Internal Union Matters
Labor unions confront a broad spectrum of legal issues on which they look to the firm for advice. For many of our union clients, we provide such advice on an ongoing basis. In a number of instances lawyers at the firm serve as general counsel of or regular outside counsel to the union, while other clients come to us for advice on an ad hoc basis. Listed below are some of the areas in which lawyers at the firm regularly provide advice:
- Compliance with the Labor-Management Reporting and Disclosure Act (LMRDA). Unlike most other voluntary membership organizations, a union’s relations with its members and the government are highly regulated, primarily but not exclusively by the LMRDA. The firm regularly advises unions regarding LMRDA requirements for union elections, and we have handled many cases before the Department of Labor and the courts – including three Supreme Court cases, Dunlop v. Bachowski, 421 U.S. 560 (1975), Steelworkers v. Sadlowski, 457 U.S. 102 (1982), and Steelworkers v. Usery, 429 U.S. 305 (1977) — involving challenges to union elections. Similarly, the firm advises unions regarding the provisions of the LMRDA and other laws that define when a national or international union may place an affiliated local union in trusteeship, and what procedures must be followed in such situations. In this area as well, the firm has handled a number of cases in the federal trial and appellate courts. In the past few years, the LMRDA provisions governing financial practices and reporting have received increased attention. The firm represented the AFL-CIO in its judicial challenge to the expanded Form LM-2 reporting requirements that were imposed by the Bush Administration, and we regularly advise unions and individual officers and employees regarding DOL reporting obligations. The firm also advises unions when members claim their protected speech and political rights have been improperly chilled by a union and have defended its union clients when those claims produce litigation.
- Administration of agency-fee or fair-share systems. Unions are unique membership organizations. While largely voluntary in nature, a union’s statutory role as exclusive bargaining agent for all employees in any bargaining unit in which a union becomes certified requires that a union provide representation to all employees, not just its members. That obligation is accompanied by the right in most states to charge and collect fees from members and non-members alike to defray the cost of that representation. The firm has extensive expertise in the complex issues that surround the charging of fees to bargaining unit employees who choose not to become members of the union. The firm represents both public- and private-sector unions in designing lawful systems for charging and collecting these non-member fees and in defending those systems in court challenges. We have handled numerous trial court cases involving these issues, as well as dozens of appeals, including the leading Supreme Court cases of Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991); Davenport v. Washington Education Association, 551 U.S. 177 (2007); Locke v. Karass, 555 U.S. 207 (2009); and Knox v. Service Employees International Union, Local 1000, 567 U.S. ___, 132 S. Ct. 2277 (2012). In addition, the firm has advised many other clients on issues that arise in the implementation of their systems, and has handled dozens of arbitration cases in which the proper amount of agency fees has been challenged.
- Internal investigations. The firm is frequently called upon by international or local unions to conduct internal investigations of alleged misconduct by union staff or officers as well as to represent unions and union officials in grand jury or other criminal or congressional investigations of their conduct. The firm has the personnel to handle these highly sensitive matters, which require both an extensive understanding of the inner workings of labor unions, as well as the full set of criminal defense skills and a comprehensive familiarity with the unique world of the congressional investigation process.
- Campaign finance. Unions are subject to an increasing number of federal and state laws regulating fundraising for public elections, including so-called “paycheck protection” laws enacted by some states that attempt to restrict union political activity. Lawyers at the firm advise clients with respect to the requirements of these federal and state statutes. In addition, the firm has represented unions in successful challenges to state efforts to limit union political activity in several states, including Nevada, Utah, Idaho and Washington. The firm regularly represents unions in investigations by federal and state agencies – and by Congress – triggered by allegations that their conduct has not been in compliance with campaign finance laws.
- Compliance with Section 302 of the Labor Management Relations Act. Section 302 sets strict limits for certain kinds of financial transactions involving unions and establishes criminal penalties for unions and union officials who violate the statute. The LMRA applies to requests for, or receipt of, “things of value” from an employer. While simple on its face, the statute raises difficult questions in many contexts, including jointly-administered benefit funds and other joint union-management programs and activities. The firm regularly advises clients with respect to these matters, and represents both unions and union officials in Section 302 issues before the federal enforcement agencies and in litigation.
- The Union as employer. The firm provides advice on a wide range of issues that arise for unions in their capacity as employers, including dealing with their own employees and staff unions. This work includes negotiating collective bargaining agreements with staff unions, defending unions in arbitrations and other proceedings brought by employees of the organization or by a staff union, and advising unions about compliance with federal, state and local laws applicable to unions and employers.