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Retaliatory Removals of Union Officials Under the LMRDA George Feldman

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Retaliatory Removals of Union Officials Under the LMRDA George Feldman Hofstra Labor and Employment Law Journal Volume 9 | Issue 2 Article 2 1992 Effective Democracy and Formal Rights: Retaliatory Removals of Union Officials Under the LMRDA George Feldman Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlelj Part of the Law Commons Recommended Citation Feldman, George (1992) "Effective Democracy and Formal Rights: Retaliatory Removals of Union Officials Under the LMRDA," Hofstra Labor and Employment Law Journal: Vol. 9: Iss. 2, Article 2. Available at: http://scholarlycommons.law.hofstra.edu/hlelj/vol9/iss2/2 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Labor and Employment Law Journal by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Feldman: Effective Democracy and Formal Rights: Retaliatory Removals of Un EFFECTIVE DEMOCRACY AND FORMAL RIGHTS: RETALIATORY REMOVALS OF UNION OFFICIALS UNDER THE LMRDA George Feldman* INTRODUCTION This article is about union democracy. It argues that the re- moval from office of union officials in retaliation for their speaking or organizing against the policies of higher union leaders violates the Labor-Management Reporting and Disclosure Act of 19591 (the "LMRDA"). Emil Cehaich was a machinist for General Motors in Detroit. In 1975, when he had seven years of seniority, he was appointed by the union, the United Auto Workers, to be a benefits representative. As the collective bargaining agreement provided, Cehaich remained a GM employee and received his normal pay, but carried out his new duties during the work day. He helped retirees, beneficiaries and sur- viving spouses with pension and insurance problems, and handled the appeals of those whose claims were denied.' In 1979, a new collective bargaining agreement was negotiated with General Motors. The union brought elected and appointed offi- cials who represented GM employees around the country, including Cehaich, to Dallas for a special meeting. The stated purpose of the meeting was to inform them about the tentative agreement before it was presented to the general membership for ratification. It is safe to assume that the union's national leadership wanted to convince these 4,000 "influential local union members"' that the proposed new con- * B.G.S. Wayne State University, J.D. University of Michigan; Assistant Professor, Wayne State University Law School. I want to thank my colleagues Robert Abrams, Kingsley Browne, Jessica Litman, Stephen Schulman, and Jonathan Weinbergtfor their help. Clyde Summers and Michael Goldberg read an earlier draft of this article and provided valuable suggestions. I am grateful to both. 1. 29 U.S.C. §§ 401-531 (1988) (hereinafter "the LMRDA" or "the Act"). The LMRDA is popularly referred to as the Landrum-Griffin Act. 2. Cehaich v. UAW, 710 F.2d 234, 235-36 (6th Cir. 1983). 3. Id. at 237 n.2. Published by Scholarly Commons at Hofstra Law, 1992 1 Hofstra Labor and Employment Law Journal, Vol. 9, Iss. 2 [1992], Art. 2 Hofstra Labor Law Journal [Vol. 9:2 tract was a good one, and to enlist their support in having it ratified. In Dallas, Cehaich "became part of a dissident caucus which opposed the tentative agreement. He was among those dissidents who distributed a leaflet criticizing the agreement," and warning the assembled local leaders that they would bear the brunt of the mem- bership's anger in the next elections.4 In response, the UAW leader- ship instructed GM to remove Cehaich as a benefits representative, which the company did.' When Cehaich sued, claiming his removal from office violated his statutory right "to express any views, arguments, or opinions,"8 the District Court granted summary judgment against him,7 and the Court of Appeals affirmed. The court found that "Cehaich's status as a member of the union remained unchanged after his dismissal from his position as a union officer," and, therefore, he had failed to state a claim under the LMRDA.8 There is nothing unusual about this decision; there is probably no federal court that would have ruled otherwise.9 The union in- volved carefully protects the formal democratic rights of its mem- bers. It does not have a reputation for physically preventing oppo- nents of the leadership from speaking at meetings, or of stuffing the ballot boxes. It is not gangster-ridden and does not have dissidents beaten up. It allows members to appeal many leadership decisions to an impartial "Public Review Board," consisting of prominent outsid- ers whose reputations are above reproach.10 Nonetheless, the union's action prevents the emergence of effec- tive opposition and preserves the union as a single-party monopoly. The current law of retaliatory removals makes absolute loyalty to the leadership the price that must be paid for inclusion in the union's political life. As a result, it blocks the development of effective union democracy and contradicts the goal of the LMRDA. The primary objective of the Act was to ensure that "unions would be democratically governed and responsive to the will of their 4. Id. 5. Id. at 237. 