Razzle Dazzle
Tech Guild Re-Fights History

By RICHARD STEIER

When the Civil Service Technical Guild holds nominations for union offices Oct. 31 - the day this newspaper appears on the stands - former President Roy Commer may loom large, although he won't be on the ballot and is not even a union member anymore.

The incumbent president, Claude Fort, was first elected in 2001 with significant support from Mr. Commer in defeating Uma Kutwal, who had taken over the Tech Guild after engineering Mr. Commer's ouster in mid-2000. This time around, in a reflection of the volatility of relationships within the union, Mr. Commer is supporting a slate headed by Mitchell Feder on which Mr. Kutwal is a candidate for first vice president. (It's expected that Behrouz Fathi, the head of the Tech Guild's New York City Transit chapter, will also run for president.)

Mr. Kutwal testified on Mr. Commer's behalf in his recent unsuccessful civil suit in Federal court seeking to regain his union membership. Mr. Fort, who distanced himself from Mr. Commer soon after winning election, last spring blocked an attempt by Mr. Feder and his allies to pass a motion calling for Mr. Commer's reinstatement to union membership.

GHOST OF UNION'S PAST: The challenge to incumbent Civil Service Technical Guild President Claude Fort (left) by Mitchell Feder (center) in the union's upcoming election may hinge on whether Mr. Fort's siding with the Guild's international union against former President Roy Commer, who helped get him elected, creates a voter backlash.

A Rallying Point for Feder

And so it might appear that Mr. Commer's court defeat could be a political plus for Mr. Feder, serving as a rallying point for the same membership anger over having had their democratically elected president removed that helped propel Mr. Fort to power nearly six years ago.

Not surprisingly, Mr. Fort discounted that possibility in an Oct. 24 phone interview, saying he believed the Tech Guild rank and file understood that he opposed the motion restoring Mr. Commer's membership because the matter "wasn't within our jurisdiction." He predicted he would win a third term because "I think they like what we're doing."

Interestingly, Mr. Feder also wasn't sure how much of a factor Mr. Commer's endorsement would be. "Hopefully, he'll be able to swing some votes for us," he said. "On the other hand, there are some people he gets on the wrong side of. I think what was done to him [by the union] was a travesty of justice. At the same time, he was a contributing factor to his own demise."

He was referring to Mr. Commer's removal by the Judicial Panel of the Tech Guild's international union, the American Federation of State, County and Municipal Employees - acting on a complaint brought by Mr. Kutwal - for making unauthorized mailings to union members and then failing to comply with the panel's order that he pay more than $11,000 in restitution.

"He thumbed his nose at the [Tech Guild] board and then he balked at paying the fine," Mr. Feder said. "But he was dealing with a stacked deck from the get-go."

That allusion was to the forces that aligned against Mr. Commer after he looked to revamp the Tech Guild's Professional Employees Legal Services fund and emerged as an outspoken critic of the leadership of District Council 37 (the Tech Guild is Local 375) and AFSCME President Gerald McEntee.

Jurors Rejected Free-Speech Claim

Mr. Commer and his attorney, Arthur Schwartz, were unable to convince nine jurors - most of them not union members - in U.S. District Court in Manhattan that he was victimized by an effort orchestrated by AFSCME. The lawyer representing the Washington-based international union, Barry Levy, contended that Mr. Commer's ouster was entirely the product of disagreements with his own executive committee and his violations of the AFSCME constitution, first in making the unauthorized mailings and then in not providing restitution.

Although evidence was produced by Mr. Schwartz that the penalties imposed against Mr. Commer by AFSCME were so disproportionate to those levied against other officials as to suggest that he was targeted for special treatment, the jurors apparently decided it wasn't compelling enough to rule that he had been a victim of retaliation for exercising his free-speech rights.

They discounted testimony by Mr. Kutwal that a top AFSCME official, Eliot Seide, while serving as a deputy administrator of DC 37 had told him that Mr. Commer was "an evil person" who needed to be removed. Mr. Levy argued, with justification, that Mr. Seide in denying making such a statement had offered a consistent account of his actions and feelings.

