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 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 a “ceasefire in 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 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 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” 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 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 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.
