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Latest News - January 2014

January 4, 2014
Legality of union violence at heart of court case
Source: Buffalo News
By: Phil Fairbanks

One construction executive will testify about the violence and vandalism he witnessed on a picket line at Ralph Wilson Stadium.

Another will recount the threats and intimidation that culminated in a union member stabbing him in the neck.

And still another will tell the jury of a menacing letter sent to his wife.

They are just a few of the 100 or so witnesses expected to testify in the trial that starts this week against seven former labor leaders accused of using death threats, assaults and vandalism to force construction companies into hiring union workers.

The trial, nearly six years in the making, is based on allegations that the former leaders of Operating Engineers Local 17 engaged in a decade of extortion and racketeering as part an ongoing criminal enterprise.

“It’s shocking so little was done for so long,” said Robert A. Doren, a lawyer for several of the companies targeted by the union. “It’s sort of about time.”

Federal prosecutors say the criminalconduct involved some of the region’s biggest construction projects, including Roswell Park Cancer Institute and Ralph Wilson Stadium, and often added millions of dollars to the cost of those projects.

Yet courts have a long history of suggesting that a union’s reliance on violence, threats and intimidation can be permissible under federal law.

Even the nation’s highest court ruled that union members can use violence and vandalism in the pursuit of “legitimate union goals.”

The case was United States v. Enmons, and, in 1973, the Supreme Court ruled that labor unions seeking improved terms and conditions of employment cannot be charged with extortion even if their efforts are accompanied by violence or property damage.

“If you’re looking at an illegal means and an illegal end, you’re going to be in trouble,” said Michael T. Harren, a Rochester lawyer who represents unions. “But if you’re looking at an illegal means and a legal end, you’ll be OK.”

The Local 17 trial begins this week and will focus on a federal indictment that charges the seven defendants – five others have pleaded guilty – with 79 separate instances of alleged wrongdoing.

The allegations range from gluing shut the locks on work sites to pouring sand into the oil systems of heavy machinery to attacking the president of a local company.

Federal prosecutors say the “Local 17 Criminal Enterprise” operated from 1997 through 2007 and was formed with the intention of forcing construction companies into hiring its members and punishing the companies that refused.

The conspiracy, according to prosecutors, was headed by union organizers Carl A. Larson and James L. Minter III and local president and business manager Mark N. Kirsch.

Larson and Minter have admitted their guilt as part of plea agreements with the government.

But Kirsch, a well-known figure in labor circles, has maintained his innocence from day one.

Contractors welcomed the FBI’s investigation of Local 17 and are quick to note that it’s the third time the government has gone after a construction trade union in the region.

The first was Laborers Local 210, viewed for decades as an integral part of the local mafia, and the second was Laborers Local 91 in Niagara Falls.

“The concern we have as investigators includes the level of violence that is often involved in these criminal acts,” said Brian P. Boetig, Special Agent in Charge of the FBI in Buffalo, “and certainly the resulting diminished competition, loss of business opportunities, reduction of wages and benefits, and the increase in the costs of goods and services in our impacted neighborhoods.”

Construction executives say the investigations and subsequent prosecutions have helped change conditions that once discouraged commercial investment in the region.

“As a result of these cases, the environment has improved in the sense that open and fair competition is now achievable,” said Jeff Albert, interim president of the Empire State Chapter of Associated Builders and Contractors, a construction trade group.

Despite the feds’ past success, no one is suggesting the Local 17 prosecution is a slam dunk.

First, the defendants are represented by some of the region’s most prominent criminal defense attorneys.

And second, there’s the legal precedent set by Enmons, one of the reasons why the AFL-CIO, the nation’s largest labor organization, sought unsuccessfully to intervene in the federal court case.

“We’re not condoning the allegations or arguing that union officials are completely immune from prosecution,” a lawyer for the AFL-CIO said in 2011. “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.”

Union leaders here are reluctant to talk publicly about the case – they don’t want to be viewed as sympathetic to a group of defendants facing criminal charges. But privately they say the prosecution has already hampered organizing and picket line activity in the region.

They also expect the case will be appealed, regardless of the outcome, and that Enmons is likely to play a role in those appeals.

Labor lawyers say the Supreme Court case is vital to the survival of construction unions because it recognizes that labor-management relations, especially in the construction industry, can be filled with violent conflict and confrontation.

The court’s ruling was based on a labor strike in Louisiana and the allegation that three union members fired high-powered rifles at utility company transformers and blew up a transformer substation.

A federal judge dismissed the charges after finding the union members’ conduct was legal because it was done in the context of a strike and in pursuit of “legitimate” union objectives.

The Supreme Court upheld that decision.

Even now, 40 years later, lawyers and judges differ on whether Enmons applies to the Local 17 case.

“I don’t think it’s going to be a credible defense,” said Doren, referring to the local courts’ decisions in the Local 17 case. “I think the courts have clarified what Enmons means.”

Harren disagrees and says the high court’s ruling made it clear that the Hobbs Act, the federal extortion law at the crux of the local case, doesn’t apply to this type of prosecution.

“If the purpose is to get a legitimate job for an operating engineer, any violence or illegal conduct can be prosecuted under state law, but not federal law,” he said.

Defense lawyers for Kirsch made a similar argument as part of an unsuccessful motion to dismiss the charges against their client.

“These allegations do not contain a single accusation that Mark Kirsch did anything other than seek to obtain labor agreements with employers on behalf of unionized workers,” they said in court papers.

Even among Buffalo’s federal judges in Buffalo, there’s disagreement about Enmons and its relevance to the Local 17 case.

In 2011, U.S. Magistrate Judge Hugh B. Scott ruled that prosecutors improperly used the Hobbs Act to indict Local 17 members. He also recommended the charges be dropped.

In his ruling, which amounted to a recommendation, Scott pointed to Enmons and concluded that the use of force “to achieve a legitimate labor objective” cannot be prosecuted under the Hobbs Act.

A few months later, Chief U.S. District Judge William M. Skretny ruled that the defendants’ interpretation of the Supreme Court case was far too broad.

He found that Local 17 members’ alleged conduct, as outlined in the indictment, was “wrongful” because it took place outside the context of a strike.

The judge also pointed to a section of the National Labor Relations Act dealing with the “voluntary” nature of prehire agreements in the construction industry and found that none of the non-union companies targeted by the union were “willing” employers.

Lawyers from the U.S. Attorney’s Office and the defense declined to comment for this story.



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