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Limitations on violence under law tested anew; Case of Local 17 reignites national issue for labor

They're charged with pouring sand into the engines of construction vehicles and stabbing a company executive in the neck.

They're also accused of tossing hot coffee at non-union workers and threatening to sexually assault the wife of a company representative.

But in the eyes of organized labor -- and maybe the U.S. Supreme Court, as well -- the alleged violence, threats and intimidation by leaders of Local 17, Operating Engineers, in Buffalo may be permissible under federal law.

And that's why the AFL-CIO, the nation's largest labor organization, sought to intervene in the federal court case against the local.

"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."

A federal judge Monday denied the AFL-CIO's request to file a friend-of-the-court brief in the case.

To hear labor leaders and defense lawyers talk, the nation's highest court long ago gave union members certain rights to use violence and vandalism in the pursuit of "legitimate union goals."

The case was United States v. Emmons, 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, property damage or similar coercive actions.

"The Supreme Court put a lid on this 35 years ago," said Mark J. Mahoney, a lawyer for one of the defendants in the Local 17 case.

The court's ruling was based on the indictment of three union members involved in a strike in Louisiana. The three men were accused of firing high-powered rifles at utility company transformers and blowing up a transformer substation.

"Their actions were more extreme than what is alleged in the Local 17 case," said Catherine Creighton, a lawyer for Local 17.

In Louisiana, charges against the three union members were dismissed in U.S. District Court. In the context of a strike, their conduct was legal, according to the court, because it was done in the pursuit of "legitimate" union objectives.

The Supreme Court later upheld that decision.

>Condoned or criminal?

Creighton said the high court recognized that labor-management relations, especially in the construction industry, can be filled with violent conflict and confrontation.

For others, especially those targeted by union officials, the notion that any kind of violence is allowable under the law is unthinkable.

"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.

Meinking, in fact, went so far as to applaud the local U.S. Attorney's Office for investigating and indicting Local 17 members.

"I see no reason to condone anything Local 17 did," Meinking said of the union's defense. "And I applaud the authorities for going after them."

Whether the courts agree is something else again.

Even among federal judges in Buffalo, there is disagreement about Emmons and its relevance to the Local 17 case.

In October, U.S. Magistrate Judge Hugh B. Scott ruled that prosecutors improperly used the Hobbs Act, a federal extortion law, to indict Local 17 members. He also recommended that charges against the 12 indicted union leaders be dropped.

In his ruling, which amounted to a recommendation, Scott cited Emmons and suggested that the use of force "to achieve a legitimate labor objective" cannot be prosecuted under the Hobbs Act.

"The Supreme Court decided almost 40 years ago that union members and union leaders should not be charged with extortion when they're trying to get employees a collective-bargaining agreement," said Brian M. Melber, a lawyer for one of the defendants.

Melber and Mahoney argued that issue before Scott and won, only to see Scott's ruling set aside a few months later by U.S. District Judge William M. Skretny.

Skretny ruled that the defendants' interpretation of Emmons is far too broad. He also decided that the government had sufficiently proved that the defendants' alleged conduct 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 to suggest that none of the non-union companies targeted by Local 17 were "willing" employers.

The government, in its indictment, accuses union leaders of running a criminal enterprise that lasted nearly a decade and added millions of dollars to the cost of construction projects throughout the region.

Their goal, prosecutors contend, was to force construction companies into hiring Local 17 workers and punishing those who refused.

As evidence, the indictment lists 75 separate instances of alleged wrongdoing by the union. The allegations range from a death threat against a representative for a non-union contractor to a knife attack on the president of another company.

The indictment also details a 2004 encounter in which Local 17 members surrounded a construction company representative at the gate to a work site in Dunkirk.

"You're not working here today," one of the defendants is alleged to have said. "You're gonna get hurt."

The defendants have denied the allegations and recently asked Skretny to reconsider his decision.

For Creighton and others, the impact of the Local 17 case is already being felt across the region. She sees it in the absence of more picket lines at non-union construction sites.

"It has the potential to have a chilling effect," she said of the federal prosecution, "and, in fact, I think it already has had a chilling effect."

Mahoney expresses even more doom and gloom in his suggestion of what could happen to organized labor if the Local 17 case is allowed to move forward. He thinks the government's real goal is to erode a law that provides unions clout in dealing with employers.

"The government wants the ability to go after unions who aggressively protect their work areas," Mahoney said. "Are we going to allow federal prosecutors to destroy our unions? Are we going to allow them to circumvent the National Labor Relations Act?"

>Wide-ranging impact

U.S. Attorney William J. Hochul Jr. declined to comment for this article, but his predecessor was blunt in his assessment of the union's conduct when the indictment was announced in 2008.

"They victimized people at small construction sites and large sites, including many that were publicly funded," said then-U.S. Attorney Terrance P. Flynn. "We believe they had a negative financial impact on almost every major construction project in Western New York over the past 10 years."

Two of the 12 men charged in Local 17 case took guilty pleas earlier this year, but the rest of the defendants, including Mark N. Kirsch, who was the local's president and business manager, vehemently deny the allegations.

Local 17 is the third union that the government has prosecuted for labor racketeering 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 Local 91 prosecution resulted in the conviction of 16 former leaders and members of the union, including former President Mark S. Congi.

email: pfairbanks@buffnews.com

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