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From the March-April 2007 issue of Union Democracy Review #167
IBEW president Hill upholds Canadian member's rights
By Matt Noyes
In March, IBEW International President Ed Hill overturned discipline imposed on Perry Speranza, a member of Toronto Local 353, and ordered the local to refund his fines. Speranza had been found guilty "of posting or permitting to be posted on the OurLocal353.ca web site material that he knew or should have known to be untrue, that would affect the reputation of Local 353." Speranza owns and operates the independent, open forum site. The disciplinary charges had been brought by the local's business manager, Joe Fashion, in an effort to shut down the site. Speranza was fined $1,000, with an additional $5,000 held in abeyance pending good behavior; he was ordered to remove the offensive material and not allow "untrue" statements to be posted in the future. (See Union officials "condone and endorse" attacks on members' internet free speech.)
In sustaining Speranza's appeal, Hill rejected the argument that Speranza was himself responsible for everything posted by other users of the site. Speranza managed the open forum responsibly, Hill said, noting that IBEW members who run independent web sites cannot be expected to "inspect every conversation as to its accuracy and whether it violated a provision of the IBEW constitution" and cannot be subject to union discipline based on comments by others.
In an unusual rebuke to the local, Hill agreed that the local trial board had been biased. "A fair and impartial hearing," he wrote, "requires that the trial board be made up of impartial jurors. In this case, the majority of the board members were also employees of the local, and thus, employees of the charging party and should have excused themselves..." In one other respect, Hill's decision was even more remarkable.
Speranza's appeal had been rejected and the local's decision against him upheld by International Vice President Phil Flemming. In vindicating Speranza, Hill not only questioned the local trial board's impartiality and overturned its decision; he reversed the finding of an international vice president. His processing of Speranza's appeal seems to display a new tolerance for dissent that is in sharp contrast to the top leadership's long record of heavy-handed suppression of members' rights, its knee-jerk hostility to every evidence of internal union democracy.
Speranza's reaction to Hill's verdict may be a sign of a changing mood in the IBEW. "I'm happy to have received a fair and favorable judgment from the IBEW international president in a reasonable amount of time, " he said. Hill is, he added, "a builder and a passionate man and appears to be moving in the right direction with the Internet freedoms. But I believe we must accelerate the process." (Speranza had kind words for AUD, which was, he said, "a key to my education on Internet rights and freedoms.... We need ...an independent organization that educates and helps us guard our democratic rights... I encourage others to join me and support an Association that can play an important part in saving and rebuilding union democracy in North America.")
Hill's decision, while a welcome support of Speranza's rights in this case, actually falls short of a forthright defense of the democratic rights of all members. For one thing, Hill insists upon the IBEW's monopoly control of the union logo, and denies the right of members to use it independently. But that shortcoming is minor compared to one fundamental defect in his decision:
While exonerating Speranza because he could not be disciplined for what others posted on his web site, Hill noted, "However, this would in no way excuse a member who posts libelous material, or statements that violate the IBEW constitution on the web site... the member who posts the information should be held accountable for his actions." In this decision, Hill ignores the fact that in the United States, it is illegal for unions to try members on charges of libel or making "false" statements. In 1962, in Salzhandler v. Caputo, a U.S. Appeals court, noting that union charges of slander were often a pretext for suppressing legitimate democratic rights, ruled that union trial boards were incapable of distinguishing between what they called libel and legitimate free speech. No one in unions, leaders or rank and filers, seeking recourse against libel or slander could resort to the union's disciplinary machinery. In 1981, in Boswell v. IBEW, a federal court voided the provision of the IBEW constitution which then subjected members to expulsion for "Publishing or circulating among the members, or among L.U.'s, false reports or misrepresentations." In a previous ten-year period, in over 800 cases, probably involving several thousand individuals, IBEW members were illegally disciplined under this and several other illegal provisions. Hill and the IBEW lawyers were surely aware of these facts.
But Speranza and Local 353 are in Canada, where Michael Lynk, law professor and author of Trade Union Law in Canada, writes, "Unions have fewer restrictions on how they deal with membership dissent... When a union member runs into problems after criticizing a union executive, his or her only legal remedy would likely lie in convincing a court that the union violated its own constitution by imposing discipline for non-slanderous speech." Despite his good deed in Speranza's individual case, Ed Hill would take advantage of this weakness to apply a repressive standard, which is illegal in the United States.
Nevertheless, despite its legal weakness, Hill's decision in this case does signify a significant change in the atmosphere inside the IBEW. Since the 1981 federal court decision in Boswell, which mandated a democratization of the IBEW constitution, there has been a proliferation of independent caucuses, of rank and file newsletters, of contested local elections. Two challenges to the international leadership --- Charles Delgado in 1982 and Mike Lucas in 1996 --- evoked widespread sympathy among local leaders and convention delegates. At the IBEW international convention in 2001, delegates revolted against the top leadership and directed the international to work toward eliminating clauses in IBEW contracts which gave employers the arbitrary right to reject electricians referred for work from the union hiring hall.
Unlike his predecessors, Ed Hill seems intelligent enough and sensitive enough to realize that these signs of disquietude, even of discontent, cannot be repressed with a heavy hand, but must be received as the legitimate concerns of an active membership and local leadership. In April 2003, 160 rank and file electricians, from around the country, rallied in front of the IBEW international headquarters in Washington, calling for direct election of all IBEW officers; and they demanded respect and democracy in their union. Ed Hill and other officers came out to welcome the crowd, offer coffee, answer questions, and assure them that their gathering was within their rights. Perhaps these events were the early harbinger of a new day in the IBEW.
All's well that may end well, but Speranza's troubles are not over. After his previous trial, Recording Secretary George Smith charged him with posting the trial transcript on the OurLocal353.ca web site. The local trial board found him guilty. His appeal to V.P. Flemming, and perhaps to President Hill, will test the strength of their attachment to the standards of union democracy.
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