In contrast, Mr. Levy said, Mr. Kutwal's viewpoint had changed drastically from the time when bringing the charges and getting Mr. Commer deposed had benefited him politically. He contended that, having lost to Mr. Fort and believing it was because of Mr. Commer's continued influence within the union, Mr. Kutwal had decided that the way to regain political power was to aid Mr. Commer in his suit and thus endear himself to his supporters.

Mr. Levy scoffed at Mr. Kutwal's testimony that his conversion was triggered by the discovery that $2.4 million had been embezzled by a longtime Tech Guild bookkeeper and went undetected because of the inattention of two union officials - one of them the head of the union's legal services fund - with whom Mr. Commer had clashed repeatedly.

He told jurors that close to 14 months had passed from the time that the theft was revealed to the point when Mr. Kutwal re-aligned with Mr. Commer, submitting an affidavit that became the basis for his suit going to trial. In between discovery and conversion was a Tech Guild election in which Mr. Fort, who was still being supported by Mr. Commer, won a second victory over Mr. Kutwal to retain office, suggesting, Mr. Levy contended, that Mr. Kutwal's subsequent rallying to Mr. Commer's cause was spurred by political calculation rather than a troubled conscience.

Risky Business

It would seem that Mr. Feder, who has long supported Mr. Commer, would be wary of putting Mr. Kutwal on his slate, in the same position from which Mr. Kutwal led the mutiny of the executive committee against Mr. Commer eight years ago.

"I'm hoping he's seen the light of day and he's sorry about what happened in the past with Roy," Mr. Feder said by way of explanation. "I think we have more to gain with Uma than we lose."

Presumably he was referring to the support Mr. Kutwal retains among the sizable bloc of South Asians within the 6,800-member union of Architects, Engineers and other professional employees. That was surely part of the attraction when Mr. Commer, whose politics are far more conservative than Mr. Kutwal's, joined forces with him to successfully topple longtime Tech Guild President Lou Albano nearly nine years ago.

But just as Mr. Kutwal's shifting allegiances made him a ripe target for tough cross-examination in Mr. Commer's trial, his explanations for his past campaign to drive Mr. Commer out of the union raise serious questions about the leadership qualities of a man who if elected would be just a betrayal away from the Tech Guild presidency.

In a June 2005 interview, he said his "judgment was totally clouded" by the exhortations of officials at both the Tech Guild and in AFSCME. He originally was convinced that Mr. Commer was too extreme in his statements against corruption and that his crusading was leading the executive committee into fruitless battles and away from its duties to the membership.

A Dupe of Others?

Because he believed Mr. Commer was given to making condemnations without sufficient proof that the individuals he was criticizing were corrupt, Mr. Kutwal said, "I listened to people without analyzing whether he was wrong or right."

Once Mr. Commer was deposed, Mr. Kutwal said, he convinced himself to stay silent about a $3,700 check Mr. Commer submitted as partial restitution for the unauthorized mailings - which could have prevented his being stripped of union membership - because of the advice of those individuals, including then- Treasurer Bob Mariano and then-Political Action Committee Chair Mike Gimbel.

'Make Sure He Stays Out'

"The people I was surrounded by said that now that he's out we should make sure he can never come back," Mr. Kutwal said in that interview 17 months ago.

Mr. Gimbel retorted then that it was Mr. Kutwal who "led the attack on Commer. If he's claiming that he had no brain, when did he get a brain?"

Of course, any claims that Mr. Kutwal is too easily led or willing to sacrifice principle for the sake of expediency could also be applied to Mr. Fort. It is widely believed that shortly after he was elected in 2001, he was persuaded by then-DC 37 Administrator Lee Saunders not to give Mr. Commer an active role in his administration.

Mr. Fort has denied that occurred, and Mr. Saunders denied offering such counsel. Then again, Mr. Saunders strained credulity to the breaking point during Mr. Commer's trial in explaining what he meant during an October 1998 DC 37 executive board meeting when he told those present, "We're under a vicious and unfortunate attack, but we must deal with it because this is New York and DC 37."

