New constitutions for UNITE HERE and for NUHW: Calling for democracy, Resisting authoritarianism

By now there is something to be learned from the bitter internecine battles that embroil Andy Stern of the SEIU, Sal Rosselli of the new National Union of Healthcare Workers, John Wilhelm of UNITE HERE, and Bruce Raynor of Workers United. It is becoming clearer that this is no mere struggle for power among ambitious union leaders. It involves a sharp challenge to Stern's favored conception of a labor movement highly centralized at the top and regimented below. It marks an important break in the trend toward superbureaucratization of the American labor movement. That challenge is manifested in two new union constitutions: one, adopted in haste as the founding constitution of Rosselli's NUHW; the other, the extensively revised constitution of Wilhelm's UNITE HERE, just adopted at its convention in July.

In 'normal' times (if any times are normal), both constitutions would surely be of great interest to union activists and civil libertarians. However, in our times, they have a special significance. Not that they are flawless, certainly not. But in the context of the current internal labor battles, these new constitutions must be read not only for what they propose but for what they reject. They propose some steps toward democratization; they reject aspects of Stern's bureaucratization.

The NUHW constitution:

Andy Stern and Sal Rosselli once cohabited in a happy family and jointly envisioned the SEIU as the vanguard of a newly invigorated labor movement. But that bond was broken when Rosselli criticized Stern for a top-down organizing strategy bordering on "company unionism." After Stern trusteed the 140,00-member United Healthcare Workers-West and removed Rosselli, its president, along with all officers, they left the SEIU to form the new independent National Union of Healthcare Workers. Their new constitution bears all the marks of a hurry-up job, quickly put together to position their union for challenging the SEIU in collective bargaining elections. Nevertheless, at least two features stand out:

The NUHW constitution makes most big decisions of the president subject to review by the elected executive board. This provision, repeated on page after page, is a refreshing departure from practice in the SEIU, and from current trends in the labor movement, which turn top officers into near-dictators whose powers are limited only in theory by a rubber stamp international convention every four or five years.

The NUHW constitution rates highly the role of job stewards and provides for their election at all levels. Here, too, is a rejection of what Stern has introduced in the SEIU, where he would degrade the status of job stewards by replacing them with appointed clerks who deal with "job problems" over the telephone and at computer terminals.

The new UNITE HERE constitution:

The new UNITE HERE constitution is a thoroughgoing revision of the first constitution adopted at the union's founding convention in 2004. The union was formed that year by a merger of UNITE, the needle trades union, with HERE, the hotel and restaurant workers union. By agreement, Bruce Raynor, former president of UNITE was elected president of the merged union; John Wilhelm, former president of HERE, became the president of its hospitality division.

Raynor's union was weak in membership but it had lots of money (including a valuable stake in the Amalgamated Bank) accumulated in those bygone gloried days when clothing was still a respected part of the American economy. Wilhelm's union, in contrast, had plenty of members in the expanding service trades, but it needed money. Right from the start, the marriage was an odd coupling of money and members. However, that anomaly could be overlooked as the new union joined Stern's Change to Win in that momentary era of illusive enthusiasm. But it didn't last. Like Rosselli and Stern who turned from allies into enemies; so did Raynor and Wilhelm. The embittering disputes in both cases have a lot in common. Some time around late 2007, the agreement between Raynor and Wilhelm fell apart. Raynor complained that Wilhelm was squandering time and tons of money in old-fashioned organizing campaigns that could not show massive results. Wilhelm replied that Raynor sought to centralize authoritarian powers in the hands of the president and that he proposed to organize quickly by offering employers sweetheart deals.

Raynor faced a vexing problem. Since he had invested mostly money in the joint UNITE HERE venture while Wilhelm came in mostly with members, Raynor was sure to be outvoted when the union's convention assembled in 2009. He decided not to wait for the inevitable defeat. He resigned as UNITE HERE president, pulled his followers out, and formed a new union: Workers United. His new union promptly affiliated with Stern's SEIU, where Raynor found a natural fit. Stern now bankrolls Raynor's Workers United.

With Raynor gone, UNITE HERE reworked its constitution at its convention in July 2009. Unlike the NUHW constitution which was obviously hastily pieced together, the revised UNITE HERE constitution seems to be a product of careful thought. Commenting on the constitution, John Wilhelm, now UNITE HERE president, writes, "We have tried to learn from the recent struggles that have afflicted our union and to put in place a constitution that does its best not to rely upon the good will of the union's elected officers." They succeeded, not in hitting upon a perfect model of an unblemished union democracy, but in offering a democratized alternative to the superbureaucratization favored by Stern in the SEIU (and already imposed by the Carpenters union on its affiliated locals.)

The old UNITE HERE constitution, like many other union constitutions, centralized power in the hands of an authoritarian president. The new constitution leaves the president with enough authority to do the job, but it reassigns certain basic powers to a broad international executive committee. The executive committee itself is now open to minority and independent views; it is composed, not only of the top officers and others elected at-large by convention delegates, but also of vice presidents elected by separate representative assemblies of locals.

In the SEIU, Andy Stern would have the whole union leadership, top to bottom, local and international, elective and appointive, acting as one monolithic bloc, speaking to the membership with one united voice in favor of the official line. The new UNITE HERE constitution rejects that concept of militarized leadership. "Executive Committee members, " it reads, "shall have the right to inform any affiliate of any decisions or discussions which occur at Executive Committee meetings." At international conventions every committee "shall present any majority report(s) and/or dissenting report(s) prior to the opening business on the second day...." The section "Bill of Rights," assures that "No officer, affiliate, or member may be discriminated or retaliated against, or in any way disadvantaged" for criticizing any union actions or policies.

Under the old constitution, a local could face trusteeship whenever it was justified "in the opinion of the Presidents" (before Raynor split off, the union had a dual presidency). On trusteeships, the new constitution begins, "Trusteeships may be imposed and the democratically elected affiliate officers removed only as a last resort." Its text makes that declaration much more than an empty homiletic; it specifies conditions under which a trusteeship may not be imposed and it protects locals from arbitrary acts of union officials. Upon demand of a local facing trusteeship, the trial hearing will be conducted before an outside impartial arbitrator selected from a panel supplied by the Federal Mediation and Conciliation Service. A local has the right to retain an attorney to represent it at any trusteeship hearing.

