|October 26, 2016|
ZOA to Park Slope Food Coop: Reinstate Members Who Opposed Anti-Israel Boycott
SHARE THIS WITH YOUR FRIENDS
BY EMAIL AND FIRST-CLASS MAIL
Park Slope Food Coop
782 Union Street
Brooklyn, NY 11215
We write to urge the Park Slope Food Coop (the “Coop”) to lift the one-year suspension that was imposed last April on four longstanding members of the Coop – as well as on the members of their respective households – for allegedly “disrupting or obstructing Coop activities.” These four individuals have been loyal members of the Coop for at least 20 years; some, far longer. Three of them have been members since the Coop was started. All four members were unjustly singled out and targeted from among the hundreds of other Coop members who, like them, objected to a hateful and bigoted presentation – complete with inflammatory photos that unfairly demonized Israel – at a Coop general meeting on April 28, 2015. The presentation was intended to support yet another proposal by the anti-Israel contingent of the Coop that the Coop boycott the products of an Israeli company, SodaStream.
As explained in more detail below, the suspension of the four members should be lifted immediately for two basic reasons: First, the basis of the punishment – that the four members prevented the general meeting from “engaging in Coop business” – cannot stand, since boycott activities against Israeli products should not and in fact cannot be “Coop business.” Such activities violate New York State law, as well as the Coop’s own Mission Statement. Second, the punishment was imposed unfairly, without due process, and in violation of the Coop’s own rules and policies.
Boycotting SodaStream and Other Israeli Products Cannot be “Coop Business” Because that Would Violate New York State Law
A Coop boycott of Israeli products such as SodaStream would violate New York State law and subject the Coop to liability. Section 296(13) of New York’s Human Rights Law prohibits boycotts based on national origin, among several other protected categories. The law states, in relevant part:
It shall be an unlawful discriminatory practice (i) for any person to discriminate against, boycott or blacklist, or to refuse to buy from, sell to or trade with, any person, because of the race, creed, color, national origin or sex of such person, or of such person’s partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers or customers, or (ii) for any person willfully to do any act or refrain from doing any act which enables any such person to take such action.
N.Y. Exec. Law § 296(13) (McKinney 1982) [emphasis added].
The law prohibits “any person” from engaging in these discriminatory practices; a “person” includes a partnership, association and corporation, such as the Coop. See id. at § 292(1). Violators of the law are liable for damages and “such other remedies as may be appropriate.” See id. at § 297(9).
New York courts have “broadly read” Section 296(13) “to encompass all forms of discrimination involving commercial endeavors.” Harvey v. NYRAC, Inc., 813 F. Supp. 206, 212 (E.D.N.Y. 1993). The law prohibits “not only boycotts imposed by foreign entities, but any business tactics, utilized in New York State or against a New York resident or corporation, which are driven by ‘religious or racial bigotry’.” Scott v. Massachusetts Mut. Life Ins. Co., 86 N.Y.2d 429, 436 (1995). A defendant may be liable under Section 296(13) if there is evidence establishing that the defendant “engaged in a pattern of conduct that commercially disadvantaged only members of a protected class”; there is no requirement that there be evidence of a formal boycott or blacklisting campaign. Id.
The actions of the Coop plainly satisfy these legal standards, since the Israel-bashers at the Coop have been using tactics that are nothing short of anti-Semitic bigotry. With all the human-rights violating countries of the world, those at the Coop who are promoting a boycott have focused their attention solely on Israel, the only Jewish state in the world. To build support for the boycott, the Israel-bashers showed little if any regard for the facts when they made their presentation at the general meeting on April 28, 2015. Instead, they displayed inflammatory anti-Israel photos whose accuracy could not be verified. No context was provided and in fact, no connection to SodaStream was established. We understand that the boycott promoters not only viciously attacked Israel during the presentation, but Jews as well, with outrageous comments like “Jews are aggressive toward black children.”
It is crystal clear that those promoting the boycott of Soda Stream are driven by anti-Semitism, plain and simple. Their bigoted and discriminatory tactics are exactly what the Human Rights law is supposed to address.
