Thursday, February 05, 2009

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.