Article 23, which protects local autonomy, begins, "UNITE HERE pledges to respect local autonomy and to refrain from interfering with the affiliate's representation of its members and organization of new members." And that pledge is spelled out in extensive detail including a pledge not to "reduce or alter the jurisdiction of an affiliate without [its consent.]"

The right to trial before an impartial outside arbitrator goes beyond locals facing trusteeship. The new constitution provides, "At the option of an accused elected officer of UNITE HERE or any affiliate charged with a violation of this Constitution, the hearing shall be conducted before an impartial arbitrator...." There is more packed in this simple provision than meets the eye. It is the first time in more than fifty years that any major union has voluntarily ceded any measure of disciplinary control over its own affiliates to any agency outside the union's own power structure.

In 1957, the UAW created its Public Review Board, a body of eminent public leaders, independent of the union officialdom, to act as an appeals body, a kind of supreme court, that offers recourse to members against decisions of the union's own highest tribunals, including president and international executive board. Despite suggestions from the ACLU, no other major union has been willing to follow suit. If the UAW in 1957 swung the door widely to impartial outside recourse, UNITE HERE has opened it at least a crack. The UAW PRB is a continuing body available to members without cost and (apart from collective bargaining) is authorized to act on appeals on the whole range of internal union issues, including elections and free speech.

The UNITE HERE arbitrator-remedy seems limited to elected officers and affiliates who face charges and who must pay half the costs of arbitration. Compared to the UAW, UNITE HERE's move may seem modest. But compared to the practice in all the other unions which permit no outside recourse, it is a giant step. It is an overdue recognition of the principle that in disciplinary matters unions must provide appeals recourse to an impartial body independent of the union establishment.

Up to now, the drive toward restructuring the unions has been led by Stern in the SEIU and McCarron in the Carpenters. Unions that have been conventionally bureaucratic or reasonably democratic have remained so, without evolving either way, except when forced to comply with the LMRDA. The main movement, up to now, has been that relentless drive toward an increasingly authoritarian labor movement in which the rights of members and independent minded leaders are drastically limited. But now, after battles provoked mostly by Stern and Raynor, there is a strong countermovement. That, apart from any specific verbiage, is the encouraging significance of the new NUHW and UNITE HERE constitutions.

Of course constitutions are only printed words on pieces of paper. It remains to be seen how they will be applied in the rough and tumble life on the job and in the union halls. But, as a first step, these are welcome constitutions.
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Redistributing presidential powers:

A striking transformation in spirit effected by the new UNITE HERE constitution is revealed in the multiplicity of presidential powers now limited or shifted away from the President, in most instances to the broadly elected Executive Board or General Executive Board. A 124-page version of the new UNITE HERE constitution includes so many examples that we list only some here. The president loses unilateral decision powers over the following:

• determining jurisdiction of locals,


• approving local bylaws,


• expenditures over $25,000,


• issuing local charters,


• trusteeing and supervising locals,


• ruling on appeals,


• appointing international convention committees,


• setting convention agendas, calling special conventions,


• appointing union committees,


• decisions on auditing, bonding, investments,


• distribution from strike funds.

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When hailing Trumka, remember Yablonski!

Rich Trumka, now AFL-CIO president, had a fine reputation when he was president of the United Mine Workers; and he has been a good militant voice for the AFL-CIO as secretary treasurer; and he will surely be a good workers' representative as AFL-CIO president. In any event, it is hard to think of a better choice.

But as Rich ascends, it is a proper time to remember where he came from and how he got there. If not for Jock Yablonski, Trumka would probably be forgotten, if ever even noticed.

In 1969, Joseph (Jock) Yablonski, announced that he was insurgent candidate for president of the United Mine Workers. Incumbent Tony Boyle, successor to John L. Lewis, continued Lewis's autocratic regime, with the added ingredients of incompetence and corruption. "Union Democracy," Yablonski declared, "is the single most important issue in the campaign for election of a new UMW president." By the year's end, Yablonski had been murdered, along with his wife and daughter. (A few years later, Boyle was convicted of ordering the murders and died in prison.)

After the murder, the Miners for Democracy was formed to continue Yablonski's reform battle. Led by Joseph Rauh, Yablonski's attorney, a team of volunteer attorneys was recruited to back the MFD. At the time, Richard Trumka, by then a young attorney and obviously on his way out of the mines, became one of that team. The MFD defeated Boyle and democratized the union. It was Yablonski's battle to the death and the MFD's courageous continuation of the cause that opened the way for Trumka to the UMW presidency, from there to AFL-CIO secretary, and up to the presidency.

This summer, the United Steelworkers endorsed Trumka in a two-page declaration in its magazine. They tell us that he became a miner at 19, went to law school, became a lawyer, and served as staff attorney for the United Mine Workers in 1974. They neglect to mention that he could become a UMW attorney only because Yablonski led the movement that ousted the UMW old regime led by the crooked and murderous Tony Boyle and that as a young lawyer Trumka served the insurgent Miners for Democracy.

In the course of new events and with the burden of new responsibilities, Rich may disremember. But this generation of labor activists must remember Jock Yablonski. Trumka can be where he is today only because Jock Yablonski, at the cost of his life, inspired an insurgent reform movement in the United Mine Workers. Trumka's rise and Yablonski's martyrdom reminds us of those union activists who fight for union democracy today because they understand its important to the future of the labor movement. The labor establishment ignores Yablonski's sacrifice for democracy in the UMW because they distrust insurgent democracy in their own unions.

SEIU raw power is replacing falling moral authority

by Herman Benson

How things have changed for Andy Stern in five years!

In 2004, he was the hottest labor celebrity in town. He was about to lead a coalition of major unions out of the AFL-CIO into the rival Change to Win, reorganize and galvanize his own SEIU, organize low-paid immigrants and minorities, and revive a declining labor movement. Labor activists , some out of the civil rights movement, some with honorable resumes in battles for union democracy, some students looking for a worthy cause, found a place with Stern. Pro-labor intellectuals ---writers, academics, researchers --- hailed the Stern-inspired movement as the greatest thing since the CIO left the AFL. The mainstream media, including even the New York Times and Wall Street Journal, featured him as the rising star of labor leadership.

