirable in the sense of balancing the competing
legitimate interests.
506
Raising and clarifying issues concerning the meaning of union democracy and its
worth promises reciprocal benefits. Nondecisionmakers can help adjudicatory
institutions develop doctrinal coherence. By responding, these institutions not
only add coherence to their decisions, but also help clarify the meaning of
union democracy and its worth, since their decisions are instructive beyond the
specific issues adjudicated and parties directly affected.
507
"
Dismal Swamp": The internal affairs of unions need not be a
"Dismal Swamp." The social sciences have explored union's assigned
societal functions, their internal structure and government, and the possibility
and desirability of union democracy. To be sure, many of the associated
relationships are subtle and complex, but legal institutions, and persons
appearing before them, can consult this body of accumulated knowledge to help
understand the realities of union organizational life. Informed distinctions can
thereby be made among actions that do and do not conform to appropriate norms of
union democracy, among laws that do and do not achieve intended results, and
among remedies that do and do not balance wisely the competing legitimate
interests.
[*120] Adjudicatory tribunals play a
particularly important role in this regard. The regulatory framework Congress
created addresses the individual-collective relationship, not as a precise code,
but primarily through broad principles.
508
The enforcement strategy chosen, moreover, is a blend of state, federal,
judicial, and administrative processes.
509
Achieving a rational and uniform labor policy requires working into a uniform
fabric these various statutes and enforcement structures, and understanding
their impact on the parties and on others not before the adjudicative tribunal.
This is not solely a legislative function, as Wellington has ably demonstrated.
Courts and agencies, through what Mr. Justice Frankfurter termed
"litigating elucidation" are assigned the role of understanding and
applying the goals of national labor policy and the values embodied in existing
law. In this sense, limited always to effectuating legislative goals,
adjudicatory institutions "participate in the growth of law" through
their role as "elaborators of Congressional policy."
510
Courts have long honored this adjudicatory principle. Grasping their role as
"elaborators of Congressional policy," they have, for example, found
the right of fair representation in the interstices of federal labor statutes.
511
More recently, they have shaped other rights and remedies to balance the
guarantees of those statutes with unions' competing institutional interests.
512
[*121] The NLRB also recognizes its
"elaborator" role with respect to the law of internal affairs. For
example, it has woven the individual rights values of LMRDA into the
Taft-Hartley Act in union fine cases.
513
It has sought to accommodate the collective goals of Taft-Hartley with legal
traditions respecting justifiable expectations of individual rights, by
protecting the right of fair representation
514
and by holding unions to a fiduciary duty in certain union security disputes.
515
Other portions of the Board's work similarly require it to be sensitive to
sources of labor policy beyond the Taft-Hartley Act, such as the contract bar,
decertification and craft severance rules,
516
and the effect of Taft-Hartley on the exercise of dissent through wildcat
strikes.
517
The bargaining unit, for example, affects not only the labor-management
relationship but also the locus of bargaining authority and, thereby, the levels
of local union autonomy and individual workers' participation in the industrial
and union governments.
518
Board decisions regarding which worker rights the union is empowered to waive
through the collective bargaining agreement turn on a determination of which are
collective and which are held by individuals and, therefore, beyond the reach of
the collective.
519
When the issue concerns waiver of an individual member's right to distribute
union election campaign literature at the workplace, the Board's work directly
implicates the internal union democracy values in labor law.
520
Even the Board's duty to bargain decisions
[*122]
inevitably confront these values.
Borg-Warner,
521
for example, prohibits employers' demanding to impasse that a union conduct
contract ratification votes. Board decisions regarding an employer's duty to
honor a collective bargaining agreement not submitted to the membership for
ratification can influence union leaders' honoring union constitutional mandates
requiring ratification votes.
522
The Board can influence a union's structure if it holds that an affiliation of
two unions allows and employer to withdraw recognition from the successor union.
523
These few illustrative examples are not intended to suggest how the Board should
accommodate the policy goals of Taft-Hartley with other labor policies and their
underlying values. They do show, however, that while the Board may not have a
mandate to regulate directly the internal affairs of unions,
[*123]
it cannot escape involvement with them.
524
Accordingly, as with other adjudicatory bodies, its role includes weaving the
union democracy values of labor statutes with the labor-management relations
policy goals of Taft-Hartley.
Many other agencies also participate in this process: antidiscrimination
agencies considering alleged union discrimination in employment or in union
membership; the labor department through its various policing functions under
the LMRDA: the Federal Election Commission regulating union campaign spending;
the criminal justice agencies responsible for policing union corruption; and
state agencies responsible for effecting state policy. All have roles that are
at once different and identical -- different since each has a distinct
responsibility for effecting the primary policy goals of specific statutes, and
identical since each must be sensitive to the national policy goals favoring
democracy in union government.
In sum, the realities of union organization life are being increasingly
understood, and adjudicatory bodies, therefore, need no longer fear Chafee's
"Dismal Swamp." Indeed, by working these realities and the union
democracy values imbedded in law into a single fabric, adjudicatory institutions
execute their role as elaborators of national labor policy. Therefore, the
complex and sometimes overlapping network of laws affecting union government may
be kept from becoming a new "Dismal Swamp."
Living Tree": Since sufficient reasons exist for public regulation
of internal union affairs,
525
but also since excessive regulation can damage unions as autonomous and
responsible organizations,
526
the role of law question additionally turns on when and how law shall intervene.
The precise contours of the answer vary, shaped by the parties, issues, and the
decisionmaker's institutional competence, but several guidelines emerge from the
previous discussion of unions' societal role, their structure and government,
and the risks and benefits of union democracy and public intervention.
When and how law should intervene varies initially on whether the controversy
arises in the bilateral workplace government or the unions' internal government.
Within the former, controversies primarily are between
[*124]
dissenters claiming justifiable expectations of an individual right to be free
from union collective authority, and unions claiming such expectations must be
subsumed to advance collective interests. In such classic confrontations,
justification for intervention is greatest because the union's internal
majoritarian democratic processes cannot fairly be expected to protect minority
rights from the majority will.
527
These controversies, however, also present great dangers to collective strength,
arising as they do in the crucible of labor-management relations. Accordingly,
while law should be least timid in intervening in such controversies, it also
must be most cautious lest in the name of individual liberty, it should damage
seriously the collective liberty upon which enduring individual liberty at the
workplace ultimately depends.
Democracy in union internal government presents a different balance. These
controversies, primarily though not exclusively, are between individuals or
minority groups claiming justifiable expectations of the right to participate
effectively to achieve majority support, and unions claiming the collective
right to be free from the inefficiencies and disruptions of excessive democracy.
Legal intervention in this situation poses a minimal risk to the collective
strength of the union. Indeed, by promoting democracy in unions, it promises to
strengthen the union by encouraging members' institutional loyalty and
participation.
528
Such public intervention does, however, carry an associated risk of excessive
intervention and its concomitant, excessive loss of independence from state
control. Accordingly, the role of law should be to encourage effective
self-government. The operative concept is "effective." Law need not
shrink from intervention calculated to protect legitimate opposition groups
seeking to modify union policy through democratic majoritarian processes.
Recognizing the realities of union organization life, decisionmakers should
minimize the functional disabilities confronting union insurgents such as abuse
of discipline and incumbent control over information and institutional resources
that can create insurmountable barriers to an insurgency campaign.
529
Paradoxically, by intervening to help make effective the countervailing forces
that may arise within the union, law best preserves the central value of union
independence from the state; for when the union membership can enforce leaders'
basic fiduciary duties and possesses the effective tools for meaningful
self-government, the case for external regulation of union structure and
substantive policy largely collapses.
530
Summers summarizes this balanced
[*125] view
of the role of law as follows: "By protecting and fostering democratic
processes within unions, the law can rely on the self-corrective ability of
those processes. The necessity for intervention is reduced by insuring that
unions speak with the voice of those whom they represent."
531
There is no easy or exact calculus here. The principle is that law best serves
the union as a "living tree" by protecting justifiable individual
expectations, and by strengthening the effectiveness of its democratic
majoritarian controls, limited only by competing legitimate claims for
efficiency, independence, or collective bargaining effectiveness.
"
Hot Potato": When Chafee reported this judicial attitude, in
1930, the regulation of union internal affairs threatened to entangle the
judiciary in political controversy.Courts adjudicated without legislative
standards; the myth of unions as voluntary associations akin to a fraternal
lodge prevailed; and unions were hostile to the judiciary due to its alignment
with property interests, a veiw that could not abate until law became a more
neutral arbiter of industrial conflict.
532
The present is quite different.Public policy now recognizes that unions are
neither private nor voluntary in the same sense as religious, fraternal or
social organizations. It is precisely because they are not that law privileges
and protects their asserting group interests,
533
has a heightened obligation to ensure their autonomy,
534
and has assumed the duty to resolve certain labor-management controversies and
"guarantee" unions' democratic processes.
535
Unions, moreover, now operate in the mainstream of national political life.
536
The political branches of government -- legislative and executive -- have
determined that regulation of union government is in the public interest and
have provided decisionmakers policy standards to guide their decisions.
Accordingly, as long as courts and other adjudicatory bodies limit their role to
elaborating and enforcing the policy
[*126]
goals manifested in labor law, they properly remain insulated from serious
political conflict. If the national labor policies themselves constitute
"hot potatoes," conflict appropriately should be directed to the
political branches of government. It is their role to frame the policies, defend
them in the political process, and take the heat.
"
Shrinking Violets": If law can do little to promote union
democracy, then the appropriate role for law might be to retire from the field.
The costs would inevitably outweigh the benefits. This concern soon fades,
however, upon inspection.
Properly understood, union democracy connotes two concepts: minority rights and
majority will.
537
By proscription and injunction, law can protect justifiable expectations of
individual and minority group rights to be free from certain exercises of the
majority's collective authority. Indeed, perhaps only law can do so for a
majority cannot fairly be expected to be the final arbiter of its own
limitations.
538
More complex is the question of whether law can promote an effective
majoritarian political process. Law cannot create democracy within a union's
internal government for it cannot create the democratic spirit on which an
active political process depends. Yet that is hardly the issue, for if law can
contribute meaningfully to the nurturing of that spirit, then it can fairly
claim a role.
Law can so contribute, and quite directly. First, as it has, law can act as an
independent source of affirmative protection by requiring that unions provide a
formal participatory process, the minimum requirements of which have been
described.
539
It can, additionally, play a supportive role by responding to the realities of
union organizational life that often eviscerate the formal participatory
process. It could, for example, require union structures that provide direct
membership control over policy, encourage
[*127]
electoral opposition, and guarantee local union autonomy.
540
This, however, seems uniquely inappropriate given the central value of union
autonomy from state control. Yet, when a union's structural form, manifested in
its constitution or traditions, includes democratic governing structures such as
membership ratification votes, the regional election of a full-time executive
board, referendum election of officers, relative ease of nomination, or the
effective removal of the disciplinary appeals system from national officer
control, adjudicatory bodies should assiduously scrutinize deviations by
incumbent officers. Such an approach is vital since these structures largely
determine the level of membership participation and electoral opposition.
Edelstein and Warner conclude that such ["o]rganisational specifics . . .
are the actual operative variables."
541
Similarly, when union structure encourages vitality in a local union's political
life by minimizing overly centralized control,
542
deviations should, again, be subject to strict judicial scrutiny.
Beyond preserving the organizational structure that nurtures democratic
participation, law can play an important supportive role by protecting group
participatory rights. Because only a group can be organizationally effective,
law could contribute valuably by guaranteeing an opposition group's right to
organize, hold meetings, raise funds, distribute literature, gain access to
election and constituent information, and use the union's channels of
communication to convey its message.
543
Law can also be supportive by neutralizing at least some of the advantages of
incumbency, such as those associated with the incumbent's use of institutional
resources for political advantage and disciplinary control over elected and
appointed union staff.
544
Adjudicatory bodies will need to be sensitive and imaginative here: sensitive to
the functional disabilities confronting electoral challenges and imaginative in
framing effective remedies that promote the values of union democracy with as
little impairment to the union's independence, strength, and orderly function as
possible.
545
The argument is not that the task is easy; only that it is possible and
desirable.
Finally, beyond its coercive effect, law's moral force can encourage union
democracy in two related ways. First, its mere presence conditions
conduct.Lipset argues that one of the law's functions is to set a community
[*128] standard of proper conduct and the
mere fact that an action is unlawful reduces the extent of its occurrence.
546
Second, law's moral force is "multiplied" when it adopts the standards
established by those regulated.
547
There exist "compulsive pressures of democracy in unionism," deeply
rooted in union rhetoric, constitutional form of government, and traditions.
548
By explicitly recognizing democratic values, law reinforces and strengthens
those already present in most unions. More specifically, it reinforces the
legitimacy of opposition and the legitimacy of resort by the opposition to legal
protection of its rights. Law's role of conditioning values may, in the long
run, be one of its greatest contributions in promoting union democracy.
549
In sum, law has no ultimate power to create union democracy, except when it
protects the minority's justifiable expectation to be free from certain coercive
effects of the majority's collective authority. Law abdicates its
responsibility, however, if it acts as a "Shrinking Violet" for in
many ways it can nurture the spirit of self-government. Its role is not to be
the arbiter of substantive policy conflicts; it is rather to protect union
independence from state control, and assist unions in performing their essential
societal functions by helping make effective the process of internal opposition
and dissent as the preferred method of determining union policy. Legislation
only begins this process. The task of elaborating and effecting labor policy
favoring union democracy falls to all adjudicative bodies whose work touches
union government. Nothing less is demanded.
FOOTNOTES:

n1
McDougal,
Law of a Process of Decision: A Policy-Oriented Approach to Legal
Study, 1 NAT'L L.F. 53, 63 (1956).

n2
Bok,
Reflections on the Distinctive Character of American Labor Laws,
84 Harv. L. REV. 1394, 1462 (1971).

n3
Id. at 1462.
See Goetz & Wike, Book Review, 25 U. KAN. L.
REV. 375, 375 (1977) (reviewing J. GETMAN, S. GOLDBERG & J. HERMAN, UNION
REPRESENTATION ELECTIONS: LAW AND REALITY (1976)) ("To the extent [courts]
try to conform to human behavior at all, it is usually by reliance on unstated
assumptions, intuition under the guise of expertise, or generalization from
isolated cases . . . leaving the disturbing possibility that much of the law may
be out of touch with reality.").
See generally Empirical Data and
Statistical Analysis in Labor Law, 1981 U. ILL. L. REV. 1.

n4
The literature documenting this disunity is extensive. For a discussion of fair
representation, see NATIONAL CONFERENCE ON THE DUTY OF FAIR REPRESENTATION (J.
McKelvey ed. 1977); Finkin,
The Limits of Majority Rule in Collective
Bargaining, 64 MINN. L. REV. 183 (1980). Concerning union security, see T.
HAGGARD, COMPULSORY UNIONISM, THE NLRB, AND THE COURTS (1977).
Compare
Eissonger,
The Right-to-Work Imbroglio, 51 N.D.L. REV. 571 (1975)
with
Bailey & Heldman,
"The Right to Work Imbroglio": Another View,
53 N.D.L. REV. 163 (1976). Concerning union fines, see T. KEELINE, NLRB AND
JUDICIAL CONTROL OF UNION DISCIPLINE (1976); Wellington,
Union Fines and
Worker's Rights, 85 YALE L.J. 1022 (1976).For a discussion of fiduciary
duty, see Kratzke,
Fiduciary Obligations in the Internal Political Affairs
of Labor Unions Under Section 501(a) of the Labor-Management Reporting and
Disclosure Act, 18 B.C. INDUS. & COM. L. REV. 1019 (1977); Leslie,
Federal
Courts and Union Fiduciaries, 76 COLUM. L. REV. 1314 (1976). For a
discussion of union elections, see James,
Union Democracy and the LMRDA:
Autocracy and Insurgency in National Union Elections, 13 HARV. C.R.-C.L. L.
REV. 247 (1978); Note,
The Election Labyrinth: An Inquiry into Title IV of
the LMRDA, 43 N.Y.U. L. REV. 336 (1968); Note,
Union Elections and the
LMRDA: Thirteen Years of Use and Abuse, 81 YALE L.J. 407 (1972)
[hereinafter cited as Yale Note]. For a comprehensive analysis of the
development of labor policy see A. COX, LAW AND THE NATIONAL LABOR POLICY
(Industrial Relations Monographs, Monograph Series: 5, 1960); H. WELLINGTON,
LABOR AND THE LEGAL PROCESS (1968).

n5
Bok,
supra note 2, at 1400. Bok argues that due to our uniquely
decentralized and adversarial industrial relations environment, contesting
parties litigate on a case-by-case basis advancing their individual short-term
interests by finding loopholes and exceptions rather than by seeking doctrinal
unity.
Id. at 1462. The same, however, can be said of advocates'
behavior throughout our adversarial system. In any event, this theory leaves
unanswered the question of why decisionmakers have not brought unity to the law
regulating union government.

n6
Bok readily acknowledged that "the process of social causation is rarely
unilinear, but more often displays a cumulative and circular quality."
Id.
at 1400.

n7
McDougal,
supra note 1, at 71.

n8
Id. at 63, 71-72.Mr. Justice Holmes recognized the relationship between
labor law adjudication and value allocation eighty-five years ago. He argued:
"The true grounds of decision are considerations of policy and of social
advantage, and it is vain to suppose that solutions can be attained merely by
logic and general propositions of law which nobody disputes."
Vegelahn
v. Guntner, 167 Mass. 92, 106, 44 N.E. 1077, 1080 (1896) (dissenting
opinion).

n9
See Cook,
Dual Government in Unions: A Tool for Analysis, 15
INDUS. & LAB. REL. REV. 323 (1962).
See also Barbash,
American
Unionism: From Protest to Going Concern, 2 J. Econ. Issues 45, 48 (1968).

n10
See Emporium
Capwell Co. v. Western Addition Community Org., 420 U.S. 50 (1975); J.I.
Case Co. v. NLRB, 321 U.S. 332 (1944).

n11
See Blumrosen,
The Worker and Three Phases of Unionism:
Administrative and Judicial Control of the Worker-Union Relationship, 61
MICH. L. REV. 1435 (1963); Levy,
The Collective Bargaining Agreement as a
Limitation on Union Control of Employee Grievances, 118 U. PA. L. REV. 1036
(1970); Schatzki,
Majority Rule, Exclusive Representation, and the Interests
of Individual Workers: Should Exclusivity Be Abolished?, 123 U. PA. L. REV.
897 (1975); Summers,
Individual Rights in Collective Agreements and
Arbitration, 37 N.Y.U.L. REV. 362 (1962); Note,
Federal Protection of
individual Rights Under Labor Contracts, 73 YALE L.J. 1215 (1964).

