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From the January issue of the $100 Plus Club News, a publication
we distribute to people who contribute $100 or more. To
subscribe, click here. The following
is excerpted from a forthcoming book by AUD founder Herman Benson. We
can't say how forthcoming because he is still searching for a publisher.
The "politics" of DOL enforcement.
Morris Weisz, a former assistant director of the BLMR, the agency then responsible for LMRDA enforcement, wrote me to express misgivings over my treatment of the DOL in Union Democracy in Action. While he sympathized with my efforts, he insisted that I was frequently unjust because I failed to acknowledge the legal limitations of DOL authority and therefore criticized it for not doing what it was unable to do. I first met Morris in the early thirties when we were both members of the socialist-oriented Student Forum in New York City College, and I remembered him as a fair-minded, objective person of 100% integrity; and so I did pay attention.
I do understand that the DOL, as an administrative agency, feels compelled to tread delicately through the bureaucratic political mine field. But UDA's role (and later AUD's) as an independent citizens agency is quite different: it puts pressure on government agencies to do their job and so, in a way, helps them to fulfill their responsibilities. We are not unfair; we are simply different.
The LMRDA certainly does need strengthening. Meanwhile, however, the problem is not simply that the DOL is limited by law but rather that it prudently interprets the law, wherever possible, to avoid vigorous exercise of what authority it does possess and never requests essential additional authority.
The feeble quality of DOL intervention flows inexorably from it's fundamental flaw as an LMRDA enforcement agency. In pursuing its main work---mediation, health and safety, statistics, monitoring wages and hours, labor-management relations ---, the Labor Department requires the amicable cooperation of unions through their elected officers. But disputes over union democracy necessarily pit insurgents and rank and file workers against the hierarchy of leaders above. If the department were to defend with zeal the legal rights of insurgents, it would inevitably arouse the hostility of those very union officials whose good will it so eagerly desires. These contradictory responsibilities---to cultivate union leaders and to protect unionists against those leaders---places the DOL in an irreconcilable conflict of interest position.
There is a knotty problem here. First in the hearts of any red-blooded labor leader is the readiness to fight for power. One aspiring labor leader formulated two guiding commandments: One: get reelected. Two: remember point one. The defense of union democracy inevitably means the defense of the rights of those who may aim to dilute or defeat the power of incumbents. Which is why the nation's top labor leaders, with near unanimity, denounced the LMRDA civil liberties provisions as "anti-labor" when it was first adopted.
The leaders, armed with union treasuries and sustained by prestige, pack impressive political clout, a fact which enables the labor movement to serve as a necessary countervailing political force to big business in the nation. But that same clout also serves to entrench their position inside their unions against critics. Insurgent rank and filers, in opposition to their leaders, are politically inconsequential and dispensable.
And so we are asking the Labor Department to do the impossible, to cultivate excellent relations with labor leaders and at the same time vigorously defend the rights of union members who seek to overthrow these same leaders. Something has to give. Who must be sacrificed, leaders or insurgents? In this sorry world, the answer springs instantly to mind: Justice yields to power.
The Labor Department was established as a government body which would advance the interests of labor. In selecting a Secretary of Labor, every administration, Republican and Democratic, hopes to cultivate the approval of the nation's top union leaders, or at least to avoid irritating them. All this is to be expected, and perhaps is even desirable. The Department of Commerce exists to advance the interests of business. Why not the Labor Department, of organized labor?
The tilting of the Labor Department toward union leaders was taken into account when the National Labor Relations Act was adopted, establishing norms for collective bargaining between unions and employers. Enforcement was not assigned to the Labor Department but to a new, independent agency, the National Labor Relations Board.
In time, however, I learned that any reference to the Labor Department as "it" fails fully to recognize that the DOL, perhaps like other government agencies in a political democracy, not only has contradictory assignments, it has a divided soul.
On the top, making the strategic policy decisions are the Washington political appointees whose loyalty is to the administration which installed them. Beneath, on various levels are the permanent, continuing, career officers who are responsible for the day to day workings of the agency. The career personnel, including the investigators, merely propose but the political appointees dispose. Regardless of what the DOL field personnel discover or recommend, all decisions on election cases are decided in Washington; it is from this lofty perch that statements of reasons dismissing election complaints, are created and handed down.
Time passes. We discover that there are career staff reps at the DOL who are impatient, just as we are, with the slow and erratic pace of LMRDA enforcement and frustrated when their reports and recommendations are reversed by Washington and suspect elections are validated.
Upon invitation from time to time, the DOL has assigned personnel to explain its work at AUD conferences. They were invariably friendly but, in their public addresses, only occasionally strayed from the official line. Privately, however, some DOL personnel at all levels subscribe to our Review, circulate copies to their colleagues, and donate modestly to our efforts. In 1991, when two members of the executive board of Texas Chapter 247, National Treasury Employees Union, were expelled from the union for criticizing their chapter president, AUD submitted a brief on their behalf to the Labor Department and eventually won their reinstatement. Written by Lauren Esposito, then an AUD legal intern and now (2001) an NLRB field attorney, the brief was circulated by the DOL to its regional offices as a guide to its LMRDA-type enforcement responsibilities for federal employees.
