July 30, 2013
By Andrew Elrod – Photo by Michael Hanscom, Flickr creative commons, 2006
At the American Civil Liberties Union’s national headquarters in New York City, four months of negotiations have failed to bring unionized office staff to an agreement with management over the terms of their employment. Last Wednesday these employees held their second protest in two weeks outside of the organization’s offices in lower Manhattan. The lunchtime demonstration drew attention to the deadlocked negotiations between the ACLU and the office staff, represented by UAW Local 2110, and to the shift that has been taking place at the legal advocate over the past half century.
The nonprofit insists on removing a number of decades-old protections from the contract—such as “just cause” language in the case of firings, and the right to a hearing before a neutral arbitrator before termination—that the workers’ negotiating committee has refused to surrender.
The job protections are not the only issue in dispute—management is also asking workers to give up two paid holidays, to increase the amount of time temporary workers can work before taking permanent positions, and for employees to begin paying monthly health care premiums, which were previously paid for by the ACLU. But it is the disagreement over job security that has most upset workers, for whom the civil rights tribune is refusing the very policies it publicly promotes.
Policies such as opposition to wrongful discharge are well known to the public. Less conspicuous is the ACLU’s opposition to at-will employment, that bete noir of the labor movement, which gives blanket justification for most fires, leaving the burden of proof for unjust termination on the recently unemployed rather than the former employer. The ACLU’s website acknowledges that “employers have frequently exercised this discretion [to fire] in an arbitrary and unfair way.” “The magnitude of the problem is enormous,” it continues, concluding that “[t]he answer to this injustice is legislation providing that all employees can be fired only for just cause.” Yet the ACLU has moved to strip its unionized employees of common-law just cause protections, greatly reducing their job security.
Garfield Dilworth, fifty-three, who has worked in the downtown office for over twenty-five years, expressed his discontent at the demonstration. “They support a lot of great causes,” he said, “but they’re not translating to union workers at the ACLU.” Dilworth called management’s demands “unforgivable,” and explained that the proposed changes would allow employees to be fired for reasons unrelated to job performance, just because “a supervisor doesn’t like a particular worker.”
Such managerial discretion has increasingly come to be used against unionization efforts in the non-union workforce. Managers at the ACLU are “saying that they want this contract to be in line with those of other corporations,” said Eden Shulz, thirty-eight, the secretary-treasurer of Local 2110. Given the dearth of existing contracts, such a statement seems to lend credence to the idea that these givebacks are the narrow end of management’s wedge to dislodge the union. As far as management’s intentions go, the nonprofit only offered an emailed statement from Executive Director Anthony Romero, who claimed, contradicting the union’s reports from the bargaining table, that the disagreement was economic. “Frankly,” said Shulz about any financial troubles motivating the givebacks, “they’re not saying anything about that.” In his statement, emailed Thursday afternoon, Romero placed the organization’s budget deficit for this year at $8.346 million.
Though Romero describes the dispute in dollars and cents, the ACLU appears to be engaged in principled union busting. Since downsizing the national office in the immediate wake of the financial collapse, the nonprofit has bounced back resiliently, unfreezing hires and increasing executive and top managers’ pay. The organization’s 990 IRS forms for fiscal years 2011 and 2012 list executive and management raises totaling $237,399 across fifteen positions, or an average raise of nearly $15,000 per person. While paltry compared to Wall Street rapacity, the raises nonetheless belie any economic motivation for the concessions asked for by management. In contrast, the employee raises that the ACLU has proposed—1 percent for the first two years, and 2 percent for the third—do not even keep pace with rates of inflation over the past three years.
“They support a lot of great causes, but they’re not translating to union workers at the ACLU.”
