Appeals court backs union curbs on the internet

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The U.S. Appeals Court for the District of Columbia has upheld a union rule that places new burdens on candidates who want to use their own independent web sites to campaign for union office. The court's decision gives the green light to those nervous union officials who hope to develop new ways to limit the potential of the internet as an instrument for union democracy.

Michael Quigley and four other members of the International Union of Operating Engineers had sued in Federal court to challenge a union rule that would force candidates to limit access to their campaign websites to members only by requiring a password protection system that would require members to record their names and union identification numbers before they could access the site.

The union justified the new restrictive rule as a means of preventing employers from logging in and perhaps gaining information that might be harmful to the union. Even though it was clear that the "danger" from employers was purely hypothetical, the court ruled that the union's concern was "reasonable." And so, the internet is now subject to limitations and controls not imposed on other forms of union electioneering. For example: A candidate can circulate printed handbills or publish a tabloid newspaper which hypothetically could easily reach an employer, yet these campaign instruments are not subject to the same kind of restrictions now imposed on websites.

To anyone even modestly informed about life in the construction trades, like operating engineering, it should be obvious that the requirement to list your name before reading opposition literature casts a pall over democracy. Chilling? It's freezing. Workers who depend upon their business agents and managers for job referrals are not likely to advertise an interest in the activities of oppositionists who want to depose those agents! In the broader world of politics, civil libertarians resist the demands of law enforcement authorities who, in the guise of the war against terrorists, want to force librarians to reveal the names of those who read subversive books. Yet, construction workers who voluntarily read opposition union writings are far more likely to endanger their jobs than a reader of revolutionary books is likely to be harassed by the FBI. The judges find this requirement for self-exposure "not burdensome," a conclusion which seems based upon two failures of imagination. For one thing, they accept naively the union's assurance that some "third party" will guarantee confidentiality to skeptical union members who will not be as trusting as the chambered judges. For another, judges who are guaranteed lifetime tenure and depend on no one for their jobs, are not likely to fully understand the pressures on those who repeatedly must line up for work. Here is one excellent example of what Judge Sotomayor may have had in mind when she said that a judge's background affected his or her "empathy."

Quigley and his colleagues argued in effect that the password requirement is not only burdensome from the principled standpoint of democracy but that it is also technically burdensome for the rank and file web site sponsors and for the readers who might search for their sites. The judges accepted the union's rebuttal, but in their decision, the judges' explanation of the union position is so complicated that this writer, with his technical limitations, finds it incomprehensible. [Try it yourself: DC Circuit decision in case 08-7056] But not to worry. The court accepted the union's assurance that it will make it easier for perplexed web siters by providing them with technical assistance. And so the dissident must depend upon a union leadership which set out to make things more difficult to make life easier!

The Court based its finding on the 5-4 decision of the Supreme Court in Steelworkers v. Sadlowski in 1982. The Steelworkers union had adopted a rule which forbade any candidate for union office to receive campaign support in cash or kind from any non-member of the union, arguing like the Operating Engineers, that the ban was necessary to protect the union from "outside" interference, especially from employers. The Court noted that the rule did limit the democratic rights of members. However, it concluded that the ban could be imposed because, in its opinion, the union's misgiving over outside influence was reasonable and the limitation on membership rights was not "burdensome." The four judges, vigorous in their dissent, would invalidate the rule as a serious violation of membership rights. However, our interest now is not to review the Court's decision but to recall its aftermath.

For a hundred years or so, the labor movement had survived, and sometimes even flourished, without a rigid rule that barred candidates for union office from accepting campaign support from sympathizing non-members. I.W. Abel got that kind of backing in his successful challenge to David MacDonald in the Steelworkers; Arnold Miller and the Miners for Democracy in the battle against Tony Boyle; Rich Trumka supported that campaign which paved the way for his rise to president of the Miners union and then secretary treasurer of the AFL-CIO. The State Coalition for a Democratic Union had outside help in ousting a corrupt and autocratic president of the Public Employees Federation. But after Ed Sadlowski, with help from liberals and civil libertarians, frightened the Steelworkers administration with an effective, but unsuccessful, run for international president at the head of a full opposition slate, the union and the labor movement detected, or invented, that danger from outsiders. Once the Supreme Court gave the green light, the copycat killers of the hypothetical employer menace promptly fell in line, each with its own version of the new restrictive rule, among them the IBEW, the Miners, the SEIU, PEF.

The Steelworkers showed incumbents how to encumber dissidents in the old world of printed literature; now the Operating Engineers, in the new world of the internet. In court, the Operating Engineers succeeded in defending their move. But defining the web site restriction as legally permissible does not make it morally justifiable. Union leaders may now have the right to do something indefensible by the standards of democracy and fair play, but they are not required to do so! We can't know how far the new limitation will proliferate; but, unhappily, there are enough nervous incumbents ready to adopt any available device to curb critics.