AFSCME Council 93 is the exclusive bargaining representative of 45,000 members in four New England states. The Council’s Executive Board establishes policy and hires an executive director who, with a staff of 50, runs the organization on a day to day basis while reporting to the Board. Meanwhile, Locals and their members are assigned to thirteen Districts of various different size, varying from 1,500 to 5,500 members. And each District is authorized to elect a designated number of members of the Council’s 50-member Executive Board.
There is just one problem: the Council’s constitution gives some small Districts the right to fill up to five times the number of seats on the Executive Board than several very large Districts are entitled to fill. As a consequence, the voting weight or power of some New England AFSCME members is vastly greater than that of other members when it comes to electing the Executive Board of Council 93 whose policies determine every members’ wages, hours and working conditions.
For years, Pharamond Conille and other Council members had sought in vain to amend the Council’s constitution to allocate a proportionate number of seats on the Executive Board to each of the thirteen Districts based on the size of their memberships. Frustrated by the road blocks placed in their way by the Council’s leadership, Conille and a host of other members in Local 402 hired Boston area attorney Mark Stern who, with the aid of AUD board member/lawyers Arthur Fox and Barbara Harvey, filed a lawsuit in August 2017 alleging that Council 93 was unlawfully denying its members their “equal voting rights” guaranteed by Title I of the Labor Management Reporting and Disclosure Act.
After a two-day trial just prior to a November, Council 93 electoral convention, U.S. Distict Judge William Young verbally advised Council 93’s lawyers that he found the Council’s grossly disproportionate allocation of representation on its Executive Board to be “unequal and undemocratic.” However, he said he would temporarily withhold issuance of a formal decision and judgment to give the Council the opportunity at its upcoming convention to reform its constitution “voluntarily.” And, he ordered the parties to report back to him immediately after the convention whatever relevant developments may have occurred during the event.
Indeed, Conille had timely proposed a constitutional amendment which, if adopted, would have allocated a roughly proportionate number of seats on the Council’s Executive Board to each of its various Districts. But, during the convention he was denied the opportunity to speak on behalf of his proposed amendment and the delegates were not informed of the Judge’s stern warning. Indeed, there was no mention of any need to reform the constitution’s skewed allocation of seats on its Executive Board among the various Districts which was perpetuated by the Convention.
When the Judge was notified of this outcome, he summoned the parties and told them in no uncertain terms that “the obvious disproportionality that exists today is unacceptable . . . and Council 93 is in violation not only of [the LMRDA], but also of the requirements of adequate representation guaranteed by the International [AFSCME Constitution].” And he ordered the Council to amend its constitution at its November 2018 legislative convention to ensure that its Executive Board would thereafter provide equal representation to all 45,000 members of the Council.
Defendants promptly appealed the Judge’s opinion and order to the U.S. Court of Appeals for the First Circuit whose jurisdiction covers all New England states. In their brief, the Union’s attorneys argued that the LMRDA doesn’t apply to “intermediate union entities” like Council 93 and even if it did apply, it did not require “strict proportionality” that would provide each and every member with precisely, equally-weighted voting rights.
In their brief, plaintiffs pointed out, as did AUD in an amicus (friend of the Court) brief filed by Professor Michael Goldberg, that the District Judge had implicitly recognized that mathematically exact proportionality would be impossible to achieve in large intermediate and national union officer elections. Indeed, while a couple of other courts have, over the years, upheld what they found to be “rational” voting formulas employed by other unions to insure closely approximate, proportionate representation of members by intermediate entities, no court had ever sanctioned the wildly disproportionate representation of Council 93’s members which the Council had not even attempted to justify. Moreover, contrary to the defendants’ claims, the Judge did not, in fact, order Council 93 to achieve “strict proportionality” but rather left it up to the Council to decide on, and to implement an appropriate voting formula that would guarantee the thousands of AFSCME members approximately equal voting rights.
A 3-judge panel of the appellate court heard oral arguments on October 1st and will soon issue a written opinion that could possibly establish a new legal precedent interpreting the “equal voting rights” of union members guaranteed by Title I of the LMRDA. Stay tuned for further analysis thereafter.