In five years, he solidified his power in the SEIU by merging old locals into new mammoth units with leaders who are appointed by him, often after pledging uncritical loyalty to the administration. The SEIU convention in June last year, overwhelmingly endorsed all he has done and proposed to do. The union has amassed a huge treasury for organizing and political action. He can afford to mobilize a paid staff and some supporters for mass demonstrations against rivals in the labor movement. His power is respected ....and feared.

But he has created a problem for himself: Entrenched at the height of organizational authority, he is losing the moral high ground he once occupied so prominently. Change to Win, the union coalition he led, is falling apart.

Back in May 2005, in the celebratory spirit of the day, Sal Rosselli contributed a long piece to Labor Notes, the bottom-up troublemakers' newsletter, welcoming Stern's call for a new way. “At our international convention in June 2004,” he wrote, “we authorized our officers to put forward a set of proposals top pproduct fundamental change in the AFL-CIO. If that change were not possible, we authorized our officers to withdraw from thje AFL-CIO to build something stronger….[T]he AFL-CIO needs a new leader…It is just ommon sense that a new-industry based strategy nd structure could only be led by someone who fought for ---and not against--- that change….”

Years before, Rosselli, as an insurgent, won office as president of SEIU Local 250. As part of the Stern team, he became president of United Healthcare Workers-West in California, one of the largest SEIU locals, president of the SEIU California Council, and a member of the SEIU executive committee. But by 2007, Rosselli learned that everything had changed. After he criticized one healthcare agreement negotiated by Stern as near-company union contract, Stern embarked on a relentless campaign to destroy him, ending in a trusteeship imposed over UHW-W and the removal of Rosselli and all the local’s officers.

Stern was able to use the power of the purse to retain Ray Marshall, a former respected Secretary of Labor and university professor, to conduct hearings and invest the trusteeship with the gloss of impartiality. But that power could not shield him from the public relations disaster that he inflicted upon himself.

When rumors of a pending trusteeship first surfaced, over a hundred writers and educators expressed dismay in a long letter to Stern. "Putting UHW under trusteeship," they wrote, "would send a very troubling message and be viewed by many as a sign that internal democracy is not valued or tolerated within SEIU." Such a statement was a startling event. An assemblage of intellectuals in moral support of dissidents facing repression inside a union: nothing like it in memory. (But for the SEIU, it soon became almost routine!) Some of the signers, unaware of its implications, imagined that the letter would remain an unheralded private complaint; but, when it was published as an ad in the New York Times; and Stern expressed his displeasure, a few got the nervous jitters and hastened to backtrack. But only a few.

On November 9, 2008, when trusteeship had been transformed from rumor to imminent reality, a second group of 51 academics, writers, and labor educators, joined by the presidents of two Teacher locals ---all from California --- spoke out. "We in California have a great deal at stake... [An unjustified] take over of the 150,000-member UHW would be a disaster....We urge you to avoid such a tragedy by respecting the autonomy and constructive dissent of UHW." This time, none got nervous; they all held firm.

A week later, opposition to the pending trusteeship had spread beyond the narrow circle of intellectuals to representatives in California of community, ethnic, and religious organizations and local and state political leaders. On November 17, 2008, the San Francisco Business Times reported: "More than 240 lawmakers, community leaders, urge SEIU to hold off on UHW takeover." Signers of their letter included state senators, assembly reps, and country supervisors. "We ask," they wrote Stern, "that you accept [a] mediator's recommendation... rather than precipitate a crippling war inside SEIU." The San Francisco Board of Supervisors presented a "Certificate of Honor" to "Sal Rosselli and the 150,000 members of UHW-West for their continued fight for real democracy in the American Labor Movement and their commitment to building real power for healthcare workers."

Meanwhile, Stern's Change to Win coalition was coming apart, plunging him into a second front in his war inside the labor movement. (The first is against the National Union of Healthcare Workers, the new independent union founded by Rosselli's team.) Two of Stern's major allies in founding Change to Win back in 2005 had been Bruce Raynor, president of UNITE the clothing union, and John Wilhelm, president of HERE, the hotel-restaurant workers union. The two unions,. UNITE and HERE, had merged into the unified UNITE-HERE, with Raynor as its president. But when it seemed obvious that he would be defeated for reelection by the Wilhelm forces, Raynor split away, formed a rival union, Workers United, and turned it into an affiliate of Stern's SEIU. Welcoming Raynor, Stern loaned the new union a million dollars. Now, backed by Stern, Raynor is at war with Wilhelm's UNITE-HERE.

Who is right and who wrong, who are the good guys and who the bad in this battle between Raynor and Wilhelm? Whatever the answer to that question, it will not alter one obvious fact: Stern's PR stock has fallen so low, his public reputation has been so damaged that he is widely blamed for provoking the internecine war. In July this year, in a letter to SEIU Executive Board members, 228 scholars and educators from universities all over the country, and some in Canada, (even 3 in Britain, and one each in New Zealand, Japan, and Guatemala!) protested Stern's role. They wrote, "SEIU's concerted efforts to undermine UNITE-HERE belie the progressive ideals SEIU has upheld for decades.... We are concerned that these actions are undermining the principle of union democracy and dividing the progressive movement at a critical moment in history. We urge you to stop your interference in UNITE-HERE, refocus on organizing the millions of unorganized workers...."

If this array of public criticism from pro-labor intellectuals and public representatives is unprecedented, what follows is even more unusual. An unwritten gentlemen's agreement regulates relations among top labor leaders: "You can run your union as you see fit, even honestly, and I will never criticize you publicly. In return, you will never criticize me for running my union as I see fit." But that code was seriously breached in June when, in an obvious repudiation of Stern-Raynor, fourteen top labor leaders signed a statement of support for UNITE-HERE. The leaders of the presidents of all big Change to Win unions were among them.

