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Internet Exclusive 2/27/2007
Union officials "condone and endorse" attacks on members' internet free speech
By Matt Noyes
Since the first member forum caught their attention, some union leaders have tried to put a lid on member free speech online. They haven't had much success. Internet free speech has spread like a weed, with independent member-run websites, blogs, and forums popping up in all the unions. Many union leaders probably share the frustration expressed by IBEW International Vice President Phil Flemming, "while we do not condone or endorse the use of independently operated websites...as places for members to express their opinions, there is little we can do to stop them."
But that doesn't mean that Flemming and other union leaders will stop trying. Take the case of Perry Speranza a 32 year electrician and active member of IBEW Local 353 in Toronto, Canada, who, in February 2006, was brought up on union charges for operating an "open forum" type website called OurLocal353.
The charges, brought by Local 353 Business Manager/Financial Secretary Joe Fashion, claimed that Speranza's Open Forum "supplied confidential information... about IBEW business" to the general public, including employers, and that by running the site Speranza had violated his oath of membership, encouraged dual unionism, "acted contrary to [his] responsibility to the IBEW," and interfered with the union's performance of its "legal or contractual obligations."
It all started with the previous local election, in which Speranza made an unsuccessful bid for Business Manager/Financial Secretary. In a hotly contested election, Business Manager/Financial Secretary Joe Fashion was re-elected. Speranza and other candidates felt the election process was unfair and one, former local president Robert Gullins, filed an election protest, as well as union charges against Joe Fashion. Gullins cited multiple violations including using union funds to campaign, failure to comply with election rules, and collaboration with contractors to promote the candidacy of Fashion and other candidates.
Frustrated by delays in the processing of the charges, Speranza and a group of other Local 353 members held a small demonstration in front of the IBEW International offices in Toronto. Speranza, who had recently started OurLocal353, published news of the election protest and photos of the demonstration, and posted the charges against Fashion. This lead to lively debate on the website, which is visited by supporters and critics of the local administration.
This all proved too much for Business Manager Joe Fashion, who filed union charges against Speranza and Gullins and six other Local 353 members, accusing them of "creating a disturbance as well as [making] false accusations against the I.B.E.W." in the demonstration. Fashion filed additional charges against Speranza for operating the website and against Gullins for providing Speranza with the text of the charges.
The local trial board found the demonstrators guilty on all counts but one (dual unionism) and handed down a $500.00 fine, an additional $2000.00 fine "held in abeyance of non-reoccurrence," and a two year ban on "participation in any Union activities." What sort of Union activities? -- "all Union recreational functions; all meetings of any kind i.e. Union meetings; Special-called meetings; Committee Meetings as wells as protests and pickets." Gullins and Speranza were also found guilty and fined.
In Speranza's case the penalties were: a $1,000 fine, with an additional $5,000 fine again"held in abeyance of non-reoccurrence," and an order to "cease and desist operating the OurLocal353.ca website for 5 years."
"I love our Local 353"
The transcript from Speranza's trial, available in full on OurLocal353.ca, provides insight into Fashion's thinking, and that of the trial board. Having filed a vague charge against Speranza, at the trial Fashion finally presented evidence in the form of printouts of pages from the OurLocal353 website, in which various items had been circled, such as:
- A photo of the demonstration. Fashion: "This picture published on the website shows dissention[sic] with the IBEW on the world wide web"... the general public "should not have access to this type of information."
- A member's call to "restore member's confidence in the IBEW system of democracy." Fashion: "this gives the impression that IBEW members do not have confidence in their leadership or in the system of democracy."
- An unflattering reference to the local President. Fashion: "It's derogatory to the President of our local union and it creates division within our local union for the general public and in fact, our members, to see this in print that there are people that think our President is a jackass."
Fashion did find one example of acceptable internet speech: "One of our members put a message in there and it says: "I love our local 353". Good for him. I don't know who that might be." Ironically, the 'unknown' member is the same Perry Speranza he brought up on charges, the phrase appears at the end of all his posts.
The item that most interested the trial board was a question posted by a user identified as "Robert G." -- "Has Joe been caught misappropriating funds again?" Fashion was particularly upset by the use of the word "again," saying he had never been caught misappropriating funds.
The trial board members pressed Speranza on the question of his responsibility for content posted in the open forum. In his defense, Speranza cited the posting guidelines which state, in part, "You remain solely responsible for the content of your messages, and you agree to indemnify and hold harmless this forum, and any related websites to this forum."
In the end, the verdict was the same as in all the other cases: guilty.
Appeals were filed with International Vice President Phil Flemming, and, in December, 2006, Flemming delivered his decisions:
For Robert Gullins: appeal granted, all charges and penalties overturned.
