UAW’s court filing highlights tension with federal monitor
The Detroit News
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Published 6:57 p.m. ET July 3, 2024 Updated 9:08 p.m. ET July 3, 2024
The United Auto Workers asked a federal court Wednesday to clarify its consent decree with the U.S. Justice Department, namely whether it could withhold or review confidential and privileged information being requested by its court-appointed monitor.
The filing in the U.S. District Court for the Eastern District of Michigan comes amid tension between the Detroit-based union and its monitor, attorney Neil Barofsky. Barofsky has criticized the union over the speed of its response to requests from his office for documents related to several investigations. That came after he raised concerns over UAW statements surrounding the Israel-Hamas war — actions the union has characterized as “inappropriate,” according to emails obtained by The Detroit News.
A report filed last month by Barofsky disclosed an investigation into UAW President Shawn Fain for alleged retaliation, Secretary-Treasurer Margaret Mock for claims she misused her treasury powers, and an unnamed regional director for potential embezzlement. In response to delays in obtaining documents related to these allegations from the union, Barofsky accused it of “obstructing and interfering” and said that “if left unaddressed,” it would be “an apparent violation” of the union’s consent decree with the U.S. Justice Department following a years-long corruption scandal.
The union in the Wednesday filing, however, asserted it has a right to redact information pertaining to attorney-client privilege and details around its collective bargaining and organizing strategies. Clarifying this right, according to the union, is critical, given the wide scope of the monitor’s request for tens of thousands of documents.
“The monitor’s request amounts to a takeover of the UAW’s computer and email systems,” UAW attorney Harold Gurewitz wrote, “giving the monitor access to all of the union’s electronic information.”
The filing said the monitor opened an investigation on Feb. 29. Barofsky, in his report last month, traced the start of what he described as a lack of cooperation in the probe to February — the same month outside counsel for the UAW accused Barofsky of “a surprising lack of integrity” after he shared concerns about the union’s position on the Israel-Hamas war, according to the emails obtained by The News.
“The Monitor has carried out his duties with the highest levels of professionalism and integrity,” a spokesperson for the monitor’s office said in a statement.
A UAW spokesperson declined to comment on the filing Wednesday evening.
In December, the UAW’s governing International Executive Board, or IEB, voted to sign a petition drafted by the United Electrical, Radio and Machine Workers of America union and the United Food and Commercial Workers Local 3000 calling for a ceasefire in the war, U.S. support for a ceasefire, that humanitarian aid be let into Gaza and that Hamas release Israeli hostages. A UAW Divestment and Just Transition work group was assigned to study the history of Israel, Gaza and the West Bank, the union’s economic ties to the conflict and how a transition from war to peace would affect U.S. workers.
Soon thereafter — according to an email sent on Feb. 19 to Barofsky by Benjamin Dictor, a attorney working with the union — Barofsky called Fain for a conversation “strictly on a personal level” in which he shared “concerns about the union’s position on the crisis in Gaza.” The Algemeiner — a global news outlet that covers the Middle East, Israel and matters of Jewish interest around the world — in October named Barofsky to its list of the top 100 people positively influencing Jewish life for an investigation into historical Nazi ties.
“Your call to President Fain on an issue so blatantly outside of the Monitor’s jurisdiction was inappropriate as your Office holds disproportionate power over the UAW,” Dictor wrote, “and even a ‘strictly personal’ sharing of opinion implicitly implicates such power dynamic.”
Later on Feb. 15, an email signed by Barofsky was sent by a legal assistant to the IEB. It included a letter sent to the monitor’s hotline by the Anti-Defamation League, an organization involved in combatting antisemitism that expressed concerns over a statement passed by Local 7902’s joint council in support of a ceasefire. The ADL letter said the statement lacked context, that it accused Israel of apartheid and ethnic cleansing, and that misinformation contributes to antisemitism.
“Although this issue is outside of the monitor’s jurisdiction, we thought it was important to forward the message to the IEB given the serious concerns raised here,” Barofsky wrote in the email forwarding the ADL’s letter along with a response from Local 7902’s president. “For what it’s worth, as I previously shared with Shawn, similar concerns were raised directly to me shortly after the IEB issued its own ceasefire statement.”
