My name is Clyde Summers, and I am Professor
of Law at the University of Pennsylvania Law school. I have been
asked to come here today by Chairman Fawell.
My limited purpose today is to provide some
background on the Labor-Management Reporting Act of 1959, more
commonly known as the Landrum-Griffin Act. I want to focus particularly
on the fundamental premises and purposes of the statute, for understanding
those premises and purposes is essential for any constructive
consideration of how to promote union democracy.
THE ROOTS OF THE STATUTE
We must begin at the roots. When the National
Labor Relations Act (Wagner Act) was passed in 1935, the declared
national policy was to "encourage the practice and procedure
of collective bargaining." One of the basic purposes of the
statute, often lost from view today, was to give workers an effective
voice in determining the terms and conditions of their employment.
It echoed historic declarations that political democracy should
be matched by industrial democracy. Senator Wagner in explaining
the undergirding philosophy of the statute, stated:
THE PREMISES OF THE STATUTE
Collective bargaining, however, can serve
this purpose of industrial democracy only if unions are democratic;
workers gain no voice in the decisions of his working life if
they have no voice in the decisions of the union which represents
This is the basic premise of the Landrum-Griffin
Act: the ultimate goals of collective bargaining can be achieved
only if union members are guaranteed their democratic rights within
the union. The strongest support for the statute came from those
who believed most deeply in collective bargaining and its function
in enriching democracy.
The focus of Landrum-Griffin, therefore,
was to protect the democratic rights of union members and the
democratic process in union decision making. The Report of he
Senate Committee reporting out the bill stated:
Senator McClellan, whose investigations stirred
the demand for legislation, in introducing his Bill of Rights
for union members as an amendment to the Committee proposal stated:
Although much of the McClellan hearings focused
on union corruption, the statute focused on guaranteeing union
members democratic rights. McClellan explained:
A guiding principle of the statute was to
limit legal intervention in union affairs, to let unions govern
themselves. This was to be done by guaranteeing the democratic
process within the union. Democratic decision making would give
legitimacy to union decisions and policies, reducing the need
for legal regulation. Full protection of the democratic process,
however ,was a prerequisite for legitimacy. As the Supreme Court
PROVISIONS OF THE STATUTE
The statute protects and enhances the democratic
process with provisions guaranteeing five basic rights:
2. The Right of Free Speech and Assembly.
Section 101(a)2 of Title I, Bill of Rights gives union members
broad protection to the right to speak and distribute literature
both inside and outside the union, hold meetings or form caucuses
to oppose union policies or officers. It protects, for example,
members who accuse the officers of misuse of funds or abuse of
power, oppose union policies, urge members not to pay dues believed
to be improperly assessed, support a rival union, or oppose the
continuation of a strike. The scope of protection against union
restraints is very much like the protection given against governmental
restraints by the First Amendment, although a proviso may narrow
that protection in certain instances.
3. The Right to Participate in Decision
Making. Section 101(1) of the Bill of Rights is titled Equal
Rights and reaches the right to nominate candidates, vote in
elections or referendums, and to attend and participate in union
meetings. It has been interpreted broadly, however, to reach
beyond "equal" rights so that the right to vote in
referendums is the "right to a meaningful vote". Thus,
the courts have invalidated referendums where the incumbent officers
have worded the ballot so as to favor their desired outcome,
misrepresented the issue being voted upon, or obstructed those
opposed from informing union members of the opposing views. This
section also reaches refusing to allow those opposed to voice
their opposition in union meetings, failing to maintain order
so they can be heard or refusing to put questions to a vote.
It protects in substantial measure the right to participate
4. The Right to Fair Elections. The ultimate
right in a democratic process is the right to elect those who
initiate and administer union policies and manage union funds.
Title IV contains comprehensive regulation of the union election
process, including the right to nominate candidates, the right
to have campaign literature distributed to union members, access
to membership lists, prohibiting the use of union funds for campaign
purposes, prohibiting employer contributions, and regulating
the balloting and counting of the ballots.
5. The Fiduciary Obligation of Union Officers.
Section 501 imposes on union offices a broad fiduciary obligation.
This reaches not only their handling of union funds and a prohibition
of conflicts of interest, but has been held by the courts to
impose the duty to act in accordance with the mandates of the
members, particularly in the use of union funds.
These four fundamental rights are all absolutely
essential for promoting and protecting the democratic process
in unions. The statutory provisions give explicit recognition
of these rights and, as elaborated by the courts, give substantial
protection. They do not give full protection; there are, in my
view, troublesome gaps, but the thrust of the provisions is sound,
and they have made an enormous contribution toward guaranteeing
the democratic process within unions.
This is not the time for me to make specific
recommendations for strengthening the statute. I would, however,
identify four points for attention:
2. Intermediate bodies such as joint boards
or joint councils are treated as equivalent to national unions
or left unregulated. They, in fact, often perform the functions
normally performed by local unions. National unions, by restructuring
to move functions from the local union to intermediate bodies,
can significantly decrease the union members' effective voice
in those functions.
3. Title III of the statute was designed
to limit the ability of national officers to deprive local unions
of their autonomy, particularly where trusteeships were imposed
to repress opposition to the national officers. The statute does
not reach the substitute device of abolishing local unions or
merging them with other local unions without the members' consent
to repress opposition.
4. The primary breeding grounds for corruption
are union funds. The only policing is by union members suing
for access to union books when they have substantial evidence
of misuse of funds, and lawsuits are expensive. The government
should bear more responsibility for auditing of all union related
funds, and closer supervision of pension and other trust funds.
Guaranteeing union members an effective voice
in the decisions of their union and the election of union officers
presents a special problem which is often overlooked. Unions are
political organization, and the democratic process works through
their political process. Their political structure and process,
however, are unlike our government political process.
The union political process is a one party
process, not a two party process. The incumbent officers have
predominate if not complete control over communication within
the union, access to the membership and dispensing of patronage.
Rarely is there a continuing opposition group with a political
base or financial resources. The incumbents, with their built-in
political organization and control of communications have an enormous
advantage over any opposition group which may form. The tendency,
particularly at the national level, is that union leadership tends
to becoe a self-perpetuating bureaucracy. It is not surprising
that incumbent national officers are seldom defeated in elections.
If union members are to have an effective
voice and officers are to be made responsive to the members' preferences,
the fact of this gross imbalance in the political process must
be recognized. Union members need greater protection of freedom
of speech and assembly within the union than citizens in the body
politic. Election rules need to be designed to reduce the imbalance.
Local autonomy needs to be protected so that opposition groups
may build a political base. The advantage of incumbents can never
be fully offset, but the opposition should be given a measure
of hope to encourage them to make their views heard.
I want to close where I began. The demand
that unions should be democratic derives from their role as collective
bargaining representatives. It rests ultimately on the function
of collective bargaining to give employees a voice in the decisions
which affect their working lives.
The commitment to union democracy must rest
ultimately on our commitment to collective bargaining as an instrument
of industrial democracy. In my view, those who are not fully committed
to promoting and encouraging the practices and procedures of collective
bargaining have no standing to discuss, much less demand, union