Earthquake rumbles along fault lines in the ALDF mission and structure
COTATI, California––The Animal Legal Defense Fund, founded in 1979, headquartered practically on top of the San Andreas Fault just north of San Francisco, has never clearly decided whether it is a professional association, a nonprofit law firm, or an animal advocacy group.
Instead, for nearly 32 years, the Animal Legal Defense Fund, perhaps better known by the abbreviation ALDF, has tried to be all three, with at times awkwardly mixed results, especially when member lawyers disagree over advocacy positions.
“Shake, rattle & roll!”
Occasionally member lawyers who believed they had joined a professional association have resigned upon realizing that the ALDF board takes advocacy positions without consulting the nonvoting membership.
Until now, though, such conflicts have seldom burst into public view.
Hazy self-definition may currently be at the root of a smoldering conflict between ALDF and staff members trying to unionize via the Nonprofit Professional Employees Union. The unionization bid is opposed by ALDF management.
Some points of law, principle, and precedent favor either side, and suggest both sides might be better off cutting a deal, rather than risking a loss, either in court or in the court of public opinion, which might jeopardize the future of the organization.
ALDF looks like a professional association
As a professional association representing lawyers, ALDF would be normally be directed by voting members who have been admitted to the bar. Those voting members would then elect a board of directors to set policy and raise funds. The board would in turn hire an executive director to hire staff and supervise day-to-day operations.
If incorporated as a professional association, ALDF would have 501(c)(6) status, meaning that it would be recognized as a tax-exempt nonprofit organization, but would not have public charity status. Donations to ALDF, in that case, would not be tax-deductible––and the ALDF would probably raise only a fraction of the present $14 million per year operating budget that it now enjoys.
From inception, ALDF has operated in many respects as if it is a professional association, posting online legal resources and conducting educational events for lawyers and law students.
But ALDF is actually a public charity
For nearly 20 years ALDF maintained a public referral list of member lawyers. The referral list was finally dropped after several of the lawyers on the list engaged in various activities that were embarrassing to ALDF when exposed.
The ALDF board decided at that time that it would discontinue the list, rather than commit resources to monitoring and maintaining professional ethics, a focal concern of most professional associations.
But ALDF has never, in legal fact, actually been a professional association. ALDF was incorporated as a 501(c)(3) public charity. Donations to an IRS-recognized 501(c)(3) public charity are tax-deductible, and a 501(c)(3) public charity is required by law to raise at least a third of its operating budget directly from the public over any given five-year interval.
Not quite a public interest law firm, either
Some 501(c)(3) public charities operate as public interest law firms, for example the Environmental Defense Fund and EarthJustice.
Like other 501(c)(3) public charities, public interest law firms are governed by boards of directors, the majority of whom must not be compensated by the nonprofit organization.
The board members are often not themselves lawyers, and usually do not choose what cases, individuals, or organizations to represent, or when and how to settle a case, though the board might make suggestions.
Like for-profit law firms, which are typically governed by lawyer “partners” who have economic stakes in the success of their partnership, public interest law firms tend to have panels of senior staff lawyers who are experienced in the issues the firm addresses, who usually make the final decisions about accepting clients and reaching settlements.
Advocacy & board structure
The ALDF often works like other public interest law firms, but it also directly engages in animal advocacy campaigning.
In this respect, the ALDF is somewhat a reversed image of national animal advocacy groups that along with conducting advocacy activities to reach the general public, have legal staffs and engage in litigation, frequently in collaboration with other advocacy organizations.
The most basic, fundamental obligation of a 501(c)(3) public charity board of directors is that it must ensure that the charity operates in the public interest, as broadly defined by the U.S. Internal Revenue Service.
The most common type of public charity board of directors is what is called a “fundraising board,” whose members are expected to “give money, get money [via grants and bequests], or get off the board,” but this is not a legal requirement of board members.
IRS requires board members to exercise oversight
The ANIMALS 24-7 board, for instance, is expected only to oversee accountability, as the IRS requires, since for a nonprofit news organization, having a “fundraising board” could lead to conflicts of interest.
Nonprofit boards of directors are usually not directly involved in organizational day-to-day management decisions, but the board members are responsible for ensuring that those decisions do not interfere with the “public interest” mission of the organization, as defined in the bylaws and articles of incorporation accepted by the IRS when 501(c)(3) status is conferred.
