We publish this excerpt from Chapt. 9 of Herman Benson's Rebels, Reformers, and Racketeers: how insurgents transformed the labor movement for IBEW members and all unionists interested in the origins of the free speech rights of union members. To get the whole story, please buy a copy of Rebels, Reformers and Racketeers using the links at the bottom of the page. ------------
Spurred into action after the miners rebellion and still under the influence of the spirit of the sixties, Dan Boswell, a young electrician, won election in 1977 as an insurgent to the executive board of his Local 164 in New Jersey. Within a few years, he had helped plant, or replant, the seeds of democracy in the International Brotherhood of Electrical Workers.
Chapter 2, above, quotes some of the egregious clauses of the IBEW constitution which, in the days before the LMRDA, subjected members to expulsion for meeting in caucuses or campaigning for office in their local unions. After the LMRDA, the IBEW made a few cosmetic changes in formulation, hoping to pass muster under the new law, and it continued to discipline hundreds of members as though there had been no change.
Three and a half years of LMRDA pass. In the April 1963 issue of its Electrical Worker, the IBEW boasted that the U.S.Labor Department had found the union in total compliance, not a single violation of the LMRDA. That same year, Union Democracy in Action reported on these patently illegal provisions of the IBEW constitution. Nothing happened for 15 years. The constitution remained intact and enforced until at last, at last, in 1978 came the impulse to change.
Early that year, Boswell managed to reach AUD. At the time he was 33, married and had two kids, one 10 and the other 8. In the 1960s, he had been active in the civil rights and antiwar movements. After graduating from high school, he entered the IBEW apprenticeship program, joined the union, and continued his schooling at night. Now Boswell had problems at his IBEW Local 164 in New Jersey. An electrician and local member for 14 years, his troubles began in 1977 after he was elected to the local executive board. In defiance of the local leadership, he opposed ratification of a contract; he criticized the handling of money by incumbents, and charged the officials with favoritism in job referrals. He faced trial on the familiar charges of slander.
Boswell's journey to AUD followed a familiar path. Then and in the years that followed, referrals to AUD came from labor educators, union members, lawyers, reporters, government enforcement agencies like the NLRB and Labor Department, and even from high-ranking union officers ("but don't mention my name".) At the time, his colleague in Local 164, Larry Casey, was taking a college course in labor relations where he got AUD literature from his instructor. With Boswell facing charges, Casey gave him a copy of Union Democracy Review discussing the LMRDA Bill of Rights. Boswell left our office armed with the first installment of our book, "Democratic Rights for Union Members", which explained that the federal court decision in Salzhandler barred unions from disciplining members on slander charges.
In the IBEW, charges against local officers --- executive board members are classified as officers --- are tried not before a local trial committee but before an international vice president who serves as judge and jury and imposes sentence. Boswell mounted so effective a defense that he beat the charges. Still the verdict was ominous. J. J. Barry, then vice president and later IBEW president, ruled in effect: not guilty this time, but you'd better not do it again. It was only a brief respite. Boswell simply would not be silenced.
Within a few months, he faced a new set of charges and was found guilty, removed from office, fined $1,500, and barred from running for office for five years. He returned to AUD for help.
The charges, the verdict, the penalties, and the union constitutional provisions on which they rested were all obviously illegal. Boswell's rights were clearly protected by LMRDA Title I, the Bill of Rights for Union Members. But there is a catch to it. These putative rights are enforceable only by private suit. If you can't afford a lawyer or can't find one willing to take on a powerful union, or one ready to risk representing you pro bono or on a contingency basis, your rights, valuable in theory, are worthless in practice. The IBEW possesses talented attorneys and a multi-million dollar defense fund available, if need be, to "defend" itself against its own members. Boswell's resources were what he earned by the hour as an electrician. Nevertheless, he was ready to take on the IBEW. And not only for himself. He agreed that if he could get into court, he would not be satisfied simply with his personal exoneration but would attack the repressive clauses of the union constitution and insist that they be voided. But first we had to find him a lawyer.
Ever since I ran across those astounding provisions of the IBEW constitution, I had been hoping to find some way to challenge them. At last, opportunity knocked. Here was a courageous unionist. But where was the attorney who could confront this tough union? A sympathetic but small and struggling law firm in New Jersey warily agreed to take the case on a contingency basis, but it quickly became evident that the firm simply didn't have the resources to outlast the IBEW. It could easily be bankrupted by the process of depositions, discovery, procedural ploys --- the whole whirling dervish rigmarole of protracted litigation that the IBEW with its swollen defense fund could comfortably afford. It was discouraging, but just when it looked bleakest, came a stroke of luck. Just then, a big, well-endowed law firm, Kramer, Levin, Nesser, Kamin, and Soll, anxious to contribute its tithe to the public interest, was looking for a good charity case to handle pro bono. Robert Mass, a young attorney assigned to finding a case with social significance, sought advice from his friend, George Kennar, a staff attorney at the New York Civil Liberties Union, an AUD supporter, who referred him to our office.
