Thursday, May 24, 2012

Public Citizen and AUD defend the right of union member to criticize union president and remain anonymous

A union member who created a parody Facebook page to criticize the union's president has the right to remain anonymous, Public Citizen told a California Court today.

Representing John Doe defendant in the lawsuit, Public Citizen attorney Paul Alan Levy today filed a motion in the Superior Court of Sacramento, California to quash a subpoena served on Facebook that seeks information leading to the identity of the page creator. The parody page poked fun at the union head for having "inherited" his father's lucrative leadership post.

Newton B. Jones, president of the International Brotherhood of Boilermakers based in Kansas City, Kansas, has generated substantial controversy both within the union and in public forums over several of his relatives being on the union's payroll. Jones, who followed in his fathers footsteps as union leader, is now one of the highest paid union presidents in the country even though the boilermakers are a relatively small union

The Facebook page named "Lord Newton B. Jones, Monarch" mocked Jones' wealth and called his family influence a dynasty. "Jones was not content with suppressing the page, which he quickly did as part of his legal offensive," said Levy. "He wants revenge and used his union's top lawyer to file suit on his behalf." Jones' filed WHEN, claims damages for defamation and impersonation. But the allegations do not meet the threshold necessary to deny a critic his First Amendment Right to anonymity, Levy told the court.

In addition, Jones lives in North Carolina, but he sued in a Kansas state court so that he could use the union's attorneys to fight on his personal behalf, Levy said. Also, the filing of the lawsuit itself may violate the anonymous union member's rights, which are federally protected under the 1959 Landrum Griffin Act.

(Paul Alan Levy is a Board Member of the Association for Union Democracy)

The following is reprinted from Union Democracy Review No 79, December 1990 

Challenging IBEW election rules

Three members of the International Brotherhood of Electrical Workers filed suit in District of Columbia federal court on August 30 asking the judge to enjoin enforcement of international union election rules which, they charge, violate the free speech provisions of the Labor Management REporting and Disclosure Act by drastically limiting the right to run for local union office and rendering supporters of insurgent candidates vulnerable to discrimination and retaliation.

Back in 1982, the IBEW amended its constitution and adopted rules which forbid candidates for local union office from accepting campaign contributions from anyone not a member of that local. The ban closes off contributions no only from those who are not members of the IBEW but even from members of other locals and from IBEW retirees. The rules also impose strict reporting requirements: Any candidate who spends more than $100 must file regular reports and list the name of every who donates more than $10. Unpaid volunteers are permitted to donate personal services, but their names and their employers must be reported. These mandatory disclosure documents are available for inspection by rival candidates for the same office, in effect making them public documents.

In 1988, running for IBEW Local 11 executive board on the TEAM ticket, an opposition slate, Louis Izykowski spent $142.50 to mail campaign literature. When he failed to file reports and list his contributors, he was brought up on charges in the union. In August 1989, he was found guilty and barred from running in local union electrons until he files the required reports.

These events led to the suit by the three electricians: Izykowski, himself; Forrest Darby, member of Local 1547; and Rhys Jones, a retired member of Local 11. They are represented by Paul R. Q. Wolfson, Paul Alan Levy, and Alan B. Morrison, all of the Public Citizen Litigation Group.

Some background:
In 1978, The United Steel Workers amended its constitution to prohibit candidates for international union office from accepting contributions from anyone not a member of the international union. Onerous reporting requirements were prescribed.

The union officialdom, which proposed the rules, had been disquieted by a strong campaign for control of the international by an opposition slate headed by Ed Sadlowski, insurgent candidate for president. Not satisfied with staving off the challenge, the international officialdom took steps to discourage any repetition. For one thing is sued AUD.

AUD had administered a Steel Workers Election Project to try to assure a fair count. The international sued AUD and several supporting foundations in an effort to induce the federal courts to enjoin them from doing it again. The suit failed at every level up through the U.S. Supreme Court.

But the Steel officials were successful in imposing the new election rules. A federal district court and an appeals court declared the rules void under the LMRDA; but, by a narrow 5 to 4 ratio, the U.S. SupremeCourt upheld the rules, which are now in effect.

With the Steel Workers paving the way, a few other unions followed suit with their own restrictive rules; the IBEW, the Teamsters, the Service Employees. But the rules are not identical. The IBEW complainants are convinced that their union's rules, unlike the Steelworkers; are illegal because they are far more dangerous to union democracy.

Background IBEW rules:
As in Steel, the IBEW officialdom seeks shelter from the uncertainties of democracy. Up to 1981, there was no problem; anyone who criticized the officials could be easily fined, suspended, or expelled; and so died insurgency. But in that year, after fed era suit by Dan Boswell, who had been suspended and fined in the usual fashion, a federal court consent decree compelled the international to remove from the IBEW constitution a series of illegal provisions which their free speech rights protected by federal law. In the course of the suit, it was revealed that one one ten-year period, there had been more than 700 cases of such repression. An analysis in Union Democracy Review estimated that thousands of individual members had been victimized under these provisions. With the removal of the offending clauses, there was a noticeable revival of democracy in IBEW locals.

In 1982, Charles Delgado, business manager of Local 527 in Galveston, Texas, mounted an effective insurgent campaign for international president, a race which son him wide sympathy but, in the non-secret, open balloting at the convention, only a modest number of open votes. The extent of his support was best indicated when he got the endorsement of more than 170 locals for a referendum to amend the IBEW constitution to provide a secret ballot vote for president at conventions. But the international board simply refused to submit the proposal to a vote. These unusual stirrings of democracy explain why, once the U.S. Supreme Court upheld the Steel rules, the IBEW hastened to adopt its own version. However, while the original and the intent of the Steel and the IBEW rules have something in common, the court will have to consider the decisive differences which make the iBEW rules far more deadly in their effect on the union's democracy.

(For one thing, the Steel rules apply only to international union elections. The IBEW rules given both local and international elections. The Izykowski-Darby-Jones suit, however, challenges only the provisions which apply to local elections.)

The Steel rules have been characterized as "outsider" rules because they bar contributions from nonmembers of the union. But the IBEW rules are more properly "insider" rules, because they prohibit members of the IBEW locals from donating to members of other locals. Like the Steel rules, the IBEW rules require the disclosure of the names of unionists who make campaign contributions But these two unions live in two totally different worlds. The IBEW has a long documented history of suppressing individual members' rights. Moreover it functions in construction, an industry where the blacklisting of dissidents is a dominating fact of life. The union's own legal counsel concedes that "mismanagement" of hiring halls is common. In such a union in such an industry, it takes great courage -- it often means job-suicide -- for a contraction worker openly to identify with the critics of the officials, the very officials who control their jobs. Under these conditions, the courts will have to consider whether here, unlike in Steel, union democracy can survive if dissidents are forced to expose themselves to vindictive retaliation.

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Consumer Law and Policy Blog

Internet Free Speech