n12
See supra note 4.

n13
Id.

n14
The statutory, common law, and constitutional issues related to the claimed
right to union membership are discussed in Lang,
Toward a Right to Union
Membership, 12 HARV. C.R.-C.L.L. REV. 31 (1977).
See also Givens,
'
The Enfranchisement of Employees Arbirarily Rejected For Union Membership,
11 LAB. L.J. 809 (1960).

n15
See supra note 4.

n16
In 1959, Congress enacted the Labor Management Reporting and Disclosure Act,
Pub. L. No. 86-257, 73 Stat. 519 (1959), as amended, 79 Stat. 888 (1965),
(codified as amended at
29
U.S.C. §§ 401-531 (1976)) [hereinafter cited by section number or title
and either LMRDA or Landrum-Griffin Act]. Title II requires financial reporting
and disclosure.
See Naumoff,
Reporting Requirements Under the Labor
Management Reporting and Disclosure Act, 14 N.Y.U. ANN. CONF. ON LAB. 129
(1961).
See also Beaird,
Some Aspects of the LMRDA Reporting
Requirements, 4 GA. L. Rev. 696 (1970). Title V holds union officers to a
fiduciary duty that includes their management of a union's money and property.
See
supra note 4; Clark,
The Fiduciary Duties of Union Officials under
Section 501 of the LMRDA, 52 Minn L. Rev. 437 (1967). Section 101(a)(3) of
the Landrum-Griffin Act establishes procedural requirements that unions must
satisfy when increasing dues or initiation fees and when levying general or
special assessments.

n17
See supra note 4.
See also Beaird & Player,
Union
Discipline of Its Membership under Section 101(a)(5) of Landrum-Griffin: What is
"Discipline" and How Much Process is Due?, 9 GA. L. Rev. 383
(1975); Etelson & Smith,
Union Discipline Under the Landrum-Griffin Act,
82 Harv. L. Rev. 727 (1969).

n18
The imposition and administration of trusteeships are regulated by Title III of
Landrum-Griffin.
See Beaird,
Union Trusteeship Provisions of the
Labor-Management Reporting and Disclosure Act of 1959, 2 GA. L. Rev. 469
(1968); Bellace,
Union Trusteeships: Difficulties in Applying Sections 302
and 304(c) of the Landrum-Griffin Act, 25 Am. U.L. Rev. 337 (l976); Note,
Landrum-Griffin
and the Trusteeship Imbroglio, 71 Yale L.J. 1460 (1962).
Disaffiliation of a local union from its parent international union raises legal
questions regarding the disposition of union assets.
See Greenberg,
Disposition of Union Assets upon Disaffiliation, 33 TEMP. L.Q. 152 (1960);
Svete,
Disposition of Local's funds upon Disaffiliation, l2 CLEV-MAR.
L. REV. 539 (l963); Note,
Disposition of Assets Held by Disaffiliating Local
Union, 12 SYRACUSE L. REV. 112 (1960).
The National Labor Relations Board regulates, indirectly, parent-union affiliate
relations through its refusal to bargain and amendment of certification
adjudication by requiring certain procedures in union merger, affiliation, and
disaffiliation votes.
See infra note 523 and accompanying text.

n19
State courts have for many years adjusted the conflicts arising out of the
interpretation and application of union constitutions.
See P. Taft,
Rights of Union Members and The Government 22-27 (1975); Summers,
Legal
Limitations on Union Discipline, 64 Harv. L. Rev. 1049 (1951); Summers,
Judicial
Settlement of Internal Union Disputes, 7 Buffalo L. Rev. 405 (1958); Note,
Civil
Liberties within the Labor Movement, 34 Notre Dame Law. 384 (1959). In 1947
Congress enacted the Labor Management Relations (Taft-Hartley) Act, Pub. L. No.
80-101, 61 Stat. 136 (1947) (codified as amended at
29
U.S.C. §§ 141-197 (1976 & Supp. IV 1980)) [hereinafter cited by
section number and either LMRA or Taft-Hartley Act] Section 301, creating
federal jurisdiction to adjudicate contraversies arising out of contracts
between labor organizations, authorizes federal courts to adjudicate
controversies arising under union constitutions.
United
Ass'n of Journeymen v. Local 334, 452 U.S. 615 (1981) (suit between labor
organizations);
Kinney
v. IBEW, 669 F.2d 1222 (9th Cir. 1982) (amended opinion) (suit between
member and union); Wolfe v. Road Sprinkler Fitters Local 669, No. C-82-352 (N.D.
Ohio Oct. 7, 1982) (collecting cases).

n20
Compare 1. BERNSTEIN, THE NEW DEAL COLLECTIVE BARGAINING POLICY (1950)
(New Deal era)
with Taft,
Internal Affairs of Union and the
Taft-Hartley Act, 11 Indus. & Lab. REL. REV. 352 (1958) (Taft-Hartley
era). The Landrum-Griffin era produced excellent scholarship tracing its unique
history and policy goals.
See Aaron,
The Labor Management Reporting
and Disclosure Act of 1959, 73 Harv. L. Rev. 851 (1960); Cox,
Internal
Affairs of Labor Unions under the Labor Reform Act of 1959, 58 MICH. L.
REV. 819 (1960); Rothman,
Legislative History of the "Bill of
Rights" for Union Members, 45 MINN. L. REV. 199 (1960); Smith,
The
Labor Management Reporting and Disclosure Act of 1959, 46 VA. L. REV. 195
(1960); Summers,
American Legislation for Union Democracy, 25 MOD. L.
REV. 273 (1962). For a discussion of the goals of two other strands of labor
policy -- regulation of corruption and political expenditures -- see P. TAFT,
CORRUPTION AND RACKETEERING IN THE LABOR MOVEMENT (1958); Blakey & Goldstock,
"
On the Waterfront": RICO and Labor Racketeering, 17 AM.
CRIM. L. REV. 34l (l980); Kovarsky,
Unions and Federal Elections -- A Social
and Legal Analysis, l2 ST. LOUIS U.L.J. 358 (1968); Mager,
Past and
Present Attempts by Congress and the Courts to Regulate Corporate and Union
Campaign Contributions and Expenditures in the Election of Federal Officials,
1976 S. ILL. U.L.F. 338.

n21
James,
supra note 4, at 252-53; Klare,
Judicial Deradicalization of
the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62
MINN. L. REV. 265, 267, 270 n.16, 319-25, 321 n.196 (1978). Labor policy imposes
no direct obligation on unions to discipline the work force.
See Carbon
Fuel Co. v. UMW, 444 U.S. 212 (1979) (union not required to use all
reasonably available means to prevent unauthorized work stoppages violative of
the contract). Yet, Klare argues that "[t]he delineation of legitimate
forms of concerted activity contain[s] the unstated proviso that unions wishing
the protection of the Board ha[ve] to keep their members in line." Klare,
supra,
at 319. This argument is sound if one assumes an employer will discharge and
replace those engaging in unprotected activities, or at least a union would
reasonably fear such employer reaction, for a mass discharge will undermine
seriously a union's economic strength.
See Complete
Auto Transit, Inc. v. Reis, 451 U.S. 401 (1981) (employer may not obtain
damages for breach of contract against employees but may discharge or otherwise
discipline them for striking in violation of collective bargaining agreement);
Emporium
Capwell Co. v. Western Addition Community Org., 420 U.S. 50 (1975) (employer
may discharge wildcat strikers demanding individual bargaining);
NLRB
v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939) (employer may discharge
sit-down strikers).
But see Complete
Auto Transit, Inc. v. Reis, 451 U.S. 401, 420-23 (1981) (Powell J.,
concurring) (the discharge remedy is often illusory: 1) wholesale discharge
often impractical; 2) discharge often prolongs a strike; and 3) discharge of
strikers seldom sustained by arbitrators).

n22
James,
supra note 4, at 254-55.
See Munson,
The Trade
Union as an Organization, 88 MONTHLY LAB. REV 497, 499 (1965) ("A
trade union leader stands in a supervisory relationship to . . . the member, who
is also his master . . . .").

n23
See infra notes 434-37 and accompanying text.

n24
See J.I.
Case Co. v. NLRB, 321 U.S. 332 (1944); Finkin,
supra note 4, at
185-88. For an historical account of the development of this policy see Scheiber,
The Origin of the Majority Rule and Simultaneous Development of Institutions
to Protect the Minority: A Chapter in Early American Labor Law, 25 RUTGRES
L. REV. 237 (1971).

n25
See infra notes 457, 482-85 and accompanying text.

n26
See infra notes 146, 178, 183, 218-25 and accompanying text.

n27
See supra notes 14-19 and accompanying text.

n28
For other examples, and a critical analysis of national labor policy's competing
goals, see Klare,
supra note 21.

n29
For a sample of the Supreme Court's efforts to unravel this maze of adjudicatory
relationships, see
Motor
Coach Employees v. Lockridge, 403 U.S. 274 (1971) (relationship between
state court enforcement of union constitution and LMRA);
Boilermakers
v. Hardeman, 401 U.S. 233 (1971) (relationship between LMRDA and LMRA);
Vaca
v. Sipes, 386 U.S. 171 (1967) (relationship between duty of fair
representation and LMRA);
Retail
Clerks Local 1625 v. Schermerhorn, 375 U.S. 96 (1963) (relationship between
state power granted pursuant to LMRA § 14(b) and LMRA);
De
Veau v. Braisted, 363 U.S. 144 (1960) (relationship between LMRDA and state
power to regulate union government).
See generally Sears,
Roebuck & Co. v. San Diego Dist. Council of Carpenters, 436 U.S. 180 (1978)
(LMRA preemption based on both primary jurisdiction of NLRB and supremacy of
rights protected by LMRA § 7).
Problems associated with the overlapping enforcement strategies regulating union
government have generated a rich lode of scholarly work.
See, e.g.,
Bryson,
A Matter of Wooden Logic: Labor Law Preemption and Individual Rights,
51 TEX. L. REV. 1037 (1973); Summers,
Pre-Emption and the Labor Reform Act
-- Dual Rights and Remedies, 22 OHIO ST. L.J. 119 (1961); Note,
Pre-Election
Remedies Under the Landrum-Griffin Act: The "Twilight Zone" Between
Election Rights Under Title IV and the Guarantees of Title I and V, 74
COLUM. L. REV. 1105 (1974) (collecting authority).
See generally
Wellington,
Labor and the Federal System, 26 U. CHI. L. REV. 542
(1959).

n30
See supra note 4.

n31
See LMRA § 19;
Scandia
Log Homes, 258 N.L.R.B. 716 (1981).

n32
See Detroit
Mailers Union No. 40 (Detroit Newspaper Publishers Ass'n), 192 N.L.R.B. 951
(1971); Note,
The National Labor Relations Board's Role in Examining the
Use of Union Dues Collected Pursuant to a Union Security Agreement, 67
MICH. L. REV. 152 (1968).

n33
Religious dissenters -- For a careful evaluation of the complex accommodation
problems associated with constitutional and state or federal statutory
challenges brought by religious dissenters, see Note,
Accommodating the
Anti-Union Religious Employee -- A Balanced Approach, 32 RUTGERS L. REV.
484, 491-519 (1979). For a discussion of political dissenters --
Compare
Abood
v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (constitutional challenge by
public employee)
and Machinists
v. Street, 367 U.S. 740 (1961) (constitutional challenge under the Railway
Labor Act)
with Reid
v. McDonnell Douglas Corp., 443 F.2d 408 (10th Cir. 1971) (constitutional
challenge under the LMRA),
and Federal
Election Comm'n v. NEA, 457 F. Supp. 1102 (D.D.C. 1978) (challenge under the
Federal Election Campaign Act),
and Reid
v. UAW Dist. 1093, 479 F.2d 517 (10th Cir.),
cert. denied,
414
U.S. 1076 (1973) (fair representation challenge under the LMRA). For the
most recent chapter of this conflict, see
Ellis
v. Railway Clerks, 111 L.R.R.M. 2173 (9th Cir. Sept. 3, 1982) (Railway Labor
Act);
Havas
v. CWA, 509 F. Supp. 144 (N.D.N.Y. 1981) (LMRA);
Beck
v. CWA, 468 F. Supp. 93 (D. Md. 1979) re-referenced to special master,
106
L.R.R.M. 2323 (D. Md. Jan. 19, 1981) (LMRA).
See also Rehmus &
Kern,
The Agency Shop after Abood: No Free Ride but What's the Fare,
324 INDUS. & LAB. REL. REV. 90 (1980); Note,
Union Security in the
Public Sector: Defining Political Expenditures Related to Collective Bargaining,
1980 WIS. L. REV. 134.

n34
Compare NLRB
v. Allis Chalmers Mfg. Co., 388 U.S. 175 (1967) (union discipline may raise
LMRA issues)
and Scofield
v. NLRB, 394 U.S. 423 (1969) (a union rule may violate LMRA if it invades or
frustrates an overriding policy of labor law)
with NLRB
v. Boeing Co., 412 U.S. 67 (1973) (reasonableness of fines to be decided by
law of contracts or voluntary associations, not by LMRA principles)
and
UE
Local 1012 (General Elec. Co.), 187 N.L.R.B. 375 (1970) (NLRB not authorized
to assess fairness of union's disciplinary procedures).

n35
See, e.g.,
Vaca
v. Sipes, 386 U.S. 171 (1967); NLRB
v. Local 396, Teamsters, 509 F.2d 1075 (9th Cir.),
cert. denied,
421
U.S. 976 (1975).

n36
See, e.g.,
Scovile
v. Watson, 338 F.2d 678 (7th Cir. 1964). See also Keene
v. Operating Engineers Local 624, 569 F.2d 1375 (5th Cir. 1978).

n37
See LMRDA Title IV;
Calhoon
v. Harvey, 379 U.S. 134 (1964).

n38
See General
Motors Corp., 211 N.L.R.B. 986 (1974), enforced 512
F.2d 447 (6th Cir. 1975) (distribution of union political campaign
literature);
Steelworkers
Local 5163, 248 N.L.R.B. 943 (1980) (discipline for engaging in internal
union political activity).
The NLRB's work touches the core of union internal democracy when, for example,
it resolves questions regarding permissible incentives available to a union to
encourage meeting attendance.
Compare Local
171, Pulp and Paper Workers (Boise Cascade Corp.), 165 N.L.R.B. 971 (1967)
(union fine for nonattendance unenforceable through the union security clause)
with
Norris
Indus., Thermador Div., 190 N.L.R.B. 479 (1971) (dues rebate for meeting
attendance lawful).

n39
Modjeska,
The Supreme Court and the Diversification of National Labor Policy,
12 U.C.D. L. REV. 37, 40 (1979).

n40
See Anderson,
A Comparative Analysis of Local Union Democracy,
17 INDUS. REL. 278 (1978); Strauss,
Union Government in the U.S.: Research
Past and Future, 16 INDUS. REL. 215, 216 (1977).

n41
See, e.g., Cox,
The Role of Law in Preserving Union Democracy,
72 HARV. L. REV. 609 (1959); Summers,
The Usefulness of Law in Achieving
Union Democracy, 48 AM. ECON. REV. 44 (1958).

n42
Lipset,
The Law and Trade Union Democracy, 47 VA. L. REV. 1 (1961).
See
also Magrath,
Democracy in Overalls: The Futile Quest for Union
Democracy, 12 INDUS. & LAB. REL. REV. 503 (1959); Seidman,
Democracy
and Trade Unionism: Some Requirements for Union Democracy 48 AM. ECON. REV.
35 (1958).

n43
Kochan, Labor Management Relations Research Priorities for the 1980's: Final
Report to the Secretary of Labor 2 (January, 1980) (unpublished report in the
library of the U.S. Dep't of Labor, Wash. D.C.).
See also Johnson,
Economic
Analysis of Trade Unionism, 65 AM. ECON. ASSOC. PROC. 23 (1975) (relative
interest in trade unions among economists declined steadily from the 1950's
until the 1970's).

n44
See Strauss,
supra note 40, at 239-40. Of course, which
decisionmakers are to answer these questions is itself a basic question.
See
St. Antoine,
Landrum-Griffin, 1965-1966: A Calculus of Democratic Values,
19 N.Y.U. ANN. CONF. ON LAB. 35, 37 (1966).

n45
As Bok and Dunlop have urged, rather than "asking whether the formal
procedures of union government satisfy some preconceived democratic norm,"
proper inquiry should focus on "whether these norms are well suited to all
the goals and interests that labor organizations serve." D. BOK & J.
DUNLOP, LABOR AND THE AMERICAN COMMUNITY 70-72, 90-91 (1970).
Accord
Barbash,
Power and the Pattern of Union Government, 9 LAB. L.J. 628,
631 (1958).

n46
P. JACOBS, THE STATE OF THE UNIONS at x (1963).

n47
B. TUCHMAN, A DISTANT MIRROR 94 (1978).
See also Barres,
The
Origins of Modern Labor Law, 22 AM. J. ECON. & SOC. 279, 279-80 nn.1-5
(1963).

n48
B. TUCHMAN,
supra note 47, at 120.

n49
Ordinance of Labourers, 1349, 23 Edw. III, chs. 1, 2, 5, & 7.

n50
Statute of Labourers, 25 Edw. III, ch. 1 (1351).

n51
For an excellent summary of this early English labor legislation and detailed
excerpts of commentary by leading English legal historians discussing the
legislation's development and significance, see 1 T. KHEEL, LABOR LAW, § 2.02
& nn.1-7 (1978).

n52
Barres,
supra note 47, at 280.

n53
B. TUCHMAN,
supra note 47, at 120.

n54
English criminal law in place by 1800 banned employee concerted action and
reflected the social attitude that "[t]o check the conditions of [employer]
success is to impoverish the state" by threatening free trade. Barres,
supra
note 47, at 284. By 1800 the industrial revolution had made England the center
of world trade, and worker combinations were viewed as threatening this
leadership position. Accordingly, new, especially harsh, legislation was enacted
to interdict combinations. The Combination Acts of 1800 (39 & 40 Geo. III,
ch. 106), in force until 1825, required "that workmen give evidence against
themselves
and also against their fellow workmen, . . . increased [the
prison sentence] to three months, . . . [and] made it illegal for workmen to
assist other workmen who desired to better their position as to wages,
conditions, and the quantity of work." Barres,
supra note 47, at
284 (emphasis in the original). The unpopularity of the Combination Acts,
combined with the unrelenting efforts of those believing industrial peace could
better be served without criminal sanction being invoked to prohibit peaceful
collective activity, resulted in the repeal of this legislation. In its place,
the English Parliament enacted legislation making criminal only combinations of
workers formed to effect certain unlawful ends or using certain coercive
methods.
See T. KHEEL,
supra note 51, at § 2.03.