6. LMRDA § 101(a)(2), 29 U.S.C. § 411(a)(2) (1988). 7. Cehaich v. UAW, 496 F.Supp. 912 (E.D. Mich. 1980), aff d, 710 F.2d 234 (6th Cir. 1983). 8. Cehaich, 710 F.2d at 238. 9. It is possible that some courts would hold that the union may not remove non-poli- cymaking appointed officials from office for expressing opposition and that Cehaich was a non- policymaker. See infra notes 446-448 and accompanying text. 10. See Clayton v. UAW, 451 U.S. 679, 682 (1981). http://scholarlycommons.law.hofstra.edu/hlelj/vol9/iss2/2 2 Feldman: Effective Democracy and Formal Rights: Retaliatory Removals of Un 1992] Retaliatory Removals memberships.""' When Congress passed the original National Labor Relations Act (the "NLRA"), it decided that encouraging unioniza- tion was to be the basic labor policy of the United States. 12 In pass- ing the LMRDA, it dealt with the issue of deciding what type of unions that policy required. The LMRDA represents a Congres- sional decision that the national labor policy can best be effectuated by encouraging democratic unionism. The rights at issue in a retaliatory removal are secured by Title I of the Act. However, the entire LMRDA deals with limiting the powers of union leaders, ensuring their accountability to their mem- bers and guaranteeing the members' basic democratic rights.' 3 Title II of the Act, the reporting and disclosure provisions, requires the filing of detailed annual union financial reports with the Department of Labor.' 4 It also provides that members shall have access to that information and the records on which the reports are based.' 5 The availability of financial records of unions and their officers is a means of increasing the accountability of the union hierarchy and has been an important tool for union reform groups.'" Title III of the Act limits the reasons for which a national union leadership may place a local or other subordinate body into trusteeship. 17 Conse- quently, it is more difficult for a national union leadership to estab- lish a trusteeship for the purpose of squelching opposition locals.' 8 11. Finnegan v. Leu, 456 U.S. 431, 436 (1981). 12. See 29 U.S.C. § 151 (1988). 13. The summary which follows does not include all the provisions of the LMRDA, nor does it describe the qualifications and special conditions included in some of the Act's provisions. 14. LMRDA §§ 201(b), 202, 29 U.S.C. §§ 431(b), 432 (1988). 15. Section 201(c) provides that a union "shall make available the information [in the required reports]. .to all its members, and. .shall be under a duty enforceable at the suit of any member. .to permit such member for just cause to examine any books, records, and accounts necessary to verify such report." 29 U.S.C. § 431(c) (1988). 16. See e.g., Sheet Metal Workers v. Lynn, 488 U.S. 347, 349 (1989) (describing rank and file group which used Department of Labor statistics in leaflets to demonstrate disparity in spending by their local officers compared to others). Convoy-Dispatch, the newspaper of Team- sters for a Democratic Union, regularly uses Title II-required information to publicize the multiple salaries of top Teamster officials. 17. LMRDA § 302, 29 U.S.C. § 462 (1988). 18. Title III also provides procedures to eliminate the previous practice in some unions of preventing the development of alternative leaderships by maintaining locals in semi-perpet- ual trusteeships. See James, Union Democracy and the LMRDA: Autocracy and Insurgency in National Union Elections, 13 HARV. L.REv. 247, 326 n.264 (1978) (examining the elections of the United Mine Workers from 1969 to 1973). The Act includes an eighteen month time limit after which a trusteeship will normally be terminated, and allows both private actions by members and actions instituted by the Secretary of Labor on the complaint of a member to terminate a trusteeship. LMRDA § 304(c), 29 U.S.C. § 464(c) (1988). Published by Scholarly Commons at Hofstra Law, 1992 3 Hofstra Labor and Employment Law Journal, Vol. 9, Iss. 2 [1992], Art. 2 Hofstra Labor Law Journal [Vol. 9:2 The trusteeship provisions are evidence of an interest in local auton- omy for the purpose of encouraging opposition. 19 Title IV mandates the periodic election of union officers, requires secret ballots20 and other procedural safeguards. 1 It also sets the maximum terms of office, 2 bars the use of union resources to promote a candidate 3 and provides for enforcement through the Secretary of Labor acting on the complaint of any member.
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