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WHY IS THE UAW’S FEDERAL MONITOR INVOLVING HIMSELF IN THE UNION’S
STANCE ON GAZA?  
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Andy Levin and Sanjukta Paul
August 8, 2024
In These Times
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_ The monitor tasked with overseeing the union’s compliance with a
federal consent decree is inappropriately challenging the union’s
call for a cease-fire in Gaza. _

UAW President Shawn Fain calls for a cease-fire in Gaza at a news
conference in Washington D.C. on December 14, 2, Kevin Dietsch/Getty
Images

 

As Michigan lawyers involved in labor law and policy, we were shocked
to see that the federal monitor overseeing the United Auto Workers’
return to good governance has twice commented on the union’s
positions on the Israeli-Palestinian conflict. That matter is
completely outside of the monitor’s scope, and his improper
interference in the union’s affairs calls into question his ability
to continue to serve effectively in this role. 

Let’s look at how we got here. In January 2021, a U.S. federal
judge entered a consent decree
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negotiated, court-authorized settlement — to resolve fraud and
corruption charges filed by the Department of Justice against the UAW,
several of its officers, and management figures at Chrysler (now
Stellantis). The civil and criminal charges concerned kickbacks,
bribery and other wrongdoing among certain union officers and
corporate managers, constituting clear misuse of union funds and
members’ trust.

That consent decree led the court to appoint a private lawyer to
serve as a monitor to oversee compliance with the decree. It also led
to the ​“direct election” of UAW leadership for the first time,
after members voted to exercise this right pursuant to the decree.
That election resulted in victory for a self-defined reform slate, as
current union President Shawn Fain and his running mates won
a majority of executive board positions.

Fain was immediately faced with bargaining to renew contracts at
Detroit’s Big Three automakers, the heart of the union’s
historical and current membership and one of the central pillars of
unionized work arrangements in the United States. Fain took
a radically different approach to bargaining than his predecessors
and emerged with a historic contract
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with each automaker, winning massive gains in wages, benefits and
pensions, ending ​“tiers” that pitted workers against each
other, and even creating avenues to bring workers in the automakers’
emerging battery plants under the master contract.

The new leadership then launched a wave of ambitious organizing
drives — practically before the ink on these contracts had
dried — while embracing the union’s storied social justice
legacy. (For example, the UAW helped bankroll the 1963 March on
Washington for Jobs and Freedom.)

On Dec. 1, 2023, the UAW joined other unions in calling for
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Israel and Gaza” and announced that its executive board had voted to
​“form a Divestment and Just Transition working group to study
the history of Israel and Palestine, the union’s economic ties to
the conflict, and to explore how to achieve a just transition for US
workers from war to peace.” The union explicitly tied this move to
its social justice history, including ​“mobilizing against
apartheid South Africa and the CONTRA war” and standing ​“for
justice across the globe.”

The UAW announcement was politically significant, as the union has
been a powerful messenger supporting President Joe Biden’s economic
agenda. Biden made history by joining striking autoworkers on the
picket line, while Fain has been steadfast in criticizing former
President Donald Trump and rebuffing Trump’s attempts to present
himself as a friend of workers. That the union took an antiwar stand
implicitly critical of the president may have carried extra weight. 

Of course, whatever positions the union might take on social justice
issues has nothing to do with the mandate of a monitor appointed to
ensure compliance with norms of financial and organizational probity.
What’s more, the legitimacy of the monitor’s position depends on
his own probity in sticking to his mandate, lest it seem a federal
official is interfering in a union or other organization’s internal
affairs or trying to influence it inappropriately.

Yet the _Detroit News_ reported [[link removed]] that the
monitor could not help taking advantage of his position of power to
meddle in a policy matter evidently of personal interest to him but
unrelated to the court order. According to emails between the
union’s attorney and the monitor, the monitor called Fain to express
concerns on a ​“strictly personal level” about the union’s
position on the crisis in Gaza. 

