Sending Office: Honorable Mark Pocan
Join Bi-Partisan Public Comment Against Proposed Rule:
“Labor Organization Annual Financial Reports: Coverage Of Intermediate Bodies”
Deadline: COB Today, February 13, 2020
Supported by: National Education Association (NEA), American Federation of Teachers (AFT)
We write to invite you to join a public comment to a proposed rule by the Department of Labor (DOL) that would negatively impact organizations such as the National Education Association (NEA), the American Federation of Teachers (AFT), the Fraternal Order
of Police, and the International Association of Fire Fighters.
Congress passed the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) to govern the reporting and disclosure of financial transactions and administrative practices of labor organizations and employers. In the more than half century since its
passage, Republican and Democratic Administrations alike have recognized that the LMRDA applies only to labor organizations that represent, or seek to represent, private sector employees. Proposing to extend the reporting requirements of LMRDA to public sector
unions, as this rule does, is not only unnecessary and cumbersome, it is against Congressional intent and the statute itself.
Please join us in standing in support of the historical interpretation of LMRDA and in support of public sector unions. Join this bi-partisan public comment to the DOL in response to its proposed rule “Labor Organization Annual Financial Reports: Coverage
of Intermediate Bodies”. If you would like to sign on to the letter, please have your staff contact Andrew O’Neill (Andrew.ONeill@mail.house.gov) with Rep. Pocan or James Longley (James.Longley@mail.house.gov)
with Rep. Fitzpatrick.
Mark Pocan Brian Fitzpatrick
Member of Congress Member of Congress
February 18, 2020
Arthur F. Rosenfeld, Director
Office of Labor-Management Standards
U.S. Department of Labor
200 Constitution Avenue NW
Washington, D.C. 20210
RE: Comments of ___ Members of the House of Representatives on RIN 1245-AA08, Labor Organization Annual Financial Reports: Coverage of Intermediate Bodies
The undersigned Congressional Representatives submit these comments in opposition to the U.S. Department of Labor’s (“Department”) proposal to issue a rule deeming a small subset of pure public sector labor unions to be covered “labor organizations” under
the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”). The Department has no authority to rewrite the LMRDA in the manner proposed.
For more than four decades after the LMRDA’s enactment in 1959, under both Republican and Democratic Administrations, the Department has understood that the LMRDA only reaches “labor organization[s]” that represent or seek to represent private sector employees.
That much is plain from the statutory findings that Congress included in the LMRDA, which explain that the Act was “necessary to eliminate or prevent improper practices on the part of labor organizations. . . which distort and defeat the polices of the Labor
Management Relations Act, 1947, as amended, and the Railway Labor Act, as amended,” 29 U.S.C. § 401(c), both statutes that regulate only the private sector. And that conclusion is further confirmed by the definitions that Congress crafted for the LMRDA, which
define covered “labor organization[s]” as ones that represent employees who work for private sector employers.
See 29 U.S.C. § 401(e) (expressly excluding public sector employers from the definition of covered employers).
Notably, Congress arrived at the LMRDA’s carefully crafted definitions of covered entities only after first considering a version of the bill that
did include public sector unions. See S. 1555 As Reported, reprinted in Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (“Legislative History”), Vol. I, at 385-87 (U.S. Gov’t Printing Office
1959). But at the urging of Senators Goldwater and Dirksen, see S. Rep. No. 187 on S. 1555,
reprinted in Legislative History, Vol. I, at 483-84, that provision was dropped and the statute as enacted was restricted entirely to private sector unions.
See April 15, 1959 Congressional Record, reprinted in Legislative History, Vol. II, at 1021; S.1555 As Passed Senate,
reprinted in Legislative History, Vol. I, at 569-70.
In line with the carefully drawn terms of the LMRDA, and Congress’ clear intent that the statute only regulate the private sector, the Department has never enforced the LMRDA against a pure public sector labor union, meaning a union that represents only
public sector employees. While the Department did propose during the George W. Bush administration to interpret the LMRDA to reach certain public sector labor organizations, it rightly abandoned that effort in 2010 to reinstate its longstanding – and indisputably
correct – position that the LMRDA only reaches private sector unions.
The Department’s current proposal to reverse course rests on an interpretation of the statute and a policy objective that is beyond the Department’s authority to choose. In support of its proposed rule, the Department proposes to read into the fifth clause
of the provision defining when a covered entity is “engaged in commerce,” 29 U.S.C. § 402(j)(5), a brand new category of organizations covered by the LMRDA. Specifically, the Department proposes that that fifth definition of how a covered entity must engage
in commerce actually sweeps into the LMRDA what the Department terms “intermediate labor bodies” that are pure public sector unions but are “subordinate to a national or international labor organization that includes a union that represents private sector
workers.” And the Department goes on to explain that these intermediate bodies, in its view, primarily consist of affiliates of the National Education Association and the American Federation of Teachers.
There is no provision in the LMRDA that extends coverage to “intermediate labor bodies,” much less to pure public sector intermediate labor bodies. Rather the LMRDA covers “labor organization[s]” and “conference[s], general committee[s], joint or system
board[s], or joint council[s],” 29 U.S.C. § 402(i), which the Department has recognized consist solely of administrative units of national or international unions.
See 29 C.F.R. § 451.4(f). Needless to say, statewide public sector unions such as the statewide educator union affiliates at which this proposed rule appears to be targeted, do not fall within the clear statutory language.
Undeterred by the lack of a statutory basis in the relevant definition section of the LMRDA for its new proposed interpretation, the Department claims that the rule is supported by “the increase in public sector unionization since Congress enacted the 1959
LMRDA.” The Department posits that the fact that public sector unionism was in its infancy in 1959 and has since blossomed into a vibrant sector of the labor movement calls for the extension of the LMRDA to its newly crafted category of intermediate labor
organizations. Or, as the Department puts it “changed circumstances among public sector unions counsel a change in the reporting regime.”
Congress did not grant the Department the authority to rewrite the LMRDA. If “changed circumstances” warrant a change in the law that is the job of Congress, not the Executive Branch. The Department should abandon its ill-considered effort to rewrite the
LMRDA to reach pure public sector unions that Congress never intended to regulate under the LMRDA.
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