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.

For more information visit the following links:

Consumer Law and Policy Blog

Internet Free Speech

Goodbye, Frank Schonfeld

Frank Schonfeld, an eminent spokesman and leader in the battle for union democracy, died in November at the age of 95. A memorial gathering is planned for Sunday, February 26, 2012, at 2:00 p.m., to be held at Vladeck Hall, 74 Van Cortlandt Park South (corner Hillman Avenue), Bronx, NY 10463. (Nearest subway stops are: IRT 4 (Woodlawn) to Mosholu Pkwy (and Jerome Ave); IND D (205th St) to Bedford Park Blvd (and Grand Concourse); IRT 1 (242nd St) to 238th St (and Broadway))

Among the many things Frank and I shared was a birthday. We were both born on July 9, except that I was one year older than him. That's my way of saying that at 96 years of age and biologically degraded, I find it hard to get around. I'm sorry I can't be with you, but I must at least WRITE something about my good old friend Frank Schonfeld.

I first met Frank in 1961. He was a house-painter and member of the big Painters District Council 9 in New York. He had decided to run for the top job of DC 9 secretary-treasurer as part of a campaign to free the union from control by the Lucchese crime family. As the publisher of a little newsletter, Union Democracy in Action, which aimed to tell the story of union reformers like him, my first reaction was nonetheless that he had illusions of grandeur. With just himself and a half-dozen active supporters in a union of maybe 12,000 members, he expected to overcome a bunch of crooks backed by organized crime!

But he turned out to be genuine, and he turned out to be right. That year marked the beginning of 50 years of close collaboration and friendship between Frank and me.

When he first ran for top office in 1961, he did surprisingly well. In a union where no one was watching the ballot count, he was credited with one-third of the votes. In some locals, where he was able to campaign vigorously, he actually won a majority. He persevered, built a caucus of maybe a dozen activists, ran and did a little better in 1964.

Early in 1966, came a tense and dangerous moment. Dow Wilson, a Painters reform leader in California, with whom Frank had been coordinating efforts, was murdered and a month later Lloyd Green, a Wilson colleague, was shot to death. I remember telephoning Frank on the day before he was to fly to California for their memorial. In the background, his daughter Sari, fearful of his safety was crying and begging him not to go. But Frank would not be dissuaded.

In 1967 at last there was an honest count. In an election ordered by a Federal judge and supervised by a court appointee, Frank defeated Martin Rarback who had held the top job for twenty years. (Rarback later went to jail on corruption charges.) For Frank it was a spectacular victory, and yet, it opened up what was probably the most physically and emotionally stressful six years of his life, with dawn to dusk hours of work.

While he had been elected by direct vote of the membership to the top district position, most of the old-line business agents still controlled the locals and dominated the council of delegates. They remained in collusion with the bosses and had the support of the international union officials to undermine his authority. Those same business agents supported raids by a corrupted Teamster local against Painters DC 9. He faced a raid from the Carpenters union. He faced hostility from the New York City Housing Authority. I knew about all that because I worked with Frank in all those nerve-wracking years.

By sheer determination and working those interminable hours, Frank held on for six years. But he did more than just hold on. He led a general strike of New York painters that effectively raised wages 93% and increased pensions by 44%. He took the pension plan out of the hands of a suspect administration and put it under professional control. He warded off two raids by the Teamsters and a long raid attempt by the Carpenters. He democratized the election system. When he ran for reelection in 1970, he faced a concerted drive by the business agents, the international, the Teamsters, and the agents of the Lucchese family to defeat him. By a near miracle he beat them off to win reelection.

But after a second three year term, the balance of power had shifted. During Frank's six years in office, the business agents, with the aid of cooperating bosses, succeeded in bringing in a whole new army of employees beholden to them for jobs. Open Schonfeld supporters often found it difficult to get work. In 1973, Jimmy Bishop, chosen as candidate by organized crime, edged out Frank for secretary-treasurer. How do we know Bishop was the mob's candidate? A few years later he was forced to resign and was then murdered; a victim of a falling out among racketeers.

Frank went back to work as a house-painter. He could earn good money and retire on a generous pension because he now could enjoy everything he himself had helped win for painters. Not only painters, but the whole labor movement has benefited from Frank's career as a courageous union reformer. While still an insurgent in 1962, Frank supported the cause of Solomon Salzhandler, an old-time painter and treasurer of DC 9 Local 442 who had been fined and suspended for accusing his business agent, who had stolen money, of stealing money. Frank helped recruit a young attorney, Burton Hall to represent Salzhandler in Federal Court. They won the famous case of Salzhandler v. Caputo, the landmark case which established a firm basis in federal law for the rights of free speech in unions.