By sheer coincidence, just when Mass called, we were ready. "We have just the case," I told him. A legal defense of Boswell would not only afford justice to one unfortunate victim, it could reform the IBEW constitution and bring a measure of democracy for thousands of electricians in one of the country's major unions. We convinced Mass, armed him with documents; and he, in turn, convinced the law firm to take it on.
And so Boswell got top notch, well-financed representation. Rob Mass and Susan Gibraltar, both young junior attorneys at the firm were assigned to the case. They filed suit in New Jersey federal district court on August 24,1979 and proceeded to litigate the union lawyers into the ground. The federal district judge in this case was the no-nonsense Frederick B. Lacey. (After leaving the bench some years later, he was appointed the chief monitoring officer in the government's RICO suit against the Teamsters' union.)
As the case wended its weary way --- depositions, discovery, procedural arguments --- and it became clear that the disciplinary victimization of Boswell was an arrant violation of the LMRDA, the IBEW backtracked and proposed to settle by agreeing to almost all of Boswell's demands: it offered to reinstate Boswell, to compensate him generously for all the trouble, to cover court costs and pay heavy fees to his attorneys. However, Boswell insisted that the union revise its constitution to eliminate those repressive provisions. On that, the IBEW was adamant. If the constitution remained intact, every victimized IBEW member would have to find an attorney and go through the same rigmarole. Most members, discouraged by the costly burdens of litigation, would be wary of criticizing the incumbents and, if disciplined, would be forced passively to accept their fate. If the constitution were democratized, dissent would be encouraged and defensive litigation would be fairly certain of success. If Boswell had agreed to the settlement and taken his money and run, he and his attorneys would have avoided the nerve-wracking uncertainties of continued trial and, with certitude, emerged richer and vindicated. But Boswell would not be bought off; he rejected the proposed settlement, insisting that the union amend its constitution to let democracy breathe in the IBEW.
Aware now that the penalties imposed on Boswell, the individual, were likely to be overturned, the IBEW changed its tune. Insisting that the discipline of Boswell was an individual case, an aberration, not part of a pattern, its attorney argued that this single instance of discipline, even if improper, could not justify a judicial order forcing the union to alter its rules. But AUD was already familiar with life in the IBEW. Over the years, we had received complaints from electricians in one local and then another, and another. Holding firm, Mass demanded access to the union's records. The judge ordered the union to produce its files on discipline; when it failed to comply, he gave Boswell, or his representatives, two weeks to inspect the records at union headquarters. It was a limited right restricted to appeals taken by IBEW members between 1970 and 1980 against penalties imposed under only four constitutional clauses; and the job had to be completed in those ten working days. The records were scattered all over the United States and Canada in 12 separate IBEW district offices. Robert Mass and Susan Gibraltar for the Kamin law firm were able to cover the New York IBEW office. But how to cover all those other places and all that distance in only ten days?
At that moment, AUD had money enough to hire Phyllis Curott, then a young law student, to act as legal coordinator. From the list of AUD supporters, she recruited volunteers in other parts of the country, a mixed bag of young attorneys, some students, all comparatively inexperienced. Of the 12 districts, we covered nine in the United States and one in Canada. But the records in two districts, which could not be covered, remained unopened. Even that limited search by inexperienced volunteers under time pressure revealed that in those 10 district in that ten-year period, there had been 705 "cases" of appeals under just those four repressive constitutional clauses. That was obviously enough to convince any impartial observer, certainly the judge, that the suspension of Boswell was indeed part of a pervasive pattern.
These were 705 cases, not individuals; in some cases several members were victimized; (For example: In one 1980 case, Local 213 in Vancouver BC, at least six members were fined and suspended.) And these 705 cases involved only appeals from convictions which is why their records ended up in district union offices. But for every appeal there were likely to be several other convictions that were never appealed because the victims would have yielded without appeal, knowing that an appeal could be pointless or even fearing additional retaliation. Records of cases which were never appealed never reached the district offices and so were immune to our investigation. And cases in the two district which could not be covered remained unlisted. Appeals under three other repressive provisions were never tallied.