n55
See Barres,
supra note 47, at 286.

n56
See H. PELLING, AMERICAN LABOR 9, 12-13 (1960); T. KHEEL,
supra
note 51, at § 2.04 nn.1-16.

n57
R. MORRIS, GOVERNMENT AND LABOR IN EARLY AMERICA 206 (1946).The exception
Professor Morris refers to is the master bakers strike of 1741, often considered
the "first recorded strike in American history." David Saposs has
pointed out, and as Henry Pelling has noted, "it was not really a strike of
labor against capital, but rather . . . of 'master merchants against regulation
of prices by public authorities.'" H. PELLING,
supra note 56, at
13.

n58
See, e.g., Commonwealth v. Pullis, Philadelphia Mayor's Court (1806), 3
J. COMMONS & E. GILMORE, A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL
SOCIETY 59 (1910). For a history of the events precipitating the Philadelphia
Cordwainers case, the political controversy of which it was a part, and the
reaction to it, see E. LIEBERMAN, UNIONS BEFORE THE BAR 3-15 (rev. ed. 1960);
Nelles,
The First American Labor Case, 41 YALE L.J. 165 (1931).

n59
This charge to the jury in the Philadelphia Cordwainers case is reported at J.
COMMONS & E. GILMORE,
supra note 58, at 233. It is debatable
whether the English common law banned as criminal the concerted activities of
workers, for English statutory law had regulated this conduct. The early common
law criminal conspiracy cases, thus, raised two interrelated legal issues: did
the English common law make employee combinations criminal, and, in any event,
was the English common law binding on American courts. In the second recorded
American labor case, the 1809 common law criminal conspiracy trial of the New
York Cordwainers, the arguments of counsel on a motion to quash the indictment
poignantly and fully state the contrasting points of view.
See W.
SAMPSON, TRIAL OF THE JOURNEYMEN CORDWAINERS OF THE CITY OF NEW YORK, 6-141 (New
York 1810).
See also Sayre,
Criminal Conspiracy, 35 HARV. L.
REV. 393 (1922).

n60
N. CHAMBERLAIN, LABOR 18 (1958).
See, e.g.,
Commonwealth
v. Hunt, 45 Mass. (4 Met.) 111 (1842).For a discussion of the development of
this doctrine, see M. TURNER, THE EARLY AMERICAN CONSPIRACY CASES, THEIR PLACE
IN LABOR LAW (1967); Wittie,
Early American Labor Cases, 35 YALE L.J.
825 (1926).

n61
Witte,
supra note 60, at 829.

n62
In the 1809 prosecution of the New York Journeymen Cordwainers, counsel for the
defendants argued that "master tradesmen are in permanent conspiracy
against the workermen" to "oppress," "impoverish" and
"monopolize the labour of the poorer class." W. SAMPSON,
supra
note 59, at 12, 139. Accordingly, workers must be permitted to combine and
strike peacefully to raise wages; a dissenting worker cannot be permitted
"to better himself at the expense of his fellows, when they are suffering
privation to obtain terms;" and private ordering of wages is preferable to
centralized wage determination by others, especially governmental officers who
"are not . . . qualified to judge the poor man's case."
Id.
at 64, 24, & 47.

n63
Id. at 46-47; 1 D. SAPOSS, H. SUMNER, E. MITTLELMAN, H. HOAGLAND, J.
ANDREWS, & S. PERLMAN, HISTORY OF LABOUR IN THE UNITED STATES 141 (J.
Commons ed. 1918) [hereinafter cited as J. COMMONS & ASSOCIATES]. For a
critical review of the literature and an empirical analysis describing American
social structure, tensions, and instability at the time of the American
revolution, see Wallenreuther,
Labor in the Era of the American Revolution:
A Discussion of Recent Concepts and Theories, 22 LAB. HIST. 573 (1981).

n64
With somewhat typical hyperbole, counsel for the New York Cordwainers, during
the 1809 criminal conspiracy trial, argued for the legitimacy of worker
combinations because "like the worm that spins its bowels, and perishes in
the act, so they whose hands impart to the tissue its lustre of its hue, to
flatter the voluptuous and the gay, pine themselves and decay in obscurity and
want." W. SAMPSON,
supra note 59, at 13. Albert Gallatin, an
entrepreneur and later Secretary of the Treasury, also argued, in 1797, that
"[t]he democratic principle on which this nation was founded should not be
restricted to the political process but should be applied to the industrial
operation as well."
See M. DERBER, THE AMERICAN IDEA OF INDUSTRIAL
DEMOCRACY, 1865-1965, at 6 (1970).
See also Summers,
Industrial
Democracy: America's Unfulfilled Promise, 28 CLEV. ST. L. REV. 29 (1979).

n65
W. SAMPSON,
supra note 59, at 34, 120.

n66
Id. at 26, 36.

n67
See Blumrosen,
Group Interests in Labor Law, 13 RUTGERS L.
REV. 432, 432-34 (1959).

n68
See N. CHAMBERLAIN,
supra note 60, at 18-20; H. WELLINGTON,
supra
note 4, at 9-13.

n69
N. CHAMBERLAIN,
supra note 60, at 18-19. Wellington has similarly noted
that "[t]he linkage between the nineteenth-century labor problem and those
today is in the underlying values appealed to by the courts . . . ." H.
WELLINGTON,
supra note 4, at 11.

n70
N. CHAMBERLAIN,
supra note 60, at 20.

n71
For an early application of Cowan's group interest theory to labor law see
Blumrosen,
supra note 67.

n72
W. LEISERSON, AMERICAN TRADE UNION DEMOCRACY 17 (1959).

n73
See W. MOORE, INDUSTRIAL RELATIONS AND THE SOCIAL ORDER 9 (rev. ed.
1951).

n74
W. LEISERSON,
supra note 72, at 21. For an entertaining but vivid
example of the informal code of conduct in operation, see John R. Commons's
description of his personal experience in a print shop as a college student and
how the group auctioned high paid work by requiring those performing it to
rebate a portion of the wage to all members of the group. J. COMMONS, MYSELF
(1934),
reprinted in Finkin,
supra note 4, at 187-88 n.17.

n75
Gardner,
The Factory as a Social System, INDUSTRY AND SOCIETY 7 (W.F.
Whyte ed. 1946)
quoted in W. LEISERSON,
supra note 72, at 26.

n76
W. LEISERSON,
supra note 72, at 21.
See also J. BARBASH,
AMERICAN UNIONS: STRUCTURE, GOVERNMENT AND POLITICS 137 (1967).

n77
W. LEISERSON,
supra note 72, at 36.

n78
F. DULLES, LABOR IN AMERICA 35 (2d rev. ed. 1960).

n79
Id. at 37.
See also 1 J. COMMONS & ASSOCIATES,
supra
note 63, at 331.

n80
F. DULLES,
supra note 78, at 38-52.

n81
1 J. COMMONS & ASSOCIATES,
supra note 63, at 332.
See also
W. LEISERSON,
supra note 72, at 34-35.

n82
By 1886, with the active support of the Knights of Labor, 135 cooperative
ventures had been undertaken in 39 industries.
See N. CHAMBERLAIN,
supra
note 60, at 35-40; F. DULLES,
supra note 78, at 39-42.
See
generally 1 J. COMMONS & ASSOCIATES,
supra note 63, at 235-60,
496-521; 2
id. at 430-48.

n83
Summers,
supra note 64, at 30.

n84
For conflicting theories accounting for the development of "business
unionism" see L. ULMAN, THE RISE OF THE NATIONAL TRADE UNION 569-604
(1955).

n85
W. LEISERSON,
supra note 72, at 35.

n86
L. ULMAN,
supra note 84, at 3-4.

n87
N. CHAMBERLAIN,
supra note 60, at 41.

n88
2 J. COMMONS AND ASSOCIATES,
supra note 63, at 520.

n89
Id. at 531-33.
See also F. DULLES,
supra note 78, at
162, 184-207.

n90
See N. CHAMBERLAIN,
supra note 60, at 40; F. DULLES,
supra
note 78, at 150; W. LEISERSON,
supra note 72, at 36, 46.

n91
Summers,
supra note 64, at 30.

n92
F. DULLES,
supra note 78, at 95-96.

n93
W. MOORE,
supra note 74, at 34-35.
See also J. RAYBACK, A
HISTORY OF AMERICAN LABOR 187 (2d ed. 1966).

n94
Summers,
supra note 64, at 30.

n95
See C. SMITH, TREATISE ON THE LAW OF MASTER AND SERVANT 53-57 (1852).
See
also Summers,
Individual Protection Against Unjust Dismissal: Time for
a Statute, 62 VA. L. REV. 481, 484-85 (1976); Comment,
The Employment
at Will Rule, 31 ALA. L. REV. 421, 422-23 & nn.14-15 (1980).

n96
See Blackburn,
Restricted Employer Discharge Rights: A Changing
Concept of Employment at Will, 17 AMER. BUS. L.J. 467, 467-68 n.1 (1980).

n97
See Note,
Implied Contract Rights to Job Security, 26 STAN. L.
REV. 335, 341 (1974).
See also Peacock
v. Virginia-Carolina Chem. Co., 221 Ala. 680, 130 So. 411 (1930).

n98
Comment,
supra note 95, at 424 & n.22.
Accord Summers,
supra
note 95, at 485.

n99
Blumrosen,
Employer Discipline: U.S. Report, 18 RUTGERS L. REV. 428,
432-33 (1964).

n100
Payne
v. Western & Atl. R.R., 81 Tenn. 507, 519-20 (1884). Accord Mallard
v. Boring, 182 Cal. App. 2d 390, 394, 6 Cal. Rptr. 171, 174 (1960).

n101
See Note,
Protecting at Will Employees Against Wrongful Discharge:
The Duty to Terminate Only in Good Faith, 93 HARV. L. REV. 1816, 1816-17
& nn.3-4 (1980).
In recent years this doctrine has been modified by state and federal statutes
that implicitly or explicitly guarantee employees protection from certain forms
of discrimination or retaliation for exercising certain statutory rights.
See
Summers,
supra note 95, at 491-99; Comment,
supra note 95, at
433-34.
In addition, some judicial opinions have ameliorated somewhat the harsh impact
of the doctrine by recognizing a new tort of abusive discharge.
See
Blackburn,
supra note 96, at 470-82; Comment,
supra note 95,
at 435-45 (collecting cases); Comment,
Kelsay v. Motorola, Inc. -- A Remedy
for the Abusively Discharged at Will Employee, 1979 So. ILL. U.L. REV. 563.
But see Summers,
supra note 95, at 489-90.
Most recently a few courts have begun to find an implied promise in the
employment contract that employment will be for a specific term or that
discharge will be only for cause.
See Blackburn,
supra note
96, at 482-92; Note,
supra, at 1820-21.
None of these efforts has protected adequately nonunion employees. Accordingly,
some commentators have called for general statutory protection against unjust
dismissal.
See, e.g.,
Address
by T. St. Antoine, National Academy of Arbitrators Annual Meeting (May 4, 1981)
107 LAB. REL. REP. 91 (1981) (BNA); Summers,
supra note 95, at
519-31. Others have advised that "employers need not be terrorized by the
possibility of wrongful discharge claims[because employers] continue to possess
many legal defenses protecting them from liability." Olsen,
Wrongful
Discharge Claims Raised by At Will Employees: A New Legal Concern For Employers,
32 LAB. L.J. 265, 284, 297 (1981).

n102
See Blades,
Employment at Will Vs. Individual Freedom: On Limiting
the Abusive Exercise of Employer Power, 67 COLUM. L. REV. 1404 (1967).

n103
The United States Supreme Court elevated this reasoning to a constitutional
principle in
Adair
v. United States, 208 U.S. 161 (1908) (statute prohibiting discharge of
common carrier employee for union membership unconstitutional) and in
Coppage
v. Kansas, 236 U.S. 1 (1915) (state statute prohibiting employer requirement
that employees agree not to join a union unconstitutional). In these cases the
Court reasoned that regulation of the employment relation disturbing the freedom
to contract for employment violates the constitutional right of property and
liberty of contract.
But compare NLRB
v. Jones & Laughlin Steel Corp. 301 U.S. 1 (1937).

n104
See T. COCHRAN & W. MILLER, THE AGE OF ENTERPRISE 136 (rev. ed.
1961); Blackburn,
supra note 96, at 467-68; Feinman,
The
Development of the Employment at Will Rule, 20 AM. J. LEGAL HIST. 118,
131-35 (1976).

n105
See, e.g.,
Plant
v. Woods, 176 Mass. 492, 57 N.E. 1011 (1900); Vegelahn
v. Guntner, 167 Mass. 92, 44 N.E. 1077 (1896).

n106
See C. SUMMERS & H. WELLINGTON, LABOR LAW 142-43, 153-54 (1968); F.
FRANKFURTER & N. GREENE, THE LABOR INJUNCTION, 25-26 (1930).
See
generally T. KHEEL,
supra note 51, at § 2.07 & nn.27-44
(discussion of this doctrine and the ambiguous, inconsistent, and unpredictable
decisions it has produced).

n107
See Bonnett,
The Origin of the Labor Injunction, 5 S. CAL. L.
REV. 105 (1931).

n108
See Nelles,
A Strike and Its Legal Consequences -- An Examination
of the Receivership Precedent for the Labor Injunction, 40 YALE L.J. 507
(1931).

n109
While lack of complete court records thwarts precise determination of the number
of labor injunctions issued, Professor Witte's exhaustive search verified that
up to 1931, state and federal courts had issued 1,845 labor injunctions. E.
WITTE, THE GOVERNMENT IN LABOR DISPUTES 84 (1932).

n110
15
U.S.C. § 1 (1976).

n111
Loewe
v. Lawlor (Danbury Hatters), 208 U.S. 274 (1908). Seven years later the
court upheld a treble damages verdict of $ 252,000 assessed against the union
and its members.
Lawlor
v. Loewe, 235 U.S. 522 (1915).

n112
254
U.S. 443 (1921).

n113
Clayton Act, ch. 323, § 6, 38 Stat. 730 (1914) (current version at
15
U.S.C. § 17 (1976)).

n114
15
U.S.C. § 52 (1976).

n115
Coronado
Coal Co. v. United Mine Workers, 268 U.S. 295 (1925).

n116
208
U.S. 161 (1908).

n117
Id.
at 175.

n118
Id.
at 179.

n119
236
U.S. 1 (1915).

n120
Id.
at 16-17.

n121
Id.
at 17-18.

n122
Blumrosen,
supra note 67, at 437-38. For an excellent historical
discussion of labor's conflict with law during the 1920's, see I. BERNSTEIN, THE
LEAN YEARS 190-243 (1960). See
id. at 532-35 nn.1-17 for a bibliography
of contemporary literature discussing the legal issues that arose.

n123
Pub. L. No. 72-65, 47 Stat. 70 (1932) (codified at
29
U.S.C. §§ 101-115 (1976)).

n124
312
U.S. 219 (1941).

n125
Pub. L. No. 74-198, 49 Stat. 449 (1935) (codified as amended at
29
U.S.C. §§ 151-169 (1976)) [hereinafter cited by section number and either
NLRA or Wagner Act].

n126
310
U.S. 88 (1940).

n127
Apex
Hosiery Co. v. Leader, 310 U.S. 469 (1940). But see Allen
Bradley Co. v. Local 3, I.B.E.W., 325 U.S. 797 (1945).

n128
N. CHAMBERLAIN,
supra note 60, at 24-25.

n129
Id. at 25.

n130
See J. ROSENFARB, THE NATIONAL LABOR POLICY 23-24 (1940); C. SUMMERS
& H. WELLINGTON,
supra note 106, at 99; Summers,
American
Legislation for Union Democracy, 25 MOD. L. Rev. 273, 275 & n.10 (1962)
(collecting commentary).

n131
FINAL REPORT OF THE INDUS. COMM'N OF 1898, H. R. Doc. No. 380, 57th Cong., 1st
Sess. 805 (1902).

n132
FINAL REPORT OF THE UNITED STATE COMM'N ON INDUS. RELATIONS, S. Doc. No. 415,
64th Cong., 1st Sess. 62 (1916).

n133
Testimony of Louis D. Brandeis before the Comm'n on Indus. Relations,
Jan. 23, 1915,
id. at 81-84.

n134
Id.

n135
Id. at 62.
See also 2 J. COMMONS & ASSOCIATES,
supra
note 63, at 502. For a discussion of Commons's view of the democratic function
of collective bargaining and an excellent history of the development of
industrial democracy during the early twentieth century, see Derber,
The
Idea of Industrial Democracy in America: 1898-1915, 7 LAB. HIST. 259
(1966).

n136
I. BERNSTEIN,
supra note 122, at 145-46.

n137
Id. at 146-89.
See Derber,
The Idea of Industrial
Democracy in America: 1915-1935, 8 LAB. HIST. 3 (1967) (discussion of the
struggle between "welfare capitalism" and labor unionism).

n138
See I. BERNSTEIN,
supra note 122, at 173, 186-89.

n139
Id. at 186.

n140
Pub. L. No. 73-67, 48 Stat. 195 (1933). For a discussion of government attempts
to regulate labor-management relations during World War I and in the railroad
industry, see C. SUMMERS & H. WELLINGTON,
supra note 106, at 16-17.

n141
I. BERNSTEIN, TURBULENT YEARS 39 (1971).

n142
Id. at 184-85; Derber,
supra note 137, at 9.

n143
I. BERNSTEIN,
supra note 141, at 333; Summers,
supra note 64,
at 33.

n144
See J. ROSENFARB,
supra note 130, at 21-35; H. WELLINGTON,
supra
note 4, at 26-28, 40-42.
See also F. DULLES,
supra note 78, at
287.

n145
See supra notes 62-66 and accompanying text.

n146
See I. BERNSTEIN,
supra note 141, at 331-32; J. ROSENFARB,
supra
note 130, at 33-35; H; WELLINGTON,
supra note 4, at 27, 340 n.36

n147
75 Cong. Rec. 4918 (1932).

n148
79 Cong. Rec. 7571 (1935).

