Thursday, November 13, 2008

Statement to the SEIU Ethics Commission

After three prominent leaders of the Service Employees International Union were charged with misappropriating hundreds of thousands of dollars from their local union treasuries, the SEIU set up an ethics commission to recommend measures that the union might take to guard against such misdeeds. The commission includes representatives of the union itself and eminent individuals independent of the union. Herman Benson, for AUD; and Ken Paff, for TDU were asked to submit suggestion to the commission. Benson submitted the following statement to the commission and was interviewed by a commission sub-panel on November 12.

To: Members of the SEIU ethics commission
From: Herman Benson

Since I am unable to attend the meeting in Washington and I know the limits of participating by phone, I herewith transmit my thoughts and suggestions. I would like to thank the commission for this opportunity to participate in its deliberations.

I am not completely clear on what this commission is charged with bringing back to the union. If it is asked simply to bring back a code of commandments that should guide the ethical and moral actions of union officers and members, that task would be easy and should not take long. Codes already proliferate throughout the labor movement; the SEIU has a modest code of its own. The existing codes could easily serve as the basis for elaborating and strengthening an even more impressively formulated code. However, the bare existence of even the best of these codes has had an inconclusive effect on actual life in unions. The neglected problem has been enforcement.

If, on the other hand, the commission aims, not only to suggest a new and better code, but to propose the creation of mechanisms and institutions that might enable the union to enforce adherence to high ethical standards, it takes on a heavy responsibility not easily fulfilled.

In episodic situations, unions have occasionally been able to deal with misappropriation of money and "ordinary" corruption (as far as I know, never with organized crime), but there has never been a successful, sustained, effort with lasting results from within the labor movement itself. In 1957, the AFL-CIO tried with its Ethical Practices Committee and Codes. Recently Ed Stier tried in the Teamsters union. Both were failures. Unfortunately, the labor movement has had to depend upon the U. S. Justice Department to police it against massive theft and organized crime infiltration. Why has the labor movement been unable to adequately police itself? I've thought long and hard about this vexing question.

As I see it now, the weakness of any internal union effort stems from two sources: 1.The power relationships within unions make it politically awkward and inconvenient for even well-meaning union leaders to act against suspect elements in the power structure. That reality permits corruption to fester and makes it difficult to eradicate. 2. In resisting corruption, even with the best will in the world, unions lack the weapons routinely available to law enforcement authorities: wire taps, extensive surveillance, FBI etc. files, subpoena powers, threat of contempt charges.

I mention all this, not to disparage or discourage action but only to make clear how big a job this commission, or any body inside the labor movement, faces. It seems to me, you must be ready to propose measures that go beyond what is conventional in the labor movement or may be downright unpopular. As Obama might say: the old way has failed: we might at least consider the new. In that spirit, I offer my own thinking which I would sum up as follows:

1. We need an authority, within the union which can free itself from internal union politics and can rise above the familiar maneuvering and conflicts for power, prestige, and perquisites. We need an appeals or enforcement institution that is completely independent of any union's own administrative structure, not beholden to any established officialdom, and under certain conditions, free to overturn decisions of the union president or international executive board. 2. Lacking the tools of government law enforcement authorities, we can depend upon the hundreds of thousands of good union activists, whose eyes and ears and dedication to the labor movement, can make them effective guardians of integrity. But for that, we need to create the kind of genuine democratic atmosphere within the union that encourages members to speak their mind without fear of denunciation or retaliation.

In that connection, I offer the following observations:

I: The implementing or enforcement body

Here, the commission can begin by considering the Public Review Board of the United Auto Workers. After the ACLU proposed the creation of such boards in the labor movement, the UAW set up its board upon the initiative of Walter Reuther in 1957; it remains an effective functioning body. The remarkable feature of this move is that it represents the voluntary relinquishing by a union leadership of a measure of its authority to a body composed of individuals outside of the union and independent of its power structure. As an authoritative appeals committee, it offers recourse to members against decisions of the union's highest officers, including the president and international executive board. It is limited only by its inability to review UAW official collective bargaining policy. Its decisions are readily available to UAW members and the general public. (See Articles 32 and 33 of UAW Constitution)

To remain effective, any such a review board must be composed of individuals of unquestioned integrity. If its members were chosen for their deference to the union leadership or dependence upon it, the board would lose all credibility. The UAW has passed this test by selecting people who are pro-labor, civil libertarian in outlook, and eminent their own careers. UAW-PRB members are nominated by the international president, subject to approval by the international executive board, and finally elected at the UAW convention. They serve a term of five years. Any vacancy in mid-term is filled from nominations by the board itself.

