Alice O’Brien is NEA’s general counsel.
In a nakedly political move, the Trump U.S. Department of Labor has announced its plans to force all NEA state affiliates to comply with the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”). For more than 60 years, that statute has been enforced only against private sector unions. Suddenly, the Trump administration has decided that certain public sector unions–primarily, NEA state affiliates–should be subject to the LMRDA.
Here are six things you should know about this burdensome regulation change and what you can do about it.
Why is the Trump administration targeting NEA state affiliates?
The Labor Department has explained in its proposed rule that extending LMRDA coverage to NEA state affiliates makes sense given “[t] he increased prevalence of public sector unions and their use of substantial monies affecting matters of great public interest, like state spending[.]” In other words, the Labor Department wants to extend LMRDA requirements to public sector unions because they are powerful and exercise significant influence on important public policy.
Is the Labor Department proposing that all public sector unions be subject to the LMRDA?
No. The Labor Department is proposing to extend LMRDA coverage only to what it terms “intermediate labor organizations,” which are defined in the LMRDA as “any conference, general committee, joint or system board, or joint council.” The LMRDA’s legislative history demonstrates that this provision was intended to sweep into the LMRDA certain private sector associations of labor unions, like the Western Conference of Teamsters, whose activities prompted the enactment of the LMRDA. To remedy that deficiency, the “conference” language was added to the LMRDA to make sure that these types of “associations of labor unions” would be covered by the LMRDA even though they did not otherwise qualify as labor organizations under the statute.
Even though NEA state affiliates are not these types of “associations of labor unions” but are organizations in which employees directly participate and hold membership, the Labor Department is still proposing to subject NEA state affiliates to the LMRDA.
Why does it matter if NEA state affiliates are subject to the LMRDA?
NEA state affiliates are already subject to extensive safeguards ensuring member voice and financial transparency as specified in the state affiliate’s governing documents, state labor and other laws, and federal tax laws. Subjecting state affiliates to the LMRDA as well will require affiliates to divert union resources and staff time from important union priorities to LMRDA compliance. Even by the Labor Department’s own estimates, merely filling out the required annual LMRDA financial reports will take 530 hours of time. And NEA has determined, based on analyses performed by several of its state affiliates, that the Labor Department has vastly underestimated the compliance costs involved. When all is said and done, if NEA state affiliates are subjected to the LMRDA on top of the state and federal law requirements with which they already comply, affiliates will have to divert significant resources to LMRDA compliance at the expense of advancing those affiliate’s priority work in other areas.
What would NEA state affiliates have to do to comply with the LMRDA?
NEA state affiliates would need to change their financial and timekeeping systems to comply with the LMRDA’s extensive annual financial reporting requirements. In addition, NEA state affiliates may also need to change their internal governing documents, their internal union election procedures, and more in order to comply with the LMRDA. The significant compliance costs involved will come at the expense of work supporting other union priorities.
Has the LMRDA ever been applied to public sector unions?
No. By its terms, the LMRDA applies only to private sector unions. And since 1959 the Labor Department has only enforced the LMRDA against private sector unions (meaning unions that represent or seek to represent private sector employees). In fact, when the LMRDA was initially proposed in the U.S. Senate it would have covered public sector unions, but the bill was quickly amended to restrict its scope purely to private sector unions. On one prior occasion, during the Bush administration, the Labor Department did attempt to stretch the LMRDA to reach certain public sector unions (including NEA state affiliates), but that effort was subsequently abandoned. The fact is that only Congress, not the Department of Labor, has the authority to amend the LMRDA to reach public sector unions.
What can I do to encourage the Labor Department to abandon its proposal to subject NEA state affiliates to the LMRDA?
The Labor Department has asked for the public to comment on its proposal. So far, hundreds of individuals have weighed in, many of them Trump supporters who support the proposed rule as a way to “drain the swamp” and take down public sector unions. You can see the comments filed to date here.
Make sure that the Labor Department hears from you too about why the proposed rule is unnecessary and will come at too high a cost to the priority work of your union. You can file a comment below. Please be sure to edit the draft letter to include information about who you are and why you oppose the change to the LMRDA.
Tell the Labor Department to Stop its Proposed Rule Targeting State Education Associations
In general, comments that are personalized carry more weight. Please change the letter below to say a little about yourself.