The NUHW 16
SEIU's Courtroom Payday Is Pyrrhic Victory for New Corporate Unionism
Legal lynching, actual or attempted, has been a longtime threat to union organizing. When workers first tried to form unions, they found themselves charged with conspiracy. For nearly a century, employer attempts to crush their "illegal combinations" took the form of injunctions, fines, and imprisonment for civil court contempt or criminal law violations. When the trade unionists involved were progressives, additional tools of repression were employed, including statutes against "criminal syndicalism" (a widespread IWW offense), "sedition" (for which Gene Debs spent time in jail, after opposing World War I), and advocating a government overthrow (the basis for Smith Act indictments against Farrell Dobbs of the Teamsters and Bill Sentner of the UE). For many years in California, the government used federal immigration law, fruitlessly, in an effort to deport Harry Bridges of the ILWU back to his native Australia.
In my own experience as a trade unionist since 1972, I've seen West Virginia coal miners hauled into court, jailed and fined for wildcat striking. The UMW was a frequent target of huge damage suits filed by coal operators for breach of the "no-strike" clause in the union contract; when the Pittston strike, an officially sanctioned work-stoppage, ended in 1989, the UMW and its members faced more than $60 million in fines. In the last twenty years, "civil RICO" litigation has become another popular form of management payback for non-strike activity, such as union-orchestrated "corporate campaigns." The acronym refers to the Racketeer Influenced and Corrupt Organizations Act. In protracted labor disputes, it provides a basis for a legal counter-attack similar to that faced, with increasing frequency, by citizens whose pro-consumer or pro-environment stance results in a SLAPP -- a business-backed "strategic lawsuit against public participation" in regulatory proceedings or community protests.
The goal of all this harassing litigation is not only to discourage resistance by those with organizational treasuries, like the UMW or the UFCW, which was sued, under RICO, over its campaign for a fair union election among Smithfield Farms workers in North Carolina. Legal action is also a way of threatening and burdening individual activists who may not have big salaries or bank accounts. They nevertheless find themselves being pursued for millions of dollars in damages, not to mention having to spend a lot of their time dealing with depositions, document requests, and trial preparation, rather than engaging in ongoing organizing. Before the RICO case filed by Smithfield was settled in late 2008 and the union won a representation election shortly thereafter, the company had sought $16 million from the UFCW, from organizers like Gene Bruskin, who coordinated its corporate campaign, and even from low-budget allies like Massachusetts Jobs with Justice.
The latest resort to SLAPP-style intimidation in a key worker struggle was not by any government or corporate foe of militant unionism. Instead, America's second-largest labor organization, the Service Employees International Union (SEIU), bankrolled the costly and disgraceful legal circus that has been running in a San Francisco courtroom for the past several weeks. As part of his increasingly desperate campaign to destroy the rival National Union of Healthcare Workers, SEIU President Andy Stern filed a lawsuit seeking $25 million in damages from 28 former elected leaders and staffers of United Healthcare Workers-West, who helped SEIU members oppose an unpopular headquarters takeover of their local fourteen months ago. When internal reform efforts and further resistance to Stern's trusteeship became futile, these longtime union activists formed NUHW, making them targets of personal retaliation by SEIU in the process. After spending what NUHW claims was $10 million on the litigation, SEIU ended up last Friday with a confused and soon-to-be-appealed jury verdict awarding damages amounting to less than $750,000 against the new union and only 16 of its founders. (In a post-verdict conference call for the press, SEIU representatives claimed to have won $1.5 million in damages. They would not disclose how much dues money was spent on the four big law firms that spent 13 months preparing and presenting the case.)
Readers interested in weighing the merits of "SEIU vs. Sal Rosselli et al" can compare the competing views of reality on display at www.nuhw.org and www.seiu-uhw.org, check earlier courtroom reports posted by Carl Finamore and Randy Shaw at Beyond Chron, or the post-verdict commentaries by Mike Parker or David Moberg. I was not at the trial and don't claim to be an impartial observer, by any means, since I know many of the defendants personally (along with other NUHW organizers, which include my own daughter). I think those sued by SEIU include some of the most committed, self-sacrificing, and talented organizers in the labor movement today. And that's why I'm one of many NUHW supporters around the country who have helped organize fund-raisers for the new union or personally contributed to the Fund for Union Democracy (465 California Street, Suite 1600, San Francisco, CA. 94104) or www.fundforuniondemocracy.org) to help pay its legal expenses.
There are two important things that friends of labor less connected to the case (and the related cause) might want to know about Andy Stern's legal pursuit of the "NUHW 16":
* SEIU's lawsuit won't stop NUHW from winning more representation elections among California health care workers this year -- the main goal of the litigation.