I would make at least one suggestion to strengthen the board's reputation for independence. The union president should make his selections from a whole roster of nominations submitted by organizations like the ACLU, NAACP, the UAW Public Review Board, the Association for Union Democracy, the Public Citizen Litigation Group. In that case, while the union retains the right to choose the members of the board, it does so from among panel members chosen by pro-labor civil libertarians independent of the ruling union administration.

After 50 years, the UAW Public Review Board remains unique in the labor movement. (The small independent Association of Western Pulp and Paper Workers did emulate the UAW, but I don't know if its Public Review Board survived after the union affiliated with the Carpenters.) The labor movement has remained indifferent at best; some unions have been hostile. The UAW attributed the failure of negotiations for its merger with the IAM and Steelworkers to its insistence upon retaining the PRB. If this commission is to recommend a genuine Public Review Board, roughly modeled upon the UAW's, it must be ready to stand against the prevailing prejudices.

II: The content of any code:

To be taken seriously and be effective, any code must make clear that it is just as concerned to protect membership democratic rights as it is to protect the union against corrupt practices and conflicts of interest. Existing codes spell out, in detail and at length, rules for preserving financial integrity. But where they even refer to union democracy, it is only in passing, briefly, perfunctorily. That imbalance reveals what a union considers important …and what it does not.

The court-enforced consent decree that monitors the Teamsters union calls not only for eradicating corruption, but for encouraging democracy in the union. The Independent Review Board which is responsible for enforcing the consent decree, armed with the power of the court and government law enforcement, has done an excellent job in freeing the union from mob control. But it remains indifferent to appeals from members who complain against violation of their rights. Somehow, democracy falls by the wayside. In the interests of integrity, that kind of neglect should end.

We should be concerned with bolstering union democracy, not only because it is a value in itself or because it tends toward a better and more effective labor movement, but because in the context of this discussion it can be a powerful weapon for defending integrity. Local members and local leaders ---all union activists--- can detect what's happening in their unions sooner and far more effectively than any outside formal investigators. But the atmosphere in the union and the receptivity of the top leadership must encourage them to speak out, knowing that their questions and misgivings will be received, and they need not fear intimidation and retaliation.

It would be disingenuous of me not to admit that I feel that this would require a massive change of mood inside the SEIU. The demand that all elected and appointed representatives, top to bottom, speak with "one voice," the heavy-handed denunciation of Sal Rosselli for the very act of criticizing official policy, and the threat to trusteeship his local all run counter to what is required. The need is to change the mood. For this commission to ignore that reality would be to undermine its effectiveness.

III: The scope of any enforcement body's responsibility and authority

Based on what I have learned over the years, I'd like to lay out what I think are the choices.

What should we expect of any enforcement body, public review board or any other? The alternatives, as I see it, are between 1. to act essentially as a review body, authorized to protect due process and fair play in the union by offering appeals recourse against decisions by the union's own officers and committees, or 2. in addition to or instead of the above, to exercise police powers that would require it to initiate investigations, prefer charges, and perhaps to conduct trials and impose penalties on its own authority.

In public government, Federal courts are appeals bodies. The Department of Justice is the policing agency. Inside the labor movement, the UAW Public Review Board hears appeals. In the Teamsters union, the Independent Review Board is a policing body.

As I remember, when the UAW Public Review Board was in formation, --- this was a moment when the McClellan Committee hearings had exposed widespread corruption in the labor movement --- Walter Reuther suggested that the board might take on responsibility for policing the union against corruption. But the prospective board members demurred because they felt it went far beyond their intentions.

The cost of an appeals board is easily within the resources of a union like the SEIU. Retainers for the members, a full time executive director, and a modest supporting staff would do the trick. But to add policing functions would require much more.

The costs of the Teamsters IRB, whose policing responsibilities include investigating, pressing charges, conducting trials, and sentencing, are borne by the union. Because the IRB is appointed by a Federal judge, it has access to government law enforcement and information gathering facilities which would not be available to any SEIU created body.

