By Kevin Livingston
Monday October 26, 1998
After 42 years fighting for-sometimes with-union
members, the Oakland lawyer is one of a kind
Last month, the protesters lined up in single file and waved signs. They chanted slogans and passed out flyers. But when the time came to burn Oakland labor lawyer Victor Van Bourg in effigy, they looked at a line of police and balked.
A ragtag band band from various Bay Area unions, the group had gathered at Treasure Island that September evening to publicly accuse the lawyer of stomping union democracy movements.
But at the end of the night, Van Bourg's effigy was still intact, and the 67-year-old attorney was contemplating legal action.
Respected by his colleagues and loathed by his enemies, Van Bourg has reigned as California's top union-side attorney for close to 40 years.
Perhaps the last of a dying breed of socialist labor attorneys spawned from the Great Depression, Van Bourg rose firm the picket lines to build one of the most influential union-side law firms in the country. Oakland's Van Bourg, Weinberg, Roger & Rosen feld.
"In the entire history of our country, the laws have been essentially against unions, against organizing and against workers," he says. "I have accomplished a great deal for the workers and institutions themselves."
A target of the FBI and right-wing forces during the Joseph McCarthy era-"He may still think he is being pursued," says a Van Bourg associate-the lawyer represents a network of union locals, labor councils and union benefit funds from Washington, D.C., t o Honolulu.
He has built a 40-lawyer shop of true believers, where clerks are unionized and where partners are said to have passed on paychecks from time to time to fight the union cause.
While Van Bourg has been described by many as a character larger than life, his firm has been called the Littler Mendelson of the political left. Littler is known for its tenacious advocacy on behalf of corporations or officials who are opposed to the goals of organized labor.
Van Bourg is not altogether comfortable with the comparison. "I don't think that is correct," he says sitting in his 14th floor Oakland office overlooking Lake Merritt.
"Let me put it this way. We are aggressive, we are creative, and I think in many ways we dominate the field. But we don't engage in unethical or fraudulent behavior. Our clients respect us and respect our approach."
With offices in Oakland, Sacramento and Los Angeles and smaller outposts in Alaska, Hawaii and Washington, D.C., Van Bourg views this firm as a political institution as well as a consortium of lawyers.
The law clerks and paralegals at his firm are union-Office Professional Employees International Union Local 3- and though not offically a union, associates are a recognized bargaining group within the firm.
The atmosphere at the firm is filled with a mistrust of those not frm the working class-a belief that the worst union job is better than the best for a non-union employer, says an associate.
With 16 partners and 24 associates, the 42-year-old Van Bourg firm is growing slowly-from around 35 lawyers in 1994 to 40 today.
The firm's clients include the 1.1 million-member, Washington, D.C.-based Service Employees International Union and Northern California's largest union,the 250,000-member SEIU Local 250.
Lora Jo Foo, an attorney for the Asian Law Caucus and a former Van Bourg associate, says there is a commitment at the firm to advocate exclusively for workers. "Crossing the line is not tolerated," she says.
Clients are often represented for a flat fee, rather than an hourly rate. Attorneys at the firm say they chose the tack, though it does little for the bottom line, in an effort to minimize the pain to their working class clientele.
An associate says this low-fee approach means many lawyers are overworked, and that profits per partner, which Van Bourg says he does not track, are not what they would be at comparable-sized firms..
Three years ago, the firm gave up its downtown
San Francisco office to cut costs and made Oakland its home base.
But few partners leave Van Bourg. "They put their money
where their mouth is," says one associate.
FIRE IN THE BELLY
The son of union organizers, Van Bourg began his legal career with some of the tumultuous class struggles of the 1960s. He represented Cesar Chavez's National Farm Workers Organizing Committee. He also led San Francisco State University faculty members when they struck for a collective bargaining agreement-and to show solidarity with demonstrating students-in 1967.
"There are few [left] from that era," says Foo. "The labor struggles and mass movement period is passing."
More than anyone, Van Bourg recognizes that he comes from a period where the union movement was far more vigorous than it is today.
"As younger people go into the field they have a much more intellectual understanding of why they want to represent poor people and workers," he says. "For people from my generation, there was both the experience of a depression, which we lived through and which we remember to this day, and a much more politically conscious working class. A generation that understood both poverty and war. The fire in the belly was much greater.
An attorney who briefed his first U.S. Supreme court case just three years out of Boalt Hall School of Law, Van Bourg looks back at a rewarding career which saw him argue four times before the high court, as well as countless California Supreme Court and federal court of appeals cases.
Although too new to the profession to argue before the Warren court-a lawyer had to be practicing for five years-Van Bourg still considers the 1959 case San Diego Unions v. Garmon, 359 U.S. 236, to be his most memorable high court case.
With former San Francisco attorney Charles Scully arguing for San Diego unions, the court held that the National Labor Relations Act prohibited state courts from awarding economic damages to those who complain about peaceful picketing.
In 1965, Van Bourg won an important victory for members of government unions, arguing successfully that public employees are entitled to engage in political activities such as strikes in Bagley v. Washington Township Hospital District, 65 Cal.App.2nd 499 . In 1996, he was at the forefront of setting union conditions in the San Francisco Airport Agreement-concerning one of the largest construction projects ever undertaken in Northern California.
Van Bourg's old-school pedigree is revealed in other ways.
The Asian Law Caucus' Foo says in the early '90s she witnessed Van Bourg defend union members against RICO charges brought by the U.S. Department of Justice. During the days of examination by the prosecutor, Van Bourg took no notes, she says. When it was time to cross-examine the witnesses, he did it entirely from memory. he did the same thing in his closing argument.
