Old/new reflections on NGO staff unions

Over a decade ago, I was active in organizing staff unions at social movement organizations and non-profits.

A friend recently asked me for some advice on the topic. To be honest, it’s not something I have given a lot of thought to in recent years.

In an effort to jog my memory, I tried to dredge up an old article I wrote for the National Organizers Alliance. I didn’t have the paper file, and it wasn’t online. Until… I went to the WayBack Machine.

I think the article – “My Job is to Save the Environment, Not Save My Job” is a pretty good distillation of what I knew and how I thought about those things at the time.

I would make a few addendums, with the benefit of hindsight and the skepticism of the intervening years.

First, even if you are lucky enough to get a union recognized, it is hard keeping the momentum going. Staff turnover leads to loss of bargaining unit knowledge, and the local or national union staff aren’t well equipped to keep the specific spirit of the organizing drive alive as the original organizers move on. (Not really their job, anyway.) Also, in small orgs, talented staff get promoted, until they are (actually or might as well be) management.

Second, for social movement organizations, there is a fear that unionization leads to (over)professionalization. That’s a legitimate worry, but once you have hired staff, the horse has already left the barn. At that point, it is not worth keeping up the pretense of non-professionalization on the backs of your lowest paid, least empowered staff. Very dated, but my thinking on this is informed by a great compendium on the life cycle of social movements by Aldon D. Morris and Carol McClurg Mueller.

Third, while a union can help improve a workplace if there is enough staff motivation, it cannot alone change a fundamentally broken workplace culture with high levels of institutionalized mistrust. In that environment (and there are many many examples), a very sophisticated union campaign coupled with extensive management retraining may be called for. I like this book by Daniel Goleman et al for how to think about the leadership side of that equation. In these settings, as Albert Hirschman reminded us long ago, staff may need to consider other options.

Fourth, I probably did not emphasize wage concerns enough in the “My Job is to Save the Environment” piece. It was easy for me as an idealistic twenty-something with not a lot of financial needs to downplay the importance of wages. As an older person with a mortgage, I feel differently. Moreover, if mostly white non-profits are going to increase their race and class diversity, having not only liveable but competitive wages is a must. Some of this “non-wage” framing was also driven by the audience – the very low resourced organizations that made up NOA at the time.

Lastly, I am ashamed of how little we got done despite years of work. We had a lot of good ideas of where we were going to take the organizing drive. I blame this in part on marrying my co-organizer, which was great but a bit demobilizing in the best possible way. Also, the first thing I singled out above: I got promoted to where I had too much responsibility to also spend time improving workplaces. Nonetheless, I still feel it is very soul nourishing to try to change your own life and workplace for the better (rather than focus only on the welfare of others, your clients, constituents, target group, etc.). It also improves your own organizing chops!

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Conflicted

Can US courts rein in “private judges”? Argentina is testing this proposition in a recent court filing against an investor-state dispute settlement award.

Matthew Slater and Teale Toweill are lawyers for the South American country. Back in July, they filed a petition with the US District Court for DC that asked for an arbitration award against Argentina to be vacated.

The initial arbitration claim was brought in 2003 by a consortium of British, Spanish, and French investors in Buenos Aires’ privatized water utility. After lengthy proceedings at the World Bank’s arbitration arm (ICSID), a trio of arbitrators ruled in April 2015 that Argentina owed the four complaining corporations over $404 million for violations of three different investment treaties.

In the US court filings, Argentina is arguing that one of the three arbitrators had a conflict of interest. Gabrielle Kauffman-Kohler, a Swiss arbitrator, was appointed by the investors at the start of the case in 2003. During the course of the proceedings, she was separately appointed to the executive board of UBS – a major Swiss bank that happened to be the top shareholder in one of investor complainants.

According to Slater and Toweill, the arbitrator received over $300,000 in annual compensation for serving on the board. Half of this came in the form of UBS shares that gave her a direct financial stake in the company’s profitability in Argentina (and elsewhere). For comparison, her compensation for the arbitration case was $3,000 per day. Unless she worked 50 days a year over the course of the case (a doubtful proposition for one of the busiest arbitrators in the business), her UBS stake was probably greater.

