Union members, at times at the behest of their leaders, aren’t averse to roughing up opponents in order to win concessions. Employers and especially nonunion employees often find themselves on the receiving end of acts such as assault, extortion and vandalism or the threat of these things. At least one member of Congress, Rep. Joe Wilson, R-S.C., wants federal law to end this behavior. This past May 21, he introduced legislation, the Freedom from Union Violence Act of 2009 (H.R. 2537), that would impose potentially stiff fines and prison sentences on anyone who commits an act of violence or extortion during a labor dispute. The bill was referred in June to the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. The unions are intent on keeping the bill bottled up, as they have in previous attempts at such legislation since 1997.
The Freedom from Union Violence Act would amend existing law. It would close a loophole in the Hobbs Act, a 1946 federal law prohibiting robbery or extortion affecting interstate or foreign commerce. Without this amendment, notes Wilson, the Hobbs Act permits “violence and intimidation on behalf of labor unions…if it ruled that such coercion was to further a ‘legitimate’ union objective.” What he and other supporters are referring to here is a 1973 decision by the U.S. Supreme Court, United States v. Enmons (410 U.S. 396 [1973]), which interpreted the Hobbs Act as granting this “right” to unions. His measure states:
Whosoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion, or attempts or conspires to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything of this section, shall be fined not more than $100,000, imprisoned for a term of not more than 20 years, or both.
The bill explicitly exempts union conduct that is “incidental to otherwise peaceful picketing during the course of a labor dispute.”
Supporters think the measure can’t come soon enough. “Lawmakers on Capitol Hill need to send a clear message that any violence or intimidating during labor disagreements will no longer be tolerated,” said Jerry Gorski, national chairman of Associated Builders and Contractors, an Arlington, Va.-based trade association of merit shop contractors. “This legislation is long overdue to help protect all workers in the construction industry.” And the intimidation is real. This decade has witnessed union terror campaigns, for example, at the Kohler sink factory in Searcy, Arkansas (the United Auto Workers); the nonunion Asbestos & Lead Removal Corporation, in Queens, N.Y. (the Laborers); and the AK Steel plant in Mansfield, Ohio (United Steelworkers of America). In the AK Steel case union members at various points detonated pipe bombs in mailboxes, fired gun shots, and assaulted nonunion workers. In one instance, a Steelworkers member was caught and charged with plotting to launch homemade rockets at the plant.
A 506-page report published in 1999 by the John M. Olin Institute for Employment Practice and Policy at George Mason University, “Union Violence: The Record and the Response by Courts, Legislatures, and the NLRB,” reveals the extent to which union rank and file will go to terrorize employers, non-member workers, union dissidents and even third parties with no particular stake in the outcome of a strike or other dispute. Rocks, knives, guns, sledgehammers, explosives and bare fists are frequent means of intimidation. From the standpoint of psychological warfare, so are threatening phone calls, letters, emails, menacing stares, and unscheduled “visits” to the homes of targets. Using a database for the period 1975-96 assembled by the Springfield, Va.-based National Institute for Labor Relations Research (NILRR), study authors Armand Thieblot, Thomas Haggard and Herbert Northrup counted 9,785 incidents of criminal acts or threats in 50 states, the District of Columbia and Puerto Rico. Union member or official-initiated violence accounted for nearly 250 deaths during this time, 97 of them from a single act of arson at a San Juan, Puerto Rico hotel on December 31, 1986 following a meeting by Teamsters Local 901 to discuss a strike against management. (Three hotel workers pleaded guilty to federal charges several months later in that New Year’s Eve holocaust).
Critics of the study claim that the data are unreliable and unfairly lump psychological and actual violence together. In a 2001 article for the Texas Law Review, “The Continuing Assault on the Right to Strike,” University of Texas law professor Julius Getman and former (Carter-era) Labor Secretary Ray Marshall accuse NILRR and Olin researchers of stacking the deck. “It seems obvious that the methodology employed confuses those strikes most written about with those most violent,” the authors wrote. “Further, the Institute includes incidents of “psychological violence; i.e., intimidation, coercion and verbal threats” – terms which it does not bother to define. It seems clear, however, that this definition would include nonviolent civil disobedience of the type used by the civil rights movement and increasingly by the labor movement.” Yet the authors’ use of phrases such as “seems obvious” and “seems clear” reveals empirical ambiguity on their own part not to mention a view that prosecuting threats of violence is tantamount to depriving strikers of their rights.
The distinction between psychological and actual violence is, at bottom, artificial. By its nature, a threat of violence conveys to the intended target that injury or even death may result in the absence of compliance. Imagine calling Nazi Germany’s conquest of Austria or Czechoslovakia “peaceful” because the Germans did not apply military force. Quite obviously, the mere threat of war was enough to induce surrender. This principle holds true for all types of conflict, including labor disputes. If a worker speaks out against a majority union position, and then sees a couple of beefy-looking men staring at him while simulating a slashing motion against their throat with an index finger, you can be sure that dissenter is going to think twice before piping up again. Terror through communication of a body gesture or machine (e.g., phone call) is intended to produce surrender of the will.
This kind of terror is especially prevalent in a group setting such as a picket line where the atmosphere already is confrontational. Here union members and even their bosses may resort to violence. That very likelihood causes many dissenters to recoil rather than serve as the spark for an act of violence of which they might be a victim. Moreover, it’s easy for someone contemplating violence in that kind of environment to disavow moral responsibility. Thieblot, Haggard and Northrup explain:
Unlike planned and delegated violence (as in a football game) or aggressive violence deliberately undertaken by one or both sides (as in a war or ambush), the source and origin of violence that breaks out in confrontational settings is uncertain. When rocks start flying in a crowd, it’s likely that no one knows or will ever know who cast the first one or what act of insolence or aggression pushed the situation over the edge. Individuals in a melee become caught up in the swirl of events, showing sides of themselves that would remain hidden in more serene settings. These instincts and outcomes are so common that when active groups in confrontation do not turn violent, that fact itself may qualify as news.
The Freedom from Union Violence Act implicitly recognizes the dynamics of intimidation in labor disputes and why it does qualify as violence. Rather than undermine the letter or spirit of the National Labor Relations Act, the measure clarifies the meaning of coercion, and in so doing affirms the commitment of NLRA to a democratic workplace. The measure has been in on-and-off mode ever since 1997, when Sens. Orrin Hatch, R-Utah and Strom Thurmond, R-S.C. first introduced it. Whether or not the problem of union violence is as bad as it was a decade ago, Congress should pass this overdue legislation.