n149
I. BERNSTEIN,
supra note 141, at 333. Wagner's vision of industrial
democracy is ambiguous regarding whether it is contemplated to be participatory
or representational.
Compare quote supra at text accompanying note 147
with
quote
supra at text accompanying note 148.
See also Klare,
supra
note 21, at 285 n.61, 289 & n.77. This issue is fundamental to a
determination of an appropriate model of union democracy.
See infra
text accompanying notes 458-63

n150
See supra text accompanying notes 136-39. The Supreme Court, in
American
Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184 (1921), had
recognized explicitly that unions "were organized out of the necessities of
the situation. A single employee was helpless in dealing with an employer."
Id.
at 209.

n151
I. BERNSTEIN,
supra note 141, at 331.
See supra text
accompanying notes 95-104.

n152
Wagner Act, § 1.

n153
J.I.
Case Co. v. NLRB, 321 U.S. 332, 338 (1944). Accord Barrentine
v. Arkansas-Best Freight Sys., 450 U.S. 728 (1981)

n154
Wagner Act, § 1.

n155
301
U.S. 1, 42 (1937).

n156
I. BERNSTEIN,
supra note 141, at 332. American communists recognized
this goal of the Wagner Act. They saw it as a cynical conspiracy of the
capitalist-New Dealer nexus inevitably serving the interests of employers at the
expense of a militant working class. For this reason, they joined conservative
business interests in opposing the Wagner bill. Many noncommunist leftists also
opposed it, arguing that it threatened to lull militant labor organizations into
a false sense of security and reliance on government, and because it would be
accompanied inevitably by other government actions detrimental to the union
movement.
See C. DANIEL, THE ACLU AND THE WAGNER ACT: AN INQUIRY INTO
THE DEPRESSION-ERA CRISIS OF AMERICAN LIBERALISM (1980).
See also 1.
Bernstein,
supra note 141, at 820 n.4.
During the last several years, that debate has been renewed by members of a new
school of labor jurisprudence who have begun to develop a "critical"
theory of labor law.
See infra note 492

n157
I. BERNSTEIN,
supra note 141, at 769, 787-88. Between 1935 and 1945,
the NLRB conducted 24,000 representation elections involving six million
workers. In all but 16.1% of the elections, employees chose union
representation. F. DULLES,
supra note 78, at 280.

n158
Between 1935 and 1945, the NLRB disestablished approximately 2,000 company
unions. F. DULLES,
supra note 78, at 280.
See also Derber,
supra
note 137, at 4.

n159
I. BERNSTEIN,
supra note 141, at 770, 772-74.

n160
F. DULLES,
supra note 78, at 312.
See generally I. BERNSTEIN,
supra
note 141, at 776-83.

n161
F. DULLES,
supra note 78, at 276-79.

n162
I. BERNSTEIN,
supra note 141, at 515, 639, 646.

n163
NLRB
v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

n164
Between 1935 and 1945 in cases involving employer discrimination, the NLRB
ordered three hundred thousand employees reinstated with back pay totalling nine
million dollars. F. DULLES,
supra note 78, at 280.

n165
I. BERNSTEIN,
supra note 141, at 663-64, 666-71.

n166
Traft,
supra note 20, at 352.

n167
During 1946, a pattern of strikes seriously disrupted the national economy.
During late November, 1945, a total of 500,000 workers were on strike and by
January, 1946 almost two million workers were simultaneously on strike. During
the 12 months following V-J day the nation experienced 4,630 work stoppages and
over 5 million workers had struck, causing a total of 120 million worker-days of
lost production. F. Dulles,
supra note 78, at 358-67

n168
Taft-Hartley Act, §§ 7, 8(b)(1)(A).

n169
Taft-Hartley Act, §§ 9(b)(1) & (2), 9(c)(5).
See also Emporium
Capwell Co. v. Western Addition Community Org., 420 U.S. 50, 64 (1975)
(shaping appropriate bargaining units combines employees with a sufficient
commonality of interest "to ensure against the submergence of a minority
with distinctively different interests in the terms and conditions of their
employment.").

n170
Taft-Hartley Act, §§ 8(a)(3), 8(b)(2), 14(b).

n171
Taft-Hartley Act, § 9(e)(1). The requirement of union shop authorization
elections was repealed October 22, 1951, for in 97.1% of the 46, 146 union
authorization elections held, the union shop was approved. 85.7% of the over 5.5
million workers who cast ballots voted such approval.Taft,
supra note
20, at 354-55.

n172.
Taft-Hartley Act, § 9(c)(1)(A)(ii).

n173
Taft-Hartley Act, § 8(b)(5).

n174
Taft-Hartley Act, §§ 9(f), 9(g).
See Taft,
supra note 20, at
355-59.

n175
Taft-Hartley Act, § 304.

n176
Taft-Hartley Act, § 301(a).

n177
Taft-Hartley Act, § 9(h).
See Taft,
supra note 20, at 357-58.

n178
H.R. REP. NO. 245, 80th COng., 1st Sess. 77 (1947) (minority report);
see
Finkin,
supra note 4, at 202.

n179
FINAL REPORT OF THE COMM'N ON INDUS. REL., S. DOC. NO. 415, 64th Cong., 1st
Sess. 212 (1916).
See C. SUMMERS & H. WELLINGTON,
supra
note 106, at 19.

n180
Aaron,
Amending the Taft-Hartley Act: A Decade of Frustration, 11
INDUS. & LAB. REL. REV. 327 (1958); Pomper,
Labor Legislation: The
Revision of Taft-Hartley in 1953-54, 6 LAB. HIST. 143 (1965).

n181
H. WELLINGTON,
supra note 4, at 198.

n182
105 CONG. REC. 6471-72 (1959).

n183
See S. REP. NO. 187, 86th Cong., 1st Sess. 6-7 (1959).

n184
Id. at 7-8.
Accord H.R. Rep. No. 741, 86th Cong., 1st Sess.
7-8 (1959).

n185
See 105 CONG. REC. 6471-72 (1959).

n186
D. BOK & J. DUNLOP,
supra note 45, at 70; W. MOORE,
supra
note 74, at 311-12; H. ROTH, LABOR: AMERICA'S TWO-FACED MOVEMENT 1, 5 (1975);
Hays,
The Union and Its Members, 11 N.Y.U.ANN. CONF. ON LAB. 35, 39-40
(1958); Reuther,
The United Automobile Workers: Past, Present, and Future,
50 VA. L. Rev. 58, 68 (1964).

n187
See D. BOK & J. DUNLOP,
supra note 45, at 13-14, 19
(summarizing poll data up to 1966);
Labor Outlook, OPINION OUTLOOK,
February 23, 1981, at 3-4 (summarizing poll data up to 1976).

n188
T. Kochan, Contemporary Views of American Workers Toward Trade Unions 4-5, 8
(Sept. 1978) (unpublished report in the library of the U.S. Dep't of Labor,
Wash., D.C.).

n189
See D. BOK & J. DUNLOP,
supra note 45, at 28-29.
But
see Lipset,
Trade Unions and Social Structure: II, 1 INDUS. REL.
89, 100 & nn.30-31 (1962) (militant unionism increases productivity by
forcing employers to develop cost-saving equipment and production methods).

n190
Lipset,
supra note 42, at 8 & n.12 (1961); Lipset,
Trade Unions
and Social Structure: I, 1 INDUS. REL. 75, 84 & n.21 (1961) (collecting
authority).

n191
See M. FRIEDMAN, CAPITALISM AND FREEDOM 124 (1962); Johnson,
supra
note 43.
See also, A. REES, THE ECONOMICS OF TRADE UNIONS 98-99 (1962).

n192
See Hyclak,
Unions and Income Inequality: Some Cross-State Evidence,
19 INDUS. REL. 212 (1980); Hyclak,
The Effect of Unions on Earnings
Inequality in Local Labor Markets, 33 INDUS. & LAB. REL. REV. 77
(1979); Kahn,
Union Strength and Wage Inflation, 18 INDUS. REL. 144
(1979).
Compare Kahn,
Unionism and Relative Wages: Direct and
Indirect Effects, 32 INDUS. & LAB. REL. REV. 520 (1979)
with
Duncan & Stafford,
Do Union Members Receive Compensating Wage
Differentials?, 70 AM. ECON. REV. 355 (1980).

n193
See Perlman,
Labor Movement Theories: Past, Present, and Future,
13 INDUS. & LAB. REL. REV. 338, 347-48 (1960).

n194
D. BOK & J. DUNLOP,
supra note 45, at 464.
Accord B.
Heshizer, Employee Benefits, Trade Unions, and the Union Impact on Employee
Benefits in Manufacturing (1978) (unpublished report prepared for the U.S. Dep't
of Labor).

n195
Barbash,
Union Response to the "Hard Line", 1 INDUS. REL. 25,
27 (1962).

n196
Reder,
Job Scarcity and the Nature of Union Power, 13 INDUS. & LAB.
REL. REV. 349, 353 (1960).
See also Barbash,
supra note 195,
at 29 & n.5; Cox,
supra note 41, at 609-10. For a discussion of
John R. Common's view of the present job as a property interest, see Perlman,
supra
note 193, at 341-42.
But cf. Steelworkers
Local 1330 v. United States Steel Corp., 492 F. Supp. 1 (N.D. Ohio),
aff'd
in part, vacated and remanded in part,
631
F.2d 1264 (6th Cir. 1980).

n197
Almost all collective bargaining agreements contain grievance-arbitration
provisions to resolve contract disputes.
See 2 COLLECTIVE BARGAINING:
NEGOTIATIONS AND CONTRACTS (BNA) §§ 51:1, 51:5 (1982). Implicitly or
explicitly, the vast majority of collective bargaining agreements limit the
employer's power to discharge.
Id. at § 40:1.
See Summers,
supra
note 95, at 499 & n.104.

n198
Cox,
supra note 43, at 610.

n199
See K. FRIEDEN, WORKPLACE DEMOCRACY AND PRODUCTIVITY 19, 33-36, 40-41,
73 (National Center for Economic Alternatives 1980).

n200
Id. at 43-45 & nn. 12-23.
See address by Thomas R.
Donahue, secretary-treasurer of the AFL-CIO, University of Massachusetts' Labor
Relations Research Center (Jan. 1982) reported at
109
LAB. REL. REP. 94, 95 (1982) (BNA) (quality of work programs often becomes a
"carefully orchestrated organizational and communications link with the
employees that can bypass or attempt to supplant the union.").
See
generally D. BOK & J. DUNLOP,
supra note 45, at 354-60.

n201
Responding to their cooperative heritage, unions also provide members
noncollectively bargained benefits in the form of union sponsored services.
"A few labor organizations have provided low-cost housing for members and
their families; others offer credit unions, recreation facilities, free legal
services, family counseling, or old-age homes. Many provide trained community
counselors who advise members on their eligibility and rights under social
legislation . . . . " D. BOK & J. DUNLOP,
supra note 45, at
82.
See also W. MOORE,
supra note 74, at 313 (cooperative
buying, banking, credit unions, cooperative housing).

n202
W. LEISERSON,
supra note 72, at 53.

n203
Tyler,
The Role of Trade Unions in a Democratic Society, 14 N.Y.U. ANN.
CONF. ON LAB. 277, 282 (1961).
Accord S. GOMPERS, LABOR AND COMMON
WELFARE 5-6 (19

n204
See N. CHAMBERLAIN,
supra note 60, at 75.

n205
I. BERNSTEIN,
supra note 141, at 446.

n206
J. GOLDSTEIN, THE GOVERNMENT OF BRITISH TRADE UNIONS 32 (1952),
quoted in
Magrath,
supra note 42, at 509.

n207
L. SAYLES & G. STRAUSS, THE LOCAL UNIONS 7 (1967); W. MOORE,
supra
note 74, at 312; Kasper,
The Size of the Bargaining Unit and the Locus of
Union Power, 6 Q. REV. ECON. & BUS. 59, 59 (1966); Summers,
supra
note 130, at 275.
See also discussion at
supra note 149.

n208
D. BOK & J. DUNLOP,
supra note 45, at 25.

n209
Id. at 362.

n210
V. ALLEN, POWER IN TRADE UNIONS 15 (1954),
quoted in Magrath,
supra
note 42, at 515.

n211
Hays,
supra note 186, at 40-41.

n212
Magrath,
supra note 42 at 506, 514.
But see P. TAFT, THE
STRUCTURE AND GOVERNMENT OF LABOR UNIONS 35 (1954).

n213
See Walker & Lawler,
Dual Unions and Political Processes in
Organizations, 18 INDUS. REL. 32, 32 (1979).
See also Strauss,
supra
note 40, at 217-19.

n214
Kochan,
supra note 188, at 23-27, 33-34. For a summary of these
findings, see Kochan,
How American Workers View Their Union, 102
MONTHLY LAB. REV. 23, 29 (1979).

n215
See Ross,
Labor Organizations and the Labor Movement In Advanced
Industrial Society, 50 VA. L. REV. 1359, 1366 (1964).

n216
Kochan,
supra note 188, at 25.

n217
Id. at 28.

n218
397
U.S. 99 (1970).

n219
Id.
at 103-04. Accord First
Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 678 (1981) (collective bargaining,
"is premised on the belief that collective decisions backed by the parties'
economic weapons will result in decisions that are better for both managemnt and
labor and for society as a whole.").

n220
H. WELLINGTON,
supra note 4, at 28-29; Wellington,
Union Democracy
and Fair Representation: Federal Responsibility in a Federal System, 67
YALE L.J. 1327, 1355-56 n.146, 1358 & n.159 (1958).

n221
Summers,
Internal Relations Between Trade Unions and Their Members, 91
INTL. LAB. REV. 175, 177 (1965).

n222
D. BOK & J. DUNLOP,
supra note 45, at 464.

n223
Gomberg,
Government Participation in Union Regulation and Collective
Bargaining, 13 LAB. L.J. 941, 941 (1962).

n224
Hays,
supra note 186, at 44.

n225
S. LIPSET, M. TROW, & J. COLEMAN, UNION DEMOCRACY 411-12 (1956) [hereinafter
cited as S. LIPSET].
See also Reder,
supra note 196, at 361.

n226
W. LEISERSON,
supra note 72, at 315.

n227
W. MOORE,
supra note 74, at 315.

n228
D. BOK & J. DUNLOP,
supra note 45, at 82; Barbash,
supra
note 195, at 31.

n229
For an excellent short review of labor's increasingly important role in
Presidential election campaigns, see Galenson & Smith,
United States,
in LABOR IN THE TWENTIETH CENTURY 50-57 (J. Dunlop & W. Galenson ed. 1978).

n230
For a summary of these and other methods of union political action and
education, see D. BOK & J. DUNLOP,
supra note 45, at 384-427, 465;
N. CHAMBERLAIN,
supra note 60, at 117-25.

n231
See, e.g., Reuther,
supra note 186, at 78.

n232
Barbash,
supra note 195, at 31.
See also N. CHAMBERLAIN,
supra
note 60, at 74-75; Moore,
Notes for a General Theory of Labor Organization,
13 Indus. & Lab. Rel. Rev. 387, 395 (1960). For a thoughtful discussion of
the proposition that unions are drawn inexorably to an economy-wide role of
helping sever the connections between the inflation dynamic and such things as
crises in energy and the environment, full or high employment, and high levels
of consumer spending brought on by an affluent society, see Barbash,
Labor
Movement Theory and the Institutional Setting, 104 MONTHLY LAB. REV. 34
(1981).

n233
United
States v. CIO, 335 U.S. 106, 144 (1948) (concurring opinion).

n234
Lipset,
supra note 42, at 15;
see Galenson,
Communists and
Trade Union Democracy, 13 INDUS. REL. 228, 232 (1974).

n235
Tyler,
supra note 203, at 287.

n236
Munson,
supra note 22, at 501.

n237
Blumrosen,
supra note 67, at 432.

N238
See Roth,
supra note 186.

n239
D. BELL, THE END OF IDEOLOGY 208-21 (1960); Reuther,
supra note 186, at
78.

n240
Kemble,
Rediscovering American Labor, COMMENTARY, April 1971, at 45,
49.

n241
Conway,
New Challenges to Union Leadership, 92 MONTHLY LAB. REV. 56, 56
(1969).

n242
See D. BOK & J. DUNLOP,
supra note 45, at 24.

n243
Labor Outlook, supra note 187, at 3, table 2.

n244
See, e.g.,
Election
Comm'n v. NEA, 457 F. Supp. 1102 (D.D.C. 1978).

n245
James implicitly recognizes this. He concludes that three conceptions of unions'
societal functions persistently compete within the literature of union
democracy: bargaining militancy, responsible behavior compatible with the
prevailing economic order, and responsiveness to membership desires and
interests. James,
Union Democracy and the LMRDA: Autocracy and Insurgency in
National Union Elections, 13 HARV. C.R.-C.L. L. REV. 247, 250 (1978).
Accord
J. SEIDMAN, DEMOCRACY IN THE LABOR MOVEMENT 10 (2d ed. 1969).

n246
See R. Michels, POLITICAL PARTIES (1915), (reprinted 1958); Lipset,
The
Political Process in Trade Unions: A Theoretical Statement, LABOR AND TRADE
UNIONISM 239-41 (W. Galenson & S. Lipset eds. 1960).
See also
James,
supra note 214, at 255-62; Marcus,
Union Conventions and
Executive Boards: A Formal Analysis of Organizational Structure, 31 AM.
SOC. REV. 61, 61-62 (1966).

n247
For an excellent discussion of the nature of oligarchy distinguishing several
forms of oligarchical power structures, see J. EDELSTEIN & M. WARNER,
COMPARATIVE UNION DEMOCRACY 28-53 (1975) [hereinafter cited as UNION DEMOCRACY].

n248
S.LIPSET,
supra note 225, at 5.

n249
D. BOK & J. DUNLOP,
supra note 45, at 54-55; UNION DEMOCRACY,
supra
note 247, at 15.

n250
UNION DEMOCRACY,
supra note 247, at 12-15. Taft argues that given the
skills required and responsibilities assumed, the high salaries usually paid
national union officers are not excessive. P. TAFT,
supra note 212, at
105-06.
But see Remarks of James Matles to the delegates at the 29th
and 31st conventions of the United Electrical Radio & Machine Workers Union
(1964 and 1966),
reprinted in, United Electrical, Radio & Machine
Workers of America, UE Pub. No. 520 M-4-70 What Should Union Officers Be Paid?
(n.d.) (National union officers' pay should not exceed that of the most skilled
members). For national union officer salary statistics, see P. TAFT,
supra
note 212, at 103-12 (1950 statistics); J. BARBASH,
supra note 76, at 86
(1962 statistics); UNION DEMOCRACY,
supra note 247, at 13-15 (1962 and
1973 statistics); Sandver,
Officer Turnover in National Unions: A Time
Series Analysis, BULL. BUS. RESEARCH 6-7 (Jan. 1978) (1962, 1967 and 1973
statistics).