A 501(c)(3) public charity may change missions, or change how it goes about fulfilling a mission, but only by approval of the board of directors, and––if the change might alter the basis for the IRS conferring 501(c)(3) status––with IRS consent.
Introducing ALDF United
These legal niceties and strategic concerns were brought to the front for the ALDF on December 14, 2020 when Nonprofit Professional Employees Union communications director Katie Barrows announced that “The employees of the Animal Legal Defense Fund (ALDF) have formed a union with the Nonprofit Professional Employees Union (NPEU). The staff union, ALDF United, has requested voluntary recognition from ALDF management.”
The Nonprofit Professional Employees Union, Barrows explained, “is an affiliated local union of the International Federation of Professional and Technical Engineers,” a member of the American Federation of Labor & Congress of Industrial Organizations (AFL-CIO and Central Labor Council.
The Nonprofit Professional Employees Union was formed, Barrows added, “in 1998 after a group of nonprofit employees at the Economic Policy Institute contacted the International Federation of Professional and Technical Engineers.”
IRS rules not written to “give staff members a voice”
The Nonprofit Professional Employees Union now represents 40 nonprofit organizations, a fraction of the 1.5 million organizations in IRS-recognized nonprofit sector.
Claimed Barrows, “ALDF United will give ALDF staff members a voice in their workplace and build an even stronger and more effective ALDF. ALDF United will support ALDF’s ongoing efforts to become an organization and workplace that is anti-racist and more cooperative, equitable, inclusive, just, respectful, and transparent.”
But the IRS 501(c)(3) nonprofit regulations were not written to “give staff members a voice in their workplace”; they were written to ensure oversight of charities by boards of directors whose first duty, albeit often neglected or ignored, includes exercising authority to prevent misuse of tax-exempt status.
Further, in the specific case of ALDF when it operates as a public interest law firm, judgment calls must be made involving legal matters which require the expertise of senior staff.
Added ALDF United in a public statement issued a few days later, which was conspicuous for the lack of an identified spokesperson among ALDF employees, “We, the eligible staff of the Animal Legal Defense Fund, announced on December 14, 2020 that an overwhelming supermajority of eligible staff [54 employees] signed cards to form a union and authorized the Nonprofit Professional Employees Union Local 70 to be our representative.
“To our great disappointment,” the ALDF United statement continued, “ALDF executive director and chief executive Stephen Wells and the rest of ALDF management declined to recognize our union voluntarily. Additionally, ALDF management hired the notorious union-busting law firm, Ogletree Deakins, to fight our union.”
Of possibly relevant note, the alleged grievances leading to the formation of ALDF United apparently erupted in mid-2020 while Wells was on a “sabbatical” leave after 20 years on the job, after succeeding cofounder Joyce Tischler in 2000.
“Union issue dropped out of the sky on us”
Also of note, whether ALDF should recognize ALDF United was never Wells’ decision to make. That authority resides with the ALDF board of directors, along with policy-making authority, including in matters pertaining to being “anti-racist and more cooperative, equitable, inclusive, just, respectful, and transparent.”
That ALDF United might be usurping board authority, in a situation where the board members but not the union can be held accountable, could not be expected to have eluded a board including several lawyers.
“The union issue dropped out of the sky on us,” Wells told Nonprofit Chronicles writer Marc Gunther.
At least some staff members, Gunther said, “had heard nothing about the union and now oppose it. Organizers gave ALDF two weeks to respond to their request for recognition, during a crucial time for fundraising,” just before the winter holidays.
“Unions were not created for nonprofits”
Opined ALDF communications director Elizabeth Putsche, “Unions were not created for nonprofits.”
Labor unions typically exist within for-profit companies, usually corporations, in which governing roles are defined by investment stakes in the goal of making money. Board seats are bought and sold via stock shares. No board member is expected to serve any interest other than profitability.
The rank-and-file union members perform work which is far removed from the business decision-making. For example, in the auto industry, union members make cars; they do not decide which cars are to be made, what colors they are to be painted, and how they are to be marketed to potential buyers.
