CLEANING LABOR'S HOUSE: INSTITUTIONAL REFORM LITIGATION IN THE LABOR MOVEMENT MICHAEL J. GOLDBERG* I. Introduction ............................................ 904 II. The Nature and Scope of Union Corruption and Labor Racketeering ............................................ 909 III. Keeping Its Own House Clean: The Labor Movement's Internal Remedies ....................................... 916 A. Discipline of Corrupt Officers and Members and Damage Actions for the Recovery of Embezzled Union Funds .............................................. 917 B. Voting the Rascals Out .............................. 919 C. Intra-Union Trusteeships ............................ 920 D. Other Intra-Union Controls Over Local Unions ....... 922 E. Public Review Boards ............................... 923 F. The Federation'sRole ............................... 925 IV. Legal Authority for the Judicially Supervised Reform of Labor Unions ........................................... 927 A. TraditionalEquitable Remedies and the Emergence of InstitutionalReform Litigation ...................... 928 B. Common Law Union Receiverships, Before Landrum- Griffin... and After ................................ 931 C. Title VII and the Integration of Unions, Apprenticeship Programs,and Hiring Halls ........... 938 D. State Regulation of Unions in the Longshore and Casino Industries ................................... 941 E. The Reform of Union Pension and Welfare Funds .... 943 * Professor, Widener University School of Law. A.B. 1971, Cornell University; J.D. 1975, Harvard Law School; LL. M. 1977, Georgetown University Law Center. The author would like to thank Florian Bartosic, Herman Benson, G. Robert Blakey, Arthur L. Fox, Paul Alan Levy, Come- lius J. Peck, and Clyde W. Summers for their helpful comments on earlier drafts. Many thanks also to Sharon Rau, Anthony Sanchez, and Susan McMarlin Vater for their invaluable research assistance. In 1980-81, the author served as counsel to Teamsters for a Democratic Union (rDU), a na- tional organization of rank-and-file Teamsters seeking to reform their union. From time to time since then, he has served as a consultant to TDU on a pro bono basis. The views expressed in this Article, however, are those of the author alone and do not necessarily reflect those of TDU or any other organization. DUKE LAW JOURNAL [Vol. 1989:903 V. The Civil RICO Structural Injunction .................... 946 A. Civil RICO ......................................... 948 B. Aiding and Abetting the Extortion of Membership R ights .............................................. 950 C. Accomodating FederalLabor Policy .................. 955 D. Freedom of Association .............................. 961 VI. The Remedies Applied at the Local Level ................ 965 A. Teamsters Local 560 ................................ 965 B. Cement & Concrete Workers Local 6A ............... 975 C. Teamsters Local 814 ................................ 977 D. Roofers Local 30 ................................... 980 VII. Remedial Alternatives at the National Level ............. 984 A. The Teamsters Board of Monitors ................... 984 B. Reorganization by Decree: The Teamsters' RICO Settlem ent .......................................... 994 VIII. Toward Maximizing Effectiveness While Minimizing Intrusiveness ............................................ 1001 A. The Politics of RICO Trusteeships ................... 1001 B. Some Civil RICO "'Sentencing"Guidelines ........... 1003 IX . Conclusion .............................................. 1010 I. INTRODUCTION Jimmy Hoffa is probably laughing in his landfill,1 amused by the fact that the more things change in his union, the more they stay the same. When Hoffa ascended to the presidency of the International Brotherhood of Teamsters (IBT) in 1958, that union was not only the largest and strongest in the American labor movement, but also the most corrupt. Unfortunately, after three decades of effort by both rank-and-file reform- ers and federal law enforcement officials to clean up the 1.6 million mem- ber union, that characterization of the IBT remains as accurate today as it was in Hoffa's day. Hoffa became president of the Teamsters union following the deci- sion of his predecessor, Dave Beck, not to run for reelection in the face of 1. Speculating about the whereabouts of Jimmy Hofla is one of the favorite pastimes of Team- sters watchers like myself. Nobody has much doubt that Hoffa is dead. He disappeared in July of 1975, presumably murdered on the order of Mafia chieftans who felt threatened by his efforts to regain the union's presidency, which he was forced to relinquish several years earlier when he went to jail for jury tampering and pension fraud. The two leading theories are that Hoffa's body was incinerated or "compacted" on the premises of a Michigan sanitation company, or that it was buried in the New Jersey meadowlands. For informed speculation about Hoffa's death and the reasons his former allies in organized crime turned against him, see S.BRILL, THE TEAMSTERS 43-75 (1978); L. VELIE, DESPERATE BARGAIN: WHY JIMMY HOFFA HAD TO DIE 12-49, 174-83 (1977). Vol. 1989:903] CLEANING LABOR'S HOUSE subsequently proven charges of embezzlement and tax evasion. 