B. THE ENMONS DECISION

During an economic strike, certain members and officers of the striking union were alleged to have committed five specific violent acts against the employer, the purpose of which were to strengthen the union's bargaining position. The charges included firing highpowered rifles at company transformers, draining oil from a company transformer, and blowing up a company transformer substation. These allegations certainly go beyond minor acts of picket line "animal exuberance" that the opponents to a Hobbs amendment seem so interested in protecting. It is important that the case in which these acts of violence were averred, United States v. Enmons, be analyzed with the scope of the violence committed kept well in mind. Repeated references, by representatives of organized labor in testimony presented to this committee on December 10, 1981, to spontaneous picket line "fistfights," are misleading. Proposed amendments to the Hobbs Act are not directed toward, and, indeed, have been carefully drafted to exclude, this type of minor, exuberant behavior.

The issue facing the Supreme Court in Enmons was whether the Hobbs Act proscribed the major acts of violence committed by the union for the purpose of forcing the company to agree to wage and benefit demands at the negotiating table. Focusing on the word "wrongful" in the Hobbs Act's definition of extortion, four members of the court held that Congress intended that coverage of the act be limited to situations where the object of the misconduct is wrongful, and where this object, as here, is a legitimate union goal such as higher wages and benefits, there is no "wrongful" taking of an employer's property. This judicial reasoning is the progeny of the "ends justifies the means" logic displayed by the Supreme Court in Local 807, the case that led to passage of the Hobbs Act.

It is of note that Mr. Justice Stewart's opinion for the Court in Enmons was written for a plurality of four. Mr. Justice Blackmun, concurring, found the legislative history to be confusing, and invited Congress to clarify the act. The dissent by Mr. Justice Douglas, the only member of the Court who was sitting at the time of passage of the Hobbs Act, found the majority's reading of the legislative history to be unpersuasive. "The regime of violence, whatever its precise objective, is a common device of extortion and is condemned by the Hobbs Act."

NEED FOR FEDERAL JURISDICTION

Opponents of an amendment to the Hobbs Act predicate their opposition on two basic arguments. First, they express concern that individuals, moved in the heat of the moment of a labor dispute to engage in a minor picket line incident such as fisticuffs, will be subjected to a Federal felony prosecution for an expression of relatively harmless animal exuberance. The second argument questions the need for Federal intervention, accompanied by stringent penalties, in labor disputes, where misconduct, it is claimed, is effectively policed by State and local authorities.

The simple response to the initial argument is that organized labor, the chief opponent, surely cannot oppose the prohibition of, in the most effective manner, violent, dangerous behavior, even

when the objective of such behavior is a legitimate, traditional goal of collective bargaining. Permitting, indeed, condoning, personal violence, or the destruction of property during a labor dispute, negates the primary purpose of this Nation's Federal labor laws, that of insuring industrial peace. Certainly, the activities of the defendants in the Enmons case, firing rifles into and blowing up company property, cannot be labeled as minor, incidental behavior which is entitled to the imprimatur of the Congress and the courts of the United States.

Further, Hobbs can be amended so as to ameliorate concerns regarding the imposition of Federal jurisdiction for minor acts of misconduct erupting during a labor dispute. For example, Senator Grassley, Republican of Iowa, has filed an amendment to sections. 1721 and 1722, which are the extortion sections of S. 1630, commonly referred to as the Criminal Code reform bill. Senator Grassley's amendment, which would eliminate the Hobbs Act exemption granted labor organizations by the Enmons decision, specifically excludes from Federal jurisdiction minor acts of misconduct incidental to picketing, and also establishes a requisite amount of property damage, below which Federal jurisdiction would not be invoked.

Representative Sensenbrenner, Republican of Wisconsin, recently introduced a Criminal Code reform proposal, H.R. 5679, which permits Federal prosecution for extortion only where the acts or threats of physical force or violence to a person or property constitute a criminal offense punishable by imprisonment for a period greater than 2 years in the State, district, or territory in which the acts occurred. The proposals offered by Senator Grassley and Representative Sensenbrenner demonstrate that the fears expressed by organized labor can be alleviated, although we question the wisdom of doing so.

