The AFL-CIO’s “Creative Accounting”

The AFL-CIO has obscured its poor financial condition through “creative accounting,” says Machinists union President Tom Buffenbarger, reports Associated Press.

Tom Buffenbarger, president of the International Association of Machinists and Aerospace Workers, said in a report that the labor federation obscured its financial difficulties heading into last year’s presidential election campaign, in which it backed Democrat Barack Obama. Net assets of the 11 million-member AFL-CIO declined to a negative $2.3 million as of June 30, 2008, from a $66 million surplus on July 1, 2000.

“A new leadership — leaders chosen by our members, leaders help accountable by our members — is needed,” wrote Buffenbarger, who is a member of the AFL-CIO’s finance committee and the president of one of the nation’s largest unions. Alison Omens, a spokeswoman for the AFL-CIO, declined to comment on the report.

Where all that money has gone would take considerable financial detective work to determine, but there are a few obvious places to start looking. First, as the report notes, the AFL-CIO lost more than $13.9 million in annual revenue as a result of the Service Employees International Union, the Teamsters, and some other unions leaving the AFL-CIO in 2005 to form the new labor federation Change to Win.

But that steep drop in revenues seems not to have cooled the AFL-CIO’s aggressive use of pension funds to advance political goals. This is part of a deliberate strategy, as I wrote in 2005, on a Federalist Society-sponsored panel discussion on institutional investors, where the issue of fiduciary duty proved contentious.

AFL-CIO Associate General Counsel Damon Silvers sought to define union pension fund managers’ fiduciary responsibility broadly. First he pointed out that, “There’s a big difference between union and pension funds,” because pension funds have one function, while unions have several functions, and that the AFL-CIO, its affiliates, and “ex-affiliates” — the unions who bolted the old federation and formed Change to Win — seek to maintain that distinction. By this definition, unions’ fiduciary responsibility for their investments does not just address the return on those investments, but how they can advance the unions’ greater goals. As Silvers said, union fund managers must ask the question, “Are these assets being managed in our interest?”

The problem with this view is that such interest can be defined very, very broadly.

Earlier this year [2005], the AFL-CIO successfully pressured some banks and brokerage firms to distance themselves from organizations supportive of the Bush Social Security plan to create private accounts. In a letter to AFL-CIO General Counsel Jonathan Hiatt dated May 3, 2005, Department of Labor Deputy Assistant Secretary for Program Operations Alan Lebowitz stated that, “The Department reiterates its view that plan fiduciaries may not increase expenses, sacrifice investment returns or reduce the security of plan benefits in order to promote collateral goals.” According to The New York Times, the unions’ anti-Social Security reform campaign also involved protest rallies in New York, Washington, San Francisco, and 70 other cities.

The Labor Department was right to call the AFL-CIO on this dubious use of pension funds they are entrusted to manage in the individual pensioners’ interest; any definition of fiduciary that seeks to go beyond increasing shareholder value is mere sophistry. Yet that is precisely what the AFL-CIO has pursued as a deliberate strategy. As Diana Furchtgott-Roth of the Hudson Institute notes in a study of union pension funds:

Over the years, unions have successfully changed the operative meaning of fiduciary duty. This process of change started in the early 1990s when the AFL-CIO published Proxy Voting Guidelines. These guidelines encouraged union pension funds to consider not only how investment decisions would affect a pension fund’s financial performance, but also the effect of these decisions on communities, the environment, and the economy. This overly broad interpretation of “fiduciary duty” has allowed unions to join forces with others in the left-leaning progressive community by making investment decisions whose goals are not always consistent with traditional investment strictures.

In her study, Furchtgott-Roth found that union pension funds are severely underfunded compared to private company pension plans. (The current AFL-CIO proxy voting guidelines can be perused here; see page 21 for the “Corporate Responsibility” section.) While Furchtgott-Roth’s study does not single out the AFL-CIO, and Buffenbarger does not specify pensions as a source of trouble, the AFL-CIO is doing a lot of pensioners no favors by promoting a definition of “fiduciary duty” that concerns itself with political activism.

With union pension funds facing severe shortfalls, the obvious first step for unions seeking to address that problem would be to stop digging — that is, focus on shareholder value without other considerations to cloud investment decisions. But rather than opt for a more conservative investment strategy that they have followed to date, union leaders seem more intent on getting access to more dues by corralling in new members, though changes in the law such as the so-called Employee Free Choice Act’s (EFCA).

EFCA’s card-check provision, which would have allowed unions to circumvent secret ballot elections in organizing campaigns, turned out to be a public relations disaster for organized labor — for good reason. Now, however, union activists and their allies on Capitol Hill are looking for ways to get enough support for a “compromise” that would include EFCA’s binding arbitration provision. Under this provision, if a newly unionized company would have 120 days to reach an agreement with the union that had just begun representing its employees. After that period, a federall appointed arbitrator can come in and impose a contract — including retirement benefits.

Thus, literally overnight, a business could find itself on the hook for millions in pension obligations which it did not itself assume. For the union, this allows it to keep its pension fund going for some time longer. For the company, it could spell disaster.

As far as the government is concerned, it should maintain union financial reporting requirement at least at their current level. Rolling them back would allow greater obfuscation of the kind Buffenbarger is denouncing. Moreover, when workers decide on whether to join a union or not, they need to know what they would be getting into.