2 Hoffa's election, the product of a rigged convention, was surrounded by contro- versy and was challenged in court, with surprising success, by rank-and- file reformers who managed to obtain the judicial appointment of a Board of Monitors to oversee what was to have been a major clean up of the union.3 At the same time, Hoffa and his associates were the targets of relentless governmental investigations and prosecutions for corruption and racketeering,4 which led to the IBT's expulsion from the AFL-CIO, 5 passage of the Landrum-Griffin Act (the first comprehensive legislation regulating the internal affairs of unions),6 and eventually Hoffa's own 7 conviction and imprisonment for jury tampering and pension fraud. It is now 1989, and not much has changed in the Teamsters union. Jimmy Hoffa is gone, to be sure, but the controversies surrounding his union remain remarkably similar. Jackie Presser, the late Teamsters president who recently died of cancer, gained that office only after his predecessor, Roy Williams, was convicted on federal charges of attempt- ing to bribe a U.S. Senator.8 And just as Hoffa helped clear a path for his own advancement by leaking information about Beck to the McClellan Committee,9 Presser apparently did the same by serving as an informant for the FBI and giving information on Williams.10 Moreover, evidence introduced in a marathon criminal trial of Genovese crime family bosses in New York, and statements obtained from both Williams and Presser, support Justice Department allegations that a Mafia conspiracy 2. R. JAMES & E. JAMES, HOFFA AND THE TEAMSTERS 19-20 & n. * (1965). 3. See infra text accompanying notes 492-567. 4. The most important and wide-reaching of these investigations was conducted by the U.S. Senate's Select Committee on Improper Activities in the Labor and Management Field (the McClel- lan Committee) during 1957 and 1958. 5. See AFL-CIO's Expulsion of Three Unions, 41 L.R.R.M. (BNA) 37 (1958); Teamsters Sus- pended by AFL-CIO Executive Council, 40 L.R.R.M. (BNA) 84 (1957). 6. Formally known as the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), the Landrum-Griffin Act is codified at 29 U.S.C. §§ 401-531 (1982 & Supp. V 1987). Referring to the then recently enacted LMRDA, the final report of the McClellan Committee stated that "Hoffa, more than any other single individual, must bear the responsibility for specific provi- sions of the law that is now on the Nation's statute books." S. REP. No. 1139, 86th Cong., 2d Sess. pt. 3, at 731 (1960). 7. See D. MOLDEA, THE HOFFA WARS 171-73, 185-86 (1978). For general accounts of Hoffa's controversial career, his investigation by the McClellan Committee, and his numerous prose- cutions, see R. JAMES & E. JAMES, supra note 2; C. MOLLENHOFF, TENTACLES OF POWER: THE STORY OF JIMMY HOFFA (1965); W. SHERIDAN, THE FALL AND RISE OF JIMMY HOFFA (1972); L. VELIE, supra note 1. For Hofa's side of the story, see J. HOFFA, HOFFA: THE REAL STORY (1975); J. HOFFA, THE TRIALS OF JIMMY HOFFA (1970). 8. See Serrin, Jackie Presser'sSecret Lives Detailed in Government Files, N,Y. Times, Mar. 27, 1989, at 1, col. 5. 9. See D. MOLDEA, supra note 7, at 71. 10. See Serrin, supra note 8. DUKE LA4W JOURNAL [Vol. 1989:903 engineered Presser's selection.II Shortly after his own federal indictment 2 for embezzling some $700,000 from his home local in Cleveland,' Presser won election as President in his own right by convention dele- gates selected through procedures violating the spirit, and arguably the letter, of the Landrum-Grifin Act. 13 Nor do the parallels stop there. As the McClellan Committee had done a generation before, the President's Commission on Organized Crime recently identified the IBT as the national union "most con- trolled" by organized crime.14 In response, the federal government has again launched a campaign to clean up the union. In an action based on the civil provisions of the Racketeer Influenced and Corrupt Organiza- tions Act (RICO),15 the Department of Justice sought to place the entire Teamsters union under the temporary control of a court appointed trustee.' 6 That litigation resulted in a consent decree creating a remedy substantially more radical than the monitorship imposed during the Hoffa period. 17 One major difference between the 1950s and