The second argument, which claims that State and local law enforcement has proven sufficient, was adequately rebutted at the hearing held by this subcommittee on December 10, 1981. Witness after witness related instances of union violence that went unabated because of the inability or unwillingness of State and local authorities to act. Local and State officials are often hesitant to seek prosecution of union officials and agents because of their political and financial powers. Further, without Federal jurisdiction, States are limited in dealing with labor violence which adversely affects interstate commerce.

Statistics in the 1980 annual report of the Bureau of Alcohol, Tobacco and Firearms of the U.S. Treasury Department graphically depict the increasing problem. Property damage from labor-related bombing incidents in 1980 was over $1.1 million. This represents a 78-percent increase from 1979. Property damage where the motive was extortion was over $3 million in 1980.

Finally, the Hobbs Act itself is recognition that Congress was dissatisfied with the State and local prosecution of extortion. The Supreme Court of the United States, in United States v. Culbert, acknowledged this fact. Although the case did not involve a labor dispute, the Court, in an unanimous opinion, discussed the reason for passage of the Hobbs Act and its attendant extension of Federal jurisdiction over activities that may have been punishable under State law. "Congress apparently believed . . . that the States had

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not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so." This logic becomes more compelling in a situation involving a labor dispute, where State and local authorities are less inclined to become involved.

FEDERAL COURTS REJECT ENMONS “END JUSTIFIES THE MEANS"

RATIONALE

There has been a growing recognition by the Federal courts that union members or officers who engage in violent activity should be subject to Federal criminal sanctions notwithstanding the objective of the actors. The ninth circuit court of appeals recently reinstated a criminal indictment against union members who, during a labor dispute, followed the employer's moving vans around the country and engaged in repeated acts of violence, including the use of explosives to damage and destroy the trucks.

In this case, United States v. Thordarson, the union defendants argued that their conduct should not be exposed to Federal prosecution because the violence occurred during the course of a recognitional strike, which constitutes a legitimate labor dispute. The argument prevailed in the lower court, which dismissed the charges based on the authority of United States v. Enmons.

On appeal, the ninth circuit refused to extend the Enmons decision beyond the Hobbs Act, holding that no basis existed for expanding the Enmons "union immunity" doctrine to all Federal criminal statutes. The court reinstated the indictment.

The Thordarson holding does not, of course, eliminate the labor union exemption to Federal prosecution under the Hobbs Act. The indictment speaks to the use of explosives, violation of the Travel Act, and racketeering activity in violation of the Racketeer Influenced and Corrupt Organization Act.

The importance of the ninth circuit holding is the rejection of the policy arguments forwarded in Enmons. Thus, the court does not adopt the rationale that legitimate union objectives justify violent means, stating instead that:

Nothing in the language or legislative history of Federal labor legislation suggests that Federal criminal statutes-enacted to supplement State criminal sanctionsshould not similarly be available to punish union members and officials who try to achieve collective bargaining goals by means of the kind of violence charged in the indictment before us.

The Thordarson decision is a step forward in holding all persons accountable for their actions. However, it does not go far enough, being limited on its facts to activity involving arson or explosives. It is necessary to remove unions' immunity to Hobbs Act prosecution so that other forms of violent behavior can be outlawed.

CONCLUSION

The U.S. Chamber supports the concept of the legislative proposals which would eliminate the judicially created labor union immunity to Federal prosecution under the Hobbs Act for extortionate behavior. The chamber believes that no collective bargaining objective justifies violence which threatens life or property, and that the

use of violence during a labor dispute is contrary to the public interest.

The Hobbs Act is a Federal criminal statute. As such, its prohibitions are incorporated into S. 1630, a bill which would codify, revise, and reform all Federal criminal statutes, and upon which we have done a great deal of work.

S. 1630 is pending full Senate consideration. If passed in current form, it would codify the interpretation given to the Hobbs Act by the Supreme Court in United States v. Enmons. We believe that the Court's interpretation of legislative intent as expressed in passage of the Hobbs Act was wrong. To codify that misinterpretation, to give it the sanction of the Congress of the United States compounds that wrong.