n251
W. LEISERSON,
supra note 72, at 247.
See generally id. at
245-51.

n252
See H. WELLINGTON,
supra note 4, at 161; Lester,
The
Changing Nature of the Union, 13 N.Y.U. ANN. CONF. ON LAB. 19, 23 (1960);
Lipset,
supra note 42, at 12.

n253
For an excellent summary of the literature and detailed statistical analysis,
see England, Agarwal & Trerise,
Union Leaders and Managers: A Comparison
of Value Systems, 10 INDUS. REL. 211 (1971).
See also W. VAN TINE,
THE MAKING OF A LABOR BUREAUCRAT (1973).

n254
England, Agarwal, & Trerise,
supra note 253, at 226; Magrath,
supra
note 42, at 508; Strauss,
Union Financial Data, 14 INDUS. REL. 131
(1975).
See also Barbash,
supra note 232, at 37 ("[T]rade
unionism sinks its roots in the nooks and crannies of the society and becomes a
powerful institution . . . with interests that are, at various points and at
various times, distinguishable from the interests of its individual
constituents.").

n255
See H. WELLINGTON,
supra note 4, at 161; Lipset,
supra
note 42, at 12; Magrath,
supra note 42,a t 511, 524.

n256
N. CHAMBERLAIN,
supra note 60, at 70 (emphasis in the original);
see
D.BOK & J. DUNLOP,
supra note 45, at 174; W. LEISERSON,
supra
note 72, at 246.

n257
H. WELLINGTON,
supra note 4, at 161; Seidman,
supra note 42,
at 40. For a description of how this process deprives members of able opposition
leadership, see P. CLARK, THE MINERS' FIGHT FOR DEMOCRACY 115 (1981).

n258
Seidman,
supra note 42, at 39-40.

n259
See W. LEISERSON,
supra note 72, at 238; Lester,
supra
note 252, at 23; Moore,
supra note 232, at 392 n.8.

n260
See Lipset,
supra note 42, at 11; Magrath,
supra note
42, at 508.

n261
Livernash,
New Developments in Bargaining Structure, TRADE UNION
GOVERNMENT AND COLLECTIVE BARGAINING 242 (Seidman ed. 1970).
See J.
BARBASH,
supra note 76, at 10-22. Even in the construction industry,
collective bargaining structure has shifted dramatically in the last decade from
decentralized local bargaining to wide-area bargaining that limits local
autonomy and relocates effective power to higher union governing units. Hartman
& Franke,
The Changing Bargaining Structure in Construction: Wide-Area
and Multicraft Bargaining, 33 INDUS. & LAB. REL. REV. 170 (1980).

n262
Barbash,
supra note 9, at 47, 52-54; Lester,
supra note 252,
at 23; Kasper,
supra note 207, at 61-63.

n263
H.ROTH,
supra note 186, at 15; H. WELLINGTON,
supra note 4, at
160; Lipset,
supra note 42, at 45; Magrath,
supra note 42, at
514, 524; Segal,
Some Efforts at Democratic Union Participation, 48
AMER. ECON. REV. 53, 62 (1958).

n264
D. BOK & J. DUNLOP,
supra note 45, at 148, 151; W. LEISERSON,
supra
note 72, at 99, 238; Barbash,
supra note 45, at 149.

n265
D. BOK & J. DUNLOP,
supra note 45, at 149.

n266
Id. at 160-88, 470; Kochan,
supra note 188, at 32-33
(behavioral science specialists); Troy,
American Unions and Their Wealth,
14 INDUS. REL. 134, 138 (1975) (financial management); Dunlop,
What's Ahead
in Union Government, TRADE UNION GOVERNMENT AND COLLECTIVE BARGAINING
198-202 (Seidman ed. 1970) (information system and personnel specialists). For a
recent survey concluding the trend is to increase the number of national union
staff specialists, see Gray,
Unions Implementing Managerial Techniques,
104 MONTHLY LAB. REV. 3, 6 (1981).

n267
Magrath,
supra note 42, at 508; Moore,
supra note 232, at
392-93; Strauss,
supra note 254, at 133.

n268
See D. BOK & J. DUNLOP,
supra note 45, at 85; Magrath,
supra
note 42, at 508.

n269
H. WELLINGTON,
supra note 4, at 161.
See Magrath,
supra
note 42, at 511.

n270
James,
supra note 245, at 328 n.272; Magrath,
supra note 42,
at 507-08.

n271
D. BOK & J. DUNLOP,
supra note 45, at 181-86; Blaine & Zeller,
Union
Attitudes Toward University Participation in Labor Education: An Examination and
Assessment, 16 LAB. L.J. 237, 241 & n.12 (1965); Manson,
Internal
Union Affairs and the Need for Training Leaders, 11 N.Y.U. ANN. CONF. ON
LAB. 1, 3-4 & n.10 (1958); Segal,
supra note 263, at 59-60. This
trend recently has begun to change.
See Gray,
supra note 266,
at 5-12.

n272
W. LEISERSON,
supra note 72, at 60-65, 105, 237; Seidman,
supra
note 42, at 40-41; Note,
supra note 19, at 394-96.
See generally
UNITED STATES BUREAU OF LABOR STATISTICS, DEP'T OF LABOR, BULL. NO. 1350,
DISCIPLINARY POWERS AND PROCEDURES IN UNION CONSTITUTIONS (1963).

n273
See infra discussion at text accompanying notes 310-18.

n274
See J. BARBASH,
supra note 76, at 135; D. BOK & J. DUNLOP,
supra note 45, at 65; UNION DEMOCRACY,
supra note 247, at
109-10; W. LEISERSON,
supra note 72, at 60-61; Seidman,
supra
note 42, at 41 & n.10; Summers,
supra note 130, at 274.

n275
J. BARBASH,
supra note 76, at 135; UNION DEMOCRACY,
supra note
247, at 109; W. LEISERSON,
supra note 72, at 65, 106, 110-13, 260; H.
WELLINGTON,
supra note 4, at 192-93 & n.16; McConnell,
Factionalism
and Union Democracy, 9 LAB. L.J. 635, 636 (1958); Note,
supra note
19, at 395 & n.116, 420-23; Note,
Facial Adjudication of Disciplinary
Provisions in Union Constitutions, 91 YALE L.J. 144, 148-49 (1981)
(summarizing a recent survey of union constitutions containing vague
prohibitions and cases adjudicating union discipline arising under such
provisions).
But see UNION DEMOCRACY,
supra note 247, at 128
(catchall prohibitions in union constitutions not highly correlated to absence
of electoral opposition).

n276
A few unions do provide outside "public review."
See Klein,
UAW
Public Review Board Report, 18 RUTGERS L. REV. 304 (1964); authorities
cited
id.. at 312 n.23, 337 n.78; Note,
Public Review Boards: A
Check on Union Disciplinary Power, 11 STAN. L. REV. 497 (1959). For a more
recent evaluation of the UAW Public Review Board, see Nader,
Disputing
Without Force of Law, 88 YALE L.J. 998, 1004 n.29 (1979).

n277
See W. LEISERSON,
supra note 72, at 253-59; Seidman,
supra
note 42, at 40; Note,
supra note 19, at 396.

n278
P. TAFT,
supra note 212, at 127, 180; Ross & Taft,
The Effect
of the LMRDA Upon Union Constitutions,, 43 N.Y.U.L. REV. 305, 316-22, 332
(1968); Summers,
supra note 130, at 274; Note,
supra note 19,
at 394-96.

n279
Seidman,
supra note 42, at 40.

n280
For a discussion of the variations in the composition of national union
executive boards, see W. LEISERSON,
supra note 72, at 222, 224-26; L.
ULMAN,
supra note 84, at 270-301; Marcus,
supra note 246, at
68.

n281
See W. LEISERSON,
supra note 72, at 222-24; Gamm,
The
Election Base of National Union Executive Boards,32 INDUS.REL. 295, 296-98
(1979); Seidman & Melcher,
The General Executive Board in National Union
Constitutions, 13 LAB. L.J. 71, 71-72 (1962).

n282
See generally J. BARBASH,
supra note 76, at 84-85; W.
LEISERSON,
supra note 72, at 227-28, 235, 236; Marcus,
supra
note 246, at 67-70.

n283
Seidman & Melcher,
supra note 281, at 78-79.

n284
Id. at 80. This 1962 study included 93 national unions reporting a
total membership of more than 17 million.
Id.

n285
Gamm,
supra note 281, at 300. This 1979 study included 81 national
unions reporting a total membership of more than 20 million.
Id. at
301.

n286
Seidman & Melcher found that 67 of the 93 unions studied (reporting over 11
million members) elected board members at large. Seidman & Melcher,
supra
note 281, at 73-74. Gamm, similarly, found that 55 of the 81 unions studied
(reporting over 12 million members) elected board members at large. Gamm,
supra
note 281, at 301.
Accord UNION DEMOCRACY,
supra note 247, at
107.

n287
Gamm,
supra note 281, at 295.

n288
Id. at 295-96.

n289
Id.1 at 300-06; Seidman & Melcher,
supra note 281, at
74-75. The adverse effect of at-large executive board elections is compounded by
the normal union convention practice that the presidential election is usually
followed immediately by the election of other national officers. An executive
board member unsuccessfully challenging a union president would then be required
to seek immediate reelection by the convention delegates having just rejected
his or her presidential candidacy. Edelstein and Warner conclude:
"Opposition of this type would not be taken lightly, and . . . the
circulation of 'slates' of administration candidates would make any
representation for an opposition unlikely in an election by the convention as a
whole . . . ." UNION DEMOCRACY,
supra note 247, at 107.

n290
See Gamm,
supra note 281, at 301-02 (26 of 81 unions studied
reporting a membership of almost eight million); Seidman & Melcher,
supra
note 281, at 73-74 (25 o 93 unions studied reporting a membership of six
million).

n291
UNION DEMOCRACY,
supra note 247, at 319.
See id. at 93, 328,
333.
See also Marcus,
supra note 246, at 67-70.

n292
For a discussion of the development of the convention as a substitute for direct
government by the members, see J. BARBASH,
supra note 76, at 74-76; L.
ULMAN,
supra note 84, at 243-70.

n293
N. CHAMBERLAIN,
supra note 60, at 62-63; W. LEISERSON,
supra
note 72, at 103-04. For a discussion of several methods of proportional
representation of the membership by convention delegates, see
id. at
128, 130-32; Segal,
supra note 263, at 59.

n294
Very few union constitutions provide for amendment by direct vote of the
membership. J. BARBASH,
supra note 76, at 72, 78; W. LEISERSON,
supra
note 72, at 103. Normally a majority vote of the convention delegates is
sufficient to amend.
Id. at 105, 203.

n295
See J. BARBASH,
supra note 76, at 76-77; W. LEISERSON,
supra
note 72, at 105, 122-23; UNION DEMOCRACY,
supra note 247, at 102-03.

n296
See J. BARBASH,
supra note 76, at 77; UNION DEMOCRACY,
supra
note 247, at 103.

n297
Marcus,
supra note 246, at 65.

n298
W. LEISERSON,
supra note 72, at 126.

n299
See UNION DEMOCRACY,
supra note 247, at 105-06; Edelstein
& Ruppel,
Convention Frequency and Oligarchic Degeneration in British
and American Unions, 15 AD. SCI. Q. 47, 48 (1970); Marcus,
supra
note 246, at 65.

n300
See J. BARBASH,
supra note 76, at 77; UNION DEMOCRACY,
supra
note 247, at 105; H. ROTH,
supra note 186, at 97-98; Edelstein &
Ruppel,
supra note 299, at 49; Marcus,
supra note 246, at
65-66; Snowbarger & Pintz,
Landrum-Griffin and Union President Turnover,
9 INDUS. REL. 475, 475-76 (1970).

n301
See N. CHAMBERLAIN,
supra note 60, at 64; W. LEISERSON,
supra
note 72, at 140, 143-44; Snowbarger & Pintz,
supra note 300, at
476,

n302
Edelstein & Ruppel,
supra note 299, at 47.

n303
UNION DEMOCRACY,
supra note 247, at 147.

n304
Id. at 104-05.
See W. LEISERSON,
supra note 72, at
126, 133-36; Gamm,
supra note 281, at 297 & n.6; Marcus,
supra
note 246, at 65 & n.17.

n305
See Segal,
supra note 263, at 58.

n306
See J. BARBASH,
supra note 76, at 79; W. LEISERSON,
supra
note 72, at 185-86, 192-93; Craypo,
The National Union Convention as an
Internal Appeal Tribunal, 22 INDUS. & LAB. REL. REV. 487, 493 (1969).

n307
See J. BARBASH
supra note 76, at 79; Craypo,
supra
note 306, at 493 n.11, 495.

n308
See W. LEISERSON,
supra note 72, at 143-44, 187.

n309
Id. at 187.
See also J. BARBASH,
supra note 76, at
79; N. CHAMBERLAIN,
supra note 60, at 69; Craypo,
supra note
306, at 493-94; Marcus,
supra note 246, at 70 & n.28.

n310
Craypo,
supra note 306, at 487 n.1. For a summary of the literature
evaluating the efficacy of the convention as a final appeal body, see
Id.
at 487-88 nn.2-3. For a discussion of the functioning of the normal appeal
procedure in national unions, see
id. at 489-90; W. LEISERSON,
supra
note 72, at 194, 211-12, 252-79; P. TAFT,
supra note 212, at 117-80;
U.S. BUREAU OF LABOR STATISTICS, DEP'T OF LABOR,
supra note 272.

n311
Craypo,
supra note 306, at 493 n.11.

n312
Id.

n313
Id. at 494 & nn.14-15.
See also J. BARBASH,
supra
note 76, at 79 ("Committee assignments are allocated to reliable and
influential delegates . . . ").

n314
Craypo,
supra note 306, at 492 & table 2.

n315
Id. at 495-96, 505. Only 1% of the appellants appeared before the
convention to state their case. These were mostly union officers and staff
employees.
Id. at 495.

n316
Id. at 505. Craypo's findings regarding agenda control are consistent
with the earlier conclusions of Leiserson and the later conclusions of Bok and
Dunlop.
See D. Bok & J. DuNLOP,
supra note 45, at 75; W.
LEISERSON,
supra note 72, at 144, 198-99.

n317
Craypo,
supra note 306, at 498.

n318
Id. at 503. Eighty percent of all appeals were denied. Most decisions
in favor of appellants represent the exoneration of previously disciplined
members who disclaimed their past conduct and demonstrated loyalty to the union.
Craypo concludes most appeal sustainments serve "to ratify pardons granted
by the union's president, to justify his political expediencies, and to confirm
the dominance of the national union in most matters."
Id. at 506.
See
also id. at 497-99. Seeking to extricate the appeals process from the
political process, a few unions have established independent public review
boards to hear appeals.
See supra note 276.

n319
W. LEISERSON,
supra note 72, at 199-202; Segal,
supra note
263, at 58.

n320
See D. BOK & J. DUNLOP,
supra note 45, at 74-75; W.
LEISERSON,
supra note 72, at 193; L. SAYLES & G. STRAUSS,
supra
note 207, at 167.

n321
P. TAFT,
supra note 212, at 36-47.
Accord W. LEISERSON,
supra
note 72, at 213.

n322
Sandver,
supra note 250, at 7.
See James,
supra note
245, at 248 n.5; U.S. BUREAU OF LABOR STATISTICS, DEP'T OF LABOR, BULL. No.
2079, DIRECTORY OF NATIONAL UNIONS AND EMPLOYEE ASSOCIATIONS, 1979, at 52 &
table 1 (1980) ("Since the Bureau began collecting data on the turnover of
union presidents in 1969, the predominant reasons for leaving the presidency
have been retirement, resignation or not seeking another term of office.").

n323
P. TAFT,
supra note 212, at 36, 64.
Accord J. BARBASH,
supra
note 76, at 131-35.
See also supra note 320.

n324
Each of the Amereican unions had a membership in excess of 50,000. UNION
DEMOCRACY,
supra note 247, at 87-90.

n325
Id. at 33.

n326
Id. at 339-40.
See also id. at 319.

n327
Id. at 54, 96-97, 334.

n328
For a short summary of their conclusions see Edelstien & Warner,
Research
Areas in National Union Democracy, 16 INDUS. REL. 186, 188 (1977).

n329
UNION DEMOCRACY,
suppra note 247, at 147, 328, 333-34. "The
availability of . . . highly-placed full-time officers with independent power is
one of the most important structural characteristics which facilates successful
oposition."
Id. at 319.

n330
Id. at 146-47.

n331
Id. at 105-06, 147, 334.

n332
Id. at 77, 147, 331-33.

n333
Id. at 147, 328.

n334
Id. at vii, 340 (emphasis in the orginal).

n335
See, e.g., D. BOK & J. DUNLOP,
supra note 45, at 67; COX,
supra
note 41, at 627; Summers,
supra note 130, at 274; Note,
supra
note 19, at 418-20, 424-25.

n336
See James,
supra note 245, at 273-76, 285-86.

n337
Id. at 272.

n338
Seidman,
supra note 42, at 38. For other examples of the communications
advantage of the incumbent, see W. LEISERSON,
supra note 72, at 12-24,
179-80, 196; P. TAFT,
supra note 212, at 36.

n339
See Gamm,
supra note 281, at 302.

n340
D. Bok & J. DUNLOP,
supra note 45, at 85.

n341
Id. at 73. For examples of the high cost of a single mailing to the
membership of a large union, see J. BARBASH,
supra note 76, at 99;
James,
supra note 245, at 279 n.104. Some unions, recognizing the
incumbent's substantial communications advantage, provide opposition candidates
space in the union's newspaper.
See, e.g., Segal,
supra note
263, at 59.

n342
See Note,
Restrictions on "Outsider" Participation in
Union Politics, 55 CHI.[-]KENT L. REV. 769 (1979); Note,
Campaign
Financing of Internal Union Elections, 128 U. PA. L. REV. 1094 (1980).
Accord
Steelworkers
v. Sadlowski, 102 S. Ct. 2339, 2346, 2350 (June 14, 1982) (although
prohibitions on union officer candidates accepting outside contributions
interfere with LMRDA's policy of fostering vigorous debate, such prohibitions
are lawful if "rationally related to a legitimate and protected
purpose.").