Who makes the decisions that count?
The opposing forces that pull and tug at the DOL were defined in a book-length report in 1979 by Doris McLaughlin and Anita Schoomaker of Michigan State University who were commissioned by the DOL to examine the effectiveness of LMRDA enforcement. After the DOL would not print and circulate the report, it was published by the university. Most of its findings, more than 20 years ago, square with our own experiences over the last 40 years.
The authors reported: "Who are the real makers of DOL policy: those who hold their positions through political appointment or the career civil servants a the national office who report to the appointees? We asked that questions of a half dozen long-time DOL officials, past and present, and a dozen additional close observers, primarily labor lawyers, who have been concerned with the enforcement of the LMRDA since the law was passed....[They say] that the everyday decisions are left to the career civil servants. Key decisions, on the other hand, are made by the Solicitor and the Assistant Secretary for Labor-Management Relations. In an unusually sensitive situation...the Secretary of Labor himself might become involved--but only then. Ordinarily...the Assistant Secretary, with the advice of the Solicitor, is the really key figure." P171
["The Landrum-Griffin Act and Union Democracy," by Doris B. McLaughlin and Anita W. Schoomaker]
To what extent are these decisions political? Here the answer of the two authors is mixed: The DOL watchers, they wrote, "all contended that political considerations played a part. As one lawyer said, 'The White House can stop an investigation if it wants to.' Big contributors can get a 'fix.' ....But when we asked for specific examples of cases that had been buried because of political consideration alone, they could not supply us with any....Thus, all that can be said is that it is widely believed that partisan politics do play a role in key decisions reached by top DOL policy makers." P172
The important question, however, is not whether decisions are based on narrow partisan (i,e, Democratic v. Republican) politics but whether decisions are influenced by the "nonpartisan" social and political pressures on the DOL to conciliate the very union officials they would be forced to antagonize by scrupulous LMRDA enforcement. On this score, the McL-S study reports, "Four DOL spokesmen in the national office agreed that the two tasks were incompatible, being both the intermediary between management and labor and the union policeman is unfeasible....20% of those we interviewed did believe that the DOL has two incompatible functions...and because of the political [here the term signifies not partisan politics but the broader social politics. Ed] pressures that inevitably flow from trying to fulfill both, over two-thirds of these respondents thought that the Act should be administered elsewhere, or at least additional safeguards should be imposed....Four national office DOL officials said that they wished that Congress had created an entirely new government agency, autonomous of any existing one, whose only charge would have been to administer the LMRDA.... The new agency... could have pursued enforcement of the Act single-mindedly, devoting its entire attention to protecting members' rights." p 173/4`
An earlier study completed at Yale Law School in 1971 under the supervision of Professor Clyde W. Summers dealt with similar issues and reached similar conclusions.
["Union Elections and the LMRDA: thirteen years of use and abuse," in Yale Law Journal, Volume 81 January 1972 pp. 407-574.]
On the politics of enforcement, the Yale study noted, "there is a common perception among both attorneys for Title IV complainants and union counsel that 'political influence' is brought to bear on this decision [whether to sue in election cases]. Complainants and their attorneys tended to view this influence as being exerted in specific instances to forestall litigation--by the national union to protect an incumbent local officer, or by the AFL-CIO to defend a national official. It is, however, virtually impossible to evaluate or document such asserted political bias." And in a footnote, it added,"The charge of political influence at the Washington level could be evaluated more systematically if the reports and recommendations of field personnel could be compared with the decisions coming out of the Department's litigation conference. this avenue of inquiry could not be pursued, however, because the Department's files of internal correspondence are not open for inspection."
Since then, however, we do have evidence not then available. As reported here, the field personnel recommendation that the NMU national election of 1983 be challenged was rejected in Washington.
The DOL itself has never reported on how often recommendations from the field are vetoed by the politically minded operatives in Washington. But a report of the Government Accounting Office in the year 2000 confirms with statistics what we have always suspected. In the two years, 1998 and 1999, the GAO reports, the DOL found election violations in 162 cases, a figure that the GAO thinks may be an underestimation because of faulty records. In 67 cases where the field personnel proposed legal action against the offenders, Washington rejected the recommendations, closed 44 cases without taking any action, and reached some kind of agreement with the union officials in 23 other cases.
[GAO report, June 2000, "Department of Labor: administering the Labor-Management Reporting and Disclosure Act." (GAO/HES-00-116)]
Like McGlaughlin, the Yale study reported, "Union attorneys suggested a systematic bias in favor of incumbents resulting from the fact that the Department and specifically the Assistant Secretary for Labor-Management Relations, depends upon good relations with labor leaders in order to deal with them in labor-management disputes.
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