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From the December/January 2003 issue of UDR, #149

Free Speech Under Attack from Within

by Herman Benson (member, National Writers Union)

Some writers realized that they urgently needed union protection to defend their rights: economic standards and freedom of speech. And so in 1981 they formed the National Writers Union (NWU). Because they wanted to be part of the labor movement, they affiliated with the United Auto Workers union in 1991 and became UAW Local 1981, a nationwide local.

Now comes the odd part: The NWU and the UAW now claim that, technically, the writers' local, under the law, is not really a labor organization, and so its members are not covered by the LMRDA, the federal law which protects the democratic rights of members in their unions. Having stripped its members of their rights under federal law, the Writers Union now proceeds to limit their free speech as union members. Strange but true, and here is how it worked out:

For ten years, as many as 7,200 writer unionists thought they obviously were members a labor organization; and as UAW Local 1981, the NWU filed all the reports required of labor organizations under federal law. Until 2001, that is. That year there was a heated contest in the election over national officers. The loser challenged the validity of the election and in due time, her appeal reached the U.S Department of Labor. When the department's investigators contacted the UAW national office, a UAW attorney informed them that the NWU was not a labor organization as defined by federal law because it aimed only to represent writers who are freelance contractors and not writers who work as employees of employers. The Department of Labor accepted that declaration as good coin and so, in a letter to the complainant, refused even to process the complainant.

Routinely, when the DOL dismisses a union election complaint, the unsuccessful appellant receives a formal "Statement of Reasons," prepared in Washington, D.C. explaining why the appeal was dismissed. In this case, however, the complainant never enjoyed even the recognition of a formal statement of denial. All she received was a simple letter from the district office explaining in detail why "we are unable to process your complaint," concluding, "Because ... NWU only represents independent contractors, it is not considered a labor organization under the LMRDA."

LMRDA Section 3i defines a "labor organization" as "any organization... which exists for the purpose, in whole or in part, [our emphasis] of dealing with employers concerning ... conditions of employment ...." In the union, a dispute continues over whether the NWU actually meets this definition and whether the Department of Labor and the UAW attorney are wrong. The National Writers Union, at this juncture, does aim principally to represent free lance writers. Of the union's now 5,500 members, about half are actual employees, but the union does not aim routinely to bargain with their employers or represent them in their status as employees. However, according to reports from some union members, the union, from time to time, has processed grievances for writers who are employees of temporary agencies which rent them out to clients. The NWU frowns on that kind of relationship, but where it does exist, the union acts for the employee.

The debate over definition will continue, but as it surfaces, it reveals--or perhaps conceals-- far more troubling issues. For one thing, it is depressing to see that the UAW, which boasts of its dedication to democratic values, is quick to seize upon an intricate technicality to deprive members of the protection of federal law on union democracy. Before the NWU escaped its status as a local labor organization, its leaders wanted to raise dues; and so, as required by the LMRDA, they submitted the proposal for membership vote--and lost! Now, freed from the requirements of the LMRDA, they quickly bypassed the membership; and managed to have the dues increase adopted by a meeting of delegates.

Free speech and libel

One thing leads to another. The dispute over definition has led to something worse. Here, inside a writers' union in the UAW, a writer's free speech comes under intimidating attack:

The Writers Union had established an official preconvention discussion site on the internet for elected delegates. When the definition debate reached the discussion site by way of a submission from Mike Bradley, one of the delegates and a critic of the official position on "labor organization," he was quickly hit by a heap of abuse, barred from the site, and formally censured. Censored and censured! What follows is the full text, every word, of what he wrote on the subject and what served as the pretext for a campaign of retaliation against him:
"Our debating over whether we should be covered by the LMRDA obscures a more critical issue--how the decision was made that we are not covered. The UAW had been charged with interfering in our national election. If the charge had been upheld there might have been criminal penalties for UAW staffers. The Dept. of Labor ruling ended the investigation but there is some question regarding how the ruling was made, esp. whether the UAW influenced it improperly. People are looking into it, but I don't know the results, if any."

That's it: brief, vague, and slightly inaccurate. But its flaw, if any, hardly accounts for the avalanche of denunciation that followed. Bradley's comment appeared on September 3, 2003. The next day, September 4, he got this abrupt message from the official moderator of the discussion site, "Mr. Delegate Mike Bradley is hereby given official censure due to double violation of Section 4 of the Rules..." It went on to cite as the "two actionable offenses": "reckless disregard for the fiduciary health of NWU through a potentially libelous statement" and "failure to substantiate allegations included in that potential libel." And on and on, quoting from the rules including their prohibition on "Needlessly inflammatory or abusive language...."

"This," Bradley was informed, "is also a notice of Requirement of Corrective Action." The union supervisor demanded a public apology. "There is no appeal."

