from the BUREAU OF NATIONAL AFFAIRS:
Construction Labor Report
Volume: 49 Number: 2452
December 03, 2003
DOL Must Take 'Appropriate Action'
In Carpenters Regional Council
LABOR SECRETARY ELAINE CHAO MUST take "appropriate action" within 30
days consistent with the U.S. District Court for the District of
Massachusetts's finding that her failure to treat the New England
Regional Council of Carpenters in Boston as a "local labor
organization" was arbitrary and capricious, according to the court's
most recent order in the case (Harrington v. Chao, D. Mass., No.
While not stated in the court order, one source familiar with the
matter said Chao has three choices: rewrite her statement of reasons
regarding the regional council's standing under the Labor-Management
Reporting and Disclosure Act, file an appeal, or order the council to
conduct a rank-and-file election of officers.
Another source said one result from the litigation could be that DOL
will be forced to write new LMRDA regulations or draft new rules.
Michael Feinberg, with the Boston law firm of Feinberg, Campbell &
Zack, representing Harrington, Dec. 1 said the court "has effectively
ordered DOL" to require the regional council to conduct a new election.
According to Feinberg, "there is no other appropriate action available
to DOL once the judge found [the regional council] to be a local labor
The dispute stems from union member Thomas Harrington's request for a
rank-and-file vote, instead of a vote by delegates, for regional
U.S. District Court Judge Richard G. Stearns issued the order after a
review of submissions by the parties responding to this Oct. 8 decision
granting Harrington summary judgment. Stearns held that the Labor
Department erred in exempting the regional council from complying with
LMRDA-mandated procedures governing local union elections (49 CLR 1079,
At issue are reforms instituted by Douglas McCarron following his
election to a first term as president of the 525,000-member Carpenters
and Joiners of America in 1995. Under those reforms, the international
implemented procedures in which local union members, under an
agreed-upon formula, elect delegates to regional councils. Those
delegates, in turn, elect council leaders who appoint business agents.
Previously, local business agents and officials were elected directly
by local union members.
Restructuring instituted by McCarron combined state and district
councils into larger regional councils. In New England, the
restructuring created the regional council overseeing 30 local unions
with more than 25,000 members. The local unions continue to function as
separate entities with their own bylaws and functions separate from the
Harrington, then a Carpenters business agent and now NERCC's chief
executive officer, filed a grievance in 1999 with the international
union. He argued that the regional council was not an "intermediate
body," as asserted by the international union, but a "local labor
organization." As such, the council was required under Section 401(b)
of LMRDA to "elect its officers not less often than once every three
years by secret ballot among members in good standing," Harrington
In April 2000 the labor secretary held that the regional council was
considered an "intermediate body" under LMRDA and may therefore elect
its officers every four years either by secret ballot or by delegate
vote. Harrington challenged that determination in a complaint filed in
district court, which was dismissed. He then appealed to the U.S. Court
of Appeals for the First Circuit.
In Harrington v. Chao (169 LRRM 2458), the First Circuit vacated the
secretary's statement of reasons and remanded the case to the district
court with instructions to the labor secretary "to better explain" the
reasons for finding NERCC to be an intermediate body within Section
401(d) of the act. The appellate court found the secretary's statement
of reasons for refusing to initiate a civil enforcement proceeding
"insufficient to permit meaningful judicial review" (47 CLR 1447,
In its second ruling in the case on Oct. 8, the district court granted
Harrington summary judgment. In responses to that ruling, Harrington
asserted that DOL should be denied a third opportunity to review the
matter and be required to comply with federal district and appellate
court orders to conduct the elections. DOL's response was that
requiring an election of officers by a vote of all union members in
locals affiliated with the regional council would be premature and
would raise constitutional issues.
Neither DOL officials nor international union officials could be
reached for comment.
Implications for International Unions.
Counsel representing opposing parties who asked not to be identified
said the outcome of this case has enormous implications for
international unions. He noted that in Harrington it is 'incorrect" to
examine the relationship between local unions, the regional council,
and the international union. Instead, he said a "functions" test is
applied to the regional council. For example, does the regional council
negotiate collective bargaining agreements and hire business agents, he
In the event the Carpenters regional council in Boston is held to be a
"local labor organization" under LMRDA based on an analysis of
functions, he said it is entirely possible international unions that
negotiate national agreements could be similarly classified--and
subject to the same LMRDA rules as a local union.
For this reason, a union source said, a number of international unions
are "nervous" about the outcome of the Harrington case.
By Brian Lockett
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