WHAT DO YOU THINK? LEGAL OR ILLEGAL?

Can a union constitution prohibit members from holding more than one elected office at a time even if at different levels of the organization, e.g., local president and regional vice president on the national executive board?  Many, many union leaders have held multiple offices simultaneously.  One of the more famous was Albert Shanker who was simultaneously president of the nationwide American Federation of Teachers, president of its New York City local affiliate–the United Federation, and Vice President of the NY State United Teachers.  He was a gifted and talented leader who virtually created teacher collective bargaining in this country by having influence at so many levels.  Given the wisdom of any organization getting the most out of its best leaders, this is an issue many wrestle with.  Unfortunately, … 

the legality of such a rule is unclear.  Neither the courts nor Dept. of Labor have given us any binding precedents, there are policy arguments for and against the rule, and the decision is based on the facts of each case because unions have a variety of political structures.  But none of that changes the fact that this is a very important policy decision for any union and that union leaders should be aware of their legal obligations before endorsing the rule.  Otherwise, a single challenge could force a rerun off all elections.  This is not going to be a piece of high legal scholarship on the issue, but a rough overview of the law and policies perspectives circling the issue. We do not give legal advice.

The legal analysis starts with the Standards of Conduct which set out the minimum guarantees for union members involved in union officer elections. The Standards state, “Every labor organization subject to the CSRA or FSA shall conduct periodic elections of officers in a fair and democratic manner.” (29 CFR 458.29) The Dept. of Labor, which enforces the Standards against federal sector unions has stated, based on an underlying statute, that –

Every member in good standing is eligible to be a candidate and to hold office subject to reasonable qualifications in the union’s constitution and bylaws that are uniformly imposed. The factors that must be considered in determining whether a qualification is reasonable include the following:

• Its relation to the legitimate needs and interests of the union;
• Its relation to the demands of the union office to which it is applied;
• The number of members who are disqualified by its application;
• A comparison of the qualification with the requirements for holding office generally prescribed by other unions; and
• The degree of difficulty union members have in meeting the qualification.

Given the ambiguity of terms such as fair, democratic, and reasonable, the next step in the search for a possible answer are case law precedents on closely related matters. The federal courts, including the Supreme Court, have often applied those provisions to related election questions and left us with some important holdings that could be applied to our set of facts.

In one case, the Supreme Court wrote, “Congress plainly did not intend that the authorization in § 401(e) of ‘reasonable qualifications uniformly imposed’ should be given a broad reach.” (See Wirtz v. Hotel Employees, Local 6, 391 U.S. 492 (1968) In other words, courts should limit the deference they give the union’s rules about members’ statutory rights even if already part of a union’s constitution.

That same court went on to hold that, “The Act’s principal aim is to promote democracy in union governance, and the thrust of Title IV is that members be allowed to exercise their own judgment in selecting candidates for office….The check of democratic elections as a preventive measure is seriously impaired by candidacy qualifications which substantially deplete the ranks of those who might run in opposition to incumbents.” Note the Court’s use of the word “substantially” versus majority or even super majority.

A subsequent Supreme Court decision (Steelworkers v. Usery, 429 U.S. 305 (1977)) added a third benchmark, namely, requiring that , “a member decide upon a potential candidacy at least 18 months in advance of an election impair[s] the general membership’s freedom to oust incumbents in favor of new leadership.”  That concept raises the possibility that a court might disapprove of constitutional clause that means a member’s decision to run for and hold any elected office in a local for three years prevents him/her for those three years from being nominated for, elected to, and holding a regional VP slot—unless the member agrees to forfeit the local office to which the members elected him/her.  Any time an interpretation of law results in local union voters forfeiting the right to continue in office the person they elected, the elected officer losing the right to continue in an office to which s/he was elected, and a different voting constituency losing the right elect that person to office at a different level of the organization, the constitutional policy should be rigorously examined.

Against that background of statute, regulation and case law, those supporting the rule have the right to implement the limitation if it is reasonable given the specific facts.  A federal circuit court decision issued late in President Clinton’s term put it this way, “’A requirement that has a ‘large antidemocratic effect’ might be justified by ‘show[ing] that the requirement serves valid union interests,’” (See  Herman v. Local 1011, USWA, 207 F.2d 924 (2000))

Calling union election rules “paternalistic” when they limit member’s rights to vote or hold  office the court held that if a union wants such a rule, “The union must then present convincing reasons, not merely conjectures, why the condition is either not burdensome or though burdensome is supported by compelling need.” For example, suppose a union of 50,000 members had 100 locals and each local had five elected officers.  A rule against holding more than one office simultaneously would deny members the chance to elect 500 office-holding local members to other elected offices elsewhere in the union.  On the one hand, the so-called burden of that rule only excludes 1% of the total membership from holding the open office.  But, on the other hand, it also excludes a substantial majority of all the members who not only are the most tested, experienced, and knowledgeable about the union, but also who have shown an interest in holding union leadership positions. It also excludes 100% of a class of union members, namely, those holding union office and who likely are best positioned to challenge an incumbent.  If an entire class or category of members can be excluded for this reason, what would stop exclusion from office employees on permanent telework, or who work in a small division of a very large unit?  At least, that is what those opposed to the rule would likely argue.

Given that circuit court’s position that reasonableness of a rule would turn largely on its demonstrable value to the union’s effectiveness and whether that value is sufficiently significant to outweigh what office holders and two voting constituencies lose under the rule, a union wanting this rule would be best protected if it had some objective data supporting its rule, e.g., how many members currently hold an elected office, how many elected offices exist at each level of the union, what do similarly situated unions do, what are the demands of each position and how much time would they require, etc.  For example, NATCA supplements the full-time official time positions its regional vice presidents hold with a $24,000 annual stipend in return for them running regional NATCA offices, appointing members to committees, and even doing some arbitration cases.

Relying simply on an opinion or value-based policy perspective could be risky.  Those perspectives differ from person to person, e.g., a local officer holder might want to participate at a higher level of the union too while the person holding that higher level office might appreciate the stability and repose of not having to run against tested campaigners holding local office.

Here are just a few of the policy perspectives we see clashing:

• There should not be a limit on how the union’s best leaders can serve the union versus the more people involved in union leadership positions the better.
• Allowing someone to hold multiple offices simultaneously helps the union develop more experienced candidates for even higher office in the future versus there is a tangible and significant conflict of interest in holding two positions at the same time. (Remember, no conjecture when alleging a conflict of interest.)
• Allowing someone to hold multiple elected offices would make it easier to oust an incumbent unresponsive to the members versus incumbents need some protection if they are expected to make hard decisions.
• Those who hold the votes at an executive board meeting should be chosen from those who hold the votes at a convention versus interim governance of the union through the executive board should not be done by those who hold votes at the national convention.

Given the multiple and often conflicting policy perspectives, it seems a union favoring the limitation on holding multiple offices simultaneously can better defend its limitations by narrowly tailoring its limitation.  For example, it could limit only

• those local officers in their first term of local office from holding an additional office,
• those who already draw a salary or stipend from one office from holding another union-compensated office,
• those seeking to hold more than two offices, or even
• those who would hold a certain combination of offices, e.g. national Secretary-Treasurer and Executive Board Vice President.

We have deliberately not taken a position for or against a limit on holding multiple offices.  This is something that should be decided by those who write and amend union constitutions. They know best the union’s need for talent, succession planning, and checks and balances. We have simply tried to give them a broad appreciation for the pros and cons of such a rule.  And that is all we will say for now.