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Generally the constitutions of unions specifically list the offenses for which a member may be disciplined. A study of eighty-one union constitutions by Philip Taft shows the following kinds of offenses:

1. Such general conduct as violating the constitution, bylaws, rules, and laws of the union; disobedience to orders of union officers; slandering a union officer or member; unauthorized circulation of union information; creating dissension and undermining the union; and committing dishonorable acts injurious to the union or to the labor movement.

2. Such specific conduct as advocating or joining a dual union, drunkenness, working at a gambling house, violating trade rules such as strikebreaking, working with nonunion men, and not conforming with union wage policies or other union requirements.31

The Constitution of the Transport Workers' Union of America, CIO, provides that any member convicted of one or more of the following offenses may be fined, suspended, or expelled: 32

(a) Violation of any of the provisions of this Constitution, any collective bargaining agreement, or working rule of the Local Union; (b) obtaining membership through fraudulent means or by misrepresentation; (c) instituting, or urging or advocating that a member of any Local Union institute action in a court against the International Union or any of its officers without first exhausting all remedies through the forms of appeal of the International Union; (d) advocating or attempting to bring about the withdrawal from the International Union of any Local Union or any member or group of members; (e) publishing or circulating among the membership false reports or misrepresentations; (f) working in the interest of or accepting membership in any organization dual to the International Union; (g) slandering or wilfully wronging a member of the International Union; (h) using abusive language or disturbing the peace or harmony of any meeting in or around any office or meeting place of the International Union; (i) fraudulently receiving any money due the organization or misappropriating the money of the organization; (j) using the name of the Local Union or of the International Union for soliciting funds, advertising, etc., of any kind, without the consent of the appropriate body or officer of the International Union; (k) furnishing a complete or partial list of the membership of the International Union or of any Local Union to any person or persons other than those whose official position entitles them to have such a list, and (1) deliberately interfering with any official of the International Union in the discharge of his duties; (m) being a member, consistent supporter of, or active participant in the activities of the Communist party, or of any Fascist, totalitarian, or other subversive organization which opposes the democratic principles to which our Nation and our Union are dedicated.

31 Philip Taft, "Judicial Procedure in Labor Unions," Quarterly Journal of Economics, Vol. 59, No. 3, May, 1945, p. 370.

32 Constitution of the Transport Workers' Union of America, C.I.O., 1952, Art. XIII. Quoted by permission.

The usual procedure in disciplining a member is to (1) serve the accused with written charges, (2) appoint or elect a trial committee, (3) conduct a hearing and reach a verdict of guilty by a two-thirds or three-fourths vote, and (4) provide for appeal through the regional office to the national union's officers and, on occasion, to the convention. The procedures provided for in the constitution of the Transport Workers' Union of America, CIO, illustrate how one labor organization attempts to achieve procedural due process: 33

Section 1. Charges against a member of a Local Union must be made in writing, signed by the member or members making the charges and delivered to the Recording Secretary of the Local Union.

Section 2. At its first meeting after the receipt of said charges, the Local Executive Board shall consider the charges. The Local Executive Board may thereupon dismiss the charges if, in the opinion of the majority of the Board, the charges are baseless or petty. Such dismissal may be appealed to the International Executive Board.

Section 3. In the event that the Local Executive Board should decide that the charges warrant investigation and hearing, the Local Executive Board shall elect a trial committee of three of its own members and shall designate one of its own members to present the charges before the Trial Committee. The Local Executive Board shall also fix the time of the hearing which shall be not less than one (1) week or more than three (3) weeks after the mailing of the notice required in the next section.

Section 4. Where the Local Executive Board refers charges to hearing, the Recording Secretary shall promptly mail to the accused member at his last known address, a copy of the charges, together with a statement of the time and place of the hearing. Such information shall also be given to the member or members who prefer the charges.

Section 5. Within seven days after the conclusion of the hearing the Trial Committee shall report its findings to the Local Executive Board. The member or members preferring the charges and the accused shall each have the right to submit to the Local Executive Board a written statement of their respective positions, which written statements shall be considered by the Local Executive Board along with the findings of the Trial Committee. The accused shall have the right to be represented before the Trial Committee by any member of the Local Union in good standing.

Section 6. The Local Executive Board shall take such action on the report of the Trial Committee as it may deem proper and, in the event the accused is found guilty of the charges preferred against him, shall impose such penalties as in its judgment it may deem fitting and proper.

