Beverly Enterprises is not one to take no for an answer. The nation's largest nursing home chain intends to appeal a federal judge's dismissal of its defamation lawsuit against a Cornell University researcher. And it really doesn't care who objects or why.
" `Academic freedom' doesn't give you the right to tell a bunch of lies," said Donald Dotson, Beverly's senior vice president for labor and employment. "Nobody wants to delve into the truth of her assertions. They are easily and demonstrably false. To us, that's the issue in this case."
On May 26 U.S. Judge Gary Lancaster in Pittsburgh dismissed Beverly's suit against Kate Bronfenbrenner, director of labor education research at Cornell, saying her allegedly slanderous remarks were covered under the doctrine of legislative immunity.
Bronfenbrenner had been invited to testify at a public meeting held May 15, 1997, in Pittsburgh. Several members of Congress called the meeting to discuss a bill to bar companies that repeatedly violate labor law from getting federal contracts. Beverly has a contract for rehabilitation services with the U.S. Department of Veterans Affairs, which could have been jeopardized if such a bill passed and the chain was found to have violated labor law.
During the hearing, Bronfenbrenner called Beverly "one of the nation's most notorious labor law violators."
Late last month Bronfenbrenner said she was "relieved" by the case's dismissal, especially "that the shadow of discovery is no longer hanging over my research." But the appeal by Beverly means the case isn't over for Bronfenbrenner.
Beverly had requested all Bronfenbrenner's research notes, telephone bills, confidential surveys and other materials, to try to show that her research was shoddy and did not support her statements. Bronfenbrenner's writings and speeches have been used as a cudgel by the Service Employees International Union during its 14-year campaign to unionize Beverly's nursing homes in Pennsylvania and elsewhere. If the company can show that her conclusions can't be justified, it will have knocked down one of the pillars on which the corporate campaign rests.
"They want to wear us down, so we hand employees over to the union without secret ballot elections," Dotson said from Beverly's Fort Smith, Ark., headquarters. "There's no end to the effort to harm the business. That's what a corporate campaign is: `You do what we want, or we try to destroy you.' We've ignored a lot of that from union people, but when it's coming from a professor at Cornell, wait a minute."
Dotson was assistant secretary of labor from 1981 to 1983 and chairman of the National Labor Relations Board from 1983 to 1987.
To Beverly, the issue has been whether the meeting where Bronfenbrenner spoke was a congressional hearing. "It was organized by the SEIU, not by Congress," Dotson said. "Just because a congressman was involved" does not make the hearing congressional.
Bronfenbrenner said the hearing looked and felt congressional to her, especially because Sen. Arlen Specter (R-Pa.) and four other legislators were there. "I walked in, and there was Arlen Specter looking down at me," she said. "It was in the Allegheny County Courthouse. They ran it as a hearing; they took testimony from veterans' groups, representatives from the General Accounting Office, patient groups, other scholars. I've testified at many hearings; this felt just the same."
However, at an actual congressional hearing, the majority of lawmakers attending would have been Republicans. At this one, all the legislators except Specter were Democrats.
To Bronfenbrenner and Cornell, the issue is not congressional immunity; it's academic freedom. If corporations can file lawsuits and then rummage through academicians' private files and phone bills, that will deter research on corporate behavior, and it will deter public discussion about that research.
Bronfenbrenner said she fears if she stops her research, she'll set a precedent affecting all scholars. "Within three days of the suit being filed against me, 700 scholars had signed a letter of protest supporting me," she said. "People doing AIDS research, tobacco research, contacted me. Whatever the field, it would be harmed if I gave in."
Dotson said the request for documents is merely a negotiating position. "Interrogatories always ask for the ballpark. She ought to know all we really want is, show us what you have to back up your statements," he said. "She's in a real box here. There's nothing that can back it up. We haven't committed every serious labor practice (violation) in every campaign we've had."
Bronfenbrenner disputed that the discovery requests were mere ploys, citing one that arrived a few days before the May 26 dismissal. It asked to depose her immediately. Dotson also asked the SEIU for all its communications with her.
Bronfenbrenner pointed out that her surveys rely on a promise of confidentiality. She said if she sacrificed that, no one would trust her again. And confidential field research would be seriously damaged.
Given that this case has created negative publicity for Beverly, not just in Pennsylvania but nationally, and that it has incensed the academic community, why doesn't Beverly drop the matter instead of appealing?
"It's serious business when someone who is a professor at a prestigious university gets before Congress and the public and says she has done research and we have done all these things," he said. "You can't ignore that.
"We're just weary of people like this who are on some kind of mission from God that makes them think they can do anything in the name of their cause," Dotson said.
"Now if the message gets out, if you lie about Beverly, you're going to get sued, that's fine with us," he said.