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Divided appeals court denies Carpenters direct elections

In June a federal appeals court rebuffed a suit by seven carpenters who sought to compel their New England Regional Council of Carpenters (NERC) to elect its top officers by direct membership referendum vote. In a two-to-one decision the First Circuit appeals court in Massachusetts upheld a ruling of the U.S. Labor Department that the council could continue to elect officers by vote of local delegates.

The court's decision was puzzling. The two-judge majority voted to sustain the DOL, but the dissenting judge and even one concurring judge expressed grave misgivings over the DOL position.

The Labor-Management Reporting and Disclosure Act requires local unions to elect officers by secret ballot vote of the membership. So-called "intermediate" bodies, however, may elect by vote of delegates from the affiliated locals. As this case bounced its way back and forth between the district and appeals courts, two principal issues were posed:

1. Despite its designation by the Carpenters union as an intermediate body, had the NERCC taken over so many functions and powers usually possessed by a local that the council itself had to be considered a local? In that case, as in a local, its officers had to be elected by direct membership ballot, not by delegates.

2. Was the DOL arbitrary and capricious when it ruled that the council was genuinely an intermediate organization and therefore not subject to the requirement for direct elections?
The second question arises because of a Supreme Court decision that defined the powers of the DOL in union election cases. In Bachowski, the Court ruled that DOL decisions in election cases are subject to judicial review, but only by a very strict standard. To successfully challenge a DOL election decision, a complainant had to prove the DOL was "arbitrary and capricious," a difficult test. The DOL could be wrong so long as it was not "arbitrary and capricious."

The carpenters suit against the DOL was precisely such a challenge under Bachowski. To a fast or impatient reader, these questions might seem tedious and technical, even boring. Actually, however, the case raises issues of quintessential importance to the quality of our labor movement's internal democracy. The NERC serves as the possible model for a future labor movement: ultra centralized, authoritarian, autocratic. It is so structured that it can bypass many of the provisions of the LMRDA. It is a model already spreading throughout the construction trades and viewed with approval, perhaps envy, elsewhere. The Carpenters union is part of the New Unity Partnership, a coalition of several unions that hopes to reorganize the labor movement. Their structure is becoming the model for a new super-centralized authoritarian labor movement which deprives members and locals of any meaningful control over their own organizations.

AUD amicus brief
In an amicus brief, prepared by Alan Hyde, AUD noted that the DOL itself, in earlier cases, had held that whether a labor organization could be defined as "intermediate" or "local"depends on its actual function and not on the "formal title" assigned by the union. In this case, AUD argued, NERC has taken on so many of a local's powers and responsibilities that it should be required to fulfill the conditions imposed on locals by the LMRDA, most importantly direct elections of officers.

In rejecting the appeal of the seven Carpenters, the DOL held that NERC is simply an "intermediate" body that can elect officers by vote of delegates because its affiliated locals play "a significant role in dealing with their members." In this, the DOL ignores reality. Locals no longer function as effective labor organizations negotiating and enforcing contracts, hiring staff, or making job referals. Their role in NERC --- as in all the Carpenter regional councils --- is now mainly administrative or clerical. The DOL decision completely ignores the facts of modern life in the Carpenters union.

Reorganizations imposed from above
The new centralized, authoritarian structure was imposed from above on locals and district councils by international president Douglas McCarron beginning in 1996. Locals and smaller councils were regrouped into geographically sprawling regional councils armed with extensive authority over their subordinate bodies. Headquartered in Boston, NERC represents 25,000 member in 26 locals from Connecticut to Maine.

The DOL accepts the union's designation of NERC as an authentic "intermediate" organization on the grounds that the locals still have some significant independent role. But that is a constitutional fiction. Actually the "locals" have been turned into powerless administrative shells and members stripped of many basic democratic rights.

Locals' main source of money has been cut off. They can establish and receive only the monthly dues paid by their members, and even that right is subject to council approval. The main source of revenue in this union, as in most of the construction trades, is the work tax. All working members pay a fixed percentage of their gross pay to the union; none of that goes to the locals; it all goes directly into the council treasury.

In any event, there's not much locals are permitted to do with whatever money they do have. Locals are forbidden to pay salaries to their elected local officers. They can hire clericals, but no lawyers or staff. Presumably picnics and dances are legal. From workers' collective bargaining organizations, locals have been downgraded into social clubs and fraternal lodges. With no major resources, no paid officers or staff, locals can hardly exert real power.

All contract negotiations are under council jurisdiction. All stewards and business agents are appointed by the council. Before filing the federal suit in this case, members had no right to vote on contracts. Afterwards, the top brass, under pressure, modified rules to provide for membership ratification.