I must mention one part of Frank's life because he would talk about it over and over, in public meetings and in private. His life was self-fulfilling, but it was all-consuming and always on the margin. He could survive and do great things only because he had the unwavering moral and practical support from his wonderful wife, Jean. If he could be here today, he would make it an important part of what he had to say.

Once Frank was relieved of the burdens of union leadership, and then finally in retirement, his life took a new and quite different turn. Our long collaboration in the cause of union democracy led to a warm and continuing friendship. I introduced him to the great outdoors of Mother Nature. Together we co-owned some 40 acres of abandoned farmland and a pond in Bradford New York, where we bushwhacked through the woods and worked to rescue a crumbling hundred-year-old farmhouse. Frank was fascinated by the grass, the flowers, the trees, the bushes and the wetlands. Like one great poet, he learned "To see a World in a grain of sand and a Heaven in a wild flower."

Others can speak of what he did and what he accomplished in later years. I must end with this: Goodbye, my old friend Frank. We had great times together.

Still here, still fighting...

We all know about labor's struggle against its long, slow decline in membership. This fight, often against the relentless opposition of anti-labor business interests and also sometimes, sad to say, labor's own bureaucratic inertia, was compounded this year by the significant legislative assaults we have all grimly read about. But AUD is still being flooded with requests for help from people who know the importance of the labor movement, and want it to be there for themselves and others -- people working and risking to make sure this happens.



Each month, roughly 25,000 visitors browse AUD’s information-packed website, mine our storehouse of “how-tos” and links to relevant sources, and read stories from our Union Democracy Review and $100 Plus Club News. And if the web-surfer needs more, a call or an email to our office gets it -- last year we provided one-to-one help to a record number of unionists wanting to improve and strengthen their unions. And we are proud to know that our help has made a difference:

“Without your support, continued interest and writing of the struggles I sincerely doubt I could have kept the members interested through the long legal process....”
--Finn Pette, former financial-secretary, International Union of Operating Engineers, Local 501

“I was forced to defend myself against the overwhelming power of a union that I depend on for my livelihood. With no one and nowhere to turn for help, I found AUD. They listened attentively and asked responsible questions. I was very impressed with their great intuitive insight into my problem when they offered sound legal direction. My appeal is now on good solid legal ground.”
-- electrician

“When we were embattled reformers aiming to make our nurses association a more effective union we faced repressive disciplinary retaliation from an abusive controlling officialdom, even possible expulsion. AUD steered us in the right direction in Federal court and publicized our cause in Union Democracy Review. With your help, we successfully defended our rights and won our battle. AUD continues to be an essential resource for our caucus in building a stronger democratic union for registered nurses in New York State.”
-- Pat Kane, Anne Bove, and members of the New York Nurses United caucus.

“I cannot remember who put me in touch with AUD, however, I’m grateful they did. AUD’s guidance, support and encouragement are what I needed to replenish my drive for justice. A complaint of mine has been proceeding through the slow hands of justice. This is why AUD is so important. Its distribution of information to union members gives us what we need to fight back when there are unfair practices in our unions. My struggle goes on. I’m certain that I will be victorious in my efforts. Nichiren Daishonin puts our struggle in context when he states, “Struggle purifies us and brings forth benefits in our lives. Justice or happiness without a battle is an illusion.” Thinking that happiness means a life free of hard work is fantasy. You need AUD and now, AUD needs you to become a member or give a little extra if you can.”
-- union member

AUD does need your help. We are facing a serious budgetary shortfall this year. Most of our support comes from rank and file unionists, who we understand are themselves more and more stressed. Nevertheless, we continue to count on you so that we can carry on the struggle to do what we do -- what we believe you know needs to be done. And we hope you can come through for us once again.

Please give today.

