NLRB Chairman’s Former Law Partner Defends Union Violence

The AFL-CIO Defends Union Violence As A ‘Legitimate’ Union Activity…
by LaborUnionReport

NLRB Chairman’s Former Law Partner Defends Union Violence

A little over a month ago, in a case that drew national attention, a man was targeted at his home, shot and injured, all because he dared to run union free business. Now, in Buffalo, New York, a case involving outrageous allegations of labor-racketeering and union violence aimed at non-union construction workers and company owners is proceeding through the judicial process. Its outcome, however, may have wide-ranging ramifications on a national level.

Forget for a moment that a man was stabbed in the throat, hot coffee thrown on non-union workers, sand put into gas tanks and a woman threatened with sexual assault. Forget the fact that the judge presiding over the federal racketeering case against Operating Engineers, Local 22, in Buffalo, NY ultimately rejected the AFL-CIO’s attempt to file a amicus brief, the sheer fact that the national AFL-CIO even attempted to intervene speaks volumes:

“We’re not condoning the allegations or arguing that union officials are completely immune from prosecution,” said Jonathan D. Newman, a lawyer for the AFL-CIO. “Instead, we simply want to make sure that the [federal law] is not interpreted in a way that could have a chilling effect on legitimate union activity.”

The union violence as a ‘legitimate union activity’ that the AFL-CIO’s Newman is referring to is a 1973 U.S. Supreme Court case called United States vs. Enmons, in which the Supremes upheld a District Court ruling determining that unions could not be found in violation of an anti-racketeering law called the Hobbs Act if the violence was in pursuit of legitimate union objectives.

In 1946 Congress passed the Hobbs Act, aimed at a wide spectrum of union violence. Among other things, it defined criminal extortion as “the obtaining of property . . . by wrongful use of actual or threatened force, violence or fear [emphasis added].” In using the word “wrongful,” Kendrick says, “Congress left a narrow opening through which the U.S. Supreme Court would push a bulldozer in 1973.” In its decision in United States v. Enmons, the Court upheld a lower court ruling that three electrical union members indicted for sabotaging a substation and other violence had done nothing illegal because they were pursuing “legitimate” union objectives.

Actually, the ’sabotage’ to the substation (referred to above) was described in the Enmons decision as the “firing high-powered rifles at three Company transformers, draining the oil from a Company transformer, and blowing up a transformer substation owned by the Company.” However, since it was done during a lawful strike, it did not fall under the Court’s definition of extortion under the Hobbs Act.

Back in Buffalo, according to the attorney for Operating Engineers, Local 17, Catherine Creighton: ”Their actions were more extreme than what is alleged in the Local 17 case.” Apparently, according to attorney Creighton, shooting a substation is less violent than being stabbed in the neck.

Interestingly, Creighton’s former law partner happens to be someone whose name may sound familiar, newly-appointed NLRB Chairman Mark Pearce. It is his former law firm that represents Local 17, the union, the very union whose militants allegedly stabbed and vandalized non-union contractors. According to an Operating Engineers newsletter at the time of Pearce’s appointment to the NLRB

Pearce has worked in a Buffalo, New York law firm representing unions for a number of years. Included among his firm’s clients are IUOE Locals 17 (Buffalo, NY) and 463 (Niagara Falls, NY).

In July 2009, after Barack Obama nominated Pearce, he acknowledged in answer to Senate questioning that one of his clients was Local 17:

I did represent Local 17 of the International Union of Operating Engineers in a representation proceeding before the NLRB. Subsequent to my representation, I believe officials of Local 17 were indicted for matters unrelated to my representation.

The case in New York has national significance as it may pave the way for unions to lose the Enmons loophole that provides them a defense when violence occurs in the pursuit of ‘legitimate’ union objectives.

On the other hand, if the Local 17 defendants win and unions continue to have an exemption from prosecution when acts of violence are committed to fulfill ‘legitimate’ union objectives, this problem may become much worse very shortly.

President Obama’s union appointees at the Department of Labor recently proposed expanding the definition of so-called ‘persuaders’ to includes any consultant who…

…engages in activities that have as a direct or indirect object to, explicitly or implicitly, influence the decisions of employees with respect to forming, joining or assisting a union, collective bargaining, or any protected concerted activity (such as a strike) in the workplace.

Under the Department of Labor’s proposed definition, as written, among those who may become newly classified as ‘persuaders’ would be firms that supply security guards during strikes, as well as replacement workers. If those security or replacement firms are required to file financial reports, so too will their employees and independent contractors under the DOL’s new proposal. Further, each individual who would have to file with the Department of Labor would be required to include his or her names, as well as address. Once filed, the information is then made public, on the Department of Labor’s website, giving unions a ready-made ’scab’ list of people to target—at their homes.

If the Operating Engineers win their case and unions maintain their immunity from federal prosecution for acts of vandalism, sabotage and violence so long as it is for ‘legitimate’ objectives and the Department of Labor makes lists of individuals available to the public (and those who would commit union violence), there may be more innocent lives affected in the future.

Although Republicans in Congress have tried, on several occasions, to pass the Freedom from Union Violence Act, it has so far been derailed by Democrats beholden to union bosses. That does not mean, however, that Republicans shouldn’t keep trying to pass it. Unions should not be immune from prosecution for acts of violence.

As was stated to the Buffalo News:

“All along, we have been of the belief that no one has the right to do the things Local 17 did,” said Rebecca A. Meinking, president of the Empire State Chapter of Associated Builders and Contractors.

It’s time to stop the union violence.