Smithfield Packing v. The Constitution

(first of a series)

A Federal court in Virginia ruled on January 29th that Smithfield Packing could proceed with a civil lawsuit filed under the Racketeer Influenced and Corrupt Organizations Act (RICO) against the United Food and Commercial Workers, Jobs With Justice, and others. At issue is a corporate campaign spearheaded by the union to support its organizing drive at Smithfield’s Tar Heel North Carolina pork processing plant. The action if successful could push the US labor movement into a legal black hole in which it could vanish.

The suit is one of two recently filed by corporations that threaten to turn the US labor rights clock back to the 19th century by dusting off the use of conspiracy laws to stop union activities. The suit attacks basic rights of free speech, free association, and criminalizes the legislative process by undermining the right to petition government. It affects not just unions but activists and advocacy organizations engaged in corporate campaigns no matter what the cause.

In what appears to be a new corporate legal offensive against organized labor, in November, the Wackenhut Corporation, a US subsidiary of the British based Group 4 Sericour, filed another RICO  suit, this one against SEIU for activities surrounding the union’s attempt to organize workers employed as security guards by the company. In this and subsequent posts we will mainly focus on the Smithfield Packing suit since the brief has been made public and is posted on-line.

Smithfield Packing’s Tar Heel Plant

Smithfield Packing’s Tar Heel plant is the largest pork processing plant in the world. The plant employs more than 5,000 workers who slaughter up to 32,000 hogs a day.  About 60% of Smithfield’s workers are Latino immigrants, most of the rest are African-American.  Wages start at under $9 per hour and working conditions are brutal.  The pace of work is fast and injuries are commonplace. The atmosphere is repressive: Smithfield operates its own police force with a reputation for brutality and with the power to arrest and hold workers in an on-site jail cell. Indeed the work is so unpleasant and dangerous that turnover at Tar Heel is 100% per year—for every 5,000 worker hired, 5,000 leave. The plant was featured in a 2005 Human Rights Watch report entitled “Blood Sweat and Fear: Worker Rights in US Meat and Poultry Plants”. 

The UFCW has been trying to organize the plant since it opened in 1992. Two elections were held in the 1990s. The union lost both but the results of both were overturned by the NLRB because of unfair labor practices on the part of the company. According to the Associated Press:

Earlier this year Smithfield reached a settlement with the National Labor Relations Board and agreed to pay $1.1 million in back wages, plus interest, to workers it fired during past union-organizing elections. A federal appeals court ruled in 2006 that the company improperly influenced elections in 1993 and 1997.

The Rico Suit

The RICO Act was originally passed in 1970 to combat organized crime networks by allowing the government to prosecute people for participating in a criminal conspiracy where direct evidence of a specific crime did not exist —think mafias and other criminal gangs. Under RICO, prosecutors must show two related criminal acts—drawn from a long list of crimes enumerated in the law—within a 10 year period to establish a “a pattern of racketeering”. From a civil liberties standpoint conspiracy laws like RICO are always suspect. As predicted at the time, the law quickly became a staple of government prosecutors going after a variety targets well beyond traditional organized crime networks.  During the 1980s civil law suits filed under RICO became a common avenue by the government to address corrupt business practices and mob influenced unions.

RICO also allows for private civil suits to recover damages and this is the route that Smithfield and Wackenhut are using to attack the unions and their allies. Both argue that corporate campaigns are a criminal enterprise designed to force union recognition and that they represent a pattern of racketeering on the part of unions and their supporters.  In its 99 page brief Smithfield claims, “(d)efendants [are involved in a] conspiracy to extort money and property from and to inflict damage upon Smithfield……through the commencement of a Corporate Campaign against Smithfield.” The suit goes to explain that “The purpose of a corporate campaign, as explained repeatedly in published union literature, is to coerce an employer’s compliance with the desires of a labor organization, regardless of the degree of employee support and without involving the NLRB……” 

Smithfield, a serial labor rights violator, has demonstrated time and again that it has little regard for its workers or the niceties of law. After the experiences of the 1990s the UFCW realized that under present conditions, with a pro-management NLRB and a company schooled in union avoidance tactics including harassing and firing activists, they would have little chance getting a fair election. Instead, the union launched an aggressive corporate campaign to force recognition and get Smithfield to the bargaining table.

The UFCW’s corporate campaign follows an established union strategy that has been updated in the last few decades to pressure resistant employers to bargain in good faith. The union began by building a strong case against Smithfield as a labor and human rights abuser—they had a lot to work with—and then took the case public. In the process they built an alliance of civil rights groups, social justice organizations, religious figures, and immigrant rights advocates to pressure the company to deal with the union.