Seeking “to instruct the IEB” and disclosing the conversation with Fain “represents a surprising lack of integrity to the Monitor’s role,” Dictor wrote.
“While we are all entitled to an opinion on the crisis in Gaza and we are all entitled to an opinion on the UAW’s call for a ceasefire,” he wrote, “under no circumstances should your personal feelings be communicated to the UAW and its governing officers in any manner, and especially in a way that may be perceived as improper use of the power of your office to elevate your personal opinions on subjects unrelated to the consent decree.”
He added: “As you are aware, President Fain has reversed the positioning of the prior administration and has taken all steps towards complete cooperation with the monitor in all regards within the monitor’s jurisdiction. That will not change. However, we ask that such respect be mutual and that your office be respectful of the guardrails on your role and refrain from any further communications of the sort discussed in this email.”
By June, however, Barofsky was accusing the union of not living up to that commitment. In his report also filed in the U.S. District Court for the Eastern District of Michigan, Barofsky said union leaders had produced a “very small” portion of documents related to his investigations — about 2,600 of more than 116,000 records. Most of those records, he noted, had been shared after the UAW received a draft the week prior to the report.
The union in its latest filing said it has provided approximately 70,000 documents consisting of more than 750,000 pages of materials on a rolling basis in batches approximately once per week with designations of confidential and privileged information where appropriate. It hired a law firm with experience in electronic discovery and an e-discovery vendor capable of handling large data services.
The documents requested, according to the union, are from 21 elected union officials, staff and outside attorneys and include 50 terms like “picket sign” and “exception.” Requests by the union to narrow the search were rejected, and a meeting on June 18 came to no resolution.
The UAW also said 22 UAW officials, staff and attorneys had been interviewed as of June 10, the date of the monitor’s report. Since then, eight more individuals have been interviewed, with six more interviews in the works.
“Since the consent decree’s inception, even the monitor has stated that he ‘respects the sanctity of the UAW’s assertion of privileges and has sought to accommodate them whenever possible,'” Gurewitz wrote. “That sanctity, however, cannot be preserved if the monitor can compel the production of more than 116,000 documents, the vast majority of which have nothing to do with the investigation but sweep into their scope the most highly sensitive privileged and collective bargaining strategy documents that the union holds. In these circumstances, the union must be able to review and designate and/or redact privileged documents.”
Barofsky’s complaints about the speed of the union’s actions echoed criticisms from the monitor that the union was slow-rolling access to documents during earlier investigations in his six-year tenure, which began in 2021 under Fain’s predecessor as UAW president, Ray Curry. Barofsky was recommended to the court by U.S. prosecutors after UAW officials proposed multiple candidates to fill the monitor position.
It was a requirement of a consent decree resulting from a high-profile scandal that sent more than a dozen people to prison. That includes Fiat Chrysler Automobiles NV executives and two former UAW presidents, Gary Jones and Dennis Williams. UAW labor leaders were convicted of a pattern of corruption that included breaking federal labor laws, stealing union funds and receiving bribes, kickbacks and illegal benefits from contractors and auto executives.
Barofksy’s investigation into Fain doesn’t appear to involve criminal allegations. However, Barofsky has the ability to bring charges seeking to discipline, remove, suspend, expel and fine UAW officers and members.
In February, the IEB removed Mock from overseeing nine departments, including the union’s Women’s Department and the Technical, Office, & Professional Department.
Mock allegedly “improperly denied” reimbursement requests, organizing effort expenditures and strike-related costs, according to the Unite All Workers for Democracy Caucus, which had endorsed Mock in the 2023 election and said it was citing from a report by the UAW’s compliance director. Additionally, it alleged Mock withheld approval of routine expenditures in an attempt to get IEB votes.
Mock defended her actions in a statement at the time, stating she was adhering to the policies of her role.
Then in May, Fain removed UAW Vice President Rich Boyer as head of the Stellantis Department. Fain issued a memorandum asserting the action was because of a “dereliction of duty” by Boyer in connection with certain collective bargaining issues. Boyer in response to Fain defended his representation of members and accused Fain of a “direct attack on my character.”
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