Your partners in union democracy,

Judith Schneider (President)
Herman Benson (Secretary-Treasurer)
Kurt Richwerger (Executive Director)
Matt Noyes (Internet Coordinator)
Rashida Atkins (Program Associate)
Joshua Gaston (Program Associate)

Insurgents win in New York Nurses election but union management refuses to give up

According to members of the New York State Nurses Association (NYSNA), the insurgent "New York Nurses for Staffing, Security and Strength" ("S-3") won a big victory in last week's union election. NYSNA is one of the largest state nurses' unions in the United States. Winning all their races, the insurgent "S-3" slate would have the majority of positions on the union's board of directors. However, NYSNA's current management refuses to concede, citing election complaints, and has made it clear that they will not certify the election until the complaints are resolved. The insurgents are exploring their options, including legal action. AUD has followed the insurgent nurses' struggle to democratize their union in previous stories in Union Democracy Review. Stay tuned for more information as the situation develops. See AUD's website www.uniondemocracy.org for background on the struggles of the NYSNA insurgents.

Benson Retirement

Herman Benson will no longer come into the office as of September 13, but will be able to blog and receive and send emails....

Does his birth certificate read “Ozymandias"?

Who is the real Andy Stern? He retired just as he was about to join with hedge fund managers and other cooperating managers of big capital in an inspiring campaign to rescue the labor movement. At the time, he said he was retiring to make room for a younger generation to carry on. But the colossal wreck of his legacy seems to be crumbling in the lone and level sands. That younger generation rejected his choice as successor to the SEIU presidency. Change to Win, the institution he created to rival the AFL-CIO, is crumbling. And now, the man he chose to stand right beside him in the crusade is has fallen, Bruce Raynor.

Raynor turned into an important power in the Stern entourage. He had been president of UNITE, the once powerful clothing union and became president of UNITE/HERE when it merged with the Hotel union. He transferred it out of the AFL-CIO into Stern's Change to Win. But when Raynor was defeated in a bitter factional battle and lost the UNITE/HERE presidency, Stern stood behind him and brought Raynor, along with 100,000 members, into the SEIU where he was immediately elevated into one of the highest SEIU posts: international executive vice president.

But now, with Stern gone, the SEIU leaders have pushed out Raynor, Stern’s close associate.

Raynor resigned to avoid trial on charges that are bound to mystify any normal observer. For one thing: he was accused of improperly spending a total of $2,300 on ten dinners which he says were actually concerned with legitimate union business. That's an average of $230 each. And so here's a man who was a bank president at the time, president of a 100,000-member unit of SEIU, and surely recipient of a generous salary as executive vice president. Did he really phony up a few $230 expenses? And with all those millions sloshing around in the SEIU in these perilous times, how did they happen to run across these alleged peccadillos?

In a related aspect of the same charges, he was accused of falsifying he records by eliminating the name of the female SEIU union officer who dined with him and substituting the name of a male colleague. So what? As a possible sex scandal, it is not so hot. His explanation seems as boring as it is simple. He says that she is embroiled in a dispute in Canada with UNITE/HERE, and Raynor feared retaliation against her in the SEIU if it became known that she was conferring with him.

That younger generation to whom Stern bequeathed his legacy? They look upon his works and reject another of his chosen continuators.

In Pipefitters Local 342 Employers' "Right to Reject...for just cause"

Surfing Cornell's Library of Contracts on the internet, we were pleased to discover the following provision in the contract between Pipefitters Local 342 and its employing contractors in California: "The Individual Employer shall have the right to reject any applicant for employment referred by the Union for just cause..." What catches the eye are those three little words, FOR JUST CAUSE.

Unlike the Local 342 agreement, other construction contracts generally give employers the right to reject applicants for work, even those referred out of the union hall, for any reason whatsoever. No need to cite a "just cause" or any cause; the right to reject in those contracts is unilateral, arbitrary, not subject to appeal by the union or by the individual. (Of course, by law employer rights are limited. For example, they may not discriminate by reason of sex or race or even union membership. But only idiots would openly violate the law when they need state no reason at all for rejecting an applicant. Any contractor so stupid would not have what it takes to survive in the cutthroat world of construction.)

In construction, jobs are time-limited. When one project ends, workers must go back to the hall for referral or solicit work on their own. Armed with the unilateral, uncontestable right to reject, a right enshrined in their union contract, employers can easily blacklist union activists, the ones who insist that contractors comply with union standards for safety, wage rates, payment into benefit funds. And so, when union loyalists can easily be cut out by unscrupulous employers, the locals become weaker, the best unionists are intimidated.

"Right to reject" has been a hotly contested issue in the International Brotherhood of Electrical Workers, where local leaders have been trying in vain to pressure their international leaders to curb the employers' unilateral right. At two IBEW international conventions, over a period of more than ten years, convention delegates have passed resolutions directing their leaders to make that right subject to "just cause." But in vain. The international ignores the convention decisions. Local are still required to include that unqualified right to reject in their contracts.