Smithfield details the campaign in its brief, which makes good reading for those interested in exactly how a corporate campaign works from the perspective of the targeted company. But the brief is also chilling reading since what Smithfield is aiming to do is suppress the constitutional rights of free speech, freedom to assemble, freedom of association, and the freedom to petition government to redress grievances.

In the brief, Smithfield charges that “(t)he defendant UFCW employs extraordinary corporate campaign tactics as a regular way of doing business.”  To carry out this campaign the unions formed a “conspiracy”  with Change to Win, Jobs with Justice, and others in a “….wide ranging campaign of extortion of Smithfield.”

Smithfield claims activities conducted as part of the campaign demonstrate both the existence of a conspiracy and a pattern of racketeering necessary to sue under RICO.  In reality, the union and its supporters exercised their basic constitutional rights to free speech, freedom of association, and the right to petition the government to redress grievances.  The elements of the conspiracy, according to Smithfield, include the exercise of just such constitutional rights:

• That the union commissioned and distributed a report by Research Associates of America, a co-defendant in the suit, on health and safety conditions as Smithfield entitled “Packaged With Abuse: Safety and Health Conditions at Smithfield Packing’s Tar Heel Plant” that the company did not like. 
• That the union and its allies interfered with Smithfield’s business by conducting demonstrations at supermarkets in North Carolina, New England, and elsewhere to alert customers to Smithfield’s labor practices. Civil rights, religious, immigrant rights groups, consumer advocates and other public figures participated in these demonstrations. Leaflets were distributed to customers and store managers asked to drop Smithfield products.  Smithfield says that this harmed its business.
• That the union and its allies introduced resolutions supporting their organizing campaign in to governing bodies in “…Cities, Townships and Organizations”. For instance,

In or around September 2006 agents of Defendants UFCW and JWJ encouraged members of the New York City Council to effect and publish a resolution condemning Smithfield and banning the sale of products within its municipal jurisdiction. …..On or about October 25, 2006, at a regularly scheduled meeting of the Council, the Council Members introduced Resolution 582-06, a resolution “calling on the City of New York to cease purchasing products from Tar Heel, North Carolina’s Smithfield Packing Company, and urging supermarkets operating in our city to cease purchasing Smithfield products from Tar Heel, North Carolina.

Similar resolutions were introduced and adopted in Boston, Cambridge, Somerville, and Chelsea Massachusetts. In addition, the Potomac Association of the Central Atlantic Conference of the United Church of Christ were “encouraged” to adopt a “Resolution on Worker Justice at Smithfield”, condemning the company’s actions.

The UFCW—with major help from Jobs with Justice—has built a broad and effective alliance to support the Smithfield campaign. The company has been publicly branded as a labor and human rights violator. No matter how well documented the UFCW’s charges are—and they are well documented-- Smithfield Packing Company does not like what the union is saying and doing. They could dispute those facts. They could even sue the union for defamation as companies faced with corporate campaigns have done in the past. But that is not what they doing. 

Instead Smithfield is attempting to do something much more sinister. As labor rights have been eliminated bit by bit workers have used their constitutional rights to resist the unjust and coercive conditions they face. Smithfield is now trying to eliminate those constitutional rights. What Smithfield Packing and Wackenhut are saying is that when people exercise their right to speak freely, to protest, to hand out fliers, to rally public support for their cause, to build support networks and alliances, or to try to get government bodies to address their concerns they may be engaging in a criminal conspiracy and a pattern of  racketeering. And that’s why theseare such an important case.

If successful the suits would have broad implications for all advocacy groups, for free speech rights, and for the ability of citizens to petition government to act on social issues.  The suits are but one more indication of a corporate drive to strip US workers and their organizations of their remaining labor/civil/human rights. People everywhere should be concerned.

(Next the backstory: Forward into the Past)

M.O.

Comments

[Kinneret]

Good evening. We learn something every day, and lots of times it's that what we learned the day before was wrong.
I am from Pakistan and also now am reading in English, tell me right I wrote the following sentence: "As an excessive sweating treatment, surgery really should be the final option."

Thank ;) Kinneret.

[Roland Garret Sheppard]

Unfortunately most radicals in the labor movement, especially TDU, supported and gave credence to the antiunion RICCO ACT when the feds went after Hoffa. The TDU made a pact with the devil to get the 'right to vote' for the Teamsters, but gave control of the union to the Government, which in turn kicked the elected president Jim Carey out of office when he led the UPS strike andgave control back to the old guard. Always be careful what you wish for.