Section 7. In the event that the accused fails to appear at the hearing at the time and place provided in the notice served upon him, and presents no

33 Constitution of the Transport Workers' Union of America, C.I.O., 1950, Art. XIV. Quoted by permission.

reasonable excuse for absence, the hearing shall proceed with the same force and effect as if he were present.

Section 8. The accused or the accuser may appeal to the International Executive Board and thereafter to the next regular International Convention, provided that he files notice of appeal with the International Secretary-Treasurer within thirty days after notice of the decision of the Local Executive Board or of the International Executive Board from which the appeal is taken. The decision of the Local Union and of the International Executive Board shall be given full force and effect unless a stay thereof is obtained from the International Executive Board. The International Executive Board, in its discretion, may, in reversing a decision, order a Local Union to compensate an individual member for any loss incurred as a result of said decision.

Under the common law, the constitution and bylaws of a labor organization express the terms of a contract which defines the privileges secured and the duties assumed by those who have become members; and if the contract reasonably provides that the performance of certain acts will constitute a sufficient cause for the expulsion of a member, and that charges of their performance with notice to the member shall be tried before a tribunal set up by the labor organization, the judgment of that tribunal ordinarily will not be reviewed by the regularly constituted courts. If the discipline administered is within the power of the organization as defined in the membership contract, a court generally will not review the proceedings or reexamine the merits of the discipline; but a court will set aside the proceedings if the discipline is for acts not constituting violations of the membership contract.34 Ordinarily a disciplined union member may not resort to the courts until he has exhausted internal union remedies as provided in the union constitution, even if hardships might result. If procedural due process is not provided for in the union's constitution or bylaws, however, courts have offered protection.35 One court, for example, has declared that “whether or not the bylaws of an association provide for it, a member is entitled to know the charges against him, to an opportunity to be heard, and a fair trial." 36 In another case, the court held that charges brought against a member must specify the act allegedly done by the accused and that a member of a trial committee may not act as witness or prosecutor.3

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34 For example, see Polin v. Kaplan, 257 N.Y. 277 (1931).

35 "Procedural 'Due Process' in Union Disciplinary Proceedings," 57 Yale Law Journal 1302 (1948). See also Neil Chamberlain, "The Judicial Process in Labor Unions," 10 Brooklyn Law Review 145 (1940); and Clyde Summers, "Disciplinary Practices of Unions,” Industrial and Labor Relations Review, Vol. 3, No. 4, July, 1950, p. 482.

36 Glauber v. Patof, 47 N.Y.S.2d 762 (1944).

37 Coleman v. O'Leary, 58 N.Y.S.2d 812 (1945). See also "The Elements of a Fair Trial in Disciplinary Proceedings by Labor Unions," 30 Columbia Law Review 847 (1930).

The Taft-Hartley Act makes it an unfair labor practice for a union to discriminate against, or cause an employer to discriminate against, an employee expelled from the union for any substantive reason other than his failure to pay dues and initiation fees, but does not make it an unfair labor practice for the union to expel or suspend any member without affording him an opportunity to be heard. Some students of industrial relations advocate that the requirements of procedural due process be imposed by statute upon the disciplinary procedures of labor unions.

CHAPTER 18

General Prounion Activities

It has been noted that employers seek to increase their bargaining power with employees in two general ways: (1) by strengthening themselves through organization, obtaining favorable legislation, etc.; and (2) by weakening the organizing and bargaining power of their employees. The various means by which employers have sought to gain their objectives were considered in Chapters 14, 15, and 16. The means used by employees in improving their bargaining position are classified in the same manner and are discussed in this chapter and the two following.

The Objectives of Employees. In the last analysis, employees strive for greater bargaining power chiefly to gain for themselves a greater share of the joint fruits of industry, and their immediate objections are but means to that end. They find themselves in a peculiarly difficult position, however, when they set out to gain these objectives, for when labor organizes it does so against the active opposition of practically all employers, a considerable proportion of the public, and a surprisingly large number of other laborers as well.

In the first place, the mere relationship of employer-employee, even though there is only one employee, is one in which the worker finds himself dependent and inferior. As employers become more powerful they are able to employ more workers, and the more workers management has in its service the greater is likely to be the disparity in bargaining power between employer and individual employee. Knowing this, employees seek to initiate an approach toward equality by organizing themselves and by presenting their demands as a unit.

A second difficulty in which workers find themselves is one that is inherent in our economy. Employers who are able to hire unorganized labor should be able to produce relatively cheaply, for such labor is competing for jobs and is forced to work for low wages and in unfavorable surroundings. On the other hand, employers who produce with union labor must yield to certain demands, which usually include the

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