Taken together, all these events pose a portentous question: What will shape the future role of the SEIU: the organizational power and resources at the disposal of Andy Stern or the power of social opinion expressed by intellectuals, political leaders, and laborites?

New stage in super bureaucratization of labor

Four locals in California, with a combined membership of 40,000 janitorial service workers, were ordered by SEIU President Andy Stern to join together in a new district council called United Service Workers-West. Here is something drastically new in the SEIU. Unlike the various mega locals created earlier by Stern by dissolving several locals into one, these four locals each retain a separate existence, but only as desiccated shells deprived of substance.

Because the council is a "new" labor organization, Stern is allowed by federal law to appoint all its officers; and because the council is not a local but an "intermediate" organization, they hold office for the next four years. Not a man to evade appointive opportunities, Stern has chosen the council's three top officers and the 23 additional executive board members. In decreeing the council's formation on March 11, Stern prescribes its authority by informing his appointees, "I hereby impose the attached provisional Bylaws for USWW." Provisional? But it's impossible to change these bylaws without Stern's O.K. Only the executive board can amend the bylaws and then only by a 75% vote at two consecutive meetings. In any event, the imposed bylaws read, "No amendments shall be valid or become effective until approved by the International Union." Under these bylaws, the council swallows up the locals.

Locals are instantly rendered powerless by one simple device: they are stripped of authority over their own treasuries. One listed basic "function" assigned to the council is "the collection of the dues paid to affiliated locals." Elsewhere the bylaws make clear what that means: "In consideration of the services being provided by the USWW to the affiliated Local Unions, all affiliated Local Unions shall pay to USWW any dues which it collects from its members or USWW collects on behalf of an affiliated Local Union."

The council grabs all the money and then it---not the locals--- adopts "a budget for each affiliated local union, covering the resources devoted to servicing the members of the local union." With total control over the collection and distribution of money, the council inevitably assumes control over every significant phase of local activity. Almost everything requires money, including all phases of collective bargaining. At first glance, one may not notice that locals will actually lose control over collective bargaining. But you must read the bylaw double talk with care:

Among the basic council functions are these: to "bargain [and] ...enforce collective bargaining agreements on behalf of affiliated local unions." That aim seems qualified by the words, "nothing in these Bylaws are intended to supplant or suspend the collective bargaining rights of any Local Union," a qualification that is reassuring only until you read on: "A Local Union may voluntarily transfer its collective bargaining rights to USWW."

Putting it together: Any local which "voluntarily" refuses to cede control over collective bargaining to the council, can be financially starved of the resources necessary to conduct its own effective collective bargaining and so forced into submission. It can't happen here, you will say? Then you don't know where Stern is taking the SEIU.

The locals have no right to their own money. The council president is endowed with sweeping financial powers. He or she is authorized to hire and fire and direct the whole council paid staff and set their rate of pay and to retain attorneys, accountants, and other consultants. The president is insulated from membership control.

Because the council is an intermediary body, not a local, the president, despite those enormous powers, is not elected by the membership but by a delegated body, in this case by the council executive board. After their four-year appointive term is up, executive board members will be elected by the locals, but that status does not give them a paid job. The president's power of the purse extends even to those who have the constitutional power to elect him or her. An executive board member depends upon the president for a paid staff job.

In the old style SEIU, the now-familiar mega locals remain formally autonomous; they collect and retain dues; their members elect local officers; they are responsible for organizing, collective bargaining, processing trials and charges --- all the authority and responsibility traditionally vested in local unions remains. With the new California janitors council, the role of locals is transformed. To sum it up:

The council takes over dues and assessments. As required by federal law, after the appointive term has ended local members will be permitted to elect local officers, but not necessarily to pay them. Money for all salaries, including for elected local officers, depends upon decision of the council. Who pays the piper calls the tune. Without independent access to money, local members lose control over their own locals. The handling of grievances and the processing of charges and trials are removed a greater distance away from the membership. The council dominates the locals; the international president, through his appointive power, dominates the council.

In all this, the SEIU draws upon an organizational form that has been perfected by its Change to Win partner, the United Brotherhood of Carpenters. But there is this crucial difference: What the Carpenters have created impinges only upon the construction trades. But Andy Stern, SEIU president, has pretensions of emerging as the great new leader of American labor. What he has fabricated in California, therefore, has broad significance as a portent of how he would shape the emerging new labor movement.

How sensitive are those labor leaders?

By Herman Benson

An unwritten gentlemen's agreement seems to regulate relations among top labor leaders: "You can run your union as you see fit, even honestly, and I will never criticize you publicly. In return, you will never criticize me for running my union as I see fit." But that code of conduct seemed to be seriously breached when fourteen international union leaders and many local ones --- some AFL-CIO and some Stern's Change to Win --- publicly chastised Andy Stern for trespassing on the jurisdiction of UNITE/HERE.

In Labor Notes, Jane Slaughter takes a dim view of what motivated these top union leaders to blast Stern.

Stern has been accused by assorted critics of making sweetheart deals with some employers, of disrupting his own union and others by massive attacks on dissidents, of buttering up Chinese dictators, of standing together with an anti-union Wal-Mart, of suppressing exposes of nursing home abuse, of claiming a monopoly over healthcare organizing, of appointing armies of local officers, of demanding loyalty oaths, and who knows what other offenses, real or exaggerated.

But, Slaughter points out, it was not for such offenses against unionism and democracy that they berated Stern. “No,” she writes, “these union leaders’ outrage was prompted by Stern's flagrant violation of that hallowed labor principle: jurisdiction. Stern was not only attempting to take over hotel organizing drives begun by UNITE/HERE but also claiming the right to organize hotel workers in the future. That’s turf, and them’s fighting words.”

Of course, she does make a telling point. Top labor leaders, even those who trumpet calls for industrial democracy and justice in society, can never be counted on to battle for the democratic rights of members inside unions, their own or others. In every case where the union establishment has intervened in Federal courts cases involving the rights of members in their unions, it has invariably been on the wrong side, on the side of limitation and repression.

Still, I think that, in this case, Jane Slaughter has been a little too unsympathetic.

