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