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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 Election

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. 00-11028, 11/25/03).

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 organization."

The dispute stems from union member Thomas Harrington's request for a rank-and-file vote, instead of a vote by delegates, for regional council officers.

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, 10/15/03).

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 regional council.

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 argued.

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, 2/27/02).

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 said.

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
Copyright 1998-2004 The Bureau of National Affairs, Inc



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