For the demonstrators: appeal granted, all charges and penalties overturned. In his decision, Flemming invoked the Canadian Charter of Rights and Freedoms and took up the mantle of civil liberties, proclaiming, "the Labour movement was built on peaceful demonstration, and it is hard to imagine where we would be as a movement without the right to assembly and freedom of speech."
But when it came to Speranza, Flemming seems to have found it easier to imagine a union without the right to assembly and freedom of speech. No more reverent references to the Canadian Charter of Rights and Freedoms, this is union business. The tone is cool, legalistic: "While many Canadians believe that they have rights under the Canadian Charter of Rights and Freedoms...and that these rights may be exercised against...any organization, this is not the case."
In his decision, Flemming dismissed Fashion's charge that Speranza was bent on causing schism or dual unionism. And he questioned the practicality of the trial board's order that Speranza cease and desist operating the website for five years, "It is highly unlikely that any court would view this as an acceptable penalty."
But he found something to work with in the main charge. Fashion had charged Speranza with "supplying information about confidential IBEW business." In Flemming's version, Speranza is guilty of "posting or permitting to be posted" material that he "knew or should have known to be untrue...and/or of a slanderous nature..." and thereby "besmirching the reputation" of the Business Manager and potentially damaging the reputation of the Local union.
Flemming also added a charge of his own: by using the IBEW logo "without the express written approval of the International President," Speranza had violated the union's trademark. (The IBEW leadership has tried this line before. See "Whose IBEW is it? An electrician on the internet." UDR #160 )
Flemming upheld the $1,000 fine, converted the $5,000 "held in abeyance" into a special fine to be added to whatever fine might be levied if Speranza were to repeat his offense, and ordered Speranza to remove the offensive material and not allow such untrue material to be posted in the future. Flemming further ordered Speranza to immediately remove the IBEW logo from the OurLocal353 website.
Can they do that?
In the United States, where the Labor Management Reporting and Disclosure Act (LMRDA) protects union member's free speech very explicitly, none of the charges against Speranza would be likely to survive a legal challenge. Title I of the LMRDA protects members' free speech rights, including speech that is slanderous and even speech the member knows to be false. This includes almost any facts or information, whether obtained at a union meeting or from an LM-2 financial report. While the person on the receiving end of such speech is entitled to retain legal counsel and file a lawsuit, the union disciplinary process is simply off-limits and may not be utilized to punish the speaker. Court decisions have extended Title I's protections to cover speech "outside the union," not just member-to-member speech, but also to protect the right of members to speak to the press, for example.
According to union democracy attorney and AUD Board member Arthur Fox, "given that most member websites may be accessed by anyone with a computer, including employers, this protection is absolutely critical." Fox points out that Title I of the LMRDA would permit a union to adopt a very narrow or specific rule forbidding members, for example, from revealing a contract negotiation strategy to an employer that might undermine the union's collective bargaining position. "But the IBEW Constitution does not contain such a narrowly tailored, or reasonable restraint on member speech and the Union may not lawfully invoke other clauses to discipline members for speech -- online or off -- that might injure the reputation of an officer, or the Union."
Union democracy rights in the U.S. overlap with the protections provided by the Communications Decency Act and other internet-specific law which protects the owner of an open forum from liability for comments made by users. (See "Union democracy online survives two lawsuits" UDR#159) The use of the union name, number, and logo is also protected under copyright law. (See, again, "Whose IBEW is it? An electrician on the internet." UDR #160)
Oh, Canada.
But, Speranza was charged and convicted in Canada. And, according to law professor Michael Lynk, of the University of Western Ontario, co-author of the authoritative Trade Union Law in Canada, "unions in Canada have fewer restrictions on how they deal with membership dissent under Canadian labour law... 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."
For Speranza it all boils down to fear of the members, a fear he thinks can only harm the union. "I don't know why we're so afraid of information, unless we want to use the IBEW Constitution to eliminate political opponents; it may be an advantage in the short term but I think it will do a great disservice if we go in that direction." At a recent union meeting, Speranza made a motion that Local 353 should campaign for a Canadian version of the LMRDA.
OurLocal353.ca is currently managed by a different member; most of the offending content is still up, though not the original post about Fashion being caught "misappropriating funds again," and the IBEW logo has been removed. Speranza has been paying the fine in installments, under protest.
Speranza's appeal is before IBEW International President, Ed Hill. The question now: will Hill try to deny Canadian members the rights their brothers and sisters have in the U.S.?
(Neither Joe Fashion nor Phil Flemming replied to requests for comments.)
AUD has a particular interest in the issue of union free speech online. If you know of cases where members' democratic rights have been violated, please let us know.
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