The American SPCA was once partially unionized
There is not any inherent reason why a 501(c)(3) public charity cannot have unionized personnel. Clerical workers, for example, are often unionized. The American SPCA, when it held the New York City animal control contract, had unionized kennel workers and animal control officers.
The American SPCA, however, did not have unionized advocacy personnel, whose work was to represent the advocacy and policy positions of the organization.
Since the American SPCA gave up the New York City animal control contract at the end of 1994, it has no longer had union personnel.
ALDF hired the national labor law firm Ogletree Deakins, wrote Gunther, paraphrasing Wells, “because the firm had done pro bono work for ALDF and because an Ogletree partner had served on the ALDF board.
“That decision inflamed matters”
“That decision inflamed matters,” Gunther observed. “Ogletree recently worked with managers to try to block unions at two small nonprofits, the American Civil Liberties Union of Kansas and the Scholars Strategy Network. Staff at both nonprofits ultimately unionized.”
Continued Gunther, “Many animal rights groups depend on the labor of young and idealistic people, most of them women, who in the past have been underpaid, overworked or worse. The results? Sexual harassment scandals at the Humane Society of the U.S. and Mercy for Animals. Unprofessional behavior from an animal rights pioneer. Abusive conduct at a farm sanctuary.”
But Gunther wrote that an ALDF worker, whom he did not name, told him, “I love ALDF. I just think things could be better if staff had a greater voice in the organization.”
Attempted hostile takeover?
A demand for “a greater voice in the organization” is a long way from a traditional union demand for higher wages, job security, and improved workplace conditions, and could be construed as an attempted hostile takeover of the board role in directing mission fulfillment.
Added Gunther, “At ALDF, the union supporters and managers who spoke to me agree that pay and benefits are fair, although the lawyers who work there could probably earn more in private practice. The nonprofit pays premiums for health, vision and dental insurance, contributes to retirement accounts and offers paid sabbaticals. That said, some lower-paid employees reportedly struggle to make ends meet because ALDF is based in Sonoma County, one of the most expensive places to live in California.
“So what is the unionization drive about?” Gunther asked “Power, as much as anything else, it appears. Union supporters describe the ALDF as ‘uber-hierarchical,’ with decision-making concentrated at the top,” as is the norm throughout both the for-profit and nonprofit sectors.
ALDF statement on George Floyd killing “became flashpoint”
In the nonprofit sector, because the executive director and board are ultimately accountable for decisions, while staff are not, that is where IRS rules all but dictate final decision-making authority should be.
“Our goal,” Gunther’s source said, “is to make this a more collaborative place to work.”
But a “collaborative,” while sometimes a successful business structure, including among for-profit law firms, rarely succeeds in the nonprofit advocacy sector.
Gunther also mentioned that “The organizing effort took root shortly after the killing of George Floyd by Minneapolis police last May. In response, ALDF issued a tone deaf statement on Facebook that drew an analogy between the ‘excessive force’ that is deployed against animals and the police use of force against ‘human victims’ that is ‘often based upon the color of one’s skin.’
“The statement became a flashpoint inside ALDF,” Gunther said.
Vigorous response to issues
ANIMALS 24-7 has repeatedly pointed out how animal advocates often actively alienate African Americans by misappropriating terminology and imagery from the civil rights movement, especially in promoting pit bulls, a longtime “pet cause” of ALDF.
But ALDF responded much more vigorously to the racial issues raised by staff than the overwhelming majority of the animal advocacy sector.
“ALDF pulled all of its fundraising appeals for a time and cut back on social media to allow calls for racial justice to take center stage,” Gunther said. “The organization has engaged the firm of A. Breeze Harper, an antiracism scholar and editor of Sistah Vegan, a collection of writings by black female vegans, to do diversity training as well as an audit of ALDF designed to help it attract more people of color. ALDF is also talking with law schools at historically black universities to introduce animal-law programs or fellowships.”
But no response to questions
Ogletree Deakens, elaborated Hamilton Nolan on January 13, 2021 for In These Times, is conducting “an ongoing series of ‘captive audience meetings’ in which managers gather employees in small groups to try to persuade them not to unionize.”
ALDF United proponents, meanwhile, have taken to social media to urge ALDF donors to pressure the organization to accept unionization.
ALDF executive director Wells did not respond to questions from ANIMALS 24-7.
What will happen next is anyone’s guess.