In is probably true that, from time to time, all of Stern’s top union critics have been guilty in at least part of that catalogue of derelictions listed against him. Yes, they do it, but unobtrusively, and they don't boast about it. What distinguishes Stern is his ability to slurp all this together and palm it off as a modern philosophy, as a program to save the workers of the world. And, in so doing, to induce the mainstream media to hail him as the great new hero-savior of the labor movement, trumping all the others. You can understand how it galls all the others. In part, they now seize upon his financing of an attack upon the jurisdiction of UNITE/HERE as a 'legal,' acceptable, conventional opportunity to vent a pent-up resentment, even fury. For some, I think (and hope), it could even serve as relief for a somewhat uneasy conscience. We can't demand that people always do the right thing for the right reasons in the right way at the right time. For that, you can wait forever.

At the SEIU: Harassing dissidents’ lawyers, China Style

On his trips to China, Andy Stern may have learned how to hone his union managerial skills. The authoritarian rulers of China go beyond simply punishing critics; they go after the victims' lawyers to teach other lawyers the painful consequences of helping dissidents. Stern can pay well to hire an army of his own lawyers to harass lawyers who represent his opponents.

When the 150,000-member SEIU Local United Healthcare Workers-West, under its president, Sal Rosselli, was a normally self governing local and it dared to criticize Andy Stern's policies, it was compelled to retain lawyers to try to ward off Stern's moves to destroy its autonomy. Now that Stern has taken over the local, ousted all its officers, and seized its treasury, his appointed trustees are not content with mere total authoritarian control. They are moving against the lawyers who represented UHW in its days of independence.

Rosselli and the former officers of UHW have resigned from the SEIU and set up a new union, the National United Healthcare Workers; they are challenging the SEIU for representation of those 150,000 healthcare workers in California. The dispute could be resolved by collective bargaining elections sponsored by the NLRB for private employees and public employee relations boards for local government workers. No such elections will be fair and square democratic contests. The SEIU begins the campaign with an enormous treasury, swollen by the seized assets of UHW, and with a big staff. Rosselli's NUHW enters with an empty coffer and must painfully piece together campaign money and staff salaries. But at least elections will give workers a chance to decide.

Now comes SEIU's double legal assault: one set of lawyers is retained to confront Rosselli and a host of former UHW representatives on charges like "stealing" SEIU "property" e.g., mailing lists. Another set of lawyers is hired to confront the lawyers who represented the old autonomous UHW. The effect of these suits, and apparently the intention, is to make it extraordinarily difficult for the dissident NUHW to campaign for support among healthcare workers. They can be so tied up in defending themselves in court that they will have few of their meager resources left for election contests. In contrast, with guaranteed dues and agency shop fees from a million and a half workers, the SEIU remains loaded with cash.

Harassing legal action, like that against Rosselli and his union supporters, is nothing new and does not seem to require special comment. As part of the "normal" repression of union dissidents, it brings no credit to Stern for imaginative inventiveness. But the action against Rosselli's lawyers does seem to introduce a kind of China refinement.

In their guise as the new representatives of UHW, and their reputed replacement as the former legal clients of one of UHW's former law firms, Stern's trustee- attorneys are bombarding the firm with an extensive list of burdensome demands. Their suit in California state court, against the firm of Siegel and Lewitter and 100 unnamed "Does," demands they produce every scrap of paper and electronic blip ("correspondence, files, memoranda, billing records, and other documents and materials") that are in any way related to its services for the autonomous UHW and its former officers, now removed.

The suit of the Stern-appointed trustee goes far beyond a mere fishing expedition for data. Its effect, if successful, would make it difficult for the Rosselli team and its National Union of Healthcare Workers to mount an effective legal defense. By taking over UHW-W and its treasury, the trustee has already deprived Stern's critics of money, forcing them to seek voluntary donations from supporters. The suit would compound that disability by depriving them of experienced legal representation. The trustee-attorneys ask the court for "injunctive relief enjoining and restraining Defendants, and all of their principals, associates, agents, servants, employees and all persons acting in concert with them, and each of them, from providing any form of legal services or representation to the Former Officers with respect to any matters relating directly or indirectly to Defendants' former representation of UHW-W, and from disclosing to any subsequent counsel for Former Officers any of the confidential information of UHW-W which Defendants obtained in the course of their representation." They want more than data and disqualification. They want money: "damages," costs, legal fees.

The Siegel firm insists that it must resist these sweeping demands because it must respect the confidential limits of its attorney-client relationship. In rejecting any attorney-client assertion, the trustee-attorneys claim that they, as UHW's current legal representative, have the right to any material produced for it. But equating the status of a democratically elected leadership with an officialdom imposed arbitrarily is a misleading stretch. The Siegel firm, in representing UHW-W through its democratically elected officers, was obligated to protect the rights of the members by defending their democratically elected officers. The trustee-attorney represents the Stern administration which appointed it. A more apt comparison would be between the democratically elected leaders of a small nation and a replacement Quisling officialdom imposed by a tyrannical oppressive invader.

The trustee-attorney may have certain extensive technical legal rights over the trusteed UHW. In contrast, the Siegel firm asserts a legal responsibility to protect the interests of its clients. In the context of current events, that claim is buttressed by the moral standards of fair play, decency, and democracy.

Andy Stern began with the proclaimed goal of helping to liberate workers of the world from oppression. Along the way, he has taken a devious detour. He is busy liberating an army of high-paid lawyers to torment union dissidents and their attorneys.

Change to Win is losing it

Andy Stern's dream house is collapsing; but he hopes to pick up the pieces. Such is the implication of reports in the New York Times and Wall Street Journal.

UNITE/HERE, one of the pillars of Change to Win, the coalition that Stern led out of the AFL-CIO, is being chopped to bits by blows of mutual recriminations between its two warring top leaders. The union had been formed as a marriage, now clearly one of inconvenience, between UNITE, the needle trades union which had loads of money but not enough members, and HERE, the hotel union which had lots of members but not enough money. Bruce Raynor, who invested the needle trades cash into the merger, was awarded the presidency of the new union. John Wilhelm, who invested those hotel workers and is president of the united union's hospitality division, apparently emerged with a majority on the international executive board.

