Dunlop v. Bachowski and the Limits of Judicial Review under Title IV of the LMRDA: A Proposal for Administrative Reform

Abstract

In 1959 Congress passed the Labor-Management Reporting and Disclosure Act (LMRDA). The goals of the Act were to guarantee the political and civil rights of union members within their unions and to make union officers more responsive to members' welfare. Title IV of the Act established standards to ensure free and democratic union elections and empowered the Secretary of Labor to bring suit to overturn elections upon a member's complaint that those standards were breached. Congress made the Secretary's suit the exclusive post-election remedy for election violations; union members cannot bring private actions. During the 1960s the Supreme Court recognized the Secretary's broad authority to investigate complaints and bring suits in order to guarantee union democracy. However, the individual interest of the complaining union member was ignored by the courts until the Supreme Court's decision in Trbovich v. UMW. There the Court held that the Title IV complainant has a right to intervene in the Secretary's suit. Trbovich prompted greater judicial recognition of the complainant's rights. Most recently, the Supreme Court held in Dunlop v. Bachowski that the Secretary's decision not to sue is subject to judicial review at the instance of the complainant. This Note argues that judicial review under Bachowski has been unsatisfactory as a means of protecting individual rights and that the ultimate solution lies with the Department of Labor or Congress. The review process contravenes the statutory goals of Title IV's enforcement scheme and provides inadequate protection for the complainant's interest in the suit. Indeed, the problem underlying the Bachowski litigation is that the Labor Department's investigatory process does not have rules and procedures necessary to ensure openness, apparent fairness, and sufficient consideration of the complainant's point of view. The Note proposes that Congress overrule Bachowski by amending Title IV to preclude judicial review and that judicial review be replaced by administrative procedures within the Labor Department. The recommended procedures, providing for informal hearing and review analogous to that used in NLRB cases, would give complainants a more meaningful voice without impairing the special enforcement goals of Title IV.