If the SEIU wanted to set up a special board both to police the union for corruption like the Teamsters IRB and to act as an appeals body to protect members rights, I think it would need an extensive and expensive investigatory and clerical staff. If the commission and the union decided that such a board was necessary, and the union is ready to bear the costs, I would be ready make suggestions for its functioning. However, I am not ready to recommend the creation of an enforcement board with such broad responsibilities. I favor a board more like the UAW PRB.

Obviously, this commission was created because the union felt it proper to respond to the revelations of misappropriation of hundreds of thousands of dollars by officers of some West Coast union locals. But no responsible person I know of charges that the SEIU is systemically riddled with corruption. The SEIU is not the Teamsters union. I am convinced that if union democracy is protected and encouraged such problems could be adequately handled within the union's own constitutional procedures for charges, trials, and penalties, with this addition: a genuinely impartial public review board with ultimate appeals authority. (In California, there must have been some union members who blew the whistle. The point is to encourage and protect member like them.)

IV: Addendum on democracy

Without lengthy supportive explanation, I would like simply to list some of the provisions that should be included in any code of democratic procedures. I realize that many (most?) are quite controversial. However, they will indicate what I feel is necessary to lift any formulations above the level of holiday homiletics:

1. As a minimum, the rights provided in the Labor-Management Reporting and Disclosure Act with additions and modifications in what follows.

2. Abolish all meeting attendance rules as a qualification for running for office when they automatically disqualify 90% of members. Since the reality is that only about 5% of a local's members attend meetings, these rules serve no real purpose except to help entrench a tiny minority in office.

3. End the requirement of 24 months continuous good standing as a qualification for candidacy in local elections. The rule serves to disqualify good, active, long term union members who inadvertently fall a few days in arrears or are disqualified by manipulations of the local financial records. Substitute a requirement for, say, one or two years membership with the right to get in good standing at the time of nominations.

4. Encourage the election of job stewards

5. Establish "battle" pages in union publications and on union websites where opposing and dissenting view can be expressed. Follow the example of the United Federation of Teachers, which provides whole pages to rival slates in local elections.

6. Allow members to establish their own independent web sites without imposing niggling or repressive restrictions.

7. Give local unions due process and their day in court by permitting the use of locals' own resources to challenge what they feel are the improper imposition of trusteeships.

8. Provide for membership ratification of contracts after full information is afforded to voters with a reasonable period for discussion.

9. Comply with LMRDA Section 105 which requires unions to inform members of their right under the LMRDA.

10. Require exclusively public employee locals to comply with the relevant provisions of the LMRDA.

11. Provide for the voiding of union elections where the violations of fair procedures are so egregious that they make a mockery of the democratic process.

Wednesday, November 12, 2008

In search of legal defense against illegal trusteeships

In March 2008, the UHW-W executive board deposited $500,000 into a trust account with its attorney to provide for legal defense of the local's autonomy and of the democratic rights of its members and officers against the imposition of an illegal trusteeship. In scheduling the trusteeship hearings, Stern charged, "This is an inappropriate use of union monies." The charge that local funds may not be used to fight a trusteeship, formulated and reformulated with repetitive emphasis, constitutes Stern's main indictment of Rosselli's local. Catch 22! The UHW faces trusteeship because it established a special fund to defend the local and its elected leadership against an illegal trusteeship!

The puzzling difficulty faced by UHW-W, and which establishing a legal defense fund partially surmounts, lies in federal law which provides that any trusteeship imposed by an international union is presumed to be valid for the first 18 months. Once a trusteeship is established, the international takes over the local treasury so that none of its members or elected officers have access to their own local's funds to defend their rights. Starved of money, they find it almost impossible to mount an effective legal case. Meanwhile, the international officials can dip into the union's ample resources to defend their every action. Unrestrained for 18 months, armed with all the international and local levers of money and power, free to employ fear, favor, propaganda, and persuasion, the international moves to create its own political machine in the local and eliminate its annoying critics. Stern's trusteeship and internal charges are obviously intended to bring down Rosselli and simultaneously to deprive him of any means of effective legal defense.