Raynor accuses the Wilhelm forces of too exclusive a concern for the wages and benefits of union members and too little for organizing the unorganized. They, in turn, accuse Raynor of acting like a dictator, one who is willing to trade away union standards to induce employers to accept unionization. On the face of it, this dispute seems like a mirror image of the battle inside the Service Employees between Andy Stern and Sal Rosselli which is now tearing apart the SEIU in California.

Raynor wants to pull UNITE out of the tie with HERE. Fifteen of his supporters on the international executive board are in federal court trying to undo the merger and get their money back. He is chairman of Amalgamated Bank, owned by UNITE, which seems somehow mixed up in this tangle. According to the Wall Street Journal, some believe that Raynor wants to safeguard his control of the bank in case Wilhelm wins out. And so he proposes to amend bank rules to make it difficult to oust its directors in one fell swoop and to require a 75% vote of all outstanding shares to approve any "significant transaction" not initiated by the directors.

Wilhelm apparently insists that unity is still possible, a position he elaborates in an unusual letter distributed to UNITE/HERE members on February 8. What is extraordinary about his statement is its affirmation that the merger can be saved, but only by a thoroughgoing democratization of the union constitution. ”Our constitution,” he writes, “is not a governing document that can withstand the test of time.”

Wilhelm opposes "President Raynor’s insistence on greater centralization of power” and he wants “reasonable checks and balances.” The General Executive Board should “become more active.” He wants to end the practice of electing GEB members at large and make possible a greater distribution of power by substituting election by industry and region “in a way that …the voice of the minority is always heard.” Trusteeships should be established and local elected leaders removed “only where absolutely necessary.” Local per capita taxes should be reduced so that “affiliates can keep the resources they need to operate and remain financially independent.” Most important perhaps, “The constitution should protect rank and file members, affiliate officers, and IU officers from retaliation for expressing their opinions, voting, or running for office.”

Realizing that the UNITE-HERE merger has failed, Stern proposes that the fractured union (or perhaps the fragments) simply solve the problem by affiliating with his huge Service Employees International Union. For Wilhelm and HERE it could be an offer they can't refuse. But it is difficult to see how either of the warring factions could find peace in the SEIU. If the charges against Raynor have merit, his entry into the SEIU could pit Raynor, one accused authoritarian, against another: Andy Stern. If Wilhelm is serious about the need to democratize, he would find the regime in the SEIU at least as distasteful as what he wants to change. Some of the issues that have erupted in the battle between Raynor and Wilhelm have been raging inside the SEIU itself, with disastrous consequences. Stern has used his authoritarian powers as SEIU international president to trustee the 150,000-member United Healthcare Workers and to destroy the influence of its leader, Sal Rosselli, Stern's most outspoken critic.

Even before the explosion of these new events, it was obvious that the Change to Win coalition, led out of the AFL-CIO in 2005 by Stern, was on the edge of extinction. Now, in unexpected fashion, Stern’s overture to UNITE/HERE calls into question the whole rationale for creating a new separate labor federation. Change to Win zealots justified their split from the AFL-CIO by two basic arguments: 1. By freeing themselves from limits presumably imposed on them by AFL-affiliation, they could embark upon a unified campaign to organize the unorganized, and 2. to fulfill that objective, it was imperative to get rid of the general type of union that tried to organize anyone anywhere and to direct each union to concentrate upon its “core” industry.

Now, less than five years later, the validity of both these principles has been exploded. Neither the AFL nor C to W can report any massive gains in membership. (Raynor charges that the two unions organized more workers when they were independent than after the merger.)

Coming from the SEIU, the stricture for other unions to limit themselves to their "core" was a classic example of "do what I say, not what I do." The SEIU is a typical conglomerate of three disparate main divisions: building service, healthcare, and public employees. If Stern succeeds in harvesting UNITE/HERE, he will add many more unrelated sectors to his Austria-Hungary type empire: the entertainment industry via HERE and another conglomerate in its own right, UINTE, with its needle trades, laundry and what not workers.

Even before the UNITE/HERE debacle and Stern's latest ploy, the demise of Change to Win was already in sight. Immediately after the split, locals in Change to Win internationals remained affiliated with AFL-CIO city and state federations. In July last year, Change to Win negotiated joint political action with the AFL-CIO and began tentative discussions on reuniting. In January, this year, twelve international unions, including the major C to W unions, called for an end to the split. It is obviously only a matter of time, a short time, before Change to Win goes down as an abortive footnote in labor history.

Hybrid Unionism: Dead End or Fertile Future?

Excerpt from a recent article by Herman Benson published in Dissent Magazine

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SOME YEARS ago, when it became obvious that the labor movement was in trouble, when membership figures were dropping, academics came up with novel ideas to provide some measure of protection for unorganized workers. Only one suggestion was rooted in unionism as we know it. That was the idea first advanced by Clyde Summers, popularized by Alan Hyde and others, and most recently revived at book length by Charles Morris in The Blue Eagle at Work.

They urged that, where workers had chosen no exclusive bargaining agent, unions demand that employers recognize them as the bargaining agent for their own members. They argued persuasively that the National Labor Relations Act makes such a demand legal and binding upon employers. This so-called “minority unionism” was viewed as the entering wedge toward full union recognition. Nine international unions have petitioned the National Labor Relations Board to promulgate a new regulation that would require employers to bargain with minority unions where no union has won exclusive bargaining rights.

Others also supplied imaginative alternatives to halt the decline. Perhaps ethnic identity could somehow replace class solidarity. Or, why shouldn’t workers be permitted to choose other institutions—law firms, for example—to represent them? Another idea was that if unions can’t overcome employer hostility to outside unions, why not relax the restrictions on management-supported forms of company union representation? Still another: if, in the face of employer hostility, unions are unable to enroll masses of workers at their workplace, why not serve workers directly, not only with problems on their job but with their whole range of individual miseries—legal, compensation, unemployment insurance, housing, and so on. These proposals sought to bestow upon workers the blessings of collective bargaining or other services that they were too weak to win on their own. What they had in common was the notion that, because traditional unionism was obsolete it had to be replaced by some other form of representation or be transformed into a social service or settlement house type of operation. For more than two hundred years, the basic principle that distinguished unionism from all philanthropic means of lifting the downtrodden has been that workers must act for themselves in their own interest and not rely on forms of charity. That principle would erode under the new systems.

