Statement of Herman Benson
Subcommittee on Employer-Employee Relations
Committee on Education and the Workforce
June 25, 1998
My name is Herman Benson. I am Secretary Treasurer of the Association for Union
Democracy a small foundation established in 1969 to promote the principles and practices
of internal union democracy in the American labor movement. It can probably be best
described as a kind of civil liberties organization for union members to help protect
their right to free speech, fair elections, fair trial procedures, and fair hiring hall
procedures, precisely the kind of rights written into federal law in the Labor-Management
Reporting and Disclosure Act of 1959. Over the years we have been particularly concerned
with unionists who come to us with reports of racketeers and organized crime in their
Our AUD is non-political. We advocate no special platform or program for the labor movement apart from democracy. We are available to defend the rights of any union member, left, right or center against abuse from any officialdom center, right, or left. Our Board of Directors includes persons who are eminent in the field of union democracy law and related issues. Clyde Summers, who has already testified here and helped formulate the provisions of the LMRDA Bill of Rights. Paul Alan Levy, who is and Arthur Fox, who was attorney to the Public Citizen Litigation Group. Alan Hyde, law professor at Rutgers; Barbara Harvey, a prominent union democracy attorney in Detroit; and James McNamara, former consultant on labor racketeering to the Manhattan district attorney's office.
We do believe that a strong labor movement is an essential element in American democracy. They protect workers against abuse by employers. They defend an American standard of living. They have fought for seniority rights, for pensions, for unemployment insurance. But to fulfill its role effectively, the labor movement must guarantee to its own members in their unions the same democratic rights that it advocates on the outside in society. In short, we believe that union democracy will strengthen the labor movement as a force for democracy in the nation.
I have been a toolmaker and machinist by trade and a member at various times of the Rubber Workers, United Electrical Workers, and International Union of Electrical and Machine Workers. I was, and still am, a member of a fine union, the United Auto Workers. In 1969 I helped found AUD. For ten years before, beginning in 1959, I published Union Democracy in Action, a newsletter, to record the efforts of reformers in many unions. My wife, Revella, worked on the staffs of the National Maritime Union and of the United Federation of Teachers. For six years, I edited the newspaper of the Painters union in New York when it was under the leadership of the courageous reform leader, Frank Schonfeld.
In all this time, more than 50 years, I have been in touch with tens of thousands of unionists, individual rank and filers, organized caucuses, and elected officers in most major unions in the United States, unionists who have faced union democracy problems or who have been engaged in a battle against corruption or authoritarianism in their unions.
It is on the basis of this experience that I assess the level of democracy in unions and formulate some notions of how to strengthen it.
I am strongly convinced that the state of union democracy in the United States today is far superior to its condition 50 years ago before the adoption of the LMRDA in 1959. Before LMRDA, members were expelled for criticizing their officers, usually on charges of slander they could be expelled for suing in court or complaining to authorized administrative agencies; in some unions they could be expelled for organized campaigning for elected office or for circulating petitions within their own union. Now all that is illegal because the basic rights and civil liberties in a union are written into federal law.
The Wagner Act established the right of workers to form unions of their own choosing. The LMRDA established the right of workers to pick union leaders of their own choosing.
The LMRDA, new in 1959, was not self-enforcing. In fact, the U.S. Department of Labor, the agency chiefly responsible for administering decisive sections of the law, has been undependable, feeble, and erratic in its enforcement duties. For some years, it published annual reports on its LMRDA activities. But no more. It is now almost impossible to hold it accountable because its actions are not easily available on the public record. But, despite the weakness of the DOL, the law was instrumental in making changes possible because its very existence on the books encouraged rank and file unionists to come forward in the cause of union democracy and decency; and, over the years, the federal courts have, in the main, applied the law with vigor.
Stimulated and protected by law, union reformers have come forward and have persisted and survived where once they would have been easily suppressed. The list is long, involving many unions. Most notably in the United Mine Workers where a democratic insurgent movement ousted a murderous officialdom headed by Tony Boyle, the man who ordered the murder of reform leader Jock Yablonski. And the Teamsters union, where a reform movement broke the hold of organized crime over the top union officialdom.