Foo says it took the jury less than a day to acquit the union members.
Today, collective bargaining agreements between the unions and management mean most cases go to arbitration.
But there are still opportunities for big
suits. In 1997, Van Bourg was the first to file suit in California
on behalf of health and welfare trust funds against tobacco companies.
Stationary Engineers Local 39 v. Phillip Morris Cos. Inc., 97-1519,
is scheduled for trial in San Francisco federal court last year.
EAGER TO FIGHT
A life in the contentious world of union organizing and litigating means that Van Bourg has, inevitably, made some enemies. Several members of local unions believe Van Bourg is the legal strong arm of entrenched union leadership, and that he does not always represent the interests of the rank and file.
Alex Corns, business manager for San Francisco Hod Carriers Local 36.Corns accused Van Bourg in writing of placing himself in conflict by defending both the union and union officers being investigated by the union.(www.laborers.org)
Steve Zeltzer, a member of Stationary Engineers Local 39, says Van Bourg has used his power to prevent rank-and-file members from gaining control of their unions. "They are fed up with him," Zeltzer says.
Van Bourg's firm also has been accused of going after flies with a baseball bat. In 1997, he filed suits against the California Association of Interns and Residents union, or CAIR, for trying to break a merger deal with SEIU Local 250, the hospital workers unions.
Described as an unhappy marriage that Local 250 did not want to end, Van Bourg went to work to stop the divorce. The firm accused CAIR of engaging in mail and wire fraud in violation of the Racketeer Influenced and Corrupt Organizations Act-because the b reakaway organization had filed a change-of-address form with the post office.
Through RICO is designed to allow prosecutors to combat the combat the Mafia and its corruption of organized labor, the firm raised it in California Association Of Interns and Residents v. Brill, 97-3958, and heard cries of overkill from critics in the labor bar who thought the tactic extreme.
The Berkeley League of Women Voters, brought in to oversee the 1997 vote to decide if CAIR would split Local 250, was also threatened with litigation by Van Bourg's firm if the results were released.
A letter sent by Van Bourg partner William Sokol begins: "I was dismayed and appalled to learn that the [League Of Women Voters] is being misused by a corrupt little faction of Health Care Workers Union Local 250, who unlawfully call themselves 'CAIR' and have already been sued in federal court for engaging in racketeering."
The letter goes on to say that a complaint with the State Bar was filed against CAIR's attorney, and that by intervening, the league may end up a party in litigation.
In 1997, San Francisco federal Judge Maxine Chesney refused request for a restraining order to stop CAIR from holding elections and ordered the case to arbitration. The plaintiffs dismissed the case in September.
Oakland lawyer Robert Bezemek, an attorney for CAIR and a defendant in the dismissed RICO suit, would not discuss the case or Van Bourg.
But Van Bourg's aggressiveness has created enemies both within and outside the unions.
"He basically represents them [unions] in ways that serve only the interests of entrenched leadership and his own interests." says a San Francisco labor lawyer who did not want to be named. "He assists them in ways that go beyond his interest as a lawyer."
San Francisco solo labor attorney Michael Connell, who represents rank-and-file union members, says it is the zeal with which Van Bourg attacks union dissenters that sets him apart. Placed in the dual role of union lawyer and adviser, Van Bourg's firm has been described as good at the lawyer part and bad at the advising part.
"They are eager to get in a fight"
Connell says. "They need to take broader view of the world."
Van Bourg is unfazed by the criticism, the
controversy, and maybe even the public effort to burn him
in effigy. "If I am personally attacked, I will defend myself,"
he says, "People are individuals who will take action, I
am not here to question their motives."
A CHANGING PRACTICE
With less then 2,500 union-side labor attorneys practicing in the country today, according to Van Bourg, his 40-attorney firm is of a size that is "almost unheard of."
While unions have been losing steam in the last few decades, Van Bourg insists that the need for people in his specialty remains strong.
"Labor laws are changing not because unions are changing. Labor Laws are changing to find new methods to restrict and restrain the growth of labor's power," Van Bourg says. "The practice does not shrink because unions grow weaker. As a matter of fact, as unions grow weaker, the need for lawyers increases."
And, he points out, labor practice is diversifying.
Started as primarily a criminal practice because union members were often arrested from striking, his firm's obligations have grown more complex. Today, as unions concentrate on political activities as much as picket lines, the workplace has become increasingly subject to litigation. ....we do many more things that we used to do," Van Bourg
says. "We do real estate work for trust funds, we do bankruptcy work for trust funds, we do benefit work for trust funds, and we represent the interests of individual workers as that applies."
An increase in individual discrimination and harassment claims can create internal conflicts for lawyers like Van Bourg who are forced to weigh a worker's individual rights with the sanctity of the collective bargaining agreement.
Though Van Bourg lives for the union label, he is not in favor of taking away the rights of the individual workers to sue in court.
"Although I believe the collective bargaining agreement should be supreme," Van Bourg says. "I am not taking up the cudgel of taking back the second bite at the apple from people who have been historically oppressed: minorities, women, gays, older people . Their rights should not be restricted."
Despite his age, Van Bourg continues to argue cases and his critics should not expect him to throw in the towel any time soon.
"This firm is a political institution and I don't want to withdraw from my political life," he says.
"I have defended the unions against
all comers, but I have never defended the union in a case I didn't
believe in, in my heart."
Reporter Ken Livingston's e-mail is email@example.com