Is it permissible for a local union to set aside money, safe from seizure by the international, so that it can be guaranteed funds to mount a legal defense against trusteeship? That question has arisen before, not in the SEIU but in the Teamsters union. It has never been adequately resolved.

In 1996, when Ron Carey was still IBT president, some 60 Teamster units had already been trusteed, some by the Independent Review Board and some by Carey. Three big anti-Carey locals, fearing trusteeships, each put money into a kind of escrow fund, totaling $400,000 for all three, held in trust by their attorneys. Like Rosselli's fund in 2008, their fund in 1996 was intended to guarantee that they could pay for legal defense against the trusteeship they feared. Like Stern in 2008, Carey in 1996 charged that the fund violated the union constitution and went to court against it. The controversy was never settled, because the three locals backed off and restored the money to the union treasury. But while the battle was still alive, here is what we wrote in Union Democracy Review [No. 106]:

"...what is involved in this dispute is not the right of the international to impose trusteeships but the right of a subordinate body to an adequate defense against the imposition of a trusteeship that may be improper. By protecting legal defense funds from instant seizure, the local body, at least temporarily, gets its day in court. A valid trusteeship might be delayed, but only to allow for a period of genuine due process.

"What is involved here is a matter of important principle that transcends the immediate situation in the Teamsters union. Carey, we are convinced ... uses the weapon of trusteeship on behalf of integrity and democracy. Even he might err in the future. And anyone is capable sometimes of abusing power, even in a worthy cause. But that's not even the greatest danger. Suppose he is defeated and replaced by an old time dictator. If Carey were to try to defend his local by setting up a legal defense fund for protection against repression by, say, a new gang, surely we would all rise to his defense.

"... the issue goes beyond the Teamsters union to affect the broader labor movement. In most cases that come to our attention... trusteeships are imposed to stifle democracy.... Even with a defense fund initially at its disposal, a local is guaranteed only its first day in court. ... The defense fund makes at least a minimal due process available in trusteeship cases. True, the idea is advanced by a suspect old guard. But if we had thought of it first, it would already have become a minor weapon for union democracy."

Now, twelve years later, while SEIU democracy is endangered, the issue returns.

Tuesday, November 11, 2008

California labor intellectuals call on Andy Stern to respect constructive dissent in SEIU

AUD recently received this letter by email:

An Open Letter of Concern to Andy Stern
About United Healthcare Workers-West
From California Educators, Academics, Writers and Worker Advocates

November 9, October 2008

Mr. Andy Stern
Service Employees International Union
1800Massachusetts Avenue, NW
Washington, DC 20036

Dear Andy Stern:

On May Day, 2008, more than 100 scholars, writers and activists, many of them longstanding supporters of SEIU, wrote to you and urged reconsideration of any plan to place United Healthcare Workers-West in trusteeship. That public letter said: "Putting UHW under trusteeship would send a very troubling message and be viewed, by many, as a sign that internal democracy is not valued or tolerated within SEIU."

The letter endorsers were told, at the time, that no such plan existed and that UHW statements about this matter were simply not true. Such reassurances were received in a personal message from SEIU EVPs Eliseo Medina and Gerry Hudson and in a letter signed by 47 other SEIU leaders.  As recently as July, the threat of an international union take-over of UHW was dismissed as a "myth" by SEIU IEB member Stephen Lerner (in an exchange of views posted on MRZine).

Now, we've learned that you indeed ordered UHW trusteeship hearings. These began in San Mateo on September 26 and 27 and are scheduled to resume and conclude next week in San Jose. Moreover, you have gone ahead despite an enormous outpouring of opposition from UHW members and others, including the protest in Manhattan Beach by 5,000 SEIU members opposed to the arbitrary removal of 60,000 UHW-represented workers to Local 6434 in Los Angeles. More than 8000 members protested at the San Mateo hearings. At the same time, the media has reported very serious allegations of corruption involving Local 6434 President Tyrone Freeman, which have led to his removal by your office and an on-going investigation by the U.S. Department of Labor that could lead to criminal charges against him. It would appear that those home care and nursing home workers faced with the possibility of forced transfer from UHW to Freeman's local have had good reason to resist.