Delegates elected by the local unions do select a council executive board; and the council rules do list some limited powers for council executive board members. And the local delegates do elect the top official, the executive secretary treasurer. But council by-laws are carefully worded to make all delegates and all officers subservient to one authoritarian top officer: the executive secretary treasurer (EST).

The EST alone can hire and fire all council employees. This power is nearly unlimited. No one holds any paid union staff position without the EST's permission. The rules provide that his appointments are subject to executive board approval, but in practice that limitation is meaningless. Remember, no delegates, board members, or local officer can hold a paid union job without the approval of the EST. It is obvious who is the master and who is the servant.
If no member of Congress and no elected public representative of states or cities could hold any paid office in government without the approval of the President of the United States, what would be the fate of American democracy? Yet, that spirit now permeates the Carpenters union. This is the system that has been validated by the Department of Labor and upheld, with misgivings, by the appeals court. This decision does more than undermine Carpenters' rights; it undermines the LMRDA.

Analysis of the First Circuit's decision:

Arbitrary and capricious? How the court stumbled

There was a 2-1 majority decision in the First Circuit ruling against the seven Carpenters. But there was no majority opinion. Only one judge was perfectly satisfied with the DOL's "Statement of Reasons." One judge rejected it as arbitrary and capricious. In an odd concurring opinion, the third judge had grave misgivings about the DOL position and found it unconvincing; but he felt compelled to defer to the DOL nevertheless, because he would not characterize its conclusion as arbitrary and capricious.

Circuit Judge Lynch, who wrote the court's decision, had no problem. In a fleeting concluding paragraph he did restate the Bachowski standard: "The question before us in not whether the Secretary could have permissibly reached the opposite conclusion, but whether the conclusion she did reach was 'so irrational as to constitute the decision arbitrary and capricious.' " Nevertheless, his 24-page opinion found not a thing wrong with the DOL's action, which he found quite reasonable at every point.

Judge Torruella, dissenting, had no hesitation in rejecting the DOL's decision as arbitrary and capricious. "I continue to believe that the Secretary's decision," he wrote, "represents a departure from precedent." He added: "The Secretary's own description of the NERCC [New England Regional Council of Carpenters] would have led inevitably to the conclusion that the NERCC 'has taken on so many of the traditional functions of a local union that it must in actuality itself be considered a local union.' " In conclusion, he quotes with approval from a brief submitted by the seven Carpenters: "If every union could infuse so-called intermediate bodies with the functions and purposes of a local labor organization without having to be held accountable under the same elections laws of a local, then the intent of the LMRDA...would be emasculated and millions of union members would be effectively disenfranchised."

Judge Lipez was the third and swing voter. As a concurring opinion, his was agonizing ---and contradictory. He exposed the full danger of the DOL position, and yet he would not overturn it The bulk of his 14-page opinion expressed misgivings over the substance of the Labor Department's rulings, beginning: "I write separately to register my concern that the Secretary's approach may be a departure from the more ideal form of union democracy that Congress sought to protect through its enactment of the LMRDA." And he went on... and on... in the same vein. Here are a few of his comments:

"The Secretary's willingness to allow intermediate bodies to assume an ever-increasing number of local union functions without subjecting them to the LMRDA's firest election requirements represents a threat to union democracy and may eventually stray too far from Congress's intent in adopting Title IV of the LMRDA."

"My review of the LMRDA's legislative history suggests that Congress envisioned a more circumscribed role for intermediate bodies than the [Labor Department] describes."

"There is some force to the plaintiff's claim that the Secretary's decision not to recognize the NERCC as a local union is inconsistent with the LMRDA considered as a whole."

The bulk of this concurring opinion is loaded with quotes and references from writers, scholars, and legal authorities to refute the Labor Department's claims. Nevertheless the judge makes a difficult acrobatic leap to the awkward conclusion that the DOL, wrong as it may be, was not arbitrary and capricious. To sum up this strange opinion: The DOL may have placed the LMRDA in danger, but it was not arbitrary and capricious!

In this case, the U. S. Labor Department, an agency assigned to enforce federal law in support of union democracy, is responsible for undermining it. This federal appeals court, narrowly and reluctantly, has gone along.

The decision:
http://www.ca1.uscourts.gov/pdf.opinions/04-1144-01A.pdf

Articles on the Harrington case and the Carpenters reform movement:
Carpenters win right to elect regional council officers
Consolidation in the Construction Trades
Carpenters form National Reform Group
Reformers Jolt Carpenters Convention
Carpenters Reformers Win in New England
Court challenges DOL on Carpenters Regional Council
Harrington v Chao: Judge Stearns's "memorandum and order" (pdf)
AUD Bill of Rights for the Building Trades
AUD brief opposing stay of order
Sample letter requesting direct elections
Letter to Carpenters from Carl Biers
Court deals setback for democracy in Carpenters union
Links to Carpenters rank-and-file websites

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