The United Public Workers agreed to pay a $5,500 civil penalty to the Federal Election Commission in July for failing to report more than $40,000 in independent spending to help U.S. Rep. Colleen Hanabusa win a special election for Congress in 2010.
While the penalty is noteworthy, the complaint that led to the agreement is more absorbing, since it forced a divided FEC to consider how far labor unions could go to require employees to engage in political activities on behalf of federal candidates in the wake of Citizens United v. FEC, the landmark U.S. Supreme Court ruling that allows unlimited independent political spending.
Unions and corporations are prohibited by federal law from coercing employees to make financial contributions to candidates, but UPW’s attorneys argued — and the three Republican appointees to the FEC agree — that employees can be required to participate in activities such as sign-waving, telephone banking and canvassing for candidates.
The three Democratic appointees to the FEC — who said there was significant evidence that UPW coerced employees to help Hanabusa — have questioned whether the FEC’s rules governing coercion should be updated and clarified in response to Citizens United.
The UPW’s penalty stemmed from a complaint filed by Georgette Yaindl, a staff attorney for the blue-collar union who was fired in April 2010. Yaindl, an at-will employee, said she was not given a reason for her termination, but she alleged she was fired because she would not participate in political activity to help Hanabusa, a Democrat whom UPW had endorsed for a special election in May 2010.
Yaindl could not be reached for comment Wednesday but her complaint described a mandatory April 2010 staff meeting where Dayton Nakanelua, the UPW’s state director, and Clifford "Chip" Uwaine, his executive assistant, explained that the union’s roughly 40 employees would be expected to sign-wave for Hanabusa after work on Fridays, telephone-bank for Hanabusa during weekday evenings, canvass door-to-door for Hanabusa on Saturday mornings, and make financial contributions to Hanabusa’s campaign. Nakanelua, Yaindl said, told employees who needed an exemption from the political activities to "come see" him.
Yaindl said she complained, both verbally at the meeting and afterward in a written memo to Nakanelua, that it was inappropriate to require employees to forgo other commitments to perform volunteer work. She said she never heard back from Nakanelua or Uwaine about her complaints, but was soon fired.
UPW’s attorneys acknowledged that employees were strongly urged to help with sign-waving, phone banking and canvassing for Hanabusa, but not to make financial contributions. The union said it did not make the political activity "absolute conditions of employment," although the union believes it can set such requirements under the law.
"If UPW or any other union cannot direct its staff to engage in campaigning such as sign waving, phone banking and canvassing, the unions are essentially unable to get out the message of which candidates are good for labor and such a bar would ‘suppress’ that speech altogether," union attorneys Rebecca Covert and Herbert Takahashi argued in a brief, citing the Citizens United ruling.
Yaindl and another UPW employee fired on the same day — Terry Lau, a union lobbyist — were offered their jobs back, although both declined. Yaindl said she voted for Hanabusa in the special election.
A divided six-member FEC did not pursue a coercion complaint against the UPW, but ultimately found that the union failed to report $26,260 for two radio advertisements on behalf of Hanabusa and $14,231 spent on employee campaign activities. The UPW explained the lack of disclosure as "a good-faith mistake" and agreed to the $5,500 penalty.
Nakanelua, the UPW’s state director, said Wednesday that the union considers staff participation in political activity voluntary.
"Our dealings with staff with regards to their involvement with the political campaign — across the board — (is) that it’s been our view that it is voluntary," he said.
The UPW has endorsed Hanabusa in her November rematch with former U.S. Rep. Charles Djou, a Republican who won the special election in May 2010 but lost to Hanabusa for a full term representing urban Honolulu’s 1st Congressional District in November 2010.
At a Hawaii Public Radio debate on Tuesday night, Djou challenged Hanabusa to repudiate the UPW’s practices and to refuse to accept money from the UPW or other unions that adopt such practices.
"This is what’s wrong. This is what needs to change — having a union going forward and telling people you must support a political candidate, whether or not you like them, or get fired, is wrong," he said.
Hanabusa did not mention Yaindl by name, but she said the woman involved in the UPW complaint was a supporter who had been eager to help her campaign in her own way.
"No employer should force their employee to engage in any kind of political activity. I believe in that," Hanabusa said. "But I also am very honored that she happens to be a supporter of mine."