The US court claim will be a major test of the willingness of US courts to second guess private arbitrators. Argentina and the investors designated Washington, DC as the “seat of arbitration”, which meant that any subsequent legal appeals would be heard in US courts.

Under the US Federal Arbitration Act, judges are expected to defer to private arbitrators’ reasoning. Yet Argentina is charging that Kaufmann-Kohler had “evident partiality or corruption”, which can be the basis for a judge to set aside the award under FAA rules. While US courts have set aside some private arbitration awards on this basis, I know of no comparable instance under an investment treaty award.

Although national courts have tended to allow this unusual system of private adjudication to go unregulated, two factors may go in Argentina’s favor.

First, the World Bank has been stepping up its disqualification of arbitrators.* Under the Obama-appointed Jim Yong Kim presidency, obvious conflicts of interest can get an arbitrator pushed aside. US judges may take some comfort in being part of a general disciplinary trend.

Second, Kaufmann-Kohler was the tie-breaking vote in the key decisions in the case. Pedro Nikken – a Venezuelan arbitrator appointed by Argentina – dissented at both the jurisdiction and merits stages. This left a two-to-one split, with Kaufmann-Kohler and chairman Jeswald Salacuse against Nikken. Even a marginal conflict of interest could have swung the case.

But some factors go against Argentina. Despite sky-high levels of controversy over “investor-state dispute settlement”, the US Supreme Court announced as recently as last year that it still expects courts to defer to arbitrators – even when they make highly questionable decisions.

The investors have up until September 1 to file their response to Argentina’s petition. Stay tuned for further developments.

* For technical reasons, Argentina is only challenging the portion of the award (nearly $21 million) rendered in favor of the AWG Group – a Cambridgeshire investor. The option of appeal to US courts was only available vis a vis the UK investor. In contrast, Argentina could ask the World Bank for annulment of the portion of the award pertaining to the French and Spanish investors.

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Constitutional Slavery

Was emancipation constitutional? While the US prides itself on its property protections, the end of slavery wiped out as much as $10 trillion of private wealth. This would seem to go against Fifth Amendment protections against uncompensated expropriations.

Lincoln did not appear to be overly troubled by the constitutional issues. In the 1863 proclamation text, he cited war powers as authority to abolish slavery in the Confederacy, declaring the act an “act of justice, warranted by the Constitution, upon military necessity” and pleaded for “the considerate judgment of mankind, and the gracious favor of Almighty God.” (Notably, the proclamation did not abolish slavery in the Union – which would have to wait until the Thirteenth Amendment.)

Law professor Sanford Levison lays out three lines of thought:

(1) It was constitutional, but only because it was in fact so limited in its reach. Had Lincoln been more ambitious and ordered emancipation in any territories controlled by the Union army, let alone any of the nonseceding slave states, or, perhaps, had he ordered emancipation earlier in his term of office, when Generals Fremont and Hunter were engaging in their own efforts, he would have violated his oath of office and, perhaps, merited impeachment rather than a Memorial.

(2) It was constitutional, because he indeed had basically unlimited power to do whatever he deemed instrumentally effective in waging a successful war to save the Union. Had he determined that nationwide emancipation would be efficacious to the goal, then he could have issued a far more sweeping Proclamation. After all, as Whiting noted, “the United States have in former times sanctioned the liberation of slaves even of loyal citizens, by military commanders, in time of war, without compensation …. “‘ Indeed, had he determined that simply confiscating slave owner land and redistributing it to slaves who had, say, joined the Union forces, that would have been perfectly proper as well. This means, that the limited reach of the Proclamation that was issued is a sign not of constitutional fidelity, but, rather, of political will. Perhaps an equal way of putting this is to say that this notion completely collapses the notion of “law” into that of “prudence.”