When Bradley refused to meet the 12-hour deadline for an apology, this followed the next day: "You're in worse trouble than I thought... [etc. etc].... To eliminate any possible risk of a libel suit against NWU, I will... disassociate your publication of the libel from NWU. To do that, I will publish to the list a statement to this effect that your actions... are abhorred by NWU and held to be untrue and without merit... I will require you...to apologize." He goes on to list the precise text of a humiliating apology that he will require, noting "There's to be no quibbling over language here." When Bradley would not submit, he was barred from further participation in the delegate discussion site. Twelve hours later, in these immoderate words, the moderator began his posting to all delegates: "Vicious and libelous claims were posted on this site by Mike Bradley and Rob Ramer [another NWU member] falsely accusing several individuals of engaging in serious criminal activity.... There was and is no factual basis for those claims." (Bradley's "might have been criminal penalties" was elevated to "serious criminal activity.")

Now, go back to Bradley's vague "There might have been criminal penalties" for unnamed "staffers." If anyone bothered to do the research, the "staffers" are likely to turn out to be a union attorney. But there is no record of anyone actually threatening to sue anyone for anything, surely because, to do so, the allegedly "libeled" attorney would risk public ridicule.

As word got around, one NWU member who is also a lawyer, wrote to tell Bradley that he was indeed guilty of libel, even though he had mentioned no names. And the new national president of the NWU, Marybeth Menaker, in a letter to all delegates, wrote, "The NWU does not permit unsubstantiated claims to be published as fact within any official communication.... People are free to criticize, they are not free to commit libel.... Dissent and differing opinions move us forward. Catering to imaginary theories does not."

All this in a writers union, whose members should know that every established authority is convinced that its opinions are invariably factual and the statements of its critics nothing but libelous and imaginary.

The Writers' Union as a "labor organization"

The Writers' Union is a "labor organization" as defined by the LMRDA if it bargains with employers on behalf of employees. Here are some relevant facts provided by a knowledgeable member of the union:

In 2000, activists in the union's BizTech Division negotiated a collective bargaining agreement with Corporate Staff Administration, a nationwide temp agency. The contract established "fair and reasonable" markup rates that CSA would charge when placing NWU members as W2 employees (income and social security deductions made from their paychecks.) The agreement provided for health, vacation, and other benefits, including 401K pension eligibility, mediation and arbitration of disputes, and referral fees to the National Writers Union.

In 1999, 200 full time writers and editors at McGraw-Hill were laid off and rehired as permanent-temps[!] by Kelly Leasing Services. They continued to work at their old jobs at McGraw-Hill but with reduced salaries and benefits. NWU organizer Naomi Zauderer assisted activists in the New York local to pressure McGraw-Hill into rehiring the writers and editors as employees on the McGraw-Hill payroll.

Based on facts like these, the NWU considered itself a "labor organization" and complied with the LMRDA for 18 years, only to change its mind when member sought to exercise their rights under the law.

On libel in unions

The contrived alarm in the Writers Union over "libel" brings to mind one of the leading decisions in federal court on union democracy law, the case that nailed down the basic rights of free speech in unions: Salzhandler v. Caputo. In that case, the federal appeals court ruled that unions were not permitted to bring union members to trial or punish them on charges of libel or slander. The court understood that such charges were subject to abuse; any union officialdom could use the libel device to destroy its critics.

"The union is not a political unit to whose disinterested tribunals an alleged defamer can look for an impartial review of his 'crime'," said the court. "The Trial Board...consisted of union officials not judges. It was a group to which the delicate problems of truth or falsehood, privilege and 'fair comment' were not familiar. Its procedure is peculiarly unsuited for drawing the fine line between criticism and defamation.... Salzhandler had a right to speak his mind and spread his opinions regarding the union's officers regardless of whether his statements were true or false."

Then does a union official have no recourse against libel, slander, and false statements? Not at all. It simply means that the official cannot use the union as a weapon against critics. He or she can sue in court before an impartial judge, just like any other aggrieved citizen.

Mike Bradley had the perfect moral and legal right to speak his piece in the Writers Union without facing discipline. One would imagine that writers, who are particularly sensitive to the danger of libel charges, would be especially delighted with the Salzhandler decision. This union has been trying for years in vain to get libel insurance for its members! How, then, could writers' union officers subject Bradley (and others) to censure and deprive him of his rights on charges of "libel"? They seem to have devised a pretext, perhaps a loophole. They did not charge Bradley with libeling them, but of libeling some unidentified union rep who might possibly sue the union. But no one has even mentioned any threat by anyone to sue anyone else for libel. And in this instance it is hardly likely. By a process of informed interpretative deduction, one could conclude that the offending person criticized by Bradley was probably a UAW attorney. If so, he would surely make himself a subject of justified ridicule if he tried to concoct a libel suit out of Bradley's ill-defined remark.

Pretty small niggling stuff for a writers union. Some members are not only indignant; they are ashamed.

for more on legal rights to free speech in unions
for a rank-and-file site in the National Writers Union

Articles on the internet and union democracy:
Making a splash: SEIU's Unite to Win and the "free and open debate" on Labor's future
SAG officers unne
rved by actors' internet free speech
Free speech irritates UFCW

Using the Internet for Union Democracy
Results of AUD rank-and-file website contest
Free speech in NWU

IATSE 600: Internet democracy triumphs over super centralization

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