When Herman Benson authored Democratic Rights for Union Members one goal was to provide members a guide to filing election complaints, while another was to provide information about what to expect if the member chose to file with the U.S.Department of Labor’s Office of Labor Management Standards (OLMS). Benson reported on the outcomes of complaints filed with OLMS over the 1966-1970 period.
And the big question: how many complaints result in reruns? Benson found that 42 percent of the valid (timely filed) complaints resulted in rerun elections supervised by OLMS. Have things changed?
We examined OLMS’ Annual Reports, available on their website. We chose 2005 – 2017 because OLMS used consistent and comparable reporting. The chart below, of election outcomes from that period, shows that on average, 132 elections were investigated annually. Of those, 21.4 percent or 28 per year resulted in election reruns. Thus, fifty years ago, reruns took place twice as frequently. The change could be because 1) unions got better at running fair elections, 2) OLMS is stricter about concluding that violations may have affected the outcome, 3) more complaints are being made about minor infractions compared with earlier times, or 4) some combination of these, or other, factors.
Reruns may occur through either an agreement with the union, called a Voluntary Compliance Agreement (VCA), or by lawsuit against the union. Such suits are filed in federal court and the Department will ask a judge to overturn the election and provide OLMS with authority to supervise a rerun.
Benson pointed out that complainant’s rights are much stonger when the OLMS rerun is the result of a lawsuit rather than VCA. The complainant has a legal right to intervene in the court proceeding if OLMS sues, a right established by a Supreme Court decision in 1972, Trbovich v. United Mine Workers. How often is there a lawsuit? For the 28 average annual rerun elections, 22.1 percent or just 6 per year, about 1 in 5, required a lawsuit to obtain the rerun.
Members want to know how long the investigative process takes and what their rights are during it. OLMS has sixty days to conclude its investigation since, by law, the Secretary of Labor has 60 days to file suit after receiving the complaint. OLMS uses a device that allows it more time; it can ask the union for a waiver and if the union agrees, extend the 60-day limit. It is evident from the numbers that OLMS asks for more time. In 2017 OLMS reports that its investigations averaged 65 days; five days longer than the statutory 60-day period — a result of waivers granted. Complainants are informed by OLMS about any such waivers but generally while the 60-day clock is ticking, OLMS will not inform a complainant about details of the ongoing investigation. When agreement is reached, OLMS holds a pre-election conference open to all of the union’s members before a rerun takes place.
Another key consideration is the timing of the new election, In a VCA, OLMS and the union may agree to a supervised rerun of the election in question, or to OLMS supervision of the next regularly scheduled election. The latter outcome leaves the current winner(s) in place until then, resulting in virtually no remedy for the complainant. We examined VCAs over the 2015-17 period. The good news is that only three times out of the total of 62 VCAs or only 4.8% of the time, were VCAs for supervised elections of the next regularly scheduled election.
We often hear from union members who say that they are still waiting for their promised full explanation of why their complaint did not result in a rerun. All they have from OLMS is a short letter of denial. Recall that it is the majority of complaints, an average of 104 out of 132 complaints investigated each year, where OLMS says there was no violation or violations could not have affected the outcome. Pursuant to a 1975 Supreme Court decision in Brennan v. Bachowski, the complainant must be sent a Statement of Reasons (SOR) explaining why the allegations were deemed not to have affected said outcome.
OLMS’ internal plan is that no more than sixty days elapse from the time the investigation finds no need for a rerun, and the issuance of the SOR. The SOR comes from the national office of OLMS, and the field officers have no authority to issue them and the 60-day goal is not always met. On occasion, as many as six months may elapse from the time the decision is made to the issuance of the SOR.
There is still something missing, something very important, in our picture of election complaint outcomes. Unfortunately OLMS does not provide figures on how many election complaints were filed, only on those investigated. To obtain an investigation, the complaint must be filed 1) timely with OLMS and 2) must have properly exhausted internal union remedies. Otherwise, the complaint will result in a “letter of dismissal” advising that OLMS finds the complaint invalid for such and such reason(s). One expert speculates that approximately 100 or so such letters go out each year. Recall that on average 132 complaints are investigated annually. Thus perhaps almost one-half of the 232 or so filed complaints do not meet OLMS’ criteria for validity. We hope to provide more on this question in forthcoming UDRs.