“Many of their proposals are not about money,” said Shulz, “they’re about power, and increasing power over union members.” In addition to changing the just cause language, and striping employees of the right to a hearing, the ACLU has proposed performance reviews for all employees, past the two year mark currently required, with no ties to promotion. The proposed reviews, said Dilworth, “can only be used as a disciplinary tool against union workers.” Insistence on these points appears to support Shulz’s interpretation of the dispute as wresting certain controls over the workplace from the union.
However, in his emailed statement Romero rebutted such claims, writing that “staff who are represented by 2110 have a fundamental right to press their interests in their employment relationship with the ACLU.” The statement went on to support “workplace fairness, the right to collective bargaining, the right to protest and picket to press one’s point.” But the respect for union members’ behavior was incongruous with Romero’s summary of the dispute, which listed salary increases and health care contributions as the “two primary stumbling blocks to reaching a new contract.”
“He’s just leaving it out,” Shulz said about management’s position on employment protections. “I think that that’s an indication that they know its not defensible.”
Romero’s statement justified the introduction of employee contributions to health care premiums and reducing salary adjustments on the grounds of the financial collapse, and the comparable rates of pay in the nonprofit sector. Nonprofits, which rely heavily on donations from the kind of wealth funds that took big hits in 2007-8, may be facing reduced revenues, but this is not the case, as Romero claims, at the ACLU. For fiscal year 2007, ending in March of that year, the organization reported $30.5 million of revenue. In fiscal year 2012 it was $33.8 million. Reported deficits aside, the ACLU is actually bringing in more money now than it was before the market crash.
In response to the second claim—that the ACLU is bringing salaries and benefits in line with other nonprofits—union members have echoed the sentiments expressed by Bennett Stein: “I expected, and expect, more from this proud organization.” Stein, twenty-three, has worked with the ACLU since he was seventeen and is now a legal assistant at the organization’s national headquarters. Like all the workers’ interviewed for this article, he enthusiastically supported the ACLU and its causes but was “shocked at how the ACLU treats its workers.” He went on to say that “Roger Baldwin is rolling in his grave.”
Baldwin established the National Civil Liberties Bureau in 1917 with Norman Thomas—a Presbyterian pastor, leader in the then substantial Socialist Party of America, and future candidate for Governor of New York and President of the United States. The organization’s goal was to protect civil liberties during the ferocious period of government repression during and immediately after the First World War. Baldwin, imprisoned for exercising his First Amendment right in opposition the war, went on in 1920, with Thomas, Upton Sinclair, Jane Addams, A.J. Muste, and Elizabeth Gurley Flynn—all famed friends of labor—along with many more, to found the ACLU.
But over the decades, the organization has had a gradual break with these deep roots in the labor movement. As Mark Ames has noted elsewhere, Aryeh Neier—the former national director of the ACLU, who went on to hold top positions at Human Rights Watch and the Open Society Foundations—has denounced economic rights as “profoundly undemocratic” and “authoritarian,” rejected Article 23 of the UN’s Universal Declaration of Human Rights1, and, according to William F. Buckley, helped push the organization to support business interests in passing so-called “right-to-work” laws on the grounds of free speech. To give a sense of the potential beatings the labor movement can take in the name of civil rights, in May the Court of Appeals for the D.C. Circuit, the second highest court in the United States, struck down the requirement that employers post notices in workplaces enumerating rights protected by the National Labor Relations Act, on the grounds that posters with workers’ rights on them violated employers’ rights to free speech. Peter N. Kirsanow, one of the lawyers who argued for the National Association of Manufacturers against the National Labor Relations Board, sits on the Lawyers’ Committee for Civil Rights.
If the ACLU’s opposition to at-will employment is any measure, this rupture within the left, of which the ACLU’s history is emblematic, is not irreparable. A first step would be for the ACLU to apply the standard it advocates for just cause to its own employees. A second step, as Moshe Marvit and Richard Kahlenberg have continuously proposed, would be for the ACLU not only to propose just-cause statutes and oppose at-will employment, but to advocate amendments to states’ civil rights laws that would enshrine the right to organize as a civil right.