n343
See D. BOK & J. DUNLOP,
supra note 45, at 178.

n344
See id. at 179; UNION DEMOCRACY,
supra note 247, at 101; W.
LEISERSON,
supra note 72, at 63, 99, 237-39; Gamm,
supra note
281, at 296-97.

n345
Seidman,
supra note 42, at 39.

n346
See James,
supra note 245, at 277-79, 287-88.

n347
Id. at 280. James reports that in the combined 10 years of litigation
surrounding elections in two large national unions "there is not one
instance of the union's inhouse or retained counsel ever taking a position
different from the incumbents whose unions they represented."
Id.
at 281 & n.110.

n348
Id. at 281-82.

n349
Id. at 270 (emphasis in the original).
Accord J. BARBASH,
supra
note 76, at 98-99; Lipset,
supra note 32, at 11-12.

n350
H. WELLINGTON,
supra note 4, at 186.

n351
N. CHAMBERLAIN,
supra note 60, at 62-63. The duties of these various
officials have been well discussed elsewhere.
See L. SAYLES & G.
STRAUSS,
supra note 207, at 56-75; Ehrenberg & Goldberg,
Officer
Performance and Compensation in Local Building Trades Unions, 30 INDUS.
& LAB. REL. REV. 188, 189 & n.8 (1977) (business agents).

n352
See supra notes 259-58 and accompanying text.

n353
N. CHAMBERLAIN,
supra note 60, at 623; W. LEISERSON,
supra
note 72, at 293. Compensation should not, however, be measured solely by salary.
"One of the highly desired compensations for union activity, is the chance
to go to state and national union conventions, company-wide bargaining meetings,
and the like. The delegates enjoy all-expense-paid trips to great metropolitan
centers that they might otherwise never have visited." Many unions
traditionally have also offered leaders job security in the form of
super-seniority. L. SAYLES & G. STRAUSS,
supra note 207, at 68. In
recent years, however, the NLRB has eroded substantially a union's ability to
compensate through super-seniority.
See, e.g.,
Dairylea
Co-op., 219 N.L.R.B. 656, enforced 531
F.2d 1162 (2d Cir. 1976); Note,
Superseniority: Post-Dairylea
Development, 29 CASE W. RES. 499 (1979); Memorandum of the N.L.R.B. General
Counsel, Cases Arising Under
Dairylea Cooperative, Inc., (Sept. 19,
1978), reported at
99
LAB. REL. REP. 124 (1978) (BNA). For the impact of the Dairylea doctrine on
labor arbitration, see
Perma-Line
Corp. v. Painters Local 230, 106 L.R.R.M. 2483 (2d Cir. Jan. 23, 1981).

n354
L. SAYLES & G. STRAUSS,
supra note 207, at 68 (prestige); Seidman,
supra
note 42, at 38-39 (rewards). For a discussion of the disparate values motivating
local union leaders, see Barbash,
Leadership and Membership in Local Unions,
10 LAB. L.J. 488 (1959). For a discussion on the lack of women in union
leadership positions and some explanations, see Koziara & Pierson,
The
Lack of Female Union Leaders: A Look at Some Reasons, 104 MONTHLY LAB. REV.
30 (1981). For an analysis of how and why persons rise to high local union
office, see Koziara, Bradley, & Pierson,
Becoming a Union Leader: The
Path to Local Office, 105 MONTHLY LAB. REV. 44 (1982).

n355
Larger local unions are one result of the drift toward industrial unionism and
away from traditional craft-type structures.
See Barbash,
supra
note, 354, at 492-96. Another cause is the merging of small locals to achieve
economies of scale and "make possible full-time, better paid union posts
that may be attractive to more members."
See D. BOK & J.
DUNLOP,
supra note 45, at 145-46, 154-55, 175.
See also
Allison,
Financial Analysis of the Local Unions, 14 IND. REL. 145, 152
(1975). Some national union constitutions require that locals be large enough to
support a paid full-time officer. L. SAYLES & G. STRAUSS,
supra
note 207, at 153.

n356
Troy,
supra note 266, at 135.

n357
Sandver,
Determinations of Pay for Large Local Union Officers, 17
INDUS. REL. 108, 108 (1978).

n358
See D. McLAUGHLIN & A. SCHOOMAKER, THE LANDRUM-GRIFFIN ACT AND
UNION DEMOCRACY 178 (1979); L. SAYLES & G. STRAUSS,
supra note 207,
at 159; Barbash,
supra note 354, at 493. The ratio of full time paid
officers to members in the United States has been reported at 1:300. Typically a
local union having several hundred members is financially able to support at
least on full-time officer. D. BOK & J. DUNLOP,
supra note 45, at
54, 150.

n359
Troy,
supra note 266, at 142; Sandver,
supra note 357, at 110;
Labor Management Services Administration, Department of Labor, Financial and
Administrative Characteristics of Large Local Unions, 59-63 (February 1969)
(unpublished study in the U.S. Dep't of Labor Library, Wash., D.C.) [hereinafter
cited as Local Unions].

n360
For discussion of the relationship between these structural changes and value
changes of union leaders, see W. LEISERSON,
supra note 72, at 289;
England, Agarwal & Trerise,
supra note 253, at 226; Lipset,
supra
note 189, at 90, 92-94; Seidman,
supra note 42, at 37.

n361
See J. BARBASH,
supra note 76, at 133; N. CHAMBERLAIN,
supra
note 60, at 71-72; L. SAYLES & G. STRAUSS,
supra note 207, at 60;
Barbash,
supra note 9, at 56; Blaine & Zeller,
supra note
271, at 240 & n.7.

n362
Applebaum & Blaine,
The "Iron Law" Revisited: Oligarchy in
Trade Union Locals, 26 LAB. L.J. 597, 599, 600 (1975).
Accord
Koziara, Bradley, & Pierson,
supra note 354, at 45 ("[W]hen
there are election challenges to [local] incumbent leaders, they do not come
from members outside the leadership hierarchy but from people already in the
established network.").
See Applebaum & Blaine,
Compensation
and Turnover of Union Officers, 14 INDUS. REL. 156, 156 (1975).
See
also Seidman,
supra note 42, at 37.

n363
D. McLAUGHLIN & A. SCHOOMAKER,
supra note 358, at 8-10.

n364
See generally D. BOK & J. DUNLOP,
supra note 45, at 174;
UNION DEMOCRACY,
supra note 247, at 75; Faunce,
Size of Locals and
Union Democracy, 68 AM. J. SOC. 291 (1962).

n365
See L. SAYLES & G. STRAUSS,
supra note 207, at 145-47.
See
also D. BOK & J. DUNLOP,
supra note 45, at 77; UNION
DEMOCRACY,
supra note 247, at 18.

n366
See D. BOK & J. DUNLOP,
supra note 45, at 84; Barbash,
supra
note 354, at 495-96; Seidman,
supra note 42, at 38.
But see Strauss,
Control by the Membership in Building Trades Unions, 41 AM. J. SOC. 527
(1956) (due to small size and cohesiveness, building trades are very
democratic). These full-time local leaders become almost unassailable if they
control jobs or choice of jobs through the hiring hall or the shape up. Lipset,
supra
note 42, at 12.
See L. SAYLES & G. STRAUSS,
supra note
207, at 156 & n.9.

n367
L. SAYLES & G. STRAUSS,
supra note 207, at 77.
See also D.
BOK & J. DUNLOP,
supra note 45, at 77, 113-14; N. CHAMBERLAIN,
supra
note 60, at 71.

n368
See UNION DEMOCRACY,
supra note 247, at 341; L. SAYLES &
G. STRAUSS,
supra note 207, at 151-52, 155-57; Lipset,
supra
note 42, at 45; Perline & Lorenz,
Factors Influencing Member
Participation in Trade Union Activities, 29 AM. J. ECON. & SOC. 425,
436 (1970). Within the local union itself, centralization of contract
administration and dues collection through the checkoff seriously weakens the
steward system causing an additional erosion of power diffusion.
See W.
LEISERSON,
supra note 72, at 289; L. SAYLES & G. STRAUSS,
supra
note 207, at 22-23.

n369
This criticism is reported in L. SAYLES & G. STRAUSS,
supra note
207, at 93.

n370
See, e.g., D. BOK & J. DUNLOP,
supra note 45, at 74 (less
than 10%-15%); N. CHAMBERLAIN,
supra note 60, at 73 (2%-10%); W.
LEISERSON,
supra note 72, at 285 (less than 10%); L. SAYLES & G.
STRAUSS,
supra note 207, at 107 (less than 5%); Seidman,
supra
note 42, at 36-37 & n.5 (2%-5%).

n371
For an excellent review of the literature and evaluation of determinants, see
Anderson,
supra note 40, at 279 nn.4-5;
See generally Perline
& Lorenz,
supra note 368.
See also Nicholson, Ursell &
Lubbock,
Membership Participation in a White-Collar Union, 20 INDUS.
REL. 162 (1981) (British unions).

n372
See Magrath,
supra note 42, at 511.
But see supra
notes 213-17 and accompanying text.

n373
Moore,
supra note 232, at 393.
See also H. WELLINGTON,
supra
note 4, at 161; Roomkin,
Union Structure, Internal Control, and Strike
Activity, 29 INDUS. & LAB. REL. REV. 198, 205 & n.22 (1976).
But
cf. Rogow,
Membership Participation and Centralized Control, 7
INDUS. REL. 132, 138 n.11 (1968) ("In environments with powerful
centrifugal forces at work, centralization of power and initiative may not be
the Michel-type oligarchic monster that the literature usually describes, but
rather the only viable solution open to responsible leadership.").

n374
Anderson,
supra note 40, at 288.
See, e.g., L. SAYLES & G.
STRAUSS,
supra note 207, at 97-101, 107-23; Nicholson, Ursell, &
Lubbock,
supra note 371, at 162-64; Perline & Lorenz,
supra
note 368, at 425-29.

n375
L. SAYLES & G. STRAUSS,
supra note 207, at 96.
Accord
Rogow,
supra note 373, at 135. For an analysis of the NLRB's view of
permissible incentives, enforceable through union security provisions available
to a union to encourage meeting attendance, see
supra note 38.

n376
N. CHAMBERLAIN,
supra note 60, at 73.
Accord W. LEISERSON,
supra
note 72, at 299-301.

n377
The presence of this larger "crisis membership" has long been
recognized.
See, e.g., D. BOK & J. DUNLOP,
supra note 45,
at 74; N. CHAMBERLAIN,
supra note 60, at 73; Segal,
supra note
263, at 54.

n378
Magrath,
supra note 42, at 519.
See also James,
supra
note 245, at 265-66.

n379
See, e.g., Gamm,
supra note 281, at 304; Lipset,
supra
note 42, at 11; Magrath,
supra note 42, at 520.

n380
For a discussion of the formal relationship between national unions and
subordinate governing units see D. BOK & J. DUNLOP,
supra note 45,
at 150-51; N. CHAMBERLAIN,
supra note 60, at 63-64; W. LEISERSON,
supra
note 72, at 86-87, 108-09, 280-82. Barbash has identified five parent and
union-affiliate relationship models but concludes that most unions develop
unique relationships incorporating some of each.J. BARBASH,
supra note
76, at 89-93.

n381
See J. BARBASH,
supra note 76, at 140-141, 148; Rogow,
supra
note 373, at 137 ("A tendency for power and authority to follow the
boundaries of collective bargaining structure has been frequently noted in the
literature.").

n382
See authorities cited
supra at notes 261-62.

n383
See supra notes 259, 263-64 and accompanying text.

n384
Kasper,
supra note 207, at 62.
See also UNION DEMOCRACY,
supra
note 247, at 53-54.
Over the last several decades, the dominant trend has been increased
concentration of union power both through consolidation of national unions and
the presence of proportionately more members in larger unions. These structural
changes precipitated by changes in technology, growth in conglomerate
businesses, the rising costs of operation, and economic adversities, have
altered the locus of power within unions at the expense of locals. The
structural changes result in membership diversification and decreased
cohesiveness requiring unions "to develop appropriate administrative and
decisionmaking structures to cope with the classic problems of bigness: loss of
contact with the membership, bureaucratic tendencies, internal conflicts of
interest among constituencies, and other sources of tension." Windmuller,
Concentration
Trends in Union Structure: An International Comparison, 35 INDUS. &
LAB. REL. REV. 43, 56 (1981).
See Roomkin,
supra note 373, at
199 & n.5.
See also Chaison,
Union Growth and Union Mergers,
20 INDUS. REL. 98 (1981) (determinants of union mergers); Chaison,
A Note on
Union Merger Trends, 1900-1978, 34 INDUS. & LAB. REL. REV. 114 (1980)
(frequency and forms of union mergers).

n385
See J. BARBASH,
supra note 76, at 20; Livernash,
supra
note 261, at 242, 251-53.
See also Windmuller,
supra note 384,
at 53-56.

n386
W. LEISERSON,
supra note 72, at 287-88.

n387
See Barbash,
supra note 9, at 49-50.

n388
Barbash,
supra note 45, at 630.
Accord A. COOK, UNION
DEMOCRACY: PRACTICE and IDEAL 232-35 (1963); Roomkin
supra note 373, at
203 & n.12.

n389
See D. BOK & J. DUNLOP,
supra note 45, at 51; L. SAYLES
& G. STRAUSS,
supra note 207, at 152; Barbash,
supra note
45, at 632.

n390
Lahne,
Union Constitutions and Collective Bargaining Procedures, in
TRADE UNION GOVERNMENT AND COLLECTIVE BARGAINING 167, 190 (J. Seidman ed. 1970).
See Roomkin,
supra note 373, at 208 & n.34.
See also
J. BARBASH,
supra note 76, at 92 ("History, economics, attitudes,
tactics, and needs combine to shape the nature of the national-local
relationship."); W. LEISERSON,
supra note 72, at 288.

n391
Leo Troy calculates that in 1970, union members paid approximately 1% of their
annual earnings to unions in dues and fees. Troy,
supra note 266, at
141.
Accord N. CHAMBERLAIN,
supra note 60, at 65 & n.2.

n392
See D. BOK & J. DUNLOP,
supra note 45 at 153; Local
Unions,
supra note 359, at 4-5; W. LEISERSON,
supra note 72,
at 288.

n393
See Troy,
supra note 266, at 136. Per capita payments vary
between 3% and 58% of local unions' total receipts. The highest payments are by
industrial union locals and the lowest are by building trades and longshoremen's
locals.
See Allison,
supra note 355, at 152-53, table 3.

n394
See D. BOK & J. DUNLOP,
supra note 45, at 80-81 (dues
increase votes allow members to review the union's overall performance and
express dissatisfaction); Hickman,
Labor Organizations' Fees and Dues,
100 MONTHLY LAB. REV. 19, 19 (1977) ("Efforts to gain rank-and-file
approval of dues increases . . . have in some instances become referenda on the
overall performance of national leaders.").

n395
Strike Funds: Roomkin,
supra note 373, at 201. Organizing: D. BOK &
J. DUNLOP,
supra note 45, at 143-45, 153; W. LEISERSON,
supra
note 72, at 288, 290.

n396
See Marcus,
supra note 246, at 69; Troy,
supra note
266, at 135-36. One study of 100 large local unions found that the assets of
each were larger than the assets of almost 50% of all national unions. One-half
of these locals had over 12,000 members. In several national unions, membership,
and therefore political power, is concentrated in a small number of these large
locals. Local Unions,
supra note 359, at 8, 30, 65.

n397
See J. BOK & J. DUNLOP,
supra note 45, at 152, 178.

n398
See supra notes 46-245 and accompanying text.

n399
See J. SEIDMAN,
supra note 245, at 10.

n400
See Barbash,
supra note 232, at 37.

n401
See L. SAYLES & G. STRAUSS,
supra note 207, at 9, 55, 156;
Seidman,
supra note 245, at 6.

n402
L. SAYLES & G. STRAUSS,
supra note 207, at 155.
See also
P. TAFT,
supra note 212, at 239 (presence of factionalism not
necessarily a sign of strength; its absence not an intrinsic weakness); Magrath,
supra note 42, at 511 (organized for political or industrial conflict,
unions require unity "not unlike that of the state in its foreign
policy").

n403
See St. Antoine,
supra note 44, at 37.

n404
Magrath,
supra note 42, at 525.
See also Seidman,
supra
note 42, at 36 (Some share a psychology "much like that of a nation at war,
fearful lest internal division give an advantage to the enemy").

n405
See, e.g., Lester,
supra note 252, at 20-24; Lipset,
supra
note 42, at 41-42.

n406
See Bilik,
Corrupt, Crusty, or Neither? The Poll-ish View of
American Unions, 30 LAB. L.J. 323, 327-28 (1979); Bok,
supra note
2, at 1409-11, 1450; Marshall,
The Future of the American Labor Movement:
The Role of Federal Law, 57 CHI.[-]KENT L. REV. 521, 528 (1981)
("[R]elations between labor and management in the private sector have
become more polarized in recent years.").
Accord id. at 534
(Management lawyer: "I would agree that there has been increased
polarization between labor and management in recent years."). Following the
1980 presidential election, the president of the National Right-to-Work
Committee is reported to have stated in a letter to members the following:
"Everyone knows the union bosses took a real bath in the past election.
We've finally got their backs up against the wall."
Id. at 523-24.

n407
See L. SAYLES & G. STRAUSS,
supra note 207, at 155.

n408
See D. BOK & J. DUNLOP,
supra note 45, at 88 n.*
("Democratic procedures are seldom an impediment in crisis
situations."); H. ROTH,
supra note 186, at 94 (democratic
procedures seldom used to harass unions); Seidman,
supra note 42, at 36
(perceived conflict between democracy and discipline "more often apparent
than real").

n409
See Lipset,
supra note 42, at 41-42 & authority cited at
41 n.122.

n410
See D. BOK & J. DUNLOP,
supra note 45, at 88 n.*; L.
SAYLES & G. STRAUSS,
supra note 207, at 155-56; James,
supra
note 4, at 251 n.13 ("There is a subtle, but important, difference between
weakening an officer's position and weakening the union's bargaining
strength.").

n411
See D. BOK & J. DUNLOP,
supra note 45, at 159-60; Givens,
Federal
Protection of Employee Rights within Trade Unions, 29 FORDHAM L. REV. 259,
308 & n.258.
See also infra note 446 and accompanying text.

n412
Kochan,
supra note 188, at 23.
See generally supra notes
213-17 and accompanying text.