We note that Section 296(13) exempts from liability “boycotts to protest unlawful discriminatory practices,” but that exception does not apply here. No one could legitimately argue that SodaStream, of all companies, engages in “discriminatory practices.” This company has been a model for fairness and peaceful Jewish-Arab co-existence. When the SodaStream factory was located in Maale Adumim (an area under Israeli control according to the 1993 Oslo Accords and an area that would likely be included in Israel in any future peace deal with the Palestinian Arabs) in the so-called “West Bank,” approximately 500 Palestinian Arabs worked at the factory alongside Israeli Jews, receiving equal pay and treatment. The factory even included a mosque for Muslim employees.
Any notion that the Coop could lawfully target SodaStream thus flies in the face of the facts and is completely unsupportable. SodaStream is being targeted for one reason alone; it is an Israeli company and the boycott promoters are hateful and hostile to Israel. The Coop could face liability and the imposition of damages and other remedies pursuant to Section 296(13) of the Human Rights Law if the Coop boycotts Israeli companies such as SodaStream.
New York State recently made its prohibitions against anti-Israel boycotts even stronger. Last June, Governor Andrew Cuomo issued Executive Order No. 157, directing state entities to divest all public funds supporting the BDS campaign against Israel. “The first-in-the-nation action will ensure that no state agency or authority engages in or promotes any investment activity that would further the harmful and discriminatory Palestinian-backed Boycotts, Divestment and Sanctions (BDS) campaign in New York State.” (https://www.governor.ny.gov/news/governor-cuomo-signs-first-nation-executive-order-directing-divestment-public-funds-supporting.) The Governor has thus made it crystal clear that even promoting an investment activity that would further the anti-Israel BDS movement would be actionable under the Executive Order.
The Coop may not be a state entity, but it surely receives many state as well as federal benefits. In addition to the federal money the Coop receives from the food stamps that customers use at the Coop, the Coop has been authorized by the state to operate as a non-profit tax-exempt organization. The Coop thus does not have to pay taxes derived from the revenue it collects. Moreover, the Coop is accountable to the New York State Office of Temporary and Disability Assistance, which oversees the food stamp program in New York, known as the Supplemental Nutrition Assistance Program, or SNAP. We would hate to see the Coop’s continuing receipt of these benefits be jeopardized in any way by its indulgence of discriminatory practices that target and discriminate against Israeli companies, in violation of New York law.
You should be aware of the fact that last year, the GreenStar Food Coop in Ithaca, New York, rejected a boycott of Israeli products for the very reasons stated in this letter. GreenStar’s legal counsel concluded that the boycott could subject the GreenStar Food Coop to liability under Section 296(13) of New York’s Human Rights Law. GreenStar wisely determined that it would be legally irresponsible to make itself a “test case” as to whether boycotting Israeli products would violate the law. For the sake of your Coop’s stability and well-being, we encourage you to reach the same conclusion.
Boycotting SodaStream and Other Israeli Products Cannot be “Coop Business” Because that Would Violate the Coop’s Mission Statement
In addition to the illegality of boycotting SodaStream and other Israeli products, such actions would violate the Coop’s own Mission Statement, which could not be clearer. The Mission Statement provides, in relevant part:
We are committed to diversity and equality. We oppose discrimination in any form. We strive to make the Coop welcoming and accessible to all and to respect the opinions, needs and concerns of every member. We seek to maximize participation at every level, from policy making to running the store.
https://www.foodcoop.com/mission [emphasis added].
Attempts to boycott SodaStream or any Israeli company is national origin discrimination, in violation of the Mission Statement. In addition, these actions make the Coop a less welcoming and accessible place for Jews and others who love and support the State of Israel, as well as for Coop members who simply want a place to purchase quality food without getting embroiled in complicated political situations outside the Coop’s mandate and mission.
The Mission Statement also commits the Coop to “lead by example” and educate about such topics as “cooperation and the environment.” If anything, carrying SodaStream products at the Coop supports this Mission, since the products are an environmentally superior alternative to store-bought carbonated drinks. Among other benefits, SodaStream does away with the wasteful disposal of plastic bottles.
