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Federal unions must let their members know

After years of neglect, the U.S. Labor Department will adopt a regulation which directs unions of federal employees to inform their members that federal law protects their right in their unions to fair elections, free speech, due process in trials, and other basic democratic rights. The department solicited public comments on how best to formulate the regulation.

The decision was a positive response to a petition from the Association for Union Democracy. AUD's petition to the DOL followed a decision of a federal appeals court which ruled that unions in private industry have a continuing responsibility to comply with LMRDA, section 105, which provides that unions must inform members of the provisions of federal law which protect their rights in their unions.

Section 105, LMRDA reads in full "Every labor organization shall inform its members concerning the provisions of this Act."

Some unions did comply with this provision, but only once, way. back in 1960 when the law was first adopted. But not again. For about 40 years section 105 remained a dead letter. A new generation replaces the old, but no unions complied. The problem was that section 105 can be enforced only by private suit of union members. In all those years, no union members could find the resources or the dedicated attorney could take on the tough battle in federal into court.

Until 2000. After AUD recruited an attorney to represent three machinists pro bono, the U.S. Appeals Court, Fourth Circuit in Maryland, ruled that a one-time compliance was not enough, that unions had a continuing enforcement responsibility. Under the terms of a consent decree, the Machinists union agreed to present the information to its members periodically by several means.

Since unions of federal employees are not regulated by the LMRDA, this decision had no direct immediate effect upon them. However, under the terms of the Civil Service Reform Act, the U.S. Labor Department is responsible for enforcing rights for federal unionists similar to those written into the LMRDA. And so it has, except for one notable exception. Just as unions refused to inform their members of their rights, so the Labor Department failed to compel federal unions to inform their members.

All that changed after the appeals court finding in the Machinists' case. In this instance, all's well that ends well, or even better. Unionists in private industry must still somehow finance their own private suit to compel their unions, one by one, to comply. But under the terms of the Civil Service Reform Act, federal employees need not go to court, in fact, they are mainly barred from the courts. But the Labor Department now takes on the responsibility of enforcing their right to know.

AUD's Brief to the Department of Labor

In response to the Labor Department's request for comments on its proposal to enforce section 105-type rights for federal employees, Michael Goldberg submitted a brief on behalf of the Association for Union Democracy. He proposes to beef up the department's proposed regulation. Excerpts from his statement follow:

"The AUD commends the Department of Labor for its favorable response to the AUD's April, 5, 2002 petition for rule making... The proposed rule for the first time would incorporate into the standards of conduct for federal sector labor organizations an obligation to inform their members of such critical rights within the union as freedom of speech, equal treatment, due process in union disciplinary proceedings, and the right to nominate and vote for candidates for union office in fair elections. As the U.S. Court of Appeals for the Fourth Circuit explained, the protections of the LMRDA "are meaningless... if members do not know of their existence. Simply put, if a member does not know of his rights, he cannot exercise them. This is where section 105 kicks in. Section 105 is the statute's informational linchpin, requiring labor organizations to inform members what rights Congress has granted them."

"...The AUD applauds the fact that the [Labor Department's] proposal's specifics go beyond the bare language of LMRDA... The proposed rule would require federal sector union's to provide the required notice of the provisions of [the LMRDA] to their members in three ways: first, notice would be given to all new members of the labor organization; second, all members would receive notice at least once every three years; and third, the web sites, if any, of federal sector unions would be required to contain a hyperlink either to the union members' rights and officers' responsibilities under the Civil Service Reform Act or to the union's own accurate notice of the CSRA's standard of conduct. As the Notice of Proposed Rulemaking makes clear, the financial burden these requirements would impose on affected unions would be minimal, amounting to mere pennies per union members covered. The AUD endorses all three approaches to providing the required notice to union members, particularly the hyperlinks on union web sites...

"Nevertheless, the AUD is concerned that the notice requirements as spelled out in the proposed rule do not go far enough, particularly the means suggested for providing notice to all members at three-year intervals... While such notice of members' rights is better than the total absence of notice that is the current general practice, the flaws in that approach were explained by Professor Clyde W. Summers in an affidavit he submitted as an expert witness in a case under LMRDA section 105:

"Most union members do not read their unions' journals because they are generally uninteresting and devoted primarily to promoting the incumbent officers and their policies. At most, members may read the main stories. Even if they were to see the Summary of the LMRDA, they will not remember its contents unless they happen to have a problem at that very moment. When at some later point in time they do encounter a problem, most will not remember the summary, and if they do, they will be unable to retrieve it because the journal in which it was published was long ago discarded."

"Because of these weaknesses in the approaches suggested by the proposed rule, the AUD's original petition for rulemaking specifically urged the DOL to adopt the additional requirement that the summary of members' rights and officers' responsibilities be included as an appendix in the back of the Constitutions of the covered labor organizations."

Other articles on LMRDA Section 105:
Victory: Federal unions must let their members know
Section 105 Update: Obeying union democracy law, belatedly
Pipefitters win points in battle for democracy
Some unions hate to say, "you have legal rights."
Court to IAM: Inform members of their rights
Is your union in compliance with Section 105 of the LMRDA?
Text of LMRDA Section 105

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