Let’s dispense with any notion of a communication about union
policy being ​“strictly personal.” The monitor and Fain had, and
to our knowledge have, no personal relationship outside the scope of
the monitor’s duties. They did not grow up together, work together,
socialize together, or anything of the kind. Even if they had such
a personal relationship, once the monitor was appointed,
communicating about union business outside the scope of his mandate
could not be characterized as ​“personal,” given his immense
power over the union and its leaders.

In February, the monitor again raised concerns, this time about
a statement issued by one UAW Local. He emailed a letter from the
Anti-Defamation League (sent to the monitor’s hotline, set up to
detect violations of the consent decree) to the union’s legal
department, again acknowledging ​“this issue is outside of the
monitor’s jurisdiction” while characterizing the issues raised in
the letter as ​“serious.” What can it possibly mean for
a federal monitor to admit that an issue is obviously outside his
jurisdiction but is ​“serious”? How could the union’s
leadership treat this as anything but a demand to conform to the
monitor’s view or face unknown consequences? As the union’s
outside counsel wrote to the monitor, these acts showed ​“a
surprising lack of integrity.”

We concur and note the irony of the situation: the consent decree that
defines the monitor’s work is aimed at rooting out precisely the
sort of distortions of organizational integrity that could result from
the monitor’s meddling. The monitor has acknowledged that the
union’s position on U.S. policy in the Middle East is beyond his
purview; there is no dispute about this. The impropriety results from
the combined effects of this fact with the massive and largely
discretionary power he holds over the union and its ability to
function in other ways. 

Duke law professor Veronica Root Martinez, one of the country’s
foremost authorities on monitorships, wrote in the _Harvard Law
Review_
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in 2023 about the critical need to ensure proper oversight and
monitoring _of monitors_, given that monitors’ activities
​“directly impact[] the public in a variety of ways.” Root
Martinez has shown that the variety of monitorship arrangements may
require greater regulatory standardization to ensure such oversight in
the public interest.

In this case, fortunately, there can be little doubt that the court
already has the authority to provide the necessary oversight. The
court has expressly retained the ongoing jurisdiction and authority to
implement and oversee its decree as needed, e.g., by handling appeals
from the decisions of its appointed agents, including the monitor.
Implicit in this retention of authority for immediately foreseeable
issues — and also inherent in its more basic powers — is
the court’s broader authority to ensure the integrity of the
institutional arrangement it has authorized and continues to empower.
Other courts too have ​“maintain[ed] supervisory power of []
implementation
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in similar situations.

The court must exercise that supervisory power to curb and remedy the
improper conduct that has already occurred. At a minimum, this should
include a clearly worded declaration from the court that the
union’s speech on issues of global justice and peace (or other
domestic or foreign policy matters) cannot be the subject of
communications from the monitor, and that he must not seek even
indirectly to influence any matter beyond his purview. Given the
obviousness and severity of the violation, that it was repeated twice,
that the speech involves a matter of pressing public concern and the
likelihood that other supervised organizations may be chilled in the
exercise of legitimate speech rights as a result, we believe the
court should seriously consider replacing the monitor.

The court must craft a remedy that dissuades this or any other
monitor from misusing monitorship opportunities to engage in
extracurricular arm-twisting — acts of inappropriate influence
that are ironically very much in the same genus of interference with
union democracy and integrity that the complaint in this case sought
to root out, and that the union seemed to be well on its way
to resolving.

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_Andy Levin [[link removed]] served as
staff attorney to President Bill Clinton’s labor law reform
commission and has worked on labor law and policy at the AFL-CIO, for
the state of Michigan and as a member of Congress. _

_Sanjukta Paul [[link removed]] is
a law professor at the University of Michigan specializing in labor
and antitrust law. She previously represented workers, civil rights
plaintiffs and labor unions in Southern California._

* UAW; Federal Union Monitor; Free Speech; War in Gaza;
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