n413
Seidman,
supra note 42, at 36.In his July 4, 1861 address to Congress,
Lincoln formulated the dilemma: "Must a government of necessity be too
strong for the liberties of its people, or too weak to maintain its own
existence?"
quoted in Konvitz,
Labor Movement, Labor
Organization or Labor Establishment? in TRADE UNION GOVERNMENT AND
COLLECTIVE BARGAINING 15 (Seidman ed. 1970).

n414
Brousseau,
Toward a Theory of Rights For the Employment Relation, 56
WASH. L. REV. 1, 19 (1980).
See also W. LEISERSON,
supra note
72, at 79 (through unions liberty is "enlarged and balanced").

n415
See H. WELLINGTON,
supra note 4, at 189.
See also N.
CHAMBERLAIN,
supra note 60, at 16 ("[W]henever an organized group
. . . directly affects the welfare of society at large, society has reason for
attempting to place certain controls over the activities of [that group]")

n416
Taft-Hartley Act, §§ 151 & 204(a)(1).

n417
See Cox,
supra note 41, at 610-11.
See generally supra
notes 186-201 and accompanying text.

n418
See Emporium
Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975);
Brousseau,
supra note 414, at 23-24 ("As against management there
is but one voice; as to labor, management has but one ear to lend.").

n419
Brousseau,
supra note 414, at 24-25 & n.106.

n420
Id. at 21-25.

n421
See D. BOK & J. DUNLOP,
supra note 45, at 88-91.

n422
Id. at 91.

n423
Id. at 88-89. They argue that "[u]nions can . . . suffer because
the rank and file make demands without appreciating their long-run effects upon
the organization." The two examples offered are demands for wage increases
that threaten union jobs and insistence on strikes that promise to cost more in
lost pay than the benefits likely to be achieved.

n424
Id. See also id. at 145, 148-49, 151-52, 157-58, 185.

n425
Id. at 89-90, 163-65, 186-87.Bok and Dunlop argue that innovation comes
not from members' initiative but from the initiative of the leaders,
id.
at 82, 148, for union business "will never compete with television for the
attention of the average member."
Id. at 90.

n426
Id. at 176.

n427
Id. at 88, 146, 174-77, 187.

n428
Bok and Dunlop see union officers' low prestige as the reason "that few
college graduates seek careers in union administration."
Id. at
187. Others, however, see in union democracy the risk that able persons
"may be deterred from aiming for careers as union leaders." St.
Antoine,
supra note 44, at 37-38.
Accord Wyle,
Landrum-Griffin:
A Wrong Step in a Dangerous Direction. 13 N.Y.U. ANN. CONF. ON LAB. 395,
395-96, 400-04 (1960).

n429
See Wyle,
supra note 428, at 395, 397-99, 402.

n430
See Wellington,
supra note 220, at 1330 & nn.18-20. This
underlying assumption has not always remained unarticulated but is advanced
without evidentiary support.
See, e.g. Hays,
supra note 186,
at 42 ("[I]n some situations . . . the shorter view of the members trumphed
over the longer view of the national leaders, and in many of the shops where
that happened there is today . . . much cause for remorse.").

n431
Taft, discussing the absence of electoral opposition in most national unions,
argues that union democracy promotes efficiency. He concludes that "its
absence . . . makes reelection inevitable, regardless of merit or performance.
It, thus may remove a natural deterrent to . . . ineffective administration,
since the conduct and policies of the office holder are not critically examined
in a free election campaign." P. TAFT,
supra note 212, at 37.
See
infra text accompanying notes 449-52.

n432
This seems to be the underlying view of Bok and Dunlop, who argue that
"democratic procedures have a valuable place in union government, [but] a
real problem arises in determining how much -- and what form of -- democracy is
appropriate . . . ." D. Bok & J. DUNLOP,
supra note 45, at 72.
See also St. Antoine,
supra note 44, at 55 ("[U]nion
democracy is a worthy value and entitled to much weight. But . . . a
single-minded pursuit of that objective [should not be] blind . . . to the
competing right of a union to regulate its own affairs . . . . ").

n433
James,
supra note 245, at 252.

n434
See D. BOK & J. DUNLOP,
supra note 45, at 87
quoting
Raskin,
The Government Role When Bargaining Breaks Down, THE REPORTER
28 (Jan. 31, 1963). For a summary of this argument, see Lipset,
supra
note 42, at 6-7, 33-34.

n435
Cox,
supra note 41, at 631.
See D. BOK & J. DUNLOP,
supra
note 45, at 79-80.

n436
P. TAFT,
supra note 212, at 37.

n437
D. BOk & J. DUNLOP,
supra note 45, at 87-88. Specifically, union
democracy is seen as a threat hampering union programs for social reform because
members are less progressive than the leaders.
Id. at 87-88, 458-61.
Insecurity resulting from electoral opposition in local unions is posited as the
incentive for union leaders to suppress dissent and act corruptly. Bok,
supra
note 2, at 1447-48.Finally, union democracy allegedly helps to communist
factions in unions by impeding unions' ability to "clean its house oc
communists."
See Perry,
The Legal Position of Communists in
Labor Unions, 9 I.L.R. RESEARCH 8, 12 & n.36 (1963) (summarizing the
position advanced by Taft).

n438
Wellington,
supra note 220, at 1330 & n.20. Coleman warns that
irresponsibility arguments raised by industrial leaders must be read cautiously
for "employer interest in democratic decision-making may often be expected
to ebb and flow with the changing assessments of the ways in which greater
member participation in the formulation of union policy would affect the
result." Coleman,
The Compulsive Pressures of Democracy in Unionism,
61 Am. J. SOC. 519, 521 (1956).

n439
See Lipset,
supra note 42, at 6, 34-35 & 6-7 n.8; Yale
Note,
supra note 4, at 416 & n.27 (collecting authority).
See
also Lipset,
supra note 190, at 81 ("[R]acketeering may be
seen as a natural by-product of American culture." (reporting the
observations of Daniel Bell)). For a summary of authority expressing the fear
that Landrum-Griffin would cause irresponsibility and evaluating whether it has,
see James,
supra note 245, at 248 n.4.

n440
See D. BOK & J. DUNLOP,
supra note 45, at 460-61
(progressive social programs); Roomkin,
supra note 373, at 213-14
(strikes).

n441
See supra text accompanying notes 72-76.

n442
H. WELLIGTON,
supra note 4, at 188.

n443
See Lipset,
supra note 42, at 7 and n.9.

n444
James,
supra note 245, at 252.
See Givens,
supra note
411, at 310 n. 267 (member participation in the formation of bargaining policy
reduces the threat of wildcat strikes); Lipset,
supra note 42, at 34-35
(member rebelliousness is caused by a felt sense of powerlessness within the
union and a "consequent readiness to 'latch on to causes in order to use
[the] power which they have.' . . . [I]t is the decline in democracy . . . that
has resulted in a decrease in union responsibility.").

n445
Dubin,
Attachment to Work and Union Militancy, 12 INDUS. REL. 51, 54
(1973).
See Knowles,
"Strike Proneness" and Its
Determinants, 60 AM. J. SOC. 214, 224 (1954).

n446
Anderson,
Local Union Participation: A Reexamination, 18 INDUS. REL.
18, 23-27 (1979); Dubin,
supra note 445, at 62; Strauss,
supra
note 40, at 222-23 & nn.30-31.
See supra note 411 and accompanying
text.

n447
Summers states the argument most succinctly. ["T]he worker gains no voice
in the decisions of his industrial life if he has no voice in the decisions of
the union which speaks for him." Summers,
supra note 20, at 275.

n448
Cox,
supra note 41, at 610.
Accord W. LEISERSON,
supra
note 72, at 54 ("If labor organizations also exercise autocratic powers
over their members, then workers may merely be substituting dictatorial rule of
union officials for the arbitrary authority of the employer or his
managers.").

n449
See supra text accompanying notes 416-18.

n450
H. WELLINGTON,
supra note 4, at 85.

n451
See Munson,
supra note 22, at 500 ("The goal of profit,
and the fact that it is measured in money, gives to profit organizations a means
by which degrees of success or failure can be measured in all ventures. The
trade union is less fortunately circumstanced . . . .)
see also P.
TAFT,
supra note 212, at 37.

n452
See Givens,
supra note 411, at 311-12; Lipset,
supra
note 42, at 21 & n.53 (union membership and the associated right to
participate are prerequisites of adequate representation).
When the union exercise collective authority as a disciplinary agency over the
work force, requiring consent through the electoral process checks abuse of
power.
See James,
supra note 245, at 254-55. This check is
critical for, ["t]here is a fundamental and intrinsic strain between any
labor organization's ambition to increase its responsible influence on policies
affecting it constituents and its function as an agent of protest for its
constituents." Moore,
supra note 232, at 394-95.

n453
See Lipset,
supra note 42, at 8. This contribution of union
democracy to societal democracy should not be confused with arguments that union
democracy is desirable because 1) a society can only be democratic if all of its
constituent parts are or 2) societal democracy depends on union democracy in the
sense that it provides members experience in democratic procedures. The first
argument fails upon examination.
See Magrath,
supra note 42,
at 521-22. The second assumes a teaching role for unions that has neither been
assigned nor assumed. A union's societal role does include representing group
interests beyond the workplace of at least those workers for whom it is the
exclusive bargaining representative.
see supra notes 225-44 and
accompanying text. Union democratic procedures simply reinforce workers'
reasonable claim of control over the union on which they depend.

n454
See, e.g., Fiester,
How Labor Unions View and Use Codes of Ethics,
in THE ETHICAL BASIS OF ECONOMIC FREEDOM 233 (Hill ed. 1977).

n455
See R. McCLOSKEY, THE AMERICAN SUPREME COURT 11-16 (1960) (The American
political mind simultaneously holds two contradictory ideas: popular sovereignty
that suggests
will and fundamental law that suggests
limit).

n456
Bork,
Neutral Principles and Some First Amendment Problems, 47 IND.
L.J. 1, 2 (1971).

n457
Compare, e.g., the majority will values underlying
Emporium
Capwell C. v. Western Addition Community Org., 420 U.S. 50 (1975) and
J.I.
Case Co. v. NLRB, 321 U.S. 332 (1944) with the limits explicit in
Steele
v. Louisville & N.R.R. Co., 323 U.S. 192 (1944) and LMRDA
and
LMRA §§ 8(b)(1)(A), 8(b)(2), 8(b)(5).

n458
See generally R. DAHL, A PREFACE TO DEMOCRATIC THEORY 145 (1956).

n459
J. SEIDMAN,
supra note 245, at 8-9.

n460
L. SAYLES & G. STRAUSS,
supra note 207, at 167 (emphasis in the
original).

n461
Silverstein,
Union Decisions on Collective Bargaining Goals: A Proposal for
Interest Group Participation 77 MICH. L. REV. 1485, 1519 (1979).

n462
See supra notes 131-35, 147-49, 202-17, 445-46 and accompanying text.

n463
Traditionally, many unions have provided members meaningful opportunities for
direct rule through local union membership meetings and votes on such matters as
dues increases, strikes, contract ratification, mergers, and decisions to
proceed to arbitration.
See D. BOK & J. DUNLOP,
supra note
45, at 77-79, 218-19, 244-45; Grodin,
Legal Regulation of Internal Union
Affairs, in PUBLIC POLICY AND COLLECTIVE BARGAINING 196 (I. Shister, B.
Aaron & C. Summers eds. 1962). Most observers agree that an appropriate
model of union democracy must balance direct rule with control through
representative government.
See, e.g., J. BARBASH,
supra note
76, at 142; L.SAYLES & STRAUSS,
supra note 207, at 167-68; J.
SEIDMAN,
supra note 245, at 9-10. The issue then is not whether to
balance, but how to balance. Some focusing on pratical difficulties, begin with
a stated presumption against direct rule.
see Grodin,
supra
note 463, at 196 ("direct democracy is . . . impracticable for the modern
union"). With others, a negative presumption appears throughout their work,
but an unstated premise exists based on preferences for rule by a leadership
elite.
See, e.g., D.BOK & J. DUNLOP,
supra note 45, at 79;
supra notes 421-28. Balance requires consideration of all the competing
values, but too often the values advanced by member direct control -- individual
dignity, status, and self-esteem as well as union institutional strength and
industrial stability -- are eclipsed by short-sighted concerns for efficiency
and practicability. An appropriate model of union democracy would assign
importance to both but priority to neither.

n464
Except for the right to membership, these basic civil liberties are all
guaranteed by the LMRDA.
See LMRDA, tits. I & IV.
See also
Lipset,
supra note 42, at 21 & n.53 (discussing the importance of
the right to membership in the union).

n465
See supra notes 267-349 and accompanying text.

n466
Lipset,
supra note 42, at 36-40.

n467
Magrath,
supra note 42, at 505, 521.

n468
See supra notes 324-49 and accompanying text.

n469
See supra notes 324-34 and accompanying text.

n470
See supra notes 355-97 and accompanying text.

n471
See supra notes 328-33 and accompanying text.

n472
See supra text accompanying note 366.

n473
See supra text accompanying note 365.

n474
See Kasper,
supra note 207, at 61-62; Livernash,
supra
note 261, at 243-45.

n475
See supra text accompanying notes 380-97.

n476
See J. SeidmAN,
supra note 245, at 37-40; Lipset,
supra
note 42, at 36-40; Magrath,
supra note 42, at 511-12.

n477
See supra notes 400-46 and accompanying text.

n478
See supra notes 335-49 and accompanying text.

n479
The relationship between effective group participatory rights by union members
and their access to the union's publications is being recognized increasingly by
perceptive members of the judiciary, by the academic community, and by union
leaders themselves. Jacobs & Spring,
Fair Coverage in Internal Union
Periodicals, 4 IND. REL. L.J. 204, 204 & nn.4-5 (1981). Moreover,
structual forms promoting autonomy of local and intermediate governing units
also help promote these group participation goals.
The local newspaper may provide a counterbalance to the national publication;
the local may have funds and facilities to make protests known throughout the
union; it can provide independent leaders and an independent bureaucracy. The
same values may be served by district, regional, or departmental structures to
the extent they are independent of central control.
Summers,
supra note 41, at 46.

n480
See supra notes 267-320,m 335-49 and accompanying text.

n481
James argues that the LMRDA's present provisions are adequate to neutralize many
of the most important incumbent advantages, but due to restrictive
interpretation and the inadequate administration of Title IV by the Secretary of
Labor, incumbent advantage has largely remained unchecked. James,
supra
note 245.
Accord Yale Note,
supra note 4.
Compare Finnegan
v. Leu, 102 S. Ct. 1867, 1873 & nn.11-12 (May 17, 1982) (LMRDA protests
the "long-standing practice of union patronage" by preserving the
"freedom of an elected union leader to choose a [policymaking] staff whose
views are compatible with his own" and discharge appointed policymaking
officers for having supported the unsuccessful candidacy of the incumbent union
president). For a penetrating analysis of the democratic role dissenting union
officers can play, see Note,
Finnegan v. Leu: Promoting Union Democracy By
Suppressing Internal Dissent,
32
CATH. U.L. REV. 287, 305-07 (1982). While the Court in
Leu failed
to incorporate in its analysis the realities of union structure and government
that make achieving union democracy difficult and make officer dissent an
important democratic instrument, see
id.
at 307-09, Leu has left important questions unanswered. Among these
are issues regarding the LMRDA's protection of elected and nonpolicymaking
appointed officials from reprisal discharges.
See id.
at 310-14. Accordingly, as the interstices of
Leu are subsequently
addressed the courts should be urged to consider these realities to avoid
expansive applications of
Leu that would convert it into a
"cynical suppression" of union democracy.
See id.
at 315.

n482
Brousseau,
supra note 414, at 31.

n483
See R. MCCLOSKEY,
supra note 455, at 11-13. Bok identifies the
"marked reluctance to subordinate . . . individual autonomy to the control
of larger organizations" as the foundation of our labor laws' distinctive
character. Bok,
supra note 2, at 1400 & n.19.

n484
See supra notes 128-56 and accompanying text.

n485
Brousseau,
supra note 414, at 31.

n486
See supra notes 400-46 and accompanying text.

n487
See supra notes 448-54 and accompanying text.

n488
H. WELLINGTON,
supra note 4, at 189. Bok and Dunlop advance a related
but distinct argument:
[U]nions have chosen to govern themselves by elections and related democratic
procedures. As a result, there is a public interest in maintaining the integrity
of these procedures, not only to protect the rights of individual candidates,
but also to avoid the risk that dishonest practices will breed cynicism toward
governmental methods that are vital to our entire political system.
D. BOK & J. DUNLOP,
supra note 45, at 72.

n489
COX,
supra note 41, at 627.
See id. at 610-11; Lipset,
supra
note 42, at 7 & n.10. While there is some empirical evidence that "the
Wagner Act had a significant positive impact on unionization . . . for the most
part . . . time-series analyses have tended to view such legislation as
incidental, or as effect rather than cause . . . ." Fiorito & Greer,
Determinants
of U.S. Unionism: Past Research and Future Needs, 21 IND. REL. 1, 9 (1982).

n490
See I. BERNSTEIN,
supra note 141, at 195, 820 n.4; C. DANIEL,
supra
note 156. At best, John L. Lewis was ambivalent for he cautioned that the Wagner
Act would lead to governmental regulation of unions.
See Hays,
supra
note 186, at 44.
But see, I. BERNSTEIN,
supra note 141, at 34
(Lewis compared § 7(a) of the National Recovery Act with the Emancipation
Proclamation).

n491
See LMRA §§ 2(2) & 2(3). Federal employees are now covered by
Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.
1111 (1978) (codified in scattered sections of 5, 10, 15, 28, 31, 38, 39, 42
U.S.C.). [hereinafter cited as CSRA and section number]. One need only review
the statute's preservation of "Management Rights" (CSRA § 7106), the
prohibition against striking (CSRA § 7116(b)(7), or the limitations of the
scope of bargaining (CSRA § 7117) to conclude that the rights and immunities
granted federal public employees and their unions are far less than those
granted by the LMRA. Yet, CSRA § 7120 requires federal employee unions to be
free of "influences opposed to basic demonstratic principles." If the
sufficient reasons for governmental intervention in union government were
limited to either "morality of promise keeping" or "status under
law," federal employee unions reasonably could argue that public
intervention in their government is unjustified or, at least, that the standards
of union democracy applied to private sector unions cannot be applied fully to
them. Only when the justification for intervention is served from arguments
related to promise keeping and powers granted to unions can the more fundamental
reasons for intervention be clarified.
See infra note 492 and
accompanying text.