Rudy a Red Herring

The backdrop for those remarks was increasingly negative publicity as evidence mounted of widespread corruption within the union, highlighted by a New York Times editorial that urged AFSCME to place DC 37 in trusteeship. Mr. Commer's case banked heavily on convincing jurors that it was AFSCME's concern about such publicity that led it to use any means it could to remove him from office because of his caustic criticism of the leadership of DC 37 and of Mr. McEntee.

When Mr. Schwartz asked Mr. Saunders on cross-examination what he had been trying to convey, he responded, "Mayor Giuliani attacked us constantly and frequently. When Mayor Giuliani was elected, he attacked us on a daily basis."

Mr. Schwartz countered, "Didn't DC 37 endorse Mayor Giuliani?"

'That Was Political'

"Yeah, that was a political deal," Mr. Saunders replied of the endorsement of Mr. Giuliani's 1997 re-election bid. "That doesn't mean - that doesn't mean that we are not still under attack."

His statements were arguably the most disingenuous made at the trial. The DC 37 endorsement a year earlier had given Mr. Giuliani a much-needed boost in the minority community, and his campaign featured a commercial in which Charlie Hughes, the head of DC 37's Local 372 at the time, sang Mr. Giuliani's praises and then embraced him.

That political support, and the budgetary help DC 37 had given the Mayor by accepting a contract a couple of years earlier that began with a two-year wage freeze, left Mr. Giuliani uncharacteristically muted as the scandal began to unfold.

When Mr. Hughes was discovered to have plunged his local $10 million into debt, a portion of it the result of thievery that would lead to a jail term, Mr. Giuliani softly spoke of how unfortunate it was that a good and decent man had strayed. When it was revealed, less than a month after Mr. Saunders's speech about a "vicious and unfortunate attack," that the 1996 contract vote had been rigged by top DC 37 officials, Mr. Giuliani and his aides reacted not with outrage but with an insistence that the contract was negotiated fairly and the criminal activity did not give other unions cause to demand that their own deals be reopened.

'No Smoking Guns'

Mr. Schwartz acknowledged in his summation of Mr. Commer's case to the jury, "There's not a lot of smoking guns. There's not a lot of people going around [publicly] saying, 'We'll teach him to go to the media all the time.'''

Nonetheless, he maintained, there had been a concerted effort to do precisely that for just that reason. In contrast with Mr. Commer's treatment, he noted, DC 37 Executive Director Lillian Roberts had entered into a secret agreement with a political consulting firm that was suspected of helping her in her re-election campaign three years ago to extend its contract by a year at $10,000 per month. When her executive board, which under the AFSCME constitution had to approve the deal, found out about it several months later, it canceled the deal and brought charges against her.

Like Mr. Commer, she was found guilty by the head of the AFSCME Judicial Panel, John Seferian. But although the money involved exceeded what Mr. Commer spent on the unauthorized mailings, Ms. Roberts was not removed from her job. There was one simple reason: unlike Mr. Commer, she wasn't ordered to pay restitution, eliminating the possibility that she would defy the panel decision and offer grounds for being ousted. It is part of a pervasive double standard that exists in how AFSCME deals with those who support Mr. McEntee as opposed to those who have been critical.

Removed Voters' Choice

In ridding themselves of Mr. Commer, Mr. Schwartz told the jury, AFSCME's leadership had stripped the Tech Guild rank and file of the right to choose its own president.

As well as Mr. Schwartz tied the strands of his case together, that argument didn't resonate with the jurors. It remains to be seen whether it will carry more weight with Tech Guild members, who have a deeper understanding of the truth it contains.

Mr. Feder wasn't certain about the impact of that issue, noting that many union members "don't care what happened in the past; they care about their paychecks."

And, he said, in the time since Mr. Commer was booted from office, "There's been maybe a 40-percent turnover in the membership. A lot of these people don't even know who Roy is."

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