By Cathy Highet and Chris Knudtsen
Chris Knudtsen is a legal worker and Cathy Highet is an attorney with the Portland Law Collective, which represents individuals in civil rights and labor matters. They also provide legal services to unions and other progressive activist groups.
Four members of the United Brotherhood of Carpenters won a legal victory in federal court for free speech rights on April 1 in in Savage v. Tweedy (Case number 3:12-CV-01317-HZ). Oregon District Court Judge Marco Hernandez ruled that the Pacific Northwest Regional Council of the United Brotherhood of Carpenters violated the free speech rights of Pete Savage, Cliff Puckett and Mike Wallace (the plaintiffs) when it disciplined them for holding a phone bank in a union election. The discipline included removal from elected office, suspension of membership privileges for six years, and a fine of $1,000 each. The ruling means that none of these penalties can stand.
The plaintiffs are part of the Reform Party, a rank-and-file movement that opposed the policies of the Regional Council’s EST/CEO Doug Tweedy. The Reform Party won every office for which it ran in a December 2011 election for Carpenters Local 156. Prior to the election several members of the Reform Party held a phone bank at the Local 156 hall to encourage members to vote and to support the Reform Party. The union did not have rules either allowing or prohibiting phone banks from the hall, but the Plaintiffs asked permission of the Local before conducting the phone bank and made sure that opposing candidates were informed of their right to phone bank on equal terms.
Judge Hernandez ruled that the LMRDA protects union members’ right to engage in free speech. It also allows unions to adopt and enforce “reasonable rules” about speech, so long as the rules are established before the speech occurs. In other words, a union could prohibit members ahead of time from using the local hall to phone bank. But if the union has not already made a rule, it cannot discipline members after the fact for having phone banked. This ruling helps protect all union members from being punished if they campaign for change.
Judge Hernandez did not consider the question of whether a union could re-run an election without pointing to a reasonable rule – that is a question for the Department of Labor. The incumbent administration re-ran plaintiffs’ election in February 2012, but the Reform Party won again by an even wider margin, so they did not challenge the re-run decision.
In addition to throwing out the discipline, Judge Hernandez ruled that plaintiffs had provided enough evidence to be able to go to trial on the question of whether Tweedy orchestrated the discipline to stifle opposition in the election. The judge noted phone records showing lengthy calls between Tweedy, the people who brought the charges, and union staff at key times during the discipline process. He also considered the role of staff in helping prepare the charges, and purchase airplane tickets and hotel rooms for the charging parties, and the fact that two charging parties submitted job applications immediately after filing the charges and were given jobs after Mr. Tweedy’s reelection.
The judge also noted the possibility that plaintiffs’ discipline violated their due process rights, in part because the jury included many Tweedy supporters and no members from plaintiffs’ home state.
Plaintiffs had also asked the judge to find that a rule against “causing dissension” could never be a reasonable restriction on speech because union members have a right to “dissent” under the LMRDA. The judge said plaintiffs could not challenge the rule on a national level, only as applied to their own discipline. Other federal appeals courts have ruled that members can challenge such rules nationally. The plaintiffs may appeal this aspect of the ruling to the Ninth Circuit to protect union members everywhere from being disciplined for merely “causing dissention”.
A trial on whether Tweedy orchestrated the discipline to stifle opposition is scheduled for June 17th in Portland, Oregon. The outcome of the trial will not affect the plaintiffs’ win on the main issue: that the discipline was illegal because it violated their right to free speech in a union election.