Then John Sweeney rose to the top of the AFL-CIO in 1995, promising a return to the days of honor and glory. Years passed, nothing much changed, labor’s decline continued. Promising another new beginning, Andy Stern led his own Service Employees International Union and a consortium of fellow-traveling unions out of the AFL-CIO into a rival federation, Change to Win. He sounded a trumpet call to organize the unorganized, especially the oppressed minorities, the low-paid unskilled, and the super-exploited immigrants. Then, he shook up the labor establishment with running ideas of the month: Organize new millions; abandon old-style confrontational unionism; look to hedge fund managers; cooperate with responsible employers to rebuild the American economy; don’t annoy them with individual grievances; denounce Wal-Mart as a greedy exploiter; stand with it and other big employers for health care for all Americans; merge locals into massive entities and draft their officers and staff into a disciplined cadre to increase union “density”; denounce employers who will not cooperate but treat gently those who do; seek common ground with China and its state-controlled labor organizations to assist workers of the world. Stern won credit for instigating a debate on fundamental issues, even though those issues have never been clearly defined. It was an ideological mishmash, but a challenging and provocative one, and it made him into a media celebrity as the labor leader of the future.

We no longer need academic theorists to create substitutes for unionism. Stern has preempted the field with his own idea of a new kind of unionism. He looks not toward the old-fashioned method of organizing and inspiring workers in a battle for union recognition, but to employers’ cooperation, even their active assistance, in fashioning the modern, and bigger, labor movement. The bigger the employer, the better.

Stern’s twenty-first-century model is not exactly a variety of company unionism, because a real union, not an employer, is the initiating force. But neither is it unionism as we have known it, because it is constructed jointly with employers. Stern is right in one crucial respect. It is a new approach. He is convinced that it is the key to labor’s bright future. Will it, like many hybrids, prove sterile?

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A discussion of Ray Marshall’s decision to justify a trusteeship over SEIU’s United Healthcare Workers-West

SEIU President Andy Stern used findings by Raymond Marshall to justify his takeover of UHW-W. "We're acting on Ray Marshall's recommendations," he told the Wall Street Journal.

Stern had hired Marshall, a professor and former secretary of labor, to conduct hearings and make a recommendation for the disposition of his trusteeship charges against Sal Rosselli and UHW. But he didn’t need Marshall to comply with federal law, because the LMRDA authorizes the imposition of a prompt trusteeship by an international, which can hold hearings and ratify its own decision later. However, in the tense atmosphere surrounding these events, and in the face of widespread public criticism, Stern obviously felt he required the aura of extended due process to justify his actions.

After six days of testimony and a 105-page report, Marshall hesitated only a vernier micrometer reading short of ordering the imposition of an instantaneous trusteeship. However, he did authorize a trusteeship if Rosselli's local filed to comply "fully" with six conditions within five days. Marshall's report was dated January 21. The SEIU international executive board, trigger ready, authorized the trusteeship on January 22. Rosselli offered to negotiate conditions of compliance, but Stern was not interested in diplomatic fine points; he plunged ahead.

In the end, Marshall gave Stern 99.9% of what he had asked for and more than 100% of what he could use to justify a trusteeship. In the text of his decision, Marshall upheld the validity of every criticism leveled by Stern against Rosselli. Oddly, he gratuitously justified in retrospect trusteeship action that Stern might have taken in the past but did not!

Marshall ruled "I recommend that the IEB NOT [his emphasis] establish a trusteeship on the basis of the specific issues raised in the Amended Notice but establish a trusteeship if the UHW refuses to abide by and cooperate with the January 2009 decision of the IEB to have California LTC [long term care] workers unite into a single local union." This kind of ruling is, or should be, an unbelievably impermissible decision in any truly impartial court. The complex issue of long term care workers was not included in the charges presented to Marshall by Stern in September 2008. The IEB decision on long term workers came on January 9, 2009, months after the trusteeship hearings had opened. It is as though a judge found a defendant cleared of the charges actually included in an indictment but sentenced him for an offense not listed for trial. Appalling as such a conclusion may be, it stands as a mere procedural peccadillo compared to the rest of Marshall's decision. Not only here, but in every critical respect, his findings lack credibility.

On Retaliation

A single one of Marshall's main "conclusions" is enough to reveal the full flawed flavor of his whole work. "The Hearing and the IEB's Jurisdiction Decisions [on cutting 65,000 members out of UHW: HB]," he writes, "were not Initiated to Retaliate against the UHW for its Aggressive Criticism of International Leaders' Policies and Strategies." [his caps]

What strikes one at first is that this statement is uncalled for. To authorize a trusteeship, Marshall was required to find only a single valid basis for trusteeship even if all the others were flawed. (Which is what he actually did. In the end, he based his operative decision on Rossellli's resistance to losing 65,000 members.) But Marshall went out of his way to legitimize all of Stern's motives. There are subtle PR implications to this finding on "retaliation." Back in May 2008, 47 top SEIU leaders, including members of the IEB, protested that they would never approve a "retaliatory" trusteeship. Whether he intended it or not, Marshall's statement takes them off the hook for voting unanimously for this trusteeship.

But all this, however depressing, is only secondary. The essential point is that Marshall's denial of any retaliatory intent flatly contradicts a record familiar to anyone who has followed recent events in the SEIU. That record reveals a relentless drive to destroy the UHW and Rosselli after his sharp public criticism of Stern's evolving ideology:

In January 2007, Rosselli circulated an internal union memo sharply criticizing an agreement negotiated by Stern with a big association of nursing home chains in California. The agreement, according to Rosselli, created SEIU units that "may come close to becoming … company unions." After Rosselli's UHW submitted petitions denouncing the agreement signed by 20,000 SEIUers, Stern backed off and decided not to renew the deals.