There has been a seachange in atmosphere. Advocacy of union democracy, once considered irrelevant, illicit, disruptive in the labor movement, is now legitimized. Even union officials who distrust or fear the workings of democracy are forced to tolerate it. This change has been effected by a combination of three forces: 1) the activities of union rank and filers and some leaders who have come forward in the cause of union reform, 2) the federal law which encourages them and provides a legal base and protection for their efforts, and 3) moral and practical support for their efforts from the public, from workers rights' attorneys, civil libertarians, labor writers and educators, and an organization like the Association for Union Democracy.
The workings of the law have revealed the potential for improving and strengthening unions as workers organizations when the rights of rank and file members are protected. But there is still a long way to go. It is still safer to criticize the president of the United States than your own business agent. In some unions, workers are still blacklisted and deprived of work, or threatened, or beaten for criticizing their union officials. Local police still look on violence against rank and filers in the union hall as a family affair to be ignored just as they once ignored domestic violence in the home. Many unions still enforce attendance provisions which bar over 90% of their members from running for office. Public employee unions which organize workers in state and local government are not covered by the provisions of the LMRDA so that the rights of members in an important segment of the labor movement remain unprotected. Trusteeships are still imposed on various pretexts to suppress critics and are presumed valid for 18 months. The U.S. Labor Department has never challenged a trusteeship until that 18 months has elapsed. In one instance, in the Painters union in 1967, even when a federal judge found that a trusteeship had been imposed to protect a racketeering officialdom, the Department recommended that he sustain its validity for 18 months. Judge Marvin Frankel rejected that recommendation and ordered the trusteeship lifted to be followed by a federally supervised election. That was many years ago, but the DOL policy remains unchanged.
In time some union leaders learn to live with the law, and evade it, much like bacteria sometimes learn to live with antibiotics. If they cannot suppress their critics by disciplining them on contrived charges of slander inside the union, they use union resources to impoverish them by suing them in state court. If they cannot trustee locals and seize their resources, they dissolve them, merge them out of existence, or bury them in undemocratically constituted district councils. It is true that sometimes mergers and reorganizations are justifiable and legitimate to strengthen the union's bargaining position. In that I would agree with Congressman's Payne's comments. What is not justifiable is to utilize such mergers as a pretext for eliminating membership rights: like the right to elect business agents, to vote on contracts or the level and distribution of their dues.
A special situation exists in the construction trades, especially in big cities where the industry is plagued by corruption. The main victims of corruption are the majority of construction workers. Because they have built strong unions, when they work, they are able to maintain a good American standard of living. But where they face collusion between crooked union officials and suspect employers, they are often forced to ignore safety rules, their pension and welfare funds and their union treasuries are pilfered, the provisions of their contracts are violated, their grievances are ignored.
The chief problem is that construction workers have no job security. Their work is temporary, they go from job to job, from employer to employer. When they are working at one site, they are already wondering where the next job will come from. Every construction union contract that I know of gives the employer the unqualified right to reject any application for a job, even when they are referred from the union hiring hall. There is no recourse against unfair treatment. Some contracts even give the employer the right to hire and fire without qualification. Favoritism toward cronies and discrimination against critics is the prevailing norm---not universal, but prevailing. Employers and union officials are both content with this setup. For the employer, if he keeps the business agent happy, he is free to hire and fire whom he pleases and to create not simply a satisfactory workforce, but a docile one which will not complain. For the crooked or authoritarian union official the system permits him to build a political machine, to reward friends and punish critics, to discipline or starve out those who would oppose him. This system makes a mockery of any grievance procedure. A worker who files even justified complaints will soon find that all doors are closed.
In November 1986, testifying in Department of Labor hearings, Laurence Cohen, Chief Counsel of the International Brotherhood of Electrical Workers, oddly enough trying to demonstrate that "mismanagement" in union hiring halls should not be considered a "serious offense" because it was too widespread to control. He said:
"It is, I would go so far as to say, an unfortunate condition of the building and construction industry, which is always a chaotic one, with jobs of short duration and transient employment of people trying to find work and so on, there are hundreds of allegations of hiring hall misuse brought to the Board every year. Frequently, dozens of findings of hiring hall mismanagement by the Board each year. If that alone constituted serious misconduct, the Department of Labor, and ultimately the court, would be doing nothing else other than running around the country trying to remove construction industry business managers in all crafts from office. I guess my basic point is that it is a common occurrence."