From my essay, The Fall of the Trade Union Movement:
http://web.mac.com/rolandgarret/iWeb/Site/The%20Fall%20of%20the%20Tradhttp://web.mac.com/rolandgarret/iWeb/Site/The%20Fall%20of%20the%20Trade%20Unions.htmle%20Unions.html

A little background to Carey’s election will help make clear how the capitalist government took control over the Teamsters Union. In the late 1980s and early 1990s the federal government filed a RICOH Act lawsuit to take over the IBT to clean out its racketeering top union officials. A rank-and-file organization, Teamsters for a Democratic Union (TDU), supported the government's direct intervention to give the government the right to oversee the day-to-day activities of the IBT in exchange for the direct election of International officers.
The illusion of a "mob-free union controlled by its members" appeared to become a reality when Carey got elected with a plurality since the entrenched IBT bureaucracy, or "Old Guard," was split between two candidates. Even though the new Teamster president, who had a well-earned reputation of militant and democratic unionism, the government, in the last analysis, had final control over the union, including the right to oversee the union's finances.
The Old Guard, however, retained control over the regional Joint Councils and had almost equal power with Carey at International conventions, since these delegated bodies were not based on "one person-one vote" proportional representation. Consequently, because the old mob-connected bureaucrats dominated large sections of the union, the average Teamster continued to suffer under their misleadership. Nevertheless, after the UPS strike was won, the hopes of the disenfranchised and betrayed young workers were raised throughout the country.
The government moved in very quickly to quash this rise in rank and file Teamster hopes for a better future after seeing the power of a strike led by a militant leadership. They removed Carey from office on trumped-up charges of alleged irregular spending of union funds, which court-appointed officials had the right to oversee, during his reelection campaign in 1996. This was done without a union trial and outside of membership control.
(Incidentally, direct national elections in a union with over 1.5 million members are not democratic. For example, it costs over $700,000 to put out one mailing to the membership. Consequently, even though the IBT constitution gives "equal access" to each candidate, the employers can heavily influence such elections. Thus, as in city, state and federal elections, the candidates who raise the most money for their election campaigns tend to come out on top.)
In fact, at the same time that government election overseers investigated Carey's 1996 campaign finances, they also investigated complaints ,against campaign financial irregularities by his challenger, James Hoffa Jr. Though he had reported anonymous contributions from hundreds of thousands of small cash contributions from rank-and-file Teamsters — amounting to millions of dollars — he was nevertheless "cleared" of any wrongdoing, while Carey who won the election was removed from office and expelled from the Teamsters Union.
Although Carey was an effective strike leader, he did not know how to fight the government, and he was also under the illusion that the government had intervened in the IBT for the good of the union and union democracy.
Instead of fighting his undemocratic removal from office and the union by appealing for a mobilization of the ranks, he decided to take his case to the courts instead of to the membership. Unfortunately, TDU did not oppose the government's removal of Carey and has steadfastly continued to support government control over the IBT.
In its latest move to vilify Carey and punish him for the "crime" of representing and fighting for the membership, the federal government has arraigned Carey in federal court on charges that he lied to federal investigators and a grand jury when he denied that he knew of a scheme by some of his election campaign staff to launder union money into Carey's election campaign coffers, and to line their own pockets.
But the jury found Carey innocent of all charges.
Meanwhile, the still mob-connected Old Guard is now back in power in the Teamsters Union with the support of the government and remains in office even though Carey won his court battle and was acquitted.

http://tdu.org/node/755
The Right To Vote
In 1985, TDU launched a National Right to Vote petition to put pressure on the Teamster leadership to hold elections for national officers. Volunteers gathered signatures at worksites across the country. The petition, with tens of thousands of signatures, was presented to the 1986 Teamster convention. At the convention, TDU delegates supported a resolution for direct election of IBT officials, which was voted down.
When the RICO suit was announced, TDU National Organizer Ken Paff wrote the U.S. Attorney General saying "there is only one "reorganization' under RICO that the government can effectively take: namely, to direct the IBT to hold rank-and-file elections".
On March 13,1989, the Justice Department reached an agreement with the IBT to settle the RICO suit. It established a court supervised Independent Review Board to clean out corruption. Most important, it provided for the direct election of Teamster officers. TDU’s position against government trusteeship and for the right to vote had prevailed. The Wall Street Journal reported that “the terms of the settlement were greatly influenced by the concerns and platform of Teamsters for a Democratic Union."
Rank-and-file Teamsters had won the right to vote. Now they were going to use it.