Senator Grassley, Republican of Iowa, has filed an amendment to sections 1721 and 1722 [the Hobbs provisions] of S. 1630, which will be considered during floor debate of the Criminal Code reform bill. This amendment presents an ideal opportunity for the Senate to reaffirm its original intent in passing the Hobbs Act.

The chamber strongly supports legislation, including the Grassley amendment, which would hold any and all parties who engage in violent conduct accountable for their criminal actions.

We look upon this proposed legislation as a necessary link, you might say, a closing of the circle of Federal law in dealing with violence in labor disputes, and we have civil provisions in our laws which deal with the subject.

We are able to go in on some occasions and obtain through the National Labor Relations Board injunctions against violent conduct. We have the right under civil provisions of the Taft-Hartley Act to seek damages for the losses or the damages which are caused by the violent acts.

This seems to us to be just and an essential link which hopefully would deter violence, major violence in the labor disputes, something that is definitely needed.

I would say in closing, Senator Mathias, that my own experience as a practicing management labor lawyer, is that the occurrence of violence in labor disputes certainly appears to be on the rise, and this law is very much needed in order to preserve the peace, not only at the bargaining table, but in labor disputes which arise out of bargaining as well as labor disputes which arise out of other circumstances.

It is not a drastic piece of legislation. It is not something that would be inconsistent with the whole pattern of State and Federal labor legislation which deals with this vital subject, and our national scene, and one we believe that all parties concerned should get behind.

It is a valuable piece of legislation which we hope will receive the favorable consideration of not only the subcommittee but the Congress.

Thank you, sir.

Senator MATHIAS. Thank you, Mr. Thompson.

We are glad that the author of this bill, Senator Grassley, has joined us.

Let me ask you just a couple of questions.

As to S. 613, it does more than reverse the Enmons case. It creates a new Federal crime, and I am wondering if the U.S. Chamber supports the whole thrust of S. 613 or would it prefer simply to see a reversal of Enmons?

Mr. THOMPSON. We support the full force of S. 613 as a practical matter, and we think the achievable legislation would be a reversal of Enmons.

Senator MATHIAS. Well, now, how would you answer the Department in their expression of concern that the provisions would work an expansion of Federal jurisdiction and would impose_severe strain upon the Department because of its limited resources? Mr. THOMPSON. Our answer would be that

Senator MATHIAS. Having in mind that we are shrinking these departments, not expanding in this present budgetary crunch? Mr. THOMPSON. Yes, sir.

I'd have to answer in two ways.

One is that as we shrink these departments, I hope we are eliminating less useful services perhaps some unneeded services, and not eliminating necessary governmental functions.

In a short term, I think there may be some merit to the argument that limited resources will have an effect on full enforcement of this law, the full law.

On the other hand, I think you have to look at laws, and I am presumptuous to say this, you having been here so long and knowing so much about the legislative process, you don't pass a law for the next 6 months.

This is something that hopefully will set national labor policies for a long time to come.

It is a necessary point in our labor laws that needs to be corrected. And it is one that, it seems to me, it would be difficult for anyone to oppose in principle, and that is that we stamp out violence.

My broader, perhaps philosophical answer to your question would be that hopefully if you put this statute on the books, it will deter, it will serve to deter violence and will reduce the need for the expenditure of resources either at the State or Federal level, because people will think twice before they will engage in violence during the course of labor disputes.

And I think it almost goes without saying that persons who are contemplating or about to commit a criminal act are deterred more by Federal criminal statutes than they are by State criminal statutes, even though I think very strongly that the New Federalism is a good way to go.

It has been proven over and over again that Federal laws in the labor field have more effect and are more enforceable and do accomplish the long-range objectives of industrial peace, than do State laws. And that doesn't mean I am for removal of all the right-to-work laws.

Senator MATHIAS. I didn't assume it did.

Now, would you further assume, or maybe I better not make assumptions, let me ask you, is it your position that as presently drafted, the Enmons provision of S. 613 clearly and specifically excludes minor acts of violence, or do you think we need to do something further to make that clear?