The health of democracy in unions, as in society, depends upon encouraging and sustaining those who will speak out and act against injustice, for decency, for fair play. In construction, precisely that kind of individual is silenced and suppressed. Union democracy will never flourish in the construction trades until unions and government defend their right to work in dignity without fear or favor. This is not to say that employers should be forced to hire any drunkard or incompetent. Of course not. It does mean that the job security and right to work of construction workers should be protected under a reasonable system of due process which affords recourse against unfair treatment. A fair hiring system is indispensable to union democracy in the construction trades, and union democracy is the indispensable weapon against racketeering. This idea was emphasized by the Subcommittee on Labor Unions of the City Club of New York when it wrote back in 1937 words that are no less apt today:
"Experience has shown that eradication of racketeering from a union can come only from an aroused and determined membership. Sporadic prosecution is of little avail; one or two dishonest leaders are removed and others come to take their place. The elimination of racketeering within a union must be primarily the concern of the membership which is most directly affected by the racket. The problem is fundamentally one of promoting democratic control" (emphasis in original).
The LMRDA has demonstrated its worth by proving that union democracy can be protected by federal law and that unions are not weakened but are strengthened by it. But many of the problems it was intended to address are still with us. The law and its enforcement should be reinforced. Toward that end I would like to enter into the record a series of suggestions that AUD presented to the Dunlop Commission in October 1984.
I would like to give special emphasis to some of these proposals and add one or two of my own suggestions:
Title I, the Bill of Rights section of the LMRDA is enforceable exclusively by private suit. Title IV, the election provision, is enforceable almost exclusively by the Department of Labor. Both these sections should be enforceable either by private suit or by the DOL as is the case with Title III the Trusteeship section.
In any event, enforcement should be taken out of the hands of the Labor Department as assigned to a special LMRDA agency. In fulfilling all its other responsibilities, the Labor Department properly seeks the cooperation of union officers. But by its very nature, LMRDA enforcement leads to an adversarial relation with these same officers. This inevitable conflict of responsibilities explains why the Labor Department vacillates in fulfilling its LMRDA role.
National and international union leaders should be elected by direct membership vote, a system which provides the membership an opportunity to break through any rigid bureaucratic structure.
The standard for voiding a challenged election should be clarified. At present the Labor Department will challenge an election only if there were violations which "could have affected the election outcome," a standard which it applies by bean counting. The complainant must demonstrate, in most instances, that the violations could have changed the arithmetic balance of victory. Instead the election should be subjected to two kinds of test. An election should be voided if technical violations could have affected the outcome or if the violations were so egregious that they undermined the very process of democracy.
Section 105, which requires unions to inform their members of the provisions of the LMRDA should be enforceable by private suit or by the Labor Department or other administrative agency.
Unions now require candidates for office to have been in continuous good standing for two years before an election in order to run for office. This provision often acts to disqualify long-standing members who fall behind a single month because of a technical error or oversight. It becomes a convenient means of eliminating opponents when a sly administration simply fails to inform a potential rival of his recorded dues status. Any union which enforces such a provision should be required to allow a member a two-month grace period for paying dues and to inform each member in timely fashion that he or she is in danger of losing good standing. Legislation should be formulated to provide for due process in hiring and firing in the construction trades. In conclusion, I would add one quintessential consideration for your committee. You can't have a robust union democracy without strong unions. If you are to be effective in strengthening the rights of members inside their unions, you must protect their right to have unions in society. Workers who feel that their unions are under attack and in jeopardy at not likely to exercise their right to criticize their union officials, good or bad, much like citizens are not likely to tolerate even justified criticism of their government if it is at war.
You can address the needs of workers inside their unions by improving the effectiveness of he LMRDA. But at the same time, to give them a sense of security, you would have to improve the effectiveness of the National Labor Relations Act, which is another story.