(3) It was, alas, unconstitutional; though, at the end of the day, “no harm, no foul,” because of the proposal by Congress, ratified by the States in 1865, to abolish slavery in the Thirteenth Amendment. As important, under this analysis, is Section Four of the Fourteenth Amendment, added to the Constitution in 1868, which explicitly states that “neither the United States nor any state shall assume or pay.., any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. ‘ In the absence of such language, a careful lawyer imbued with respect for the Takings Clause of the Fifth Amendment might suggest that the United States would indeed have a duty to compensate at least some slave owners for the loss of their property, such as those who had remained loyal to the Union even while living in Confederate states. Indeed, whether for reasons of politics or constitutional fidelity, Lincoln had coupled proposals for emancipation and compensation until the Proclamation itself. Invocation of the Fourteenth Amendment raises other questions altogether relevant to our inquiry this afternoon, which is whether the process by which it was added to the Constitution was in fact constitutionally legitimate, and, of course, whether we care in the least how we answer this question.

In the 1863-65 period, Lincoln’s supporters seemed to favor the second, international law-based interpretation. As Levison writes:

The most widely discussed defense of Lincoln’s powers appears to have been offered by William Whiting, the Solicitor of the War Department, in a book on presidential war powers that went through no fewer than forty-three editions in eight years. He devoted a full chapter to explaining why the President, as commander-in-chief, possessed the power “to emancipate the slaves of any belligerent section of the country, if such a measure becomes necessary to save the government from destruction.. ..””

An important part of Whiting’s argument was drawn from international law concerning the rights of belligerent parties. Indeed, Whiting argued:

It is only the law of nations that can decide this question, because the constitution, having given authority to government to make war, has placed no limit whatever to the war powers. no legal control over the war powers except the law of nations, and no moral control except the usage of modern civilized belligerents.’

Thus, once the President decides that a measure is “necessary and proper,” so to speak, to achieve victory, he can order it, period.

As Levison goes on to note, the legality of the Emancipation Proclamation thus hinges on whether the Civil War was seen as a domestic insurrection or international conflict. If the former, the Constitution would still apply. If the latter, perhaps not.

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Hamas Bank Case Settled

A major terrorism- financing lawsuit was settled before a court appearance, reports Stephanie Clifford:

Last year, a jury in Federal District Court in Brooklyn found Arab Bank liable for financing terrorism by processing transactions for members of the militant Islamic group Hamas.

The second phase of the trial, assessing the damages Arab Bank would have to pay to some victims of attacks by Hamas, was scheduled to start on Monday…

The first part of the Hamas trial, which was about liability, occurred last year. Arab Bank argued that it never knowingly held accounts for terrorists. It said that it screened all of the accounts and transactions it handled against terrorist blacklists, and that the few transactions that got through were attributable to clerical errors, such as a different spelling of a name in Arabic and in English…

Banking executives said the case set a worrisome precedent, since Arab Bank seemed to follow standard screening procedures to check that its customers were not listed as terrorists. The verdict, they said, could mean banks would pull back from doing work in unstable countries, given the risk that they would later be held liable for financing terrorism.

The Obama administration had intervened in the case on the Bank’s behalf. The Solicitor General argued that Arab Bank had cooperated in anti-terrorism activities and deserved some deference.

As I wrote at the time, the whole case raised some questions about whether the US legal system was biased against financial entities from the Middle East.

With this settlement, the immediate issue seems moot. The broader question – about the consistency of punitive and unpredictable treatment of global financial services players by US courts – remains open for another day.

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Sabaya Law

ISIS is trafficking thousands of female sex slaves, according to gruesome revelations by the NYT. The group’s leaders have created a theology around the abuse of Yazidis and other non-Muslim women, while killing off male members of the family.

There are many profoundly disturbing aspects of this story. But one that grabbed my attention was the relatively banal aspects of legal administration of this regime of administering slaves (or sabayas). As Rukmini Callimachi reports:

A total of 5,270 Yazidis were abducted last year, and at least 3,144 are still being held, according to community leaders. To handle them, the Islamic State has developed a detailed bureaucracy of sex slavery, including sales contracts notarized by the ISIS-run Islamic courts…

In a pamphlet published online in December, the Research and Fatwa Department of the Islamic State detailed best practices, including explaining that slaves belong to the estate of the fighter who bought them and therefore can be willed to another man and disposed of just like any other property after his death.