That's why that qualifying clause “for just cause" in Pipefitters Local 342 contract could be so important. Electricians have no recourse if they are dispatched from the hall but are rejected by the employer. Local 342 Pipefitters, in contrast, have recourse to the contractual grievance procedure. If they feel they are unjustly rejected, they have the right to appeal to the Joint Referral Appeals Committee consisting of four employers and four union representatives. (In the event of a deadlock, the provision allows for arbitration.)

The Local 342 contractual provision limiting the "right to reject” by a requirement for "just cause" and subject to the grievance procedure, should be of interest in other construction unions. But how does it work out in practice and how is it actually enforced? The contract provides that this information "be posted on the bulletin board of the Union, in its office and...of the Individual Employers” and that actions taken in this connection "shall likewise be posted." It would be helpful if members and officers of Local 342 could inform other construction unionists of their experience with the relevant Article II of their contract.

Are Carpenter local unions still "labor organizations?"

A discussion by Herman Benson

The question is startling but legitimate. The Labor-Management Reporting and Disclosure Act defines a "labor organization" as one "in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment..." By that standard, Carpenter locals, totally disarmed under the current union structure, seem to have clearly lost the right to designation as "labor organizations."

In the Carpenters union, locals have been merged into district and regional councils where they are stripped of all participation in negotiating, signing, or enforcing collective bargaining agreements. Full authority over dealing with employers, from start to finish, is arrogated by an executive secretary treasurer, who is armed with extraordinary authoritarian power, not only over collective bargaining, but also over every other sphere of union life.

Council bylaws make clear how sweeping and authoritarian that power is: "The EST shall have the power and authority to appoint and remove representatives for and on behalf of its Local Unions to act as Trustees or all negotiated Employer/Union Trust Funds including, but not limited to, annuity, health and welfare plans... Accordingly, all trust agreements and/or plan documents shall be amended by the authorized representatives of the Local unions to reflect the foregoing appointment and removal process." And just to make it crystal clear: "The Council shall have the exclusive power and authority to negotiate and execute Collective Bargaining Agreements for and behalf of its affiliated local unions, except to the extent the International Union exercises its jurisdiction or authority." Carpenter councils may or may not decide to submit contracts for membership ratification, but that decision involves a relation between the council and the total membership. In such a decision and such a process, local unions are irrelevant.

All business agents, representatives, all personnel that have anything to do with contract negotiation or enforcement are selected by the all-powerful EST. And that power extends beyond the area of relations with employers into every aspect of union activity.

Locals, now walled off from collective bargaining, have been so weakened that they are incapable of doing anything effectively. Most dues money goes directly into the district council treasury. As required by Federal law, locals still elect local officers; but locals are expressly forbidden to pay them salaries or to hire any other staff personnel except clerical employees, no educational directors, attorneys, political action reps, no one. Not one person can hold any paid union position of any kind, except simple local clerical employees, unless selected by the regnant EST.

One carpenter in New York argues on the internet that all local unions in the Carpenters District Council should be abolished because the reorganization of the international union under International President Douglas McCarron has already squeezed all life out of them. As he says, with justification, local unions have been deprived of almost every autonomous right and have no effective constitutionally means of affecting what happens in the union, not even in their own assigned jurisdiction and certainly not in the district. And so he concludes, it is pointless and misleading to continue the fiction that locals still have any meaningful role. But while he describes the facts accurately, his conclusion would make matters worse. Precisely because the international has become so egregiously authoritarian, locals' unions, even in their eviscerated state, have become the only arena left where rank and filers can easily assemble to discuss union affairs, express dissatisfaction, and even just let off steam. Members have lost the right to act through their locals in collective bargaining; but so far, they retain at least the right to talk.

Where does all that leave local unions in the Carpenters structure? In their relationship to the union, they resemble the social committees, educational committees, women's caucuses, coalitions of black trade unionists, or any of the many other committees or subunits that unions create to carry on their activities. Like them, locals have no role in collective bargaining.

Where does it leave the district and regional councils? Since they bypass and preempt the now lifeless locals in collective bargaining, they should be required to fulfill all the obligations imposed on locals by Federal law, including the direct secret ballot vote by members in the election of council officers and in the levying of dues and assessments.