Taking all these facts into account, we estimated roughly that perhaps 3,000 or more individual electricians had been illegally disciplined in ten years for exercising their lawful democratic rights. There was persuasive evidence of a widespread pattern of repression. But these figures also indicated that the impulse toward democracy, the determination to speak out, was also widespread. Boswell's suit aimed to liberate and legitimize that impulse. Meanwhile, AUD was busy with its normal affairs which meant trying to raise money to stay alive. In one fund appeal letter in late 1980 we made reference to "Electricians who are standing up for basic civil liberties in their electrical workers union (IBEW)" On the reverse side of the letter, several notables endorsed our appeal, including Joe Rauh who promptly received an indignant letter from Laurence J. Cohen, IBEW chief counsel:
"This reference implies that there is some general movement among members of the IBEW who feel a need to stand up for their basic civil liberties, who are otherwise denied them by the IBEW. I am not aware of any such movement or general trend within the IBEW and feel that the reference in your letter, particularly in view of its context, is quite misleading. Specifically, I am aware of only two pending cases, one involving two individuals, and the other one individual, challenging internal union discipline. And, in both of those cases, you may be interested to know that the discipline which allegedly violated those members' rights of free speech was reversed on appeal within the IBEW."
(Incidentally, the letter also packed a not so subtle threat to Rauh: "I am particularly troubled in view of the fact that you are representing the IBEW, along with other unions, in the pending Right-to-Work case." It was no idle comment. Rauh was, in fact, later dropped as their attorney.)
By this time, we had the results of our court-authorized investigation and forwarded to Rauh the documented record of 705 cases. If it was true that the IBEW's own lawyer knew of only "two pending cases," that fact demonstrates how skillfully the union had kept cases out of court whenever the victims seemed likely to get legal backing. They tried to do the same to Boswell but failed. All charges against Boswell were sustained by international vice president J.J. Barry on February 28, 1979. Six months passed until August 24 when Boswell's complaint was finally filed in federal court. Thereupon the union tried to backtrack. On October 24, the union informed the judge that the patently illegal charges had been dismissed a week before. But Judge Lacey would not be diverted by this ploy and the case continued.
Back in court, it became obvious that the IBEW was determined to resist constitutional changes that could unleash a tide of free expression, a stance which threatened tedious time-consuming procedures up and down and into the Supreme Court. But it was not to be; the IBEW, with all its expensive legal talent, managed to trip over itself. In the course of a deposition, Boswell's attorney, Rob Mass, asked Charles Pillard, IBEW international president, what advice he had received from the union's attorneys. Had he been advised that the discipline inflicted on Boswell had been illegal? It was a critical question. Huge sums in punitive damages could be at stake. If the union's action against Boswell was deliberately malicious, that fact would weigh heavily against it. Pillard refused to answer on the ground of attorney-client privilege.
Back for more proceedings and arguments in court. In the end, Judge Lacey rejected the attorney-client claim. Holding that union members had the right to know what advice their lawyer was giving to their elected officers, he ordered Pillard to answer the question. The union stonewalled. It soon became obvious that the issue was so sensitive that the union had no intention of complying. The lawyer asked for a postponement, then an extension, and once again until Judge Lacey become so impatient that he imposed a "final" deadline for the union to conform. When that day arrived and they were not yet ready to reply, Lacey told the attorney to come to the next session with his toothbrush, suggesting a possible jail sentence for contempt.
That did it. The union never did reply to the question. Instead it capitulated. The IBEW was ordered to delete three offending clauses from its constitution and to amend four others to bring them in line with federal law. It reinstated Boswell with full rights, paid him damages, and compensated his attorneys. It was a total victory except for one detail. Both sides agreed not to reveal the terms of settlement. But everything was on the public record, except the financial figures. AUD, not bound by any settlement, publicized the facts, then reported by the Bureau of National Affairs. The settlement was finalized on March 12, 1981, but it took much longer --- six years! --- to dig out the money details.
In 1982, IBEW member Jack Mallick asked the union how much the case had cost. Information refused. He died before he got any reply, but Attorney Paul Alan Levy, suing on his behalf and other complainants, finally got the answer. In that single case, for IBEW attorney fees, for Boswell, and for his attorney, the cost ran to about $600,000. One wonders how vast a sum the IBEW has spent over the years to suppress the rights of its own members! The fruit of victory came swiftly... (To read the rest, please buy a copy of Rebels, Reformers and Racketeers -- your purchase will support AUD and the efforts of union reformers in all unions.)