Recent escapees describe an intricate bureaucracy surrounding their captivity, with their status as a slave registered in a contract. When their owner would sell them to another buyer, a new contract would be drafted, like transferring a property deed.

In short, a legal system has rapidly been set up to justify a system of social domination.

But while the legal system takes away, it can also give. The story goes on…

At the same time, slaves can also be set free, and fighters are promised a heavenly reward for doing so.

Though rare, this has created one avenue of escape for victims.

A 25-year-old victim who escaped last month, identified by her first initial, A, described how one day her Libyan master handed her a laminated piece of paper. He explained that he had finished his training as a suicide bomber and was planning to blow himself up, and was therefore setting her free.

Labeled a “Certificate of Emancipation,” the document was signed by the judge of the western province of the Islamic State. The Yazidi woman presented it at security checkpoints as she left Syria to return to Iraq, where she rejoined her family in July.

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Inequality Expands Role of Courts

Washington State schools face a funding crisis, as Kirk Johnson reports:

Washington State’s highest court, which has threatened, cajoled and pleaded with the state Legislature and governor for years to close the gap in spending between rich and poor schools, said on Thursday that it had finally lost its patience. In a unanimous decision, the nine-member Supreme Court imposed a fine of $100,000 a day on the state until a plan to reduce the gap was accepted, and in a written order “encouraged” Gov. Jay Inslee to call the Legislature into a special session.

The financial sanctions, which started on Thursday with the filing of the order, will be owed every 24 hours, seven days a week, with the money going into an education fund. The court said that some of the fines might be returned — for each day the House and Senate are back in session working on the problem — but only if their work resulted in what the court called “full compliance.”…

Court orders regarding education financing are not new. Kansas is in the midst of one such standoff. High courts in New Jersey and Ohio have also ordered legislatures to meet constitutional requirements. But this order, with a financial penalty imposed by one branch of state government on another, to the tune of $700,000 a week, enters new territory, legal scholars said.

“I’m not aware, ever, of a state supreme court doing this,” Scott R. Bauries, an associate law professor at the University of Kentucky who studies state constitutions and education. “I can’t see any other way of describing it — the court is appropriating funds for the education system.”

This isn’t the only manifestation of courts taking on new or enhanced social roles as inequality rises.

Research has shown that income inequality can enhance political polarization, and polarization enhances gridlock. There is some evidence that polarization in turn shifts the balance between branches of government, as Jeffrey Toobin wrote in an article last year:

“Because Congress is not working the way it’s supposed to, there’s both pressure on administrative agencies and pressure on the courts to sort through, interpret, and validate or not validate decisions that in a better-functioning democracy would be clearer and less ambiguous,” Obama said.

He pointed out that the failure of Congress to pass legislation on climate change and immigration left his Administration with little guidance on how to proceed on those issues. When there is gridlock in Congress, “the executive branch has to make a whole series of decisions,” Obama said. “That, in turn, puts more burden on the Court to interpret whether the executive actions are within the authority of the President and whether they’re interpreting statutes properly. All of which I think further politicizes the courts.”

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States’ Rights, Courtesy of Feds

Historian Eric Foner takes on the states rights Civil War narrative:

… with politics today, it’s easy to say, ‘Hey, it must have been a bunch of Northern capitalists trying to control the South,’ or ‘It was just states’ rights.’ Whenever I lecture, someone raises the issue of states’ rights, and the thing I like to say is: ‘Yes, you’re right. The South believed in states’ rights. And the right they were interested in was the right to own slaves.’ And that was a right created by state law, so naturally they wanted to protect states’ rights.

And then I say, if that was really the issue, then explain the Fugitive Slave Law of 1850 to me – which was a federal law before the Civil War in terms of overriding local judicial procedures, overriding local law enforcement. Federal troops, federal marshals, going into states, you think that’s a reflection of states’ rights? No.

When it came to vigorous federal action in defense of slavery, the South was perfectly happy to go that route.

Defenders of free markets similarly obscure the substantial state intervention required to maintain them.

For more from Foner, check out the full interview in this summer’s Jacobin (uploading soon). The whole issue features historians’ reflections on the 150th anniversary of the end of the civil war.

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