Rosselli had been president of the SEIU California State Council. In January 2008, exercising his overweening power as international president, Stern dissolved the council, ordered elections to a newly organized council, and made sure his handpicked selection got the job. (P.S. Stern's choice now stands accused of misappropriating union money.)

In February 2008, Rosselli resigned from the SEIU international executive committee so that he could feel free to criticize the official line. As expected, and as natural, Stern loyalists responded with a flurry of counterattacks in which they denounced Rosselli not only for what he said but for the very act of straying off the line. The SEIU was adopting a policy that forbade any elected officer, staff employee, or local to criticize official policy before the membership. The whole apparatus, top to bottom, was to appear as one monolithic block. Rosselli and the UHW obviously would not submit to that principle.

In March, Stern made his first trusteeship threats against Rosselli and the UHW.

The June SEIU convention authorized a California reorganization plan that would strip Rosselli's local of 65,000 members.

In August, Stern instituted formal proceedings against UHW-W as the first step toward imposing a trusteeship; in the interim, he appointed two "monitors" to oversee local affairs and control all expenditures. Hearings were adjourned until after the presidential elections.

Meanwhile, Stern's followers instituted two separate federal suits against Rosselli and members of the UHW executive board. The first, filed by the SEIU itself, was dismissed by the federal judge. The second, filed by two individual members of UHW-W, may still be pending. In both cases, the firm of Bredhoff and Kaiser was the complainants' attorney. The complaint in one suit was explicit in seeking "an injunction prohibiting defendants from using UHW-W funds for their defense....."

California SEIUers were asked to vote in an "advisory" referendum: Shall all long-term healthcare workers --- as in nursing homes --- be transferred into one local; or shall all healthcare workers ---including hospitals --- be combined into a single big local of all healthcare workers. For Rosselli's UHW, a Hobson's choice. In one case, UHW-W would lose 65,000 members; in the other, it would be liquidated as a local, and Stern would appoint the officers of the new local.
Two sets of formal internal union charges were suspended over Rosselli. Two UHW-W members charged the Rosselli camp of harassing them for supporting Stern's program. In a second set of internal union charges, two international executive vice presidents charged Rosselli and UHW-officers of offenses already leveled against them in the trusteeship hearings. In both cases, Stern exercised his ample powers to assume jurisdiction and appoint the committees to try the critics whom he detests.

A third threat never reached the level of formal charges. In a letter to Rosselli in July, SEIU General Counsel Judy Scott demanded that he reply to "some evidence" that his staff had turned over an SEIU membership list to the California Nurses Association in Iowa.

Marshall had to shrug off this whole record of attacks on Rosselli to deny any hint of retaliation.

Those 65,000 long term care workers

Of UHW's 150,000 members, some 65,000 worked in "long term care" facilities like nursing homes; the others in acute care facilities like hospitals. The SEIU national office argued that in California all long term care workers, now distributed in several locals including UHW, should be united into a separate local and toward that end, those 65,000 should be cut out of UHW. Rosselli and the UHW opposed this move, insisting that instead of separating long term workers from the others, all health care workers in California should be united into a single local with a democratically elected leadership.

Now, these are hotly contested issues, more than ordinarily complex. They are additionally complicated by devious tawdry implications: Stern insists upon appointing the officers of all new locals. His first obvious candidate to head up any long term local was Tyrone Freeman, whom he had appointed as president of the one existing long term local. But that fell through when Freeman had to be expelled on charges of misappropriating about a million dollars of union money.

There was no valid reason for Marshall to give much weight to any of this, certainly none to make it the key issue in his finding. He was presumably authorized to conduct hearings on specific charges related to a trusteeship demand, and the topic of those 65,000 was never the subject of charges; it was not even mentioned in Stern's original list of charges. It was thrown in only later as a kind of afterthought and even then not as the justification for disciplinary action. Stern called attention to the dispute over the 65,000 to portray the dispute with Rosselli as a fairly routine organizational dispute over how best to organize long term care workers. It was Stern’s effort to portray Rosselli's criticism as simply driven by a narrow desire to hold on to dues payers. In short, Stern's references to the dispute over 65,000 members was not a charge against Rosselli intended to justify a trusteeship; it was an effort to derogate Rosselli's motives.

Marshall not only swallowed Stern's bait hook, line and sinker -- "the basic problem," he wrote, "appears to be the local union's reluctance to accept the IEB's jurisdiction decision that would cause the UHW to lose its 65,000 LTC members." -- he went further, much further. He transformed an almost totally irrelevant complaint into a most serious charge and then used the charge he himself had created as a justification for trusteeship, the main justification.

The funds

One last word on an issue that dominated long hours of the proceedings but which finally had no bearing on the final decision. It has some significance, however, as an indication of Marshall's state of mind. When the danger of a repressive trusteeship loomed, UHW established two separate funds apart from its regular treasury: one was intended as a tax exempt fund to be charted as an IRS 501(c)(3) educational organization. The other was an escrow fund deposited with the local's law firm for future legal action. Stern argued that the real but concealed purpose of the funds was to set aside money to defend the local officers if a trusteeship was established. (When a local is trusteed, its officers can be removed or suspended and the international takes over control over all its resources, including money.) Ironically, Stern threatened a trusteeship because, he said, local officers sought to use local money to fight a trusteeship. Rosselli and the UHW denied the charge and insisted that it set up the funds as a more efficient way of conducting educational and political-type activities. (Full disclosure by HB: On my internet blog, I commented favorably that these funds hopefully could be used to defend the local against an improper trusteeship and to defend the rights of members under a trusteeship. The blog became a minor debated issue before Marshall.)

Actually the issue was mooted before the hearings ever opened because the local yielded, dissolved the funds, and simply restored the money to the local treasury. After hearing the arguments, and obviously recognizing that fact, Marshall concluded , "Although I do not recommend trusteeship for the reasons stated above …" but he had to end the thought with "I believe a trusteeship would have been appropriate to prevent further transfers and recover UHW money already transferred had the trusteeship been imposed at the time of the transfer."

But Marshall had presumably been called upon to assess the validity of charges that would justify this trusteeship, not what might have justified a hypothetical trusteeship that was never imposed. Here too he strained to go beyond the call of duty.