n492
Summers,
supra note 130, at 278 ("The legal status of unions
provided a catalytic methaphor which speeded the reaction.").
See also
Bok,
supra note 2, at 1398 ("[T]he theory . . . suggesting that
the government only chose to intervene after 1935 because it had previously
encouraged the growth of union power . . . seems more of a make-weight than an
accurate description of events.").
One must concede that Summer's justification for union democracy and public
intervention to preserve and promote it incorporates the unarticulated
assumption that collective bargaining, as conditioned by the law regulating it,
strengthens unions' power to promote workers' relative position in their
industrial struggles. Otherwise, unions cannot fairly be viewed as being
assigned the important societal functions that justify union democracy in the
first place.
See supra discussion at notes 447-54 and accompanying
text. An emerging school of labor jurisprudence advancing a "critical"
labor law theory attacks vigorously the premises of the system, arguing that
collective bargaining does not work to enhance workers' relative power, but
instead acts as an instrument of repression by seeking to reconcile workers to
their own domination at the workplace.
See, e.g., Klare,
Labor Law
as Ideology: Toward a New Historiography of Collective Bargaining Law, 4
IND. REL. L.J. 450, 452 (1981) ("[L]iberal collective bargaining law is
itself a form of political domination"), Lynd,
Government Without
Rights: The Labor Law Vision of Archibald Co., 4 IND REL. L.J. 483, 487
(1981) (Based on the premise that "subjugation of workers' rights to the
interests of labor peace [is] reasonable and in the interest of 'national labor
policy,'" collective bargaining has "sought to institutionalize, and
thereby regulate, class conflict."); Stone,
The Post-War Paradigm in
American Labor Law, 90 YALE L.J. 1509, 1515-17 (1981) (Industrial
pluralism, the ideology conditioning current collective bargaining law,
"serves as a vehicle for the manipulation of employee discontent and for
the legitimation of existing inequalities of power in the workplace."). For
a summary of the literature of "critical" labor law jurisprudence, see
Klare,
supra note 492, at 450 n.1. A critique of this
"critical" labor jurisprudence is beyond the scope of this article.
But
see Dubofsky,
Labor Theory and Workers' Rights: A Historian's Critique,
4 IND. REL. L.J. 496 (1981). Yet, to the extent this school of labor
jurisprudence is correct, the case for union democracy and public intervention
to attain it may well be weakened.

n493
LMRA § 8(a)(3), 8(b)(2).
See also NLRB
v. General Motors Corp., 373 U.S. 734, 742 (1963) ("'Membership' as a
condition of employment is whittled down to its financial core").

n494
See supra notes 459-60, 462 and accompanying text.

n495
For reasons why decertification would not protect minority rights, see
Silverstein,
supra note 461, at 1488 n.14.

n496
See F. BARTOSIC & R. HARTLEY, LABOR RELATIONS LAW IN THE PRIVATE
SECTOR 78-80 (1977).
See, e.g.,
Empire
Screen Printing, 249 N.L.R.B. 718 (1980) (decertification petition dismissed
because of contract bar). Nor may the employer withdraw recognition during a
period when one of the bars to the raising of a question concerning
representation is in effect. F. BARTOSIC & R. HARTLEY,
supra note
496, at 171-72.
See generally Bellace,
Union Decertification Under
the NLRA, 57 CHI[-] KENT L. REV. 643 (1981).

n497
See Kardon
Chevrolet, 249 N.L.R.B. 598 (1980); Duval
Corp., 234 N.L.R.B. 160 (1978); General
Electric Co., 180 N.L.R.B. 1094 (1970); Brooks,
Stability Versus
Employee Free Choice, 61 CORNELL L. REV. 344, 352-55 (1976); Brooks &
Thompson,
Multiplant Units: The NLRB's Withdrawal of Free Choice, 20
INDUS. & LAB. REL. REV. 363 (1967).

n498
Deauthorization votes conducted pursuant to LMRA § 9(e)(1) and craft severence
elections conducted pursuant to LMRA § 9(c)(1) also will be held only in a
bargaining unit coextensive with the contractual unit. llinois
School
Bus Co., 231 N.L.R.B. 1 (1977) (deauthorization election);
General
Motors Corp., 120 N.L.R.B. 1215 (1958) (craft severence election).
Even where the election unit has not been modified subsequently by the parties,
small groups of craft workers desiring a craft severance election face
substantial obstacles with regard to whether a craft unit is appropriate.
See,
e.g.,
La-Z-Boy
Chair Co., 235 N.L.R.B. 77 (1978).

n499
See D. BOK & J. DUNLOP,
supra note 45, at 76, 200; Brooks,
supra note 497, at 347-50; Cole,
The Internal Disputes Plan: A
Working Reality, AFL-CIO FEDERATIONIST, June 1969, at 16 Krislov &
Mead,
Arbitrating Union Conflicts: An analysis of the AFL-CIO Internal
Disputes Plant, 36 ARB. J. 21 (1981); Yale Note,
supra note 4, at
418 & n.35.
The frequency of raiding can be estimated by adding the annual number of NLRB
conducted decertification elections involving more than one union and the number
of other representation elections involving an incumbent union and one or more
other unions. During fiscal year 1979 the NLRB conducted only 81 such
"raiding" elections of which only 15 involved a contest between an
AFL-CIO incumbent and an AFL-CIO affiliate. During fiscal year 1980, the NLRB
conducted 138 elections involving a raid, of which only 18 involved a contest
between AFL-CIO unions.
See NATIONAL LABOR RELATIONS BOARD, E.R. No.
208, N.L.R.B. ELECTION REPORT at XIX, XXI (1979) (Oct. 1978-March 1979)
[hereinafter cited as ELECTION REPORT and E.R. NO. and date]; ELECTION REPORT,
E.R. NO. 214, at XX, XXII (1980) (April 1979-Sept. 1979); ELECTION REPORT, E.R.
NO. 220 at XIX, XXI (1981) (Oct. 1979-March 1980); ELECTION REPORT, E.R. NO. 226
at XX, XXII (1981) (April 1980-Sept. 1980).

n500
Hardman,
Interrelationships in the Regulation of Internal Union Affairs,
10 LAB. L.J. 496, 498 (1959).
See L. SAYLES & G. STRAUSS,
supra
note 207, at 33, 156.
See generally Atleson,
Work Group Behavior
and Wildcat Strikes: The Causes and Functions of Industrial Disobedience,
34 OHIO ST. L.J. 750 (1973).

n501
See LMRA § 1
Nor is self-regulation an adequate alternative to public intervention. Inertia
stalls self-reform and unions most needing reform are least likely to engage in
it.
See Hardman,
supra note 500, at 499; Lipset,
supra
note 41, at 16; St. Antoine,
supra note 44, at 38. Even where
practiced, self-reform by a membership majority could most likely be relied on
to protect minority rights when the value of minority rights is already
implanted in a union's traditions. Here again, unions most needing reform will
probably not engage in it voluntarily.
See also Summers,
supra
note 20, at 278 (McClellan committee disclosures demonstrate the inadequacy of
self-regulation).

n502
Chaffee,
The Internal Affairs of Associations Not For Profit, 43 HARV.
L. REV. 993, 1020-29 (1930).

n503
Grodin,
supra note 463, at 188.

n504
See supra notes 447-54 and accompanying text.

n505
See supra notes 486-501 and accompanying text.

n506
See supra notes 455-85 and accompanying text.

n507
See generally McDouglas,
supra note 1, at 56, 65 (The
"emerging conception of law" is that legal decisions "are
responses to precipatating events best described as value changes in social
processes, are conditioned by many different variables in the particular social
processes in which they occur, and have in turn continuing effects upon such
processes.") For a related view of the value conditioning function of law,
see
infra note 549 and accompanying text.

n508
See, e.g., H. WELLINGTON,
supra note 4, at 199 (LMRDA's
"Bill of Rights for Union Members" written as broad principles); Cox,
supra
note 20, at 852 (much of the LMRDA contains "calculated ambiguities or
political compromises" so emphasis should be placed on the "underlying
rationale" rather than a "close construction of the words");
James,
supra note 245, at 354 (LMRDA can be seen "as representing
a fundamentally new direction" emphasizing member interests).
A good example of labor law's use of broad principles to regulate union
government may be found in federal enforcement of union constitutions. Section
301(a) creates federal jurisdiction to adjudicate controversies arising out of
union constitutions.
Plumbers
& Pipefitters v. Local 334, 451 U.S. 615 91981). While the Suprem Court
has not yet decided what substantive law shall control these conflicts,
id.
at 627, the general rule in LMRA § 301(a) cases is the courts shall
formulate the federal law to govern § 301(a) suits "by looking to the
"penumbra' of § 301(b) . . . as informed by its legislative history."
Complete
Auto Transit v. Reis, 451 U.S. 401, 406-07 (1981).

n509
See supra notes 29-38 and accompanying text.

n510
H. WELLINGTON,
supra note 4, at 147, 170-71 & 171 n.89.
See
Complete
Auto Transit v. Reis, 451 U.S. 401, 406 (1981) (LMRA § 301(a) does not
authorize a "freewheeling inquiry into what the Federal courts might find
to be the most desirable rule, irrespective of congressional pronouncements . .
. .Rather, it is clear that in fashioning federal law under § 301(a)
substantial deference should be paid to revealed congressional intention");
Brink
v. Dalesio, 667 F.2d 420, 424 (4th Cir. 1981) (LMRDA § 501(a) "assigns
to the federal courts the duty to fashion a body of federal law defining the
fiduciary duties of union officers").

n511
See Steele
v. Louisville & N. R.R. Co., 323 U.S. 192 (1944).

n512
See e.g., Clayton v. UAW, 551 U.S. 679 (1981) (exhaustion of internal
union appeal procedures not required in fair representation suit where they can
result neither complete relief nor reactivation of employee's grievance);
IBEW
v. Foust, 422 U.S. 42 (1979) (no punctive damages in fair representation
suits);
Hines
v. Anchor Motor Freight, 424 U.S. 554 (1976) (adverse aarbitration decision
not a bar to employee breach of contract suit against employer where union
subverts the aarbitration process by failure to fairly represent employee);
Hall
v. Cole, 412 U.S. 1 (1973) (attorney's fees available as remedy in suits
under LMRDA Title I). Many opinions adjudicating LMRDA's protection of union
officials from reprisal discharges for exercising free speech rights attempted
to balance these intersts by looking to the realities of union structure and
government.
See Note,
supra note 481, at 298-302. As courts
consider the protection granteed elected and nonpolicymaking appointed union
officials, they again will be presented opportunities to shape rdights by
examining the realities of uniion organizational life.
See supra
discussion at note 481

n513
See, e.g.,
Steelworkers
Local 5163, 248 N.L.R.B. 943 (1980) (union discipline for engaging in
internal union political activity an unfair labor practice).

n514
See, e.g.,
Metal
Workers Local 1 (Hughes Tool Co.), 147 N.L.R.B. 1573 (1964); Miranda
Fuel Co., 140 N.L.R.B. 181 (1962).

n515
See, e.g.,
Versatile
Services, 258 N.L.R.B. 810 (1981) (fiduciary duty to inform employees of
duties under union security clause and to provide reasonable opportunity to
comply);
Kaiser
Foundation, 258 N.L.R.B. 29 (1981) (fiduciary duty to furnish employees
statement of precise amount of dues owed).

n516
See supra notes 496-98 and accompanying text.

n517
See supra discussion at note 21.

n518
See supra notes 367-68, 381-85 and accompanying text.

n519
See Brousseau,
supra note 414.

n520
See General
Motors Corp. v. NLRB, 512 F.2d 447 (6th Cir. 1975).

n521
NLRB
v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342 (1958).

n522
The NLRB's longstanding rule has been that, notwithstanding a union
constitutional requirement that a contract ratification vote be held, an
employer's refusal to honor a collective bargaining agreement due to the union's
failure to conduct such a vote is privileged only when the union and the
employer have agreed explicitly that ratification is a condition precedent to
final agreement.
North
Country Motors, 146 N.L.R.B. 671, 674 (1964). Compare Sunderland's,
Inc., 194 N.L.R.B. 118 (1971) (employer withdrawal of assent privileged
because ratification was made a precondition)
with C&W
Lektra Bat Co., 209 N.L.R.B. 1038 (1974) (refusal to execute contract an
unfair labor practice because of insufficient proof of agreement to make
ratification a condition precedent to a collective bargaining agreement).
Even where ratification has been made a condition precedent to final agreement,
the employer has no standing to challenge the fairness of the ratification
procedures used or their compliance with union bylaws by refusing to execute the
contract.
See M&M
Oldsmobile, 156 N.L.R.B. 903 (1966) (it is for the union and not the
employer to construe and apply internal regulations regarding the sufficiency of
the ratification procedures).
See also Roesch
Transp. Co., 157 N.L.R.B. 441 (1966) (the union's ratification procedures
are no concern of the employer).

n523
See, e.g.,
St.
Vincent Hosp. v. N.L.R.B. 621 F.2d 1054 (10th Cir. 1980) (independent
union's affiliation with an international union privileges employer's refusal to
continue recognition of successor union unless continuity of representation is
maintained as manifested by factors such as retention of same officers and
governing committees and constitutional provisions preserving the predecessor's
autonomy from the successor international union);
Retail
Clerks Local 428 v. NLRB, 528 F.2d 1225 (9th Cir. 1975) (the important
factors for determining continuity of representation are explicit guarantees of
unit autonomy, retention of the same officers, and continuation of established
procedures).
See Dannin,
Union Mergers and Affiliations:
Discontinuing the Continuity of Representation Test, 32 LAB. L.J. 170
(1981); Note,
Union Mergers and the Amendment Certification Procedure,
28 CATH. U.L. REV. 587 (1979); Note
Union Affiliations and Collective
Bargaining, 128 U. PA. L. REV. 430 (1979).
The NLRB's inquiry into internal union affairs also extends to questions such as
whether nonmembers have been excluded from participation in the affiliation vote
and whether the voting procedures provided due process protections such as
adequate notice, discussion, and time for reflection.
See State
Bank of India, 262 N.L.R.B. No. 143, 111 L.R.R.M. 1015 (July 21, 1982);
Amoco
Production Co., 262 N.L.R.B. No. 160, 110 L.R.R.M. 1419 (July 23, 1982).

n524
See Allis-Chalmers
Mfg. Co. v. NLRB, 388 U.S. 175 (1967). Indeed, over 40 years ago the Supreme
Court admonished the Board that the Taft-Hartley Act is not to be enforced in a
vacuum without regard for other congressional objectives.
Southern
Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942) ("Frequently the entire
scope of Congressional purpose calls for careful accommodation of one statutory
scheme to another . . . .").

n525
See supra notes 486-501 and accompanying text.

n526
See supra notes 400-46 and accompanying text.

n527
See infra note 537 and accompanying text.

n528
See supra notes 365, 367-68, 409-12, 446, 479 and accompanying text.

n529
See supra notes 272-79, 333, 335-49 and accompanying text.

n530
See Cox,
supra note 41, at 611; Summers,
supra note
20, at 300 ("The law, by protecting democratic rights within the union . .
. reinforces the union's claim to remain free, for its decisions are validated
by the democratic process.");
id. at 279 (a primary motive for the
enactment of the LMRDA was to protect union democratic process and thereby
eliminate the need for public regulation of union structure and substantive
policy).
Statutory regulation also preserves union autonomy to the extent it avoids the
need to confront whether unions are engaged in "governmental action"
within the meaning of the constitution. Such a designation would threaten
seriously union autonomy from state control for it "would invite more and
more regulation with consequent loss of independence." Cox,
supra
note 41, at 620.

n531
Summers,
supra note 41, at 45.

n532
See generally supra notes 95-156 and accompanying text.

n533
See supra notes 123-56 and accompanying text.

n534
See supra notes 178, 183 and accompanying text.

n535
See supra notes 168-79 and accompanying text.

n536
See supra notes 225-44 and accompanying text.

n537
See supra notes 455-85 and accompanying text.

n538
See H. WELLINGTON,
supra note 4, at 186 ("[G]overnmental
regulation . . . providing a climate within the union conducive to full
membership control . . . cannot [alone] protect the minority from the
majority").
See also R. McCLOSKEY,
supra note 455, at 13
(early in our own constitutional history it became clear that the popular
branches of government -- legislative and executive -- could not perform the
dual functions of representing the popular will and limiting that will by
imposing on it the restraints of fundamental law).
While law can protect minority rights, the majority's moderation is also
essential. Learned Hand made this point eloquently concerning fundamental rights
protected by the Constitution. "[A] society so driven that the spirit of
moderation is gone, no court
can save; . . . a society where that
spirit flourishes, no court
need save; . . . in a society which evades
its responsibility by thrusting upon the courts the nurture of that spirit, that
spirit in the end will perish." L. Hand,
The Contributions of an
Independent Judiciary to Civilization, in THE SPIRIT OF LIBERTY 164 (I.
Dilliard ed. 3d ed. 1960) (emphasis in the original).

n539
See supra note 464 and accompanying text.

n540
See supra notes 458-63, 469-75 and accompanying text.

n541
UNION DEMOCRACY,
supra note 247, at 340.

n542
See supra notes 472-75 and accompanying text.

n543
See supra notes 476-79 and accompanying text.

n544
See supra notes 480-81 and accompanying text.

n545
See H. WELLINGTON,
supra note 4, at 199, 300; Cox,
supra
note 41, at 627.

n546
Lipset,
supra note 42, at 35.
Accord Marcus,
supra
note 246, at 64.
See also Poe
v. Ullman, 367 U.S. 497, 522 (1961) (Harlan, J., dissenting) (a law's
presence and the potential of its enforcement affect the conduct of those within
its proscriptions); L. TRIBE, AMERICAN CONSTITUTIONAL LAW, 713, 720 (1978)
(because the mere presence of a law that facially infringes on conduct protected
by the first amendment chills protected conduct, a litigant whose own conduct is
not protected by the first amendment may be granted standing to challenge the
potential unconstitutional applications of such a law to third parties).

n547
See Summers,
supra note 41, at 49.

n548
Coleman,
supra note 438, at 520-25.
Accord L. SAYLES & G.
STRAUSS,
supra note 207, at 167.

n549
See H. WELLINGTON,
supra note 41, at 50.
See also
Rostow,
The Democratic Character of Judicial Review, 66 HARV. L. REV.
193, 208 (1963) ("The discussion of problems and the declaration of board
principles by the courts is a vital element in the community experience through
which American policy is made. The Supreme Court is, among other things, an
educational body, and the Justices are inevitably teachers in a vital national
seminar.").