When the four long-time members of the Coop objected to boycotting SodaStream products as an agenda item for the Coop’s general meeting on April 28, 2015, these members were acting consistent with, not in violation of, the Coop’s rules and policies. Moreover, their actions helped prevent the Coop from taking any steps that could subject the Coop to liability under New York State law. There is thus no basis for their suspension; it should be lifted immediately, especially when, as described below, the process was unfair and biased against them.
The Suspension Was Unfairly Imposed and in Violation of Due Process
When the four members each received a letter dated October 27, 2015, notifying them that they were facing discipline, the letter erroneously stated that a copy of the Coop’s Disciplinary Procedures was enclosed. The Disciplinary Procedures were not provided to the four members until the date of the hearing, which prevented them from fully understanding the nature of the charges against them and the procedures that needed to be followed, and prevented them from adequately preparing their defense.
In addition, the four members were refused their reasonable request to know the identity of their accusers, and to see copies of the complaints that were filed against them. Again, this prevented the members from challenging the veracity and possible bias of their accusers, and hampered the preparation of their defense.
Furthermore, it goes without saying that the disciplinary proceeding must be fair and unbiased; the Coop’s Disciplinary Procedures mandate it. See Disciplinary Procedures, Preamble (requiring fairness) and Section I(C) (requiring an unbiased proceeding). Yet some members of the Hearing Officer Committee support the anti-Israel boycott efforts; that bias alone should have precluded them from participating in the disciplinary process and having any say in the disposition of the cases.
Finally, the four members were adjudged to be “guilty” even before they could be heard on the complaints filed against them. Six months after the Coop general meeting at which they allegedly engaged in misconduct, they received the October 27, 2015 letter, apprising them of the fact that they faced a hearing and disciplinary action. But the letter already concluded that they were guilty. Two individuals (their identities could not be determined because they signed only their first names to the letter) informed the four members that “[t]he DC [Disciplinary Committee] has determined that your conduct at the General Meeting constitutes extremely uncooperative conduct . . . and is a particularly egregious instance of prohibited conduct. As such, the DC has determined that disciplinary action against you is warranted and that such action may affect your membership status.” The four were immediately suspended without any hearing. And the punishment was also unfairly imposed on all the other members of their respective households, none of whom had been accused of any wrongdoing.
When the “hearing” took place more than six months later on April 10, 2016, it merely rubber-stamped the predetermined conclusion that these four members had violated the rules and deserved to be harshly punished. Making matters worse, the punishment of a one-year suspension that was imposed after the “hearing” did not take into account the suspension the four and their respective households had already endured. The disciplinary hearing was a sham since the Coop was open about the fact that it had plainly already decided, before the hearing, that these members were “guilty” and should be suspended.
In addition to the fact that the entire disciplinary process was riddled with problems, the end result is downright cruel. The four Coop members who were suspended are all long-time members of the Coop who have faithfully served and supported the Coop for many years, without any problem. All four members are elderly; at least one has some physical challenges. All are living on limited incomes. Shopping at the Coop is not merely a convenience for them; it enables them to buy healthy foods at prices they can afford. Imposing a harsh one-year suspension on these four Coop members – especially given that they were objecting to conduct that would be illegal and in violation of the Coop’s own rules and policies – is callous as well as foolish. These Coop members took steps to keep the Coop in compliance with its own rules and with the law.
We urge you to lift the suspension of the four members immediately. We also urge the Coop to stop indulging those who are singling out Israel and Israeli products for discriminatory boycott practices. The conduct is against the rules and mission of the Coop and exposes the Coop to potential liability, damages and other consequences under New York law.
Please let us hear from you by October 24, 2016. We hope that this matter can be amicably resolved and would be pleased to meet with you to achieve that goal.
Very truly yours,
Morton A. Klein, National President
Susan B. Tuchman, Esq., Director, Center for Law & Justice
Eytan Sosnovich, Director of Regional Affairs