We in California have, of course, a great deal at stake in the outcome of these disputes. The trusteeship fears of UHW seem to be very well-founded. While a clean-up of 6434 may require outside intervention, we believe that a simultaneous, unjustified take- over of 150,000 member UHW would be a disaster for the California labor movement (and SEIU nationally).  It would further disrupt current contract negotiations with major health care
employers, while also impeding much-needed political action to defend state worker jobs in health, education and other public services. As the May Day letter endorsers did last spring, we urge you to "avoid such a tragedy"--by respecting the autonomy and constructive dissent of UHW.


Frank Bardacke, Writer, Labor Educator and Founder, Third World Teaching Resource Center
Martin Bennett, Professor of History, Santa Rosa Junior College, Executive Board, North Bay Labor Council
Jeff Blankfort, Radio Host, KZYX, Mendocino Public Radio
Gillian C. Boal, Rare Book Conservator, Bancroft Library, UC Berkeley
Iain A. Boal, Professor of Social History, UC Santa Cruz
Gray Brechin, Visiting Scholar in the Department of Geography, UC Berkeley; Project Scholar of the California Living New Deal Project.
Bob Brenner, Director, Center for Social Theory & Comparative History, UCLA
Summer Brenner, Environmental Justice Activist, Berkeley
Charles Briggs, Professor of Anthropology, UC Berkeley
James Brook, poet, San Francisco
Jose Calderon, Professor, Sociology and Chicano Studies, Pitzer College
Jamie Court, President, Consumer Watchdog
Mike Davis, Writer and Professor, Creative Writing, UC Riverside
A. J. Duffy, President, United Teachers of Los Angeles
Judy Dugan, Research Director, Consumer Watchdog
Barry Eidlin, Sociology, University of California, Berkeley
Richard Flacks, Professor of Sociology, University of California Santa Barbara
Jack Gerson, Executive Board and Bargaining Team, Oakland Education Association
David Goldberg, Treasurer, United Teachers of Los Angeles
Charlene Harrington, Professor of Sociology and Nursing, UC San Francisco 
Dan Hodges Chair, Health Care for All-California
Ramsey Kanaan, PM Press, Oakland
John Kramer, Professor of Political Science, California State University Sonoma
Karl Kramer, Treasurer, Labor Council for Latin American Advancement - San Francisco, Campaign Co-director, San Francisco Living Wage Coalition
Jack Kurzweil, Former President (San Jose State University Chapter), 
California Faculty Association, SEIU 1983
Sasha Lilley, Program Director, KPFA
Dr. Arthur Lipow, Center for Global Peace & Democracy, Alameda
Jeff Lustig, Professor, Political Science Dept. CSU Sacramento.
Joseph Matthews, Attorney
Nathanael Matthiesen, Sociology, University of California, Irvine
Tom Mertes, Administrator, Center for Social Theory & Comparative History, UCLA
Franco Moretti, Professor of Literature, Stanford University
Claudia Moura, Professor, Social Science, Santa Rosa Junior College
Betty Olson-Jones, President, Oakland Education Association
Raj Patel, Writer, Visiting Scholar, UC Berkeley
Richard Perry, J.D., Ph.D. Professor of Justice Studies
San Jose' State University
Vivian Price, Coordinator, Labor Studies, California State University, Dominguez Hills
Melvin Pritchard, Professor of History, West Valley College
Tom Reifer, Sociology, University of San Diego; Associate Fellow, Transnational Institute
Teri Reynolds, MD, PhD, Past delegate, Alameda County Medical Center Committee of Interns and Residents/SEIU
Bill Shields, Chair, Community and Labor Studies, City College of San Francisco
Faith Simon, Mendocino Institute
Norman Solomon, Institute for Public Accuracy, Author, War Made Easy
Vanessa Tait, author, Poor Workers' Unions: Rebuilding Labor from Below,
Member, UPTE-CWA Local 9119, UC Berkeley
Kay Trimberger, Professor of Women’s and Gender Studies, California State University Sonoma
Richard A. Walker, Chair, California Studies Center, UC Berkeley
Katharine Wallerstein, Executive Director, The Global Commons Foundation
David Walls, Professor of Sociology, California State University, Sonoma
Michael Watts, Professor of Geography, UC Berkeley
Cal Winslow, Fellow, Environmental Politics, UC Berkeley, Director Mendocino Institute
Eddie Yuen, Author, editor and radio producer

*affiliations listed for identification purposes only