U.S. Labor Department forms just filed by the NUHW, for 2009, confirm that it has been getting strong (and hopefully continuing) financial support from another angry organizational target of SEIU aggression. The widely-condemned attack on UNITE HERE -- engineered last year by Stern -- has led his former ally in Change to Win to return to the AFL-CIO fold and, along with others, provide several million dollars in grants and loans to NUHW. If pro-NUHW workers wrest bargaining rights away from SEIU at Kaiser Permanente this summer -- in a statewide bargaining unit of 45,000 -- the new union will be on the road to financial self-sufficiency and long-term viability. Already, it was won the right to represent 3,300 workers, including Kaiser units in southern California, where workers voted 10 to 1 to switch unions in January. During the April 23-25 Labor Notes conference in Dearborn, Michigan, activists from around the country will have the chance to meet with NUHW leaders and rank-and-file organizers and discuss other ways they can be directly involved in upcoming campaigns. Already a number of experienced organizers, young and old, from other unions have committed to take vacation or personal leave time to assist NUHW efforts at Kaiser or anywhere else in California they are needed. (Among them are retired SEIU members and elected officers, plus many former staffers, who are now estranged from their old union.)
* If the liability finding made in court last Friday is upheld, union democracy and reform advocates everywhere have a new legal precedent to worry about.
The gist of SEIU's case was that the relationship between a national union and any of its local affiliates is just like the Bank of America's relationship with branch banks. If the parent company wants to reorganize a branch or change its management in any way, there's no legal basis for objecting. In the union context, local officers -- even though elected by the membership -- owe a greater "fiduciary duty" to the international union than to anyone else. They must comply with all headquarters decisions, even if dues-payers locally -- the workers they represent -- are opposed to them and these directives are clearly misguided.
SEIU has relied on this legal theory before -- for example, seven years ago in Rhode Island, when it tried to crush a small local rebellion that erupted under similar circumstances. In that dispute, the International union targeted Karen McAninch and Charles Wood, two SEIU Local 134 leaders who were accused of breaching their "fiduciary duty" to the International Union because they did the bidding of their members rather than follow the orders of Andy Stern.
In 2002-3, Rhode Island janitors, campus maintenance workers, and librarians represented by Local 134 were given an ultimatum by Stern. They were told they had to merge with a Boston-based building service workers local run by national union staffers he had appointed. When the vast majority of Local 134 dues-payers signed a petition seeking to keep their own local intact, their wishes were ignored, just as rank-and-file opposition to the forced restructuring of UHW was later brushed aside as well. So members themselves began organizing an independent union, the United Service and Allied Workers (USAW). McAninch, a former Brown University librarian, and Wood, a former maintenance worker, felt compelled to support the initiative taken by their co-workers, even though both were full-time officials of 134. Not only was the local put under trusteeship, with all the elected officers and stewards removed, but McAninch and Wood were sued for damages, which could have been personally ruinous for either if SEIU had been able to collect. As in California, the amounts claimed included dues lost by SEIU, pre-trusteeship salary money the defendants had been paid, and other costs. Like the NUHW 16, they were accused of "misappropriating trade secrets" -- in the form of information about Local 134 bargaining units and members they knew well and had served faithfully for years.
Fortunately, Karen and Charlie's legal defense was successful and SEIU's lawsuit was dismissed. Other trade unionists, locally and nationally, rallied around the defendants and helped raise money for legal expenses so the full cost of the litigation was not borne by workers trying at the same time to build a new union, like NUHW. By 2007, most members of Local 134 had voted to switch from SEIU to USAW, when their contracts neared expiration and "open periods" finally enabled them to file NLRB petitions to decertify Stern's union. In the meantime, USAW managed to organize 150 new members at the City of Providence Library. The Stern-appointed trustee of Local 134 did seize its treasury but ended up with only a handful of its original members, who are now part of Boston-based Local 615.
The fact that SEIU succeeded at the trial level in California, where it failed in Rhode Island, is not a positive legal development. It means other SEIU dissidents, forced out of the union under similar circumstances in the future, may be taking personal financial risks if they side with the members as the ousted leaders of UHW did. On the ground, however, both USAW and now NUHW, on a much larger scale, demonstrate that there is an alternative to captive membership in a union that will squander an endless amount of dues money to defend the corporate-style power and perks of its top leadership.
Steve Early is a labor journalist and lawyer who worked for 27 years as a New England organizer for the Communications Workers of America. He is the author of Embedded With Organized Labor, from Monthly Review Press, and a forthcoming book entitled The Civil Wars In U.S. Labor, which deals with the dispute between NUHW and SEIU and other conflicts involving "progressive unions." He can be reached at <Lsupport@aol.com>.